Bombay High Court
Sayyad Manjur Mujafar vs The State Of Maharashtra And ... on 3 October, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1934 OF 2017
Sayyad Manjur S/o Mujafar,
Age : 50 Years, Occu. : Service,
R/o At Post Bhatangali,
Tq. and Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary,
Social Justice and Special
Assistance Department,
Mantralaya, Mumbai.
1A. The Hon'ble Minister (State),
Social Justice and Special
Assistance Department,
Government of Maharashtra,
Mantralaya, Mumbai.
2. The Commissioner,
Handicapped Welfare,
Maharashtra State, Pune.
3. The Divisional Deputy Commissioner,
Social Welfare, Pune Division,
Pune.
4. The District Social Welfare
Officer, Zilla Parishad, Pune.
5. The District Social Welfare
Officer, Zilla Parishad, Latur.
6. Apang Kalyankari Sanstha Va
Sanshodhan Kendra Wanwadi,
Pune, through its
President/Secretary.
7. Shivani Subhash Sutar,
Age : 39 Years, Occu. : Service as
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Head Master' of Apang Kalyankari
Shikshan Sanstha Va. Sanshodhan
Kendra, Wanwadi, Pune,
R/o F-9, Shivsagar Housing Society,
Jagtap Nagar, Wanwadi, Pune,
Dist. Pune. .. Respondents
Shri V. D. Gunale, Advocate for the Petitioner.
Shri S. V. Adwant, Special Govt. Pleader for the Respondent Nos.
1 and 2.
Shri Vilas D. Sonawane, Advocate for the Respondent Nos. 3 to 6.
Shri Alok M. Sharma, Advocate for the Respondent No. 7.
CORAM : MANGESH S. PATIL AND
SANDEEP V. MARNE, JJ.
DATE : 03.10.2022.
JUDGMENT (Per Sandeep V. Marne, J.) :-
. Rule. Rule made returnable forthwith. With the consent
of parties taken up for final hearing.
2. By this petition, the petitioner seeks implementation of the
order dated 26.07.2016, by which he was directed to be absorbed
in the respondent No. 6-school, upon been rendered surplus. The
petitioner also seeks prayer for payment of salary from
26.07.2016 onwards.
3. During the pendency of the petition, the petitioner came to
be granted absorption in another school viz. Residential Disabled
School, Ahmedpur, Dist. Latur with effect from 02.12.2019.
Therefore, the prayer for implementation of the order dated
26.07.2016 to absorb him in the respondent No. 6-school no
longer survives. He is also being paid salary in absorbed school
with effect from 02.12.2019. Therefore, what remains to be
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decided is the prayer for payment of salary from 26.07.2016 to
01.12.2019.
4. Appearing for the petitioner, Mr. Gunale learned counsel
would submit that even though he was ready and willing to join
the respondent No. 6-school in pursuance of the absorption order
dated 27.06.2016, he was prevented from joining the respondent
No. 6-school and, that therefore, that school is liable to pay
salary to him during the period from 27.06.2016 to 01.12.2019.
He would submit that on account of refusal of the respondent No.
6-school to obey the absorption order dated 27.06.2016, the State
Government was required to suspend the management and
appoint an administrator to run the school. The adamant
approach displayed by the respondent No. 6-school resulted in
hardship to the petitioner. He would further submit that instead
of absorbing the petitioner in pursuance of the absorption order
dated 27.06.2016, the respondent No. 6 illegally granted
appointment in favour of the respondent No. 7, which was clearly
illegal. He would rely upon the provisions of the Rule 41(7) of
the Maharashtra Special Schools for Disabled and Training
Center Code, 2018 (hereinafter referred as to the "Code of 2018")
to contend that it is the liability of the respondent No. 6-school to
pay salary to the petitioner on account of refusal to permit the
petitioner to join the school. He relies upon the decision of the
Apex Court in the case of Shobha Ram Raturi Vs. Haryana
Vidyut Prasaran Nigam Limited and others reported in AIR
2016 SC 157.
5. Per contra, Mr. Adwant, the learned Special Government
Pleader appearing for the respondent-State places on record copy
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of order dated 16.11.2019, by which the petitioner came to be
granted absorption in Ahmedpur school. By that order, the
earlier order of absorption dated 27.06.2016 has been cancelled.
He would submit that while granting absorption in Ahmedpur
school, the petitioner was appointed on the lower post of Special
Teacher instead of Head Master, which post he was holding prior
to his absorption. He would submit that the petitioner
voluntarily accepted demotion in the post as the order of
absorption is actually an order of fresh appointment. Relying on
the provisions of the Rule 91(2) of the Code of 2018, Mr. Adwant
would contend that the petitioner is not entitled to payment of
salary till the date of joining. He would place reliance on the
provisions of Rule 25A of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Rules, 1981 (for short
"Rules of 1981") to contend that the order of absorption passed
under Sub Rule 2 of Rule 25A of the Rules of 1981 is merely
recommendatory in nature for consideration of the school
management. He would therefore submit that the earlier order
of absorption dated 26.07.2016 was merely recommendatory in
nature and did not create any right in favour of the petitioner.
