Bombay High Court
Udaram Kashiram Kapgate vs The Education Officer (Primary), Zilla ... on 19 October, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:12057-DB
Judgment 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7215/2023
Udaram Kashiram Kapgate, aged
about 56 years, Occ. Service, r/o
Virshi, post Virshi, Tq. Sakoli,
District Bhandara
.... PETITIONER
// VERSUS //
1. The Education Officer
(Primary), Zilla Parishad,
Bhandara
2. Adarsha Bahu Uddeshiya
Mandal, Bhandara, through its
Secretary Manoj Wadibhasme,
r/o Ambedkar Ward, Bhandara
3. Sant Dnyaneshwar Mauli Prathmik
Shala Earlier Mahesh Prathmik
Shala, Jambhora, Tq. Mohadi
District Bhandara, through its
Headmaster.
4. State of Maharashtra, through its
Secretary, Department of Sports and
School Education, Mantralaya,
Mumbai - 400032
(Amended as per Court's Order
dated 24/06/2024)
.... RESPONDENTS
Judgment 2
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Mrs. R.D. Raskar, Advocate for petitioner.
Shri R.S. Khobragade, Advocate for respondent No. 1.
Shri S.R. Charpe, Advocate for respondent Nos. 2 & 3.
Shri A.V. Palshikar, AGP for respondent No. 4.
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CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATE : 19/10/2024
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
(1) Rule. Rule made returnable forthwith.
(2) Heard finally by consent of learned Counsel
appearing for the parties at the stage of admission.
(3) The petition seeks to quash the communication dated
01/08/2023 (page 106) passed by the respondent No.1, refusing
to grant approval to the petitioner to the post of Assistant
Teacher.
(4) Facts in nutshell are as under :
Petitioner came to be appointed as an Assistant
Teacher on 30/12/1997. There was proposal for age relaxation
sent to the Deputy Director of Education. The Deputy Director of
Education vide letter dated 24/05/1999, permitted the Education
Officer to relax the condition of age, subject to conditions
mentioned in the permission and he came to be appointed as
Assistant Teacher. The respondent No.2 i.e. the Management of
the School issued charge-sheet to the petitioner. The petitioner
came to be terminated from service on 02/11/2004. The
termination was challenged by the petitioner before the School
Tribunal. The School Tribunal allowed the appeal and directed
respondents to reinstate the petitioner vide judgment and order
dated 17/07/2013. The respondent No.2 challenged the said
judgment of the School Tribunal by filing Writ Petition
No.5362/2013. This Court by order dated 07/04/2015, remanded
the matter to the School Tribunal. After remand, vide judgment
dated 31/07/2015, School Tribunal dismissed the appeal. The
said judgment was challenged by the petitioner by filing Writ
Petition No.1623/2016. During the pendency of this petition, an
application came to be filed by the petitioner to respondent No.2-
Society requesting to reinstate the petitioner in the school on
terms and conditions mentioned by the petitioner in application
dated 14/12/2022. By this application, petitioner has undertaken
that he will not claim any arrears of salary from 29/11/2004 till
date, from the Management. After reinstatement, he would
submit the proposal of VRS within three months. After
submission of VRS, Management shall co-operate to process the
paper of pension from the concerned Department. Accordingly,
by passing resolution, he was directed to join at "Bhrushund
Uccha Prathmik Shala, Bhandara". Accordingly, joint
compromise pursis by petitioner and respondent Nos.2 and 3 i.e.
Management and School came to be filed on 23/02/2023. As per
terms of compromise, it is stated that respondent Nos.2 and 3
have already cancelled the termination order of the petitioner
and he is reinstated on 01/01/2023. He will get all the benefits of
continuity of service for the purposes of pension and other
pensionary benefits. He will not claim any arrears from the
Management or its school. It is made clear in the said
compromise term that the reinstatement is subject to the decision
of the Education Officer regarding the approval, Management is
not taking any responsibility of the petitioner, so far as the salary
of the petitioner is concerned. Three months after reinstatement,
the petitioner shall apply for voluntary retirement and
respondent Nos.2 and 3 shall prepare the pension case of the
petitioner and shall send the same to respondent No.4- Education
Officer. In view of this joint pursis, petition stands disposed of in
terms of the settlement.
(5) The petitioner seeking relief by way of this petition
for direction to the Education Officer to consider the proposal for
grant of approval of the petitioner as an Assistant Teacher w.e.f.
