Sanjay S/O Govindrao Ingle vs State Of Maharashtra, Through The ...
2021 Latest Caselaw 11770 Bom

                                                      1                                  20.LPA316.11(J)

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH, NAGPUR.

                     LETTERS PATENT APPEAL NO. 316 OF 2011 IN
                          WRIT PETITION NO. 3885/2010 (D)

APPELLANT :                     Sanjay s/o Govindrao Ingle,
                                Aged about 45 years, Occ. Nil,
                                R/o. Mangrulpir, District Washim.

                                ...V E R S U S...

RESPONDENTS : 1. State of Maharashtra, through the Secretary,
                 Education Department, Ministry of Education,
                 Mantralaya, Mumbai.

                           2. The Education Officer (Secondary),
                              Zilla Parishad, Akola.
-------------------------------------------------------------------------------------------------------------------
Shri S.A.Marathe, Advocate for appellant.
Mrs. Sangeeta S. Jachak, Assistant Government Pleader for respondents.
-------------------------------------------------------------------------------------------------------------------

                                CORAM : A.S.CHANDURKAR and G.A.SANAP, JJ.

DATED : 25th AUGUST, 2021

ORAL JUDGMENT ( Per A.S.Chandurkar, J.)

The appellant is aggrieved by the order dated 06.12.2010 passed

by the learned Single Judge in Writ Petition No.3885/2010. By the said order

the learned Single Judge declined to interfere in writ jurisdiction on the

ground that the appellant did not have necessary qualifications for being

appointed as Assistant Teacher.

2. The facts giving rise to the present appeal are that it is the case of

the appellant that he was appointed as Assistant Teacher at the school which

2 20.LPA316.11(J)

was being run by Dnyanakiran Shikshan Prasarak Mandal, Gavangaon, Tq.

Patur, District Akola. His services were orally terminated on 21.07.1994.

Being aggrieved, the appellant filed an appeal under Section 9 of the

Maharashtra Employees of Private Schools (Conditions of Service) Regulation

Act, 1977 (for short, the said Act). The School Tribunal by its judgment dated

18.03.1997 allowed that appeal and after setting aside the action of oral

termination, directed reinstatement of the appellant along with continuity in

service and back wages. This order of the School Tribunal attained finality.

Since the directions issued by the School Tribunal were not complied with,

the appellant filed Contempt Petition No.102/1997. On 22.06.1998 after

recording the statement of the learned counsel for the Management that the

appellant would be joined in service if he reported on duty, the contempt

petition was disposed of. It appears that despite this assurance the directions

issued by the School Tribunal were not complied. Hence on 06.07.2005 the

appellant moved an application under Section 11 read with Section 13 of the

said Act before the School Tribunal praying that appropriate action be taken

against the Education Officer for non-compliance of the directions issued by

the School Tribunal. The learned Presiding Officer by the order dated

07.09.2007 dismissed those proceedings on the ground that the same were

not tenable. This order was therefore challenged by the appellant in Writ

Petition No.3885/2010. The learned Single Judge declined to interfere in

writ jurisdiction on the ground that the appellant did not possess requisite

3 20.LPA316.11(J)

qualification for holding the post of Assistant Teacher. It is in this backdrop

the present appeal has been filed.

3. Shri S.A.Marathe, learned counsel for the appellant submits that

the order of the School Tribunal dated 18.03.1997 having attained finality, it

was not permissible for the learned Single Judge to have gone into the aspect

of the qualification of the appellant for being appointed as 'Assistant Teacher'.

The order of reinstatement had attained finality and in the proceedings

seeking implementation of the order passed by the School Tribunal, the entire

basis on which the relief of reinstatement was granted could not have been

taken away. By virtue of the impugned order the effect of adjudication by

the School Tribunal has been removed. He thus submits that the order dated

06.12.2010 was liable to be set aside and appropriate relief be granted to the

appellant.

4. Mrs. Sangeeta Jachak, learned Assistant Government Pleader for

the respondents supported the order passed by the learned Single Judge. She

submitted that since the appellant was not having the requisite qualification,

the relief was rightly refused in the writ petition.

