Bombay High Court
Prabhakar Jaihindrao Wakle vs The District Social Welfare Officer ... on 30 July, 2025
2025:BHC-AUG:20365
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1970 OF 2008
Prabhakar s /o Jaihindrao Wakle
age 30 years, occ. Service (Presently nil),
R/o Yevari, Post Mangrul,
Taluka Jalkot, District Latur. .. Petitioner
VERSUS
1. The District Social Welfare Officer
Latur, District Latur.
2. The Secretary,
Tirupati Shikshan Prasarak Mandal,
Hipparga (Kajal), Taluka Ammedpur
District Latur.
3. The Head Master
Sudhakarraoji Naik Prathamik Ashram
Shala, Tulshiram Tanda,
Taluka Ahmedpur, District Latur. .. Respondents
Mr. V. D. Gunale, Advocate for the Petitioner.
Mr. R. R. Tandale, AGP for the State.
Mr. K. V. Patil, Advocate holding for Mr. S. R. Barlinge, Advocate for
Respondent Nos. 2 and 3.
CORAM : R. M. JOSHI, J.
RESERVED ON : 24th JULY, 2025.
PRONOUNCED ON : 30th JULY, 2025.
JUDGMENT :
1. This Petition takes exception to the order passed by the
Divisional Social Welfare Officer, Latur in Appeal No. 5/2005 dated
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25.09.2007 and 25.08.2008 whereby the Petitioner's Appeal came to
be dismissed.
2. The facts which led to filing of the Petition can be
narrated in brief as under :-
It is the case of the Petitioner that he is qualified as B.A.
BP Ed. and is eligible for being appointed as Assistant Teacher in a
school. He was appointed as Assistant Teacher on 14.08.1999 in
Respondent No. 2-School which is undisputedly a primary Ashram
school. The appointment was approved by Respondent No. 1-Social
Welfare Officer for the academic year 1999-2000. It is further
claimed that his appointment was also approved for subsequent
academic years till 2004-2005. According to the Petitioner,
Respondent No. 3 is a Ashram School is governed by the Ashram
School Code. He claims that at the time of his appointment in the
school for the academic year 1999-2000, he was the only teacher
having requisite qualification. It is further claimed that the other
assistant teachers to whom approval has been granted were qualified
as HSC. It is also sought to be contended by the Petitioner that on
12.06.2002, Mr. Fulaji Devkate having qualification of BA BP Ed. was
appointed in Respondent No. 3/school after the appointment of
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Petitioner. He, however, was treated as permanent employee and all
benefits of permanency were extended to him. Petitioner claims that
in the academic year 2004-2005, he was declared as surplus teacher
and his absorption was directed in other school. This, according to
him, indicates that he was permanent teacher. Petitioner has also
made allegations against Respondent No. 3/school with regard to
obtainment of grants etc. It is claimed by the Petitioner that since
complaints were made in respect of the same, they were terminated
by impugned termination order dated 29.04.2005. It is claimed that
since the Petitioner along with other terminated employees was
declared as surplus employee and was undergoing process of
absorption in other school, the management had no authority to
terminate their services. Said termination is claimed to be illegal and
hence Appeal was filed before Respondent No. 1 being Appeal No.
5/2007. By impugned judgment dated 25.09.2007, Respondent No.
1 quashed and set aside the impugned order of termination in respect
of the other employees except present Petitioner. A grievance is also
made that re-instaement has been granted to one of the employees
who was not even appellant in the said Appeal.
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3. During the pendency of the Petition, on the basis of
representation made by the Petitioner, order dated 25.08.2008 came
to be passed holding that since the Petitioner was appointed as a
temporary teacher, he cannot be declared as surplus and hence on
that ground the Appeal came to be dismissed. This order also is
sought to be challenged by amending the Petition.
4. Respondents filed affidavit-in-reply denying the
contentions and allegations made by the Petitioner. It is the case of
the Respondents that the Petitioner was appointed temporarily and
after the strength of the students was reduced, he could not be
continued in service. It is further claimed that approval was granted
to the appointment of Petitioner for a particular year and hence he
cannot be said to be a permanent teacher.
