Judgment 1 J-WP No.2436.2006.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 2436 OF 2006

Smt. Anita w/o Ajay Jagtap,

Aged about 43 years, Occu. : Service,

Residing c/o N. B. Bhange,

143, Telecom Colony,

Nagpur – 440 022. …. PETITIONER

// VERSUS //

1)Director of Education,

Maharashtra State,

Administrative Building,

Pune- 411 001.

2)Education Officer, (Secondary),

Zilla Parishad, Amravati.

3)Krushak Sudhar Mandal,

Talegaon (Dashastra),

Tahsil Dhamangaon Railway,

District Amravati,

Through its Secretary.

4)Madhyamik Kanya Vidyalaya,

Talegaon (Dashasar),

Taluka Dhamangaon,

District Amravati,

Through its Head Mistress

Smt. Vijaya Dhoble. …. RESPONDENTS

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Mr. A. D. Mohgaonkar, Advocate for Petitioner.

Ms. H. N. Jaipurkar, Assistant Government Pleader for

Respondent Nos.1 and 2.

Mr. B. J. Lonare, Advocate for Respondent No.3.

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CORAM :MRS. M. S. JAWALKAR AND

NANDESH S. DESHPANDE, JJ. 2026:BHC-NAG:2394-DB

Judgment 2 J-WP No.2436.2006.odt

DATE O N RESERVING THE JUDGMENT : 22/01/2026

DATE ON PRONOUNCING THE JUDGMENT : 12/02/2026

JUDGMENT : (Per – M. S. JAWALKAR, J.)

1. Heard learned Counsel for the Petitioner, learned

Assistant Government Pleader for Respondent Nos.1 and 2 and

learned Counsel for Respondent No.3.

2. The Petitioner by this petition was earlier seeking

suitable order or direction to restore the Petitioner to the post of

‘Assistant Teacher’ in the Respondent No. 4 school pursuant to

the order of Repatriation dated 12/01/2006 issued by the State

Government, and further declaration that the Petitioner has a

lien over the post of Assistant Teacher and is entitled to join the

Respondent No. 4 school pursuant to the order of this Court

passed in Writ Petition No. 3321 of 2000, dated 04.10.2000.

Whereas, pursuant to the superannuation of the Petitioner on

30/06/2020, the Petitioner, by way of amendment in this

Petition, is also seeking back wages from March, 2006 till

30/06/2020 i.e, till her superannuation, and further directions

to the Respondents to finalize the pension case of the Petitioner

at the earliest.

Judgment 3 J-WP No.2436.2006.odt

3. It is submitted that the Petitioner is a duly qualified

Assistant Teacher who was initially appointed in the Respondent

No. 4 Grant-in-aid School, registered under Respondent No. 3

Society, on 26/07/1986. Pursuant to the order dated

09/01/1996 and 19/01/1996 passed by the State Government,

the Petitioner was deputed as Lecturer in the District Institute of

Education and Training, Amravati, (for short the “DIET

Amravati”) on a vacant post.

4. On 31/03/2000, the Respondent No.1 issued an

order putting an end to the deputation of the Petitioner along

with other similarly situated Senior Lecturers and Lecturers,

which was challenged before this Court by the Petitioner in Writ

Petition No. 3321/2000, wherein this Court, vide its order dated

04/10/2000, directed the Respondents to retain the Petitioner

on the post occupied on deputation till duly selected candidates

were sent by the concerned authority. It is pertinent to note here

that, pursuant to the order dated 31/03/2000, the Petitioner

was relieved from the post held by her on deputation and she

re-joined her services as Assistant Teacher in the Respondent

No. 4 School.

Judgment 4 J-WP No.2436.2006.odt

5. As per the directions of this Court, the State

Government, by its order dated 14/11/2000, continued

deputation of the Petitioner and consequently, the Petitioner was

relieved by the Respondent No.4 School by its order dated

01/12/2000 and the Respondent No. 3 Society also issued a No

Objection Certificate dated 02/12/2000, addressed to the DIET

Amravati.

6. It is further submitted that, the Respondent No. 3

issued a Communication dated 11/09/2004 to the Petitioner

informing her that in the meeting of Society held on

31/07/2004, the Respondent No. 3 has revoked the consent that

has been given to the deputation of the Petitioner and she was

called upon to join the duties within 7 days from the date of its

communication, failing which it would be deemed that the

Petitioner has given up her post.

