Santoshkumar Bhanudas Dhaye vs State Of Mah. Thru. Secty. And 4 Ors
2022 Latest Caselaw 2959 Bom

LPA213.10                                                                                                  1/8

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

                          LETTERS PATENT APPEAL NO.213/2010 IN
                             WRIT PETITION NO.4989/2008(D)
                Santosh Kumar s/o Bhanudas Dhaye,
                R/o. Plot No.L17814, Near Sai Mandir,
                V.H.B.Colony, Bajoriya Nagar,
                Yavatmal.
                                                                          ....... APPELLANT
                                ...V E R S U S...

1]              State of Maharashtra through its Secretary,
                Education Department,
                Mantralaya, Mumbai-32.
2]              Presiding Officer,
                School Tribunal, Amravati Division,
                Amravati.
3]              Shri Yashwant Ramekar Shikshan Sanstha,
                Kamtwada (Chani),
                Tahsil Darwa, District Yeotmal.
4]              The Head Master,
                Smt. Janabai Ramekar Vidyalaya,
                Kamatwada (Chani), Tahsil Darwa,
                District Yeotmal.
5]              The Education Officer (Secondary),
                Zilla Parishad, Godhni Road,
                Yeotmal.
                                                                         ....... RESPONDENTS
--------------------------------------------------------------------------------------------------------------------
Shri Santosh Dhaye, Appellant in person.
Mrs. S.S.Jachak, Assistant Government Pleader for respondent nos. 1 and 2.
Shri Amol Mardikar, Advocate for respondent nos. 3 and 4.
--------------------------------------------------------------------------------------------------------------------
                CORAM : A.S.CHANDURKAR and G.A.SANAP, JJ.
                ARGUMENTS WERE HEARD ON 15.02.2022
                JUDGMENT IS PRONOUNCED ON 25.03.2022
(AS PER CHAPTER XI RULE 1 OF THE BOMBAY HIGH COURT APPELLATE SIDE RULES,
1960).
 LPA213.10                                                                     2/8




JUDGMENT (Per A.S.CHANDURKAR, J.)

In this Letters Patent Appeal filed under Clause 15 of the Letters Patent

the judgment of learned Single Judge in Writ Petition No.4989/2008 dated

15.02.2010 is under challenge. By that judgment the writ petition preferred by the

appellant praying that the respondent nos. 3 and 4 be directed to reinstate the

appellant on the post of 'Assistant Teacher' with back wages and all other

consequential benefits as the Government Resolution dated 10.02.1994 was not

applicable to the appellant has been dismissed.

2. The facts relevant for adjudication of the Letters Patent Appeal are that

the appellant was appointed as an untrained teacher at the respondent no.4-School

run by the respondent no.3-Society. His appointment was for session 1990-91.

Thereafter on 29.06.1991 the appellant was again appointed as an untrained teacher

for the session 1991-92. Since the appellant was an untrained teacher, he was

permitted to acquire B.Ed training qualification on 05.05.1992. It is his case that on

25.06.1992 the appellant was not permitted to join duties and therefore he filed an

appeal bearing No.110/1992 before the School Tribunal seeking reinstatement. On

22.07.1992 the School Tribunal directed interim reinstatement of the appellant. Since

this order was not complied with, the appellant filed Contempt Petition No.220/1992.

On 05.03.1993 the appellant was reinstated in service but thereafter on 30.03.1993

his services were again terminated. The appellant therefore filed an appeal bearing

No.73/1993 before the School Tribunal challenging the order of termination. On

26.04.1994 the earlier appeal filed by the appellant was dismissed and thereafter on LPA213.10 3/8

20.10.1999 the subsequent appeal also came to be dismissed. The appellant acquired

B.Ed. training qualification in May 1998. The appellant filed Writ Petition

No.1833/1994 for challenging initial dismissal of his appeal on 26.04.1994. Since the

other appeal filed by the appellant also dismissed on 20.10.1999, that order was also

challenged in Writ Petition No.1833/1994 by amending the same. The learned Single

Judge on 19.09.2005 decided that writ petition and held that the effect of acquisition

of training qualification in May 1998 was required to be considered in the light of

second proviso to Rule 6 of the Maharashtra Employees of Private Schools (Conditions

of Service) Rules, 1981 (for short, the Rules of 1981). It was noted that there was

also a deed of compromise between the parties by which the respondent nos. 3 and 4

accepted the stand of the appellant of giving up his back wages, if he was reinstated

in service. The learned Single Judge therefore directed the Education Officer

(Secondary) to consider the effect of acquisition of training qualification in May 1998.

