[Cites 2, Cited by 0]
Bombay High Court
Sainath Shikshan Prasarak Mandal ... vs Shri Pawar Yeshwant Bapu And Anr on 18 March, 2026
2026:BHC-AS:13394
Neeta Sawant WP NO. 10422 OF 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10422 OF 2023
Shri. Yashavant Bapu Pawar .....PETITIONER
: VERSUS :
Shri. Amit Chandrakant Khanavare & Ors. ....RESPONDENTS
WITH
WRIT PETITION NO. 827 OF 2015
Sainath Shikshan Prasarak Mandal & Anr. .....PETITIONERS
: VERSUS :
Shri Pawar Yeshwant Bapu & Anr. ....RESPONDENTS
Mr. Y.B. Lengare with Mr. Aditya K. Gaikwad, Mr. Sunny Sadafule, for
Petitioner in WP/10422/2023 & for Respondent in WP/827/2015.
Mr. Laxman S. Deshmukh for Petitioner in WP/827/2015 & for
Respondent in WP/10422/2023.
Ms. S.D. Chipade, AGP for State, Respondent in WP/10422/2023
Ms. V.R. Raje, AGP for State, Respondent in WP/827/2015
CORAM : SANDEEP V. MARNE, J.
Reserved On : 04 March, 2026.
Pronounced On: 18 March, 2026.
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Neeta Sawant WP NO. 10422 OF 2023
Judgment:
1) These two Petitions arise out of order of reinstatement with
full backwages passed by the School Tribunal. The Management has
challenged School Tribunal's judgment and order dated 30 October 2014
directing reinstatement of the Teacher with full backwages with
continuity of service by filing Writ Petition No.827 of 2015. Since no stay
has been granted to the order of the School Tribunal in the Petition filed
by the Management, the order was sought to be executed by the Teacher.
The Executing Court has however, directed payment of amount of
Rs.5,42,321/- to the Teacher towards implementation of order of the
Tribunal. The Teacher is aggrieved by the amount determined by the
Executing Court and claims that the total backwages receivable by him
are to the tune of Rs.57,19,824/- and has accordingly filed Writ Petition
No.10422 of 2023.
2) Briefly stated, facts of the case are that Sainath Shikshan
Prasarak Mandal runs and operates Adarsha Madhyamik Vidyalaya at
Bhigwan, Indapur, District-Pune. At the relevant time the School was
completely unaided. Shri. Yashavant Pawar (Teacher) claims that he
possessed qualification for being appointed as a Teacher and applied in
pursuance of an advertisement issued by the Management. The Teacher
joined the school w.e.f. 13 December 2007 and claims that his
appointment was after following due process of selection and against
permanent sanctioned vacant post. It appears that approval was granted
to the appointment of the Teacher by the Education Officer on 21
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Neeta Sawant WP NO. 10422 OF 2023
February 2008. According to the Teacher, his services were orally
terminated w.e.f. 29 December 2013 and in his place, Smt. Rinku Gavit
was appointed by order dated 31 December 2013.
3) The Teacher filed Appeal No.5 of 2014 before the School
Tribunal, Pune, challenging his 'otherwise termination' effected on 29
December 2013. The Appeal preferred by the Teacher was resisted by the
Management by filing reply. The School Tribunal has proceeded to allow
the Appeal preferred by the Teacher by judgment and order dated 30
October 2014. The Tribunal has set aside termination order dated 29
December 2013 and has directed reinstatement of the Teacher on the
original post with full backwages and continuity of service w.e.f. 29
December 2013. The Management is aggrieved by Tribunal's order dated
30 October 2014 and has accordingly filed Writ Petition No.827 of 2015.
The Petition came to be admitted by this Court vide order dated 4 March
2015 but prayer for interim relief was rejected. It was however, directed
that continuance of Teacher in the school would be subject to final
decision in the Petition and that the Teacher shall not claim any equities.
