Harihar vs The Education Officer (Secondary), Zilla Parishad and Others

B.P. Dharmadhikari, J.—Heard Shri Jibhkate, learned Counsel for the petitioner, and Shri Patil, learned Assistant Government Pleader for respondent No. 1. Nobody appears for respondent No. 2.

The petitioner claims that he joined employment with respondent No. 2 at its School at Girad initially in the year 1991 and then continued to work every year till 1/8/1995. The School was not receiving grant-in-aid then and he was also sent for vacation B.Ed. Training course. He completed it and Management then appointed him on probation on 1/8/1995. Approval to that appointment was sought and it was temporarily denied on 13/2/1997 on the ground that in his School, which was a Girls'' School, a lady Teacher was not appointed as Head Mistress. There were total five posts and out of which, four were approved on probation. Name of the petitioner was placed at serial No. 5 with remark "as said post of lady Head Mistress was not filled in, the approval is temporarily rejected." The petitioner continued to work and on 8/7/1997, respondent No. 1 granted approval on probation for a period of two years from 12/4/1997, i.e. date on which Head Mistress was appointed in School at Girad. The case of the petitioner is that when Head Mistress was provided in that School, another lady Teacher was sent out on transfer and after approval given to petitioner, petitioner fell within sanctioned strength.

In this background, attention is invited to impugned communication dated 20/3/1998 issued by respondent No. 1 on the subject of absorption of surplus Teachers. Name of the petitioner has been shown at serial No. 4 therein with name of one Shri H.D. Mehrotra at serial No. 5. It is mentioned that as these five Teachers whose names figure in that order did not complete two years of probation, benefit of absorption in terms of Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 could not have been extended to them.

This Court on 4/2/1999 issued notice and directed matter to be heard with Writ Petition No. 256/1999 and in the meanwhile, granted status quo. It is not in dispute that Writ Petition No. 256/1999 was filed by similarly situated Teacher, namely, Shri Mehrotra. This Court has passed further order in the matter on 17/12/1999. After considering the case of petitioner, this Court found that present petitioner was entitled to grant of approval and accordingly directed Education Officer to grant approval to his service for the academic session 1999-2000 and to release his salary. This direction continues to operate even today. On 18/4/2001, while issuing rule in the matter, this Court directed Education Officer to examine the case of petitioners in the present petition as also in Writ Petition Nos. 185/1999 and 256/1999 and to take appropriate decision within a period of eight weeks so that petitions can be disposed of. It was also made clear that in case Education Officer was not in a position to grant approval, respondent No. 2 Management would be responsible to pay salary of those petitioners. The consequential exercise undertaken by the Education Officer thereafter or its outcome is not on record. The petitioner continues to work because of interim orders passed by this Court.

Shri Jibhkate, learned Counsel for petitioner, submits that appointment of petitioner on probation ought to have been considered from 1/8/1995 itself and treating him as probationer from 12/4/997 is contrary to law. He further submits that petitioner could not have been held responsible for not providing a lady Teacher as Head Mistress in School at Girad. Without prejudice, he also submits that petitioner being a subject Teacher, i.e. Teacher appointed for teaching mathematics, his case for approval ought to have been considered first and thereafter all cases of other Teachers, namely, W.H. Shisthe, V.B. Belurkar, P.M. Raut and M.R. Kambde should have been considered. In any case, according to him, as petitioner has continued since 1999 till date, i.e. for more than 16 years and has got approval, petition now needs to be allowed.

Shri Patil, learned Assistant Government Pleader for respondent No. 1, is opposing the petition. According to him, though Management appointed petitioner on probation from 1/8/1995, the post of Head Mistress in Girls'' School was not filled in and hence, appointment of petitioner could not be approved on 13/2/1997. He states that Teachers, who are given approval against first four posts, were senior in employment to petitioner as they had obtained B.Ed. qualification or other equivalent qualification before petitioner. The petitioner being last person to enter was not approved as one post needed to be kept reserved for accommodating a lady Head Mistress. When lady Head Mistress was provided, on 8/7/1997 the petitioner was given approval with effect from 12/4/1997. As such, while preparing list of surplus Teachers, employment of petitioner before 12/4/1997 could not have been looked into and as petitioner was junior, he was declared surplus. It is contended that in this situation, no interference is warranted in the present matter. The learned Assistant Government Pleader also submits that as matter has been called out for final hearing after almost 16 years, he should be given time to obtain instructions on current position.

This Court has passed order on 17/12/1999 directing respondent No. 1 to grant approval to petitioner and to release his salary in absence of any reply from respondent No. 1. On 18/4/2001 this Court issued directions to Education Officer and compliance thereof is still not on record.

Insofar as placement of petitioner in School is concerned, the fact that on 8/7/1997 he has been given approval from 12/4/1997 is not in dispute. He has been declared surplus as his service prior to 12/4/1997 has been ignored. Perusal of the impugned order dated 20/3/1998 shows that when Teachers were rendered surplus, petitioner had not put in two years of service and, therefore, had not completed period of probation. We find this conclusion incorrect. The facts on record show that petitioner was appointed on probation on 1/8/1995 and accordingly approval to his appointment was sought. The order dated 13/2/1997 shows that Management had submitted proposal for approval on 19/9/1996. There date of appointment of petitioner has been shown as 1/1/1992. However, it is also pointed out that he obtained B.Ed. qualification in 1995. Only reason for not granting him approval then was failure or omission on the part of Management to appoint a lady Teacher as Head Mistress in the School at Girad. The petitioner could not have been blamed for it. He has been working since 1/8/1995 and as such, his performance from the said date should have been judged to find out whether he has completed period of probation. On 8/7/1997, the Education Officer has found that as on 12/4/1997 a Head Mistress was provided, the petitioner is entitled to approval from the said date. Thus, according to respondent No. 1, period of probation of petitioner began from 13/4/1997. In this situation, we find that services rendered by the petitioner from 1/8/1995 till 12/4/1997 could not have been ignored. Till this date, the petitioner has put in almost 16 years of service on the strength of interim orders of this Court. He has put in 20 years of service from 1/8/1995. As such, we are not inclined to disturb his appointment and continuation. We direct respondent No. 1 to recognise and accept his service from 1/8/1995 till 12/4/1997 and to treat him as probationer from 1/8/1995 and as on regular establishment from 1/8/1997.

The discussion above shows that the fifth or available post in School at Girad was occupied by petitioner only from 1/8/1995 till 12/4/1997. After that date, though a lady Teacher was promoted as Head Mistress there, one lady Teacher was sent out. Thus, again petitioner was within sanctioned strength. In this situation, we direct that petitioner''s seniority shall be computed from 1/8/1995 for the purpose of pension and other benefits. The impugned order dated 20/3/1998 declaring petitioner surplus is quashed and set aside. The writ petition is thus partly allowed and disposed of. No costs.