Bombay High Court
Urdu Education Association vs Deputy Director Of Education on 16 March, 2011
Bench: A.H. Joshi, A.B. Chaudhari
wp254.93.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.254/1993,
WRIT PETITION NO.1297/1995,
WRIT PETITION NO.1888/1993,
WRIT PETITION NO.2231/1995,
WRIT PETITION NO.2291/1995,
WRIT PETITION NO.2292/1995,
WRIT PETITION NO.2295/1995,
AND
ig WRIT PETITION NO.3572/1995
--------------------------------------------------------------
WRIT PETITION NO.254/1993
PETITIONER :- Urdu Education Association, Amravati,
a registered Public Trust, through its
President Munaf Hussain Inayat Hussain,
resident of Chandni Chowk, Amravati.
...VERSUS...
RESPONDENTS :-1. Deputy Director of Education,
Amravati Division, Amravati.
2. Education Officer, Zilla Parishad,
Amravati.
3. Shri Vazir Patel, ex-receiver of the
Association, Valgaon Raod, Amravati.
4. Ku. Ishrat Jabeen d/o Abdul Majeed,
resident of Chaprasipura, Amravati.
5. Smt. Jamila Bano d/o Mohd. Shareef,
resident of Miskinshah Plot, Amravati.
6. Abdul Waheed Sheikh Jammu, resident of
Kholapur, District Amravati.
7. Firoz Khan Sikandar Khan, resident of
Muzaffarpura, Amravati.
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Mr. K.H. Deshpande, Sr. Adv. with Mr. M.D. Lakhe, Adv. for petitioner
Mr. T.A. Mirza, AGP for respdt. No.1.
Ms Mugdha Chandurkar, Adv. h/f Mr. A. Parchure, Adv. for respdt. No.4
Mr. P.C. Madkholkar, Adv. for respdt. Nos.5 and 6
--------------------------------------------------------
WRIT PETITION NO.1297/1995
PETITIONER :- Urdu Education Association, Amravati,
through its President, Chandni Chowk,
Amravati, Taluq and District Amravati.
...VERSUS...
RESPONDENTS
:-1. Presiding Officer,
School Tribunal, Amravati Division,
Amravati.
2. Mohammad Idrees s/o Abdul Bashir,
aged 24 years, resident of Juni Basti,
Badnera, Taluq and District Amravati.
3. Mohammad Asif s/o Sheikh Baba,
aged 21 years, resident of
c/o Sheikh Baba Sheikh Kasam,
Chhota Bazar, Paratwada, Taluq
Achalpur, District Amravati.
4. Firoz Khan s/o Sikandar Khan,
aged about 21 years, resident of
Muzaffarpura, Near Kabrastan,
Amravati, Taluq and District Amravati.
5. Abdul Waheed s/o Sheikh Hammu,
aged 29 years, resident of
c/o Dr. Saifuddin, Talabpura,
Amravati, Tah. and Dist. Amravati.
6. Abbas Khan s/o Shahbaz Khan,
aged 35 years, resident of at Post
Kurha Deshmukh, Tq. Chandur Bazar,
District Amravati.
7. Maqsood Ahmed s/o Sheikh Murtuza,
aged 25 years, resident of 9/61,
Gaos Nagar, Muzaffarpura, Amravati,
Tahsil and District Amravati.
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8. Mukhtar Hussain s/o Mohammad Hussain,
aged 25 years, resident of Shirajgaon
Band, Tq. Chandur Bazar, District
Amravati.
9. Jameela Bano d/o Mohammad Sharif,
aged 31 years, resident of Maskeen
Shah Plots, Chandni Chowk, Amravati,
Tahsil and Dist. Amravati.
10. Ku. Ishrat Jabin d/o Abdul Majid
aged 21 years, resident of Near
Flour Mill, Jail road, Camp
Amravati, Tah. and Distt. Amravati.
11. Deputy Director of Education,
ig Amravati Region, Amravati.
12. Deputy Director of Vocational
Education and Training, Amravati.
13. Education Officer (Secondary),
Zilla Parishad, Amravati.
14. Athar Hussain s/o Iqbal Hussain
aged about 25 years, Occ. Service.
15. Tamijodin s/o Sirajodin,
aged about 27 years, Occ. Service.
16. Abdul Rafiq Abdul Rauf,
aged about 25 years, Occ. Service.
17. Javed Anjuman Sk. Rasul,
aged about 23 years, Occ. Service.
All residents of Amravati,
Tq. and Distt. Amravati.
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Mr.K.H. Deshpande, Sr. Adv. with Mr.S.V. Purohit, Adv. for petitioner
Mr. T.A. Mirza, AGP for respdt. Nos. 11 to 13
Ms Mugdha Chandurkar, Adv.h/f Mr. A. Parchure, Adv. for respdt. No.10
Mr.R.A. Haq. Adv. for respdt. Nos.14 to 17.
Mr. P.C. Madkholkar, Adv. for respdt. Nos. 2,3,5 to 9
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WRIT PETITION NO.1888/1993
PETITIONER :- Noor Subah d/o Mohd. Nayeem Qureshi,
aged about 26 years, Occupation :
Service r/o Camp near Circuit House,
Amravati.
...VERSUS...
RESPONDENTS :-1. Education Officer, Zilla Parishad
Amravati.
2. President, Urdu Education Association
Amravati office at Chandani Chauk,
Amravati.
ig3. Ishrat Jabeen d/o Abdul Majid
(Chakkiwala), Chaprasi Pura
Camp Amravati, Tahsil and
District Amravati.
--------------------------------------------------------
Mr. V.M. Deshpande, Adv. for petitioner
Mr. T.A. Mirza, AGP for respdt. No.1
Ms Mugdha Chandurkar, Adv.h/f Mr. A. Parchure, Adv. for respdt. No.3
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WRIT PETITION NO.2231/1995
PETITIONER :- Deputy Director of Vocational
Education & Training, Amravati.
...VERSUS...
RESPONDENTS :-1. Mohammad Idrees s/o Abdul Bashir,
aged about 26 years, occupation
presently working as lecturer
under the Association Urdu Boys
High School and Junior College,
Amravati, resident of Juni Basti,
Badnera, Tq and Dist. Amravati.
2. Urdu Education Association,
Amravati, through its President,
Chandni Chowk, Amravati, taluq
and Dist. Amravati and another.
