Bombay High Court
Kanhaiyyalal S/O Sonbaji ... vs Bhartiya Jagruti Shikshan ... on 14 March, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4369 OF 2013
Kanhaiyyalal Gajbhiye -- Petitioner
Vs.
Bhartiya Jagruti Shikshan Sanstha and others -- Respondents
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A.C. Dharmadhikari, Advocate for Petitioner
Mr. A.D. Mohagaonkar, Advocate for Respondent Nos.1, 2 & 4
Mr. Anoopsingh Parihar, Advocate for Respondent No.3
CORAM : MANISH PITALE, J.
DATE : 14 MARCH 2022
By this petition, the petitioner has challenged the
judgment and order dated 27/06/2013, passed by the School
Tribunal, Nagpur, whereby the appeal of the petitioner was partly
allowed and the order terminating service of the petitioner was
quashed and set aside. The respondent No.3 - Education Officer
(Primary), Zilla Parishad, Gondia, was directed to place the name
of the petitioner in the surplus waiting list and absorbed him in
aided school by giving top priority.
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2. When this petition came up for hearing on
08/07/2015, this Court noticed the cleavage of opinion on the
question of applicability of Rules 25-A, 26 and 27 of the
Maharashtra Employees of Private School (Conditions of Service)
Rules, 1981, to the question of absorption of employees similarly
placed like the petitioner herein, when the school in question stood
derecognized. Upon noticing such cleavage of opinion, this Court
referred the following question for determination by a Larger
Bench.
"Whether the principles of termination laid down
under rule 27 of the Rules of 1981 are required to be
followed while effecting termination under rule 25A of
the Rules of 1981?"
3. On 09/10/2020, the aforesaid question was decided
authoritatively by a Full Bench of this Court and it was answered in
following manner :
"61. In the result, for the reasons stated herein above,
we answer the question "Whether the principles of
termination laid down under rule 27 of the Rules of
1981 are required to be followed while effecting
termination under rule 25A of the Rules of 1981?" in
terms that the principle of common seniority stated in
rule 27(d) read with rule 27(e) of the Rules, 1981
would have to be followed while effecting termination
under rule 25A of the Rules of 1981, in a case where,
the Management runs more than one school."
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4. Mr. A.C. Dharmadhikari, learned counsel appearing
for the petitioner submitted that in view of the question being
answered in favour of the petitioner, the impugned order passed by
the Tribunal deserves to be modified. This is particularly in the
background that in pursuance of order dated 08/07/2015, passed
by this Court, the respondent No.3 - Education Officer was
directed to take a decision on the entitlement of the petitioner to
receive post retirement benefits. It is submitted that in pursuance
of the direction of this Court, the respondent No.3 has indeed
passed an order, which is now subject matter of challenge before
the Division Bench of this Court.
5. With the passage of time and subsequent events,
particularly, the position of law being authoritatively laid down by
the Full Bench in the aforesaid judgment dated 09/10/2020, it is
submitted on behalf of the petitioner that Clause 3 of the
impugned order deserves to be modified and appropriate relief
deserves to be granted to the petitioner.
6. In response, Mr. Parihar, learned counsel appearing for
respondent No.3 submitted that the said respondent has already
passed an order pertaining to pensionary and other benefits of the
petitioner, by taking into consideration the date of derecognition of
the school i.e. 14/6/2002 and that any modification in the
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impugned order of the Tribunal may lead to further complications
in the matter.
7. Mr. A.D. Mohagaonkar, learned counsel for the
respondent Nos. 1, 2 and 4 submitted that with passage of time, if
the petitioner is interested only in pensionary benefits and other
terminal benefits, the same can be decided in accordance with law
and that appropriate directions can be given to the respondent
No.3 in that regard.
8. It is an undisputed position that the Tribunal in the
impugned judgment and order itself held that the order
terminating the service of the petitioner was unsustainable and
accordingly, quashed and set aside the same. In normal course, an
order of reinstatement with or without payment of back wages
ought to have followed. But, the Tribunal, after holding that the
order of termination of service was quashed and set aside, gave a
direction to the respondent No.3 to place the name of the
petitioner in the surplus waiting list and absorb him in aided
school. Although it is submitted on behalf of the petitioner that
the fact that he was to attain the age of superannuation on
30/06/2013 i.e. merely three days after the date on which the
impugned judgment and order was passed, was brought to the
notice of the Tribunal, there is no reference to the same in the
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impugned judgment and order. As a result, this aspect has been
completely ignored.
9. This Court is of the opinion that after about 9 years of
the appeal of the petitioner being partly allowed by the Tribunal, at
this stage, if the said direction of the Tribunal contained in clause 3
in the operative portion of the impugned order is to be taken into
consideration, with the position of law being clarified by the Full
Bench of this Court in the aforesaid judgment dated 09/10/2020,
even if the said clause is to be modified and a direction of
reinstatement is to be given, the fact that the petitioner attained the
age of superannuation on 30/06/2013, is a factor that cannot be
ignored. At this point in time, after passage of so many years, this
Court is not inclined to hold that the petitioner would be entitled
to back wages, even if the prayer for modification of the aforesaid
clause is to be granted. As on today, it would be in the interest of
justice that the effect of such modification on granting all
pensionary and other terminal benefits is kept in focus. There is no
dispute about the fact that the order of termination of service was
quashed and set aside and the said order has attained finality, to the
extent that it was never made subject matter of challenge by any of
the respondents.
10. The clarification of the position of law given by the
Full Bench of this Court in the aforesaid judgment ought to enure
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to the benefit of the petitioner and on applying the same to the
facts of the present case, it becomes clear that the petitioner could
have been absorbed in the other school being run by the
respondent - Management and with the order of the Tribunal
setting aside the order of termination of service, he certainly would
be entitled to consequential benefits, particularly pensionary and
other terminal benefits in accordance with law.
11. In view of the above, this Court is convinced that
clause 3 of the impugned order deserves to be modified, in the
interest of justice. Accordingly, the writ petition is partly allowed
by holding that clause No.3 of the impugned order is set aside and
modified to read as follows :
"The respondent No.3 - Education Officer (Primary),
Zilla Parishad, Gondia, is directed to treat the petitioner as having
been reinstated in service and superannuated on 30/06/2013. The
prayer for grant of back wages is rejected. At the same time, the
respondent No.3 is directed to take steps to ensure that the
petitioner is given pensionary benefits and all terminal benefits by
treating him as having been reinstated in service and
superannuated on 30/06/2013 and to process the papers and
disburse such benefits to him in accordance with law."
Digitally signed by:MILIND
P DESHPANDE JUDGE
Signing Date:15.03.2022
17:57
MP Deshpande
