1 wp3012-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3012 OF 2010 Laxman Trimbak Dahiphale .. Petitioner Versus Jain Vidya Prasarak Mandal & Ors. .. Respondents Mr.Rajesh Kolge for petitioner Mr.S.A.Sawant for respondent No.2 Mr.S.D.Rayrikar, AGP for respondent No.3 CORAM : S.C.DHARMADHIKARI, J. DATE : 26th August 2011. P.C. 1] By this petition under Article 227 of the Constitution of India, the petitioner challenges the order passed by the School Tribunal dated 19th January 2009, dismissing the petitioner’s appeal No.9 of 2007. 2 wp3012-10.doc 2] The case of the petition is that he is M.A. B.Ed. by qualification having passed M.A. in second class and B.A. in subject of English. He is a duly qualified teacher in Junior College. As per the advertisement issued in the newspaper by the first respondent – Management, the petitioner made an application and he was interviewed by a Committee consisting of three members. Later on, he came to be appointed and an appointment order was issued. The petitioner has been working from 12th June 2003 as a Junior Collecge Lecturer in English language in second respondent college. 3] That Junior College was not getting grant in aid and was managed on non grant basis. Subsequently, the petitioner’s case is that he is deemed to have been confirmed on the post of Assistant Lecturer. The petitioner states that when the college reopened in June 2006, he was serving from 10th June to 22nd August 2006. After 5th August 3 wp3012-10.doc 2006, the petitioner was not allowed to sign the muster roll till 15th September 2006. Without signing the muster roll, he worked in the second respondent school. Alleging that this is nothing but otherwise termination of his services that he filed an appeal. The School Tribunal initially by the judgement and order dated 11th March 2008 dismissed the appeal on the ground that the petitioner's services were utilised by the Management in the absence of one Mr.Kale who was a full time teacher. Since Mr.Kale resumed duties, there was no work load for petitioner and, therefore, his services were no longer required. This was construed as termination. It was stated that Mr.Kale was working as Lecturer in English from 17th August 1999 and he was temporarily absent and, therefore, when the petitioner was employed, he was not qualified for the same post and he cannot hold any lien. 4] The petitioner states that he received certain 4 wp3012-10.doc information with regard to probation and full time workload and, therefore, he challenged the said order of dismissal of his appeal. That order was set aside by this Court and the appeal was remitted back to the school tribunal. 5] Petitioner asserted that the information received under Right to Information Act about appointment of petitioner reveals that he was on probation for the year 2003-2004, 2004-05 and 2005-06 and that the workload chart would show that full workload was assigned to the petitioner. The petitioner, therefore, submitted these documents and amended his memo of appeal. In these circumstances, it is urged that the Tribunal ought to have allowed the said appeal but the Tribunal proceeded to dismiss it and that is how the petitioner has approached this Court in writ jurisdiction. 6] It is argued that there was a proper appointment of the 5 wp3012-10.doc petitioner. The appointment was against permanent vacancy. There was cmplete workload. The norms are that for enrollment of 50 pupil actual workload should be 17 hours per week. The workload chart shows the details of 16 hours for academic year 2003-04 and 2004-05 and they have been approved by Dy.Director of Education in the subject of Marathi and other subjects including the subject of English. In these circumstances, the discrimination should have been noted and only the petitioner cannot be victimised. As far as the appointment of Mr.Kale is concerned, the documents in that behalf are not genuine. The tribunal was in agreement with the petitioner that Mr.Kale was appointed in some other school. He cannot hold lien on that post and yet seek appointment in the subject school. Therefore, he resigned from that school and Mr.Kale cannot be said to be legally holding the post and in any event his lien comes to an end. As far as fresh advertisement is concerned, even that aspect was not 6 wp3012-10.doc correct, inasmuch as, the Tribunal should have seen that the petitioner submitted the appointment letter of Mr.Kale from which it would be clear that Mr.Kale was not holding the post or else the advertisement would not have been issued. For all these reasons it is contended that the Tribunal was in complete error. 7] My attention was invited to various documents and particuclarly the annexures to this petition, which show that the petitioner along with eight others have been appointed as Shikshan sevaks (full time) on 22nd June 2003. In fact as against the petitioner, it is clearly stated that it is full time appointment and not on clock hour basis. Further, the order of appointment is clear inasmuch as the appointment is with effect from 12th June 2003 to 30th June 2004. Thereafter, the details of the proposals made by the management regarding teachers have been forwarded which included the petitioner and it is contended that if the management had forwarded its 7 wp3012-10.doc statement with regard to the workload of the petitioner, when it sought approval to his appointment, then, it cannot turn around and question petitioner's appointment. If that was the position, the Tribunal should not have dismissed the appeal by holding that petitioner's appointment is not in accordance with the Act and the Rules. For all these reasons, it is submitted that the petition be allowed. 