@JUDGMENTTAG-ORDER
V.S. Sirpurkar, J.@mdashThis judgment shall govern the Writ Petitions Nos. 35241 95, 3547/95, 1198/96, 1946/96, 1947/96 and 225/96. Rule
returnable forthwith. Heard finally with the consent of the parties.
2. Firstly a short history :
The petitioner in the Writ Petitions Nos. 3524/95, 3547/95, 1198/96, 1946/96 and 1947/96 is the managing body called ''Vidya Vikas Samiti'',
Paratwada (hereinafter referred to as ""The Management""). This society was running a Junior College to which a school was also attached. It so
happened that one Kunte who was an erstwhile Lecturer in ''History'' and was working as a Junior College Lecturer died somewhere in the year
1993. Before that the respondent No. 2 Shri Bonde was already working as an Assistant Teacher in the Middle School which is attached to that
Junior College. Shri Bonde is M.A. IIIrd Class in Economics and also B.Ed. As such he could not have taught the subject of Economics in Junior
College. He thereafter acquired the qualification of M.A. IInd Class Marathi. For the reasons best known to the petitioner, the petitioner shifted
Shri Bonde from Middle School and appointed him as the Lecturer in Junior College and strangely enough, for that purpose the classes which
were allotted to one Miss Kakad for teaching Marathi subject were split and half the workload was transferred in favour of Bonde. Additionally he
was also asked to teach Economics, thereby the management tried to show that one post which was created was filled in. Now this could not have
been done obviously for the simple reason that Miss Kakad was already a confirmed full time lecturer in Marathi having a full workload exclusively
for herself. There was absolutely no justification in splitting her workload and transferring the half workload in favour of Bonde. This was
presumably done in order to oblige Bonde. Unfortunately, the Deputy Director also saw nothing wrong with this arrangement and accorded
approval to begin with on 11-1-1994. What the Deputy Director did not see was that this was an unnatural creation of the place for Bonde as
firstly the lectures given to Miss Kakad could not have been split and secondly Bonde apart from being only a middle school teacher could not
have been asked to teach Economics because admittedly he is M.A, third class which is not an adequate qualification for teaching in the junior
college. This action gave rise to the further litigation and further chaos. The management did not stop here but the management firstly appointed one
Miss Nanda Wankhede as a Part-Time Lecturer in History. It also appointed one Turkhede as a Full-Time Teacher presumably to fill in the void
which was created because of Bonde''s ''promotion''. We will tackle the subject of appointments of Wankhede and Turkhede later on. However,
presently we would deal only with the promotion of Shri Bonde. It so happened thereafter that the Deputy Director probably realised his mistake
and issued a communication dated 16-5-1994 by which he directed Bonde to be brought back. He also withdrew the original approval granted to
Bonde''s promotion, with the result that the management thereafter issued a communication to Shri Bonde reverting him from the post of Junior
College Lecturer to the Assistant Teacher of the middle school which he was already holding. Bonde filed an appeal against this order treating it to
be a termination or as the case may be a reversion. This appeal number was 113/94.
3. Before the Tribunal the management took a stand that it was merely honouring the orders passed by the Deputy Director and more particularly
the subsequent order passed by the Deputy Director bringing back Bonds, the respondent herein. The Tribunal has taken a view that this reversion
could not have been ordered by the management unless the management held a departmental enquiry in this affair. The Tribunal relied on Rule
31(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and also referred to Rules 33, 36 and 37. It viewed
this action on the part of the management as a penal reversion. On the basis of this it quashed the action of the management and also quashed the
subsequent communication by the Deputy Director dated 16-5-1994 and strangely enough, held that the Deputy Director could not in law have
issued that communication. It held that in the absence of any enquiry or any opportunity having been given to Shri Bonde the respondent No. 2
herein, the action in ""reverting"" Shri Bonde was bad in law. The Tribunal gave the following direction :
The respondents are directed to continue the appellant as junior college lecturer as per his appointment order dated 18-10-1993 which was by
way of promotion in the pay-scale of Rs. 2000-3200/- and pay his salary accordingly. That as the appellant is already allowed to join his duties as
Junior College lecturer, his salary be paid by the respondent No. 3 from Government grants with back wages, if not paid already and regularly.
4. Shri R.L Khapre, the learned Counsel for the petitioners in Writ Petition No. 1198/96 which impugns the order of Tribunal has severely
criticised this order. He raises two points. According to him, the order bringing back the respondent No. 2 could not have amounted to a
reversion. Since the placement of Shri Bonde the respondent No. 2 as a junior college lecturer could not have been deemed to be a promotion at
all. Secondly, Shri Khapre contends that the Tribunal has completely ignored the position that Bonde did not have the initial educational
qualification for being promoted at all and as such his so-called promotion even if it could be called to be a promotion in law was non est and could
not have taken effect.