He would submit that conjoint reading of Rule 25A of the Rules
of 1981 and Rule 91(2) of the Code of 2018 would clearly indicate
that an absorbed employee is entitled to payment of salary only
from the date of joining and not from the date of passing of order
of absorption.
6. In support of his contention Mr. Adwant would rely upon
following decisions of this Court.
i. Chandrama Milind Bhatkar and others Vs. The Secretary,
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Ministry of VJNT, OBC & SBC Welfare Maharashtra
State, Mumbai and others in Writ Petition No. 4305 of
2014 dated 27.01.2015.
ii. Shri Sawant Pandurang Dattatraya and another Vs. The
State of Maharashtra and others in Writ Petition No. 5303
of 2014 dated 16.02.2015.
iii. Gramin Vikas Shikshan Va Krida Prasarak Mandal
Khadki and another Vs. Yamu Narayanrao Bire and others
reported in 2012(3) Mh.L.J. 820.
7. In support of his submissions based on Rule 25A of the
Rules of 1981, Mr. Adwant would rely upon the decision of the
Nagpur Bench of this Court in the case of Prabhakar Panjabrao
Mahajan Vs. The Deputy Director of Education, Nagpur and
others reported in 2007(2) All MR 220 and the Full Bench
decision of this Court in the case of Kanhaiyyalal Sonbaji
Gajbhiye Vs. Bhartiya Jagruti Shikshan Sanstha Sawari
(Javahar Nagar) and others reported in 2020(6) Mh.L.J. 595.
8. Mr. Adwant, would further contend that the respondent
No. 6-school received a letter dated 29.06.2016 from the earlier
school of the petitioner pointing out various misconducts
committed by the petitioner and that the respondent No. 6-school
was entitled to deny joining to the petitioner by taking into
consideration the misconducts committed by him in earlier
school.
9. Mr. Sonawane, learned counsel appearing for respondent
Nos. 3 to 6 opposes the petition contending that his clients
cannot be saddled with the liability to pay salary to the
petitioner in respect of the period that he did not work with the
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respondent No. 6-school. He would submit that the respondent
No. 6-school was entitled to check the antecedents of the
petitioner and to deny him joining on that ground. He would
submit that the respondent No. 6-school rightly did not permit
the petitioner to join in pursuance of order dated 26.07.2016. He
would submit that order dated 26.07.2016 was in fact challenged
by the management before Principal Seat of this Court, but the
issue was directed to be decided in the present petition. He
prays for dismissal of the petition.
10. Mr. Alok Sharma, learned counsel appearing for the
respondent No. 7 submits that, since the petitioner is already
absorbed in another school, he could not no claim against
Respondent No. 7, who has been functioning in the respondent
No. 6-school.
11. Having heard the learned counsel for the parties, the
limited issue that we need to decide in the present petition is
about petitioner's entitlement to receive salary during the period
from 27.06.2016 to 01.12.2019. The provision for absorption of
surplus teacher is to be found in Sub Rule 2 of Rule 25A of the
Rules of 1981, which reads thus :
The Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Rules, 1981
1. ..........
2. ...........
[25A. Termination of Service on account of abolition
of posts. -
(1) .......
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(2) The names of the employees in aided schools, whose
services stand terminated in accordance with sub-rule (1)
on account of de-recognition and who are not directly
responsible for such de-recognition, shall be taken on a
waiting list by the Education Officer in the case of Primary
and Secondary Schools or by the Deputy Director in the
case of Higher Secondary Schools and Junior College of
Education, and same shall be recommended by him to
the Managements of newly opened aided schools or of the
existing aided schools which are allowed to open additional
divisions or classes for consideration.
(emphasis added)
12. Thus absorption in another school is not a matter of right.
The Education Officer/Deputy Director merely recommends the
surplus teacher to the management of either newly opened aided
school or the existing aided schools which are allowed to open
additional divisions or classes for consideration.
13. The issue of entitlement of surplus teacher for absorption
has been interpreted in various decisions of this Court. The Full
Bench of this Court in the case of Kanhaiyyalal Sonbaji
Gajbhiye (supra) has held in para No. 29 as under :
29. A bare reading of rule 25A would show that it deals
with termination on account of abolition of posts resulting
from closure, voluntary or on the ground of de-recognition
of the school. It does not refer to the concept of
"retrenchment" which appears to dominate the newly
amended rule 26. That apart, rule 25A does not grant
same degree of protection to the terminated employees as
was available to them in earlier rule 26 and which was in
the nature of their absorption in another school and
protection of their services till absorption. Instead, rule
25A gives new kind of protection, rather privilege, to the
terminated employees of aided schools. Sub-rule (2) of
rule 25A lays down that if such employees from aided
schools are not directly responsible for the de-recognition
of the school, their names must be included in waiting list
by the competent authority, who may be either the
Education Officer or the Deputy Director depending upon
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the class of the school. It imposes further duty upon the
competent authority to recommend their names to the
Managements of newly aided schools or the existing aided
schools which are allowed to open additional divisions or
classes for consideration.
