Nilkanth Vs. State of Maharashtra & Ors.
EmailAppeal: Civil Appeal No. 5927/1999
Petitioner: Nilkanth
Respondent: State of Maharashtra & Ors.
Apeal: Civil Appeal No. 5927/1999
Judges: S. RAJENDRA BABU & RUMA PAL, JJ.
Date of Judgment: Dec 04, 2001
Head Note:
SERVICE LAWS
Appointment – When appointment could be treated as temporary or adhoc – Headmaster of government school abandoning his post – School not permitting him to join back – Court ordering payment of certain sum to him and deeming him to have been in service only for the purpose of giving him appropriate benefits – During his absence, appellant who was the seniormost teacher functioning as the headmaster – Education department of the state also treat-ing him as having been duly appointed to the post of headmaster. Held, in such circumstances, the appellant cannot be considered to have been appointed temporarily or on adhoc basis. High Court, therefore, not justified in holding that he was appointed duly, there being no clear vacancy.
Held:
When the appellant had continued as headmaster for such a long period from 24th June, 1975 to 30th September, 1998, it is diffi-cult to conceive of a situation that the appointment of the appellant was either temporary or he was only appointed in an adhoc manner and he must be deemed to have been appointed perma-nently in that post. Otherwise, he would have been displaced much earlier and appropriate steps would have been taken to fill up the post. In fact, department also treated him as having been duly appointed to that post and approved the pay bills of all the teachers in that school. In the circumstances, we do not think the High Court is justified in treating that there was no clear vacancy and that appellant had not been appointed duly. There-fore, we set aside the order made by the High Court in this regard and quash the order made by the deputy director of educa-tion and declare that the appellant had been permanently appoint-ed in the said post pursuant to the order made by respondent no. 4 on 24th June, 1975. (Para 3)
JUDGEMENT:
O R D E R
1. The appellant before us is working as an assistant teacher in the establishment of respondent no. 4. He was appointed as head-master when Shri Mule who was the headmaster was considered by respondent no. 4 to have abandoned such post. The said Mule questioned the action of the management and the department in a writ petition and those proceedings to which he was paid a sum of Rs. 2 lacs and he was deemed to have been in service till he retired w.e.f. 31st July, 1990 and the matter was disposed of in those terms.
2. The department having taken a stand that inasmuch as the said Mule was deemed to have superannuated only from 31st July, 1990, there could not be two persons on the same post and vacancy not having arisen, appointment of the appellant as headmaster was illegal and he was treated only as an in-charge headmaster. He filed a writ petition before the High Court claiming that he should be treated as having been permanently appointed in the post of headmaster from 25th June, 1975 and claimed full salary as headmaster from that date. The High Court took the view that there being only one vacancy which was occupied by the said Mule, the appellant could not have been appointed to the said post and denied the relief sought for by him. It was also made clear that fresh appointment could be made by respondent no. 4 in accordance with the relevant rules. Hence, this appeal.
3. It is clear from the narration of facts that said Mule was not allowed to report back to duty and his claim as against respond-ent no. 4 came to be settled by the order made by this Court on 30th July, 1990. Though this Court stated that he was deemed to have been in service till 31st July, 1990, it is only for the purpose of giving him appropriate benefits. Such an order was made by this Court and payment of a sum of Rs. 2 lacs have been made towards all claims made by him against the institution. We think there was in fact a vacancy when he did not report to duty and the management having treated the post as having been aban-doned, the appellant was duly appointed as headmaster. There is no dispute in this case that the appellant is the seniormost teacher in the school. This position in fact was admitted by the department when the proceedings were pending before the High Court. He had continued in service as headmaster from 24th June, 1975 till the order was made by the deputy director of education on 30th September, 1978 and thereafter he was treated as an in-charge headmaster till the orders were made by the High Court in the writ petition filed by him on 17th November, 1998. When the appellant had continued as headmaster for such a long period from 24th June, 1975 to 30th September, 1998, it is difficult to conceive of a situation that the appointment of the appellant was either temporary or he was only appointed in an adhoc manner and he must be deemed to have been appointed permanently in that post. Otherwise, he would have been displaced much earlier and appropriate steps would have been taken to fill up the post. In fact, department also treated him as having been duly appointed to that post and approved the pay bills of all the teachers in that school. In the circumstances, we do not think the High Court is justified in treating that there was no clear vacancy and that appellant had not been appointed duly. Therefore, we set aside the order made by the High Court in this regard and quash the order made by the deputy director of education and declare that the appellant had been permanently appointed in the said post pursuant to the order made by respondent no. 4 on 24th June, 1975. However, it is made clear that for certain period, he having held the post of the headmaster and thereafter having been treated to have occupied that post only as an in-charge headmas-ter and ceasing to hold the same after disposal of writ petition whatever monetary benefits have been given to him either as headmaster or as an in-charge, shall not be recovered and he shall not make any fresh claim regarding the same for this period. If any amount has been recovered by the respondent, the same shall be refunded to the appellant within a period of three months from today. If any other person is appointed as headmaster during the pendency of this matter, there is no difficulty to restore the status of the appellant. The appeal is allowed in the aforesaid terms.
