Bombay High Court
Dilip Namdeo Wasnik vs Panchsheel Shikshan Sanstha, ... on 9 November, 2017
Bench: Anoop V. Mohta
1 lpa 146.10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Letters Patent Appeal No.
146
of 201
0
in
Writ Petition No. 3835 of 1999
Dilip S/o Namdeo Wasnik,
Aged about 32 years,
R/o Tirri Tahsil Pauni,
District Bhandara. .... APPELLANT
Vs.
1. Panchsheel Shikshan Sanstha,
Dhanod (Amgaon Bujruk)
Tahsil Sakoli, District Bhandara
Registration No. 11/78,
Through its Joint Secretary
2. The Headmaster,
Namdeorao High School,
Dhanod, Amgaon Bujruk,
Taluka Sakoli, District Bhandara,
3. The Education Officer (Secondary)
Zilla Parishad, Bhandara. ..... RESPONDENTS
Mr. M.P.Lala, Advocate for appellant.
Mr. Jibkate, Advocate for respondents No.1 & 2.
Mr. I.J. Damle, AGP for respondent No.3.
CORAM : B. P. DHARMADHIKARI AND
MRS. SWAPANA JOSHI, JJ
DATED : NOVEMBER 9, 2017
JUDGMENT (Per B.P. Dharmadhikari, J.)
This is an appeal by the employee / teacher questions
Judgment dated 2nd March, 2009, delivered by the learned Single
2 lpa 146.10.odt
Judge in Writ Petition No. 3835/1999. That petition filed by
respondent No.1 employer came to be allowed and the Judgment
delivered by the School Tribunal on 26/07/1999, allowing the
appeal No. STN No.179/1993 was set aside. That appeal was filed
by the present appellant.
2. The appellant was terminated on 21/06/1993 and in
appeal he pointed out that management while deputing him for
vacation Bachelor of Education (B.Ed.) training 1993-95 gave
necessary certificate on 21/02/1993 and the management,
therefore, could not have terminated him. He also placed reliance
upon Rule 6 of the MEPS Rules, 1981.
3. The School Tribunal has accepted this stand and
granted him relief of reinstatement with the back wages. This
Judgment was stayed during pendency of writ Petition No.
3835/1999.
4. Adv. Mr. M.P. Lala on behalf of the appellant teacher
submits that provisions of Rule 6 or the undertaking given by the
employer to continue the appellant in service till he obtain B.Ed.
qualification has been lost sight of by the learned Single Judge.
According to him, wrong approach has been adopted and absence
of plea that the employer could not have terminated his services
because its act of sending him on deputation for completing
vacation B.Ed. could not have been treated as fatal. He has taken
us through the Judgment delivered by the School Tribunal to urge
that the date of appointment, date of termination and fact of
deputation for B.Ed. training were never in dispute and in that
context, undertaking given by the employer and Rule 6 were
pressed into service by the School Tribunal. According to him,
3 lpa 146.10.odt
there was already challenge to power and act of employer to
terminate.
5. Adv. Mr. Jibkate, on other other hand submits that
before the School Tribunal, employer management specifically
pointed out that in terms of Rule 6 every year interviews were
conducted. Interviews were also conducted in June 1993 and
appellant participated in that interview. As at that time, trained
graduate was available, appellant could not be selected. This fact
and proviso to Rule 6 were pressed into service before the School
Tribunal but then, learned Presiding Officer over looked the same.
He adds that in Writ Petition before the learned Single Judge, this
plea was taken and after appreciating rival contentions and
recording reasons, learned Single Judge has noted that had there
been proper plea on absence of power with management to
terminate an unqualified teacher, the School Tribunal could have
approached the controversy in correct perspective. He, therefore,
submits that there is no jurisdictional error or perversity. Our
attention is also invited to the judgment dated 04/08/2017 in LPA
No.360/2008 to urge that the controversy is clearly covered by the
said judgment.
6. Without prejudice, he adds that vacancy then occupied
by the appellant has been filled in by providing employment to
duly qualified teacher way back in 1993 itself and though this fact
was brought on record, present appellant did not take pains to join
that teacher as party respondent. Hence, in absence of vacancy,
according to him, present challenge has become infructous.
7. Learned AGP appearing for respondent No.3 Education
Officer submits that provisions of Rule 6 need to be implemented.
4 lpa 146.10.odt
8 Perusal of Rule 6 shows that second proviso thereto is
not relevant because it speaks of those teachers, who were already
in service before coming into force of 1981 Rules. The School
Tribunal has, therefore, reproduced only relevant portion of Rule
6 in its Judgment.
9. Relevant portion of Rule 6 enables management to
recruit unqualified / untrained person as teacher only on year to
year basis. First proviso thereto mandates that such untrained
person has to give an undertaking that he would obtain training,
qualification at his own costs and the employment provided to him
is on condition that services are liable to be terminated as soon as
trained graduate teacher becomes available.
10. Here it is not in dispute that as trained teacher became
available, appellant has been discontinued. Discontinuation,
therefore, is in terms of Rule 6. Undertaking stipulated by the
proviso to Rule 6 is in consonance with this scheme and cannot be
viewed as one which would be inconsistent with the object or
purpose of Rule 6. Rule 6 permits untrained teacher to be
recruited only in exceptional situations, but it stipulates that such
teacher must obtain necessary training qualification at his own risk
and costs. It however also stipulates that employment provided to
him shall be on year to year basis and he can be replaced by the
trained teacher.
11. In the present facts, we need not observe more as
learned Single Judge has rightly found that no specific challenge
about relevancy or otherwise of Rule 6 was raised before the
School Tribunal.
12. The controversy is covered by the Judgment delivered
5 lpa 146.10.odt
on 04/08/2017 in LPA No.680/2008. One of us B.P.
Dharmadhikari, J is party to it. This Court has found that not only
the availability of permanent vacancy but necessary qualification
must be shown by the employee to claim reinstatement. Various
judgments earlier delivered have been looked into for that
purpose.
13. The Division Bench judgment of this Court in case of
Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal,
Amravati and Aurangabad Division, Amravati and others
1997(3) Mh.L.J. 697 obliges the School Tribunal to frame
preliminary issue before embarking upon merits of the appeal.
Second issue obliges the School Tribunal to find out whether
recruitment was as per law and, therefore, whether appellant
before it was duly qualified for occupying the post thereto.
14. Here though the School Tribunal delivered the
judgment after said verdict of this Court, no pains have been taken
to formulate & answer such preliminary issue.
15. Taking over all view of the matter, we do not see any
jurisdictional error or perversity in the impugned judgment and no
case is made out.
16. LPA is, therefore, dismissed. Rule discharged. No costs.
JUDGE JUDGE
MP Deshpande