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3. Mohammad Alfafur Rehman,
Lecturer, Urdu Education Association,
Amravati.
4. Presiding Officer, School Tribunal,
Amravati Division, Amravati,
Shri M.G. Nandeshwar.
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Mr. M.J. Khan, AGP for petitioner
Mr. P.C. Madkholkar, Adv. for respdt. No.1
Mr. S.V. Purohit, Adv. for respdt. No.2
--------------------------------------------------------
WRIT PETITION NO.2291/1995
PETITIONER :- ig Deputy Director of Vocational
Education & Training, Amravati.
...VERSUS...
RESPONDENTS :-1. Abbas Khan s/o Shahbaz Khan,
aged about 37 years, occupation
presently working as Electrical
Instructor under the Association
Urdu Boys High School and Junior
College, Amravati, resident of
at post Kurha Deshmukh, taluq
Chandur Bazar, District Amravati.
2. Urdu Education Association,
Amravati through its president
Chandni chowk, Amravati, taluq
and District Amravati and another.
3. Athar Husain, Instructor, Urdu
Education Association, Amravati.
4. Presiding Officer, School Tribunal,
Amravati Division, Amravati
Shri M.G. Nandeshwar.
--------------------------------------------------------
Mr. T.A. Mirza, AGP for petitioner
Mr. P.C. Madkholkar, Adv. for respdt. No.1
Mr. S.V. Purohit, Adv. for respdt. No.2
--------------------------------------------------------
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WRIT PETITION NO.2292/1995
PETITIONER :- Deputy Director of Vocational
Education & Training, Amravati.
...VERSUS...
RESPONDENTS :-1. Maqsood Ahmad s/o Sheikh Murtuza
aged about 27 years, occupation
presently working as Electronic
Inspector, under the Association
Urdu Boys High School and Junior
College, Amravati, resident of
9/61, Caos Nagar, Muzaffarpura,
Amravati, taluq and district Amravati.
ig2. Urdu Education Association,
Amravati, through its president,
Chandni Chowk, Amravati, taluq
and district Amravati and another.
3. Mohd. Shakeel, Instructor, Urdu
Education Association, Amravati.
4. Presiding Officer, School Tribunal,
Amravati Division, Amravati
Shri M.G. Nandeshwar.
--------------------------------------------------------
Mr. T.A. Mirza, AGP for petitioner
Mr. P.C. Madkholkar, Adv. for respdt. No.1
Mr. S.V. Purohit, Adv.f or respdt. No.2
--------------------------------------------------------
WRIT PETITION NO.2295/1995
PETITIONER :- Deputy Director of Vocational
Education & Training, Amravati.
...VERSUS...
RESPONDENTS :-1. Mohammad Asif s/o Sheikh Baba
aged about 21 years, occupation
presently working as Instructor
under the Association Urdu Boys
High School and Junior College,
Amravati, resident of C/o Sheikh
Baba s/o Sheikh Kasam, Chhota
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Bazar, Paratwada, taluq Achalpur,
Dist. Amravati.
2. Urdu Education Association,
Amravati, through its President,
Chandni Chowk, Amravati, taluq
and district Amravati and another.
3. Abdul Raffiq, Instructor, Urdu
Education Association, Amravati.
4. Presiding Officer, School Tribunal,
Amravati Division, Amravati
Shri M.G. Nandeshwar.
--------------------------------------------------------
Mr. T.A. Mirza, AGP for petitioner
Mr. P.C. Madkholkar, Adv. for respdt. No.1
Mr. S.V. Purohit, Adv. for respdt. No.2
--------------------------------------------------------
WRIT PETITION NO.3572/1995
PETITIONERS :- 1. Athar Hussain s/o Iqbal Hussain,
aged about 25 years, occupation :
service.
2. Tamijodin s/o Sirajodin,
aged about 27 years, occupation :
service.
3. Abdul Rafiq Abdul Rauf,
aged about 25 years, Occupation :
service.
4. Javed Anjum Sk. Rasul,
aged about 23 years, Occupation :
service.
All residents of Amravati,
Taluq and District : Amravati.
...VERSUS...
RESPONDENTS :- 1. Urdu Education Association,
Amravati, through its President.
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2. Association Urdu Junior College,
(Minimum Competence Vocational
Course), Amravati, through its
Principal.
3. Deputy Director of Vocational
Education and Training, Regional
Office, Amravati.
4. State of Maharashtra, through
its Secretary, Ministry of Education,
(Technical Education), Mantralaya,
Bombay 32.
5. Shri Abbas Khan s/o Shahbas Khan,
R/o Kurha, Tah. Chandur,
ig Dist. Amravati.
6. Moh. Asif s/o Moh. Baba
R/o Chota Bazar, Tah. Achalpur,
Dist. Amravati.
7. Muktar Hussain s/o Mohd. Hussain
R/o Sirazgaon Band, Amravati.
8. Moh. Idriees s/o Abdul Baseer
R/o Zuni Basti, Badnera, Dist.
Amravati.
--------------------------------------------------------
Mr. R.A. Haq. Adv. for petitioners
Mr. M.J. Khan, AGP for respdt. Nos.3 and 4
Mr. S.V. Purohit, Adv. for respdt. Nos. 1 and 2
--------------------------------------------------------
CORAM : A.H. JOSHI AND
A.B. CHAUDHARI, JJ.
Date of reserving the judgment : 15.02.2011
Date of pronouncing the judgment : 16.03.2011
J U D G M E N T (PER : A.H. JOSHI, J.)
1. These writ petitions are taken up together for hearing and final disposal.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 92. This Court by order dated 6.8.1997 in Writ Petition No.1297/1995 directed that Writ Petition No. 254/1993 be heard as lead matter amongst several writ petitions and hence, we have heard Writ Petition No. 254/1993 first and thereafter we have heard all the connected writ petitions one by one.
3. In view that the group of petitions is being heard together, it would be necessary to have a glance at the tenor of different groups out of this group petitions. Those are as follows :
(1) WRIT PETITION NO. 254/1993
This petition is filed by Urdu Education
Association, who runs the Educational Institution. In this petition, the said institution is represented through its President Mr. Munaf Hussain Inayat Hussain.
The object of the petition is to
(i) seek a declaration that judgment rendered by this Court in Writ Petition No.1943/1992 is not binding on the petitioner.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 10(ii) declare that respondent No.3, former receiver of the Trust has no authority to appoint respondent Nos. 4 to 7 therein.