4) Since this Court refused to stay School Tribunal's order
directing reinstatement with full backwages, the Teacher filed M.A. No.7
of 2016 before the School Tribunal for implementation of order dated 30
October 2014. The said Application was allowed by the Tribunal and by
order dated 4 February 2017, the proceedings were transferred to the Civil
Judge, Senior Division, Baramati for execution of order dated 30 October
2014 passed in Appeal No.5 of 2014. Accordingly, the execution
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Neeta Sawant WP NO. 10422 OF 2023
proceedings were registered as Special Darkhast No.5 of 2017 before Civil
Judge, Senior Division, Baramati. In execution proceedings, Teacher filed
Application at Exhibit-42 seeking reinstatement on original post. The said
Application was however rejected by the Executing Court by order dated
10 December 2021. The Teacher filed Writ Petition No.1134 of 2022 in
which order dated 4 April 2022 was passed setting aside Executing Court's
order dated 10 December 2021. Application at Exhibit-42 was restored by
this Court. This Court also directed Education Officer to calculate the
entire backwages payable to the Teacher. Accordingly, the Education
Officer (Secondary) Zilla Parishad, Pune, computed the backwages in
respect of the Teacher at Rs.46,87,009/- and Dearness Allowance at
Rs.10,01,993/-. The Management challenged decision of the Education
Officer by filing Writ Petition No.9219 of 2022 but withdrew the same on
21 December 2022 with liberty to lodge objection before the Execution
Court.
5) The Teacher filed Application at Exhibit-70 in the execution
proceedings seeking a declaration that termination order dated 29
December 2013 was illegal and seeking direction for reinstatement with
full backwages and continuity w.e.f. 29 December 2013. On the other
hand, the Management filed Application at Exhibit-80 offering to pay
backwages of only Rs.2,54,100/- to the Teacher and prayed for a direction
not to reinstate the Teacher in service. The Management claimed that
Teacher was called upon to report for duties vide five letters dispatched
through RPAD, but he refused to join the duties. The Executing Court
thereafter took up Teacher's remanded Application at Exhibit-42 and
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Neeta Sawant WP NO. 10422 OF 2023
Application at Exhibit-70 as well as Management's Application at Exhibit-
80 for decision. By order dated 21 April 2023, the Executing Court has
partly allowed Application at Exhibit-70 filed by the Teacher and has
rejected Applications at Exhibit-42 filed by the Teacher and at Exhibit-80
filed by the Management. The Executing Court has directed payment of
backwages of only Rs.5,42,321/- for the period from 29 December 2013 to
15 March 2015. It appears that amount of Rs.4,13,000/- was already
deposited by the Management in the Executing Court. The balance
amount was directed to be paid to the Teacher. The Teacher is aggrieved
by order dated 21 April 2023 passed by the Executing Court and has
accordingly filed Writ Petition No.10422 of 2023.
6) By administrative order dated 12 March 2024, Writ Petition
No.827 of 2015 is directed to be heard by Court having assignment of Writ
Petition No.10422 of 2023. Accordingly, both the Petitions are taken up
for analogous hearing.
7) I have heard Mr. Deshmukh, the learned counsel appearing
for the Management, who submits that the School Tribunal has erred in
allowing the Appeal preferred by the Teacher and directing his
reinstatement with full backwages and continuity of service. He submits
that the Teacher was not appointed against any sanctioned vacant post
nor any selection process was conducted before his appointment. He
submits that there were only four posts at the relevant point of time and
all four posts were occupied. That appointment of Teacher was made
against leave vacancy and his services were utilised from time to time as
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Neeta Sawant WP NO. 10422 OF 2023
per requirement and particularly because the Teacher was in the need of
experience. He submits that the Tribunal has grossly erred in drawing
adverse inference to the effect that the appointment of the Teacher was
against the post occupied by Smt. S.M. Potphode, only on account of
refusal of approval in respect of Teacher- Smt. S.M. Potphode. He submits
that Smt. Potphode was subsequently granted approval by the Education
Officer in the year 2009 meaning thereby she continued to occupy the
post. That therefore, no post was available for appointment of the
Teacher. He submits that the Management has not submitted any
proposal for grant of approval to the appointment of the Teacher. That
alleged approval dated 21 February 2008 by the Education Officer is in
absence of any proposal by the Management. He further submits that the
Management was required to recruit Teacher belonging to Scheduled
Tribe (ST) category. That accordingly the post was ultimately filled up by
recruiting Smt. Rinku Gavit belonging to ST Category vide order dated 31
December 2013. That the Teacher was thus occupying position, which was
required to be filled up by ST Category candidate as per roster. He
accordingly submits that there was no regular appointment in respect of
the Teacher and he therefore does not have any right to continue as the
Teacher in the school of the Management. That the School Tribunal has
erroneously assumed that the Teacher was appointed as per rules and
proceeded by drawing mere surmises and conjectures in absence of any
concrete evidence. He submits that the School Tribunal's order dated 30
October 2014 therefore deserves to be set aside.
