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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITON NO.3803 OF 2002
PETITIONERS:
1] The Management Shri Shivaji High School, Sakharkheda, District : Buldhana,
through its Secretary,C/o Shri Shivaji High School, Sakharkheda, District :
Buldhana
2] The Headmaster Shri Shivaji High School Sakharkheda, district : Buldhana
VERSUS
RESPONDENTS:
1] The Presiding Officer, School Tribunal, Amravati.
2]
Sanjay Ramrao Folaney, aged about 30 years, resident of Ward no.13, Near
Adarsha Vidyalaya, Chikhli, district : Buldhana
3] The Education Officer ( Secondary ), Zilla Parishad, Buldhana.
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Shri Madhav Lakhe, advocate for the petitioner
Shri S.D.Desai, h/o P.B. Patil, advocate for respondent no.1
Shri S.B. Ahirkar, AGP for respondent no.3
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CORAM: SMT. VASANTI A. NAIK, J.
DATE: DECEMBER 09, 2009
ORAL JUDGMENT
By this petition, the petitioner challenges the order passed by the Presiding
Officer, School Tribunal, Amravati on 26.3.2002 holding that the respondent no.2
was entitled for salary from 31.3.1997 till the date of order i.e. 26.3.2002.
2] The respondent no.2 had filed an appeal before the Presiding Officer, School
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Tribunal, Amravati under section 9 of the M.E.P.S. Act 1977. It was the case of the
respondent no.2 that he was appointed as a Assistant Teacher on 8.3.1996 and his
services were illegally terminated by communication dated 31.3.1997. During the
pendency of the appeal filed by the respondent no.2 an order was passed by the
School Tribunal, Amravati staying the effect and operation of the termination order
dated 31.3.1997. With the result the respondent no.2 continued in services of the
petitioner during the pendency of the appeal, till the appeal was decided on
26.3.2002. In such circumstances, the Tribunal held that the respondent no.2 was
entitled for salary from 31.3.1997 till the date of order i.e. 26.3.2002. The judgment
dated 26.3.2002 is impugned by the instant petition.
3] Shri Lakhe, the learned counsel for the petitioner submitted that the Tribunal
was not justified in directing the petitioner to pay the salary of the respondent no.2
from 31.3.1997 till. 26.3.2002. The learned counsel for the petitioner submitted that
the services of the respondent no.2 were continued in terms of the interim order
passed by the Tribunal. The learned counsel for the petitioner then submitted that the
respondent no.2 had issued a communication dated 6.1.1997 to the Headmaster of
the School in which he had categorically stated that he would not claim the salary
from the management, but they must permit him to sign on the muster roll. It is
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submitted on behalf of the petitioner that this communication is in the form of an
undertaking and hence the respondent no.2 is not entitled to the salary from
31.3.1997 to 26.3.2002.
4] Shri S.D. Desai, the learned counsel holding for Shri P.B. Patil, the learned
counsel for the respondent no.2 supported the order passed by the Tribunal and
submitted that the respondent no.2 had indeed worked as a teacher with the
petitioner society till 26.3.2002 in view of the interim orders passed by the School
Tribunal and hence the Tribunal has rightly directed the petitioner to pay the salary
of the respondent no.2. The learned counsel for the respondent no.2 then submitted
that the communication dated 6.1.1997 is issued much earlier to the Headmaster
with a prayer to permit the respondent no.2 to sign on the muster roll, but since this
was not done, the appeal was filed and hence the communication cannot be
considered by this court for denying the salary to the respondent no.2. The learned
counsel for the respondent no.2 sought for the dismissal of the writ petition.
5] Shri Ahirkar, learned AGP appearing on behalf of respondent no.1 and 3
supported the order passed by the School Tribunal on 26.3.2002 and sought for the
dismissal of the writ petition.
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6] I have considered the submissions made on behalf of the parties and have
perused the impugned order. It is an admitted position that the respondent no.2 was
working with the petitioner society from 31.3.1997 till 26.3.2002 in view of the
interim order passed by the School Tribunal. In such circumstances, since the
respondent no.2 had actually worked as a Teacher with the petitioner during the
relevant period, no fault can be found with the judgment of the School Tribunal
directing the petitioner to pay the salary to the respondent no.2. The petitioner
cannot take advantage of the communication dated 6.1.1997, issued by the
respondent no.2 to Headmaster of the school. This is not in the form of an
undertaking. After filing of an appeal, even if there was such an undertaking, the
same was against public policy. In such circumstances, the submission made on
behalf of the petitioner on the basis of communication dated 6.1.1997 is liable to be
rejected.
7] In the result the writ petition fails and is dismissed with no order as to costs.
JUDGE
smp.
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