8] On the other hand, my attention is invited by learned AGP appearing on behalf of Dy.Director of Education, Pune (respondent No.3) to the fact that the School Tribunal has held that petitioner's appointment along with individual proposals for approval were submitted during the staff approval camp. The proposal could not be taken on record. The individual approval is granted only in camp held for individual approval. Further, it was notified that there was discrepancy in the appointment order and Management's resolution submitted by respondent Nos. 1 and 2 along with 8 wp3012-10.doc proposal for individual approval. The said clarification was filed before the school tribunal. As far as Mr.Kale's appointment is concerned, it is approved for full time course for the subject in English in Smt.Tarabai Shankarlal Mutha Junior College (for short Mutha College) for the year 2006-07. The papers for sanction of staff approval for the year 2003-04 was under non-grant basis. Accordingly, the Deputy Director granted staff approval for five full time and three clock hour post. As per the letter dated 17th February 2004 of the State Government 20% grant in aid was allowed for standard 11 class and hence respondent No.3 permitted grant of 20% and approved all the posts on clock hour basis of four hours each. The balance workload of non grant basis was not approved by respondent No.3. In these circumstances, it is stated that it is not as if all details pertaining to the appointment of the petitioner and Mr.Kale were not placed before the Tribunal. 9 wp3012-10.doc 9] Mr.Sawant learned Counsel appearing for Management stated that the order passed by the school tribunal is based on factual position pointed out from the record. That order cannot be interfered with in writ jurisdiction because the findings of facts are not perverse or vitiated by any eror apparent on the face of the record. It is not as if the petitioner can succeed by bringing any new documents and materials and relying upon them for the first time before this Court. For all these reasons, this petition be dismissed. However, it is stated that if the petitioner is desirous of applying for post of teacher in English subject in the Junior College of the first respondent, then, that application of the petitioner will be duly considered in accordance with the Rules by the Management and the Management will then communicate its decision to the petitioner. 10] Equally, the AGP states that the respondent No.3 will approve the appointments made by the Management in 10 wp3012-10.doc terms of the Rules as there is sufficient workload for a teacher in English subject in the said junior college. 11] Learned Counse for petitioner has invited my attention to the affidavit in rejoinder and it was argued that it is not correct that the Government sanctioned appointment of petitioner for one year from 2003 to 2004 on non grant basis. It is also not correct that after expiry of one year the limited recognition automatically lapsed. It was resolved that as far as the applicant and others who are similarly situated, the staff strength has been renewed and the proposal to that effect has been sent to respondent No.3. The petitioner got appointment order on probation for the year 2003-04 and 2004-05. He submits that while forwarding the proposal certain errors were committed by the Management but that is not the mistake of the petitioner. The management is responsible inasmuch as from the staff sanction letter dated 2nd September 2003 addressed to the management, it is 11 wp3012-10.doc clear that petitioner's appointment as Assistant Teacher for academic year 2003-2004 and 2004-05 has been mentioned. Thus, it is admitted by the Dy.Director that the petitioner was appointed as full time teacher on probation, which has been approved by respondent Nos. 1 to 3. That in similar circumstances in respect of Mr.Hore, Datir, Waghmare and Ms.Gawali each of whom are placed on par with the petitioner recognition was sought for the same academic years, granting 16 hours workload and this fact is already mentioned in the petition and substantiated by documentary evidence. It also shows that the workload for the academic year was sufficient and there is a case of hostile discremination. For all these reasons, the petitioner's appointment should be taken as proper and legal and there is no need to issue any fresh advertisement or consider the petitioner is case for appointment again. In other words, the petitioner should not be made to apply again as that would defeat the very purpose of the rules and the protection that is 12 wp3012-10.doc given to the teacher thereunder. For all these reasons, it is submitted that the petition be allowed. 