Govind Phulsing Rathod vs Education Officer (Secondary), ...
2022 Latest Caselaw 8828 Bom

WP 2034-19                                    1                           Judgment

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

                       WRIT PETITION NO. 2034/2019

Govind Phulsing Rathod,
Aged 60 years, Occupation-retired,
R/o Post Gaondgaon, tahsil-Patur,
District-Akola, Maharashtra.                                          PETITIONER

                                   -VERSUS-

1.     Education Officer (Secondary),
       Akola Zilla Parishad, Having his Office at
       Zilla Parishad, Akola, Maharashtra.
2.     Deputy Director of Education,
       Amravati Division, Having his Office at
       Amravati, Maharashtra.
3.     Director of Education,
       Secondary and Higher Secondary,
       Directorate of Education Having his Office at
       Pune, State of Maharashtra.                                  RESPONDENTS

__________________________________________________________________________
             Shri Nihalsingh B. Rathod, counsel for the petitioner.
     Ms Nivedita P. Mehta Assistant Government Pleader for the respondents.


CORAM :      A. S. CHANDURKAR         AND     URMILA JOSHI-PHALKE, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD                  :   25TH JULY,         2022.
DATE ON WHICH JUDGMENT IS PRONOUNCED :                  6   TH
                                                                 SEPTEMBER, 2022.
JUDGMENT       (PER : A.S. CHANDURKAR, J.)

In view of notice for final disposal issued earlier, the learned

counsel for the parties have been heard by issuing RULE and making the

same returnable forthwith.

2. The petitioner was appointed on the post of Peon at the school run

by Dnyankiran Shikshan Prasarak Mandal, Gawandgaon. The said WP 2034-19 2 Judgment

appointment initially was on probation. The services of the petitioner

were thereafter confirmed. By an order dated 22.03.1994 the petitioner's

services came to be approved from 01.07.1992. In proceedings seeking to

de-recognize the school where the petitioner was serving the Deputy

Director of Education, Amravati issued an order on 21.06.1997 thereby

de-recognizing the said school under Clause 7.4 of the Secondary School

Code. This order of de-recognition was challenged by the Management in

Writ Petition No.2233 of 1997. An interim order came to be passed

therein by virtue of which the staff continued in service till 22.06.1998

when the interim order came to be vacated. Subsequently on 10.03.2014

the said writ petition came to be dismissed for want of prosecution.

3. The petitioner alongwith other staff members took steps to seek

absorption of their services in some other educational institution. On

05.04.2010 the Education Officer (Secondary) submitted a report to the

Director of Education, Pune acknowledging the fact that the services of

the petitioner had been approved with effect from 01.07.1992. It was

recommended that the services of the said staff members could be

considered for absorption. Thereafter the Deputy Director of Education

sought further clarification from the Education Officer (Secondary) after

which the Block Education Officer submitted a report on 05.02.2011 to

the Education Officer (Secondary) stating therein that when the

educational institution was de-recognized there were five members of the WP 2034-19 3 Judgment

non-teaching staff whose appointment had been approved but their

services had not been absorbed. There was a communication between the

Authorities and ultimately on 02.07.2011 the Directorate of Education

directed the Deputy Director of Education to act in accordance with the

Circular dated 01.12.1997. As per that Circular, the modalities in which

Rule 25A and Rule 26 of the Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981 (for short, 'the Rules of 1981') were

to operate were stated.

4. Since nothing much was done in the matter, three members of the

non-teaching staff from amongst the five approached this Court in Writ

Petition No.5020 of 2012 seeking the relief of absorption. In those

proceedings, affidavit was filed on behalf of the Authorities stating

therein that the said members of the non-teaching staff were not

responsible for de-recognition of the school and hence they were entitled

to the benefit of Rule 25A(2) of the Rules of 1981. It was also stated in

the subsequent affidavit dated 15.04.2013 in that writ petition that the

orders for absorption of the said petitioners would be shortly passed. The

petitioner alongwith another member of the non-teaching staff filed Writ

Petition No.3562 of 2013 seeking similar relief. In that writ petition this

Court on 18.12.2013 extended the benefit of the directions issued on

19.03.2013 to the petitioners who were similarly placed in Writ Petition

No.5020 of 2012. As a result the name of the present petitioner was also WP 2034-19 4 Judgment

included in the waiting list of employees whose services ought to be

absorbed. The name of the present petitioner was shown at Serial

Number 14 in the said waiting list and subsequently his services have

been absorbed. He accordingly started discharging duties from

13.01.2017. In the aforesaid backdrop, the petitioner has approached

this Court praying that the period from 01.07.1998 to 02.01.2017 be

taken into consideration for the purposes of continuity in service

alongwith all consequential benefits as well as back wages for that period.