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Neeta Sawant WP NO. 10422 OF 2023
8) Mr. Deshmukh further submits that once School Tribunal's
order dated 30 October 2014 is set aside, there is no question of payment
of any backwages to the Teacher. Without prejudice, he however submits
that in the event of this Court upholding the order of the School Tribunal,
the same has been complied with by the Management. He submits that
the Executing Court has rightly appreciated the position and has directed
payment of Rs.5,42,321 /- plus annual increment vide order dated 21 April
2023. That the Education Officer has erroneously computed service from
29 December 2013 till his decision dated 20 June 2022 ignoring the
position that the Teacher was already reinstated in service in pursuance
of School Tribunal's order dated 16 March 2015. That the Executing Court
has conducted a factual enquiry about reinstatement of the Teacher w.e.f.
16 March 2015 and has rightly restricted payment of backwages for the
period from 29 December 2013 to 15 March 2015. He would submit that
the Management has already deposited total amount of Rs.5,42,321/-
which has been withdrawn by the Teacher. He submits that therefore Writ
Petition No.10422 of 2023 deserves to be dismissed.
9) Mr. Lengare, the learned counsel appearing for the Teacher
opposes Writ Petition No.827 of 2015 and submits that no interference is
warranted in the School Tribunal's judgment and order dated 30 October
2014. He submits that the Tribunal has rightly appreciated the position
that the Teacher was appointed as per rules and procedures against
sanctioned vacant post. He submits that if appointment of the Teacher
was irregular, the Education Officer would not have granted approval to
his appointment. That the Tribunal has rightly arrived at a conclusion
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that the Teacher was appointed on refusal of proposal of Smt. Potphode.
That the Management played fraud and secured subsequent approval to
appointment of Smt. Potphode on 16 January 2009 even though Teacher's
appointment was already approved on 21 February 2008. He invites my
attention to the averments in the Appeal Memo where the Teacher has
referred to issuance of advertisement by the Management. He further
submits that if the Petitioner was irregular appointee or adhoc appointee,
he would not have continued in the School without any break from 13
December 2007 to 28 December 2013. He submits that services of the
Teacher were illegally terminated for the purpose of accommodation of
Smt. Rinku Gavit. He would therefore submit that the Tribunal has rightly
held the termination to be bad in law. He would pray for dismissal of Writ
Petition No.827 of 2015.
10) So far as Writ Petition No.10422 of 2023 is concerned, Mr.
Lengare submits that the Executing Court has grossly erred in restricting
the backwages to Rs.5,42,321/- That the computations made by the
Executing Court run contrary to the computations of the Education
Officer. He relies on order dated 4 April 2022 passed in Civil Writ Petition
No.1134 of 2022 in support of his contention that the calculations were
made by the Education Officer in pursuance of order passed by this Court.
That the Management unsuccessfully challenged Education Officer's
order in Writ Petition No.9219 of 2022, which was ultimately withdrawn
by the Management on 21 December 2022. He submits that the Executing
Court has erroneously held that the Teacher was reinstated in service on
16 March 2015. That the Teacher has not received any wages after alleged
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Neeta Sawant WP NO. 10422 OF 2023
reinstatement. That he was not allowed to work and farcical show of
reinstatement was created for avoiding payment of backwages. That the
Education Officer has considered this aspect and has refused to believe
the theory of reinstatement. That even if reinstatement from 16 March
2015 is accepted, non-payment of wages is proved. That therefore the
Education Officer has rightly computed backwages of Rs.46,87,009/- for
the period from 29 December 2013 to 31 May 2022. That the Executing
Court has erroneously ignored this aspect while passing impugned order
dated 21 April 2023. He would therefore pray for payment of full
backwages from 29 December 2013, which was to the tune of
Rs.57,19,824/- at the time of filing of the Writ Petition No.10422 of 2023.