7. The Petitioner further submits that the Desk officer,

State of Maharashtra, Department of School Education and

Sports, issued a letter dated 24/11/2004 to the Petitioner and

without putting an end of the deputation, directed the Petitioner

to join the Respondent No. 4 School, if she so desired. The

Judgment 5 J-WP No.2436.2006.odt

Petitioner sent her reply to the said letter stating that she would

join the Respondent No. 4 School as soon as the candidate from

Maharashtra Public Services Commission (MPSC) would be

available in view of order passeed in Writ Petition No.

3321/2000. Ultimately, on 12/01/2006 the Department of

School Education, Mantralaya issued an order putting the

Petitioner’s deputation to an end along with other Teachers

working on deputation. Thereafter, the Petitioner sought to join

the Respondent No. 4 School, however, on 08/03/2006 the

Respondent No. 4 School informed the Petitioner that her

services were terminated with effect from 01/10/2004 pursuant

as per the resolution dated 31/07/2004.

8. The Petitioner, by way of Amendment, submits that

she attained the age of superannuation on 30/06/2020, and she

being a permanent employee, is entitled to all the pensionary

benefits arising from her service and she also claimed back

wages from 08/03/2006 i.e., the date when she submitted her

joining report till 30/06/2020 i.e., the date she attained

superannuation.

Judgment 6 J-WP No.2436.2006.odt

9. The Learned Council for Petitioner has relied on

following citations in support of his contentions :

(i)M/s. Somani Steels Ltd. & Anr vs. Collector of

Central Excise & Ors., 2001 AIR SCW 5069,

(ii)Satwati Deswal vs. State of Haryana & Ors., (2010) 1

SCC 126,

(iii)Civil Appeal No.5673 of 2008 (Arising out of SLP (C)

No.21077/2006), Mariamma Roy Vs. Indian Bank &

Ors., dated 16/09/2008 and

(iv)Writ Petition No. 6141 of 2013, Sarika Digambar

Lokare Vs. Chief Executive Officer, dated

28/05/2015 (Aurangabad Bench)

10. Per Contra, the Respondent No.2 in its reply,

submitted that, it was obligatory on the part of the Respondent

Management to rejoin the Petitioner on completion of her

deputation period. It is further submitted that, as per the record

of the Respondent No. 4 School, there is a vacant post of

Assistant Teacher, which ought to have been filled in by allowing

the Petitioner to join her duties.

11. The Respondent No. 3 and 4, in their submissions

contended that the repatriation to the Petitioner could not be

granted especially when the Petitioner has defied orders of the

Judgment 7 J-WP No.2436.2006.odt

respondent Nos. 3 and 4, when she was asked to rejoin the

services as per Communication dated 11/09/2004.

The Respondent No. 3 and 4 further contended that the

Petitioner was duly issued the communication dated

08/03/2006 wherein it was clarified that she has been

terminated with effect from 01/10/2004, therefore the issue of

termination is apparent on the face of record and the claim for

back wages and pension is not sustainable.

12. It is further submitted that, the Respondent No. 4 is a

100% grant-in-aid school and is completely dependent upon the

Government Exchequer for its expenses for running the school.

The Audit reports from the years 2019 to 2022 were also

submitted by the Respondent No. 3 and 4 claiming that they do

not have an independent source of income to provide back

wages to the Petitioner.

13. It is further submitted by the Respondent No. 3 and 4

that, the Petitioner has deliberately did not disclose the fact that

she has been gainfully employed since March 2006 in the

Bhange Coaching Classes, which is the family business of the

Judgment 8 J-WP No.2436.2006.odt

Petitioner. Therefore, the claim of the Petitioner is frivolous and

needs to be rejected.

14. The Learned Counsel for the Respondent No. 3 relied

on the following citations:

(i)Writ Petition No. 2243 of 2023, Sunanda Wakhare vs.

Jaiwant Bhaguji Gadekar & Ors., dated 30/07/2024

(Principal Seat at Bombay) and

(ii)Educational Society, Tumsar & Ors. vs. State of

Maharashtra & Ors., (2016) 3 SCC 512.

15. Heard the submissions of respective parties at length,

examined the documents filed on record and considered the

authorities relied upon by both the parties.

