1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL WRIT PETITION NO. 1755 OF 2001 Smt. Saeeda Begum Raj Ahmed ..Petitioner Vs. 1. Education Officer (Primary) Zilla Parishad Solapur and ors. ..Respondents Mr. Sanjay D. Thokade for petitioner. Mr. Nitin Jamdar for respondent no.1. Mr. I.M. Khairdi for respondent no.2. Mr. S.D. Rayrikar, AGP for respondent no.3 CORAM: B.H.MARLAPALLE & SMT. ROSHAN DALVI, JJ. September 25, 2009. ORAL JUDGMENT (Per B.H. Marlapalle,J.): 1. This petition filed under Articles 226 and 227 of the Constitution impugns the order of suspension dated 12/12/1998 and prays for directions for absorption in any other aided Urdu Primary School as per the provisions of Rule 25A of the M.E.P.S. Rules, 1981. So far as the prayer for declaration that the suspension order dated 12/12/1998 is bad in law on account of non compliance of Rule 35(1) of the M.E.P.S. Rules, 1981 is concerned, it is required to be noted that the petitioner challenged the said suspension order in Writ Petition No. 1486 of 1999 and the same came to be withdrawn by the petitioner on 4/5/1999. She again approached this court in 2 Writ Petition No. 3762 of 1999 and again challenged the suspension order. However, on 14/7/1999 when the said petition came up for hearing, she stated that the only grievance remained was regarding the payment of subsistence allowance. On 15/12/1999 directions were issued to the Management to pay at least 25% of the subsistence allowance due and payable to the petitioner. The said order was not complied with and, therefore, Contempt Petition No. 100 of 1999 was filed. Writ Petition No. 3762 of 1999 along with Contempt Petition No. 100 of 1999 was finally decided on 4/4/2000. This court directed the Education Officer (Primary), Zilla Parishad, Solapur to compute the amount of subsistence allowance by 31/5/2000 and directed the Management to pay the said amount on or before 30/6/2000, failing which they would undergo sentence of imprisonment as ordered. The Management was further directed to pay the subsistence allowance due and payable to the petitioner in accordance with law during the entire period of suspension. 2. The school where the petitioner was working as In-charge Headmistress came to be de-recognized by the Competent Authority on 31/5/2000 and the teachers on the rolls of the school were rendered jobless. It is, under these circumstances, she prayed for the relief under Rule 25A of the M.E.P.S. Rules, 1981 for directions to absorb her in some other school, recognized and aided by the State Government. 3. The challenge of the petitioner to the order of suspension dated 12/12/1998, therefore, cannot be gone into at this stage and it appears that she was paid subsistence allowance as directed by this court on 4/4/2000. However, if the suspension order did not result into any disciplinary action, it is the contention of the petitioner that 3 she would be entitled for full salary till the school was de-recognized. Thus, she prays for payment of full salary for the period from 12/12/1998 to 31/5/2000. She also stated that the school, where she was working, was a recognized school and she was a permanent teacher. As per her, the suspension order was without prior approval from the Education Officer in terms of the Rule 35(1) of the M.E.P.S. Rules. These are all issues which are required to be considered by the Education Officer (Primary), after hearing both the parties i.e. the petitioner as well as the Management and, therefore, it would be appropriate that the petitioner submits a representation for payment of full salary to the Education Officer so that it is decided by him after hearing both the parties. 4. As far as relief under Rule 25A is concerned, Mr. Jamdar has relied upon a decision of this court in the case of Chanda Nazma Abdul Razak vs. Education Officer (Primary) Zilla Parishad, Solapur and ors. [2001 (3) Mh.L.J. 766] and it is in respect of the very same school and similarly placed teacher. The petitioner therein was also the In-charge Headmistress, after the present petitioner was suspended on 12/12/1998. This court directed the Education Officer to make an enquiry as required under Rule 25A(2) of the M.E.P.S. Rules, 1981 and to pass an order within a period of three months. If in such an enquiry the Education Officer records a finding that the concerned teacher was responsible for the closure of the school, obviously, the benefit of Rule 25A would not be available. Pursuant to the said directions, the Education Officer conducted an enqiry and passed an order on 12/9/2001 holding that the petitioner therein was not entitled for being wait-listed for absorption. The same exercise will have to be followed in the instant case as well. 4 5. It is, therefore, appropriate that the representation to be submitted by the petitioner to the Education Officer regarding the payment of full salary should also pray for the benefit available under Rule 25A and same will have to be enquired into by the Education Officer (Primary), Zilla Parishad, Solapur and the enquiry will have to be completed after hearing all the parties concerned i.e. the petitioner as well as the Management. 6. Hence, we direct the Education Officer (Primary), Zilla Parishad, Solapur to hold an enquiry into the claim of the petitioner regarding the payment of salary from 12/12/1998 to 31/5/2000 and her name being kept on waiting list for being absorbed under Rule 25A of the M.E.P.S. Rules, 1981, if such a representation is filed within a period of four weeks from today, by the petitioner. The enquiry shall be conducted as expeditiously as possible and preferably within a period of three months. Any directions given by the Education Officer in such an enquiry regarding payment of salary shall be communicated to the Management in writing. 7. The petition stands disposed in terms of the above directions. We make it clear that if any of the parties to the enquiry do not appear on more than one date fixed, the enquiry to proceed ex parte. (SMT. ROSHAN DALVI,J.) (B.H.MARLAPALLE,J.)