Bombay High Court
Sanjay Somnath Dongare vs Shri Vitthal Rukmai Shikshan ... on 30 January, 2018
Bench: B.P. Dharmadhikari
Judgment wp228.12
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 228 OF 2012.
Sanjay Somnath Dongare,
Aged about 30 years, Resident
at Post Lakhanwada, B.K.
Taluq - Khamnagaon,
District Buldhana. ... PETITIONER.
VERSUS
1. Shri Vitthal Rukmai Shikshan Prasarak
Sanstha, Through its President,
Dongaon, Taluq Mehkar,
District Buldhana.
2. Shri Vitthal Rukmai Primary School
through its Head Master,
Shelgaon (Deshmukh), Tq. Mehkar,
District Buldhana.
3. The Education Officer (Primary)
Zilla Parishad, Buldhana.
4. Presiding Officer, School Tribunal,
Amravati, Amravati. ... RESPONDENTS
.
---------------------------------
None for the Petitioner.
Shri S.M. Ukey, Addl.G.P. for Respondent No.4.
None for Respondent Nos. 1 to 3 - Served.
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Judgment wp228.12
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CORAM : B.P. DHARMADHIKARI, J.
DATED : JANUARY 30, 2018
ORAL JUDGMENT :
Petitioner approached the School Tribunal in an Appeal
No. 42/2010, under Section 9 of the Maharashtra Employees of
Private School (Conditions of Service) Act, 1977. He pointed out
oral termination of his services on 26.06.2010. He has claimed that
on that day he was prohibited from signing the muster roll by one
Assistant Teacher Shri Hemant Gopal Joshi. He was asked to contact
the President, and when the appellant contacted the President, the
President informed him that services of appellant were not required.
2. The employer [respondent nos. 1 and 2], filed their
written statement before the School Tribunal. They admitted
employment, but, denied any termination on 26.06.2010. They
came up with a defence that the President informed petitioner /
appellant to attend primary school at place Vishwi because teacher
there was absent. Petitioner refused to obey that orders and insisted
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upon issuing transfer order. In paragraph no.10 of the written
statement they have submitted that it is not proper and correct on
his part to claim that he has been terminated from services orally or
in any other manner. While answering to grounds, in paragraph (b),
employer claims that the appellant has utterly and miserably failed
to make out a case of termination from 26.06.2010. It is further
submitted by them in paragraph no.12, that no cause of action
accrued to petitioner for filing such an appeal.
3. It is in this background that the School Tribunal framed
the following issues :
" ISSUES FINDINGS.
1. Whether the respondent no.2 School
was recognized under the MEPS Act ? .... Yes.
2. Whether the appointment of the
appellant was made as per Section -5
of the MEPS Act, and the Rules
thereunder ? .... No.
3. Whether the appellant is otherwise
terminated from the service
by respondent nos. 1 and 2 on
26.06.2010 ? ... Yes.
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4. Whether said termination of
the appellant by the respondents,
is illegal ? ... Yes.
5. What order ? .... Appeal is dismissed
in terms of final order."
4. Nobody has appeared either for petitioner - employee or
for respondent nos. 1 and 2 employer. Shri Ukey, learned Addl. G.P.
has appeared for respondent no.4 and assisted the Court. He has
pointed out that the judgment of School Tribunal against the
appellant is delivered on 25.08.2011, and this Court after hearing
the parties issued Rule on 06.12.2013. At that time, the judgment of
School Tribunal was also stayed.
5. The controversy was then again considered on
18.03.2015. On that day, the Court noted submission of respective
parties and found that the petitioner was not in service after
26.06.2010, it therefore, vacated the interim order. It is in this
background that the controversy is being looked into by this Court.
6. Material on record shows that after proper advertisement
in newspaper Lokmat on 22.06.2006, petitioner was selected and
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appointed. He worked upto 26.06.2010 i.e. almost for 4 years.