12] The petitioner has criticised Tribunal's order as being vitiated by an error apparent on the face of record. The Tribunal has in the impugned order held that the documents that are filed by the parties would indicate that at no point of time there was workload of 17 clock hours for English subject in the school in question. It is on the basis of sanction given by the respondent No.3 for full time course that the petitioner is arguing that thereis full time workload. It is clear from the documents that the Department of Education had included deficit workload from secondary school when the requisite workload was not at all available at any point of time in the concerned school for the subject. The respondent No.3 had prescribed the workload and it was not obligatory to appoint a teacher on permanent post for that subject, if there was lack of adequate work laod. 13 wp3012-10.doc Holding thus, the petitioner's contention was rejected. 13] As far as the case of Mr.Kale is concerned, he was appointed on 17th August 1999 for English but the management deputed him to work as principal in its another college from 1st May 2003. The petitioner contended that Mr.Kale was not qualified. However, the Tribunal has observed that Mr.Kale has passed M.A., with Higher Second Class in 2002 and, therefore, by the time of petitioner's appointment in 2003 Mr.Kale has already acquired requisite qualifications. In these circumstances, as far as Mr.Kale's appointment is concerned, the Tribunal did not accept the plea of the petitioner. The Tribunal has also faulted the petitioner for producing documents which can be styled as appointment orders. They were some sort of documents without any requisite particulars. There was no outward number. They do not bear the date of application by the petitioner. Appointment orders that are being relied upon are 14 wp3012-10.doc only for the leave vacancy and on the basis of such disputed appointment orders, the petitioner cannot claim to be validly appointed. Even the resolution in that behalf were found to be of no assistance. In these circumstances the Tribunal concluded that the appointment was not made on permanent vacancy of full time teacher in English subject, by following prescribed procedure. 14] It appears that the department has now filed an affidavit before this Court and has stated that the Government sanctioned appointment of the petitioner for a period of one year from 2003-04 on non grant basis and after expiry of one year limited recognition automatically lapsed and it was never renewed/ revised. However, in para 4 of the affidavit of respondent No.3 it is stated that the letter dated 18th March 2009 was sent to the School Tribunal pointing out that the Government has recognised that the petitioner is serving as Shikshan Sevak for a period of one year strictly on non 15 wp3012-10.doc grant basis, the application sent by the management to the department for petitioner's approval and the supporting resolution had certaind deficiencies and contradictions and, therefore, the petitioner was not given any approval. 15] Yet in para 6 it is stated that the petitioner came to be appointed by respondent Nos. 1 and 2 as full time teacher in their institution Smt.Gendibai Tarachand Chopra, Junior College, Chinchwad, Pune. The said appointment as per the contention of the petitioner was for the year 2003-04, 2004-05, 2005-06. Further the petitioner contended that there was full time workload for English subject and it is then contended that although the department states that for approved full time posts there should be 16 hours workload, the Tribunal held it is to be 17 hours to constitute full time post. The department has clarified that as per the Government Resolution dated 24th November 2004, although the workload of 17 hours is required for approval of full time 16 wp3012-10.doc post, 3/4th work load available for the post can be clubbed with work load available in the secondary school of the institute and that can be considered for sanction of full time post. Accordingly the respondent No.3 sanctioned full time post for workload of 16 hours. It is stated that it is correct that full time work load was approved by respondent No.3 and the workload of 17 hours is required, hence, 3/4th workload available for post graduate subject can be clubbed with workload available for the secondary school. In these circumstances, Mr.Kale's apointment is approved for full time course for the English subject in Smt.Tarabai Shankarlal Mutha Junior College, Chinchwad, Pune for the year 2006-07. The papers for sanction of staff approval for 2003-04 on non grant basis and more particularly staff approval for five full time and three clock hour basis posts was granted. However, as per the letter dated 17th February 2004 of State Government, 20% grant in aid was allowed for standard XI Arts division of the Institute. Thus, 20% grant 17 wp3012-10.doc was allowed and all the posts on clock hour basis of four hours each were approved. 16] To my mind, this material was not available with the Tribunal. The Tribunal ought to have sought all these clarifications but even the department can be faulted for not placing the same before the Tribunal. The Tribunal also did not have the benefit of the elaborate affidavit filed before the Court by the department of Education. The Tribunal also did not call for proper details from the department in that behalf. There appears to be no reference to the letter dated 18th March 2009 which was addressed to the Presiding Officer, in the impugned order. 