Bombay High Court High Court

The Maharashtra Shikshan Samiti vs The State Of Maharashtra on 19 January, 2010

Bombay High Court
The Maharashtra Shikshan Samiti vs The State Of Maharashtra on 19 January, 2010
Bench: S.A. Bobde, V. A. Naik
    WP 4771/09                                        1                            Judgment


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                       
                   NAGPUR BENCH, NAGPUR.




                                                               
                         Writ Petition NO. 4771/2009




                                                              
    1.           The Maharashtra Shikshan Samiti,
                 Shirala, through its President, 
                 R/o Shirala, Tq. And District :
                 Amravati.




                                              
    2.           Late Bhagirathibai Deshmukh
                 Jr. College, through its Principal
                 Rathi Nagar, Shegaon Naka,
                            
                 Tq. and District : Amravati.                                PETITIONERS

                                    .....VERSUS.....
                           
    1.           The State of Maharashtra,
                 Department of School Education and Sports,
                 through its Secretary, Mantralaya,
      


                 Mumbai.
   



    2.           Deputy Director of Education, 
                 Amravati Division, Amravati.

    3.           Dinesh Umraoji Korde,
                 Aged about 41 years, Occ: service,





                 R/o Khairy Post, Kalashi,
                 Tq. Daryapur, District : Amravati.                         RESPONDENTS

                                   ______________________________________________ 
                            Mr. A.S. Kilor, counsel for the petitioners.





        Mrs. B.H. Dangre, Additional Government Pleader for the respondent 
                                            nos. 1 and 2.
                      Mr. V.A. Kothale, counsel for the respondent no.3.

                 CORAM  : S.A. BOBDE  AND
                          SMT. VASANTI A. NAIK, JJ.

th
DATE : 19
JANUARY, 2010
.

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WP 4771/09 2 Judgment

ORAL JUDGMENT (Per S.A. BOBDE, J.)

RULE. Rule returnable forthwith. Heard by consent.

2. The petitioners have challenged the order dated 09.06.2009

by which the Deputy Director of Education, Amravati Division, Amravati

has directed the petitioner-management, inter alia, to pay salary for the

years 1997-98 and 2000-01 to the respondent no.3-teacher. The Deputy

Director of Education has also held that the respondent no.3’s approval

has rightly been rejected.

3. The petitioners appointed the respondent no.3 as a teacher

and the appointment was made subject to the approval of the Education

Department in accordance with law. It appears that the salary was not

paid to the respondent no.3 for the years 1997-98 and 2000-01. It

appears that since the Department did not approve the services of the

respondent no.3, the salary was not paid for the year 1997-98 and 2000-

01. There is no dispute that the respondent no.3 has not been in service

from 2001-02.

4. The respondent no.3, thereafter, filed a Writ Petition

No.5794/2006 and this Court by an order dated 27.04.2009 directed the

respondent therein to consider the question of approval after hearing the

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WP 4771/09 3 Judgment

parties. This Court did not grant the prayer made in the writ petition for

payment of salary.

5. Thereafter, the matter was decided by the Deputy Director of

Education, who has, by the impugned order, held that the respondent

no.3’s approval was rightly rejected but, has directed the management to

pay salary to the respondent no.3 for the years 1997-98 and 2000-01.

6.

Mr. Kilor, the learned counsel for the petitioners, submitted

that the order of the Deputy Director of Education, to the extent that it

directs payment of salary, is without jurisdiction and in any case void for

want of notice to the petitioners calling upon them to show cause why

salary should not be directed to be paid. The salary for the year 1997-98

and 2000-01 could not have been directed to be paid by the order passed

in pursuance of a claim, made for the first time in the year 2006 in the

aforesaid writ petition and eventually granted by an order dated

09.06.2009.

7. Having considered the matter, we are of the view that the

Deputy Director of Education did not have the power to recover the salary

and direct it to be paid to the respondent no.3. The law does not confer

any such power on the Deputy Director of Education. Moreover, the

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WP 4771/09 4 Judgment

claim for unpaid salary for the years 1997-98 and 2000-01 was barred by

the delay and laches. It is settled law that a money claim, which is barred

by limitation, cannot be directed to be paid over to the claimant on the

principle that limitation bars the remedy and not the right. In this case,

the respondent no.3 raised the demand for salary by way of writ petition

for the first time in the year 2006. That claim was not adjudicated upon

in the writ petition. Suffice it to say, it was barred even at that stage.

Thereafter, the order has been passed by the Education Officer in the year

2009. It is, thus, clear that the claim for unpaid salary is barred by law

and in any case could not have been granted by the Education Officer. In

the case of Municipal Council, Ahmednagar & another Versus Shah Hyder

Beig & others, reported in 2001 (I) SCALE 124, the Supreme Court

observed in paragraph 13 as follows:

“It is now well-settled principle of law and we need not dilate on

this score to the effect that while no period of limitation is fixed but in the

normal course of events, the period, the party is required for filing a civil

proceeding ought to be the guiding factor. While it is true that this

extraordinary jurisdiction is available to mitigate the sufferings of the people

in general but it is not out of place to mention that this extraordinary

jurisdiction has been conferred on to the law courts under Article 226 of the

Constitution on a very sound equitable principle. Hence, the equitable

doctrine, namely, ‘delay defects equity’ has its fullest application in the

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WP 4771/09 5 Judgment

matter of grant of relief under Article 226 of the Constitution. The

discretionary relief can be had provided one has not by his act or conduct

given a go-bye to his rights. Equity favours a vigilant rather than an

indolent litigant and this being the basic tenet of law, the question of grant

of an order as has been passed in the matter as regards restoration of

possession upon cancellation of the notification does not and cannot arise.”

8. We, thus, have no hesitation in holding that the respondent

no.3’s claim for unpaid salary was barred and in any case could not have

been granted by the Deputy Director of Education.

9. Mr. Kothale, the learned counsel for the respondent no.3,

submitted that the limitation for claiming salary began to run from the

date, a decision was taken on the approval of the respondent no.3’s

service.

10. It is not possible to accept this argument since even by the

impugned order, the respondent no.3’s service has not been approved.

Even otherwise, the liability to pay the salary is not made dependent

upon the approval of the service of a teacher. In this view of the matter,

Rule is made absolute in terms of prayer clause (1), which reads as

follows.

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WP 4771/09 6 Judgment

Issue any appropriate writ, order or directions in the

nature of mandamus and thereby quash and set aside

impugned order dated 09.06.2009 (Annexure-I),

passed by the respondent no.2 Deputy Director of

Education, Amravati Division, Amravati to the extent

the respondent no.2 has directed the petitioners to

deposit amount of arrears of salary within 30 days from

the date of the order in favour of respondent no.3, in

the interest of justice.

11. The writ petition is disposed of accordingly. No order as to

costs.

                               JUDGE                                     JUDGE 





    APTE





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