Bombay High Court
Janjagruti Shikshan Prasarak ... vs The State Of Mah & Ors on 29 January, 2018
Bench: S.P. Deshmukh
1 W.P. 8145.2006 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8145 OF 2006
Janjagruti Shikshan Prasarak Mandal
Wadgir Tanda, Tq. Mukhed,
Dist. : Nanded Through its Secretary
Shripat Motiram Rathod
Age : 53 Yrs., Occ. Social Worker &
Agril., R/o : Wadgir Tanda,
Tq. Mukhed, Dist. : Nanded. .... PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary
Department of School
Education, Mantralaya,
Mumbai.
2. The Divisional Deputy
Director of Education,
Latur Division, Latur.
3. The Education Officer
[Secondary],
Zilla Parishad, Nanded.
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4. Vasant s/o Marutirao Chavan
Age : Yrs., Occ. Service,
Notice to be served through
Head Master - Late Vasantrao
Naik Vidyalaya, Wadgaon,
Tq. Mukhed, Dist. Nanded. .... RESPONDENTS
......
Mr. M.V.Deshpande h/f Mr. M.D.Narwadkar,
Advocate for Petitioner.
Mrs. V.S.Choudhari, A.G.P. for R - 1 to 3 - State.
Mr. V.D.Gunale, Advocate for R - 4.
......
WITH
CIVIL APPLICATION NO. 10052 OF 2008
IN
WRIT PETITION NO. 8145 OF 2006
1. Prakash s/o Tulshiram Patil
Age : 50 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
2. Sopan s/o Nagorao Jadhav
Age : 45 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
3. Murtuza s/o Ghudusab Tamboli
Age : 35 Yrs., Occ. Agril.,
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3 W.P. 8145.2006 - [J]
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
4. Damodhar s/o Namdeo Biradar
Age : 35 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
5. Nivruti s/o Govindrao Jadhav
Age : 39 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed, .... APPLICANTS/
Dist. : Nanded. [INTERVENORS]
VERSUS
1. Janjagruti Shikshan Prasarak Mandal
Wadgir Tanda, Tq. Mukhed,
Dist. : Nanded Through its Secretary
Shripat Motiram Rathod
Age : 53 Yrs., Occ. Social Worker &
Agril., R/o : Wadgir Tanda,
Tq. Mukhed, Dist. : Nanded.
2. The State of Maharashtra
Through Secretary
Department of School
Education, Mantralaya,
Mumbai.
3. The Divisional Deputy
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4 W.P. 8145.2006 - [J]
Director of Education,
Latur Division, Latur.
4. The Education Officer
[Secondary],
Zilla Parishad, Nanded.
5. Vasant s/o Marutirao Chavan
Age : 40 Yrs., Occ. Service,
Notice to be served through
Head Master - Late Vasantrao .... RESPONDENTS/
Naik Vidyalaya, Wadgaon, [NON APPLICANTS 2 to 5 -
Tq. Mukhed, Dist. Nanded. ORI.RESP. 1 TO 4]
......
Mr. V.D.Salunke, Advocate for Applicants.
Mr. M.V.Deshpande h/f Mr. M.D.Narwadkar,
Advocate for R - 1.
Mrs. V.S.Choudhari, A.G.P. for R - 2 to 4 - State.
Mr. V.D.Gunale, Advocate for R - 5.
......
CORAM : SUNIL P. DESHMUKH &
P.R.BORA, JJ.
DATE : 29th JANUARY, 2018
......
ORAL JUDGMENT : [PER - SUNIL P. DESHMUKH, J.]
1. Indisputedly, respondent No. 4 had been appointed
as teacher in science subject in the school run by the petitioner -
5 W.P. 8145.2006 - [J]
institution, since he possessed educational qualification of
bachelor of Science viz; Physics, Chemistry and Biology. He
had been appointed on 19/06/1995. His employment had
been approved by Education Officer [Secondary]. He
continued to work as a Science teacher in afore mentioned school
till 2003.
2. As the strength of the students in the school started
dwindling, the petitioner - institution declared respondent No. 4,
who was the junior most appointed teacher, as surplus irrespective
of subject. On the first occasion, under letter dated 30/09/2003
while he was declared surplus, he had been sent to Chhatrapati
Shivaji High School, Savarmal. Not having been accommodated
there, he continued in petitioner's school. In the next academic
year he was sent to Manavya Vikas Vidya Mandir, Degloor.
However, the institution did not accommodate respondent No. 4
and he continued in petitioner's school.
3. However, in the third academic year i.e. in 2005, he
was sent to Shivaji Vidyalaya, Kurula and there he had been
accommodated. While he was working there, one Mr. D.R.Kajale
had retired from service in petitioner's school. Respondent No. 4
thereupon had requested for repatriation to petitioner's school/ to
parent school as there was requirement of teacher in Chemistry
6 W.P. 8145.2006 - [J]
and Biology in petitioner's school and he can be accommodated
being a Science teacher.
4. Accordingly, order came to be passed on
29/04/2006 directing the petitioner to accommodate respondent
No. 4 as a Science teacher invoking Rule 26 (4) of MEPS Rules,
1981.
