Partly allowed

Shivaji Vitthal Deshmukh v. the President Bahujan Samaj Prabodhan Shikshan Sanstha Kotul and Ors.

Bombay HC18 Dec 2013WP/2247/2011

Case brief

AI extract

What is this about?

This Bench allowed writ petitions challenging School Tribunal orders rejecting pending regularization appeals. The Court quashed the Tribunal's judgments for ignoring the Management's written statement admissions that petitioners worked 12-18 years. The case was remanded for fresh adjudication.

What did the court decide?

The impugned judgments and orders of the School Tribunal are quashed and set aside. Appeals are remanded for proper adjudication. Respondents directed not to fill posts pending the Tribunal's decision

Shivaji Vitthal Deshmukh Vs the President… — Pension and Retirement Benefits | Bombay HC (2013)

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( 1 ) Writ Petition No.1737 of 2011 and others

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.1737 OF 2011

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Bachhiram S/o.Baburao Jadhav, Age-39 years, Occu-Nil, R/o. At & Post : Pisewadi, Tq.Akole, Dist.Ahmednagar PETITIONER

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VERSUS

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The President, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar

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The Secretary, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar

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The Head Master, Dr.Babasaheb Ambedkar Vidyalaya, Kotul, Tq.Akole, Dist.Ahmednagar

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The Education Officer (Secondary) Zilla Parishad, Ahmednagar RESPONDENTS

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WITH

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WRIT PETITION NO.2247 OF 2011

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Shivaji S/o.Vitthal Deshmukh, Age-45 years, Occu-Nil, R/o. At Post : Kotul, Tq.Akole, Dist.Ahmednagar PETITIONER

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( 2 ) Writ Petition No.1737 of 2011 and others

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VERSUS

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1.	The President,
	Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar
2.	The Secretary, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar
3.	The Head Master, Dr.Babasaheb Ambedkar Vidyalaya, Kotul, Tq.Akole, Dist.Ahmednagar
4.	The Education Officer (Secondary) Zilla Parishad, Ahmednagar RESPONDENTS
	WITH WRIT PETITION NO.2625 OF 2011
Bha	rati W/o.Jayasingh Pansare,
Age-	40 years, Occu-Nil,
R/o.	At & Post : Sugaon,
Tq.A	kole, Dist.Ahmednagar PETITIONER
	VERSUS
1.	The President, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar
2.	The Secretary,
	Bahujan Samaj Prabodhan
	Shikshan Sanstha, Kotul

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	( 3 ) Writ Petition No.1737 of 2011 and others
	Tq.Akole, Dist.Ahmednagar
3.	The Assistant Teacher, Dr.Babasaheb Ambedkar Vidyalaya, Kotul, Tq.Akole, Dist.Ahmednagar
4.	The Education Officer (Secondary) Zilla Parishad, Ahmednagar RESPONDENTS
	WITH WRIT PETITION NO.5532 OF 2011
Bala	saheb Ramchandra Burke,
Age-	40 years, Occu-Service,
R/o.	Kotul, Tq.Akole,
Dist.	Ahmednagar PETITIONER
	VERSUS
1.	The President, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar
2.	The Secretary, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar
3.	The Head Master, Dr.Babasaheb Ambedkar Vidyalaya, Kotul, Tq.Akole, Dist.Ahmednagar
4.	The Education Officer (Secondary)
	Zilla Parishad, Ahmednagar RESPONDENTS

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( 4 )

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Writ Petition No.1737 of 2011 and others

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WITH

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WRIT PETITION NO.5537 OF 2011

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Bhausaheb S/o Nana Gite, Age-45 years, Occu-Service, R/o.Kotul, Tq.Akole, Dist.Ahmednagar PETITIONER

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VERSUS 1. The President, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar 2. The Secretary, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar 3. The Head Master, Dr.Babasaheb Ambedkar Vidyalaya, Kotul, Tq.Akole, Dist.Ahmednagar 4. The Education Officer (Secondary) Zilla Parishad, Ahmednagar RESPONDENTS WITH WRIT PETITION NO.879 OF 2012 Sopan S/o. Namdeo Gholap, Age-47 years, Occu-Service, R/o.Kotul, Tq.Akole, Dist.Ahmednagar PETITIONER VERSUS

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( 5 ) Writ Petition No.1737 of 2011 and others

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1. The President, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar

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1. The Secretary, Bahujan Samaj Prabodhan Shikshan Sanstha, Kotul Tq.Akole, Dist.Ahmednagar

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1. The Head Master, Dr.Babasaheb Ambedkar Vidyalaya, Kotul, Dist.Ahmednagar

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1. The Education Officer (Secondary) Zilla Parishad, Ahmednagar RESPONDENTS

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Mr.L.V.Sangit, Advocate for petitioners in W.P.Nos.1737/2011, 2247/2011 and 2625/2011. Mr.A.M.Gholap, Advocate for petitioners in W.P.Nos.5532/2011, 5537/2011 and 879/2011 Mr.K.M.Suryawanshi, A.G.P. for respondent State. Mr.R.D.Bhalerao, Advocate for respondent Nos. 1 to 3.

