Writ Petition No. 10769, 10797 and 12038 of 2015. Case: Sant Kabir Shikshan Prasarak Mandal and Ors. Vs Azhar Khan and Ors.. High Court of Bombay (India)

Case NumberWrit Petition No. 10769, 10797 and 12038 of 2015
CounselFor Appellant: R.N. Dhorde h/f V.S. Kadam, Advocate and For Respondents: P.M. Shinde, Advocate
JudgesR. V. Ghuge, J.
IssueService Law
Judgement DateApril 18, 2016
CourtHigh Court of Bombay (India)

Judgment:

R. V. Ghuge, J.

  1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

  2. The first petition is filed by the Educational Institution (hereinafter referred to as the 'employer/Management'). The second petition is filed by Mrs. Rajani Bhimrao Wagh, who is respondent No. 3 in the first petition (Hereinafter referred to as the 'new employee'). The third petition has been filed by Mr. Azhar Khan, who is respondent No. 1 in the first petition (hereinafter referred to as the 'Appellant Employee').

  3. These 3 petitions have been filed by the respective litigating sides challenging the same judgment and order dated 05/08/2015 delivered by the School Tribunal in Appeal No. 31/2012. The said appeal was filed by the Appellant Employee and by the impugned judgment, his appeal has been allowed and the Management has been directed to reinstate him in service.

  4. Mr. R.N. Dhorde, the learned Senior Advocate appearing on behalf of the Management submits as under:--

    "[a] On 05/05/2000, the Management published an advertisement in "Dainik Vishwamitra" Aurangabad Edition thereby calling for applications for appointment of teachers and Shikshan Sevak (2 posts) which were reserved for the ST and NT category. The required qualification was B.A.B. Ed.

    [b] It is stated that the Appellant Employee was appointed on 10/07/2000 as an "Assistant Teacher" against the ST category.

    [c] The tribe certificate became necessary since the post was reserved for the ST category.

    [d] The Appellant Employee claimed to be belonging to the "Tadvi" tribe which fell in the Scheduled Tribes Category.

    [e] The Management was consistently pursuing the Appellant Employee to submit his tribe certificate so that his proposal would be forwarded to the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 for obtaining the Tribe Validity certificate.

    [f] Grievance is that the Appellant Employee continued to dodge the Management and in effect declined to submit the said certificate.

    [g] Mr. Dhorde, placed his reliance upon the GR dated 18/12/2003 by which any employee appointed against a reserved post for the tribe mentioned is under a mandate to produce the validity certificate.

    [h] On 05/05/2004, the Head Master informed the concerned Appellant Employee to submit his tribe certificate so as to enable the Management to forward the same to the Validation Committee. He was given a deadline upto 30/05/2004. He has received the said letter.

    [i] Despite the same, he has failed to submit his tribe validity certificate.

    [j] Mr. Dhorde hastens to add that all other employees, who were similarly directed, have promptly submitted their certificates which were forwarded to the appropriate committees and their claims have been validated. It was only the said Appellant Employee who continue to dodge the Management.

    [k] Mr. Dhorde submits that a letter dated 11/05/2004 bearing O/W No. 431/2004 was addressed to the Research Officer of the Divisional Caste Claim Validation Committee and the same letter was handed over to the Appellant Employee to be submitted to the competent authority. He received the said letter, but did not forward it to the Tribe Validation Committee for validation and kept the said letter with himself.

    [l] He further submits that from 2005, the Appellant Employee started remaining unauthorisedly absent and did not report for duties.

    [m] Since he did not turn out for reporting for duties, the Management presumed that he has abandoned his service.

    [n] He approached the School Tribunal in August 2009. After the delay was condoned by this Court, his appeal was registered on 27/09/2012. Same has been allowed by the impugned order.

    [o] He further submits that the documents at Page Nos. 51 to 57 of the first petition paper book would indicate that the Management brought to his notice that he was remaining unauthorizedly absent.

    [p] He, therefore, submits that despite the reminders of the Management about the unauthorized absence, he did not turn up for duties.

    [q] He submits that the Management published another advertisement dated 06/12/2005 in "Dainik Sakal" Aurangabad Edition calling for applications for the vacant position, in the light of the vacancy created by the said employee owing to his abandonment of service.

    [r] Respondent No. 3 in the first petition, the new employee, was then appointed in place of the Appellant Employee on 14/12/2005. Her services were approved by the Education Officer on 07/08/2008.

    [s] Mr. Dhorde, therefore, submits that the new employee has now been working for almost 10 years. The Appellant Employee could not have been reinstated in place of the new employee since she has acquired a permanent approval to her appointment."

  5. Mr. Dhorde, strenuously submits that the Appellant Employee does not have the right to claim reinstatement since he is the Architect of his termination. Because of his refusal to submit his tribe certificate, he could not have continued in service and has himself abandoned service.

  6. Mr. Dhorde has criticized the impugned judgment severely. He submits that the Tribunal should have consider the fact that the Appellant Employee was avoiding submission of his tribe certificate and approaching Tribe Validity Committee since he did not have a genuine Tribe certificate. In these circumstances, if the Management has presumed abandonment, no fault can be found with the Management and respondent No...

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