16. It appears that the Petitioner came to be appointed as

Assistant Teacher on 26/07/1986 at Respondent No.4 School,

which is being run by the Respondent No.3 Society. She was

duly confirmed as permanent teacher. The State Government has

issued the order appointing the Petitioner as lecturer on

deputation in the DIET Amravati vide Government Resolution

dated 09/01/1996. As the post on which the Petitioner was

transferred on deputation were required to be filled in by the

MPSC, therefore, the Petitioner alongwith others deputed on

Judgment 9 J-WP No.2436.2006.odt

various posts i.e. Senior Lecturer and Lecturer on temporary

basis. Accordingly, the Petitioner came to be deputed vide order

dated 19/01/1996 as lecturer in the DIET Amravati for one year

as per terms and conditions. As per the order of the Director of

Education, Maharashtra State, Pune, it was directed to the

Institution wherein the Petitioner was working that they

immediately relieved the Petitioner to join her post on

deputation.

17. As per Clause 4 of the Terms and Conditions, the

seniority of the concerned employee of the Institution is kept

intact and it was directed to treat the deputation period as

teaching experience for all the purposes. The Respondent Nos.3

and 4 relieved the Petitioner and permitted to join her duty as

lecturer at the DIET Amravati vide Government Resolution dated

05/08/1999 continued up to 18/01/2000. The Director of

Education issued a letter dated 31/03/2000, by which, the

Petitioner’s deputation was put to an end. The Petitioner was

relieved from the post of lecturer from the DIET Amravati and

she resumed her duty as Assistant Teacher at the Respondent

No.4 School. The said order was challenged by the Petitioner

Judgment 10 J-WP No.2436.2006.odt

before this Court in Writ Petition No.3321/2000, wherein this

Court directed in view of similar orders passed in other matters,

the Petitioner should be retained on the post on which they have

occupying on deputation till duly selected candidates are sent by

the concerned Authority. The State Government, therefore, took

a decision to continue the Petitioner’s deputation in view of the

order passed by this Court. Accordingly, the Petitioner came to

be relieved on 01/12/2000 and joined at the DIET Amravati on

02/12/2000.

18. The Management also issued a No Objection

Certificate dated 02/12/2000. By this no objection certificate, it

is informed to the said DIET Amravati that the Management and

School have no objection to allow her to rejoin at school

whenever the Petitioner would be relieved from deputation. It

appears that suddenly on 11/09/2004, the Respondent No.4 –

School issued a letter to the Petitioner recalling the permission

granted for her deputation and passed a resolution to that effect.

The Petitioner was also directed to get her deputation cancelled

immediately and join her service within a period of seven days,

failing which it is presumed that she has left her job voluntarily.

Judgment 11 J-WP No.2436.2006.odt

The Petitioner has duly submitted her reply to this letter on

27/09/2004 and pointed out that she has filed the Writ Petition

No.3321/2000, wherein there was directions issued by this

Court and if she applied for cancellation of deputation, it would

be contempt of the order of this Court as there is no regular

candidate selected by the MPSC is available.

19. The Section Officer, School Education and Sports

Department, Mantralaya informed to the Petitioner that if the

respondent No.3 Society asked the Petitioner to join her original

post if at all she is willing to do so, she should inform to the

State of Maharashtra. After deputation is over, if the

Management would not allow the Petitioner, she would be solely

responsible for that. It appears that thereafter by Government

Resolution dated 12/01/2006, the Petitioner came to be relieved

from deputation. It also appears that before joining the duty, the

Petitioner suffered with hepatitis and applied on 01/02/2006

and 07/03/2006 for medical leave. However, vide a Letter dated

08/03/2006, the Headmistress had informed to the Petitioner

that her services came to be terminated on 01/10/2004 on the

basis of letter issued on 11/09/2004, asking the Petitioner to

Judgment 12 J-WP No.2436.2006.odt

join her original post within a period of one week. She made a

grievance to the Education Officer, Zilla Parishad, Amravati.

20. It appears that after deputation was over and after

applying for medical leave, it was informed that her services

were terminated in the year 2004 itself, as there was a

resolution to that effect. However, it was duly replied by the

Petitioner and pointed out that there is an order passed by this

Court and in view thereof, her deputation would be continued

till regularly selected MPSC candidates would join the post. To

this reply, nothing was intimated to her about her termination

nor any termination order was served on her. Accordingly, she

was relieved in the year 2006. There is no response to the reply

filed by the Petitioner when it was informed to her that such

resolution is passed by the Management. As stated above, there

were directions issued by this Court in Writ Petition

No.3321/2000. In view of no objection extended by the

Management, it was specifically mentioned therein that after

completion of deputation, if the Petitioner would be relieved,

she would be allowed to join in Respondent No.4 School and

there would not be any objection to the Management.

