The Deputy Director Of Education ... vs Smt. Kamal Prabhakar Gonande
2023 Latest Caselaw 10144 Bom

2023:BHC-NAG:14447


                                                              1                                   41-WP 178.2023.odt




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

                                        WRIT PETITION NO. 178 OF 2023
                          THE DEPUTY DIRECTOR OF EDUCATION NAGPUR DIVISION NAGPUR
                                                     VS.
                                       SMT. KAMAL PRABHAKAR GONANDE

         Office Notes, Office Memoranda                           Court's or Judge's orders
         of Coram, Appearances, Court's
         orders      or    directions and
         Registrar's orders


                                            Mr. N. R. Patil, AGP for the petitioner.
                                            Mr. P. N. Shende, Advocate for respondent No.1.

Mr. V. P. Marpakwar, Advocate for respondent Nos.2 and 3.

                                            CORAM :         AVINASH G. GHAROTE J.
                                            DATED :         03rd OCTOBER 2023

Heard Mr. Patil, learned AGP for the petitioner, Mr. Shende, learned counsel for the respondent No.1 and Mr. Marpakwar, learned counsel for the respondent Nos.2 and 3. Though the respondent No.4 is served, none appears.

2. The petition questions the judgment by the learned School Tribunal dated 27/10/2021, by which the appeal filed by the respondent No.1 against her termination dated 31/08/2016 is quashed and set aside (Page 32) and the management was directed to continue the respondent No.1 and the petitioner was directed to declare the respondent No.1 as surplus

KOLHE 2 41-WP 178.2023.odt

and absorbed at any other place in terms of Rule 26 of the MEPS Rules.

3. Mr. Patil, learned AGP takes an exception to the impugned judgment on two grounds that there was no workload, as on account of decrease in the number of students the requirement of the respondent No.1 became unavailable, and it is also contended that since there was another full time teacher available, who has subsequently retired, the question of continuing the respondent No.1 would not arise at all. He also expresses an apprehension that the respondent No.1 may claim entitlement of pensionary benefits, which according to him is also one of the ground for challenge.

4. Mr. Shende, learned counsel for respondent No.1, upon instructions makes a statement that since the respondent No.1 was never a full time teacher, her question of claiming any entitlement of pensionary benefits does not arise at all. That in part addresses the apprehension of the learned AGP for the petitioner, as expressed above.

5. Insofar as the other ground is concerned as indicated above, it would be material to note that the appeal filed by the respondent No.1 before the learned School Tribunal came to be allowed by the

KOLHE 3 41-WP 178.2023.odt

Judgment dated 08/03/2018 challenging the termination. The same was also challenged on the ground that the petitioner herein who was the respondent No.2 therein had never appeared, nor had filed any submission, considering which in order to ensure that there were appropriate submissions on behalf of the petitioner, so that they can be taken into consideration for deciding the claim of the respondent No.1 for setting aside the termination, Writ Petition No. 5229/2018 came to be allowed by the Judgment dated 08/08/2019 with a direction that the present petitioner shall file his reply before the learned School Tribunal, who shall then decide the appeal.

6. It is an admitted position on record that inspite of this order in Writ Petition No.5229/2018, the Deputy Director of Education has not appeared before the learned School Tribunal, due to which the question of filing of submissions/reply on his behalf did not arise at all. This action, is clearly depreciable as in view of the specific direction as contained in Writ Petition No.5229/2018, it was necessary for Deputy Director of Education to have appeared and contested the claim.

7. Needless to say that because of such absence, the grounds of defence which are now KOLHE 4 41-WP 178.2023.odt

sought to be raised, cannot be permitted to be so done, in view of their absence before the learned School Tribunal even for the second time. Neither is there any justification in the present petition regarding the absence of the Deputy Director of Education and the non-filing of the reply before learned School Tribunal. In view of this conduct any loss which may be caused to the State on account of the Judgment of learned School Tribunal, the responsibility of such loss shall have to be fixed upon the person who is responsible for it. The State is therefore directed to initiate an independent Enquiry for the aforesaid purpose, and to ensure that the loss is recovered from the responsible person.

8. Insofar as the merits of the matter is concerned, I am not inclined to remand the matter to the School Tribunal for the second time, for the reason that there is absolutely no whisper/ justification for the absence for the Deputy Director of Education before the School Tribunal upon remand by this Court, in terms of the Judgment in Writ Petition No.5229/2018. Though the rejoinder tries to justify the absence of the Deputy Director of Education before the learned School Tribunal, I am not satisfied with the explaination tendered. It is also not in dispute that respondent No.1 continued to

KOLHE 5 41-WP 178.2023.odt

work with respondent No.2 throughout the duration, may be under the interim orders of this Court, which is why the above enquiry has been directed for fixing the responsibility. I therefore do not see any reason to interfere in the judgment of the School Tribunal, the petition is therefore dismissed. No costs.

JUDGE

Signed by: Mr. Ravikant KOLHE Kolhe Designation: PA To Honourable Judge Date: 04/10/2023 19:32:50