Writ Petition No. 5900 of 2002. Case: Sangita Vidyadhar Malte Vs Nitin Ananda Bansode & Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 5900 of 2002 |
| Counsel | For Appellant: Mr. Uday Malte, i/b. Mr. S.R. Waghmare, Advs. and For Respondents: Mr. Dilip Bodake and Mr. Milind Deshmukh, Advs., Smt. M.S. Bane, A.G.P. |
| Judges | R. D. Dhanuka, J. |
| Issue | Constitution of India - Articles 226, 227 |
| Judgement Date | July 29, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks to impugn the order dated 19th September, 2002 passed by the learned Presiding Officer, Additional School Tribunal, New Mumbai in Appeal No. 68 of 2000 thereby quashing and setting aside the appointment of the respondent no.1 with retrospective effect i.e. from 7th July, 1999 which was issued by memo dated 13th April, 2000 and directing the management to reinstate the respondent no.1 on the same post. The school tribunal also declared that the respondent no.1 shall be entitled for continuity of his services w.e.f. 7th July, 1999 with all consequential benefits, including the salary of his work done from 7th July, 1999 to 24th April, 2000, by recovering the same from the petitioner if paid to her within three months from the date of the said order. The school tribunal directed the Deputy Director of Vocational Training, respondent no.4 herein to consider the proposal of the appointment of the respondent no.1 sent by the management at an early date. Some of the relevant facts for the purpose of deciding this petition are as under:-
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The respondent no.2 is a society which runs a junior college at Navi Mumbai. The respondent no.3 is a Principal of the said college. The petitioner was appointed as full time instructor on 1st October, 1995 in M.L.T. (MCVC) in the college run by the respondent no.2 subject to the approval of the Deputy Director, Vocational and Training Education Department. It is the case of the petitioner that the approval to the appointment of the petitioner was granted by the respondent no.4 from time to time. It is the case of the petitioner that though the work of the petitioner was satisfactory during the two years probation period, by an order dated 20th April, 1999, the management terminated the services of the petitioner on the ground that under misconception that the petitioner had attained superannuation though the petitioner was only 34 years old.
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It is the case of the petitioner that the petitioner thereafter made various representations to the management as well as to the respondent no.4 against the said action on the part of the management in terminating the services of the petitioner on the ground that the alleged superannuation. The management thereafter appointed the respondent no.1 to the said post. The respondent no.4 however did not grant approval to the appointment of the respondent no.1 which was alleged to have been made on 7th July, 1999. Being aggrieved by the said order passed by the management, the respondent no.1 herein filed an appeal before the School Tribunal, Navi Mumbai being Appeal No.68 of 2000 on various grounds inter alia praying for setting aside the said order and for various reliefs. The said appeal filed by the respondent no.1 was resisted by the petitioner herein and also by the management by filing their reply.
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There was a delay in filing the said appeal filed by the respondent no.1. An application for condonation of delay was filed by the respondent no.1 in the said appeal. By an order dated 15th June 2002, the school tribunal condoned the delay in filing the said appeal filed by the respondent no.1. The said appeal was thereafter heard on merits. By an order and judgment dated 19th September, 2002, the learned Presiding Officer, Additional School Tribunal, New Mumbai allowed the said appeal filed by the respondent no.1 and quashed and set aside the cancellation of the appointment of the respondent no.1 with retrospective effect i.e. 7th July, 1999 by the memo dated 13th April, 2000.
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The school tribunal also directed the management to reinstate the respondent no.1 on the same post within 40 days from the date of the said order and directed that the respondent no.1 was entitled for continuity of his service w.e.f. 7th July, 1999 with all consequential benefits, including the salary of his work done from 7th July, 1999 to 24th April, 2000 by recovering the same from the petitioner herein if paid to her within three months from the date of the said order. The school tribunal also directed the respondent no.4 to consider the proposal of the appointment of the respondent no.1 sent by the management at an early date.
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Mr.Malte, learned counsel appearing for the petitioner invited my attention to the various documents annexed to the petition and also from the compilation of the papers and proceedings in the appeal (68 of 2000) filed by the respondent no.1 before the School Tribunal, New Mumbai. It is submitted by the learned counsel for the petitioner that the petitioner belong to an open category and was appointed in the same post as an open category candidate. He submits that since the petitioner was appointed on probation for a period of two years and since the work of the petitioner was found satisfactory upon completion of the probation period of two years, the petitioner has become a permanent employee. The management could not have terminated the services of the petitioner on an erroneous premise that the petitioner had attained the age of superannuation though the petitioner was only 34 years old on the date of such termination order issued by the management.
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It is submitted by the learned counsel for the petitioner that the findings of the school tribunal that the petitioner was appointed as a reserved category candidate and that the procedure regarding the appointment of the petitioner was not followed by the management is contrary to the material produced on record before the school tribunal by the parties. He submits that there was no ground raised in the appeal filed by the respondent no.1 before the school tribunal regarding the appointment of the petitioner in the memo of appeal filed by the respondent no.1 before the school tribunal. The school tribunal did not frame any issue in the said appeal filed by the respondent no.1 insofar as alleged illegal appointment of the petitioner is concerned. The petitioner has not rendered any opportunity by the school tribunal to deal with the issues raised by the respondent no.1. He submits that the school tribunal has framed an issue for the first time in the impugned order and judgment directly which is not permissible in law. He submits that there was no pleading or prayer in the memo of appeal filed by the respondent no.4 for seeking reinstatement of the respondent no.1 for the post on which the petitioner herein was appointed and was relieved by the management.
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Learned counsel for the petitioner invited my attention to the letters dated 12th January 1996 and 3rd November 1997 issued by he Deputy Director of Education to the management granting approval to the appointment of the petitioner.
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Learned counsel for the petitioner placed reliance on the written statement filed by the Education Officer in the appeal filed by the respondent no.1 stating that the appointment of the petitioner was not made as a reserved category candidate but he relied upon the open category. He submits that the school tribunal however did not consider the written statement filed by the Education Officer though the same was on record.
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Insofar as finding of the school tribunal that the petitioner was an average candidate is concerned, it is submitted that the petitioner in any event could not have been relieved on the ground that she was alleged to be an average candidate without conducting any enquiry against the petitioner.
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Insofar as the issue as to whether the Deputy Director could have issued any direction to the management to continue the services of the petitioner is concerned, it is submitted by the learned counsel that the said direction issued by the Deputy Director was an administrative act while performing his duties and was not a quasi judicial order. He submits that the Deputy Director had noticed an irregularity in the order passed by the management and had issued such direction to the management which could not have been faulted with by the school tribunal. He submits...
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