Mah. Shikshan Prasarak Mandal ... vs Dipak Pandharinath Dalal And Anr
2017 Latest Caselaw 8217 Bom

   wp2906.12                                                                      1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                    WRIT  PETITION NO.  2906  OF  2012


  1. Maharashtra Shikshan Prasarak
     Mandal, Pimpalgaon (Bhosale),
     through its Secretary Shri Naresh
     Karade, r/o at Post Bramhapuri,
     District - Chandrapur.

  2. Maharashtra Vidyalaya,
     Pimpalgaon (Bhosale), Tq.
     Bramhapuri, Dist. Chandrapur
     through its Head Master.                    ...   PETITIONERS

                    Versus

  1. Dipak Pandharinath Dalal,
     r/o Jony Ward, Bramhapuri,
     District - Chandrapur.

  2. Education Officer (Secondary),
     Zilla Parishad, Chandrapur.                 ...   RESPONDENTS


  Shri H.A. Deshpande, Advocate for the petitioners.
  Shri S.M. Ghodeswar, AGP for respondent No. 2.
                   .....

                               CORAM :  B.P. DHARMADHIKARI, J.

OCTOBER 13, 2017.

ORAL JUDGMENT :

The matter was heard for sometime in the first half

and is called out again in the second half. Hearing continued

beyond 4.30 P.M.

2. The effort of Shri Deshpande, learned counsel for

the petitioner is to show that respondent No. 2 never claimed to

be a beneficiary of Rule 9(9) of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules, 1981,

(hereinafter referred to as MEPS Rules) and his caste certificate

showing that he belongs to Special Backward Category (SBC) is

itself issued on 14.06.2007. While submitting the application

for employment, he has disclosed his caste status as Halba

(Open) in 2001. The contention is, respondent No. 1,

therefore, could not have been recruited against a post reserved

for Scheduled Tribe and, therefore, when he was terminated,

the issue of Rule 9(9) of the MEPS Rules, could not have been

gone into. He fairly states that for the purpose of securing

approval, Head Master of the School has on 21.02.2002

attempted to demonstrate that respondent No. 1, who belonged

to Halba (Open) caste, was given employment under SBC

category. He further states that respondent No. 1 has secured

other employment and has, therefore, chosen not to appear

before this Court. As he did not appear, service through paper

publication was allowed by orders dated 07.11.2014 on CAW

No. 2923 of 2014. He contends that in this situation,

reinstatement with full back wages and continuity is

unwarranted.

3. Shri Ghodeswar, learned AGP for respondent No. 2

- Education Officer submits that dispute is between the

petitioners and respondent No. 1.

4. With the assistance of respective counsel, I have

perused the records. The document dated 04.09.2008

(Annexure - XX) reveals that respondent No. 1 was in

employment on contract basis for a period from 02.04.2007 up

to 26.09.2007. The appeal memo filed by him before the

School Tribunal does not take a defence that he got

employment as SBC candidate because no Scheduled Tribe

candidate turned up for interview. The defence under Rule

9(9) of the MEPS Rules is conspicuously lacking in the matter.

5. The management has resolved on 21.11.2004 to

terminate him on the ground that he did not produce caste

validity certificate and his behaviour and conduct was also not

satisfactory. The termination order dated 20.12.2004 mentions

that respondent No. 1 was appointed as Shikshan Sevak for a

period of three years and the Education Officer had not granted

approval to his appointment. The appointment was made by

the order dated 21.12.2001 and at the end of said period of

three years as Shikshan Sevak, it has been brought to an end on

21.12.2004.

6. In this situation, various questions arise. The first

question is, whether the impugned order is an order of simple

termination or stigmatic one. Answer depends on ascertaining

material facts to determine nature of employment. Next issue

is, was employee holding a post so as to entitle him to relief of

reinstatement with continuity. The respondent - appellant

could have been asked to substantiate his contention that he

was given benefit of Rule 9(9) of the MEPS Rules. The validity

given to him by the Caste Scrutiny Committee on 18.07.2007

shows that his caste certificate was obtained by him on

14.06.2007. Thus, for the first time a document showing that

he is SBC, appears to have been procurred on 14.06.2007. All

these facets are not looked into by the School Tribunal.

7. Though, Shri Deshpande, learned counsel submitted

that respondent No. 1 has lost interest in employment and,

therefore, petition should be allowed, in the above situation, I

find it appropriate to extend to him one opportunity to place

correct facts before the School Tribunal.

8. Only for that purpose, the judgment delivered on

07.01.2012 by the School Tribunal, Chandrapur, in Appeal No.

24 of 2009 is quashed and set aside. The said appeal is

restored back to the file of the School Tribunal for its further

disposal as per law. Needless to mention that the parties shall

be given appropriate opportunity to amend their pleadings and

to place documents on record.

9. The parties are directed to appear before the School

Tribunal on 20.11.2017 and to abide by its further instructions

in the matter.

10. Writ Petition is thus partly allowed and disposed of.

However, in the facts and circumstances of the case, there shall

be no order as to costs.

JUDGE ******

*GS.