Laxman Tuljiram More vs The State Of Mah And Ors
2017 Latest Caselaw 8524 Bom

                                                           WP/5949/2012
                                     1

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 5949 OF 2012

 Laxman Tuljiram More,
 Age 34 years, Occ. Service
 R/o Sarola, Tq. Washi
 District Osmanabad.                             ..Petitioner

 Versus

 1. The State of Maharashtra
 Through Secretary
 School Education Department,
 Mantralaya, Mumbai.

 2. The Dy. Director of Education,
 Latur Division, Latur.

 3. The Education Officer (S),
 Zilla Parishad, Osmanabad.

 4. The Marathwada Gramin
 Shikshan Prasarak Mandal,
 Through its Secretary,
 Uadhav Keshavrao Kothwala,
 R/o Pimpalga Kothla,
 Tq. Washi, Dist. Osmanabad.

 5. The Head Master
 Vasant Vidhyalaya,
 Pimpalgaon Kothla,
 Tq. Washi, Dist. Osmanabad.                     ..Respondent

                                    ...
    Advocate for Petitioner : Shri Adhate M.S. h/f Shri Jadhav N.L.
     Addl.GP for Respondents 1 to 3: Smt. Deshpande Manjusha
   Advocate for Respondent 4 : Shri Patil S.A. h/f Shri Salunke V.D. 
          Advocate for Respondent 5 : Shri Nagarsoge S.A.
                                    ...

        CORAM : RAVINDRA V. GHUGE & SUNIL K. KOTWAL, JJ.

Dated: November 08, 2017 ...

WP/5949/2012

ORAL JUDGMENT : (PER RAVINDRA V. GHUGE, J.):-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the

petition is taken up for final disposal.

4. The petitioner is before us praying for a direction that the

Educational institution should comply with the order of the Deputy

Director of Education, dated 15.12.2011, which was passed under

the orders of this Court dated 5.7.2011 in Writ Petition No.6212 of

2008.

5. We have considered the strenuous submissions of the learned

Advocates for the respective sides and have gone through the record

available.

6. Shri Salunke, learned Advocate for the management

vehemently submits that it is respondent No.5 / Head Master who

has illegally appointed the petitioner as a Teacher and the

management is not a party to such an appointment. The due

WP/5949/2012

procedure laid down in law was not followed. No advertisement

was published. The management had no intention of filling any

post. It is only because the Head Master wanted to appoint the

petitioner, that the petitioner has been inducted in employment.

7. It is further submitted that the petitioner was terminated on

11.6.2006. After his termination, he had approached the School

Tribunal, which has granted him reinstatement with continuity and

full backwages. The management had approached this Court in Writ

Petition No.5160 of 2009. By order dated 13.8.2009, the judgment

of the School Tribunal dated 20.10.2008 in Appeal No.46 of 2006

was stayed. By a subsequent order dated 6.10.2009, the learned

Single Judge modified the earlier interim order and stayed the

backwages. Consequently, the petitioner had been reinstated in

service, is working ever since and has been drawing his regular

salary.

8. Learned counsel for respondent No.5 / Head Master has filed

an affidavit-in-reply, dated 6.1.2013, contending that an

advertisement was published prior to the appointment of the

petitioner. Procedure laid down in law was complied with. The

appointment cannot be said to be illegal. The petitioner has worked

in the educational institution in the presence of the Chairman / Vice

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Chairman / Secretary of the institution and hence they cannot

pretend that they do not know as to how the petitioner secured

entry in the service of the respondent. He hastens to add that this is

not an issue before this Court in this petition and this Court cannot

consider the aspect of the legality of the petitioner's appointment

since this defence was taken by the management before the Tribunal

and is now the subject matter of Writ Petition No.5160 of 2009.

9. Despite the vehement submissions of Shri Salunke, we are

unable to enter into a roving enquiry with regard to the appointment

of the petitioner under Article 226 of the Constitution of India and

especially in the light of the fact that the grounds for terminating the

petitioner and the legality of the judgment of the Tribunal, allowing

his appeal, is a subject matter of Writ Petition No.5160 of 2009.

10. The fact situation before us is that undisputedly, the

petitioner has worked from 7.7.2001 till 11.6.2006, notwithstanding

the contention of the management that the petitioner was not

appointed by the management. The petitioner had approached this

Court earlier in Writ Petition No.6212 of 2008, praying for his

regular salary for the abovesaid period in which he has worked. By

order dated 5.7.2011, the petition was dismissed with liberty to the

petitioner to avail of the remedy under Section 4 of the Maharashtra

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Employees of Private Schools (Conditions of Service) Regulation

Act, 1977 ("the MEPS Act" for short). The petitioner has taken

recourse to the said remedy under the orders of this Court by

moving an application on 28.7.2001. A hearing was conducted by

the Deputy Director of Education on 1.12.2011 and an order dated

15.12.2011 was passed concluding that the petitioner had worked

for the said duration and was, therefore, entitled to earn his salary.

This order is not challenged by the Management.

11. In so far as the payment of the salary was concerned, the

Deputy Director has concluded that since the petitioner was working

on a provisional approval and there were no grants in aid available

to the educational institution for the period 7.7.2001 till 11.6.2006,

the appointing authority will have to pay the salary.

12. Learned counsel for the Head Master submits that he has

acted on instructions and he has no interest in the matter. He issued

the appointment order to the full knowledge of the management and

the petitioner has been working for the said period.

13. We are not required to go into this aspect for the reasons

recorded above. We, however, cannot ignore that when the

petitioner worked in the educational institution for the period for

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which the salary was unpaid, he has discharged his duties, not for

the Head Master, but for the educational institution by conducting

Lectures and imparting education to the students admitted in the

educational institution. If the management felt that the petitioner is

a stranger to the institution, it could have blocked the petitioner

immediately on noticing that a stranger has entered the School

premises. Be that as it may, we are unable to accept this contention

of the management for the reason that it is unbelievable that the

petitioner has been working for more than six years by conducting

Lectures, imparting education, participating in the educational

activities of the institution and yet the Chairman or the Secretary do

not know the identity of the petitioner.

14. In the light of the above, this petition is allowed. Respondent

No.2 / educational institution is directed to comply with the orders

of the Deputy Director of Education dated 15.12.2011 and in the

light of our observations, within a period of four weeks and shall pay

the unpaid salary to the petitioner from 7.7.2001 to 11.6.2006 as

per the pay scale as is payable to the regular Assistant Teacher

similarly situated. This payment shall be made within a period of

four weeks from today. We deem it appropriate to impose interest at

the rate of 6% per annum on the unpaid salary with effect from

1.1.2012, keeping in view the direction of the Deputy Director of

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Education dated 15.12.2011. If the said amount is not paid within

four weeks as is directed, respondent No.4 would be liable to pay

interest at the rate of 12% per annum from 1.1.2012, until the

amount is actually paid.

15. Rule is made absolute in the above terms.

( SUNIL K. KOTWAL, J. ) ( RAVINDRA V. GHUGE, J. ) ...

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