On 27.10.2005 the Education Officer passed an order in the said proceedings. In Writ

Petition No.5771/2005 preferred by the Management, the Division Bench on

23.11.2005 set aside that order as it was passed in breach of principles of natural

justice. The proceedings were again remanded to the Education Officer. Ultimately,

on 21.01.2006 the Education Officer (Secondary) passed an order holding that the

period for acquiring training qualification was only upto 01.06.1995 and as the

appellant had acquired training qualification after that date, he was not entitled to the

benefit of the same. It is in that backdrop that Writ Petition No. 4989/2008 came to

be filed. As noted above, the learned Single Judge dismissed that writ petition by

observing that all challenges to the order of termination had been decided in Writ

Petition No.1833/1994 including the effect of Government Resolution dated LPA213.10 4/8

10.02.1994. Hence this Letters Patent Appeal.

3. Since the appellant was appearing in person, by the order dated

15.11.2021 the parties were directed to place on record written notes of arguments.

Accordingly the appellant as well as the respondent nos. 3 and 4 have placed on

record their notes of arguments alongwith the decisions on which they seek to place

reliance. We have thus perused the written notes of arguments filed by both the

parties alongwith the decisions on which they seek to place reliance. We have also

given due consideration to the rival submissions.

4. The respondent nos. 3 and 4 have raised an objection to the

maintainability of the Letters Patent Appeal on the ground that Writ Petition

No.4989/2008 was decided alongwith Writ Petition Nos. 3088/2005 and 5196/2009

by the common judgment dated 19.01.2010. Letters Patent Appeal No.268/2010 was

filed for challenging the judgment in Writ Petition No.3088/2005 and a co-ordinate

Bench on 25.01.2021 had held that the letters patent appeal was not maintainable on

the ground that the learned Single Judge had decided that writ petition in exercise of

jurisdiction under Article 227 of the Constitution of India. Thus, according to the

respondent nos. 3 and 4, this Letters Patent Appeal also arising from the common

judgment was not maintainable and it was liable to be dismissed. In that regard,

reliance was sought to be placed on the decisions in Jogendrasinhji Vijaysinghji vs.

State of Gujrat (2015) 9 SCC 1. In response the appellant has relied upon various

decisions including the decisions in Mangalbhai and ors. Vs. Radhyshyam AIR 1993

SC 806, Mavji C. Lakum vs. Central Bank of India (2008) 12 SCC 726, Lokmat

Newspapers Pvt. Ltd. vs. Shankarprasad AIR 1999 SC 2423 and Umaji Keshao LPA213.10 5/8

Meshram and ors vs. Radhikibai Anandrao Banapurkar and anr. AIR 1986 SC 1272 to

urge that the jurisdiction exercised by learned Single Judge was under Articles 226

and 227 of the Constitution of India.

This aspect need not detain us for the reason that what was challenged in

Writ Petition Nos. 3088/2005 and 5196/2009 was the judgment of the School

Tribunal passed in the case of other employees under Section 9 of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short,

the Act of 1977). In Writ Petition No.4989/2008 the prayer as made reads thus :

"It is most respectfully prayed to this Hon'ble Court :

(i) require the respondents to reinstate the petitioner to his original post with the back wages and consequential benefit and continuity of services in view of the judgment dated 19.09.2005 in Writ Petition No.1833/1994 as G.R.No.SSN-2690/(108)Secondary Education-2 dated 10.02.1994 is not applicable to the petitioner."

