Bombay High Court
Avinash Kashinath Shinde vs Dr. Ambedkar Smarak Samiti ... on 13 January, 2021
Bench: V.M. Deshpande
Judgment 1 WP8205.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 8205 OF 2019
PETITIONER : Avinash Kashinath Shinde,
Aged 39 years, Occupation : Nil,
R/o Ward No. 4, Saoli, Tah. Saoli,
Dist. Chandrapur.
// VERSUS //
RESPONDENTS : 1] Dr. Ambedkar Smarak Samiti Shikshan
Prasarak Sanstha, Saoli, Dist. Chandrapur,
through its President.
2] Dr. Ambedkar Smarak Samiti Shikshan
Prasarak Sanstha, Saoli, Dist. Chandrapur,
through its Secretary,
3] Ramabai Ambedkar Vidyalaya and Junior
College of Arts, Saoli, Dist. Chandrapur,
through its Principal.
4] Deputy Director of Education,
Nagpur Division, Nagpur.
5] Vishakha D/o Maroti Karmankar,
Aged 43 years, Occu. Teacher,
R/o Nagsen Coloni, Saoli, Tah. Saoli,
Dist. Chandrapur.
___________________________________________________________________
Shri Prasnant N. Shende, Advocate for the petitioner.
Shri Rugved Dhore, Advocate for respondent nos. 1 to 3.
Smt. Mrunal A. Barabde, A. G. P. for the Respondent no.4
___________________________________________________________________
CORAM : V. M. DESHPANDE, J.
DATED : JANUARY 13, 2021
Judgment 2 WP8205.19.odt
ORAL JUDGMENT
1. RULE. Rule is made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
2. The petitioner is represented by learned counsel Shri P. N.
Shende, respondent nos.1 to 3 are represented by learned counsel Shri
Rugved Dhore and respondent no.4 - Deputy Director of Education is
represented by learned Assistant Government Pleader Smt. M.A.
Barabde.
3. By this writ petition, the petitioner is praying for setting
aside the judgment dated 21.09.2019 passed by the learned Presiding
Officer of School Tribunal, Chandrapur in Appeal No. STC/15/2016.
He also prays for quashing and setting aside the order of termination of
his services dated 19.10.2019 and seeking direction that respondent
nos.1 to 3 be directed to reinstate him with full backwages from the
date of his termination. Another prayer is that Appeal No.
STC/15/2016 be remanded back with a direction to implead the
petitioner as a party respondent to the appeal and decide the appeal
afresh.
Judgment 3 WP8205.19.odt
4. Respondent nos.1 and 2 runs Ramabai Ambedkar
Vidyalaya and Junior College of Arts, Saoli, Dist. Chandrapur
(respondent no.3). Respondent no.3 - College is admitted to the
grants from the State Government.
5. According to the petitioner, he was appointed as a Junior
Lecturer in respondent no.3- College by respondent no.2. The order of
appointment is dated 26.06.2016 and it is placed on record at
Annexure-II. In pursuance to the order of appointment, the petitioner
joined the services. According to the petitioner, the approval was given
by the respondent no.4 vide communication dated 03.08.2016 on a
condition of presenting the Validity Certificate. Shri Shende, learned
counsel for the petitioner submits that at the time of approval,
respondent no.3 - College was not recipient of the grant-in-aid,
however it is subsequently admitted to the grant.
6. According to Shri Shende, learned counsel for the
petitioner, respondent no.5 was terminated from service as a Junior
Lecturer of the respondent no.3 - College vide order dated 24.06.2016.
She, therefore, preferred a statutory appeal under Section 9 of the
Maharashtra Employees of Private School (Conditions of Service)
Judgment 4 WP8205.19.odt
Regulation Act, 1977 (hereinafter referred to as "the MEPS Act" for the
sake of brevity) and set up challenge to her termination before the
School Tribunal. The appeal was registered as Appeal No.
STC/15/2016. Mr. Shende, learned counsel for the petitioner submits
that the petitioner was not a party to the said appeal. The Tribunal
vide its judgment dated 21.09.2019 allowed the appeal filed on behalf
of respondent no.5 and directed the respondents therein to reinstate
the appellant (respondent no.5 herein) to her former post.
7. The submission of the learned counsel for the petitioner is
that the consequence of allowing the appeal filed on behalf of
respondent no.5 by the Tribunal was that respondent nos.1 to 3
terminated the services of the petitioner vide order of termination
dated 19.10.2019. He submits that the services of the petitioner were
terminated without giving an opportunity to the petitioner and
therefore, he prays for the reliefs as mentioned in the opening
paragraph of this judgment.