5. Shri Bhangde, the learned Counsel for the respondent No. 2, very strenuously contended that since there is a difference in salary and since the
salary of lecturers in junior college is more it cannot be said that Shri Bonde was not promoted. He pointed out that as an Assistant Teacher Shri
Bonde would draw less salary and as a Junior College Lecturer he would definitely draw a better salary. In that view of the position, according to
Shri Bhangde, this had to be called a promotion. He further pointed out that if this was a promotion unless a proper departmental enquiry was held
the petitioner could not have been reverted. Thirdly Shri Bhangde submits that even if it is conceded that Shri Bonde did not have the necessary
educational qualification, he points out that unless the management finds that position by way of an enquiry, Shri Bonde could not have been
brought back and could not have been ordered to be reverted. Lastly Shri Bhangde contends that even otherwise since the order passed by the
Tribunal has now been complied with and Shri Bonde has now been replaced or reinstated as the lecturer he does not propose to continue with
appeal and he should be allowed to withdraw his appeal before Tribunal though the same stands allowed.
6. Considering the rival contentions, it is clear from the Rules and more particularly Rule 41 that when a teacher in a school which is attached to a
junior college is placed as a lecturer in the junior college, it cannot be said to be a promotion. Rule 41, sub-rule (5)(b) suggests that such
arrangement could be at the most called to be a transfer. Now merely because a teacher who is teaching in the secondary school gets such a
transfer and is posted as a lecturer in the junior college and gets a better salary it could not be said that this would be a promotion of a teacher.
Indeed, there is nothing in the Rules which suggests that the teacher would have any right to be ""promoted"" as the lecturer in the junior colleges
attached to their schools. Rule 41(5)(b) particularly mentions as under :---
Teachers in secondary school shall not be transferred to a junior college of education against their will. Such transfers may, however, be made if
they are at the employee''s own request subject to the following conditions : namely (i), (ii) & (iii) ---- (not relevant)....
This specific language suggests that such an arrangement cannot amount to a promotion. The Tribunal''s view, therefore, that this amounts to a
promotion is clearly incorrect and has to be quashed. There is one more reason why the placement of respondent Bonde in the post of a lecturer in
junior college cannot be deemed to be a promotion. Rules 3 and 5 deal with the subject of promotion of a secondary school teacher like the
respondent No. 2 herein. It does not appear from these rules that a post of a junior college lecturer is a promotional post for a teacher in a
secondary school which is attached to a junior college. If the legislature had intended that post to be a promotional post, a clear-cut provision to
that effect would have been found in the rules. Instead a glance at the rules generally, suggests that the promotional posts available to a teacher like
the respondent No. 2 are only Superintendent (where the number of classes is adequate for that post) or Assistant Head Master (where number of
students is adequate) and a Head Master. The list of promotional posts does not go further. Therefore, placement of a teacher of a secondary
school as a lecturer in the attached junior college would be merely a transfer. Again Rule 41(b)(ii) is clear enough to suggest that the inter se
seniority of such teacher is retained, on transfer as a junior college lecturer, which would be another clear indication in support of the view taken.
7. Once it is held that that was not a promotion the bringing back of the respondent No. 2 Shri Bonde in his original position as an assistant teacher
could not amount to a reversion. If it could not amount to a reversion there was no necessity of holding any departmental enquiry as is
contemplated by the Rule. The Tribunal''s finding that an enquiry was a must, therefore, must be set aside and is accordingly set aside.
8. Lastly the Tribunal has completely ignored the position that Shri Bonde did not have the necessary educational qualifications which is
contemplated by the Rules. In that view of the matter, his promotion itself initially was without any sanction of law and must be held to be non est.
It is accordingly held to be non est and it is held that Shri Bonde was rightly ordered by the Deputy Director to be brought back and the
management rightly acted on that communication of the Deputy Director. Once this position is clear, the petition will have to be allowed and the
order of the Tribunal will have to be quashed and set aside. Shri Bonde will be accordingly brought back. The subsequent directions by the
Tribunal are also set aside.