5. We have heard the learned counsel for the parties at length and we

have perused the documents placed on record. At the outset, we may note

the prayers that were made in Writ Petition No.3885/2010. The prayers

4 20.LPA316.11(J)

made therein are as under :

"Prayers : . It is most humbly prayed that this Hon'ble Court be pleased to call for the record of proceedings of Misc. Application No.13 of 2005 from the files of School Tribunal, Amravati and perusing the same be pleased to issue writ in the nature of ertiorari and any other appropriate writ order of directions to the respondent to:

(i) Quash and set aside the impugned order dated 07.09.2007 passed by the School Tribunal, Amravati in Misc. Application No. 13 of 2005 (at Annexure II);

(ii) direct the Education Officer(Secondary), Zilla Parishad, Akola that employees of dereconized schools are also entitled for absorption in another school under Section 25(a) 2) of MEPS Act and direct to maintain petitioner's name in the list maintained by it under rule 25(A)(2) of MEPS Rules and to absorb him in any other other school;

(iii) direct the Education Officer to grant him seniority and grant him all the service benefits including arrears of salary from the date his juniors got absorbed in another school;

(iv) during the pendency of this petition, by ad- interim order direct the Education Officer to absorb the petitioner in any other school, if there enlist any vacancy in the interest of justice;

(v) grant any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case."

6. Perusal of these prayers and especially prayer clauses (ii) and (iii)

make it evident that the relief sought by virtue of those prayers could have

considered only by the Division Bench in view of the provisions of Chapter

XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960. By such

prayers the appellant had sought direction to include his name in the list of

surplus teachers to enable his absorption. Such relief could not have been

5 20.LPA316.11(J)

granted by the learned Single Judge in the writ petition as filed. We therefore

find that the writ petition as filed ought to have been entertained by the

Division Bench in view of prayer clauses (ii) and (iii) therein.

7. Be that as it may, as regards the order dated 06.12.2010 passed in

Writ Petition No.3885/2010, it is to be noted that on 07.09.2007 the learned

Presiding Officer of the School Tribunal did not entertain the application

preferred under Sections 11 and 13 of the said Act. However while

adjudicating the challenge to that order it has been observed that the

appellant did not possess the qualification for holding the post of Assistant

Teacher. The order of the School Tribunal dated 18.03.1997 passed in favour

of the appellant had attained finality and therefore it was not permissible for

the learned Single Judge to go into the correctness of the order passed by the

School Tribunal on 18.03.1997 especially in the writ petition that was

preferred by the successful appellant. The Management had not challenged

the order of reinstatement of the appellant. In other words, in the writ

petition filed by the appellant he has lost the basis of the order passed by the

School Tribunal in his favour which had attained finality. It is well settled

that the litigant cannot be put in worse position than that in which he was

prior to initiation of the proceedings. In this regard reference can be made to

the decision of the Hon'ble Supreme Court in Pradeep Kumar Vs. Union of

India and others (2005) 12 SCC 219 . On this ground therefore we find that

6 20.LPA316.11(J)

as the order passed by the School Tribunal on 18.03.1997 had attained

finality, it would not be permissible to re-open those proceedings in the writ

petition filed by the appellant. The order dated 06.12.2010 is liable to be set

aside on this ground alone.

8. Since the aforesaid writ petition was entertained and adjudicated

only in the context of prayer clause (i), we find that the interests of justice

would be served if the said writ petition is restored to file for adjudication of

all the prayers made therein.

9. In the light of the aforesaid discussion, the following order is

passed :

(i) The order dated 06.12.2010 passed in Writ Petition No.3885/2010 is set aside.

(ii) Writ Petition No.3885/2010 is restored to file and the same shall now be placed before the Division Bench as per roster assignment for its adjudication on merits.

(iii) Letters Patent Appeal No.316/2011 is allowed in aforesaid terms.

The parties shall bear their own costs.

It is clarified that we have not examined the entitlement of the

appellant to the reliefs sought in the writ petition. All points on merits are

kept open.

                 JUDGE                                JUDGE


Andurkar..