Bombay High Court
Mah. Shikshan Prasarak Mandal Thr. Its ... vs Dipak Pandharinath Dalal And Anr on 13 October, 2017
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2906 OF 2012
1. Maharashtra Shikshan Prasarak
Mandal, Pimpalgaon (Bhosale),
through its Secretary Shri Naresh
Karade, r/o at Post Bramhapuri,
District - Chandrapur.
2. Maharashtra Vidyalaya,
Pimpalgaon (Bhosale), Tq.
Bramhapuri, Dist. Chandrapur
through its Head Master. ... PETITIONERS
Versus
1. Dipak Pandharinath Dalal,
r/o Jony Ward, Bramhapuri,
District - Chandrapur.
2. Education Officer (Secondary),
Zilla Parishad, Chandrapur. ... RESPONDENTS
Shri H.A. Deshpande, Advocate for the petitioners.
Shri S.M. Ghodeswar, AGP for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI, J.
OCTOBER 13, 2017.
ORAL JUDGMENT :
The matter was heard for sometime in the first half and is called out again in the second half. Hearing continued beyond 4.30 P.M. ::: Uploaded on - 27/10/2017 ::: Downloaded on - 27/10/2017 23:22:35 ::: wp2906.12 2
2. The effort of Shri Deshpande, learned counsel for the petitioner is to show that respondent No. 2 never claimed to be a beneficiary of Rule 9(9) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, (hereinafter referred to as MEPS Rules) and his caste certificate showing that he belongs to Special Backward Category (SBC) is itself issued on 14.06.2007. While submitting the application for employment, he has disclosed his caste status as Halba (Open) in 2001. The contention is, respondent No. 1, therefore, could not have been recruited against a post reserved for Scheduled Tribe and, therefore, when he was terminated, the issue of Rule 9(9) of the MEPS Rules, could not have been gone into. He fairly states that for the purpose of securing approval, Head Master of the School has on 21.02.2002 attempted to demonstrate that respondent No. 1, who belonged to Halba (Open) caste, was given employment under SBC category. He further states that respondent No. 1 has secured other employment and has, therefore, chosen not to appear before this Court. As he did not appear, service through paper publication was allowed by orders dated 07.11.2014 on CAW ::: Uploaded on - 27/10/2017 ::: Downloaded on - 27/10/2017 23:22:35 ::: wp2906.12 3 No. 2923 of 2014. He contends that in this situation, reinstatement with full back wages and continuity is unwarranted.
3. Shri Ghodeswar, learned AGP for respondent No. 2
- Education Officer submits that dispute is between the petitioners and respondent No. 1.
4. With the assistance of respective counsel, I have perused the records. The document dated 04.09.2008 (Annexure - XX) reveals that respondent No. 1 was in employment on contract basis for a period from 02.04.2007 up to 26.09.2007. The appeal memo filed by him before the School Tribunal does not take a defence that he got employment as SBC candidate because no Scheduled Tribe candidate turned up for interview. The defence under Rule 9(9) of the MEPS Rules is conspicuously lacking in the matter.
5. The management has resolved on 21.11.2004 to terminate him on the ground that he did not produce caste ::: Uploaded on - 27/10/2017 ::: Downloaded on - 27/10/2017 23:22:36 ::: wp2906.12 4 validity certificate and his behaviour and conduct was also not satisfactory. The termination order dated 20.12.2004 mentions that respondent No. 1 was appointed as Shikshan Sevak for a period of three years and the Education Officer had not granted approval to his appointment. The appointment was made by the order dated 21.12.2001 and at the end of said period of three years as Shikshan Sevak, it has been brought to an end on 21.12.2004.
6. In this situation, various questions arise. The first question is, whether the impugned order is an order of simple termination or stigmatic one. Answer depends on ascertaining material facts to determine nature of employment. Next issue is, was employee holding a post so as to entitle him to relief of reinstatement with continuity. The respondent - appellant could have been asked to substantiate his contention that he was given benefit of Rule 9(9) of the MEPS Rules. The validity given to him by the Caste Scrutiny Committee on 18.07.2007 shows that his caste certificate was obtained by him on 14.06.2007. Thus, for the first time a document showing that ::: Uploaded on - 27/10/2017 ::: Downloaded on - 27/10/2017 23:22:36 ::: wp2906.12 5 he is SBC, appears to have been procurred on 14.06.2007. All these facets are not looked into by the School Tribunal.
7. Though, Shri Deshpande, learned counsel submitted that respondent No. 1 has lost interest in employment and, therefore, petition should be allowed, in the above situation, I find it appropriate to extend to him one opportunity to place correct facts before the School Tribunal.
8. Only for that purpose, the judgment delivered on 07.01.2012 by the School Tribunal, Chandrapur, in Appeal No. 24 of 2009 is quashed and set aside. The said appeal is restored back to the file of the School Tribunal for its further disposal as per law. Needless to mention that the parties shall be given appropriate opportunity to amend their pleadings and to place documents on record.
9. The parties are directed to appear before the School Tribunal on 20.11.2017 and to abide by its further instructions in the matter.
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10. Writ Petition is thus partly allowed and disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE ****** *GS.
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