{"id":98262,"date":"2010-11-15T00:00:00","date_gmt":"2010-11-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/42-vs-jawahar-education-society-on-15-november-2010"},"modified":"2018-01-29T05:32:03","modified_gmt":"2018-01-29T00:02:03","slug":"42-vs-jawahar-education-society-on-15-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/42-vs-jawahar-education-society-on-15-november-2010","title":{"rendered":"42 vs Jawahar Education Society on 15 November, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
42 vs Jawahar Education Society on 15 November, 2010<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                          1\n\n\n\n\n                                                                          \n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                  \n                                                 \n              WRIT PETITION  Nos. 878, 359, 3186 & 3187 OF 2010.\n\n                                       ..........\n\n\n\n\n                                         \n    WRIT PETITION No. 878\/2010.\n                           \n    Baburao son of Gomaji Dahat,\n    Aged about 67 years, Occupation \n    Retired teacher, resident of \n                          \n    42, Thaware Colony, New Subhedar Layout,\n    Nagpur.                                             ....PETITIONER.\n         \n\n                                      VERSUS\n      \n\n\n\n      1. Jawahar Education Society,\n         through its Secretary, c\/o. Jawahar\n\n\n\n\n\n         Night High School, Sitabuldi,\n         Nagpur.\n\n      2. Head Master,\n         Jawahar Nigh High School, \n\n\n\n\n\n         Sitabuldi, Nagpur - 12.\n\n      3. The Education Officer (Secondary)\n         Zilla Parishad, Nagpur.                        ....RESPONDENTS\n                                                                       . \n\n\n                                       ..........\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:37:04 :::\n                                            2\n\n\n    WRIT PETITION No.359\/2010.\n\n\n\n\n                                                                           \n    Smt. Sulbha wife of Shri Prabhakar Hejib,\n\n\n\n\n                                                   \n    Aged about 65 years, Occupation \n    Retired teacher, resident of \n    'Suprabhat' Plot no.160, \n    Bajiprabhu Nagpur, Near Ramnagar,\n    Nagpur.                                              ....PETITIONER.\n\n\n\n\n                                                  \n                                        VERSUS\n\n\n\n\n                                           \n       1. Jawahar Education Society,\n          through its Secretary, c\/o. Jawahar\n                            \n          Night High School, Sitabuldi,\n          Nagpur.\n                           \n       2. Head Master,\\\n          Jawahar Nigh High School, \n          Sitabuldi, Nagpur-12.\n         \n\n         3. The Education Officer (Secondary)\n            Zilla Parishad, Nagpur.                      ....RESPONDENTS\n                                                                        . \n      \n\n\n\n                                        ..........\n\n\n\n\n\n    WRIT PETITION No. 3186\/2010.\n\n\n\n\n\n       1. Jawahar Education Society,\n          through its Secretary, c\/o. Jawahar\n          Night High School, Sitabuldi, Nagpur.\n\n       2. Head Master,\n          Jawahar Nigh High School, \n          Sitabuldi, Nagpur - 12.                                ....PETITIONERS.\n\n\n                                        VERSUS\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 16:37:04 :::\n                                          3\n\n\n\n\n                                                                             \n      1. Baburao son of Gomaji Dahat,\n         Aged about 67 years, Occupation \n\n\n\n\n                                                     \n         Retired teacher, resident of 42, \n         Thaware Colony, New Subhedar Layout,\n         Nagpur.\n\n      2. The Education Officer (Secondary)\n\n\n\n\n                                                    \n         Zilla Parishad, Nagpur.                           ....RESPONDENTS\n                                                                          . \n\n                                      ..........\n\n\n\n\n                                        \n    WRIT PETITION No. 3187\/2010.\n                           \n      1. Jawahar Education Society,\n         through its Secretary, c\/o. Jawahar\n                          \n         Night High School, Sitabuldi, Nagpur.\n\n      2. Head Master,\n         Jawahar Nigh High School, \n        \n\n         Sitabuldi, Nagpur - 12.                                   ....PETITIONERS.\n     \n\n\n\n                                      VERSUS\n\n\n\n\n\n      1. Smt. Sulbha wife of Shri Prabhakar Hejib,\n         Aged about 65 years, Occupation \n         Retired teacher, resident of \n         'Suprabhat' Plot no.160, \n         Bajiprabhu Nagpur, Near Ramnagar,\n\n\n\n\n\n         Nagpur. \n\n      2. The Education Officer (Secondary)\n         Zilla Parishad, Nagpur.                           ....RESPONDENTS\n                                                                          . \n\n                             -----------------------------------\n                      Mr.  A. Shelat, Advocate for Employees.\n                   Mr. N.S. \/R.N. Badhe, Advocate for Employer.\n                       Learned A.G.P. for Education Officer.\n                             ------------------------------------\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 16:37:04 :::\n                                                 4\n\n\n\n\n                                                                                     \n                             CORAM :  B.P. DHARMADHIKARI,  J. \n<\/pre>\n
