Bombay High Court
Janjagruti Shikshan Prasarak Mandal vs The State Of Mah & Ors on 29 January, 2018
Author: Sunil P. Deshmukh
Bench: Sunil P. Deshmukh, P.R.Bora
1 W.P. 8145.2006 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8145 OF 2006
Janjagruti Shikshan Prasarak Mandal
Wadgir Tanda, Tq. Mukhed,
Dist. : Nanded Through its Secretary
Shripat Motiram Rathod
Age : 53 Yrs., Occ. Social Worker &
Agril., R/o : Wadgir Tanda,
Tq. Mukhed, Dist. : Nanded. .... PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary
Department of School
Education, Mantralaya,
Mumbai.
2. The Divisional Deputy
Director of Education,
Latur Division, Latur.
3. The Education Officer
[Secondary],
Zilla Parishad, Nanded.
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2 W.P. 8145.2006 - [J]
4. Vasant s/o Marutirao Chavan
Age : Yrs., Occ. Service,
Notice to be served through
Head Master - Late Vasantrao
Naik Vidyalaya, Wadgaon,
Tq. Mukhed, Dist. Nanded. .... RESPONDENTS
......
Mr. M.V.Deshpande h/f Mr. M.D.Narwadkar,
Advocate for Petitioner.
Mrs. V.S.Choudhari, A.G.P. for R - 1 to 3 - State.
Mr. V.D.Gunale, Advocate for R - 4.
......
WITH
CIVIL APPLICATION NO. 10052 OF 2008
IN
WRIT PETITION NO. 8145 OF 2006
1. Prakash s/o Tulshiram Patil
Age : 50 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
2. Sopan s/o Nagorao Jadhav
Age : 45 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
3. Murtuza s/o Ghudusab Tamboli
Age : 35 Yrs., Occ. Agril.,
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R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
4. Damodhar s/o Namdeo Biradar
Age : 35 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed,
Dist. : Nanded.
5. Nivruti s/o Govindrao Jadhav
Age : 39 Yrs., Occ. Agril.,
R/o : Wadgaon, Tq. Mukhed, .... APPLICANTS/
Dist. : Nanded. [INTERVENORS]
VERSUS
1. Janjagruti Shikshan Prasarak Mandal
Wadgir Tanda, Tq. Mukhed,
Dist. : Nanded Through its Secretary
Shripat Motiram Rathod
Age : 53 Yrs., Occ. Social Worker &
Agril., R/o : Wadgir Tanda,
Tq. Mukhed, Dist. : Nanded.
2. The State of Maharashtra
Through Secretary
Department of School
Education, Mantralaya,
Mumbai.
3. The Divisional Deputy
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4 W.P. 8145.2006 - [J]
Director of Education,
Latur Division, Latur.
4. The Education Officer
[Secondary],
Zilla Parishad, Nanded.
5. Vasant s/o Marutirao Chavan
Age : 40 Yrs., Occ. Service,
Notice to be served through
Head Master - Late Vasantrao .... RESPONDENTS/
Naik Vidyalaya, Wadgaon, [NON APPLICANTS 2 to 5 -
Tq. Mukhed, Dist. Nanded. ORI.RESP. 1 TO 4]
......
Mr. V.D.Salunke, Advocate for Applicants.
Mr. M.V.Deshpande h/f Mr. M.D.Narwadkar,
Advocate for R - 1.
Mrs. V.S.Choudhari, A.G.P. for R - 2 to 4 - State.
Mr. V.D.Gunale, Advocate for R - 5.
......
CORAM : SUNIL P. DESHMUKH &
P.R.BORA, JJ.
DATE : 29th JANUARY, 2018
......
ORAL JUDGMENT : [PER - SUNIL P. DESHMUKH, J.]
1. Indisputedly, respondent No. 4 had been appointed as teacher in science subject in the school run by the petitioner - ::: Uploaded on - 09/02/2018 ::: Downloaded on - 10/02/2018 00:15:44 :::
5 W.P. 8145.2006 - [J] institution, since he possessed educational qualification of bachelor of Science viz; Physics, Chemistry and Biology. He had been appointed on 19/06/1995. His employment had been approved by Education Officer [Secondary]. He continued to work as a Science teacher in afore mentioned school till 2003.
2. As the strength of the students in the school started dwindling, the petitioner - institution declared respondent No. 4, who was the junior most appointed teacher, as surplus irrespective of subject. On the first occasion, under letter dated 30/09/2003 while he was declared surplus, he had been sent to Chhatrapati Shivaji High School, Savarmal. Not having been accommodated there, he continued in petitioner's school. In the next academic year he was sent to Manavya Vikas Vidya Mandir, Degloor. However, the institution did not accommodate respondent No. 4 and he continued in petitioner's school.
3. However, in the third academic year i.e. in 2005, he was sent to Shivaji Vidyalaya, Kurula and there he had been accommodated. While he was working there, one Mr. D.R.Kajale had retired from service in petitioner's school. Respondent No. 4 thereupon had requested for repatriation to petitioner's school/ to parent school as there was requirement of teacher in Chemistry ::: Uploaded on - 09/02/2018 ::: Downloaded on - 10/02/2018 00:15:44 ::: 6 W.P. 8145.2006 - [J] and Biology in petitioner's school and he can be accommodated being a Science teacher.
4. Accordingly, order came to be passed on 29/04/2006 directing the petitioner to accommodate respondent No. 4 as a Science teacher invoking Rule 26 (4) of MEPS Rules, 1981.