Mr. Lengare would accordingly pray for allowing Writ Petition No.10422
of 2023.
11) Rival contentions raised on behalf of the parties now fall for
my consideration.
12) The Tribunal's judgment and order dated 30 October 2014
setting aside the termination and directing reinstatement with full
backwages is under challenge. As against this, Writ Petition No.10422 of
2023 involves challenge to the order passed by the Executing Court
passed while executing Tribunal's order dated 30 October 2014.
Therefore, the decision of Writ Petition No.827 of 2015 would have
substantial bearing on the outcome of Writ Petition No.10422 of 2023. If
the order of the School Tribunal is interfered with, the same would affect
the orders passed in execution proceedings. Accordingly, I proceed to
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examine the impugned judgment and order dated 30 October 2014 passed
by the School Tribunal in Appeal No.5 of 2014.
13) The Teacher was appointed in the school of the Management
vide appointment order dated 12 December 2007. The terms of
appointment are bit confusing. The order states that the appointment was
against leave vacancy and for a period between 13 December 2007 to 13
December 2009 and the appointment was described as temporary. The
appointment order also states that the same was on probation for a period
of 2 years. Therefore, considering the language of the appointment order
it is difficult to record a conclusive finding as to whether it was a regular
appointment on probation or mere temporary engagement against the
leave vacancy.
14) The Tribunal has conducted factual enquiry into availability
of sanctioned posts for appointment of the Teacher. It has recorded
following findings while concluding that there was one sanctioned post
vacant as on 1 November 2007:
17) However, I have carefully scrutinized all the documentary evidence
of both sides. Then it is found that, it is not disputed to both parties
that, there was four posts of Asst. Teachers were sanctioned in the year
2007 But as per the submission of the Respondent that, already those
four posts of Asst. Teachers were filled up at the time of appointment of
the appellant i.e. on 12/12/2007 the names of the teachers are
1. Smt.Jagtap S.H..
II. Smt.Nalawade H.B.,
III. Shri.Chandgude N.N.,
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Neeta Sawant WP NO. 10422 OF 2023
IV. Sau.Potphode S.M.
18) Accordingly, as per the submission of the respondents there was no
vacant post at the time of appointment of the Appellant.
But when I carefully scrutinized all the documents like Appointment
orders, Approvals, Statement-A. Out of these the material and
substantial evidence is of Approval Order of the Respondent
No.3/Education Officer dated 26/10/2007 (Exh.25/1), thereby the
Respondent No.3/Education Officer approved the appointment of 3 Asst.
Teachers like Smt.Jagtap, Smt. Nalawade and Shri.Chandgude on the
vacant post. Their appointment appears in the year 2005-06. But the
important facts which has been noticed by this Court that, the
Respondent No.3/Education Officer passed Remark at the bottom of this
Approval Order that, "Sau. Potphode S.M is Untrained", therefore her
appointment is disapproved rejected". By this vital documentary
evidence it has been proved that, the appointment of Sau.Potphode was
not approved by the Respondent No.3/Education Officer on the said
fourth vacant, sanctioned post as an Asst. Teacher upto 01/11/2007. It
means there was one sanctioned post was vacant on 01/11/2007 as the
qualified teacher or trained teacher was not appointed as per the rule.
29) But there is no such documentary evidence to prove such fact In fact
the continuation of service of the appellant for 6 years is strong
circumstantial evidence thereby it is proved that this appellant was
appointed as per rule and as per procedure, thus probation period was
given. That contention of the appointment letter and indemnity bond
which was taken by appellant are sufficient evidence to prove that he
was appointed by following due procedure of Law on clear, vacant and
permanent post and not appointed as temporary basis. As such decision
in the case of President, Late Shri Ramchandra Patil Shikshan Sanstha,
Kunikonur and others Vs. Hadarali Mahmadhanif Inamdar and another
cited supra is not applicable to the present set of facts.
With this statement/pleading. submissions of the
Respondent/Management are unbelievable here.