    Date of reserving the Judgment. -                 25.10.2010                   \n    Date of Pronouncement.          -                 15.11.2010\n\n\n\n\n                                                            \n                 \n\n    JUDGEMENT.   \n\n\n\n\n                                                \n    1.\n                                \n<\/pre>\n
                Writ Petition No. 878 of 2010 is filed by Assistant Teacher – Baburao <\/p>\n
    assailing the  judgment dated 30\/9\/2009 of   School  Tribunal, Nagpur in  his <\/p>\n
    Appeal No. STN\/349\/1995 allowing it partially by granting him salary of one <\/p>\n
    year and he prays for direction to his Employer and Education Officer to pay <\/p>\n
    him   back   wages   from   19\/10\/1995   till   31\/7\/2001   with   all   consequential <\/p>\n
    benefits.   He   was   terminated   on   19\/10\/1995   and   has   attained   the   age   of <\/p>\n
    superannuation on 31\/7\/2001.  Employer educational institution has filed Writ <\/p>\n
    Petition No. 3186\/2010 for quashing very same judgment. In Writ Petition No. <\/p>\n
    359\/2010   another   Assistant   Teacher   –   Mrs.   Sudha   has   also   assailed     the <\/p>\n
    identical judgment dated 30\/9\/2009 of  School Tribunal, Nagpur in her Appeal <\/p>\n
    No. STN\/335\/1995 allowing it partially by granting her salary of one year and <\/p>\n
    she prays for direction to same Employer and education officer to pay him back <\/p>\n
    wages  from  19\/10\/1995   till   31\/7\/2002   with  all   consequential   benefits.   She <\/p>\n
    was   also   terminated   on   19\/10\/1995   and   has   attained   the   age   of <\/p>\n
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\n                                                   5<\/span><\/p>\n
    superannuation on 31\/7\/2002. However as she worked with other school from <\/p>\n
    22\/2\/2001   to   31\/7\/2002,   no   relief   is   sought   for   this   period.   Employer <\/p>\n
    educational   institution   has   filed   WP   3187\/2010   for   quashing   very   same <\/p>\n
    judgment.   Baburao   joined   the   services   on   1\/9\/1979   while   Sudha   joined   on <\/p>\n
    11\/8\/1981   and   both   were   terminated   on   19\/10\/1995   alleging   reduction   in <\/p>\n
    number of sections in the employer Night School.\n<\/p>\n
    2.<\/p>\n
                I   have   heard   Shri   Shelat,   learned   Counsel   for   Employees,   Shri <\/p>\n
    Badhe,   learned   Counsel     for   Employer   and   learned   AGP   for   respective <\/p>\n
    Respondent No.3\/2- Education Officer in all matters. The parties were heard <\/p>\n
    finally with consent by making Rule returnable forthwith in all 4 Petitions.\n<\/p>\n
    3.          Dates   of   joining   and   termination   and   reason   therefor   are   not   in <\/p>\n
    dispute. Fact that termination orders are by Headmaster is also not disputed.\n<\/p>\n
    School Tribunal has found that due to long service in excess of 12 years, both <\/p>\n
    teachers had become confirmed and hence, Rule 26 of Maharashtra Employees <\/p>\n
    of private Schools (conditions of service) Rules,1981 (hereinafter referred to as <\/p>\n
    “the 1981 Rules” for short), obliged Employer to obtain previous permission of <\/p>\n
    Education Officer and 3 months notice was found not issued. If retrenchment <\/p>\n
    was to be done, junior most employee needed to be sent out and seniority was <\/p>\n
    not   observed   while   terminating   teachers   who   were   Appellants   before   it <\/p>\n
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\n                                                     6<\/span><\/p>\n
    resulting in violation of Rule 27. In case of Baburao, it noticed that though he <\/p>\n
    was working as full time Headmaster in day school, and therefore presumed to <\/p>\n
    be a  part-time  or temporary teacher, still      Rule 28(1)  required one month <\/p>\n
    advance   notice.   Findings   reached   by   it   in   other   Appeal   are  identical.  As     it <\/p>\n
    found that both teachers were not totally jobless but worked as regular teachers <\/p>\n
    in day school and earned regular salary, they were not entitled to back wages.\n<\/p>\n
    It therefore set aside termination of their services as violative of Rules 26,27 <\/p>\n
    and  28(1)  of  1981  Rules  and granted them  one  year  salary in  lieu  of back <\/p>\n
    wages.  It turned down the contention of Employer that being a night school, <\/p>\n
    provisions of  Maharashtra Employees of private Schools (conditions of service) <\/p>\n
    Act,1977  (herein after referred to as “the 1977 Act” for short) and  the 1981 <\/p>\n
    Rules framed thereunder were not applicable to it.\n<\/p>\n
    4.           By inviting   attention  to  1981  Rules,  particularly Rule  22 and  23, <\/p>\n
    Shri     Shelat,   learned   Counsel   contends   that   law   enables   teacher   and   other <\/p>\n
    employees in  day school to work in  night school also and here, there is no <\/p>\n
    dispute about this position. The Education Officer also recognized this position <\/p>\n
    and granted approval to both the Teachers. Headmaster in regular school can <\/p>\n
    become   Headmaster   in   night   school   and   is   entitled   to   receive   \u00bd   of   basic <\/p>\n
    prescribed for regular Headmaster. About  the other staff or Assistant Teacher, <\/p>\n
    the Rules are silent. He has invited attention to Secondary School  Code and to <\/p>\n
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\n                                                    7<\/span><\/p>\n
    the  1977  Act read with  the  1981 Rules  to demonstrate  that  said  provisions <\/p>\n
    recognize  night school establishment and confer status of permanency upon its <\/p>\n