01/01/2023 and release all consequential benefits of service. It is
also prayed that the communication dated 01/08/2023 by the
Education Officer to the Secretary of the Management, thereby
rejecting the proposal in respect of petitioner be quashed and set
aside.
(6) Learned Assistant Government Pleader for Education
Officer opposed the petition on the ground that termination of
the petitioner was the result of serious allegation and charges
against the petitioner. After conducting due enquiry, his services
came to be terminated on proven charges.
(7) Our attention is drawn to the order passed by the
School Tribunal, wherein, there is finding that petitioner failed to
prove that impugned termination order dated 29/11/2004 is
illegal, and also recorded a finding that the initial appointment of
the petitioner itself is illegal and it is in violation of Section 5 of
the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act and Rules. The compromise is entered
into between the petitioner and respondent Nos.2 and 3. The
Education Officer was not party/signatory to the said
compromise pursis. Finding in respect of initial appointment
itself, as in violation of Section 5 of the Maharashtra Employees
of Private Schools (Conditions Of Service) Regulation Act will
remain as it is. As such, the decision of the respondent No.1-
Education Officer, not to grant approval is perfectly justified.
(8) It is also contention of the learned Assistant
Government Pleader that it will be highly inappropriate, unfair
and unjustified to make expenditure of public exchequers money
on the employee who was charged with misconduct of obtaining
the employment fraudulently. These charges are duly proved
and termination is upheld by the judicial order. The compromise
between petitioner, Management and School for the payment of
pension or salary or retiral benefit would be from the public
exchequer money, which is not permissible at any cost.
(9) Learned Counsel for petitioner vehemently argued
that the order passed by the School Tribunal merged into the
compromise terms and, therefore, she is entitled for approval on
the basis of compromise terms. She has placed reliance on
Supreme Court on Words and Phrases, wherein, Merger
judgment is explained as under:
" Merger-Judgment. An expression merger of
judgment, order or decision of a court or forum into the
judgment, order or decision of a superior forum is often
employed, as a general rule the judgment or order having
been dealt with by a superior forum and having resulted
in confirmation, reversal or modification, what merges is
the operative part i.e., the mandate or decree issued by the
court which may have been expressed in appositive or
negative form. S. Shanmugavel Nadar v. State of T.N.
and another. (2002) 8 SCC 361."
(10) However, in our considered opinion, the doctrine of
merger will arise only when the judgment or order of the
subordinate Court having being dealt with by the superior forum
and having resulted in confirmation reversal or modification.
Here, the filing of compromise pursis cannot be said to be that
the High Court has dealt with the judgment and order passed by
the School Tribunal, which would result in confirmation, reversal
or modification.
(11) The learned Counsel for petitioner relied on order
passed in Civil Application No. 15280/2017 in Writ Petition No.
2284/2013 dated 15/03/2019, passed by this Court Bench at
Aurangabad, which in fact, not supporting to the petitioner. The
said application is filed for restoration of writ petition with the
grievance that the Management is not acting upon compromise.
The Court held that the applicant, original appellant would be at
liberty to execute the judgment of the School Tribunal (wherein it
was in favour of the appellant) or the compromise deed as the
case may be, by initiating appropriate proceedings for execution
of the said order under Section 13 of the Maharashtra Employees
of Private Schools (Conditions of Service) Regulation Act. It is
also contention of the petitioner that departmental enquiry was
on bogus charges and that is the only reason on which the
Management felt the need to reinstate an employee like the
petitioner by scrapping all the charges levelled against the
petitioner. In fact, in our considered opinion, there is no
resolution taking back the termination or exonerating petitioner
from the charges. However, it appears that his request for
reinstatement is considered only on the basis of application made
by the petitioner, wherein, he has undertaken not to claim any
arrears against Management and would take VRS after three
months of reinstatement. Most important aspect is that Education
Officer was not the party to this compromise. Petitioner's
application is considered only on the basis of his request in
application, wherein, he has undertaken not to claim any arrears
against Management and would take VRS after three months of
reinstatement. As such, these terms are not binding on the
Education Officer and we also find substance in the contention of
the Education Officer that in view of the finding recorded by the
School Tribunal, which is not set aside by any order of the
superior Court would hold the field. In this background, there
cannot be any approval for continuity of service of twenty years
nor pensionery benefits without performing any work during
that period cannot be sustained in the eye of law. As such, there
is no merit in the petition. Accordingly Writ Petition stands
dismissed. Rule discharged. No order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Jayashree..
Signed by: Mrs. Jayashree Pethe
Designation: PA To Honourable Judge
Date: 24/10/2024 18:31:12