The petitioner has since superannuated on 30.06.2017.

5. In the reply filed on behalf of the Education Officer (Secondary) it

has been stated that the name of the petitioner was included in the

waiting list as on 01.01.2014 and subsequently he was joined in a school

from 03.01.2017. By an order dated 07.04.2017 he was granted pay-

scale of Rs.4440-7440 from the date of resuming his duties. The

qualifying services of the petitioner was stated to be 01.07.1992 to

22.08.1998 at Dnyan Kiran Vidyalaya, Gawandgaon and from 03.01.2017

to 31.07.2017 at Ramsing Munsing Naik Vidyalaya, Malsur. This period

was of 6 Years 6 Months 19 Days. It has then been stated that from

01.07.1998 to 02.01.2017 cannot be considered as period spent on duty

on account of de-recognition of the earlier school in terms of the

Government Resolution dated 01.04.2016. It has then been stated that

the petitioner is not entitled for any relief whatsoever.

WP 2034-19 5 Judgment

6. Shri Nihalsingh Rathod, learned counsel for the petitioner referred

to the aforesaid factual aspects and submitted that it was undisputed that

the present petitioner was not responsible for the de-recognition of the

school in question. As a result the provisions of Rule 25A of the Rules of

1981 were applicable. The services of the petitioner had been duly

approved prior to the order of de-recognition and hence after much effort

the petitioner's name was included in the waiting list of similar employees

seeking absorption. The name of the petitioner ought to have been taken

in the waiting list immediately after the interim order in Writ Petition

No.2233 of 1997 was vacated. On account of the delay on the part of the

Authorities his name was included in the waiting list only in the year

2014. The petitioner could not be deprived of the benefit of continuity of

service to enable him to obtain necessary benefits. The learned counsel

placed reliance on the decision in Dattaraj Janraoji Nimkar & Others

Versus Swargiya Sakharamji Shikshan Sanstha & Others [2004(1)

Mh.L.J. 516] to urge that an employee who is permanently retrenched in

view of Rule 25A of the Rules of 1981 was entitled to the protection of his

services. There was no reason to deny the petitioner the benefit of the

period during which he was on the waiting list. He referred to the

various orders passed in the proceedings initiated by the petitioner

including the orders passed in Writ Petition Nos. 3562 of 2013 and 930 of

2016 as well as Contempt Petition No.263 of 2016 to urge that the

petitioner was always pursuing his remedies in law. It was thus submitted WP 2034-19 6 Judgment

that in the light of the provisions of Rule 25A of the Rules of 1981 the

petitioner ought to be granted necessary relief as prayed for.

7. Ms Nivedita Mehta, learned Assistant Government Pleader for

respondents opposed the aforesaid submissions. It was submitted that

since the petitioner had actually discharged duties from 01.07.1992 to

22.08.1998 and thereafter from 03.01.2017 to 31.07.2017 he would be

entitled to seek benefit of service rendered during this period. Since the

petitioner had not discharged any duties in the interregnum he was not

entitled for any monetary relief as well as on account of continuity in

service. It was submitted that the only relief that the petitioner was

entitled to was of absorption of his services and that relief had been

granted to him. She referred to the decision in Gramin Vikas Shikshan Va

Krida Prasarak Mandal, Khadki and another vs. Yamu Narayanrao Bire

and others [2012(3) Mh.L.J. 820] and submitted that the writ petition

was liable to be dismissed.

8. We have heard the learned counsel for the parties and we have

perused the documents on record. The factual aspects involved indicate

that the services of the petitioner of the post of Peon had been approved

from 01.07.1992. On account of de-recognition of the school where he

was serving his services were required to be retrenched. The respondents

have admitted that the provisions of Rule 25A of the Rules of 1981 were WP 2034-19 7 Judgment

applicable and that the petitioner was not responsible for passing of the

order of de-recognition. By initiating various proceedings the petitioner

took steps to have his services absorbed in another school under

provisions of Rule 25A of Rules of 1981. In litigation initiated by other

members of the non-teaching staff from the same institution this Court

has found that the petitioners therein who were entitled to be absorbed in

another institution and there was a delay on the part of the Authorities in

taking necessary steps. The petitioner was also held entitled to similar

relief as was granted to other members of the non-teaching staff.

Ultimately the name of the petitioner was included in the waiting list and

thereafter his services were absorbed from 02.01.2017. The only aspect

to be considered is whether as a consequence of his absorption in another

aided school is the entitlement to the benefits flowing therefrom.