14. In the case of Prabhakar Panjabrao Mahajan (supra) this
Court has held in para No. 27 as under :
27/ A teacher who is terminated on account of
contingency covered by rule 25A can only be considered
for recommendations to the management of other school
for being appointed on their establishment as a fresh
candidate and such management is required to consider
the case of employee for absorption and any such
appointment of employee terminated under rule 25A is
required to be treated as newly appointed employee who
has (the petitioner in this case) suffered termination under
rule 25A of the MEPS Rules. All new appointees are
required to be treated as Shikshan Sevak covered under
the Scheme of Shikshan Sevak framed by the Government
vide Government Resolution dated 27th April 2000 read
with modified Government Resolution dated 13 th October
2000.
15. So far as payment of salary to the absorbed teacher is
concerned, the same is governed by the provisions of Rule 91(2)
of the Code of 2018, which provides that the absorbed teacher
shall not be entitled to salary till the date of joining by way of
absorption. The period between the date of declaration as
surplus teacher till the date of joining in absorbed school is
required to be treated as dies non.
16. The issue of payment of salary in the light of the provisions
of Rule 25A of the Rules of 1981 has been dealt with by this
Court in various decisions. In the case of Gramin Vikas
Shikshan Va Krida Prasarak Mandal Khadki (supra) this Court
has held in para No. 39 as under :
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39. If it is closure under Rule 25A, there is no question of
payment of any back wages and employee becomes entitled
to placement in list of surplus candidates. If it is retrench-
ment under Rule 26, there can be no termination and re-
spondent no.1 continues to earn salary every month till she
is absorbed. We have already concluded that even if it is a
case of closure under Rule 25A, still otherwise termination
on 20.06.1997 is bad. Hence, the entitlement to relief of re-
instatement or then to relief of absorption and also to relief
of wages denied (back wages) turns upon the answer to
question whether on 20.06.1997 respondent no.1 has been
retrenched under Rule 26 or terminated under Rule 25A?
(emphasis supplied)
17. Also this Court in the case of Chandrama Milind Bhatkar
and others (supra) and Shri Sawant Pandurang Dattatraya and
another (supra) has denied salary prior to the date of actual
joining consequent to absorption.
18. Considering the inter play between Rule 25A of the Rules
of 1981 and Rule 91(2) of the Code of 2018, it is clear that
absorption of a surplus teacher is not a matter of right and that
upon absorption, the teacher is not entitled to be paid salary till
the date of actual joining. There is yet another difficulty for the
petitioner. He is seeking implementation of order dated
26.07.2016 and payment of salary in pursuance thereof.
However, by subsequent order dated 16.11.2019, the order dated
26.07.2016 has been cancelled. The order dated 26.07.2016 no
longer survives. The petitioner has not challenged the order
dated 16.11.2019 in the present petition atleast qua cancellation
of order dated 26.07.2016. The cancellation of order dated
26.07.2016 has thus attained finality. Therefore, the order dated
26.07.2016 can no longer be relied upon while deciding
petitioner's entitlement to salary.
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19. Seen from any angle, we find that the petitioner did not
have any right to seek absorption in any particular school. Even
though the petitioner was directed to be absorbed in the
respondent No. 6-school by order dated 26.07.2016, the
respondent No. 6 school had it's own difficulties in not permitting
him to join the school on account of serious allegations made
against him in the letter dated 29.06.2016 by his previous school.
The petitioner was later absorbed in Ahmedpur school, not as a
Head Master, but as special teacher, which he accepted without
any demur. Under the absorption scheme, the same becomes a
fresh appointment. The petitioner thus got appointed afresh on
16.11.2019 in Ahmedpur school. In absence of any right to get
absorbed in the respondent No. 6-school and having accepted
appointment in Ahmedpur school on a lower post offered vide
order dated 16.11.2019, we are afraid that the petitioner cannot
seek payment of salary in respect of period from 26.07.2016 to
01.12.2019. The decision of the Apex Court in the case of Shobha
Ram Raturi (supra) relied upon by the petitioner has no
application to the present case as the issue involved therein was
about grant of consequential benefits upon setting aside the
order of retirement.
20. We therefore, do not find any merit in the petition. The
petition is dismissed without any orders as to the costs. Rule is
discharged.
[SANDEEP V. MARNE, J.] [MANGESH S. PATIL, J.]
bsb/Oct. 22