5. Learned counsel for the Petitioner submits that the
appellate authority has committed error in not granting relief to the
Petitioner though the Petitioner and the other appellants have made
out a case for setting aside the impugned termination. By drawing
attention of the Court to the order dated 25.09.2007, it is contended
that the authority has wrongly granted relief in favour of a person
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who was not even appellant in the Appeal. This, according to him,
indicates that the order in question has been passed in casual
manner. He further argued that one of the teachers Devkate who
was having similar qualification as held by the Petitioner, was
appointed after the appointment of Petitioner however, he was given
status of permanency and on that count his Appeal came to be
allowed. It is his submission that there was absolutely no
justification to cause discrimination between Petitioner and other
appellants before the authority. It is his further submission that the
Petitioner was already held surplus and was under the process of
absorption in other school and as such, it was not open for the
management to terminate his services. He also makes a grievance
that the Petitioner was not sent for training/acquisition of requisite
qualification inspite of there being such direction in G.R. dated
10.10.2000. Lerned counsel for the Petitioner has drawn attention of
the Court to Rule 28 of the MEPS Rules 1981, in order to submit that
in any case termination of Petitioner could not have been effected
without giving one month notice. According to him, even after
representation was made to the appellate authority, the appellate
authority though has passed order dated 25.08.2008, even then, the
facts of the case are not considered in true spirit and this has led to
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mis-carriage of justice. It is his submission that Petitioner has
crossed the age limit to get another employment in any school and
considering this amongst other grounds, the Petition be allowed.
6. Learned AGP and learned counsel for Respondent No.
3/school supported the impugned order. Learned AGP drew
attention of the Court to G.R. dated 10.10.2000 which applies to
primary Ashram schools. It is her contention that the said GR would
apply only to the teachers who are approved as per the roster and
that they should not be additional. Thus, it is her contention that
since the Petitioner was not a permanent employee, there was no
question of said GR being applicable to him. It is further argued that
termination of Petitioner and others was not on account of any
misconduct but it was a consequence of non-acquisition of requisite
qualification. It is argued that there is no discrimination done with
the Petitioner however, as his appeal came to be rejected for the
reason that except for the Petitioner, others were found to be
permanent employees. It is also pointed out that even as of today,
Petitioner has not acquired the requisite qualification of D.Ed. On
this amongst other grounds, the Petition is sought to be dismissed.
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7. At the outset, it would be relevant to take note of the
Judgments of Division Bench of this Court in the cases of Anna
Manikrao Pethe and Priyadarshini Education Trust (supra). In
the case of Anna Pethe, it is held as under :
"15. While disposing of this petition, we deem it appropriate
to observe that when such applications under Section 9 of
the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act,1977 are filed before the School
Tribunals by the teachers challenging any act of termination
on the part of the management, it will be necessary for the
Tribunal to frame and decide three preliminary issues, viz.,
whether the school was a recognized school as defined
under the MEPS Act; whether the appointment of the
concerned teacher was made as per Section 5 of the MEPS
Act and the Rules thereunder; and whether such an
appointment has been approved by the Education Officer in
pursuance of the provisions of the Act as well as the rules
framed thereunder including the Government resolutions
issued from time to time regarding reservations, etc. These
preliminary points are required to be framed and decided
before the appeal proceeds on merits and even if such points
are not raised by any of the parties to the appeal, it would be
proper on the part of the Tribunal to frame such issues suo
motu before examining the merits of the case. In case the
findings to any of the preliminary issues are in the negative,
the appeal must fail then and there itself, so far as the relief
of reinstatement/continuation in service is concerned."
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8. No doubt Full Bench of this Court in case of St. Ulai
High School (supra) has not confirmed the requirement of approval
of Education Officer as pre-condition. However, in view of specific
finding of Divisional Bench on first two aspects that in case the
findings to any preliminary issues are in negative, appeal must fail,
so far as relief of reinstatement is concerned. This Court finds no
reason for not applying these principles in the present case.
9. In view of above position of law, before granting any relief
of reinstatement, it must be shown that School is recognized and that
appointment of the teacher has been made in accordance with Rules.
The teacher, therefore, needs to show at first instance that the
appointment has been made by following due procedure laid down
therein. Needless to say that initial burden would be on the teacher
to prove the said case.
10. Apart from the fact that no such claim was made before
the appellate authority and even before this Court, there is nothing to
indicate that appointment of Petitioner was made by following due
recruitment procedure.
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11. At this stage, it needs to be recorded that initially the
Petitioner has raised a grievance with regard to the appellate
authority not having passed any specific order to his extent. The
record further indicates that thereafter the appellate authority was
moved by the Petitioner. After hearing the Petitioner, further order
came to be passed on 25.08.2008. The said order is duly challenged
in this Petition by carrying out amendment to the Petition. Having
regard to the fact that subsequent order has been passed by the
authority, now it cannot be said that the issue pertaining to the
Petitioner was not considered and decided by the appellate authority.