    employees. Part time recognition is due to availability of such work load but <\/p>\n
    then that is not temporary work as understood in the 1977 Act or the 1981 <\/p>\n
    Rules. They equally enjoy the security of service and no discrimination on that <\/p>\n
    count   is   possible.   According   to   him,   merely   because   both   teachers   were <\/p>\n
    working   in   day   school   as   regular   employees,   the   denial   of   back   wages   is <\/p>\n
    arbitrary.   In   any   case,   according   to   him   grant   of   salary   of   one   year   as <\/p>\n
    compensation therefor is unsustainable. He also points out that Mrs. Sudha was <\/p>\n
    not  working in any day school and finding in this connection recorded by the <\/p>\n
    School Tribunal are perverse. Denial of back wages is thus based on erroneous <\/p>\n
    belief.   He   has   relied   upon   the   unreported   judgment   dated   1\/10\/2010   by <\/p>\n
    learned Single Judge of this Court at Bombay in Writ Petition No. 7905\/2008–\n<\/p>\n
    Shri Shaikh Barkatullah Hussein vs. Muslim Education Committee, Sangli and <\/p>\n
    also in case of  Vaidya Bharati P. Shah vs. The State of Maharashtra<\/a>  in Writ <\/p>\n
    Petition Nos.  2870\/1986, 3085\/1986 etc. dated 23\/7\/1990 of learned Single <\/p>\n
    Judge at Bombay reported at Maharashtra Education Cases i.e.,  MEC 2085.\n<\/p>\n
    5.           Respective   learned   AGP   has   supported   the   approach   of   School <\/p>\n
    Tribunal by urging that back wages can not be granted just for asking. Both the <\/p>\n
    teachers   were   having   regular   full   time   jobs   in   the   day   schools   and   though <\/p>\n
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\n                                                    8<\/span><\/p>\n
    terminated   from   night   school,   they   were   earning   their   livelihood.     As   night <\/p>\n
    school functions for 2.5 hours every day, the concept of permanency is alien to <\/p>\n
    it. Reliance is placed on   judgment of learned Single Judge reported at 2007 <\/p>\n
    (1)   Mah.L.J.   544   –   (Maratha   Samaj   Sewa   Mandal,   Solapur   vs.   Mrs.   Rajani <\/p>\n
    Rajan   Dixit)  and   others<\/a>.   Division   Bench   judgment   reported   at   2010   (5) <\/p>\n
    Mah.L.J. 364 – (Sunil Vilasrao Patil vs. Swami Vivekananda Shikshan Sanstha, <\/p>\n
    Kolhapur) is also cited.  It is urged that public money can not be allowed to be <\/p>\n
    used in such a way.\n<\/p>\n
    6.           Shri   Badhe,   learned   Counsel   for   Employer   has   adopted   the <\/p>\n
    arguments advanced by AGP and added that there was \/ is no permanent post <\/p>\n
    and   hence,   part   timer   can   not   claim   reinstatement   on   any   post   as   such.\n<\/p>\n
    Therefore he\/she is not entitled to claim back wages also. He relies upon AIR <\/p>\n
    1986 SC 1455 – (G.K. Dudani and Others vs. S.D. Sharma and Others)<\/a>   to lay <\/p>\n
    stress on difference between temporary and permanent posts. His contention is <\/p>\n
    there can be no two permanent posts held by the Teachers simultaneously and <\/p>\n
    approach   of   the   School   Tribunal   in   the   matter   is   contrary   to   service <\/p>\n
    jurisprudence.  He has also urged that as workload was on part time basis and <\/p>\n
    sections were reduced, the School Tribunal should not have interfered in the <\/p>\n
    matter.\n<\/p>\n
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\n                                                    9<\/span><\/p>\n
    7.          It   will   first   be   appropriate   to   find   out   whether   orders   of   School <\/p>\n
    Tribunal   setting   aside   the   termination   of   both   the   teachers   call   for   any <\/p>\n
    interference in two petitions filed by Employer. Though the Petitions contain a <\/p>\n
    ground that the 1977 Act and the 1981 Rules do not apply to Night School, <\/p>\n
    Employer management could not point out why and how the negation of said <\/p>\n
    contention   by   School   Tribunal   is   erroneous.   Tribunal   has   found   that   night <\/p>\n
    school before it satisfied the requirements of Section 2 (21) of the 1977 Act <\/p>\n
    defining what is “Recognized” and also its Section 2 (24) which defines what is <\/p>\n
    “School”. I find that requirements of Section 2 (24) explaining what is meant <\/p>\n
    by  a  “Private   School”  is   also satisfied  in  this   matter.  The   Employer   has not <\/p>\n
    brought on record any material to enable this Court to view the factual finding <\/p>\n
    in this regard differently. It is also not disputed that it is a Night School as <\/p>\n
    defined   in   Chapter   I   of   Secondary   Schools   Code   and   has   due   recognition <\/p>\n
    thereunder. Rule 2(l) of 1981 Rules also expressly defines “Night School” on <\/p>\n
    same lines with minor changes not relevant here.  Clause(i) of proviso to Rule <\/p>\n
    3(1) (b) of 1981 Rules stipulates that a person to be appointed as Headmaster <\/p>\n
    of night school shall not be the Head or Assistant Head of a School. In other <\/p>\n
    words  an  Assistant   Teacher  in  a  day  school   is  eligible  for    consideration  as <\/p>\n
    Headmaster of a night school. Rule 7(i) of 1981 Rules while stating that pay <\/p>\n
    scales of school employees shall be as given in Schedule “C” also covers night <\/p>\n
    schools within its fold. Similarly, in Schedule C in part VII, it prescribes pay <\/p>\n
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\n                                                  10<\/span><\/p>\n
    scale for Headmaster of a night school with students up to 500 and above it <\/p>\n
    separately. It is one half of the basic prescribed for those posts in day school.\n<\/p>\n