5. Exception is taken in Writ Petition to the order dated 29/04/2006 directing repatriation of respondent No. 4 to petitioner's school.
6. Mr. M.V.Deshpande holding for Mr. M.D.Narwadkar, learned counsel for the petitioner submits that in 2005 post had fallen vacant of Marathi teacher in petitioner's school as Mr. Kajale
- Marathi teacher had retired and not of Science teacher. Rule 26 (4) of MEPS Rules entails subject-wise repatriation and not otherwise. He purports to refer to that even request from petitioner had been to the Education Officer to send Marathi teacher since Marathi teacher had retired.
7. He submits that Respondent No. 4 had been intransigent in his stand since 2003. He had not been joining the schools where he had been sent to although having been declared ::: Uploaded on - 09/02/2018 ::: Downloaded on - 10/02/2018 00:15:44 ::: 7 W.P. 8145.2006 - [J] surplus for three continuous years. It was only after Writ Petition No. 504 of 2005 had been filed, he had joined and been accommodated in Shivaji High School, Kurula. Upon retirement of Mr. D.R.Kajale, Marathi teacher, he had requested for repatriation irrespective of availability of subject in the school.
8. In order to support his submissions, he places reliance on the document at page No. 41 which shows nine teachers whereas it appears, according to staffing pattern, ten teachers can be accommodated. In the same it has been shown that Mr. Kajale was teaching Marathi subject whereas Science subject was shouldered by Mr. N.T.Dombale along with English. One Mr. S.P.Chavan has been shown as Mathematics teacher. Mr. K.L.Pawar had been for subjects Hindi and Marathi. He submits that while accommodation can be had to Marathi teacher pursuant to page No. 41, repatriation of respondent No. 4 is bad and tantamounts to foisting respondent No. 4 on the petitioner - institution. He, thus, urges to indulge into the prayer made in the Writ Petition of quashing and setting aside order dated 29/04/2006 and to follow the letter dated 13/10/1981.
9. Countering aforesaid submissions, Mr. V.D.Gunale, learned counsel for respondent No. 4 and Mrs. V.S.Choudhari, ::: Uploaded on - 09/02/2018 ::: Downloaded on - 10/02/2018 00:15:44 ::: 8 W.P. 8145.2006 - [J] learned A.G.P. appearing for respondent Nos. 1 to 3 purport to point out that as a matter of fact it is not an absolute rule to retrench a junior most employee and refer to Rule 26 (2) (iii) of MEPS Rules, 1981.
10. It is submitted by them that it is the figment of imagination of petitioner that respondent No. 4 had remained with petitioner despite being surplus with petitioner. They further refer to Rule 26 (2) (iii) to contend that so long as a retrenched employee is not absorbed at a transferred place, employee does not cease to be an employee of the parent institution. The factual position is otherwise while he had been sent on two occasions earlier on, he had not been accommodated on transferee establishment. In the circumstances, he continued with the petitioner.
11. They further purport to submit that although respondent No. 4 could have been hardly retrenched having regard to the work-load of the subject of petitioner. Respondent No. 4 had not chosen to challenge otherwise untenable treatment of declaring respondent No. 4 being surplus teacher in the petitioner's school.
12. Learned A.G.P. has referred to affidavit-in-reply and ::: Uploaded on - 09/02/2018 ::: Downloaded on - 10/02/2018 00:15:44 ::: 9 W.P. 8145.2006 - [J] submitted that as a matter of fact the petition is imbued with malafides. Petitioner could never have declared respondent No. 4 as surplus teacher as can be gathered from various reports which have been made by respondent No. 3 for securing Science teacher in petitioner's school. She submits that the need of Science teacher had been further underscored by subsequent event since in 2008 as a Science teacher came to be appointed in petitioner's school.
13. Having heard learned counsel as aforesaid, the position emerges that respondent No. 4 had been appointed indisputably as a Science teacher pursuant an advertisement issued by petitioner. He had been a permanent employee. He was junior most while the strength of students decreased in 2003. Yet, there is record indicating that a Science teacher was needed in the petitioner's school and could have been rather ought to be accommodated. However, respondent No. 4 being the junior most, he had been declared surplus. On two occasions, he was sought to be accommodated in two different establishments. However, the exercise pursuant to Rule 26 of MEPS Rules then did not fructify. While respondent No. 4 had been taken in Shivaji High School in 2005, one post had fallen vacant due to retirement of a teacher in petitioner's school. In the circumstances, it appears that respondent No. 4 had requested for repatriation to the ::: Uploaded on - 09/02/2018 ::: Downloaded on - 10/02/2018 00:15:44 ::: 10 W.P. 8145.2006 - [J] petitioner's/parent school. It does not appear to be a case that need of Science teacher by then had abated in petitioner's school. Accommodation of Science teacher appears to have been possible and had been directed accordingly in exercise of powers pursuant to Rule 26 of MEPS Rules, 1981. Need of Science teacher is further underscored by appointment of one more Science teacher. Respondent No. 4 has been working for last more than twelve years in petitioner's school.
14. In the circumstances, we deem it appropriate not to disturb the prevailing position by passing any order. Writ Petition is not, therefore, being entertained and same is disposed of. In view of disposal of Writ Petition, Civil Application No. 10052 of 2008 also stands disposed of.
[P.R.BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
KNP/W.P. 8145.2006 - [J]
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