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(CORAM : RAVINDRA V.GHUGE, J.)

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DATE : 18/12/2013

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JUDGMENT :

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Rule. Rule made returnable forthwith. With consent of the

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parties, the petitions are taken up for final hearing.

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The petitioners, by these petitions, assailed the judgments and

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( 6 ) Writ Petition No.1737 of 2011 and others

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orders delivered by the School Tribunal in Appeal Nos. 44/2008, 40/2008, 42/2008, 46/2008, 45/2008, 47/2008. This Court has by its judgment dated 18/12/2013 decided the Writ Petition No.

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6092/2011 which is identical to this group of petitions. Since the above said judgment takes stock of sequence of events in para No.3 and since all these petitioners were terminated on the same date i.e. 15/07/2008, the said facts are not being repeated in this judgment. It is only the relevant details that are being set out in this judgment.

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The contentions of the petitioners can be summarized as follows :-

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(a) In 1991, the respondent Management has started the Secondary School at Padalane, Tq. Akole, Dist. Ahmednagar. The school was recognized on non grant basis.

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(b) In 1995, the respondent Management had transferred respondent No. 3 School from village Padalane to village Kotul without prior permission of respondent No.4.

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(c) Respondent No.4 had cancelled the recognition of the School since the Management had transferred the School without permission.

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(d) In 1996, the respondent Management filed Writ Petition No. 99/1996 before this Court challenging the order passed by

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( 7 )

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Writ Petition No.1737 of 2011 and others

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respondent No. 4 cancelling its recognition. This Court granted stay to the impugned order passed by respondent No.4.

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(e) On 01/04/2004, the Writ petition No.99/1996 was disposed of by this Court by consent of the parties with the directions to decide the proposal for transfer of school.

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(f) In 10/04/2008, respondent No.3 has submitted the Inspection report of valuation of the School for considering the issue of grants. The Government after receiving report of inspection sanctioned 100% grants to respondent No. 3 School.

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(g) On 15/07/2008, after sanction of grants the Management has terminated services of the petitioner and 9 other employees orally by refusing work / to sign on the muster roll.

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(h) No opportunity of hearing was given by the Management.

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(i) All the above petitioners preferred their appeals against their common oral termination dated 15/07/2008 u/s. 9 of The M.E.P.S. Act, 1977 before the learned School Tribunal at Solapur.

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(j) By an interim order, the learned School Tribunal protected all the petitioners and their oral termination dated 15/07/2008 was stayed till decision of appeal.

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(h) In 2009, respondent Nos. 1 to 3 have filed writ petition No. 8600/2009 and the group of writ petitions against other employees challenging the orders passed below Exh. 5.

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(i) On 01/07/2009, this Court has disposed of Writ Petition No. 8600/2009 and the group of writ petitions by directing learned School Tribunal to decide the matters within three months and parties were directed to maintain status-quo.

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( 8 ) Writ Petition No.1737 of 2011 and others

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The petitioners /original appellants contend that they were appointed as Assistant Teachers / Lab Attendants / Jr.Clerk / Naik. Their appointment orders are in their petition paper book evidencing that they were initially on probation. Section 5 sub-section 2 of the M.E.P.S.Act, 1977 provides for deemed permanency on completion of 2 years probation if continued thereafter. There can be no dispute so far as this provision is concerned.

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The respondents, in para no.2, 2(a), 2(b), 2(c) and 2(d) of the written statement have made specific contentions which are set out

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in the petition paper book. These paragraphs, according to the petitioners herein, as like the petitioner in W.P.No. 6092/2011, amount to a clear admission of the status of the petitioners and the tenure of their employments.

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The entire issue boils down to whether the School Tribunal

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has considered the specific pleadings / admissions on the part of the respondent/Management in the above said paragraphs of its written statement, while delivering the impugned judgment.

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( 9 ) Writ Petition No.1737 of 2011 and others

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In the light of the pleadings from the written statement of the Management, on the one hand, the respondent / Management admits that the petitioners were working with it for periods ranging from 12 to 18 years, on the other hand, it vehemently contends that they still would not be entitled to the status of “permanency” because signature of the Secretary on the appointment orders is bogus, there was no advertisement published by the Management, the Head Master was supposed to sign on the appointment orders and lastly that the Selection Committee for selecting proper candidates was not formed.

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In the light of the pleadings of the respondents, it is clear that

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it was the respondents' Management which allowed the petitioners to work for the periods ranging from 12 to 18 years and now contends that the petitioners were never employees of the Management, that the petitioners should produce the signature of the Head Master on their appointment orders, they should produce a copy of the advertisement, they should produce their salary registers and on account of having failed to do so, such appointments are termed as a

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back door entry.