    Rate per clock hour is prescribed for teachers with less than half workload of a <\/p>\n
    full-time teacher. Part-time teachers with half workload are eligible to receive <\/p>\n
    half the amount of pay as per their qualification. Note 4 of Rule 21 dealing with <\/p>\n
    workload states that night school teachers will have half the half the workload <\/p>\n
    specified for the full time teachers. Same arrangement is made in last “note”\n<\/p>\n
    thereto about non-teaching staff in night school. Rule 22 deals with duties and <\/p>\n
    code of conduct and its sub-rule (2)(g) shows that a full-time teacher can work <\/p>\n
    as part-timer after prior written  permission  of his school for about 2 hours.\n<\/p>\n
    Non-teaching staff can similarly work but for entire working period of the night <\/p>\n
    school.   Rule   23(1)(b)   regarding   private   tutions   also   permits   day   school <\/p>\n
    teachers working in night school to work for its full duration if they are not <\/p>\n
    undertaking private tutions. It is therefore evident that the 1977 Act and the <\/p>\n
    1981 Rules also   govern and regulate night schools. These provisions are not <\/p>\n
    challenged by the Employer at all.\n<\/p>\n
    8.          It   therefore   follows   that   provisions   like   Section   4   of   1977   Act <\/p>\n
    regarding terms and conditions  of service of employees of private schools is <\/p>\n
    squarely attracted in present matters and teaching as also non-teaching staff in <\/p>\n
    night school enjoys  same  security of tenure and protections as are available to <\/p>\n
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\n                                                11<\/span><\/p>\n
    full-time staff of a day school. On facts, violation of said provisions noticed by <\/p>\n
    School Tribunal in its judgments are not even argued to be perverse. Tribunal <\/p>\n
    has therefore set aside the terminations of both Teachers as in breach of Rules <\/p>\n
    26, 27 and 28(1) of the 1981 Rules. The finding that said orders of termination <\/p>\n
    dated 19\/10\/1995 are unsustainable, therefore, deserves to be maintained.\n<\/p>\n
    9.          Fact that Mrs. Sudha, Petitioner  in Writ Petition No. 359\/2010 was <\/p>\n
    not working anywhere else except the night school is not in dispute. None of <\/p>\n
    the   Respondents   have   challenged   the   specific   assertion   made   by   her   in <\/p>\n
    paragraph 21 of her petition.   School Tribunal has refused back wages  to her <\/p>\n
    only because of its finding that she was regular full time employee who earned <\/p>\n
    her salary regularly even after termination from night school. The said refusal <\/p>\n
    and application of mind therefore deserves to be quashed and set aside. She <\/p>\n
    was   in   employment   only   from   22\/2\/2001   till   31\/7\/2002   and   hence,   her <\/p>\n
    entitlement to wages from 19\/10\/1995 till 31\/7\/2002 by making adjustment <\/p>\n
    for this period needs to be adjudicated in this matter.\n<\/p>\n
    10.         Grant of one year’s salary in lieu of back wages to both the Teachers <\/p>\n
    is now the issue to be considered. Connected question is whether this part-time <\/p>\n
    employment   is   temporary   employment   and   whether   it   does   not   enable <\/p>\n
    incumbent to claim back wages. Judgment in case of   G.K. Dudani and Others <\/p>\n
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\n                                                    12<\/span><\/p>\n
    vs.   S.D.   Sharma   and   Others  (supra)   relied   upon   by   the   Employer   needs <\/p>\n
    consideration here. The record there showed that  there were thirty vacancies <\/p>\n
    in   permanent   posts   and   thirty-one   vacancies   in   temporary   additional   posts.\n<\/p>\n
    These   thirty-one   posts   were   created   initially   for   a   period   of   one   year   but <\/p>\n
    renewed  from  year  to year  from   1960  onwards  and have  been  in  existence <\/p>\n
    continuously   since   then.     These   temporary   additional   posts   were,   therefore, <\/p>\n
    held not fortuitous posts created for the purpose of special tasks but formed an <\/p>\n
    integral part of the regular cadre, and appointments to those posts were also <\/p>\n
    made from the approved select list of Mamlatdars prepared in consultation with <\/p>\n
    the Gujarat Public Service Commission.  Rule 9(8) of the Bombay Civil Service <\/p>\n
    Rules, 1959, defines “cadre” as meaning the strength of a service or a part of <\/p>\n
    service sanctioned as a separate unit”. Hon’ble  Apex Court found the service of <\/p>\n
    Deputy Collectors  admittedly a separate unit under the Revenue Department.\n<\/p>\n
    Cadre consisted of permanent posts and temporary posts added to the cadre <\/p>\n
    from time to time according to the exigencies of the service. The difference <\/p>\n
    between   permanent   and   temporary   posts   was   found   brought   out   by   the <\/p>\n
    definition of these expressions given in Rule 9. Under Rule 9(43), a permanent <\/p>\n
    post is a post carrying a definite rate of pay sanctioned without limit of time <\/p>\n
    and under Rule 9(56) a temporary post is a post carrying a definite rate of pay <\/p>\n
    sanctioned for a limited time. This judgment does not advance the cause of <\/p>\n
    Employer at all.\n<\/p>\n
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\n                                                     13<\/span><\/p>\n
    11.          The judgment also necessitates perusal of the 1977 Act and the 1981 <\/p>\n
    Rules to find out what is meant by permanent and temporary.     Rule 10 lays <\/p>\n
    down   categories   of   employees.   It   recognizes   them   as   permanent   and     non-\n<\/p>\n
