1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2700/2011 1 Ahmednagar Zilla Maratha Vidya Prasarak Samaj, Lalataki Road, Ahmednagar, through its Secretary, Genuji s/o Dagduji Khandeshe. 2 The Principal, New Arts, Commerce and Science College at Ahmednagar, District Ahmednagar. ...Petitioners. Versus 1 The State of Maharashtra, through the Secretary for Education, Mantralaya, Mumbai. 2 The Deputy Director of Education, Pune Division, Pune. 3 Shri Dattatraya s/o Madhavrao Waikar, Age : Major, Occu. Service, R/o Saptshrungi Colony, Bhisti Naka, Ahmednagar, District Ahmednagar. ..Respondents. Mr. V.D. Hon, Advocate for the petitioner. Smt. R.K. Ladda, Advocate for respondent Nos. 1 and 2. Mr. Sandeep S. Deshmukh, Advocate for respondent No.3. CORAM : A.V. NIRGUDE, J. DATED : 18th August, 2011. ORAL JUDGMENT: 1. Heard. Rule, returnable forthwith. 2. By consent of learned counsel for both the parties, the petition is taken for final hearing. 3. This writ petition under Article 226 read with Article 227 of the Constitution of India is challenging the order dated 29th October, 2010 passed by the learned Dy. Director, Education, Pune in the matter of 2 approval of appointment, salary and service benefits to respondent No.3. Brief history of the case can be narrated as under. 4. Petitioner No.1 is an Education Society having full fledged college at Ahmednagar. It is also common ground that respondent No. 3 was engaged as Assistant (Music) Teacher in the petitioner’s college. But on 10/03/2006 they terminated him. Respondent No.3 challenged his termination by filing an appeal under section 9 of Maharashtra Employees of Private Schools(Service Regulation) Act, 1977 in which respondents No.1 and 2 too were parties. The learned Presiding Officer after hearing all the sides finally decided the appeal in favour of respondent No.3 and in terms, held that the termination of respondent No.3 was illegal. He also held that respondent No.3 was not required to acquire educational qualification equivalent to B.Ed. or D. Ed. etc. for getting confirmed as a Assistant (Music) Teacher. He placed reliance on various provisions of the rules made under the above mentioned Act. He even held that respondents No.1 and 2 misconceived the provisions of law when they insisted that respondent No.3 would get approval of his appointment only if he acquired qualification equivalent B.Ed. or D. Ed.. While allowing appeal, learned Presiding Officer of the Tribunal also directed respondent No. 2 the Dy. Director, Education, Pune Division, Pune to pay full back wages to respondent No.3 till the date of the appeal and further that he should go on paying the salaries as per the rules and Act. It is further common ground that the College of the petitioner is a “grant in aid” education institute. 5. This judgment of the Tribunal attained finality due to dismissal of writ petition(writ petition No. 5576/2010) filed by respondents No.1 3 and 2 in this Court after three years. The learned judge of this Court while dismissing it took note of the observations of the Presiding Officer that the termination of the respondent No.3 from service was illegal etc. and that he had requisite qualification to work as a music teacher etc. Respondents No.1 and 2 who had filed writ petition, did not take the order of the learned single judge further and thus for them the judgment and order passed by the Tribunal attained finality and they became bound by all the observations made therein. Despite of this, on 29th October i.e. after the dismissal of their writ petition, respondent No.2 -learned Dy. Director Education Pune region, Pune- passed the impugned order in which he made several statements which are apparently contemptuous to the Tribunal as well as this Court. He went on mentioning in this order that respondent No. 3 was still under obligation to acquire educational qualification equivalent to B. Ed. Or D. Ed and he ordered that unless he acquires such qualification by 2012, the sanction for his approval for his appointment would stand withdrawal. The impugned order is challenged in this writ petition and respondents No.1 and 2 were given an opportunity to justify the propriety of order dated 29th October, 2010 and an affidavit on behalf of respondents No.1 and 2 has been filed by one Popat Sable who is presently serving as Assistant Director, Education, Pune region, Pune. In this affidavit, the deponent has tired to justify the order and tried to put forward the case that in view of the Rules made under the Maharashtra Employees of Private Schools (Service Regulation) Act, 1977 even a Music Teacher is required to obtain a educational qualification equivalent to B. Ed. Or D. Ed. He too is thereby trying to slight the observations of this Court as well as 4 the Tribunal. Respondents No.1 and 2 have utterly failed to justify the impugned order. 6. There is one more angle to this litigation. As said above, respondents No.1 and 2 had filed writ petition No. 5576/2010 challenging the judgment and order passed by School Tribunal dated 19/04/2007. On 25/06/2010 the learned single judge of this Court dismissed the petition, both on merits and also because of delay and latches. However, learned single judge also made following observations. “It is however made clear that it is primary responsibility of the management to pay salary of respondent No.1. No cost”. The petitioner society took this part of the order in L. P. Appeal Stamp Nos. 49/2011, 37519/2010 and 142/2010. Division Bench of this Court held in terms that the above mentioned observations appearing in the order passed by the learned single judge did not amount to any direction to the management. In the mean time, the impugned order was already passed on 29th October, 2010. When it was pointed out to the Division Bench of this Court, learned Division Bench observed that the petitioner society was not precluded from taking appropriate remedy against order dated 29th October, 2010 and so, the present petition has been filed. 7. The learned Dy. Director in his impugned order further directed that the society to pay salary to respondent No.3 unless he gets education equivalent to B.Ed. or D. Ed. thereby impliedly suggested that the petitioner society is liable pay the salary to respondent No. 3 from the date of his termination till he attains the acquired educational qualification equivalent to B.Ed. or D. Ed.. This direction in my view, as said above is contemptuous to the specific order passed by this Court and by the 5 Tribunal. It appears that the learned Dy. Director Shri Sunil Magar considered himself above law and is immune from a possible action that could be taken against him in disobedience of the order of the Court and Tribunal. Learned A.P.P. Smt. R.K. Ladda however tried to pacify me saying that she would tender apology on behalf of the Dy. Director for his indiscretion. Even the learned counsels appearing for the petitioner and the respondent No. 3 persuaded me not to precipitate the case further and not to initiate any penal action against the Dy. Director, Education, Pune Shri Sunil Magar. Accepting their request I am refraining from issuing a notice to show cause as to why action of contempt of Court should not be initiated against him but my observations above, would indicate to him that the impugned order caused agony to me. The petition succeeds. ORDER The petition is allowed. The rule is made absolute. The order dated 29th October, 2010 passed by learned Deputy Director of Education, Pune Division, Pune stands set aside. The amount deposited by respondents No.1 and 2 shall be paid to the petitioner. The petitioners shall utilise the amount only for paying the salary dues of respondent No.3 and if they find that the amount is more than the dues, the amount shall be refunded to the State of Maharashtra. [A.V. NIRGUDE,J.] ts k/2011/August18/wp2700.11/ok