What happened on 26.06.2010, need not detain this Court in this
jurisdiction, because employer has come up with a specific case that
services were not terminated on that date. In written statement filed
before the School Tribunal, while opposing the appeal on
11.03.2011, the management has not pointed out that after
26.06.2010 and till 11.03.2011 for absence of petitioner, any action
was taken or any other order of termination was issued. When
School Tribunal decided the appeal, again there is no submission
that actual termination had taken place after 26.06.2010 on some
other date. Even before this Court when the matter was considered
by it on 03.02.2012, 30.03.2012, 17.12.2012, 16.12.2013 or
18.03.2015, the employer has not pointed out that because of
absence of petitioner after 26.06.2010, his services were terminated
as per law. Dates mentioned supra shows that on those dates,
different Hon'ble Judges of this Court heard the parties at some
length and have passed a speaking order. Infact on 16.12.2013, the
judgment delivered by the School Tribunal was stayed and on
18.03.2015, that stay has been vacated. Thus, had there been any
other order of termination, it could have been definitely pointed out
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to this Court.
7. Perusal of orders of this Court on 03.02.2012 and
30.03.2012, show that an effort made to find out impact of fact
that in school in which the petitioner was working did not receive
any grant in aid. On 17.12.2012, Assistant Government Pleader had
stated that obtaining no objection of education department before
publishing advertisement for recruitment by such school was
necessary. Time was given to learned AGP on that day to produce
on record government resolution dated 06.01.2012. That
government resolution has not been produced till date. Learned
Addl. G.P. has today also submitted that during the course of the day
he can produce that government resolution for perusal of this Court.
However, I do not find it necessary to go into that controversy.
8. The School Tribunal has dismissed the appeal of the
petitioner only on the ground that he was not recruited after
following the procedure stipulated in proviso to Section 5 [1] of the
MEPS Act. Thus, the School Tribunal found that before publishing
advertisement for recruitment on 22.06.2006, previous permission
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of the education department ought to have been obtained. Previous
permission is necessary in order to enable the education department
to forward surplus teachers to such schools against available
vacancies. This exercise becomes necessary because teachers found
surplus and retrenched accordingly, continue to earn their wages
through public revenue. Hence, object is to provide work to such
teaches who is getting salary without any work. Here, when
employment with respondent nos. 1 and 2 is unaided, there is no
question of government spending any amount on salaries of teaching
or non teaching staff in that school. Consequently, a teacher who
earns through public revenue cannot be or could not be sent to that
school. Again I need not to conclude this controversy in present
matter, as it does not squarely arise here.
9. The School Tribunal has found that as employment
provided to petitioner was not after necessary NOC of education
department, his appeal before it was not maintainable. It has relied
upon the judgment of Division Bench of this Court reported at 1997
(3) Mh,.L.J. 697 (Anna Manikrao Pethe .vrs. Presiding Officer,
School Tribunal and others) to answer the preliminary issue
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accordingly. It has also relied upon judgment reported at 2003 (1)
Mh.L.J. 425 (Nehru Jankalyan Bahu uddeshiya Shikshan
Sanstha .vrs. Mohan Sauryabhan Wanjari), to hold that previous
permission from education department ought to have been obtained.
10. In writ jurisdiction while examining this controversy, I
find that the petitioner had put in about 4 years of service and his
employer came up with a case that it has not terminated his services
at all. In this situation, when there is no termination it was not
necessary for the School Tribunal to go into all these niceties. If the
approach of the School Tribunal is accepted, the employee like
petitioner though not terminated, is kept out.
11. The School Tribunal, therefore, could not have
dismissed the appeal only because of its finding that the recruitment
of appellant was bad in law. Respondent nos. 1 and 2 management
claimed that they did not terminate his services at all and as such,
the School Tribunal could have asked them to permit him to join
back. The School Tribunal has in any way permitted management to
take advantage of its own wrong. The wrong by employer is in not
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obtaining previous permission of education department and the
petitioner employee cannot be blamed for it. Other wrong by
employer is in not issuing any written order to petitioner on
26.06.2010. Again petitioner cannot be blamed for it.
12. In this situation, the order of otherwise termination w.e.f.
26.06.2010 is set aside. Respondent nos. 1 and 2 are directed to
permit petitioner to join back in his employment as before, with
continuity, but, without back wages.
13. Writ Petition is thus partly allowed. Rule is made
absolute in aforesaid terms with no orders as to costs.
JUDGE
Rgd.