    permanent. Non-permanent employees are stated to be either temporary or on <\/p>\n
    probation.   Its   sub-rule   (2)   states   –   “A   temporary   employee   is   one   who   is <\/p>\n
    appointed to a temporary vacancy for a fixed period.” Probationer, therefore is <\/p>\n
    not a temporary employee  in  sense  as required in  law i.e.,  the  1981  Rules.\n<\/p>\n
    Though appointment of probationer is for fixed period still vacancy occupied by <\/p>\n
    him is permanent and not a temporary one. Similarly, when a full-time teacher <\/p>\n
    in day school proceeds on long leave, his permanent workload is required to be <\/p>\n
    entrusted   to   another   full-time   teacher   during   his   absence.   Thus   though   the <\/p>\n
    available     workload   is   full-time,   still   the   vacancy   is   in   leave   period   i.e., <\/p>\n
    temporary vacancy. Appointment as full-time teacher against such temporary <\/p>\n
    vacancy is for fixed period of leave. Such substitute full-timer is therefore not <\/p>\n
    permanent employee but a temporary one under scheme of the 1981 Rules.\n<\/p>\n
    Thus understood, nature of appointment (either as permanent or temporary) <\/p>\n
    has got no bearing on type of workload available i.e., full-time or part-time.\n<\/p>\n
    Classification of workload in night school is essentially due to normal working <\/p>\n
    hours   of   a   day   viz.   regular   school.   It   has   no   co-relation   with   nature   of <\/p>\n
    establishment. Establishment of Night School here is permanent establishment <\/p>\n
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\n                                                   14<\/span><\/p>\n
    and not recognized for temporary period. Night School functions for 2.5 hours <\/p>\n
    permanently and recognition to it is of permanent nature. 2.5 hours work is full <\/p>\n
    time workload for any night school. It is \u00bd of the average or normal working <\/p>\n
    hours of a regular day schools governed by the 1977 Act and the 1981 Rules.\n<\/p>\n
    Only because it functions for half the time as compared to day school, for its <\/p>\n
    regulation   and   service   conditions,   it   is   compared   with   part-time   service.\n<\/p>\n
    Concept of part-time work is applied because  provisions in Rules mostly deal <\/p>\n
    with full-time work in day school. It can not by itself be relevant in permanent <\/p>\n
    establishment which itself is functioning  for maximum possible hours. There <\/p>\n
    may   be   several   part-time   jobs   available   permanently   in   establishment <\/p>\n
    functioning for full time. It is therefore wrong to  construe such part-time work <\/p>\n
    as temporary at least in the face of Rule 10(2) above.\n<\/p>\n
    12.          Reliance by AGP on  Maratha Samaj Sewa Mandal, Solapur vs. Mrs. <\/p>\n
    Rajani Rajan Dixit<\/a>  (supra) and others states that teachers in night school can <\/p>\n
    not   be   declared   as   full-time   teachers.   Challenge   there   was   to   judgment   of <\/p>\n
    school tribunal declaring appellant before it to be full-time teacher. It is obvious <\/p>\n
    that school tribunal can not give direction contrary to express scheme of the <\/p>\n
    1981   Rules   which   equate   or   recognize   them   as   part-time.   Division   Bench <\/p>\n
    judgment reported at   Sunil Vilasrao Patil  vs. Swami Vivekananda  Shikshan <\/p>\n
    Sanstha,   Kolhapur  (supra)   dismisses   demand   of   night   school   teachers   for <\/p>\n
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\n                                                    15<\/span><\/p>\n
    absorption as full-time teachers. The employer management there appears to be <\/p>\n
    running   a   day   school   and   some   teachers   in   night   school   were   given <\/p>\n
    appointment in that day school. Petitioners were therefore claiming parity in <\/p>\n
    treatment  and  also  relied  upon  some  government  recommendations   in   their <\/p>\n
    favour.   Division   Bench   noticed   absence   of   provision   in   the   1977   Act   or   in <\/p>\n
    Secondary   School   Code   enabling   such   absorption.   But   then   in   view   of <\/p>\n
    government resolutions recommending such absorption and previous conduct <\/p>\n
    of employer, Division Bench hoped that employer would act fairly in the matter <\/p>\n
    and treat petitioners before it similarly. These judgments are therefore not on <\/p>\n
    the controversy raised before me and are not relevant.  Also  Vaidya Bharati P.\n<\/p>\n
    Shah vs. The State of Maharashtra  (supra) in Writ Petition Nos. 2870\/1986, <\/p>\n
    3085\/1986 etc. dated 23\/7\/1990 of learned Single Judge at Bombay reported <\/p>\n
    at Maharashtra Education Cases i.e.,  MEC 2085 (supra) considers total length <\/p>\n
    of   service   put   in   by   temporaries   and   recognizes   it   as   permanent.   The <\/p>\n
    consideration is in the light of legal provisions as also Constitution of India, and <\/p>\n
    here Employer has not come with case that appointment of Teachers before this <\/p>\n
    Court  was   temporary   in  nature.  Effort  is   to  urge   that  part-time   status   itself <\/p>\n
    demonstrates   such   temporary   nature.   The   relevant   legal   scheme   is   already <\/p>\n
    looked into and commented upon above.\n<\/p>\n
    13.          Unreported judgment  dated 1\/10\/2010 by learned Single Judge of <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                     16<\/span><\/p>\n
    this Court at Bombay in Writ Petition No. 7905\/2008– Shri Shaikh Barkatullah <\/p>\n
    Hussein vs. Muslim Education Committee, Sangli  (supra) does not deal with <\/p>\n
    night school. There the vacancy was for Marathi subject for a part-time teacher <\/p>\n