9. However, the matters do not stop here. An unprecedented chaos has been created by this management by appointing two persons, namely,
Turkhede and Nanda Wankhede. As a sequel to Shri Bonde''s being brought back, the management realised the chaos that it had created and
directed the termination of Nanda Wankhede as also Shri Turkhede. Nanda Wankhede, therefore, filed an appeal before the Tribunal and there
was a stay granted in her favour. Also the same situation prevailed in respect of Turkhede who had filed an appeal. Turkhede also continued to
serve because of the stay orders passed by the Tribunal. The appeal filed by Nanda Wankhede was Appeal No. 136/94 while one filed by
Jitendra Turkhede was No. 128/94. They were allowed and disposed of by the Tribunal on 17-8-1995 by two separate orders. These orders
came to be challenged by the management by filing two separate Writ Petitions Nos. 3524/95 and 3547/95 against Miss Nanda Wankhede and
Shri Jitendra Turkhede respectively. These two writ petitions are still pending. However, again as if all this chaos was not sufficient, the
management after the order passed by the Deputy Director proceeded to terminate the services of these two respondents, namely, Nanda
Wankhede and Jitendra Turkhede by a fresh termination order dated 11-9-1995. Needless to mention that the teachers again approached the
Tribunal by way of separate appeals. The Appeal filed by Nanda Wankhede is Appeal No. 150/95 while the one filed by Jitendra Turkhede is
Appeal No. 149/95. Again the Tribunal granted the stay orders in these appeals and directed these two persons to be continued, against which the
management has filed two Writ Petitions, i.e. in case of Nanda Wankhede Writ Petition No. 1946/96 and in respect of Jitendra Turkhede Writ
Petition No. 1947/96. The management herein challenges the interim orders passed by the School Tribunal. Now it is needless to mention that
Writ Petition No. 3524/95 and Writ Petition No. 3547/95 have been rendered infructuous as the impugned orders of Tribunal passed therein have
already been effaced because of the subsequent termination orders dated 11-9-1995 in case of both these teachers. Shri Khapre, however,
submits that the findings in those orders as handed out by the Tribunal will have to be dealt with by this Court. We find that all the findings in those
petitions would depend upon the basic finding in respect of Shri Bonde because it is because of Shri Bonde''s placement that all these subsequent
developments have taken place. We, therefore, do not propose to tackle with these findings ourselves as we have already indicated that Shri
Bonde''s original placement as junior college lecturer was itself illegal. It wilt be, therefore, futile for us to deal with those orders in Writ Petitions
Nos. 3524/95 and 3547/95 as we propose to direct the Tribunal to deal with the orders in respect of Nanda Wankhede and Jitendra Turkhede on
the backdrop of our finding in respect of Shri Bonde.
10. Again in so far as the other Writ Petitions Nos. 1946/96 and 1947/96 are concerned, these are against the interim orders passed, and it is an
admitted position that Appeal Nos. 150/95 and 149/95 are still pending. The Tribunal shall decide the rights of Miss Wankhede and Shri
Turkhede in these appeals. We direct the Tribunal to decide these appeals on the backdrop of our finding that Shri Bonde''s placement as a junior
college lecturer itself was illegal and that he was rightly brought back to school. The tribunal shall do well to dispose of those appeals within three
months from today. In the meantime the status quo as it continues today shall continue. If ultimately it is found that Nanda Wankhede and Jitendra
Turkhede were not entitled to the reliefs that are claimed by them, they would still be paid for the actual services rendered by them by the
management from their own funds.
11. That leaves in the field the last Petition No. 225/96 filed by one Smt. Sunita Dani. Dani had made an application for intervention claiming that
she had an interest in these two appeals. Again it must be made clear that Smt. Dani is claiming a direct interest on the basis of the death of Shri
Kunte and claims that she would have a right to be appointed as a junior college lecturer in the post created by the death of Shri Kunte. That
subject is distinct but is essentially connected with the chaos which has been created by the management due to the placement of Shri Bonde. The
Tribunal has rejected her application for intervention and Smt. Dani has challenged that order rejecting her intervention application. We direct that
the Tribunal should also hear Smt. Dani and allow her intervention application because even otherwise her claim is so intermingled with the claim of
Smt. Nanda Wankhede and Shri Jitendra Turkhede that it would be futile to consider her claim independently. Her claim, therefore, shall also be
decided. We therefore, allow the Writ Petition No. 225/96 and direct the Tribunal to hear Smt. Dani after allowing her application for intervention.
Needless to say that this shall be done in Appeal Nos. 149/45 and 150/95. Shri Bhangde while opposing the application for intervention pointed
out that Smt. Dani had made an application for intervention along with one Shri Awsarmal. He points out that the Tribunal had rejected those
applications. While Smt. Dani kept quiet, Shri Awsarmal had filed a writ petition against that order and this Court had confirmed the order. He
accordingly suggests that Dani''s application should also meet the same fate. We do not agree. We find that Smt. Dani''s claim is inextricably
intermingled with the claims which are involved in Appeal Nos. 149/95 and 150/95. The contention of Shri Bhandge is, therefore, rejected.
12. In the result, we dispose of the petitions in the light of the reasonings given by us above. Under the circumstances, we do not propose to pass
any order regarding the costs.
13. Order accordingly.