5. It is thus clear that the relief sought in Writ Petition No.4989/2008 was

distinct in nature from the relief that was sought in other two writ petitions. Since

common issues arose in these three writ petitions they were decided together. On

consideration of the nature of relief sought for in Writ Petition No.4989/2008, it

becomes clear that the appellant had sought a declaration that the Government

Resolution dated 10.02.1994 was not applicable to the facts of his case and therefore

he should be reinstated in service in terms of earlier judgment in Writ Petition No.

1833/1994. The learned Single Judge also noted that Writ Petition No.4989/2008

was filed under Articles 226 and 227 of the Constitution of India. In that view of the

matter, we find that the nature of relief sought by the appellant in Writ Petition

No.4989/2008 was not in the nature of seeking a writ of certiorari. In view of the

prayer made in Writ Petition No.4989/2008, we are satisfied that the Letter Patent LPA213.10 6/8

Appeal is maintainable and the same is liable to be entertained on merits.

6. While considering the prayer made in Writ Petition No.4989/2008, it

would be necessary to note that in Writ Petition No.1833/1994 the appellant had

challenged both the judgments of the School Tribunal dated 26.04.1994 and

20.10.1999. It is not in dispute that when the appellant was appointed on the post of

'Assistant Teacher' he did not possess the training qualification and he was deputed

for obtaining such training qualification by certificate dated 05.05.1992. In that

context, it was noted that the Management could not have terminated the services of

the appellant in June 1992. After noticing that the appellant acquired B.Ed. Degree in

May 1998, the question considered was whether the appellant could be reinstated in

service as he had obtained training qualification after April 1994 which was the time

stipulated for obtaining such training. After noting the compromise between the

parties, the matter was sent to the Education Officer (Secondary) to examine whether

the acquisition of training qualification by the appellant was within the time

prescribed. On 21.01.2006 the Education Officer (Secondary) held that as per

Government Resolution dated 10.02.1994 the time within which such training

qualification could be obtained was only till 01.06.1995 and thereafter the State

Government had not granted further extension. In the light of this order by the

Education officer (Secondary), Writ Petition No.4989/.2008 came to be filed. In the

impugned judgment the learned Single Judge has observed in paragraph 10 that the

effect of said the Government Resolution was that the appellant had acquired the

training qualification after 01.06.1995. Even the undertaking given by

the Management to absorb the services of the appellant after he obtained B.Ed.

LPA213.10 7/8

qualification was not accepted as it was contrary to the mandate of the proviso to

Rule 6 of the Rules of 1981. It was therefore held that the appellant as an untrained

teacher had no right to the post and by terminating the services of such employee the

Management did not commit any error.

7. We find that the judgment in Writ Petition No.1833/1994 attained finality

and the Education Officer (Secondary) pursuant to the directions issued in the writ

petition had on 21.01.2006 found that the training qualification could have been

obtained only till 01.06.1995. There was thus no scope in law for the learned Single

Judge in Writ Petition No.4989/2008 to hold that the Government Resolution dated

10.02.1994 was not applicable to the case of the appellant. Besides the Government

Resolution dated 10.02.1994 there is no other Government Resolution pointed out

extending the time to acquire the training qualification till May 1998 when the

appellant acquired the same. The conclusion recorded by the learned Single Judge

that till the appellant acquired training qualification he had no right to hold the post

in question is a proper conclusion in law and such right to hold the post would accrue

only after the requisite training qualification which is B.Ed. was obtained by the

appellant. Rule 6 of the Rules of 1981 is clear in that regard the appointment has to

be made on year to year basis. Though in the written notes of arguments it is sought

to be urged that the observations in the impugned judgment are contrary to the

observations in the earlier judgment dated 19.09.2005 we do not find any such

inconsistency as contended. The training qualification having been obtained after

01.06.1995, no relief can be granted to the appellant.

LPA213.10 8/8

8. In that view of the matter we do not find any other conclusion than the

one recorded by the learned Single Judge in the judgment dated 15.02.2010 can be

recorded herein. The Letters Patent Appeal and civil applications therefore stand

dismissed with no order as to costs.

                          (G.A.SANAP, J.)                  (A.S.CHANDURKAR, J.)


             Andurkar..




Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
25.03.2022 16:50