    in Urdu medium school. School tribunal dismissed his appeal by treating him as <\/p>\n
    part-time   employee   and   upheld   his   termination   by   one   month   notice.   This <\/p>\n
    Court   allowed   the   writ   petition   and   set   aside   the   order   of   termination   by <\/p>\n
    holding that a part-time teacher is not always a temporary teacher. Discussion <\/p>\n
    undertaken   there   in   paragraphs   6   and   7   show   absence   of   any   co-relation <\/p>\n
    between   nature   of   appointment   and   availability   of     type   of   workload.   This <\/p>\n
    judgment helps  the  teachers  before  this  Court and is  sufficient to reject the <\/p>\n
    stance of Employer in Writ Petition Nos. 3186 and 3187 of 2010. Reference can <\/p>\n
    also be made to  G.K. Dudani and Others vs. S.D. Sharma and Others<\/a> (supra) as <\/p>\n
    it also accepts the position that work being done for sufficiently long time can <\/p>\n
    not be treated as temporary in the light of rules considered there by Hon’ble <\/p>\n
    Apex Court. Rule 10 of the 1981 Rules here is little stringent for Employer than <\/p>\n
    those   rules.   There   the   temporary   appointment   was   possible   even   against <\/p>\n
    permanently available work load viz. permanent vacancy. Here, legally, under <\/p>\n
    1981   Rules,   appointment   can   be   viewed   as   temporary   not   only   when   it   is <\/p>\n
    against   a   temporary   vacancy   but   it   also   has   to   be   for   fixed   duration.   Thus <\/p>\n
    workload needs to be available for temporary period only.   Employer before <\/p>\n
    this   Court   has   not   pointed   out   any   temporary   vacancy   as   also   fixed   period <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                     17<\/span><\/p>\n
    appointment of these Teachers. There   is absolutely no pleading in this regard <\/p>\n
    on record. Needless to mention that position prevailing in year 1979 or 1981 <\/p>\n
    ought to have  been  placed on record before  urging  that  these  two  teachers <\/p>\n
    were   temporary   employees.   Facts   show   that   both   teachers   before   me   are <\/p>\n
    working   for   full   2.5   hours   duration   of   Night   School   and   hence,   can   not   be <\/p>\n
    regarded as temporaries. Both of them are permanent teachers in a permanent <\/p>\n
    establishment recognized as  part-time  employment  and establishment for  its <\/p>\n
    regulation qua the 1981 Rules.\n<\/p>\n
    14.          This brings me to the issue of back wages in both matters i.e., Writ <\/p>\n
    Petition Nos.  878 and 359 of 2010. Hon’ble  Apex Court has in  Reetu Marbles <\/p>\n
    v. Prabhakant Shukla,(2010) 2 SCC 70,   after considering almost all leading <\/p>\n
    precedents. (2009) 5 SCC 705 : (2009) 2 SCC (LandS) 134,  P.V.K. Distillery <\/p>\n
    Ltd. v. Mahendra Ram,<\/a> (2007) 5 SCC 742 : (2007) 2 SCC (LandS) 255, HUDA <\/p>\n
    v.   Om   Pal,   (2006)   9   SCC   434   :   2006   SCC   (LandS)   1830,  Haryana   State <\/p>\n
    Electronics Development Corpn. Ltd. v. Mamni,<\/a> .(2006) 1 SCC 479 : 2006 SCC <\/p>\n
    (LandS) 250, U.P.\n<\/p>\n
                        State
\n                                Brassware   Corpn.   Ltd.   v.   Uday   Narain   Pandey , <\/p>\n
    (2002) 6 SCC 41 : 2002 SCC (LandS) 818,  Hindustan Motors Ltd. v. Tapan <\/p>\n
    Kumar Bhattacharya,<\/a> (1979) 2 SCC 80 : 1979 SCC (LandS) 53, Hindustan Tin <\/p>\n
    Works   (P)   Ltd.   v.   Employees,<\/a>   (1978)   1   SCC   154   :   1978   SCC   (LandS)   31, <\/p>\n
    Western   India Match Co. Ltd. v. Third Industrial Tribunal and<\/a> 1891 AC 173 :\n<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                   18<\/span><\/p>\n
    (1886-90) All ER Rep 651 (HL), Susannah Sharp v. Wakefield on this subject, <\/p>\n
    mentions  that payment of full back wages upon an order of termination being <\/p>\n
    declared   illegal   cannot   be   granted   mechanically.   It   does   not   automatically <\/p>\n
    follow that reinstatement must be accompanied by payment of full back wages <\/p>\n
    even for the period when the workman remained out of service and contributed <\/p>\n
    little or nothing to the industry.  Grant of that relief would depend on the fact <\/p>\n
    situation  obtaining in each case. It will depend upon several factors, one of <\/p>\n
    which would be as to whether the recruitment was effected in terms of the <\/p>\n
    statutory provisions operating in the field, if any. It is held that the  tribunals <\/p>\n
    and the courts have to be realistic albeit the ordinary rule of full back wages on <\/p>\n
    reinstatement. Hon’ble Apex Court then examined the factual situation in the <\/p>\n
    case   before   it.   The   services   of   the   respondent   were   found   terminated   on <\/p>\n
    11.6.1987. The Labour Court gave its award on 27.9.2002 after a gap of more <\/p>\n
    than   15   years.   The   Labour   Court   upon   examination   of   the   entire   issue   had <\/p>\n
    concluded that the respondent would not be entitled to any back wages for the <\/p>\n
    period he did not work. Perusal of its award also revealed  that the respondent <\/p>\n
    did not place on the record of the Labour Court any material or evidence to <\/p>\n
    show that  he  was  not  gainfully employed during  the  long spell  of 15  years <\/p>\n
    when he was out of service of the appellant. Hon’ble  Apex Court noticed that <\/p>\n
    the High Court without examining the factual situation, and placing reliance on <\/p>\n
    the judgment in Hindustan Tin Works (P) Ltd. v. Employees<\/a> (supra) held that <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                     19<\/span><\/p>\n
    the normal rule of full back wages ought to be followed in this case. It is held <\/p>\n
