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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
MANGESH S. PATIL, SANDEEP V. MARNE, JJ.
Neha D/o Suryakant Bhosale – Appellant
Versus
The State of Maharashtra – Respondent
Writ Petition No. 15280 of 2017
Decided on : 14-10-2022
Surplus Teacher - Absorption Dispute - Rule 26 of MEPS Rules 1981 - The court rejected the petitioner's claim for absorption against the vacancy created by the retirement of another teacher, as there were no vacant posts available. The court also dismissed the petitioner's claim for salary from September 2015 onwards, as she had failed to attend duties without providing a valid reason. The court found no illegality committed by the respondents and dismissed the petition.
Fact of the Case:
The petitioner, a surplus teacher, sought absorption against a vacancy created by the retirement of another teacher and payment of salary from September 2015 onwards. The respondents contended that there were no vacant posts available for absorption and that the petitioner had been absent from duties since September 2015.
Finding of the Court:
The court rejected the petitioner's claim for absorption and payment of salary, as there were no vacant posts available for absorption and the petitioner had failed to attend duties without providing a valid reason.
Issues: Absorption against vacancy, Payment of salary, Alleged prevention from attending duties
Ratio Decidendi: The petitioner's claim for absorption and payment of salary was rejected due to the unavailability of vacant posts and the petitioner's unexplained absence from duties.
Final Decision: The petition was dismissed without any orders as to the costs.
JUDGMENT :
SANDEEP V. MARNE, J.
1. Rule. Made returnable forthwith. With the consent of the learned Advocates for the respective parties, heard finally at the stage of admission.
2. Having been rendered surplus on 29.06.2013, Petitioner is aggrieved by her non absorption. She has sought following prayers in the petition :
C. By issuing appropriate writ of mandamus or any other appropriate writ, order or direction in like nature, respondents may kindly be directed to make a payment of salary of petitioner since September, 2015 till this date in accordance with law as expeditiously as possible.
D. By issuing appropriate writ or mandamus or any other appropriate writ, order or direction in like nature, respondent No. 3-Education Officer, Z.P. Jalna may kindly be directed to take strict action against respondent No. 5 & 6 with regards to non absorption of petitioner and submit the compliance report in the present matter accordingly.”
3. The petitioner was appointed on 26.11.2007 in Dr. Fraser Boy’s Primary School, Jalna, (respondent No. 5-School) which is managed by respondent No. 4 Society. An approval to her appointment was granted vide order dated 17.01.2008 w.e.f. 26.11.2007. By communication dated 29.06.2013, she along with three other Assistant Teachers were informed that they were rendered surplus in accordance with the staffing pattern for the year 2013-14. They were further directed to report the duties in the Respondent No. 5-School.
4. By the order dated 27.01.2014, the Education Officer (Primary) Zilla Parishad, Jalna ordered absorption of the petitioner in C.T.M.K. Gujrati Primary School, Jalna (respondent No. 6-school). Accordingly, respondent No. 5-School relieved her w.e.f. 01.02.2014. However, respondent No. 6-school did not permit her to join duties, which fact was brought to the notice of the Education Officer by her vide letter dated 01.02.2014. Therefore, the Education Officer wrote to respondent No. 5-School to submit her salary bills till further orders. Accordingly by order dated 26.09.2011, respondent No. 4-Management directed her to perform teaching duties in Douglas Girls’ Primary School, Bethal, Jalna w.e.f. 27.09.2014. In the meantime she made correspondence with the Education Officer about the refusal by respondent No. 6-School to permit her to join duties. The Education Officer once again directed respondent No. 4-management to pay wages to her through the offline mode, till her absorption in the other School.
5. The petitioner was once again relieved by respondent No. 5-School, to join respondent No. 6-School by letter dated 16.01.2015, but it appears that respondent No. 6 once again refused to permit her to join. Therefore by letter dated 17.08.2015, respondent No. 5-School directed her to continue performing duties in respondent No. 5-School.
6. It is the case of respondent Nos. 4 and 5 that from September, 2015 the petitioner failed to attend the duties in respondent No. 5-School. This fact was brought to the notice of Education Officer by letter dated 18.09.2015. She was once again called upon to attend the duties by letter dated 16.10.2015 and on account of her failure to do so, intimation to that effect was given to the Education Officer by letter dated 07.01.2016. After long hiatus, she made representation dated 02.12.2017 to that School for payment of salary.
7. One of the Assistant Teachers in respondent No. 5-School Smt. S.S.Ghorpade retired on superannuation on 30.11.2017. The petitioner, therefore, made representation dated 04.12.2017 for her absorption against that vacanc
The court emphasized the importance of valid reasons for absence from duties and the necessity of available vacant posts for absorption.
The requirement of prior approval from the Education Officer for retrenchment under Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 is mandatory, and failu....
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