30) When all these substantial material facts are proved then further
question arose whether his service is protected? As per undisputed facts
here, this appellant rendered his service from 2009 up to 2013 without
any break or end. Then definitely he accrued right of deemed
permanency under Section 5(2) of the MEPS Act and naturally his service
is being protected U/s. 4(6)of the MEPS Act. Thus it required to follow all
procedure as contemplated in MEPS Act and Rules for terminating
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service of this appellant. So if his service is terminated without following
such procedure and rules then such termination is illegal.
15) I find the above findings recorded by the School Tribunal to
be totally perverse. The Tribunal has drawn a surmise that one post of the
Assistant Teacher must have been vacant because the Education Officer
refused to grant approval to the appointment of Smt. S.M. Potphode. Non
grant of approval is a concept different that the concept of post becoming
vacant. Even if approval is not granted, the same does not mean that the
person occupying the posts gets automatically terminated or he/she
physically vacates the posts. In the present case, the record bears out
that Smt. Potphode continued in service even after non grant of approval
and subsequently the Education Officer granted approval to her appoint
on 16 January 2009. This is clear from the following findings recorded by
the School Tribunal itself in paragraph 21 of the order :-
The other documents vide Exh.25/2 i.e. Approval of the Appointment of
the Appellant dated 21/02/2008 for period of 2007-08 and the Approval
order to the appointment of the Sau. Potphode dated 16/01/2009 for the
period of 2008 to 2009 also not disclosed the name of this Mrs.Jagdale
J.T. as an Asst. Teacher working in the said school as per the
appointment order dated 16/06/2007.
16) The fact that the approval was granted to appoint of Smt. S.M.
Potphode on 16 January 2009 would indicate that she never vacated the
post after initial non-grant of approval on 26 October 2007. Therefore,
the inference or surmise drawn by the School Tribunal about existence of
vacant post as on 1 November 2007 for appointment of the Teacher is
clearly perverse.
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17) It appears that the Tribunal has not conducted any inquiry
into the selection process followed before the appointment of the
Teacher. After the management took a defence that the appointment was
temporary without following due process of selection, the burden was on
the Teacher to prove that his appointment was done after following due
process of selection. Mr. Lengare has invited my attention to following
averments in the Appeal Memo:-
Appellant submits that appellant has passed B.A. Examination as a
special subject Hindi in the year 2005 from Pune University & B.Ed
Examination in the year 2007 from Pune University. Appellant further
submits that respondent/management have published advertisement for
the recruitment of assistant teacher on permanent unaided basis in Daily
Newspaper and as per the advertise, appellant has applied for the post of
assistant teacher. It is further submitted that respondents have taken
interview and selected the appellant in the said interview for the post of
assistant teacher on clear and permanent vacant post.
18) However, not a single document was produced before the
Tribunal in support of the above averments. The Tribunal has also not
expected the Teacher to produce any document to prove conduct of
selection process prior to his appointment. On the contrary, the Tribunal
has proceeded to accept the bald averments of the Teacher that his
appointment was after following due process of selection.
19) In absence of any direct evidence of holding of any selection
process prior to appointment of the Teacher, the Tribunal has drawn a
surmise that the appointment was after following due process of selection
on the basis of so called 'strong circumstantial evidence'. The relevant
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Neeta Sawant WP NO. 10422 OF 2023
findings of the School Tribunal in paragraph 29 of the judgment are as
under:
But there is no such documentary evidence to prove such fact In fact the
continuation of service of the appellant for 6 years is strong
circumstantial evidence thereby it is proved that this appellant was
appointed as per rule and as per procedure, thus probation period was
given.
20) I again find an element of perversity in the findings recorded
by the School Tribunal on the aspect of appointment being made after
following due process of section. Whether selection was conducted or not
is a matter of fact which needs to be proved by producing advertisement,
call letter, etc. There is no question of applicability of concept of
circumstantial evidence for drawl of presumption about holding of
selection process. The Tribunal ought to have expected the Teacher to
produce copy of the advertisement or letter calling him upon to appear in
the interview. Mere continuation of service for 6 years cannot be a ground
for presuming that the appointment must have been after following due
process of selection.