5. Exception is taken in Writ Petition to the order dated
29/04/2006 directing repatriation of respondent No. 4 to
petitioner's school.
6. Mr. M.V.Deshpande holding for Mr. M.D.Narwadkar,
learned counsel for the petitioner submits that in 2005 post had
fallen vacant of Marathi teacher in petitioner's school as Mr. Kajale
- Marathi teacher had retired and not of Science teacher. Rule 26
(4) of MEPS Rules entails subject-wise repatriation and not
otherwise. He purports to refer to that even request from
petitioner had been to the Education Officer to send Marathi
teacher since Marathi teacher had retired.
7. He submits that Respondent No. 4 had been
intransigent in his stand since 2003. He had not been joining the
schools where he had been sent to although having been declared
7 W.P. 8145.2006 - [J]
surplus for three continuous years. It was only after Writ Petition
No. 504 of 2005 had been filed, he had joined and been
accommodated in Shivaji High School, Kurula. Upon retirement of
Mr. D.R.Kajale, Marathi teacher, he had requested for repatriation
irrespective of availability of subject in the school.
8. In order to support his submissions, he places
reliance on the document at page No. 41 which shows nine
teachers whereas it appears, according to staffing pattern, ten
teachers can be accommodated. In the same it has been shown
that Mr. Kajale was teaching Marathi subject whereas Science
subject was shouldered by Mr. N.T.Dombale along with English.
One Mr. S.P.Chavan has been shown as Mathematics teacher. Mr.
K.L.Pawar had been for subjects Hindi and Marathi. He submits
that while accommodation can be had to Marathi teacher
pursuant to page No. 41, repatriation of respondent No. 4 is bad
and tantamounts to foisting respondent No. 4 on the
petitioner - institution. He, thus, urges to indulge into the
prayer made in the Writ Petition of quashing and setting aside
order dated 29/04/2006 and to follow the letter dated
13/10/1981.
9. Countering aforesaid submissions, Mr. V.D.Gunale,
learned counsel for respondent No. 4 and Mrs. V.S.Choudhari,
8 W.P. 8145.2006 - [J]
learned A.G.P. appearing for respondent Nos. 1 to 3 purport to
point out that as a matter of fact it is not an absolute rule to
retrench a junior most employee and refer to Rule 26 (2) (iii) of
MEPS Rules, 1981.
10. It is submitted by them that it is the figment of
imagination of petitioner that respondent No. 4 had remained with
petitioner despite being surplus with petitioner. They further refer
to Rule 26 (2) (iii) to contend that so long as a retrenched
employee is not absorbed at a transferred place, employee does
not cease to be an employee of the parent institution. The factual
position is otherwise while he had been sent on two occasions
earlier on, he had not been accommodated on transferee
establishment. In the circumstances, he continued with the
petitioner.
11. They further purport to submit that although
respondent No. 4 could have been hardly retrenched having regard
to the work-load of the subject of petitioner. Respondent No. 4 had
not chosen to challenge otherwise untenable treatment of
declaring respondent No. 4 being surplus teacher in the
petitioner's school.
12. Learned A.G.P. has referred to affidavit-in-reply and
9 W.P. 8145.2006 - [J]
submitted that as a matter of fact the petition is imbued with
malafides. Petitioner could never have declared respondent No. 4
as surplus teacher as can be gathered from various reports which
have been made by respondent No. 3 for securing Science teacher
in petitioner's school. She submits that the need of Science
teacher had been further underscored by subsequent event since in
2008 as a Science teacher came to be appointed in petitioner's
school.
13. Having heard learned counsel as aforesaid, the
position emerges that respondent No. 4 had been appointed
indisputably as a Science teacher pursuant an advertisement issued
by petitioner. He had been a permanent employee. He was junior
most while the strength of students decreased in 2003. Yet, there
is record indicating that a Science teacher was needed in the
petitioner's school and could have been rather ought to be
accommodated. However, respondent No. 4 being the junior most,
he had been declared surplus. On two occasions, he was sought to
be accommodated in two different establishments. However, the
exercise pursuant to Rule 26 of MEPS Rules then did not fructify.
While respondent No. 4 had been taken in Shivaji High School in
2005, one post had fallen vacant due to retirement of a teacher in
petitioner's school. In the circumstances, it appears that
respondent No. 4 had requested for repatriation to the
10 W.P. 8145.2006 - [J]
petitioner's/parent school. It does not appear to be a case that
need of Science teacher by then had abated in petitioner's school.
Accommodation of Science teacher appears to have been possible
and had been directed accordingly in exercise of powers pursuant
to Rule 26 of MEPS Rules, 1981. Need of Science teacher is
further underscored by appointment of one more Science teacher.
Respondent No. 4 has been working for last more than twelve
years in petitioner's school.
14. In the circumstances, we deem it appropriate not to
disturb the prevailing position by passing any order. Writ Petition
is not, therefore, being entertained and same is disposed of. In
view of disposal of Writ Petition, Civil Application No. 10052 of
2008 also stands disposed of.
[P.R.BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
KNP/W.P. 8145.2006 - [J]
