1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.638 of 1999 Shikshan Prasarak Mandal & anr. Petitioners Vs. Shri Sarjerao Ramchandra Jadhav & ors. Respondents Mrs.Anita A. Agarwal for petitioners. Mr.A.B.Tanjane i/b. Mr.G.S.Godbole for Resp.no.1. CORAM: B.H.MARLAPALLE, J. March 13, 2008 ORAL JUDGMENT: 1. This petition is directed against the judgment and order rendered by the School Tribunal on 1/9/1998 thereby allowing Appeal No.106 of 1995. The order of otherwise termination dated 11/7/1995 was declared null and void and was set aside and the respondent no.1 - appellant-teacher was directed to be reinstated with full backwages till his reinstatement. While granting Rule on 5/2/1999 the petitioners had shown their willingness to reinstate the appellant and on that condition of reinstatement within one week, the order of backwages was stayed. The appellant is present today in the Court and states that he has been reinstated as per the undertaking furnished before this Court and as at 2 present he is getting all his salary and he has also been granted seniority from the date of his initial appointment i.e. 1/7/19991. Therefore, the only issue required to be considered is whether the order of payment of full backwages calls for any interference in this petition. 2. The petitioner no.1 - Mandal runs more than one secondary schools. In the year 1989-90 the petitioner no.2 - school was started by opening the 8th standard and it was on non-grant basis. The appellant had passed his B.Sc., B.Ed. and was, therefore, appointed as an Assistant Teacher in the said school by order dated 1/7/1991 in the pay scale of Rs.1400-2600. He was continued in the academic years 1992-93, 1993-94 and 1994-95. In the academic year 1995-96 the petitioner no.2 - school became fully aided and in the mean while from 1/6/1993 the appellant was appointed as the acting Head of the petitioner no.2 - school. In the academic year 1994-95 the petitioner no.1 - Society started another secondary school by name Vijaysingh Mohite Patil Vidyalaya, Kolegaon and by order dated 10/6/1995 he was transferred to the said new school which was unaided. He did not report at the transferred placed 3 and an order was issued on 11/7/1995 informing him that under Rule 16(2) of the MEPS Rules, 1981 his service was terminated on account of abandonment. The teacher, therefore, filed Appeal No.106 of 1995. 3. The present petitioners had appeared before the School Tribunal and claimed that the termination order was legal and it could not be strictly called as an order of termination. As per the management the appellant had himself abandoned the employment and, therefore, there was no question of termination of service. They further claimed that in any case he was a temporary employee and his services came to an end because of his continued absence from duty. 4. The Education Officer (Secondary), Zilla Parishad, Solapur had filed his reply before the School Tribunal and stated that the appointment of the appellant was approved as per the order dated 4/2/1995 and the appellant was a permanent teacher. It was further pointed out that as per the Circular dated 11/11/1994 issued by the Government of Maharashtra it was not permissible for the petitioner - management to transfer the appellant from a school which was aided to a school which was unaided. 4 5. The School Tribunal, therefore, held that the appellant was a permanent teacher and his transfer from the petitioner no.2 - school to the newly started school at Kolegaon village was contrary to the State Government’s circular dated 11/11/1994 and he could not have been removed from service under Rule 16(2) of the MEPS Rules. 6. Rule 16 of the MEPS Rules, 1981 deals with leave. Sub-Rules (2) and (3) of Rule 16 read as under: "(2) An application for leave other than casual leave or extension of leave or to proceed on leave after vacation shall ordinarily be made in good time before the date from which the leave or its extension is sought. Even in exceptional cases where it is not possible to apply beforehand because of circumstances beyond the control of the employee, the application shall be made within 7 days from the date of absence. A non-permanent employee shall be deemed to have abandoned his service if he fails to apply for 5 leave within seven days from the date of absence. (3) In the case of a permanent employee who, without sufficient cause, fails to apply for leave within 7 days from the date of absence, it shall be treated as breach of discipline and he shall be liable for suitable disciplinary action after due inquiry. A permanent employee who is absent from duty without leave continuously for a period exceeding three years or more, shall be deemed to have voluntarily abandoned his services." . It is thus clear that as per Sub-Rule (2) a non-permanent employee shall be deemed to have abandoned his service if he fails to apply for leave within seven days from the date of absence. The appellant was not a non-permanent Assistant Teacher as has been rightly held by the School Tribunal and, therefore, the Tribunal was right in holding that it was Sub-Rule (3) of Rule 16 which is applicable in case of permanent teachers. If a permanent teacher who remains absent without sufficient cause, fails to apply for leave within 7 days from the date of 6 absence, such an act shall be treated as breach of discipline and he shall be liable for suitable disciplinary action after due enquiry. Secondly if a permanent employee is absent from duty without leave for a period exceeding three years or more, he shall be deemed to have voluntarily abandoned his services. None of the two eventualities contemplated under Rule 16(3) of the MEPS Rules is applicable in the instant case. The period of absence was not three years or in excess of three years and if the Assistant Teacher had remained absent for a period of more than one month, it could be treated as breach of discipline and an enquiry was required to be conducted based on which he could have faced disciplinary action. Therefore, the action of the management impugned before the School Tribunal was patently erroneous and in utter disregard to the scheme of Rule 16 of the MEPS Rules. Even otherwise the appellant could not have been transferred from a school which had become fully aided to a school which was un-aided in view of the State Government circular at that time. In these obtaining circumstances the School Tribunal was justified in law to direct the payment of full backwages and, therefore, no interference is called for in the said order under supervisory powers of 7 this Court under Article 227 of the Constitution. 7. Hence this petition fails and the same is hereby dismissed. The amount of backwages for the period from 11/7/1995 to the date of reinstatement i.e. 12/2/1999, shall be paid by the petitioners to the respondent no.1 - teacher within a period of one month from today, failing which the respondent no.2 - Education Officer (Secondary), Zilla Parishad, Solapur shall deduct the said amount from the non-salary grants payable to the petitioner no.1 - Society and pay the said amount to the appellant - teacher before 30th April 2008. 8. Rule is discharged accordingly with no order as to costs. (B.H.MARL