(iii) the order passed by the Education Officer on 3.12.1992, granting approval for appointments of respondent Nos.4 to 7 therein be quashed.
(iv) declaration that respondent Nos.4 to 7therein are not entitled to any relief such as salary.
(2) WRIT PETITION NO.1297/1995 This petition is filed by Urdu Education Society through President Mr. Munaf Hussain Inayat Hussain challenging the judgment and order passed by the School Tribunal, Amravati in Appeal Nos.189/92-A to 197/92-A decided by common judgment and order dated 9.3.1995, granting reinstatement and back wages to respondent Nos.2 to 10 therein. Respondent Nos.3 to 7 in Writ Petition No.254/1993 are amongst these nine respondents.
The challenge in writ petition No.1297/1995 is based on the ground inter alia that during pendency of ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 11 first appeal in the High Court between Mr. Munaf Hussain Inayat Hussain and others against the Charity Commissioner, the receiver was not and could not have functioned as administrator of the Trust etc. (3) WRIT PETITION NO.3572/1995 This petition is filed by four appointees against the Educational Institution claimed to be run by the President Mr. Munaf Hussain Inayat Hussain. These employees had prayed for mandamus for approval to their appointments.
These four employees, whose services were terminated during pendency of the petition by orders dated 9.12.1996, have prayed for setting aside those orders and consequently, benefit of payment of salary etc..
(4) WRIT PETITION NO.1888/1993 This petition is filed by Noor Subah d/o Mohd.
Nayeem Qureshi, claiming relief of mandamus against the Education Officer, seeking approval to the appointments which were made by President Mr. Munaf Hussain Inayat Hussain.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 124. In support of the lead writ petition, learned Senior Advocate Shri K.H. Deshpande made the following submissions :
(a) The first board of trustees who were appointed in the scheme proceedings made on 25.2.1975 by the Deputy Charity Commissioner, Mumbai in Suo Motu Proceeding No.127/1973, in which Mr. Munaf Hussain Inayat Hussain ig was the president, took charge on 22.4.1991, after civil court dismissed the suit by judgment and decree dated 20.4.1991, holding that the suit is not maintainable. During pendency of said suit the appointment of these trustees was kept in abeyance, pending decision of suit. Receiver Mr. Wazir Patel, who was appointed by order in suit, stood removed because of dismissal of the suit and the first board of trustee took charge of the Trust and its properties.
(b) That the first board of trustees
including the President - Munaf Hussain s/o Inayat
Hussain took charge on 22.4.1991 is fully corroborated and supported by the following events:
(i) The suit itself was dismissed on 20.4.1991 putting an end to the order appointing ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 13 receiver in place of the first board of trustees.
(ii) Application made by the District Government Pleader, Amravati on 23.4.1991 for stay of the order of the Court i.e. dated 20.4.1991 was rejected vide order dated 23.4.1991.
Note of this event was taken in the special meeting of the trust held on 22.4.1991.
(iii)In Writ Petition No.1184/1991, stay order
that was granted earlier on 8.5.1991, was
modified to the order of status quo on
26.4.1991 because the learned Vacation Judge was informed that the charge was already taken on 22.4.1991. The said writ petition was eventually withdrawn on 20.6.1991.
(iv) On 5.7.1991 on Civil Application No.1030 in First Appeal No.221/1991, this Court modified the stay order that was earlier granted on 8.5.1991 and clarified the same as status quo and nothing more.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 14(v) Civil Application No.1268/1992 in First Appeal No.221/1991 was filed when the appointments were sought to be made and this Court on 9.6.1992 having been made fully aware about the charge having been already taken on 22.4.1991, made the following order:
appointments made, if any,
shall be subject to the result of the
igappeal.
(vi) The Deputy Director of Education after
granting hearing to both sides on 9.6.1992 made the following order :
As there is status quo given by the Hon'ble High Court hence in the present situation :
1) Both the parties will not transfer, appoint any staff member.
2) Will not take any decision which will affect the administration of the institution and in case of any dispute they are advised to see the Dy. Director of Education, Amravati.::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 15
(c) In the wake of the above factual
scenario about receiver having been removed and his
charge having been taken at least after 9.6.1992, the receiver Mr. Wazir Patel could not have made a single appointment, but he made the appointments in question on 25.6.1992 and even thereafter, which were obviously illegal and without any authority.
(d) ig This Court decided First Appeal No.221/1991 on 7.10.1992 and categorically found that there was a deliberate attempt on the part of the Charity Commissioner, receiver Mr. Wazir Patel and others to keep away the first board of trustees that was appointed in the scheme proceedings. It is clear that this Court found all actions taken by the Charity Commissioner and receiver were illegal, and if actions of keeping the board of trustees away were found illegal, all the appointments made by the receiver must be held to be illegal and even now restitution must be made by this Court referable to the date of taking charge, namely 22.4.1991.
(e) The judgment and order dated 15.10.1992 in Writ Petition No.1943/1992, passed by the Division Bench of this Court, directing that the approvals to the ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 16 appointments of the appointees made by the receiver should be granted and their salary should be paid does not bind the petitioner as the petitioner President representing the first board of trustees was never made party to the said writ petition and since the judgment does not bind the petitioner herein a declaration to that effect is required to be given and consequently, the directions to the Education Officer contained in the said judgment are required to be wiped out.
(f) Perusal of the said judgment dated 15.10.1992 in Writ Petition No.1943/1992 shows that this Court was misled and misrepresented by the petitioners (appointees) therein that the First Appeal No.221/1991 since having been dismissed, there was no hurdle in granting approval and this Court readily believed it.
(g) The judgment in First Appeal No.221/1991 was delivered on 7.10.1992 and the copy of the said judgment could have been insisted upon by this Court for looking into the same as to what was decided. Not having done so, the judgment of this Court dated 15.10.1992 in Writ Petition No.1943/1992 runs counter to what has been held in the judgment dated 7.10.1992 in First Appeal No.221/1991 and therefore, the judgment ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 17 dated 15.10.1992 was obtained by fraud and misrepresentation.
(h) A judgment obtained by fraud or misrepresentation is 'no judgment' in the eye of law and can be put to challenge in any proceedings or by a substantive writ petition. Hence, the petitioner has filed a substantive writ petition as remedy of review is not available to the petitioner since the petitioner was not a party to the Writ Petition No.1943/1992. Learned Senior Advocate Mr. K.H. Deshpande supported the submission by relying on the judgment in the case of Ramchandra Ganpat Shinde and another...Versus...State of Maharashtra and others reported in AIR 1994 Supreme Court 1673.
