Bombay High Court
Parimal Son Of Hanumant Dhopte vs Mahekar Education Society Of Mehekar on 15 January, 2014
Author: A.B.Chaudhari
Bench: A.B.Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
...
WRIT PETITION NO. 1183 /2000
Parimal son of Hanumant Dhopte
Aged about 28 years, occu: NIL
resident of "Parimal Nivas"
Vishnuwadi, Buldana,
Dist. Buldana. ...PETITIONER
v e r s u s
1) Mahekar Education Society of Mehekar
Through Its Secretary
Tahsil Mehekar, Dist. Buldana.
2) The Headmaster,
MES High School, Mehekar
Tah. Mehekar
Dist. Buldana.
3) The Deputy Director of Education
Amravati Division,
Amravati, Dist. Amravati.
4) The Education Officer
(Secondary) Zilla Parishad, Buldana
Dist./ Buldana.
5) Bhalchandra son of Laxmikant Moharil
Aged about 27 years occu: service
resident of Mehekar Tah.Mehekar
Dist./ Buldana.
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6) The Presiding Officer,
School Tribunal, Amravati
Dist. Amravati.
7) Shri Sandip Prabhakar Molse
Aged adult, occu: service
R/o Rajput Galli
Badaram Temple, Mehakar
Tah.Mehakar, Dist. Buldana. ...RESPONDENTS
...........................................................................................................................
Mr. Rohit Deo with Mr P.B.Patil, counsel for petitioner
Mr V.B.Bhise, Adv. for respondent nos. 1 and 2
Ms. T.Khan, A.G.P. for Respondents 3 and 4
Mr. Rohit Rathi, Adv. For Mr R. Shiralkar, for Res.No.5
Mr. S.A.Kalbande, Adv. for Respondent no.7.
............................................................................................................................
CORAM: A.B.CHAUDHARI, J.
DATED : 15th January, 2014
ORAL JUDGMENT :
1. The petitioner has put to challenge the judgment and order dated 6.1.2000 passed by the learned Presiding Officer, School Tribunal in Appeal No.114/1998 that was preferred by the present petitioner.
The petitioner /appellant had preferred Appeal against the termination of his services by an order dated 13.8.1998. The School Tribunal dismissed his Appeal holding that the posts advertised were two posts ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 3 of Assistant Teacher and one post for Physical Training Instructor (PTI) but appointments of two PTIs in place of one post were made including the petitioner and as against two posts of Assistant Teacher, only one candidate had been appointed. Two candidates who were appointed as PTIs, were the petitioner and respondent no.7-Sandip Molse. It is in this context, the Tribunal held that the appointment of the petitioner was not legal and proper and, therefore, his Appeal stood dismissed. The respondent no.7 herein was not a party to the said Appeal and the Appeal came to be decided in his absence. In the wake of said fact, the petitioner made an application for joining the respondent no.7 as party respondent to the present petition and that request was granted by this Court. As a result, the respondent no.7 is before this Court represented by Mr. S.A. Kalbande, learned Advocate for respondent no.7.
2. Mr. Rohit Deo with Mr. P.B.Patil, learned counsel counsel for the petitioner argued that the petitioner and respondent no.7 were appointed on the same date as PTI and, therefore, the Management ought to have exercised the legal choice as to whether the petitioner or respondent no.7 could be terminated if against one post of PTI, two persons were appointed, namely, the petitioner and respondent ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 4 no.7; but the Management failed to do so, so also the Tribunal and, therefore, according to Mr. Deo, the said issue was an important issue requiring resolution thereof.
3. Mr.S.A. Kalbande, learned counsel for respondent no.7 submits that he has been in continuous service for over 18-years and, therefore, the respondent no.7 cannot be asked to face the proceedings now before the Tribunal on the specious plea raised by Mr. Deo on the aforesaid limited aspect. According to Mr. Kalbande, respondent no.7 was joined as a party for the first time before this Court subject to such objections as would be raised. He,therefore, opposed the request of the petitioner for remitting the Appeal to the Tribunal for adjudication of the issue as to whether the services of the petitioner should have been terminated or that of respondent no.7.
