Shilpa D/O. Sharad Pokharkar ... vs The Mumbai Suburban Education ...
2021 Latest Caselaw 5905 Bom

                                                                     2.wp 7127.19.doc

Urmila Ingale

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION


                            WRIT PETITION NO. 7127 OF 2019


        Shilpa D/o Sharad Pokharkar Alias
        Sau.Shilpa w/o Kartik Joshi                  ....Petitioner
              Vs.
        The Mumbai Suburban Education Society & ors. ..... Respondents



        Mr.Vaibhav Sugdare i/b Mr.Sameer S.Kadam, for the Petitioner.
        Mr.S.L. Babar, AGP for the Respondent - State.
        Mr.Rajesh Dharap, for Respondents No.1 & 2.



                                      CORAM :   M. S. KARNIK, J.

DATE : 01st APRIL, 2021

P.C. :

. Heard learned Counsel for the Petitioner. The

challenge in this Petition fled under Article 227 of the

Constitution of India is to an order passed by the School Tribunal

dismissing the Appeal fled by the Petitioner. The Petitioner was

appointed as a Shikshan Sevak in the Respondent No.1 -

Institution with efect from 01/12/2011. She was appointed for a

period from 01/12/2011 to 30/11/2014. The Petitioner was in

continuous service till her termination by order dated 20/06/2016

with efect from 30/06/2016.

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2. The Petitioner's services were terminated on the

ground that the Education Ofcer instructed the Respondent No.1

that no permanent approval will be given to the temporary staf

appointed in the School which includes Shikshan Sevak. In the

order of termination, it is further mentioned that Respondent

No.1 has received the circular dated 10/06/2016 from Education

Department in this respect. It is in such circumstances

Respondent No.1 terminated the services of the Petitioner with

efect from 30/06/2016.

3. My attention is invited to the approval dated

30/01/2018 to the appointment of the Petitioner as Shikshan

Sevak from 01/12/2011 to 22/01/2015. The Education Ofcer

granted approval as Assistant Teacher with efect from

23/01/2015. The order of approval was granted after the

impugned order is passed by the Tribunal.

4. Learned Counsel for the Respondent extensively

relied upon the decision of the Apex Court in the case of

Chhatrapati Shivaji Shikshan Prasarak Mandal and ors.

Vs. Dattatrarya Rupa Pagar and ors. (2012) 13 Supreme

Court Cases 534. He submits that the said decision was taken

2.wp 7127.19.doc

into consideration by the Tribunal and for the reasons recorded,

the Tribunal was perfectly justifed in dismissing the Appeal. He

submits that the stafng pattern underwent a change resulting in

reduction of posts, and in any case, as there was no approval, the

Petitioner could not be declared as surplus and hence,

Respondent No.1 had no option but to terminate the services of

the Petitioner.

5. Heard. The Tribunal while dismissing the Appeal was

of the opinion that the Petitioner was not given appointment

letter on regular basis and the Education Inspector had

admittedly not given any approval to the appointment on

substantive basis. The Tribunal referred to Government

Resolution dated 13/10/2000, relating to accommodating the

Shikshan Sevak in services. Further the Tribunal was of the

opinion that as per stafng pattern dated 16/03/2016, 5.5

graduate posts have been reduced, consequently, the post where

the Petitioner was appointed as a Shikshan Sevak came to be

abolished. The Tribunal found that the Petitioner being junior-

most Shikshan Sevak, her services came to be terminated on the

principle of last come frst go.

2.wp 7127.19.doc

6. The Apex Court in the case of Chhatrapati Shivaji

Shikshan Prasarak Mandal and ors. (supra) was considering

the case where services of the teacher was terminated strictly in

accordance with the terms and conditions of the appointment

order. Moreover, facts reveal that the teacher therein did not

produce any document to show that he was appointed as per

regular selection.

7. In the present case, the Petitioner was appointed as a

Shikshan Sevak after advertisement and after following selection

process. One of the ground for termination of services is the

Education Ofcer did not issue an order approving the

appointment of the Petitioner. The stand of Respondent No.1 is

refected in paragraph 17 of the judgment of the Tribunal.

Respondent No.1 had contended that they had sent proposal of

the Petitioner dated 02/03/2015 and 02/09/2015 to the Education

Inspector for approval. Thereafter they have sent reminder letter

dated 18/06/2016 for approval of the Petitioner. In the

meantime, they received staf approval dated 16/03/2016 from

the Education Inspector as a result of which post in which the

Petitioner was appointed stood abolished and she was rendered

surplus by virtue of new stafng pattern.

2.wp 7127.19.doc

8. In these circumstances, it is seen that if the

Education Ofcer were to have issued order of approval well

within time, the service of the Petitioner even according to the

Respondent No.1 would have rendered surplus by virtue of new

stafng pattern. The Petitioner's appointment as Assistant

Teacher was approved belatedly. The consequence of approval of

Petitioner as an Assistant Teacher upon abolition of the post in

view of the changed stafng pattern needs to be considered.

9. Unfortunately for the Petitioner approval of her

services as Assistant Teacher was issued only on 30/01/2018 by

the Education Ofcer after the decision of the Tribunal. The order

of the termination reveals that the same is not in view of the

terms and conditions of the appointment letter as a Shikshan

Sevak, but as a result of the circular of the Education Department

issued to the Respondent No.1 that no permanent approval will

be given to the temporary staf that includes Shikshan Sevak

appointed in the School. In these circumstances, in my opinion,

the approval which has been granted by the Education Ofcer on

30/01/2018, though belatedly, may have serious consequences

on the merits of the Petitioners contention viz a viz the challenge

to the order of termination. In fact it is the categoric stand of

the Respondent No.1 that from time to time they requested the

2.wp 7127.19.doc

Education Authorities to approve the Petitioner's appointment as

Assistant Teacher and as no response was forthcoming, the

services had to be terminated also in view of the change in

stafng pattern.

10. Admittedly, the order of approval dated 30/01/2018

came to be issued only after the order was passed by the

Tribunal. In these circumstances, the Appeal needs to be

reconsidered by the Tribunal in the light of the approval dated

30/01/2018 and the efect of the approval on the services of the

Petitioner in view of the change of stafng pattern.

11. Keeping all contentions open, the impugned order of

the Tribunal is set aside. The matter is remitted back to the

Tribunal for reconsidering the Appeal on its own merits and in

accordance with law. Liberty to the parties to produce the

additional documents including the order of approval dated

30/01/2018.

12. Writ Petition is allowed and is disposed of in the

above terms.

2.wp 7127.19.doc

13. Considering that the termination is of 2016, the

Tribunal is requested to expedite the hearing of the Appeal.

Parties to appear before Tribunal on 19/04/2021 along with copy

of this order.

(M.S.KARNIK, J.)