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In the High Court of Bombay at Aurangabad
NARESH H. PATIL & A.B. CHAUDHARI, JJ.
Sadhana Janardhan Jadhav
Versus
Pratibha Patil Mahila Mahamandal & Others
LETTERS PATENT APPEAL NO.149 OF 2012 IN WRIT PETITION NO.8531 OF 2009
Decided on : 05-12-2012
LPA, filed against order of Single Judge passed under Articles 226 and 227 of Constitution, issuing certain directions, is maintainable. - As to the preliminary objection, about maintainability of the appeal, there is no need to refer the arguments advanced by the counsel for respondent No 4, in view of the decision of the Full Bench of the Court in the case of Advani, 2011 (3) All MR 564, Court reject the preliminary objection raised by the respondent No. 4. Even otherwise writ petition was filed Articles 226 and 227 of the Constitution and the Single Judge exercised power under Article 226 by issuing certain directions as well.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Section 5 - Constitution of India - Article 311 - Back wages.
Since appellant is entitled to continuity in service without monetary benefits hence as 9 years have passed, only 10% back wages to be awarded. - It is true that the appellant has succeeded in the instant appeal, change of legal position has resulted into the issue being resolved in her favour. Court is, therefore, not inclined to grant back wages to the appellant to any higher extent and suffice it to say that since the appellant is entitled to only continuity of service without monetary benefits, ends of justice would sub-serve, if only 10% of the back wages are awarded to her Looking to the number of years that have passed, i.e. 9 years.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Section 5 - Constitution of India, Article 311 - Reinstatement.
Appellant, who is entitled to be reinstated on post, cannot be deprived of it, subject to result of litigation. - It is not in dispute that the appointment of respondent No. 4 was made in place of the appellant, who was before the School Tribunal after termination of her services and the respondent No. 4 was a party to the appeal filed by her. It is also not in dispute that the appellant was appointed in the year 2000 while the respondent No. 4 was appointed in the year 2003 in her place. In the light of the principles of lis pendens and merely because some years have passed after the appointment of respondent No. 4, the appellant, who was entitled to her post, cannot be deprived of the post that was occupied by respondent No. 4 subject to result of the litigation. In our opinion, single Judge has done exactly the opposite. In Para 7 of the operative part of the judgment, the single Judge ought to have, after quashing the impugned order of the Tribunal, directed reinstatement of the appellant and directed the Education Officer to declare the respondent No. 4 as surplus for being absorbed in any other institution as per the vacancy and in accordance with law.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Section 5 - Constitution of India, Article 311 - Termination of Services.
Dismissal of appeal by Tribunal against order of termination holding appointment is not in accordance with Section 5 of Act, unjustified. - School Tribunal have been adopting short cut method of dismissing appeals on ground that appointment was not made as per Section 5 to earn disposal of cases at their credit, which not only causes serious injustice to party but gives rise to multiplicity of proceedings. Approach of Tribunal framing preliminary issue as to whether appointment was as per Section 5 and dismissing appeal on that ground does not deserve to be upheld.
Maharashtra Employees Private School (Conditions of Service) Regulation Act, 1978 - Section 5 - Constitution of India, Article 311 - Termination of Services.
Where appellant had higher qualification than advertised for post therefore appointment of appellant being in accordance with Section 5 of Act, is legal and valid. - Tribunal has recorded finding that refusal of approval by Education Officer did not render appointment of appellant invalid in consonance with Full Bench decision in 2007 (1) Mh LJ 597. Therefore submission that appellant did not discharge initial burden of proof is liable to be rejected. 2007(2) All MR 933 (SC) Rel. on.
A.B. Chaudhari, J.
1) Admit. Taken up for final hearing by consent of learned Counsel for the parties.
2) This intra-court appeal is directed against the judgment and order dated 20th September, 2011 passed by the learned Single Judge of this Court in Writ Petition No.8531 of 2009, refusing relief of reinstatement to the appellant.
FACTS
3) The appellant, who belongs to scheduled caste, was appointed on 1st August, 2000 to teach 5th to 7th Std. Students in the school run by Respondent No.2-management. She continued to work till 31st January, 2003, but by order dated 31st January, 2003, her services were terminated retrospectively w.e.f. 8th April, 2002 by Head Master of Respondent No.2-school.
4) The appellant is M.A.B.Ed. According to her, the termination was effected under the signature of the Headmaster without decision of the management to do so. In this appeal, she prayed for reinstatement with continuity in service and back wages.
5) The management filed its reply to the appeal before the School Tribunal and contended that the appellant had worked for only one year and she herself had given an undertaking, agreeing with all the terms and conditions mentioned therein which was binding on her. The reason for termination of the services of the appellant, according to the management, was that she possessed M.A.B.Ed., the higher qualification, and not D.Ed., as found by the Education officer while rejecting approval to the appointment of the appellant and her services thus were rightly terminated on that ground.
6) Before the Tribunal, the Education officer filed his reply dated 25.2.2005 to the appeal and stated that the only reason for not approving the appointment of the appellant was that she was possessing M.A.B.Ed qualification and she was appointed on the scale of D.Ed. Teacher.
7) The School Tribunal heard both the parties and finally held that the appointment of the appellant was not in accordance with Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, MEPS Act) and thus dismissed the appeal.
“Aggrieved by the order of School Tribunal, the appellant/petitioner filed the writ petition, which came to be disposed of by learned Single Judge with certain directions. Hence, the present LPA.”
8) In support of the appeal, learned Counsel for the appellant made the following submissions :
(i) The School Tribunal has recorded a clear finding in para 9 of its judgment that the appellant was appointed on a post meant for Trained Graduate teacher quota, which is commonly known as "25% Graduate Quota" and, therefore, even if she holds M.A.B.Ed. Qualification, the same was correct and requisite qualification. According to the appellant, despite recording such a finding, the School Tribunal held that the appointment of the appellant was not as per Section 5 of the MEPS Act, because the appellant did not produce the advertisement before she was appointed, which was not even the stand taken either by the management or the Education Officer and the said finding has been recorded without any basis.
(ii) The counsel then contended that mere refusal by the Education officer to grant approval to the appointment of the appellant did not lead to her appointment becoming invalid.
(iii) The Counsel then argued that the learned Single Judge confirmed the finding that the appellant was appointed in a permanent and clear vacant post meant for scheduled caste and since she belongs to scheduled caste, the appointment was legal and proper.
(iv) Though the learned Single Judge recorded a finding in favour of the appellant, she has been denied the relief only on the ground that respondent no.4 in her place was working since 2003 and, therefore, it would be inappropriate even to unsettle him. That is contrary to the principles of lispendens.
(v) Replying the arguments regarding maintainability of the appeal, the counsel for the appellant relied on the decision of the Full bench
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