21) Thus, the finding recorded by the School Tribunal on the
aspect of availability of sanctioned vacant post and holding of selection
prior to appointment do not appeal to this Court. At the same time, the
Teacher strenuously relies on approval order dated 21 February 2008
issued by the Education Officer (Secondary) Pune Zilla Parishad. The
Management has sought to wriggle out of approval order by contending
that no proposal was ever sent by the Management for seeking approval
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Neeta Sawant WP NO. 10422 OF 2023
to the appointment of the Teacher. However, beyond raising oral
submission, nothing is placed before this Court for recording a conclusive
finding that the approval order is issued by the Education Officer in
absence of any proposal. Even otherwise, it is difficult to believe that the
Education Officer would issue approval order in absence of approval by
the Management.
22) The approval order dated 21 February 2008 grants approval to
the appointment on 13 December 2007 with a remark 'on vacant post'.
There is one more approval order dated 26 October 2007 in respect of the
other teachers and two staff members, which is also worded in similar
manner. Therefore, the approval order dated 21 February 2008 creates
some degree of presumption in favour of the Teacher that the
appointment was regular in nature. It is a matter of fact that the
Management did not take any steps for revocation of approval order dated
21 February 2008 and continued the services of the Teacher till the year
2013. Thus, while the Teacher failed to prove existence of sanctioned
vacant post and conduct of selection process prior to appointment, the
situation is salvaged to some extent by production of approval order.
23) There is no dispute to the position that the post vacated by
the Teacher after his alleged termination on 29 December 2013 is filled up
by appointment of Smt. Rinku Gavit, ST category candidate vide order
dated 31 December 2013. In the affidavit in reply filed before the School
Tribunal, the Management had raised the following defenses:
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The appointment of the Appellant has been made on temporary basis and
the service of the Appellant has been used by these Respondents as an
additional teacher, especially when the other permanent employee used to
be on leave or absent etc. The service of the Appellant automatically
comes to an end on 12/12/2009 as per appointment order dated
12/12/2007. Thereafter, there was no appointment order given / issued to
the Appellant, as he was working purely on temporary basis as an
additional teacher. The Respondent No. 3 has also given direction to
appoint an employee of S.T. category, and these Respondents have
allowed the Appellant to work as an additional teacher as and when
required, till the appropriate candidate of S.T. category was available for
appointment. Thus, it does not mean that the Appellant was working on
clear, permanent and vacant post. In short, the service of the Appellant
comes to an end in the year 2009, and thereafter there was no
appointment order issued to the Appellant, as he had never worked on
clear, permanent and vacant post. In fact, as stated above, the Appellant
has never been appointed on clear, permanent and vacant post, as there
was no such post available with these Respondents on 13/12/2007.
24) Thus, it was the stand of the Management before the School
Tribunal that the Teacher was permitted to work till availability of ST
category candidate. It appears that the post vacated by the Teacher has
ultimately been filled up by ST category candidate. The Management has
also produced copy of inspection report of the school dated 21 January
2014 indicating sanction of only four posts. The reservation chart
certified by the Assistant Commissioner-Backward Desk is also produced
which shows that out of the said sanctioned 4 posts of Teacher, the two
posts were unreserved, 1 post was reserved for SC category and one post
was reserved for ST category. It is the case of the Management that one
post reserved for ST category is accordingly filled up by appointment of
Smt. Rinku Gavit. The Teacher failed to implead Smt. Gavit as party
respondent to the appeal despite knowing that an order of reinstatement
would clearly affect Smt. Gavit.
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Neeta Sawant WP NO. 10422 OF 2023
25) It is the position taken by the Management that no vacant
post is available in the school for accommodation of the Teacher. It is
pointed out the school has now received 60% grant and cannot employ
any teacher in excess of sanctioned strength.
26) It appears that the Teacher was reinstated in service after
this Court refused to grant interim stay to the School Tribunals order. The
Management has claimed that the Teacher was reinstated in service on 16
March 2015. Though this position is sought to be disputed by Mr.
Lengare, it appears that the Teacher admitted his reinstatement before
the Education Officer when he decided the issue of computation of
backwages. This is clear from the following observations recorded by the
Education Officer in the order dated 20 June 2022 :-
१. मा . शा ळा न्या या धि करण या च्या धि नां क ३०/१०/२०१४ र जी च्या आ शा नांसा र सास्थेनां श्री .
पवा र याशावात या नां धि नां क १६/०३/२०१५ प सा(नां रुजी( करुनां घेतले आहे.