    that  such a conclusion could have been reached by the High Court only after <\/p>\n
    recording cogent reasons in support thereof, especially since the award of the <\/p>\n
    Labour Court was being modified. The Labour Court exercising its discretionary <\/p>\n
    jurisdiction concluded that it was not a fit case for the grant of back wages.\n<\/p>\n
    Hon. Apex Court pointed out its earlier observations  in  P.V.K. Distillery Ltd. to <\/p>\n
    the effect :– “15. The issue as raised in the matter of back wages has been dealt  <\/p>\n
    with by the Labour Court in the manner as above having regard to the facts and  <\/p>\n
    circumstances of the matter in the issue, upon exercise of its discretion and obviously  <\/p>\n
    in a manner which cannot but be judicious in nature. There exists an obligation on  <\/p>\n
    the part of the High Court to record in the judgment, the reasoning before however  <\/p>\n
    denouncing   a   judgment   of   an   inferior   tribunal,   in   the   absence   of   which,   the  <\/p>\n
    judgment in our view cannot stand the scrutiny of otherwise being reasonable.”.\n<\/p>\n
    Hon’ble  Court then held that  the High Court was unjustified in awarding full <\/p>\n
    back wages. It also opined  that the Labour Court having found the termination <\/p>\n
    to be illegal was unjustified in not granting any back wages at all. Keeping in <\/p>\n
    view the facts and circumstances ,it directed that the employer to pay 50% of <\/p>\n
    the back wages from the date of termination of service till reinstatement.\n<\/p>\n
    15.          It is already found that reasons for not awarding back wages to Mrs. <\/p>\n
    Sudha   are   perverse.   She   was   never   in   gainful   employment   after   her   illegal <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                     20<\/span><\/p>\n
    termination   except   for   brief   period   from   22\/2\/2001   to   31\/7\/2002   i.e.,   her <\/p>\n
    superannuation.   Other   teacher   Shri   Baburao   also   superannuated   on <\/p>\n
    31\/7\/2001. He was however a full-time permanent teacher in a day school and <\/p>\n
    did not earn anything from his second job i.e., service in Night School. Perusal <\/p>\n
    of   their     Appeal   memos   and   Writ   Petition   of   Baburao     does   not   show   any <\/p>\n
    specific assertion about absence of source of income or then efforts made to <\/p>\n
    secure it. Second employment, though not legally prohibited, can be a relevant <\/p>\n
    circumstance.  Period from 19\/10\/1995 till 31\/7\/2001 is of about 6 years  and <\/p>\n
    thus by getting one years salary, teacher Baburao is indirectly getting amount <\/p>\n
    equal   to   about   16.6%   of   back   wages.   He   has   not   brought   on   record <\/p>\n
    circumstances   constraining   him   to   work   in   night   school   and   to   show   that <\/p>\n
    despite   efforts,   he   could   not   get   other   source   to   augment   his   income.   Bald <\/p>\n
    assertion in paragraph 23 of his Writ Petition is as his termination was held <\/p>\n
    illegal, School Tribunal ought to have given him full back wages. Hon’ble  Apex <\/p>\n
    Court in  Reetu Marbles v. Prabhakant Shukla  in labour matter granted 50% <\/p>\n
    back wages in absence of any material by workman to sustain his claim to back <\/p>\n
    wages.   Here,   there   is   absence   of   such   material   and   that   too   not   by   a   poor <\/p>\n
    labour but by a teacher who already had full time regular job. It can not be said <\/p>\n
    that School Tribunal has committed any jurisdictional  error as it has looked <\/p>\n
    into relevant facts and then reached its conclusion. There is nothing here to <\/p>\n
    enable this Court to interfere as far as this aspect is considered.  I therefore do <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                    21<\/span><\/p>\n
    not find anything wrong with this use of its discretion under Section 11 of the <\/p>\n
    1977 Act by the School Tribunal.\n<\/p>\n
    16.          By   same   logic,   Petitioner   Mrs.   Sudha   is   getting   amount   equal   to <\/p>\n
    14.3% of the full back wages- i.e., even less than Baburao. But then, reason <\/p>\n
    given to deny her back wages is incorrect and hence, entire application of mind <\/p>\n
    in relation to it stands vitiated. Though absence of gainful employment is not <\/p>\n
    expressly   averred   before   the   School   Tribunal,   in   her   Writ   Petition,   she   has <\/p>\n
    stated that except for brief period  from 22\/2\/2001 till 31\/7\/2002, she had no <\/p>\n
    source of income. School Tribunal granted interim direction to maintain status <\/p>\n
    quo on 20\/11\/1995 and she was not allowed to join duties on 21\/11\/1995 <\/p>\n
    when she reported. Headmaster then wrote to her to join on 5\/7\/2000 and <\/p>\n
    again she was not permitted to join. School Tribunal directed the Education <\/p>\n
    Officer to absorb her, but that direction was not implemented. School Tribunal <\/p>\n
    had by separate judgments delivered on 9\/2\/2009 partly allowed both these <\/p>\n
    Appeals and directed Employer to pay 3 months salary with costs of Rs. 500\/-\n<\/p>\n
    towards Appeal. Their claim for reinstatement with back wages was rejected <\/p>\n
    but the Education Officer was directed to take their names on waiting list for <\/p>\n
    absorption   in   other   night   schools   as   per   Rule   26   of   the   1981   Rules.   Said <\/p>\n
    judgments were set aside by this Court by a common judgment dated 9\/2\/2009 <\/p>\n
    in Writ Petition No. 2202\/1999 and Writ Petition No. 2203\/1999. Hence, in <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span>
\n                                                    22<\/span><\/p>\n
