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Judgment
1] Petitioner in Writ Petition No.385/2004 is retired employee of petitioner in Writ Petition No. 587/2004. Said relationship continued till absorption of
employee by another management after order of this Court, dated 16.04.2004. This order reads as under:
Heard Mr. Deshpande, Adv. for Petitioner, Mr. Khubalkar, A.G.P for respondent No.1 & 4 and Mr. Naik, Advocate for respondent no.3.
Rule.
Interim orders in terms of prayer clause (E). It is made clear that the issue of responsibility of payment of salary of petitioner is left open and shall be
decided at the stage of final hearing. It is further directed that the petitioner be placed in the list of surplus Teachers and shall be entitled to be
absorbed in accordance with rules. His salary from this point of time shall be paid by the Education Department as per law. His entitlement for arrears
and salary and responsibility thereof shall be considered at the stage of final hearing.
2] In the light of this order, employee now seeks backÂwages from November 1999 to April 2001 and thereafter, from January 2002 to
14.04.2004. He has not been paid those wages basically on the ground that there was no approval to his appointment during said period. By order
dated 08.12.1999, office of Deputy Director has rejected approval to his appointment for the year 1999Â2000 observing that there was no workÂload
in Junior College for him. On 22.10.1999 said authority forwarded communication to his employer that unless approval was given by said office, salary
bills could not be submitted. It is in this backdrop, we have heard Advocate Shri Deshpande for petitionerÂJunior College, Advocate Shri Naik for
petitionerÂManagement and Mrs. A.R. Kulkarni, learned A.G.P. for Deputy Director of Education.
3] According to Advocate Deshpande, though approval was initially rejected on 22.04.1992 giving reason of pending appeal before School Tribunal,
the department continued to release salary of petitioner till October 1999.
4] It is further submitted that later on 15.02.1993 the Deputy Director of Education did not take any decision on the subject of approval as matter was
sub judice before School Tribunal. Learned counsel submits that either way the proposal for approval therefore, was not rejected.
5] Because of reinstatement orders passed in appeal filed by another employeeÂShri D.K. Babhare in Appeal No.115/1986 on 26.03.1991,
management served order of termination dated 01.04.1991 upon employee Shri Hadke. He challenged it in Appeal No.44/1991. The School Tribunal
protected his employment and this protection continued till 07.07.1999 when the appeal was disposed of because of pursis filed on 08.01.1999.
Management had withdrawn the notice of termination served upon him and therefore, appeal became infructuous. School Tribunal accordingly
disposed of that appeal.
6] After rejection of approval on 08.12.1999 giving reason of absence of workÂload, Shri Hadke filed Writ Petition No.4734/1999 in the High Court.
The management in that petition came up with defence that pursis tendered to School Tribunal was not signed by it. Hence, on 15.03.2001 Division
Bench of this Court disposed of said writ petition by quashing order dated 07.07.1999 and restoring/reviving the appeal before School Tribunal. The
services of Shri Hadke were protected by continuing interim order. With the result, Appeal No.STN/44/1991 earlier disposed of on 07.07.1999
revived. Advocate Shri Deshpande submits that thus, on 25.06.2002 when that appeal was again decided, Deputy Director of Education is party to
that adjudication. He points out that then School Tribunal has granted relief of reinstatement but backÂwages were to be recovered from
management. Our attention is also invited to findings recorded in paragraph no.7 to demonstrate that Shri Hadke, then is not found appointed against
vacancy caused by termination of Shri Babhare. In other words, it is demonstrated that on account of reinstatement of Shri Babhare by School
Tribunal, the management could not have terminated petitioner on 01.04.1991.
7] Termination order dated 01.04.1991 issued by employer mentions that Shri Hadke was appointed against post occupied by employee Shri Babhare.
This issue has been looked into by School Tribunal after appeal was restored to it by Division Bench of this court. In judgment delivered on
25.06.2002, the School Tribunal has in paragraph no.7 taken note of the fact that even management before it did not dispute contention of Shri Hadke
that he was not appointed in place of Shri Babhare. Independently School Tribunal also records that there are no documents to show such appointment
of Shri Hadke. This finding is in proceeding in which Deputy Director of Education is respondent no.4. School Tribunal has in same paragraph
observed that there is no provision in M.E.P.S. Act to terminate services of Shri Hadke to accommodate another employee. If Shri Hadke was found
surplus management could have taken to recourse to law by approaching competent authority for getting him declared surplus. It is in this backdrop
that order of termination is found vitiated and relief of reinstatement with continuity has been awarded. However, the School Tribunal has observed
that he is entitled to receive salary from management.
