Bombay High Court
Dinkar Gramin Sanstha, Dinkar ... vs Ku. Nirjala Bhayaji Wadalkar And ... on 29 January, 2018
Bench: Z.A. Haq
Judgment 1 wp2692.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2692 OF 2015
1. Dinkar Gramin Sanstha,
Dinkar Nagar, Jamani,
Post Akoli, Tahsil : Selu,
District : Wardha.
PTR No.94/98(W), through its
Secretary, Ashokrao Kubde,
R/o. Cintamani Nagri,
Mahada Colony, Post:Manasmandir,
Wardha.
2. Incharge Head Master,
Dinkar Vidyalaya, Dinkar Nagar,
Jamani, Post : Aakoli, Tah.: Selu,
District : Wardha.
.... PETITIONERS.
// VERSUS //
1. Ku. Nirjala Bhayaji Wadalkar,
Aged about : 34 years,
Occupation : Service,
R/o. C/o. Dr. M.T. Shelke,
Sundar Nagar, Arvi Naka,
Post : Manas Mandir, Wardha.
2. Education Officer (Secondary),
Zilla Parishad, Wardha.
.... RESPONDENTS
.
___________________________________________________________________
Shri A.D. Mohgaonkar, Advocate for Petitioners.
Shri N.R.Saboo, Advocate for Respondent No.1.
Ms Sangeeta Jachak, A.G.P. for Respondent No.2.
___________________________________________________________________
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Judgment 2 wp2692.15.odt
CORAM : Z.A.HAQ, J.
DATED : JANUARY 30, 2018.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The petitioners (employer) have challenged the order passed by
the School Tribunal by which the appeal filed by the respondent No.1-
employee under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the
Act of 1977") is allowed. The Tribunal has set aside the otherwise
termination of service of the respondent No.1/ employee and has directed
the management to reinstate her with continuity of service and to pay the
back wages.
4. The petitioner No.1-management was granted permission by the
Deputy Director of Education to start school with 8 th Standard from the
academic session 2002-2003. Subsequently, permission was granted on year
to year basis with natural growth of the school. The respondent No.1/
employee claims that she was appointed as Assistant Teacher for Mathematics
subject, after applications were invited, interviews were conducted and she
Judgment 3 wp2692.15.odt
was found suitable for the post. According to the respondent No.1-employee
she joined her duties on 20th December, 2004 and she was continued in every
subsequent academic session till 9th January, 2012 when she was restrained
from performing her duties. Treating this as otherwise termination, the
respondent No.1 filed appeal before the School Tribunal. The management
opposed the claim of the respondent No.1/ employee on various grounds, the
substantial ground being that the respondent No.1 was not appointed after
following procedure as per Section 5 of the Act of 1977. The Tribunal
considered the rival contentions and by the impugned order found that the
respondent No.1/ employee has succeeded in proving that she was in
continuous employment from 30th November, 2004 till 9th January, 2012.
5. The learned advocate for the petitioners has submitted that the
respondent No.1-employee was never given any appointment order on
regular basis and she was intermittently engaged for teaching maths in the
school. The advocate for the petitioners has submitted that the post of
Assistant Teacher (Mathematics) was advertised in the news paper on 1 st
June, 2012 and Sau. C.P. Chandekar was selected and appointed w.e.f. 1 st
August, 2012 and the Education Officer granted approval to her appointment
by the communication dated 8th May, 2013. The figure approval of the
academic session 2012-13 is relied to point out that only one post of teacher
for Mathematics subject was available in the school and Sau. C.P.Chandekar
was working in that post. The advocate for the respondent No.1/employee
Judgment 4 wp2692.15.odt
has submitted that neither this defence was raised before the School Tribunal
nor the documents on which the petitioners are now relying were placed on
record before the School Tribunal, and therefore the petitioners cannot be
permitted to plead new case before this Court. The submission made by the
advocate for the respondent No.1-employee is required to be accepted. The
petitioners have not given any explanation for not pleading the above facts
and not filing the documents before the School Tribunal.
6. As far as contention of the petitioners that the appointment of
the respondent No.1/employee was not made as per the procedure
prescribed by Section 5 of the Act of 1977, I find that the School Tribunal has
considered it exhaustively in paragraph Nos. 27 to 30 and has recorded its
conclusions in paragraph 31 of the order passed by it. It cannot be said that
the conclusions of the School Tribunal are perverse.
7. In the above facts, I see no reason to interfere with the order
passed by the School Tribunal by which the otherwise termination of service
of the respondent No.1-employee is quashed and the management is directed
to reinstate the respondent No.1-employee as Assistant Teacher with
continuity of service.
However, I find that the the school Tribunal has committed an
error by directing the management to pay full back wages to the respondent
No.1/employee. In paragraph No.32 of the impugned order, the School
Judgment 5 wp2692.15.odt
Tribunal has recorded that the employee has pleaded in her memo of appeal
that she was not gainfully employed. The appeal was filed immediately after
the respondent No.1-employee was restrained from performing her duties.
The averment made in the memo of appeal that the employee was not
gainfully employed will not be so relevant for upholding the claim of the
employee for back wages. There is no explanation by the employee as to
why she had not filed any affidavit subsequently at the time of hearing of the
appeal, reiterating that she was not gainfully employed during the relevant
period. The respondent No.1-employee has failed to discharge the burden of
pleading that she was not gainfully employed from 09/01/2012 till hearing
of the appeal.
In these facts, the directions given by the School Tribunal to the
management to pay full back wages are set aside.
The impugned order stands modified accordingly.
8. The writ petition is partly allowed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
RRaut..