(i) Neither the petitioner in Writ Petition No.1943/1992 nor the respondent in the said petition including receiver Mr. Wazir Patel correctly informed the Court as to what was held in the judgment that was passed on 7.10.1992 in First Appeal No.221/1991 and on the contrary, deliberately withheld the copy of the said judgment from the Court and in collusion misled the Court which wrongly allowed the said writ petition.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 18(j) The orders passed at interlocutory stages by this Court in various proceedings are bound to merge in the final orders or judgments and in that context, therefore, such interlocutory or interim orders will have to be treated as of no assistance to the appointees or receiver Mr. Wazir Patel.
(k) In the light of maxim, namely, actus curiae neminem gravabit, the petitioner should not be put to prejudice and therefore, the relief of restitution, namely to declare that the petitioner who was President of the first board of trustee was and is entitled to manage the affairs of the schools/institutions and the appointments made by the petitioner alone were legal and proper is required to be given and further declare that appointments made by the receiver Mr. Wazir Patel were all illegal. The same ought to be set aside.
(l) There is an undertaking given by the appointees, appointed by the receiver that they would refund their salaries, if any, paid to them vide order in Writ Petition No.1943/1992. In that view of the matter, this Court ought to undo the wrong.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 19Learned Senior Advocate Mr. K.H. Deshpande has cited the following decisions :
(i) AIR 1994 Supreme Court 1673 (Ramchandra Ganpat Shinde and another...Versus...State of Maharashtra and others).
(ii) 1997 (7) Supreme Court Cases 300 (Reliance Industries Ltd...Versus...Pravinbhai Jasbhai Patel and others).
(iii) 1981 Mh. L.J. 18 (J.G. Sinkar and others...Versus...State of Maharashtra and others).
(iv) 2000 (1) Supreme Court Cases 666 (M.M. Thomas...Versus...State of Kerala and another).
(v) 2006 (7) Supreme Court Cases 416 (Hamza Haji...Versus...State of Kerala and another).
(vi) 2000 (3) Supreme Court Cases 581 (United India Insurance Co. Ltd....Versus...Rajendra Singh and others).
(vii) 1997 (1) SCALE 278 (N.Mohanan...Versus...State of Kerala & ors.).
(viii) 1992 (3) Supreme Court Cases 1 (Shri Chamundi Mopeds Ltd....Versus...Church of ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 20 South India Trust Association CSI Cinod Secretariat, Madras).
(ix) 2004 (7) Supreme Court Cases 219 (BPL Ltd. and others...Versus...R. Sudhakar and others).
(x) 1997 (1) Supreme Court Cases 156 (State of M.P. and others...Versus...M.V. Vyavsaya & Co.).
(xi) 2007 (4) Supreme Court Cases 221 (A.V. Papayya Sastry and others...Versus...Govt. of A.P. and others).
(xii) AIR 1962 Supreme Court 21 (Hiralal Patni...Versus...Loonkaran Sethiya and others).
(xiii) 1994 (6) Supreme Court Cases 545 (Shyam Sunder Datta...Versus...Baikuntha Nath Banerjee (Dead) By Lrs. and others).
(xiv) 2000 (2) SCALE 343 (United India Insurance Co. Ltd....Versus...Rajendra Singh and others).
(xv) 2003 (8) Supreme Court Cases 648 (South Eastern Coal Field Ltd....Versus...State of M.P.).
(xvi) 2004 (2) Supreme Court Cases 783 (Karnataka Rare Earth and ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 21 another...Versus...Senior Geologist, Department of Mines & Geology and another).
5. Learned Advocate Mr. S.V. Purohit for the petitioners in Writ Petition No.1297/1995 adopted the submissions of learned Senior Advocate Mr. K.H. Deshpande and urged that by allowing the Writ Petition the common judgment and order of School Tribunal be set aside, as it has to follow as imperative consequence of allowing Writ Petition No.254/1993.
Learned Advocates appearing for the writ petitioners in Writ Petition Nos.1888/1993 and 3572/1995 by adopting the submissions advanced by the learned Senior Advocate Shri K.H. Deshpande submitted that the petitioners in Writ Petition Nos.1888/1993 and 3572/1995 being the employees, appointed by the President of the Trust (who is petitioner in Writ Petition Nos.254/1993 and 1297/1995) claim that they are entitled to protection particularly since this Court had stayed the orders of the School Tribunal of reinstatements of the appointees who were appointed by the receiver.
6. Writ Petition Nos.2231/1995, 2291/1995, 2292/1995 and 2295/1995 which are filed by the Deputy Director of Vocational Education and Training, Amravati in which the petitioner has urged sole point that the ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 22 directions contained in operative para 4 and 5 of the judgment of the School Tribunal, consisting of direction to the Government to pay the salaries of the appellants in the event management fails to pay, is without hearing, as the Deputy Director was not impleaded as a party.
7. Per contra, learned Advocate Mr. P.C. Madkholkar vehemently ig opposed all writ petitions and argued that :-
(a) There is no iota of evidence on record to even remotely infer that the petitioners in Writ Petition No.1943/1992 were in collusion with the respondents.
On the other hand that the statement that there is no hurdle in deciding the writ petition due to the decision in First Appeal was made by the Headmaster of the School the respondent No.8 in Writ Petition No.1943/1992, and it is so recorded in the judgment.
Moreover, said Headmaster is not in the array of the respondents.
(b) The pleadings and evidence required for proving collusion or fraud or misrepresentation must be ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 23 cogent as such a charge is of very serious nature and in the absence of adequate pleadings and adequate proof about collusion, fraud or misrepresentation, writ petitions cannot be entertained.
(c) The judgment recorded by this Court on 15.10.1992 is a judgment obtained between the parties, namely employer Urdu Education Society and employees.
The employer was a party to the petition through its receiver, who was appointed by the competent Civil Court.
(d) On the date of filing of the writ petition and even after the decision dated 7.10.1992 in First Appeal No.221/1991 and till 6.11.1992, the receiver actually continued to hold the charge. The Society was arrayed and was served in the petition through the receiver who was all throughout actually in-
charge of management of the Trust. The first board of trustees through its President i.e. the present petitioner in Writ Petition Nos.1297/1995, 254/1993 and had never entered the charge and control of the Trust.