8. Mr. Rugved Dhore, learned counsel for the management
submitted that in this writ petition the relief of reinstatement cannot be
granted in favour of the petitioner inasmuch as it is his submission that
Judgment 5 WP8205.19.odt
the petitioner has not availed the remedy of filing statutory appeal
before the Tribunal. He, therefore, prays for dismissal of the writ
petition.
9. Before the appointment order being issued to the
petitioner, an advertisement was published by respondent nos.1 and 2
in the newspaper calling applications from eligible and interested
candidates to get appointed on the post of Junior Lecturer in
respondent no.3 college. The advertisement shows that the
advertisement was published for three posts, out of which one post was
reserved for Scheduled Tribe candidate, one post was reserved for
Nomadic Tribe (A) category candidate and one post was from Open
category. The appointment order of the petitioner dated 26.06.2016
shows that it was given in pursuance to the application made by the
petitioner on 28.03.2016, which clearly postulates that said application
was made in pursuance to the advertisement, which was published in
the newspaper on 19.03.2016. The appointment order shows that the
petitioner was appointed on probation from 01.07.2016 to 30.06.2018.
The appointment order of the petitioner does not show that the
petitioner was appointed from Nomadic Tribe category, as claimed by
the learned counsel for the petitioner before this Court. The approval
Judgment 6 WP8205.19.odt
order, which is placed on record by the petitioner, more particularly
remark column (shera) in respect of the petitioner, recites as under :
"fn-01-07-2016 iklqu nksu o"kZ ifjfo{kkf/ku
dkyko/khdjhrk iw.kZdkyhu osruJs.kh e/;s lgk efgU;kps
vkr tkr oS/krk izek.ki= lknj dj.;kP;k vVhoj
foukvuwnku rRokoj fu;qDrhl ekU;rk iznku dj.;kr ;sr
vkgs (dq- fo'kk[kk djeudj ;kaP;k lsok lekIrhP;k vf/ku
jkgwu ek- lapkyd] iq.ks ;kaps fnukad 22-12-1995 uqlkj
fnysY;k gehi=kuqlkj ofjy ekU;rk ns.;kr ;sr vkgs- )
(foukvuqnkfur dk;ZHkkjkojhsy fu;qDrh vlY;keqGs osru
foRryC?kh 'kklukdMqu ns; gks.kkj ukgh- osru laLFksus vnk
djkos-)
10. Admittedly, the petitioner has not filed statutory appeal
challenging the termination dated 19.10.2019. Learned counsel for the
petitioner could not point out any observation in the order of the
Tribunal in Appeal No. STC/15/2016 that in order to reinstate the
appellant (respondent no.5 herein), it was be necessary for the
management to terminate the services of the petitioner.
11. Whether the petitioner was appointed from Nomadic Tribe
category or to the post which was held by respondent no.5 prior to her
termination, is a question to be decided. Since, remedy of appeal is
provided by the MEPS Act, this Court is not observing anything on the
said issue since it will cause prejudice to the petitioner if he chose to
file statutory appeal before the School Tribunal. Therefore, the said
Judgment 7 WP8205.19.odt
point is left open for consideration of the Tribunal, if the petitioner files
an appeal before the Tribunal challenging his termination vide order
dated 19.10.2019.
12. At this stage, learned counsel for the petitioner Shri
Shende submits that the petitioner will approach the School Tribunal
for filing an appeal challenging the order of termination dated
19.10.2019 by respondent nos.1 and 2. In view of the said submission,
this writ petition is disposed of in the following terms :
(i) The writ petition is disposed of with liberty to the
petitioner to file an appeal before the School Tribunal
challenging the order of termination dated 19.10.2019
within a period of 15 days from today.
(ii) If the appeal is filed within a period of 15 days and
if it is accompanied with the application for condonation of
delay, it is expected from the learned Presiding Officer to
pass the order considering the pendency of this writ
petition before this Court by applying provisions of Section
14 of the Limitation Act.
Judgment 8 WP8205.19.odt
(iii) The appeal, if presented by the petitioner, shall be
decided by the Tribunal by giving an opportunity of hearing
to the parties of the said appeal.
(iv) The Tribunal shall also decide the issue as to
whether the petitioner was appointed on a post reserved
for Nomadic Tribe (A) category, as claimed by him.
(v) On presentation of the appeal and after service to
the respondents in the said appeal, it is expected from the
School Tribunal to decide the said appeal within a period of
One year from service.
(vi) With this, the writ petition is disposed of. Rule
accordingly. No order as to costs.
JUDGE
Diwale
Digitally signed
by Parag
Parag Diwale
Date:
Diwale 2021.01.15
16:38:53
+0530
