Remanded

Shilpa Dattatraya Shirodkar v. Kelkar Education Trust and 5 Ors.

Bombay HC11 Feb 2013WP/471/2013

Case brief

AI extract

What is this about?

The High Court of Bombay quashed the School Tribunal's order dismissing a lecturer's termination appeal due to failure to examine the post's reservation status at the time of termination, remanding the matter for fresh consideration.

What did the court decide?

The impugned order of the College Tribunal in Appeal No.14 of 2012 is quashed and set aside; the appeal is remanded back to the College Tribunal for fresh decision.

Shilpa Dattatraya Shirodkar Vs Kelkar… — Pension and Retirement Benefits | Bombay HC (2013)

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Sequeira

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION LODGING NO. 2797 OF 2012.

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Ms Shilpa Dattatraya Shirodkar .. Petitioner Vs Kelkar Education Trust & ors. .. Respondents

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Mr.Sunil Dighe, for petitioner.

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Mr.M.V.Joglekar i/by Mr Rahul D.Oak, for respondents No.1, 2 & 3. Ms.Sindha Sreedharan, AGP, for respondents No.4 & 6.

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CORAM: N.M.JAMDAR, J. Monday 11 February, 2013

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P.C.:

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By this petition the petitioner challenges the order passed by the Presiding Officer School Tribunal Mumbai, in Appeal No.14 of 2012. By the impugned order the appeal filed by the petitioner challenging her termination was dismissed.

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On 17 December 2012 this Court was pleased to issue notice to the respondents. The office certified that the respondents have been served. The learned counsel for the respondents No.1 to 3 and the learned AGP have filed their respective replies.

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It is submitted that the petitioner belongs to 'open category' and she was appointed from time to time as lecturer in subject of Chemistry. By order dated 29 March 2012, the petitioner was terminated from service

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as her appointment was against reserved post and the college had to clear backlog of appointments to be made against the reserved post. The petitioner in the appeal filed before the College Tribunal had made a grievance that the post she had occupied was not reserved and the management had not kept the roster properly. The petitioner in the appeal also filed written submissions in which the petitioner pointed out that there was in fact, excess reservation, more than 52 per cent, and the petitioner should have been appointed against the open category and could not have been shown against the reserved category. The appeal came to be dismissed holding that post which the petitioner was holding was against the reserved post and since the petitioner belongs to open category, the order of termination is valid. Thereafter the petitioner filed the present petition.

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It is informed that during the pendency of the present petition the respondent / management appointed respondent No.5 Mrs.Saraswati Dubey on purely temporary basis subject to the outcome of the present petition. Respondent no.5 has not appeared even though served.

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The learned counsel for the petitioner submits that the management and the Government have accepted that, as on today there is no reservation for the post of full time teacher for Chemistry in the respondent college. He contends that in fact, even when the petitioner was terminated there was no such reservation. The learned counsel for the petitioner makes a grievance that this submission is not at all considered by the School Tribunal, even though it was taken up. The learned counsel for the petitioner submits that since the post is now admittedly belonging to 'open category' even though the respondent No.5 presently holds the post,

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her appointment is subsequent to the appointment of the petitioner, the petitioner will have a preference over the claim of the respondent No.5.

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I have gone through the impugned judgment of the School Tribunal. Though the learned Presiding officer makes a reference to the written notes of arguments of the petitioner, the point raised by the petitioner that as per the roster post of the petitioner could not have been reserved, is not at all considered. As of today as per the management and the Government, the post of full time teacher in Chemistry is an open category post. The factual position as on the date of the order of termination will have to be considered by the School Tribunal by analysing the roster. This exercise has not been done by the Tribunal. These facts will have to be considered by the Court of first instance and cannot be considered for the first time in the Writ Petition. Faced with this position the learned counsel for the parties agree that on this short ground itself the impugned order be set aside and the matter be remanded back to the College Tribunal for decision.

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In view of this position, the order passed by the College Tribunal in appeal No.14 of 2012 dated 1 August 2012 is quashed and set aside and the appeal is remanded back to the College Tribunal. The College Tribunal shall consider the roster produced by the management, and the contention of the petitioner that the date on which the termination order was passed, the post could not have been considered as reserved. The Tribunal will also consider the subsequent events namely, that the management and Government have taken a stand that now the post is open category post. In view of the fact that respondent No.5 is appointed as a full time lecturer in Chemistry, during the pendency of this petition subject

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to the outcome of this petition, the petitioner will make respondent No.5 as party to the appeal and pray for necessary amendments. The College Tribunal will endeavor to dispose of the appeal within a period of six months. Petition is disposed of in above terms.

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N.M.JAMDAR, J.

Shilpa Dattatraya Shirodkar v. Kelkar Education Trust and 5 Ors.

Case brief

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Shilpa Dattatraya Shirodkar v. Kelkar Education Trust and 5 Ors.

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