12. There is no dispute about the fact that the Petitioner was
appointed for academic years from 1999-2000. Approvals were
granted for such fixed period of appointment. As against this, other
appellants in Appeal No. 5/2005 were permanent employees of the
school. Since it is now sought to be argued that discrimination has
been caused against Petitioner, it would be relevant to take into
consideration the appeal memo filed before the authority taking
exception to the order of termination. Perusal of said appeal memo
indicates that it was a case of all eight appellants that they are
permanent employees. It is specifically so stated in the appeal memo.
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During the course of hearing, however, it was revealed that except
Petitioner, all other appellants are permanent teachers. Petitioner
was found to have been appointed as temporary. Appeal memo
claims that termination of their services has been done in defiance of
the rules. If it is accepted that appointment of Petitioner was for
specific/fixed academic year and that he was temporarily appointed,
Rule 28 of the MEPS Rules contemplates issuance of one month
notice to the Petitioner before termination of his services. Perusal of
termination order dated 29.04.2005 indicates that termination was
effected from 31.05.2005. It is thus clear that one month notice was
duly served upon the Petitioner before terminating his services. It is
not the case of the Petitioner that he was terminated for any mis-
conduct nor it can be said so on the basis of the available material on
record including the order of termination. Termination has been
effected only for the reason that other employees have not acquired
requisite qualification to work as a teacher in the school.
13. As far as non-acquisition of requisite qualification and its
effect on continuation of employment is concerned, it would be
relevant to take note of Government Resolution dated 10.10.2000,
which holds the field. Vide Government Resolution dated 10.10.2000
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time was extended for the untrained teachers to acquire requisite
qualification. This Government Resolution applies to the primary
Ashram schools. The said Government Resolution, however,
specifically provides for its application to the teachers whose
appointment is approved and that such appointment is in accordance
with the roster. It further says that as on the date of appointment of
a candidate he ought to have acquired the qualification of D.Ed. As
far as present Petitioner is concerned, he claims that he had
qualification of B.P. Ed. And it s claimed that it is equivalent to D.Ed.
In order to support said submission, reference is made to Rule 2(1)(i)
& 6 read with Schedule B of MEPS Rules, 1981. A careful perusal of
the said schedule indicates that Clause II thereof would apply to the
secondary school and not to a primary school. Admittedly, in the
instant case, the Ashram school in which the Petitioner was
appointed is a primary school. Thus, the said rule would have no
application to the instant case.
14. Though it is sought to be canvassed now that similarly
placed employees are granted benefit of the above Government
Resolution and discrimination is caused against the Petitioner,
however, there is a clear distinction in the nature of appointment of
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Petitioner as compared to others. Admittedly, all other employees
were permanent employees whereas the Petitioner was temporary
teacher. Learned counsel for the Petitioner has attempted to draw
attention of the Court to the appointment of one Devkar to claim that
he ought not to have been made permanent in the employment. This
submission cannot be taken into consideration for the simple reason
that there is no challenge to the order passed by the appellate
authority in favour of other appellants therein. The challenge in this
Petition is restricted to non-grant of same benefits to the Petitioner. It
would be therefore beyond the scope of this Petition to consider the
said submission. Suffice it to say that all appellants except Petitioner
in the said appeal were permanent employees whereas the Petitioner
was not.
15. Now question arises as to whether it is a case of
discrimination regardless of merit. There could have been substance
in the said allegation provided that all appellants were on equal
footing. Once it is held that the other appellants were regular
employees and the Petitioner herein was temporary, question of this
being called as discrimination would not arise.
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16. The law on the point of re-instatement of an employee is
clearly settled to say that at the first instance the employee is
required to show that his appointment is in accordance with the
rules framed under the Act and that only after establishing that his
appointment is by following the due procedure of recruitment, he
would not be entitled to seek re-instatement.
17. Needless to say that termination in question is not
punitive and hence question of conducting of any enquiry before
termination does not arise. The order of termination clearly indicates
that it was duly communicated to the Petitioner when for want of
acquisition of requisite qualification within reasonable time his
services stand terminated with effect from 31.05.2005. If the reason
for termination was incorrect and that the Petitioner had already
acquired the requisite qualification, it was open for him to intimate so
to the management which has not been done by the Petitioner.
Moreso, even as of date, the Petitioner is not having the requisite
qualification of D.Ed in order to get appointment as a qualified
teacher in the school.
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18. The above discussion leads to the conclusion that the
Petition is sans merit. Since the order impugned cannot be termed
as perverse, this Court finds no reason to cause interference therein.
Hence, Petition stands dismissed.
19. Rule discharged.
( R. M. JOSHI)
Judge
dyb