(e) Therefore question of arraying the petitioner as party did not arise. At any rate, ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 24 Headmistress of the two schools were party to the said writ petition and it is not possible to believe that the present petitioner did not know about the said writ petition, when there were as many as eight respondents and each and every matter was being contested in various Courts and the Education Department of the Government.
(f) The judgment and order dated 15.10.1992 in Writ Petition No.1943/1992 therefore, cannot be said to be obtained by fraud or misrepresentation.
(g) The said submission of fraud is wholly inappropriate and liable to be rejected.
(h) The appointees appointed by the receiver are poor persons, who have not been paid at all and were kept away from employment because of the stay orders of this Court in various writ petitions.
(i) In the absence of any fraud as alleged, the present lead petition is required to be dismissed with costs.
8. We have heard learned Advocate for the rival parties for a considerable length of time. We have ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 25 perused the entire record of the writ petitions and of decided cases referred to in these petitions. We have carefully considered the submissions advanced by the learned Advocates for the rival parties.
9. Taking up Writ Petition No.254/1993 as a lead matter for consideration, which contains the prayer for declaration that the judgment of this Court dated 15.10.1992 in Writ Petition No.1943/1992 is not binding on the petitioner and be reviewed etc.. we proceed to record reasons as hereinafter.
10. Perusal of the array of the parties in Writ Petition No.1943/1992 shows that there were four petitioners, who were the employees appointed by the receiver. There were eight respondents, out of which respondent Nos.2 and 3 are the local Education Department at Amravati, respondent No.4 is Mr. Wazir Patel the receiver, respondent Nos.5 and 6 are the other members of the Selection Committee appointed by the Court, respondent Nos.7 and 8 are the Headmistress and Headmaster of the two schools. According to the petitioner, charge was taken by newly appointed Trustees on 22.4.1991 and were also acting as such. If that is so, we fail to understand as to how the petitioners ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 26 could not come to know about Writ Petition No.1943/1992 through respondent Nos.7 and 8, Headmistress and Headmaster of the two schools or local Education Department or other members, appointed by the Court on the Selection Committee. There is no averment anywhere in the writ petition explaining this. There is no averment in the writ petition that after receiving charge on 22.4.1991, the petitioners made any correspondence ig about the appointments made by the receiver or their assertion as in-charge of the Trust and the schools with local Education Department or any of the respondent Nos.7 or 8. If they were in-charge from 22.4.1991, it was for them to discharge this burden as to what steps they took about apprising respondent Nos.7 and 8 and the local Education Department.
11. We see that a clear observation is made by this Court in the judgment dated 15.10.1992 in Writ Petition No.1943/1992 with reference to the interpretation made by the local Education Department about the order of this Court dated 9.6.1992 in First Appeal No.221/1991, which reads thus:
The Education Officer, Zilla
Parishad, Amravati by his letter dated
20th July, 1992 informed the Head master of ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 27 the School that according to our order, the appointments made prior to the said order are subject to the result of the appeal and that no subsequent appointments can be made.
The above interpretation of the Education
Officer is clearly erroneous. The School
Management had power to appoint the
necessary staff after the date of the said order, but the said appointments were subject to the result of the aforesaid appeal.
12. The submission that this Court made clearly wrong observation in the said judgment dated 15.10.1992 in Writ Petition No.1943/1992 that there was no hurdle in granting approval to the appointments because of dismissal of First Appeal No.221/1991, in our opinion, at the best can be described by the petitioner as an illegal and incorrect finding by the Court, as submitted by learned Senior Advocate Mr. K.H. Deshpande. But it cannot be said that the said finding is vitiated by any fraud or misrepresentation. The submission made by the learned senior Advocate Mr. K.H. Deshpande about the judgment dated 7.10.1992 in First Appeal No.221/1991 can at the most lead one to say that the Court erred in recording judgment dated 15.10.1992 in Writ Petition No. 1943/1992 without reading the judgment dated 7.10.1992 passed in First Appeal No.221/1991 by insisting for ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 28 certified copy thereof from either of the parties or suo motu when they were told that the said first appeal was decided a week back. But according to us, this cannot vitiate the judgment dated 15.10.1992 in Writ Petition No.1943/1992, as we do not find that there was any fraud, collusion or misrepresentation. And these could be the grounds to challenge the said judgment dated 15.10.1992 before the Apex Court.
13. Coming to the averments made in the writ petition, we find that the petition does not contain specific averments as to the details of the alleged collusion between the appointees and respondent No.3 the receiver. The submission of the present petitioner to draw inference of collusion merely because certain facts, namely the facts that this Court in judgment dated 7.10.1992 held that the Charity Commissioner and receiver were instrumental in not allowing the first board of trustees to function or that the petitioner had already taken charge on 22.4.1991 and that no appointments could be made at least beyond 9.6.1992, were not pointed out to the Court does not appeal to us being sheerly argumentive and contrary to record. We do not believe that merely by drawing inferences, we should record a finding of collusion or fraud or ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 29 misrepresentation.
14. There is no documentary evidence or any other satisfactory evidence brought on record by the petitioner to show that the petitioner was in fact given charge on 22.1.1991 by any Court or authority or by the receiver himself. The petitioner did not get executed through Court the order of Court dated 20.4.1991 below Exh.1 for taking charge.
On the contrary, there is a document (Annexure R-14) dated 6.11.1992 at page Nos.181 to 183 in this Writ Petition which clearly shows that the receiver Mr. Wazir Patel had handed over the charge to the concerned Superintendent Shri R.R. Navalkar on 6.11.1992 at 9.00 p.m.. This being the documentary proof, we are not inclined to accept any oral statement nor we are inclined to draw inferences about the petitioner having taken charge on 22.4.1991. That apart, there is other reason why we say so.
15. In First Appeal No.221/1991, while deciding the same finally on 7.10.1992, six civil applications were disposed of without any orders. It is not in dispute that order dated 9.6.1992 was passed in the said First Appeal only about the fate of the appointments, ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 30 namely that the appointments shall be subject to the result of the appeal. We fail to understand as to why the present petitioner did not pray and seek the orders regarding the validity of the appointments made by the receiver earlier or after 9.6.1992 or actions taken by the receiver till the date of the said judgment inter alia on the ground that the charge was already taken on 22.4.1991 by the petitioner and no appointments could at all be made by receiver at least after 9.6.1992 in First Appeal No.221/1991 and since they were made illegally, and those were not binding on the petitioner.
