1 W.P. No.440 & 5860 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.440 Of 2009 Yogesh s/o Arvind Zambre. .. Petitioner. Versus The Principal, Muljee Jetha Junior College, Jalgaon, Taluka and District Jalgaon And Others. .. Respondents. -------- Shri. Rajendrraa Deshmukkh, Advocate for petitioner. Shri. V.T. Chaudhari, Advocate, for respondent Nos.1 & 2. Shri. V.B. Ghatge, Assistant Government Pleader, for respondent Nos.3 and 5. Shri. A.G. Talhar, Advocate, for respondent No.4. -------- With Writ Petition No.5860 of 2009 Prakash s/o Laxman Nemade. .. Petitioner. Versus The State of Maharashtra And Others. .. Respondents. -------- 2 W.P. No.440 & 5860 of 2009 Shri. A.G. Talhar, Advocate for petitioner. Shri. V.B. Ghatge, Assistant Government Pleader, for respondent Nos.1 to 3. Shri. V.T. Chaudhari, Advocate, for respondent Nos.4 & 5. Shri. Rajendrraa Deshmukkh, Advocate, for respondent No.6. ------- CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. DATE 14 SEPTEMBER 2011 PER COURT : 1) Heard. 2) The issue raised in these writ petitions relates to the service incidents which took place in the year 1989-90 and onwards as canvassed by the petitioners in both these writ petitions. 3) In Writ Petition No.5806 of 2009 the petitioner prayed for following substantive reliefs:- “(B) By appropriate writ order or direction the order dated 12-5-2008 passed by the respondent No.3 may kindly be quashed and set aside and the respondent No.3 may kindly be directed to grant an approval to the petitioner. 3 W.P. No.440 & 5860 of 2009 (C) By appropriate writ order or direction the respondents may kindly be directed to pay the salary to the petitioner in accordance with law w.e.f. 18-7-1991 with interest of 12% p.a." Whereas, petitioner in Writ Petition No.440 of 2009, filed by Yogesh Arvind Zambre, prays for following reliefs : "(C) This writ petition may kindly be allowed by quashing and setting aside the impugned Judgment and Order dated 16-8-2008 passed by the Learned Presiding Officer, School Tribunal, Nashik in Appeal No.JAL/01/2004. (D) This Writ Petition may kindly be allowed by quashing and setting aside the termination of services of petitioner by the respondent No.1 vide Order dated 20-06-1991 with further direction to reinstate the petitioner on the post of Instructor with continuity of service and full back wages." 4) Contention of petitioner Yogesh Arvind Zambre in Writ Petition No.440 of 2009, in short, according to the learned counsel for the petitioner, is that against an advertisement issued by respondent-management on 23-6-1990 the petitioner applied for the post of Instructor. The management in its meeting had confirmed appointment of the petitioner along with other employees. On proposal forwarded by the management, the Deputy 4 W.P. No.440 & 5860 of 2009 Director of Vocational Education and Training Nashik approved the services of the petitioner for the academic year 1990-91 on purely temporary basis. It is contended that the petitioner was orally terminated by the management after expiry of the said academic year 1990-91. The petitioner thereafter approached Labour Court, Industrial Court, School Tribunal in respect of the order in question. 5) Learned counsel for the petitioner submits that the respondent-Management had confirmed the appointment of the petitioner in clear vacancy meaning thereby that the petitioner was appointed on regular basis in a clear vacancy. The petitioner questions the proposal forwarded by the management for the academic year 1990-91 and consequential approval by the authorities concerned. The counsel further submits that the management was more interested in appointing respondent No.4 - Prakash Laxman Nemade who was not a qualified person at the relevant time as the said respondent was not possessing qualification namely C.T.I. which was necessary for appointing a person as 5 W.P. No.440 & 5860 of 2009 Instructor. It was submitted that, the management appointed respondent-Prakash Laxman Nemade after orally terminating the petitioner and due to this reason the petitioner was thrown out of service and had to fight for his rights throughout long drawn litigation lasting more than 20 years. Learned counsel, therefore, submits that the view adopted by the Tribunal is against the record and well established principles of law. As the petitioner was appointed in a clear vacancy, services of the petitioner ought to have been confirmed by respondent-management and the authorities concerned. 6) On behalf of petitioner-Prakash Laxman Nemade in Writ Petition No.5860 of 2998 learned counsel submits that, due to litigation started by respondent No.6 - Yogesh Arvind Zambre the petitioner's services could not be approved by the authorities concerned. In view of pendency of appeal before the School Tribunal the Deputy Director did not grant approval and rejected the approval to the services of the petitioner which order has been impugned by the petitioner in the present writ petition. The counsel submits that the petitioner acquired 6 W.P. No.440 & 5860 of 2009 qualification of C.T.I. while he was sent on sanctioned leave/deputation. After petitioner acquired the qualification he rejoined services with respondent management but due to the proceedings initiated by respondent-Yogesh Zambre the authorities did not approve services of the petitioner nor disbursed the salary. In this scenario the petitioner has been discharging duties, according to the counsel, with respondent-management, without salary since last 20 years. 