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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