Nothing prevented the petitioner from doing so when the said appeal was hotly contested at all stages.
16. First Appeal No.221/1991 was the only proceedings where alone the orders as to clarification of acts of Receiver could have been sought validly. The matter would have ended then and there without keeping any scope for confusion sought to be created. There is no explanation whatsoever before us on this aspect of the matter. On the contrary, as to the charge, the following observations and findings in the judgment dated 7.10.1992 of the said First Appeal No.221/1991 are contrary to what has been contended before us :-
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 31Para 11. ....The scheme is not implemented even now because of the various tactics applied by the appellant and their office.
Para 12. ...It is thus crystally clear that the plaintiff did not leave any stone unturned to keep defendants away from the administration and with this intention also filed a suit.
ig Para 13. ...The objective appellant has been substantially achieved.
of the
Para 18. ...The trustees who are
alive shall be given complete charge of the management and administration of the trust along with upto date accounts within one month from today.
17. The above operative part thus shows that this Court in First Appeal No.221/1991 recorded a finding that the petitioner and the board of trustees were never given charge of the management and administration of the Trust. On the contrary, this Court did not in any expressed manner or by passing an order oust or discharge him until final disposal of first appeal and rather allowed the receiver to be in-charge of the management and administration for a period beyond one month from the date of judgment dated 7.10.1992 i.e. till 6.11.1992.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 3218. We do not agree with learned Senior Advocate Mr. K.H. Deshpande when he submits that a receiver once removed automatically becomes functous officio and the period of one month given for rendition of accounts is merely for doing ministerial acts or for rendering accounts in present case.
The reason is that there is a clear direction made by this Court in First Appeal No.221/1991 that the receiver shall hand over the charge of the management and administration of the Trust along with accounts within one month from the date of judgment, vide para 18 above quoted.
19. We are not inclined to interpret the said judgment or the finding or the direction as suggested by learned senior Advocate Mr. K.H. Deshpande since to our mind, it is clear that nothing prevented the petitioner from getting the same clarified at the appropriate time in the manner that is now being contended.
20. In other words, in the order made by this Court, the receiver continued to be in charge of the management and administration till 6.11.1992. That being a clear order, we do not agree that the receiver became functionless on the date of dismissal of the suit i.e. ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 33 20.4.1991 or even the appeal which was decided on 7.10.1992. The direction about retention of the entire charge of management and administration with the receiver till 6.11.1992 has thus been amply clarified by the first appellate Court itself and we are not impressed to interpret the same on the basis of various interlocutory orders referred to us nor we will touch the sanctity of the said judgment and order in First Appeal No.221/1991 by making any interpretation.
21. It is nowhere pleaded in the petition that the receiver in fact never obtained any prior approval of the Civil Court vide its order dated 3.3.1990 before he made appointments. At any rate, appointments were made by him after 9.6.1992 when this Court made an order in relation thereto. This Court as already stated by us in paragraph No.10 herein also held that even after 9.6.1992 appointments could be made. Then the suit was dismissed on 20.4.1991 by the Civil Court with the result the said order dated 3.3.1990 merged in the dismissal of suit. The appointments were never made till the suit was dismissed, but were made when the lis was in this Court.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 3422. There has to be adequate pleadings, cogent evidence and materials on record to draw an inference or record a finding that fraud was played on the Court or the Court was misled or misrepresented by a collusive writ petition. The decision in the case of Ramchandra Ganpat Shinde and another (supra) will be of no assistance to the petitioner in view of the peculiar findings about collusive nature of the lis involved in that case. The following paragraph Nos.8 and 9 show the finding :
8. It would be obvious that A.K. Patil, Ex-Chairman of the defunct committee with a view to get over that impediment and to enable newly admitted 2000 members after December 17, 1991, set up More, a co-director and Mule, alleged to be his friend, got filed the first writ petition and obtained a direction to conduct election following its heels got filed second writ petition with a format of legal process but immediately Patil intervened and appeared on the very date of admission; put forth consent order and obtained the order from the Court to conduct election as per the provisional list existing as on June 30, 1992 and got issued the direction to the Collector with the mandate to conduct election in accordance with that list.
It was specifically alleged that Patil colluded with More and Mule, abused the ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 35 process of the Court, played fraud on the Court and obtained minutes order by consent without knowledge to any member of the society. In the absence of any denial of the allegations and in the light of the background of the case the necessary inference to be unerringly deduced would be that the consent order is a collusive and fraudulent order; made format of due process of law but obtained orders contrary to the statutory mandate of Rule 4 (1) of the Rules. It could thus be seen any that none of the members of the society had opportunity to know or to oppose the consent order. Thereby the necessary conclusion would be that a collusive order obtained by abuse of the process of the Court by playing fraud on the Court, became foundation to conduct elections to the Managing Committee of the society circumventing the mandate of Rule 4 (1) of the Rules.
9. In Nagubai Ammal v. B. Shamma Rao, 1956 SCR 451 at 463 : (AIR 1956 SC 593 at p. 599) this Court held that collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial Tribunal for some sinister purpose. In such a proceedings, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 36 of a judicial determination and worn by the parties with the object of confounding third parties. This was reiterated in Rup Chand Gupta v. Raghuvanshi Pvt. Ltd., (1964) 7 SCR 760 at 763 : (AIR 1964 SC 1889 at p. 1891), in which this Court held that the collusion is an improper act done by an improper refraining from doing an act, for a dishonest purpose. ...
23. Upon perusal of the entire writ petition, we do not find any specific averments as to how and when the appointees and the receiver colluded to file Writ Petition No.1943/92 and to obtain the judgment and order dated 15.10.1992. Merely because the receiver made the appointments of the appointees and the appointees prayed for grant of approval from the Education Officer, no collusion can be inferred. The crux of the averments in paragraph Nos.2 to 12 of the petition about collusion, fraud or misrepresentation is that the appointees petitioners in Writ Petition No.1943/1992 suppressed the facts about the taking over of charge on 22.4.1991 by the President Mr. Munaf Hussain Inayat Hussain;
existence of status quo order as modified by this Court on 8.5.1991 in Writ Petition No.1184/1991 and on 20.6.1991, 9.6.1992 in First Appeal No.221/1991; and interpretation of this Court s order dated 9.6.1992 made ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 37 by Deputy Director of Education and consequent refusal of Education Officer to accord approval. Further that the judgment dated 7.10.1992 in First Appeal No.221/1991 was never shown to this Court by the appointees and the receiver as the findings therein are in favour of the present petitioner. None of these events and the averments would make any difference in view of what we find hereafter. We now record our reasons for this and for holding ig that it is not possible to draw any conclusion about collusion, fraud or misrepresentation.