4. I have perused the impugned judgment and order made by the Tribunal. Perusal of the array of parties clearly shows that the respondent no.7 was not added as a party to the Appeal when everybody knew that it was the respondent no.7 who was also appointed along with the petitioner as against one post. It is true that there was a failure on the part of the petitioner to apply for impleading ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 5 the respondent no.7 as a party to the Appeal, but then having recorded a finding in the impugned judgment and order that respondent no.7 and petitioner both were appointed at the same time as against one post of PTI, the question naturally arose as to whose services should be terminated out of the two since the post was only one. In my opinion, therefore, the Tribunal ought to have exercised its powers directing the petitioner/appellant to join respondent no.7 as party-respondent to the Appeal in order to have a fair adjudication of the dispute as to who was entitled to be in service because two appointments were made as against one sanctioned post that was advertised. Since the Tribunal did not perform its duty perhaps this Court allowed the Application and permitted to add respondent no.7 as a party to this Writ Petition though of course subject to the objections, if any, raised by respondent no.7. The objections raised by Mr. Kalbande for not forcing him to participate in the proceedings because he has put in around 18-years of service during pendency of the litigation, does not appeal to me. There are two reasons for saying so. The first reason is that the respondent no.7 continues to be in service for the last 18-years and till the matter would be decided by the Tribunal afresh, his services would not at all be affected. Secondly, as observed by me above, the respondent no.7 was a necessary party ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 6 to the Appeal in the background narrated herein-above and there was a failure on the part of the Tribunal to add him as a necessary party to the Appeal. Actus curie neminem gravabit is a principle of wider import. The word 'Act' must also be read 'omission' for harmonious construction and meaning for carrying forward the idea of the said principle to do justice.
5. Support can also be taken from the definition under Section 32 of the Indian Penal Code for the aforesaid exercise.
Section 32 reads thus, "32. Words referring to acts include illegal omissions - In every part of this Code, except where a contrary intention appears from the context, words which refer to the acts done extend also to illegal omissions."
That being so, the omission on the part of the Court to direct addition of respondent no.7 as a party to the Appeal should not prejudice to the petitioner/original appellant if the law required that the respondent no.7 should have been a party to the Appeal.
Therefore, the objection raised by Mr. Kalbande for his client, cannot be ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 7 accepted.
6. The next question is whose service out of the two namely, the petitioner and respondent no.7, should have been terminated when two persons were appointed against one post of PTI. The Tribunal held that respondent no.7 was elder in age to the petitioner and, therefore, his services could not have been terminated since due to his elder age he should be treated as senior to the petitioner. In my opinion, the said reason recorded by the Tribunal is faulty. The reason is that the said principle about the elder age is pressed into service in respect of the disputes about seniority inter se between the parties when the appointments are of the same date. But the said principle has no application for finding out the seniority of two persons appointed on the same date for finding out whose services should be terminated. Hence, the said finding is not legal and proper.
At any rate, it is now for the Tribunal to reconsider the said issue again upon examining the applicability of principles of service jurisprudence in that regard. At the same time, the fact that the respondent no.7 has completed almost 18-years of service during the pendency of litigation and he is being dragged in the litigation after so many years, will have to be taken into consideration for finding out whether respondent no.7 could be disturbed at such a late stage from ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 8 employment. At the same time, since the Tribunal has got power to modify the relief or also award compensation in lieu of reinstatement, the said aspect will have to be taken into consideration by the Tribunal as to what relief should be granted to the petitioner in that behalf so as to refuse the relief of reinstatement. But then all that must be left to be considered by the Tribunal and not by this Court.
7. In the light of the above discussion, the inevitable position is that the following order will have to be passed:-
ORDER (1) Writ Petition No. 1183/2000 is partly allowed.
(2) The impugned judgment and order dated 6th January, 2000 passed by the learned Presiding Officer,school Tribunal, Amravati in Appeal No. 114/1998 .is set aside. The proceedings in Appeal No114/1998 are remitted to the Tribunal for hearing and fresh disposal, inter alia, on the following issues/points for determination:
(i) Whether the services of appellant/Parimal Hanumant Dhopte or the respondent no.7- Sandip Molse who were appointed against one post as PTI were required to be terminated between the two, as per law?
(ii) Whether the appellant/Parimal and respondent ::: Downloaded on - 27/01/2014 23:09:13 ::: wp.1183.00 9 no.7- Sandip having served from 16.2.1996 without any disturbance and with due approvals could now be disturbed and whether the relief of reinstatement to the appellant/Parimal in place of respondent no.7-Sandip could be granted or any other relief provided by law could still be granted to appellant/Primal or whether no relief at all could be granted to the appellant?
(iii) Whether the appellant/Parimal could be accommodated in any other Junior College, upon hearing the Deputy Director of Education, Amravati Region, Amravati?
(3) The petitioner to join Respondent no.7 before the Tribunal as a party.
(4) The parties are directed to appear before the Tribunal on 10th February, 2014. The respondent no.7 be given opportunity to file his detailed written statement and the evidence - documentary as well as oral, as advised.
(5) The Tribunal shall proceed to hear the parties including the Deputy Director of Education, Amravati who shall participate in the proceedings with all documentary evidence.
(6) The Tribunal shall decide the Appeal within a period of six months from the date of appearance of the parties before it.::: Downloaded on - 27/01/2014 23:09:13 :::
wp.1183.00 10 (7) If the decision of the Tribunal is adverse to the employment of the Respondent no.7, the same shall not be given effect to for a period of six weeks from the date of judgment and order of the Tribunal., (8) No order as to costs.
JUDGE sahare ::: Downloaded on - 27/01/2014 23:09:13 :::