7) Learned counsel appearing for respondent management submits that petitioner-Prakash Laxman Nemade was appointed prior to petitioner Yogesh Zambre for a period of one year as a temporary measure. Prakash Nemade was to acquire qualification of C.T.I., so his leave was sanctioned for the said purpose. In the light of the communication received by the Deputy Director on 6th June 1989 Prakash had to acquire qualification within 3 years, therefore, the management thought it fit to allow Prakash Nemade to acquire said qualification and therefore Prakash was sent on leave/deputation for the said purpose and after he acquired qualification was 7 W.P. No.440 & 5860 of 2009 allowed to join the service. It is the case of the management that as services of Yogesh were purely temporary for one academic year, he had no right to the post. His services were approved by the authorities for a period of one academic year only. In other words, the management supports the case of Prakash Nemade. 8) We have perused the material placed on record, the impugned orders and the original record of the school Tribunal. 9) The management has raised contention in the affidavit-in-reply that leave was sanctioned to Prakash Nemade for the period from 4-8-1990 to 25-7-1991 so that he would acquire qualification which was essential to hold the post of Instructor. On behalf of respondent- management affidavit-in-reply is filed in Writ Petition No. 440 of 2009 wherein deponent contends that : “18. (H) Shri. P.L. Nemade completed C.T.I. Course in July 1991, and he took training in Session from August 1990 to July 1991, and successfully passed said course for which a certificate was issued. 8 W.P. No.440 & 5860 of 2009 (I) After completion of said training Shri. P.L. Nemade was relieved w.e.f. 16th July 1991. (J) On 18-7-1991 the Principal M.J. College, Jalgaon, has written a letter to the Dy. Director, Vocational Education & Training, Regional Office, Nasik, that Shri. P.L. Nemade has completed and passed the C.T.I. Course and he is appointed w.e.f. 17-7-1991, and therefore, requested for approval of his appointment. (K) On 19-1-1991 a proposal was sent to the respondent No.3 for approval of appointment for the year 1990-91, wherein it has been specifically mentioned at Sr. No.6 that the appointment of the petitioner is temporary for the academic year 1990-91. Annexed hereto and marked as Exhibit R-1 is the true copy of said letter dated 191-1991.” 10) The management has adopted a stand that after completion of course by Prakash Nemade he was appointed with effect from 17-7-1991 and thereafter a request was made to the authorities for approval of the services. 11) While appreciating the case of Yogesh Zambre we find that the proposal of the petitioner was forwarded by the management for the academic year 1990-91. Approval to the services of the petitioner was granted by the authorities for the year 1990-91 on purely temporary 9 W.P. No.440 & 5860 of 2009 basis by a communication dated 28 February 1991. Appointment order, if any, issued in favour of Yogesh Zambre is also not placed on record. Petitioner Yogesh Zambre places reliance on a resolution passed by he management to the effect that his appointment was confirmed. 12) In the light of the documents placed on record and the replies filed we find that appointment of Yogesh Zambre was made for one academic year 1990-91 and accordingly proposal was forwarded which was approved by the authorities concerned. Petitioner Yogesh Zambre did not challenge his approval of one year granted by the authorities which was on temporary basis but preferred to initiate proceedings after the petitioner was allegedly orally terminated. Considering the facts of the case in its entirety and the material produced on record we are not inclined to grant any relief to petitioner-Yogesh Zambre. 13) Turning to the case of other petitioner - Prakash Laxman Nemade we find that the Deputy Director had by a communication dated 12 May 2008 passed a 10 W.P. No.440 & 5860 of 2009 reasoned order refusing approval to the appointment of the petitioner for the year 1991-92 and to disburse his salary from the said academic year till date. Learned counsel for the petitioner-Prakash Nemade submits that pendency of the appeal before the School Tribunal filed by Yogesh was the only hurdle in the way of the petitioner in getting approval from the office of the Deputy Director. After perusal of the record and the impugned order we do not find that pendency of the appeal was the only ground in Deputy Director refusing approval to the services of the petitioner and refusal of the request to disburse salary. 14) In this view of the matter we are not inclined to consider prayer of the petitioner in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India. 15) Both the writ petition stand dismissed. Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.) rsl