8] Here it is important to note that though there was order of termination on 01.04.1991, that order was never implemented and because of interim
order granted by School Tribunal and High Court, Shri Hadke continued in service. Thus, on 25.06.2002 School Tribunal was not deciding question of
grant of backÂwages. The observation of School Tribunal about entitlement of Shri Hadke to receive salary from management therefore, cannot be
construed to mean that management was not entitled to claim grants for such payment or then the management was to shoulder the responsibility
thereof.
9] Order dated 22.04.1992 rejecting approval for the year 1991Â1992 to the appointment of Shri Hadke as Junior College Teacher records a reason of
absence of any action by management to reinstate though School Tribunal granted interim stay to Shri Babhare. This reason therefore, does not
remain valid after the judgment delivered by School Tribunal on 25.06.2002. It therefore, follows that for the year 1991Â1992 Shri Hadke then holding
qualification of M.Com (1st class) with B.Ed. and engaging classes in Economic Library and Accounts (as per approval rejection order) is entitled to
be treated as approved Junior College Teacher. Surprisingly, in next year i.e. on 15.02.1993 while considering case of Shri Hadke for grant of
approval for the year 1992Â1993 Deputy Director of Education expressly records that no decision on approval has been taken as matter was sub
judice before School Tribunal. As already noted supra, though approval was rejected earlier or then no decision was taken on it later, the salary bill,
have been honoured by Education Department and salary for Shri Hadke has been released by State Government.
10] When on 15.02.1993 Deputy Director of Education did not take any decision because matter was pending before School Tribunal, it is obvious that
decision on approval was to be taken after adjudication by School Tribunal. Decision therefore, was contingent upon judgment dated 25.06.2002. After
appeal was allowed with express finding that appointment of Shri Hadke has no bearing on post of Shri Babhare, it automatically follows that decision
then kept pending on 15.02.1993 should have been taken and approval needed to be accorded to Shri Hadke. With the result, petitioner continues in
employment with approval from 1991Â1992 onwards till the appeal was allowed by School Tribunal.
11] We have already taken note of facts which show that only claim for salary from November 1991 to April 2001 and from January 2002 to
14.04.2004 needs to be considered in present writ petition. When petitioner is found approved in the year 1991Â1992 and thereafter in the year
1992Â1993 and he has continued to perform his duties without any break because of court order, it follows that he is also entitled to salary for this
period.
12] Today, with leave of court learned A.G.P. Mrs. Kulkarni has cited judgment of the Hon’ble Apex Court in the case of Educational Society,
Tumsar & Ors. Vs. State of Maharashtra & Ors. reported at 2016(2) ALL MR 947 (S.C.). She submits that as held in paragraph 10 of said judgment,
the State Government cannot be asked to pay backÂwages. We have already concluded above that in present case, there is no question of paying any
backÂwages and in totality of facts, are line in the judgment of School Tribunal that petitioner is entitled to receive salary from management, does not
mean that State Government is discharged of its obligation to release salary grants for him or then management is disqualified to claim its
reimbursement. In reported judgment Hon’ble Apex Court has taken note of the fact that State Government had no role to play in passing order of
termination. Thus, when there was no fault on part of State Government, Hon’ble Apex Court has held that public revenue cannot be made to
suffer and a person who has not worked cannot be paid backÂwages through public revenue. Here that is not the position as petitioner Shri Hadke
has continued to work and earn salary through public exchequer only. He has also retired after reaching age of superannuation in the year 2015.
13] In this situation, as Shri Hadke was always approved Junior College Teacher, we direct respondent no.2ÂDeputy Director of Education to release
his salary for the period from November 1990 to April 2001 and January 2002 to 14.04.2004 within six months from today. Writ Petition No.385/2004
is accordingly allowed and disposed of.
14] Coming to Writ Petition 587/2004, the employer management has approached this court for a direction to Deputy Director of Education to release
salary of Shri Hadke. Their effort is to see that department grant proper approval to Shri Hadke. Learned A.G.P. has pointed out that judgment of
School Tribunal dated 25.06.2002 was questioned by management in Writ Petition No.25/2003 and that writ petition was dismissed on 09.06.2003 by
learned Single Judge of this Court. Though the fact that Writ Petition No.25/2003 filed by management is dismissed on 09.06.2003 by learned Single
Judge of this court is not in dispute, that dismissal is for want of prosecution. In any case in the light of observations on judgment of School Tribunal
made supra, it does not come in the way of management at all in either seeking approval or then salary grant for Shri Hadke. Approval and receiving
salary through grants is an independent right even in Shri Hadke. As this Writ Petition No.385/2004 is allowed, we therefore, do not find it necessary
to pass any other order or direction in Writ Petition No.587/2004.
15] Accordingly, Writ Petition No.385/2004 is allowed by making rule absolute in above terms with no order as to costs.
16] Consequently, no orders, are required in Writ Petition No.587/2004 it is disposed of. No costs.