Judgment 13 J-WP No.2436.2006.odt

21. So far as before completion of deputation whatever

resolution was passed, which is contrary to the order passed by

this Court, which was duly pointed out by the Petitioner in her

reply dated 27/09/2004. As there was no response nor any

termination order served on the Petitioner, she was continued on

deputation till 2006. Her deputation was over on 12/01/2006

and she was relieved from the deputational post. When she

applied for joining alongwith Medical Certificate, it was

informed to her that as she has not joined within seven days as

per letter dated 11/09/2004, her services were came to be

terminated on 01/10/2004. It appears that there was no

automatic termination after seven days, in fact, after receipt of

reply dated 27/09/2004, the Petitioner was terminated,

however there is no termination order on the record nor any

communication to that effect.

22. In view of the order dated 23/04/2007, passed by

this Court in the present Petition, the Respondent No.2 and 4

were directed to submit the vacancy position and further

directed if there is any vacancy available, such vacancy shall not

be filled in until further orders. As per directions, the vacancy

Judgment 14 J-WP No.2436.2006.odt

position was submitted by the Education Officer as well as the

school. Accordingly, the Education Officer informed on affidavit

that there are nine sanctioned posts including Headmaster and

on the date of affidavit dated 07/06/2007, there are seven

Assistant Teacher and one Headmaster are working. Thus, one

post of Assistant Teacher is still vacant. Similar affidavit is filed

by Respondent Nos.3 and 4.

23. In the present petition, Civil Application

No.141/2012 came to be filed by the Petitioner, however, there

was no reply filed since 11/11/2011 to 06/02/2012. In view

thereof, Respondent Nos.3 and 4 were directed to deposit 50%

of the salary payable to the Petitioner from 01/12/2011 till

06/02/2012. Though the Petitioner applied vide Civil

Application No.141/2012 for the direction to Respondent No.3

and 4 to accommodate the Petitioner on the post of Assistant

Teacher as there was one post vacant. This Court vide order

dated 27/07/2012 directed to hear the matter finally,

unfortunately, it was not finally heard.

24. The learned Counsel for the Petitioner relied on M/s.

Somani Steels Ltd. (supra) in support of his contention that after

Judgment 15 J-WP No.2436.2006.odt

a period of 20 years, the petition cannot be dismissed on the

ground that there is an alternative remedy available. The

Hon’ble Apex Court in para 2 held as under :

“2. In 1983 the writ petition out of which this

appeal arose, was filed by the appellants, claiming

certain reliefs which we need not advert to here; the

High Court dismissed the same on the ground that

the appellants had alternative remedy of appeal. In

our view, the ground of alternative remedy does not

oust the jurisdiction of the High Court under Article

226 of the Constitution. It is a factor which has to be

taken into consideration while exercising the

jurisdiction under Article 226 of the Constitution by

the High Court and, therefore, dismissing the writ

petition after 8 years on the ground of alternative

remedy would not be a proper exercise of

jurisdiction”.

25. Learned Counsel for the Petitioner also placed

reliance on Satwati Deswal (supra), wherein the Hon’ble Apex

Court laid down some principles, where the Court should not

insist to exhaust alternative remedy. The Hon’ble Supreme Court

in para 7 held as under :

“7. Such being the position and in view of the

admitted fact in this case that before termination of

the services of the appellant, no disciplinary

proceeding was initiated nor was any opportunity of

hearing given to the appellant. It is clear from the

record that the order of termination was passed

without initiating any disciplinary proceedings and

without affording any opportunity of hearing to the

Judgment 16 J-WP No.2436.2006.odt

appellant. In that view of the matter, we are of the

view that the writ petition was maintainable in law

and the High Court was in error in holding that in

view of availability of alternative remedy to

challenge the order of termination, the writ petition

was not maintainable in law.”.

26. The learned Counsel for the Petitioner also placed

reliance on Mariamma Roy (supra) and Sarika Digambar Lokare

(supra) wherein the similar view is taken.

27. The learned Counsel for the Respondent 3 relied on

Sunanda Wakhare (supra), in support of his contention that the

Management is not liable to pay back wages. This Court in para

24 held as under :

“24. It is held by the Supreme Court that whenever

the terminated employee of the aided school

challenges termination and the said termination is

held to be illegal by the competent judicial forum /

Court and order is passed for payment of backwages,

etc., the Government is supposed to bear the said

burden. It is clarified by the Supreme Court that

such backwages or any other payment are in the

nature of salary for the intervening period or other

compensation in lieu thereof which is to be paid to

the employee who would have earned these benefits

had he remained in service. Thus, it is clear that had

Respondent No. 1 continued in service, he would

have got his salary from the State Government and

not from the management considering that

Respondent No. 2 Institution is a fully aided

Institution.”

