Khatib Adnan Gohar Mohammed ... vs Dr Zaker Husain Urdu Education ...
2018 Latest Caselaw 837 Bom

                                                                          LPA No. 95/2004
                                                  1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                      LETTERS PATENT APPEAL NO. 95 OF 2004
                                       IN
                         WRIT PETITION NO. 1712 OF 2003

        Khatib Adnan Gohar s/o.
        Mohammad Sujauddin,
        Age 31 years, Occu. Nil,
        R/o. C/o. Isa Chaush Gadi Galli,
        Ahmedpur, Tq. Ahmadpur,
        Dist. Latur.                                       ....Appellant.

                Versus

1.      Dr. Zaker Hussain Urdu Education
        Society, through its Secretary,
        Lashkari Azmat Ali Ahmed Ali,
        Age 51 years, R/o. Gadi Galli,
        Ahmedpur, Dist. Latur.

2.      The Head Master,
        Dr. Zaker Husai Urdu Primary School,
        Ahmedpur, Dist. Latur.

3.      Education Officer (Primary)
        Zilla Parishad, Latur.                        ....Respondents.

Mr. R.J. Godbole, Advocate for appellant.
Mr. M.S. Chaudhari, Advocate for respondent Nos. 1 and 2.
Mr. V.D. Hon, Senior Counsel for respondent No. 3.


                                    CORAM     :   T.V. NALAWADE AND
                                                  SUNIL K. KOTWAL, JJ.

                                    DATED :       JANUARY 23, 2018.

JUDGMENT : [PER T.V. NALAWADE, J.]

1)              The appeal is filed to challenge the decision given by the

learned Single Judge of this Court in Writ Petition No. 1712/2003 and

also the judgment and order of School Tribunal dated 18.2.2003. Both

LPA No. 95/2004

the sides are heard.

2) It is the case of appellant that he was appointed on

probation against permanent vacancy in respondent No. 2 school,

Primary School run by respondent No. 1. He was B.A., D.Ed. at the

relevant time. According to him, though the appointment order was not

issued in his favour, his appointment was approved as Assistant Teacher

by respondent No. 3 for the year 1996-1997. It is contended that for

the year 1997-1998 the matter was again sent for approval, but

approval was not given. It is contended that in the year 1999 proposal

was submitted by respondent Management for getting approval in

respect of untrained teachers and he had also made representation to

the Education Officer as approval was not granted in respect of his

appointment for the year 1997-1998 and in subsequent year. It is

contended that in the month of June 1999, he was prevented by the

Management from entering the premises of the school and there was

termination and so, he filed Appeal No. 129/1999 in School Tribunal. It

is contended that the Management took the stand that the appellant

was appointed for the years 1997-1998 and 1998-1999 as additional

teacher and the appointment was not against sanctioned post and on

that ground, the School Tribunal dismissed his appeal. It is his

contention that on the same ground, the learned Single Judge of this

Court has dismissed his writ petition.

LPA No. 95/2004

3) It is the grievance of the appellant that the authority has

protected the services of untrained teachers though they were

appointed prior to appointment of appellant. It is his contention that as

he was trained teacher, his service ought to have been protected.

4) This Court has carefully gone through the relevant record

for ascertaining as to whether the procedure which is required to be

followed for his appointment was followed. As per the record, he was

appointed as additional teacher on fixed monthly pay of Rs.1600/-

without following proper procedure for selection of teachers. Further,

there was no such post sanctioned on the establishment of respondent

school. The provision of section 5 of M.E.P.S. Act is considered by the

Tribunal and also by the learned Single Judge of this Court. It is

admitted by the appellant that letter of appointment was not issued in

his favour and there are aforesaid circumstances. Thus, his

appointment was not made as per the procedure laid down in the

aforesaid Act and also as per the Rules. Some record was produced to

the effect that his appointment was made in pay scale of Rs.1400-2600

on 24.6.1996, but it was shown as temporary appointment and it was

made without following proper procedure. Though it can be said that

the Management is at fault, but the probability is also there that to help

the appellant, the Management had given him appointment, though

LPA No. 95/2004

there was no clear vacancy, no post was available.

5) The contention of the appellant that he ought to have been

preferred to untrained teachers cannot be accepted as untrained

teachers were already in service prior to his appointment. Further,

there was the scheme of the Government to allow the untrained

teachers to complete D.Ed. course within prescribed time. If that time

limit is considered, it can be said that there was no post available to

the appellant. The learned counsel for the appellant placed reliance on

the observations made by this Court in following two reported cases.

(i) 2010 (3) Bom.C.R. 604 [Sanjay Lalbahadur Divedi Vs. Shrikrishna Vyayam Shala, through its Secretary & Ors.], and

(ii) 1995 (1) Bom.C.R. 34 [Ms. Bilquis Wahab Quraishi Vs. Chikitsak Samuha S.S. & L.S. Patkar College and Ors.].

The observations made in the cases cited supra are of no use to the

appellant as his appointment was not made by following the procedure

laid down in the aforesaid Act. This Court holds that it is not possible to

interfere in the decisions of the School Tribunal and the learned Single

Judge. In the result, the appeal stands dismissed.

       [SUNIL K. KOTWAL, J.]              [T.V. NALAWADE, J.]

ssc/