1. The appellant before us is working as an assistant teacher in the establishment of respondent no. 4. He was appointed as head-master when Shri Mule who was the headmaster was considered by respondent no. 4 to have abandoned such post. The said Mule questioned the action of the management and the department in a writ petition and those proceedings to which he was paid a sum of Rs. 2 lacs and he was deemed to have been in service till he retired w.e.f. 31st July, 1990 and the matter was disposed of in those terms.
2. The department having taken a stand that inasmuch as the said Mule was deemed to have superannuated only from 31st July, 1990, there could not be two persons on the same post and vacancy not having arisen, appointment of the appellant as headmaster was illegal and he was treated only as an in-charge headmaster. He filed a writ petition before the High Court claiming that he should be treated as having been permanently appointed in the post of headmaster from 25th June, 1975 and claimed full salary as headmaster from that date. The High Court took the view that there being only one vacancy which was occupied by the said Mule, the appellant could not have been appointed to the said post and denied the relief sought for by him. It was also made clear that fresh appointment could be made by respondent no. 4 in accordance with the relevant rules. Hence, this appeal.
3. It is clear from the narration of facts that said Mule was not allowed to report back to duty and his claim as against respond-ent no. 4 came to be settled by the order made by this Court on 30th July, 1990. Though this Court stated that he was deemed to have been in service till 31st July, 1990, it is only for the purpose of giving him appropriate benefits. Such an order was made by this Court and payment of a sum of Rs. 2 lacs have been made towards all claims made by him against the institution. We think there was in fact a vacancy when he did not report to duty and the management having treated the post as having been aban-doned, the appellant was duly appointed as headmaster. There is no dispute in this case that the appellant is the seniormost teacher in the school. This position in fact was admitted by the department when the proceedings were pending before the High Court. He had continued in service as headmaster from 24th June, 1975 till the order was made by the deputy director of education on 30th September, 1978 and thereafter he was treated as an in-charge headmaster till the orders were made by the High Court in the writ petition filed by him on 17th November, 1998. When the appellant had continued as headmaster for such a long period from 24th June, 1975 to 30th September, 1998, it is difficult to conceive of a situation that the appointment of the appellant was either temporary or he was only appointed in an adhoc manner and he must be deemed to have been appointed permanently in that post. Otherwise, he would have been displaced much earlier and appropriate steps would have been taken to fill up the post. In fact, department also treated him as having been duly appointed to that post and approved the pay bills of all the teachers in that school. In the circumstances, we do not think the High Court is justified in treating that there was no clear vacancy and that appellant had not been appointed duly. Therefore, we set aside the order made by the High Court in this regard and quash the order made by the deputy director of education and declare that the appellant had been permanently appointed in the said post pursuant to the order made by respondent no. 4 on 24th June, 1975. However, it is made clear that for certain period, he having held the post of the headmaster and thereafter having been treated to have occupied that post only as an in-charge headmas-ter and ceasing to hold the same after disposal of writ petition whatever monetary benefits have been given to him either as headmaster or as an in-charge, shall not be recovered and he shall not make any fresh claim regarding the same for this period. If any amount has been recovered by the respondent, the same shall be refunded to the appellant within a period of three months from today. If any other person is appointed as headmaster during the pendency of this matter, there is no difficulty to restore the status of the appellant. The appeal is allowed in the aforesaid terms.