9. At the outset it may be stated that the learned counsel for the

petitioner submitted that the prayer for grant of back wages was not

being pressed by the petitioner. It is also to be noted that in Writ Petition

No.930 of 2016 that was preferred by the petitioner seeking absorption of

his services this Court in the order dated 06.04.2016 has observed that

the petitioner would not be entitled to claim salary for the period after

passing of the order of de-recognition. Reference has been made in that

order to the Government Resolutions dated 14.10.2014 and 21.10.2015.

In that view of the matter, it is clear that the relief of grant of back wages WP 2034-19 8 Judgment

cannot be granted to the petitioner. The Division Bench in Gramin Vikas

Shikshan Va Krida Prasarak Mandal (supra) has also held accordingly.

10. Coming to the aspect of grant of benefit of continuity of service for

the period from passing of the order of de-recognition till the actual order

of absorption in service is concerned it is seen that as per Clause 3 of the

Government Resolution dated 01.04.2016 it has been provided that after

an order of absorption is passed such employee would be entitled to the

benefit of notional increment for the period when the retrenchment of

services was effected till the order of absorption. As per Clause 6 thereof

the break in service can be condoned for the period when the

retrenchment was effected till absorption of services. Such decision was

required to be taken by the Director of Education, Pune.

11. While issuing notice in the writ petition this Court had directed the

respondents to consider the claim of the petitioner in terms of Clause 3 of

the Government Resolution dated 01.04.2016. In affidavit filed on behalf

of the respondent no.1 it has been stated that since the petitioner had not

spent the period from 01.07.1998 to 02.01.2017 on duty on account f the

order of de-recognition his claim could not be considered.

12. We find from the record that though the order of de-recognition

was passed on 21.06.1997, the respondents did not take immediate steps WP 2034-19 9 Judgment

as required under Rule 25A of the Rules of 1981. Despite

recommendation for grant of absorption of services as per report of the

Education Officer (Secondary) on 05.04.2010 no steps in that direction

were taken. The petitioner was required to approach this Court by

initiating various proceedings being Writ Petition Nos. 3562 of 2013 and

916 of 2016 as well as Contempt Petition No.263 of 2016. It is only

thereafter that the name of the petitioner was taken in the waiting list in

the year 2014 and his services were absorbed from 02.01.2017. At no

point of time could the petitioner be blamed for the said state of affairs.

The respondents themselves did not take steps as required under Rule

25A of the Rules of 1981 by including the petitioner's name in the waiting

list. Had the petitioner's name been included in the waiting list in terms

of Rule 25A of the Rules of 1981 shortly after the order of de-recognition

he would not have been required to wait till 2014 for his name to be

included in the waiting list and till 2017 for actual absorption of his

services. Once having found that the case of the petitioner was governed

by the provisions of Rule 25A of the Rules of 1981 it was for the

respondents to have acted in accordance thereto. On account of delay on

the part of the respondents the petitioner cannot be prejudiced. The

names of other similarly situated non-teaching employees from the same

institution which was de-recognised were already absorbed. If the name

of the petitioner would have been taken in the waiting list shortly after

the order of de-recognition, he would have rendered necessary qualifying WP 2034-19 10 Judgment

service to be entitled for pensionary benefits. The break in service for the

period from passing of the order of de-recognition till absorption of his

services can be condoned as the same is provided in the Government

Resolution dated 01.04.2016. This Court in Dattaraj Janraoji Nimkar &

Others (supra) has observed that under Rule 25A of the Rules of 1981 the

protection and privilege to which a permanent employee is entitled to has

been recognized and protected. In that view of the matter, we are

inclined to grant the benefit of continuity of service to the petitioner.

Though the respondents were granted an opportunity to consider the

claim of the petitioner for such relief the same has been refused for no

justifiable reason. We thus find that the petitioner cannot be deprived of

such benefit on account of the inaction on the part of the respondents in

applying the provisions of Rule 25A of the Rules of 1981 to the petitioner.

13. Hence for aforesaid reasons, the following order is passed:-

I) It is held that in terms of the Government Resolution dated 01.04.2016 and especially Clause 3 thereof the break in service for the period from 01.07.1998 to 02.01.2017 stands condoned. This benefit would enable the petitioner to the relief of continuity of service for the purposes of receiving pensionary benefits but except for the grant of back wages.

II) The respondents to take necessary steps in that regard and make available pensionary benefits to the petitioner in accordance with the said Government Resolution within a period of eight weeks from the receipt of copy of this judgment.

WP 2034-19 11 Judgment

14. The writ petition is partly allowed in aforesaid terms with no order

as to costs. Rule accordingly.

       (URMILA JOSHI-PHALKE, J.)         (A.S. CHANDURKAR, J.)

APTE




                                                       Signed By: Digitally signed
                                                       byROHIT DATTATRAYA
                                                       APTE
                                                       Signing Date:07.09.2022 10:29