The reasons are as follows :
24. The submission made by the learned Senior Advocate Mr. K.H. Deshpande that the petitioner board of trustees or the President of the petitioner Society was not made party to the said Writ Petition No.1943/1992 does not impress us. In the light of the factual aspect before us, we are inclined to hold that the petitioner or the first board of trustees represented by Mr. Munaf Hussain Inayat Hussain, the present petitioner before us was never placed in-charge of the Trust and its institutions at any time before 6.11.1992.::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 38
25. Consequently, we ought to hold that the receiver was in-charge of the Trust and its institutions till 6.11.1992. The petitioner as President of the first board of trustees could not have been arrayed as party to Writ Petition No.1943/1992 till the date of its disposal i.e. 15.10.1992 and even till 6.11.1992. The Trust was thus rightly sued and was duly represented in the said writ petition through receiver Mr. Wazir Patel and the petitioner could not have been a party to the said writ petition as contended before us. In other words, the judgment dated 15.10.1992 in Writ Petition No.1943/1992 would certainly bind the Urdu Education Society which was at the relevant time sued through receiver who was appointed on 4.2.1983 by a competent Civil Court and held to be in-charge till 6.11.1992 by this Court. We, therefore, reject the contention that the judgment dated 15.10.1992 in Writ Petition No. 1943/1992 is not binding on the petitioner.
26. The petitioner has not pleaded either ignorance about the appointment of writ petitioners in Writ Petition No.1943/1992 or about pendency of said writ petition. Moreover, it is not explained as to what prevented the petitioner from intervening or getting impleaded in the Writ Petition No.1943/1992 in the ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 39 background that the petitioner was pursuing the cause of salaries of teachers appointed by the writ petitioner, and was also arrayed as respondent No.1 in the Contempt Petition which was filed in Writ Petition No.1943/1992.
27. As already held, we are not inclined to agree with learned Senior Advocate Mr. K.H. Deshpande that there was material on record to show that any fraud was played on the Court in collusion or misrepresentation was made for obtaining the judgment dated 15.10.1992 in Writ Petition No.1943/1992.
28. Since we have held that the appointments of the appointees made by the receiver Mr. Wazir Patel were made within his authority and thus the appointments made by him could not be said to be illegal and further that the judgment of this Court dated 15.10.1992 in Writ Petition No.1943/1992, directing the Education Officer to grant approvals to these appointees and also to pay them salary from the Government exchequer is not vitiated either by fraud, collusion or misrepresentation.
29. Copy of the order passed by this Court in Writ Petition No.1943/1992 is on record of Writ Petition ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 40 No.254/1993 at page 16 to 18. When this Court issued a writ, it was directed in distinct terms as to what it meant, which would be better by referring the quotation as follows :-
If the appointments of the petitioners are in accordance with the rules, the Education Officer is directed to accord his approval to the same. The School authorities are directed ig to include the names of the petitioners Nos.1,2,3 and 4 in the salary bills of the staff and the Education Officer is directed to grant their salaries from the dates of their appointments.
(Quoted from Page 17 of Writ Petition
No.254/1993)
30. It is clear that this Court had left it open to the Education Officer to decide as to whether appointments of the petitioners are in accordance with rules. If the tenor of order is seen, this Court does not admit any role of confusion nor it is prejudice to anybody.
31. The petitioners were before this Court, claiming relief of salary. It was well sounded to the Court that there was some controversy relating to the ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 41 appointments i.e. those being made by the receiver. The employees who were appointed by President Mr. Munaf Hussain Inayat Hussain were also striving to get salaries and it is in this background this Court appears to have directed that the appointments were legal.
32. Mr. Munaf Hussain Inayat Hussain the President was very well arrayed as respondent No.1 in Contempt Petition No.259/1992 along with two heads of the school.
Said contempt petition was initially filed as a civil application in Writ Petition No.1943/1992 and was by order of the Court treated as contempt petition.
Mr. Munaf Hussain Inayat Hussain the President was thus fully aware of the pendency of this writ petition and his conduct has to be read as forbearance not appearing in the said writ petition. It could therefore be extremely difficult to spell out that Mr. Munaf Hussain Inayat Hussain i.e. President of the Society in the present group of petitions was unaware of pendency of Writ Petition No.1943/1992 and alleged fraud. The petitioner in Writ Petition No.254/1993 thus had full opportunity to know and participate in the proceedings.
33. Certainty and continuity are essential ingredients of rule of Law. The same would be ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 42 considerably eroded and suffer a serious set back if this Court were readily to declare that a earlier judgment of this Court is vitiated by fraud, collusion or misrepresentation. But the same ought to be done only when substantial and compelling reasons are shown and established by a strong foundation. A judgment of a Court once delivered has a certain sanctity. The same Court ought to take due care and caution when called upon to examine whether it is vitiated by fraud etc.. We are fully aware that a judgment of a Court obtained by playing fraud on the Court or by misrepresentation etc. should not be allowed to operate.
34. The questions which essentially arise are :-
Can a judgment of a Court be allowed to be made inoperative on mere allegations of fraud, collusion or misrepresentation and then what is the degree of proof required ?
Should the Court merely on creation of suspicion or for possibility of another view of the matter make an order vitiating a judgment of a Court ?
35. In our opinion, the answer has to be in the negative.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 4336. As a sequel, we will have to uphold the impugned common judgment and order made by the Tribunal aforesaid. However, we are inclined to modify the direction No.4 in the operative part of the said common judgment of the School Tribunal dated 9.3.1995, regarding payment of arrears of pay and allowance or the back wages for the following reasons :
The ig terminations were effected by the petitioner on 9.11.1992 only on the ground that the appointments of those appointees were made by the receiver, who had no authority to make any appointment that was due to the dispute initiated by the persons interested in the petitioner Trust, staff working in the schools run by the Trust, community people, Charity Commissioner, the President - Mr. Munaf Hussain of the petitioner Society, his first board of trustees and others.