२. श्री . पवा र हे धि नां क ०४/०२/२०१६ प सा(नां शा ळात अनां धि क.तपण गै0रहेजीर असाल्या चे सास्थेचे
म्हेणण असानां श्री . पवा र या नां त मा न्या नां हे . तथे प सास्थेनां सा र ले क ले वा त या क या4लेया कडे
कलेले पत्रव्यावाहे र वा शा लेया हेजीर पत्रक प हेत श्री . पवा र याशावात हे धि नां क ०४/०२/२०१६ प सा(नां
शा ळात क या8रत नांसाल्या चे धि सा(नां यात.
[
३. श्री . पवा र या नां धि नां क १६/०३/२०१५ प सा(नां शा ळानां रुजी( करुनां घेतल्या चे मा न्या कले आहे.
तथे धिप वातनां धिमाळा ले नांसाल्या चे म्हेणण आहे.
27) Thus, the Teacher admitted his reinstatement from 16 March
2015. It is the case of the Management that the Teacher remained
unauthorizedly absent and accordingly was required to be terminated on
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Neeta Sawant WP NO. 10422 OF 2023
15 June 2016. It is not necessary to go into the aspect of alleged
termination effected in the year 2016.
28) The issue for consideration is whether the order passed by
the School Tribunal directing reinstatement with full backwages can be
sustained in the facts and circumstances of the present case where there
is no post available with the Management for accommodation of the
Teacher. As discussed above, the manner in which appointment of the
Teacher is made is not very convincing. He continued in services for
about 6 years and his services were discontinued on 29 December 2013. If
there was no approval order dated 21 February 2008, this Court would
have in fact proceeded to set aside the order passed by the School
Tribunal on the basis of perverse findings recorded by the Tribunal on the
aspects of availability of vacant post and following of process of selection
prior to the appointment. However, reliance by the teacher on approval
order dated 21 February 2008 prevents the Court from setting aside the
order of the School Tribunal in entirety. At the same time, there is no
material on record to reach a conclusive finding that the appointment of
the Teacher was regular and after following due process of selection.
Therefore, it cannot be that production of approval order would absolve
the Teacher of responsibility of proving that the appointment was regular
and after following due process of selection. Considering the above
position, in my view, though termination is found to be wrongful, grant of
relief of reinstatement with full backwages would not be warranted
considering the peculiar facts and circumstances of the present case.
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Neeta Sawant WP NO. 10422 OF 2023
29) This Court also notices the developments that have occurred
after passing of the order of the School Tribunal on 30 October 2014. It
appears that the Management has deposited total amount of
Rs.5,42,321/- which has been withdrawn by the Teacher. The amount of
Rs.4,13,000/- was deposited in pursuance of order passed by the Division
Bench in Writ Petition No.9219 of 2022. After the Executing Court passed
the order, the remaining amount of Rs.1,38,972/- is deposited in the
Executing Court by Demand Draft dated 27 April 2023. This is how total
amount of Rs.5,42,321/- is deposited which is already withdrawn by the
Teacher. Upon a query put by the Court, Mr. Deshmukh fairly admits that
Management was unable to pay full salary to the Teacher after
reinstatement on 16 March 2015. Mr. Deshmukh has shown willingness
to pay further amount of Rs.5,00,000/- towards difference of unpaid salary
during 16 March 2015 till April 2016. Alternatively, a proposal is given by
the Management to reinstate the Teacher in service and show him as
surplus for the purpose of being absorbed by the State Government in
some other school. In my view, however the course of action of treating
the Teacher as surplus would put financial burden on the State
Government, who will have to pay salary and allowances to the Teacher
though the dispute is purely between the Management and the Teacher.