    case of Mrs. Sudha sufficient facts are on record to show that she had no source <\/p>\n
    of income. I, therefore, find   her entitled  to relief  of full  back wages.   The <\/p>\n
    impugned judgment of School Tribunal stands modified to that extent in her <\/p>\n
    matter.\n<\/p>\n
    17.          But both these teachers are entitled to grant of continuity so that <\/p>\n
    wages last received by them on their respective dates of superannuation and <\/p>\n
    service   till   then   can   be   looked   into   for   computation   of   any   retirement   or <\/p>\n
    terminal   benefits   or   other   similar  purposes,  if   due   and  payable   as  per  their <\/p>\n
    service conditions. The impugned judgments stand modified to that extent in <\/p>\n
    both matters. I also find that this is second round of litigation and they need to <\/p>\n
    be compensated even for delay by awarding them some interest and by making <\/p>\n
    some provision to coerce their Employer and Education Officer to expedite the <\/p>\n
    recovery.\n<\/p>\n
    18.          Accordingly as a result of above discussion:–\n<\/p>\n
                  (a)         Writ   Petition   Nos.   3186   and   3187   of   2010   stand \n\n                              dismissed.   Rule   is   discharged   in   those   matters   with   no \n\n                              orders as to costs.\n\n                   (b)        Writ   Petition   No.   878\/2010   filed   by   Baburao   is   partly \n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 16:37:04 :::<\/span>\n                                 23<\/span>\n\n\n<\/pre>\n
            allowed. Judgment dated 30\/9\/2009 of  School Tribunal, <\/p>\n
            Nagpur   in   his   Appeal   STN\/349\/1995   is   modified   with <\/p>\n
            direction to all Respondents to treat him as in continuous <\/p>\n
            employment till 31\/7\/2001.\n<\/p>\n
     (c )   Writ Petition No. 359\/2010 filed by Mrs. Sudha is partly <\/p>\n
            allowed. Judgment dated 30\/9\/2009 of  School Tribunal, <\/p>\n
            Nagpur   in   her   Appeal   STN\/335\/1995   is   modified   with <\/p>\n
            direction to all Respondents to treat her as in continuous <\/p>\n
            employment till 31\/7\/2001. Employer is also directed to <\/p>\n
            pay   her   back   wages   from   19\/10\/1995   till   31\/7\/2002 <\/p>\n
            except for the period from 22\/2\/2001 till 31\/7\/2002.\n<\/p>\n
     (d)    If   Employer   fails   to   pay   the   above   amounts   to   the <\/p>\n
            respective   teacher   within   period   of   three   months   from <\/p>\n
            today, the Education Officer shall deduct it from the non-\n<\/p>\n
            salary grants due and   not paid or payable to Employer <\/p>\n
            and   make   it   over   to   concerned   teachers   within   further <\/p>\n
            period of one month thereafter. This however does not <\/p>\n
            preclude   the   two   Teachers   viz.   Baburao   and   Sudha   to <\/p>\n
            take recourse to any other mode of recovery in addition.\n<\/p>\n
            The   Education   Officer     shall   not   withhold   or   stop \n\n            recovery   by   him   as   per   above   directions   only   because \n\n\n\n\n                                              ::: Downloaded on - 09\/06\/2013 16:37:04 :::<\/span>\n                                          24<\/span>\n\n\n                     these   teachers   have   resorted   to   some   other   mode   of \n\n\n\n\n                                                                                \n                     recovery.  \n\n\n\n\n                                                        \n              (e)    If the Employer Management does not pay the amounts \n\n<\/pre>\n
                     within time stipulated above, it shall pay interest at 8% <\/p>\n
                     P.A. on amount due till its realization. If the Education <\/p>\n
                     Officer does not initiate  action  for recovery as directed <\/p>\n
                     above, he shall pay 2% interest more  on amount of non-\n<\/p>\n
                     salary   grants   which   could   have   been   appropriated <\/p>\n
                     towards   discharge   of   said   liability.   In   the   later <\/p>\n
                     contingency,   teacher\/s   shall   be   entitled   to   8%   interest <\/p>\n
                     from  Employer  and 2% interest  from Education  Officer <\/p>\n
                     on such amount of grant.\n<\/p>\n
              (f)    Judgments   of   School   Tribunal   impugned   herein   stand <\/p>\n
                     modified   to   that   extent   and   both   Writ   Petitions   are <\/p>\n
                     allowed   accordingly   with   no   order   as   to   costs.   Rule   is <\/p>\n
                     made absolute in above terms in Writ Petition Nos. 878 <\/p>\n
                     and 359 of 2010.\n<\/p>\n
                                                              JUDGE.\n<\/p>\n
    Dragon.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:37:04 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court 42 vs Jawahar Education Society on 15 November, 2010 Bench: B. P. Dharmadhikari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION Nos. 878, 359, 3186 & 3187 OF 2010. ………. WRIT PETITION No. 878\/2010. Baburao son of Gomaji Dahat, Aged about 67 years, Occupation Retired teacher, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-98262","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\n42 vs Jawahar Education Society on 15 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/42-vs-jawahar-education-society-on-15-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"42 vs Jawahar Education Society on 15 November, 2010 - 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