Judgment 17 J-WP No.2436.2006.odt

28. The learned Counsel for the Respondent No.3 also

placed reliance on Educational Society, Tumsar (supra), wherein

the Hon’ble Apex Court held as under :

“An aided school is bound to follow the diktat of the

relevant provisions of applicable rules, etc. for

conduct of departmental enquiries and termination

of services of an employee present thereto. In the

instant case, the rules concerned are the

Maharashtra Employees Private School Rules, 1981

(Rules) and the provisions concerned applicable

were the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 (which

came into force from 20-3-1978). The Tribunal while

holding the termination to be illegal gave a specific

finding to the effect that school authority of

appellant Society, who initiated the enquiry, was not

lawfully empowered to do so without the decision of

the Enquiry Committee being supported by the

Managing Committee. Issues 1 and 2 framed in this

behalf were specifically decided against the

appellants. It was further found that no Enquiry

Committee as per Rules was constituted. The

findings of the Tribunal are also to the effect that the

mandatory provisions of law were not followed. It is,

therefore, a case where the appellants acted without

jurisdiction and without adhering to the provisions

of the Act and the Rules. Had the provisions of Rules

been followed, that would have initiated

participation of the representatives of the

Government in the decision-making process right

from decision to initiate the enquiry to the dismissal

of Respondent 4. This would have led to a situation

where the State Government/Education Officer

would have given its imprimatur to the entire

Judgment 18 J-WP No.2436.2006.odt

proceedings including order of termination of

Respondent No.4. Had the termination order been

set aside under such circumstances, it would have

amounted to setting aside the order of the

Government making the Government responsible for

payment of back wages, as the act of termination,

found ultimately illegal, would have been with the

blessings of the Government/Education Officer.”

29. In view of the observations and discussion made in

the foregoing paras, we have already considered that the

impugned order is illegal and bad in law, in fact, there was no

termination order issued to the Petitioner. It also revealed that

there was one vacant post available with the Respondent Nos.3

and 4, however, the Petitioner was not allowed to join the said

post. It is a matter of record that the Petitioner’s deputation

came to an end vide order dated 12/01/2006, issued by the

State Government therefore, at any rate, she ought to have been

allowed to rejoin her duties specifically in view of “no objection”

extended by the Respondent No.3. On the said no objection

itself, the Respondent No.3 intimated the Government that after

deputation is over, the Petitioner would be allowed to join her

original post. There was no fault on the part of the Petitioner. As

there was one vacancy kept vacant, the Petitioner is entitled for

arrears of salary since 08/03/2006 to 30/06/2020.

Judgment 19 J-WP No.2436.2006.odt

30. It is a matter of record that during the pendency of

this Petition, the Petitioner would have been retired on

30/06/2020 on her completion of 58 years, if she would have

been in service. In view of the fact that the Petitioner is a

permanent employee, she is entitled for continuity in service and

pensionary benefits also. In view thereof, we are inclined to

allow the Petition and proceed to pass the following order :

(i)The Writ Petition is allowed.

(ii)It is held and declared that the action of the

Respondent Nos.3 and 4 showing the services of the

Petitioner as terminated on 01/10/2004 as per

Resolution dated 31/07/2004, is illegal and contrary

to the provisions of law as well as in view of order

passed by this Court in Writ Petition No.3321/2000,

hence the Petitioner is entitled for continuity in

service and all the benefits arising out of it.

(iii)The impugned Communication dated 08/03/2006

and the Resolution dated 31/07/2004 are hereby

quashed and set aside.

(iv)The respondent Nos.1 and 2 are hereby directed to

pay the arrears of salary of the Petitioner from

08/06/2006 till 30/06/2020 within four weeks from

submission of pay bills by Respondent Nos.3 and 4.

Judgment 20 J-WP No.2436.2006.odt

(v)The Respondent Nos.3 and 4 are hereby directed to

forward the pay bills in respect of the above referred

arrears of salary of the Petitioner within a period of

four weeks.

(vi)The Respondent Nos.3 and 4 are further directed to

prepare the pension papers in respect of the

Petitioner and forward the same to the Competent

Authority within eight weeks.

The Rule is made absolute in the above terms. No

order as to costs. Pending application(s), if any, stand(s)

disposed of.

(NANDESH S. DESHPANDE, J.) (SMT. M.S. JAWALKAR, J.)

Kirtak