Janabai Nivrutti Saune v. Dharmveer Shambhuraje & Ors.

1. Rule.

2. Rule is made returnable forthwith. With the consent of parties, petition is taken up for final hearing.

3. Petitioner is aggrieved by the judgment and order dated 06 January 2022 passed by the Presiding Officer, School Tribunal, Pune (Tribunal). Petitioner had challenged order dated 01 February 2020 terminating her service w.e.f. 06 February 2020 in her Appeal No.14 of 2020 before the Tribunal. The Tribunal has proceeded to allow the appeal holding that Petitioner’s termination was against the provisions of law. However instead of granting reinstatement, the Tribunal has directed the management to pay 6 months’ salary to her in lieu of compensation as per Section 11 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act 1977 in addition to costs of Rs.10,000/-. Petitioner is aggrieved by the judgment and order of the Tribunal to the extent of denial of relief of reinstatement in service.

4. Briefly stated, facts of the case are that Petitioner holds educational qualification as H.S.C., D.Ed. She belongs to Special Backward Class (S.B.C.) category. An advertisement was issued by the respondent management for filling up the post of Assistant Teacher on 29 February 2012. Petitioner applied in pursuance of the advertisement and came to be selected and appointed on the post of Assistant Teacher vide order dated 01 January 2013.

5. Shortly after appointment of Petitioner, two more Assistant Teachers Vede Shahaji Baban and Bhandare Sharad Subhash were appointed as Assistant Teachers on 01 March 2013. The Education Officer (Secondary), Zilla Parishad, Pune granted approval to petitioner’s appointment vide order dated 17 July 2014. By the same order, approval was also granted to appointment of other two teachers Vede Shahaji Baban and Bhandare Sharad Subhash.

6. Petitioner’s services were terminated on 08 August 2017 on account of cancellation of approval by the Education Officer vide letter dated 01 August 2017. She challenged the termination order by filing appeal No.06 of 2018 before the Tribunal. The appeal was partly allowed setting aside the termination order and directing respondent management to reinstate her in service. Petitioner was accordingly reinstated in service.

7. It appears that a letter was issued to Petitioner on 15 November 2019 giving her an intimation that she was rendered surplus in accordance with sanctioned strength approved for the year 2015-16 to 2018-19. Accordingly, termination order dated 01 August 2020 was issued to Petitioner terminating her service with effect from 06 February 2020 on the ground that one post of Assistant Teacher for 5th Standard was reduced in the approved sanctioned strength of the school for the year 2015-16 to 2018-19 and the post held by the Petitioner against S.B.C. reservation was rendered surplus.

8. Petitioner challenged the termination order dated 01 November 2020 before the Tribunal by filing appeal No.14 of 2020. Respondent management filed reply resisting the appeal. The Tribunal by its judgment and order dated 06 January 2022 proceeded to partly allow the appeal holding that termination of Petitioner was illegal. However, it refused to grant relief of reinstatement, but granted compensation in the form of 6 months’ salary in addition to costs of Rs.10,000/-. Petitioner is aggrieved by the judgment and order dated 06 January 2022 to the extent of denial of relief of reinstatement and has accordingly filed the present petition.

9. Mr. Kadam, the learned counsel appearing for Petitioner would submit that the Respondent management did not follow the principle of ‘last come first go’ while terminating Petitioner’s services. He would invite my attention to the approval dated 14 July 2014 to demonstrate that petitioner is senior to Vede Shahaji Baban and Bhandare Sharad Subhash and that if there was indeed any abolition of any post, the juniormost teacher viz. Bhandare Sharad Subhash ought to have been terminated. He would further submit that this point was specifically raised in paragraph No.12 of the appeal, but has not been decided by the Tribunal.

10. Mr. Kadam would place reliance on Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981 (Rules of 1981) in support of his contention that for effecting retrenchment on account of abolition of posts, principle of seniority is required to be followed in addition to obtaining prior approval of the Education Officer. He would also place reliance on Rule 27(e) in support of his contention that members of Backward Class already in service cannot be terminated even though they are liable to be retrenched as per principle of seniority. He would also invite my attention to the reservation roster, under which the Respondent management has appointed teachers from open category in excess of the sanctioned strength. That therefore if at all there was any need for retrenchment on account of surplus staff, Respondent management ought to have terminated services of Bhandare Sharad Subhash, who was appointed in General Category in excess of the sanctioned strength. Lastly, Mr. Kadam would submit that Petitioner has not been paid salary since the year 2013 and despite there being a specific prayer demanding salary from 2013 in the appeal, the Tribunal has not adjudicated the said prayer. He would therefore pray for setting aside the impugned judgment and order of the Tribunal.

11. Per contra Mr. Nikam, the learned counsel appearing for Respondent Nos.[1] and 2 would oppose the petition and support the order passed by the Tribunal. He would submit that till the academic year 2013-14, there were total 04 posts of undergraduate teachers for standard 1st to 5th, out of which two were aided and two were unaided. That during the academic year 2014-15 one post was reduced and only three posts were sanctioned, out of which two were aided and one was unaided. The same position continued till the academic years 2014-15 and 2015-16. That though post held by Petitioner was not sanctioned from the academic year 2014-15 onwards, Respondent management continued her services till the year 2020. That her services were required to be terminated in the year 2020 as the post occupied by her remained surplus for four to five years before her termination.

12. Mr. Nikam would further submit that the order dated 14 July 2014 relied upon by Petitioner does not reflect seniority position of Assistant Teachers. He would distinguish between case of Petitioner and other two Assistant Teachers Vede Shahaji Baban and Bhandare Sharad Subhash by pointing out that they are Graduate Teachers drawing higher pay scale. He would submit that Petitioner being Undergraduate Teacher, was the junior most and has rightly been terminated. That therefore there is no violation of Rule 26 as alleged by the Petitioner. So far as the reliance of the Petitioner on Rule 27 is concerned, Mr. Nikam would point out that the special provision under Rule 27(e) is subject to the caveat of the strength of Backward Class teacher falling within the permissible percentage of reservation. He would submit that as per the reservation roster, no post is sanctioned for S.B.C. category and Petitioner was erroneously continued in absence of any reservation for S.B.C. category. So far as non-payment of salary from the year 2013 is concerned he would submit that Respondent management has paid salary to Petitioner from time to time. He would pray for dismissal of the petition.

13. Rival contentions of the parties now fall for my consideration.

14. The Tribunal has already held the termination order to be bad in law on account of failure to give prior notice to the Petitioner or failure to pay salary in lieu of such notice. The Respondent-Management has not challenged the order of the Tribunal. Thus, the illegality in termination order, to the extent of failure to give notice, is admitted by the Respondent-Management.

15. Petitioner is aggrieved by denial of relief of reinstatement by the Tribunal despite finding termination order to be illegal. It is Petitioner’s case that she was not the junior most employee who could be terminated on account of abolition of post. Additionally, it is Petitioner’s case that since she belongs to Backward Class, her service could not have been terminated even if retrenchment was necessitated on account of abolition of posts. It is on these grounds that Petitioner has claimed the relief of reinstatement in the present petition. I accordingly proceed to examine the said contentions raised by the Petitioner.