17] Upon a perusal of this letter, which is an annexure to the affidavit in reply, it is apparent that Mr.Kale was appointed in a distinct institution. Mr.Kale was working as a teacher in Smt.Tarabai Mutha Kanya Prashala, Chinchwad. 18 wp3012-10.doc As far as petitioner is concerned, the letter states that the petitioner came to be appointed for the year 2003-04 and 2004-05 on non grant basis as full time teacher of Gendibai Chopra Vidyalaya and Junior College, Pune. However, against his name and other Teachers, in the proposals and the resolutions dated 2nd November 2003 and 25th July 2004, it is written as Shikshan Sevak. However, the appointment is in terms of Schedule D and as full time teacher for one year. In these circumstances, there was a deficiency in the appointment orders and resolutions of the Management. Yet, it is stated that as far as Smt.Gendibai Chopra School is concerned, a full time teacher's post in English subject is approved. On that post nobody is appointed and the same is vacant. If such are the state of affairs, then, to my mind, both the management and the Director of Education are to be blamed. The petitioner had been indeed appointed and that is how the department has proceeded. If the department states that petitioner was appointed as against 19 wp3012-10.doc full time vacancy and on full time and permanent basis but his appointment order shows that he was designated as Shikshan sevak and that is the descripancy noted, then, nothing prevented the Management to apply to the department and seek correction of the details, after giving appropriate clarifications. Even the department could have undertaken this exercise. In these circumstances, even if the appeal of the petitioner is dismissed by the Tribunal, that would not be an impediment for the petitioner to seek proper reliefs including that his appointment as a teacher in English for the concerned Junior College be regularised and confirmed. 18] He has given instances of teachers whose names are referred in the same appointment orders, which cases are identical to him and it is contended that all of them are taken to have been properly and validly appointed against a permanent post and, therefore, he cannot be given a 20 wp3012-10.doc different treatment. In other words, the petitioner has been discriminated and in such state of affairs and all this has escaped the attention of the Tribunal. 19] The Dy.Director is stated to be the concerned authority. To my mind, in the peculiar facts and circumstances emerging from the record of the present case, irrespective of the rejection of the appeal by the Tribunal, the petitioner's case and grievances can be directed to be examined by the said Dy.Director of Education. He will have to examine it after giving liberty to the petitioner teacher as also the management. He shall treat the proceedings in that behalf as seeking approval to the petitioner's appointment which was made in the year 2003-04 on par with the teachers whose names are mentioned in the said appointment letter as permanent appointment but categorised as Shikshan Sevak. If the other teachers are given the benefits, then, the said Dy.Director should examine the case of the petitioner, in 21 wp3012-10.doc that light and after scrutiny of the relevant records and documents, he should pass a fresh orders as expeditiously as possible and within four weeks from the date of receipt of a copy of this order. 20] It is expressly clarified that this order and direction is passed in the peculiar facts of this case and after knowing that the petitioner did not have the benefit of the clarification, the relevant Government Resolution and the statements made now before this Court on affidavit with regard to availability of workload. If 16 hours workload is taken to be the criteria, then, that should be uniformally applied. Therefore, irrespective of the findings recorded by the Tribunal, this exercise is necessary and to rule out any favourable and discriminatory treatment to other teachers by excluding the petitioner. Therefore, without being influenced by the order of the Tribunal and that the management's proposal had some deficiencies that the petitioner's case 22 wp3012-10.doc must be re-examined by the Dy.Director of Education. He must summon the necessary records from the management. Equally, he must take into account the statements made on affidavit before this Court and all the concerned Government resolutions and circulars with regard to the appointment of teachers/ Shikshan Sevaks and the workload. The petitioner is free to produce necessary and relevant documents and records. Both sides viz., the petitioner and the manatgement shall appear before the Dy.Director of Education, Pune on 12th September 2011 at 11.00 a.m and thereafter, the Dy.Director of Education should take a decision within the time stipulated above. However, before that he shall give opportunity of hearing to both the petitioner and the management. The Dy.Director shall pass a reasoned order. All contentions of parties are, therefore, kept open. The petition is disposed of in these terms. No costs. 21] Needless to state that if the Dy.Director comes to a 23 wp3012-10.doc conclusion that the petitioner was appointed in the year 2003-04, similarly to Mr.Datir and other teachers, then, he must grant relief identical to those teachers by approving his appointment and releasing the salary grants which are admissible as per rules. (S.C.DHARMADHIKARI, J)