In my view, therefore award of lumpsum compensation to the Teacher
would meet the ends of justice by modifying School Tribunal's order dated
30 October 2014.
30) There is yet another reason why this Court is justified in
awarding lumpsum compensation to the Teacher. Pursuant to School
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Neeta Sawant WP NO. 10422 OF 2023
Tribunal's order dated 30 October 2014, the Management reinstated the
Teacher in services, which is apparent from admission made by him
before the Education Officer during the course of meeting held on 7 June
2022. Thus, School Tribunal's order was implemented by reinstatement
effected on 16 March 2015. Whether the Teacher was paid due salary and
allowances after reinstatement on 16 March 2015 cannot be a subject
matter of execution of Tribunal's order dated 30 October 2014. If the
Teacher was not paid full salary and allowances and was wrongfully
terminated, the same would form a separate cause of action. The
Executing Court has conducted an inquiry and found that the backwages
from the date of termination upto the date of reinstatement (29
December 2013 to 15 March 2015) as only Rs.5,42,321/-. Therefore, even
if the order of the School Tribunal is sustained and executed, all that the
teacher would receive is backwages of Rs.5,42,321/-. The management has
treated him as having been reinstated and terminated again. His spell of
service from 16 March 2015 to 15 June 2016 is not the subject matter of
present litigation. Therefore, he will have to initiate another round of
litigation for claiming salary for the period 16 March 2015 to 15 June
2016. He will have to also file litigation challenging his discontinuation in
June 2016. Thus, the Teacher would remain in continuous state of
litigation when he has already spent 12 long years in litigating in relation
to his earlier order of termination. The School Management does not have
a vacancy for accommodation of the Teacher. This Court is testing the
correctness of Tribunal's order and even if the same is upheld, the
Management is treating the Teacher as having been reinstated and
terminated again. Therefore, this Court cannot, in the present
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Neeta Sawant WP NO. 10422 OF 2023
proceedings, direct his reinstatement in absence of challenge to the
second order of reinstatement. Also, reinstating him only for the purpose
of being declared as surplus would put financial burden on the public
exchequer as State Government will have to bear salary burden from the
date of declaration as surplus. It is also not known as to when the Teacher
will get accommodated in some other school and the place at which his
absorption would be. Over the period of time, the Teacher has also grown
in terms of age. His age in the year 2023 was 42 yrs while filing Writ
Petition No.10422 of 2023. This means that the Teacher has now crossed
the age of 45 years. Sending him to some unknown school at this point of
time is otherwise not in his interest. Therefore, the convenient option of
reinstatement only for the purpose of being declared surplus, suffused by
the Management which suggestion is aimed at not paying anything to
him, cannot be accepted. Instead the Management is required to be
saddled with the liability to pay for compensation for wrongful
termination.
31) Considering the totality of circumstances, in my view, award of
lumpsum compensation of Rs.15 lakhs to the Teacher would meet the
ends of justice. Out of the said amount of Rs.15,00,000/-, the amount of
Rs.5,42,321/- has already been deposited and is apparently withdrawn by
the Teacher. The balance amount of Rs.9,57,679/- shall be paid by the
Management to the Teacher so as to ensure that the total compensation
payable to the Teacher is Rs.15,00,000/-.
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Neeta Sawant WP NO. 10422 OF 2023
32) Since the main order of the Tribunal dated 30 October 2014 is being
modified, the direction for reinstatement, backwages and continuity in
service would get substituted by direction for payment of lump-sum
compensation of Rs.15 lakhs. Therefore, nothing would survive in Writ
Petition No. 10422 of 2023, which is rendered infructuous.
33) I accordingly proceed to pass the following order :
(i) Judgment and order dated 30 October 2014 passed by the School
Tribunal in Appeal No.5 of 2014 is modified by directing that the
Teacher is entitled to receive lumpsum compensation of Rs.15
lakhs from the management in lieu reinstatement and
backwages.
(ii) The Management shall pay to the Teacher balance amount of
compensation of Rs.9,57,679/- within a period of 6 weeks. If the
Teacher does not cooperate in accepting the amount of
compensation, the same shall be deposited by the Management
in the Executing Court with liberty to the Teacher to withdraw
the same.
(iii) Since the order of the School Tribunal is modified, nothing
remains to be adjudicated in the execution proceedings and
accordingly the order dated 21 April 2023 passed by the
Executing Court shall stand substituted by the directions issued
in the present Petitions.
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Neeta Sawant WP NO. 10422 OF 2023
(iv) Nothing survives to be determined in Writ Petition No.10422 of
2023 which is disposed of as infructuous.
34) With the above directions, both the Petitions are disposed of.
There shall be no order as to costs.
[SANDEEP V. MARNE, J.]
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