37. The litigation was brought to the Courts and many interim orders were passed by the Courts. Even in the instant case, the judgment and order made by the Tribunal was not stayed when the writ petition was admitted. The period of more than 18 years has been spent in the process from the date of order of ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 44 termination. The petitioner Education Trust and its schools if are asked to comply with the direction No.4 in entirety, regarding payment of full back wages, as ordered by the School Tribunal, there is a serious likelihood of the Trust and its institutions crumbling down in totality. That will result into closure of the schools and institutions putting all the employees working under the Trust apart from the employees concerned in these petitions to a grave agony.
38. In so far as writ petitions filed by the Deputy Director of Vocational Education are concerned, we are unable to trace from the contents of the petitions as to how the State Government is aggrieved by the order, when the payment alternatively to be made by the Government is from the grants payable to the petitioner. Such an order is very well within the contemplation of Section 11 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, which can be clear from Sub Section 3 of Section 11 of the Act, which reads as follows.
11 (3). It shall be lawful for the Tribunal to recommend to State Government that any dues directed by it to be paid to the employee, or in case of an order to ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 45 reinstate the employee any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee direct.
39. In this background the petitions filed by the Deputy Director of Vocational Education are not based on legal rightsig and are devoid of petitioner State had no cause of action, and the Deputy bona fides. The Director of Vocational Education had clearly fallen in the line of favouring the Management for ostensible reasons.
40. In so far as two petitions filed by the employees i.e. Writ Petition Nos.1888/1993 and 3572/1995 are concerned, they have to follow the course as emerging upon dismissal of Writ Petition Nos.254/1993 and 1297/1995.
41. This Court had noticed from the record that when the writ petitions of teachers, namely Noor Subah Athar Hussain, Tamijodin, Abdul Rafiq and Javed Anjum in Writ Petition Nos.1888/1993 and 3572/1995 were considered, the question of granting them salaries had ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 46 arisen and it was very well debated before this Court that the group of teachers appointed by the receiver was simultaneously exerting to demand the salaries. The teachers appointed by President Mr. Munaf Hussain were also doing the same thing.
42. In this background, this Court (Coram : Y.K. Sabharwal, C.J. and M.B. Ghodeswar, J.) passed an order on 19.3.1999. It was at that time urged that at least one group of teachers should get the salary and the President Mr. Munaf Hussain gave an undertaking, which is recorded by this Court in its order dated 19.3.1999.
Relevant portion of the order is recorded as follows :
.....Factually, it is the petitioners, who are teaching, though the order of the School Tribunal is in favour of the intervenors. Be that as it may, subject to fulfilment of the rules and regulations, prima facie the Deputy Director will probably release the grants atleast for one set of the teachers. Regarding the intervenors, the Management is prepared to give an undertaking to reimburse them if order of the School Tribunal is maintained.
43. It is thus clear that the petitioners in Writ Petition Nos.1888/1993 and 3572/1995 have remained in ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 47 the employment because of the interim order passed by this Court and the teachers who want order of reinstatement and full back wages, which order was not stayed, remained out of employment and without salary.
44. Thus, the petitioners in Writ Petition Nos.
1888/1993 and 3572/1995 are not entitled for relief whatsoever in view of what we have found that receiver was factually in-charge ig and was not legally ousted or discharged. No fault whatsoever therefore could be found with the appointments of the employees appointed by the receiver. The employees appointed by President Mr. Munaf Hussain Inayat Hussain were certainly appointed without new trustees' having actual entered the office and without discharge of his duty.
45. We, therefore, hold that these petitioners in Writ Petition Nos.1888/1993 and 3572/1995 are not entitled for any relief and thus petitions are liable to be dismissed. The salaries and allowances drawn by the teachers will however stand appropriated towards duty performed by them.
46. That apart, we find that in the memo of appeal that was filed before the Tribunal that the employees ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 48 never averred that they were surviving without any source of income nor in reply to the present petitions, there are any averments to that effect. It is not possible for this Court to believe that these appointees have been surviving without any source of income or any gainful avocation or employment for all these years. At the same time, this Court cannot forget the fact that these appointees have been put to sufferance and hardships. Thus, balancing the entire matter regarding award of full back wages, in our considered opinion, award of back wages to the extent of 25 % of the full back wages should subserve the interest of justice. In the event the Government has not paid regularly towards non-salary grants to the schools, the payment of arrears of 25% back wages be disbursed from unpaid Government grants. If there are no undisbursed grants, the arrears will have to be paid by the employer Trust.
47. We are, therefore, inclined to modify the impugned common judgment dated 9.3.1995, passed by the School Tribunal in respect of all the appointees, appointed by the receiver involved in Writ Petition No.1297/1995, who are not reinstated or who are not elsewhere employed in any aided school/teaching institution.
::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 4948. In the result, we find no merit in the lead petition bearing Writ Petition No.254/1993. It is, thus, dismissed with costs quantified at Rs.10,000/- (Rupees Ten Thousand Only) payable equally to the respondents Nos.3 to 7 the appointees.
49. Writ Petition No.1297/1995 is partly allowed.
The impugned judgment and order dated 9.3.1995, passed by the School Tribunal, Amravati is modified only to the extent of substituting operative part 4 thereof, which shall be read henceforth as under :
(4) The respondent Management is further directed to pay only 25% of the arrears of pay and allowance to each of the appellants who are not reinstated or those who are not elsewhere employed in any aided teaching institution, within six months from their own resources, failing which the same amount shall carry simple interest @ 4% per annum till the actual payment. The appellants shall however be granted continuity of service only for the purposes of computing terminal benefits.
It is made clear that it is for the respondent Management to garner its own resources or to request the Government for making the said payments from the ::: Downloaded on - 09/06/2013 17:06:36 ::: wp254.93.odt 50 Government grants, if the same are payable to the respective Educational Institutions.
The order of reinstatement of the appointees shall be made within a period of three months from today.
50. Other writ petitions, namely Writ Petition Nos.1888/1993 and 3572/1995 are dismissed with costs.
51. Writ Petition Nos.2231/1995, 2291/1995, 2292/1995 and 2295/1995 are dismissed with costs of Rs.5,000/- (Rupees Five Thousand Only) payable to each respondent employee.
52. Rule accordingly.
JUDGE JUDGE
ssw
::: Downloaded on - 09/06/2013 17:06:36 :::