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( 10 ) Writ Petition No.1737 of 2011 and others

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The judgment of the Apex Court in case of Secretary, State of

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Karnataka and others Vs. Umadevi and others, reported at AIR

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2006 SC 1806 relied upon by the Management, has not opened a slaughter house. In fact in the said judgment, the Apex Court has concluded that irregular appointments for periods beyond 10 years should be considered favourably and the Management should come up with a scheme for regularising such irregular appointments owing

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to the fact that they are not illegal.

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The Apex Court in para No. 44 of the Umadevi (supra) judgment holds as under :-

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“One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State

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( 11 ) Writ Petition No.1737 of 2011 and others

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Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

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Nowhere in the written statement filed by the

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respondent/Management before the Tribunal has it been contended that the appellants /petitioners herein were otherwise just not eligible to be appointed as an Assistant Teacher /Lab Attendant / Jr. Clerk / Naik.

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There are many such cases which have come up for the

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consideration of this Court. Many managements have taken such a stand while summarily / orally terminating their employees. Careers

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( 12 ) Writ Petition No.1737 of 2011 and others

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/ lives of teachers / employees are being dealt with in a casual

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manner by such Management. In the face of an admission in the written statement that the petitioners are working for years, the Management is now attempting to take advantage of its own wrong by contending after 12 to 18 years that the appointment orders did not carry the signature of the Head Master or that the signature of the Secretary is bogus or that there was no proper selection Committee.

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Having gone through the impugned judgment, it is clear that the learned Tribunal has failed to deal with the said pleadings of the respondent/Management, which are available in the petition paper book. Submissions that the appointments are irregular and the appointments amount to a back door entry have weighed too much upon the mind of the learned Tribunal despite having concluded in the impugned judgments that ‘There is no doubt, that the Appellant has produced number of documents to show that he has worked with

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the R/M.’ In my view, the impugned judgments on this count suffer from a serious legal infirmity and perversity. Such judgments ought not be sustained and are, therefore, being quashed and set aside by this order.

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( 13 ) Writ Petition No.1737 of 2011 and others

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I quote Benjamin N.Cardozo, Associate Justice of the United

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States, Supreme Court, “Judges are supposed to use all this power to make sure that justice is done, that at some basic level the verdicts issued in their courts display a certain degree of reasonableness. The

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Judge, ............ is under a duty, within the limits of his powers of innovation, to maintain a relation between Law and morals, between

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the precepts of jurisprudence and those of reason and good conscience.”

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Therefore, ends of justice would be met if the matters are

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relegated back to the School Tribunal for a proper adjudication. The Tribunal is expected to go through the pleadings of the rival parties and deal with each contention and even the admissions appearing in the written statement. Appreciation of oral and documentary evidence has paramount importance, which the learned Tribunal should bear in mind.

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As such, writ petitions are allowed. Judgment and orders

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impugned in these petitions dated 07/12/2010, passed by the learned School Tribunal in Appeal Nos. 44/2008, 40/2008, 42/2008,

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( 14 ) Writ Petition No.1737 of 2011 and others

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46/2008, 45/2008, 47/2008 respectively are quashed and set aside.

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All these appeals are relegated back to the School Tribunal for proper adjudication, which shall be decided on their own merits and without being influenced by the observations appearing in this order.

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Learned Advocate for the petitioners submits that the appellants / petitioners were protected by way of an interim order by the School Tribunal. The said order came to be modified by the order of this Court dated 01/07/2010 in W.P.No.8744/2009 and a group of

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writ petitions and status-quo was maintained. Para No. 3 of the said

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order makes things clear.

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Learned Advocate for the petitioners contends that during re-

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hearing of the appeals by the learned School Tribunal, the respondent/Management is likely to fill in the posts and that would create further complications in these matters. Learned Adv.Mr.Bhalerao for the respondents submits that they are in need

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of Assistant Teachers / Lab Attendants / Jr.Clerks / Naik and therefore they can not be prevented from recruiting fresh Assistant

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Teachers / employees. I find such contentions falicious.

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( 15 ) Writ Petition No.1737 of 2011 and others

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Nevertheless, the situation can be adequately dealt with. The learned School Tribunal is directed to decide the appeals within a period of six months and preferably by the end of June 2014. Till then, the respondents shall not fill in the post on which the petitioners were earlier working. If filled in, they shall be subject to the outcome of the appeals.

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With these directions, writ petitions are partly allowed. Rule is

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thus made absolute in the above terms.

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khs/Dec.2013/wp6092-11

Shivaji Vitthal Deshmukh v. the President Bahujan Samaj Prabodhan Shikshan Sanstha Kotul and Ors.

Case brief

What is this about?

What did the court decide?

Shivaji Vitthal Deshmukh v. the President Bahujan Samaj Prabodhan Shikshan Sanstha Kotul and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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