High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.145 OF 20231The Secretary,Bharat Balaji Amre,Age 30 yrs., Occ. Agri. & Secretaryof Shri. Shambhu Shikshan Sanstha,Sambhunagar, Latur,Tq. & Dist. Latur. 2The Head Master,Ram Venkajirao Patil,Age 50 yrs., Occ. Head Masterof Shri. Sambhaji Madhyamik Vidyalaya,Ghonshi, Tq. Jalkot, Dist. Latur. … Petitioners… Versus …1The State of MaharashtraThrough it’s Secretary,School Education Department,Mantralaya, Mumbai – 32.2The Deputy Director of Education,Latur Division, Latur. 3The Education Officer (Secondary),Zilla Parishad, Latur, Dist. Latur. 4Smt. Rukmin d/o Bhagwan Sawargave,Age 39 yrs., Occ. Service,R/o Ghonshi, Tq. Jalkot,Dist. Latur. … Respondents... 2WP_145_2023+1_JdMr. G.D. Kale, Advocate for petitionersMr. S.J. Salgare, AGP for respondent Nos.1 to 3Mr. R.K. Ashtekar, Advocate for respondent No.4...WITHWRIT PETITION NO.11411 OF 2022WITHCIVIL APPLICATION NO.825 OF 2023IN/WP/11411/2022Smt. Rukmin d/o Bhagwan Sawargave,Age 39 yrs., Occ. Service,R/o Ghonshi, Tq. Jalkot,Dist. Latur. … Petitioner… Versus …1The State of MaharashtraThrough it’s Secretary,School Education Department,Mantralaya, Mumbai – 32.2The Deputy Director of Education,Latur Division, Latur. 3The Education Officer (Secondary),Zilla Parishad, Latur, Dist. Latur. 4The Secretary,Shri. Shambhu Shikshan Sanstha,Sambhunagar, Latur,Tq. & Dist. Latur. 3WP_145_2023+1_Jd5The Head Master,Shri. Sambhaji Madhyamik Vidyalaya,Ghonshi, Tq. Jalkot, Dist. Latur. … Respondents...Mr. R.K. Ashtekar, Advocate for petitionerMr. S.J. Salgare, AGP for respondent Nos.1 to 3Mr. G.D. Kale, Advocate for respondent Nos.4 and 5Mr. R.D. Biradar, Advocate for applicant in CA...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.RESERVED ON :21st MARCH, 2024PRONOUNCED ON : 07th MAY, 2024JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2Writ Petition No.11411 of 2022 is filed by the employee/teacher,whereas Writ Petition No.145 of 2023 is filed by the Management. Both thepetitions challenged the order passed by respondent No.2 – Deputy Directorof Education, Latur Division, Latur dated 10.10.2022, whereby the 4WP_145_2023+1_Jdpermanent approval granted in favour of the employee/teacher by theEducation Officer (Secondary), Zilla Parishad, Latur on 02.12.2021 came tobe set aside. Therefore, henceforth we would like to address the petitioner inWrit Petition No.11411 of 2022 as ‘employee/teacher’ and the petitioners inWrit Petition No.145 of 2023 as ‘petitioners/Management’. 3The facts which are not in dispute are – thepetitioners/Management runs a school at Ghonshi, Tq. Jalkot, Dist. Latur.The said school has been granted permission to run 5th to 10th classes on100% grant-in-aid basis by the competent authority. The staff was sanctionedby order dated 18.10.2011 and subsequent thereto. There are 11 sanctionedposts of teachers. The bifurcation is one Head Master, seven trained graduateteachers and three D.Ed. Teachers i.e. under graduate. One post of D.Ed. i.e.under graduate teacher has been declared as surplus. Two of the teachersfrom the school had retired by superannuation. One teacher came to beappointed on compassionate ground. Thereafter on 21.01.2012 one teacherby name Daulatrao Sudhakar Jantine died and because of his death one postof teacher from open category had fallen vacant. Thepetitioners/Management had sought permission by communication dated23.01.2012 to respondent No.3 to fill the vacant post. Respondent No.3 hadnot responded to the said communication. Ultimately the Management went 5WP_145_2023+1_Jdahead with the recruitment process, gave advertisement in daily newspaper,adopted the procedure and then appointed employee/teacher by order dated09.02.2012. Proposal was forwarded on 27.08.2013 to accord approval toher appointment as Shikshan Sevak. Respondent No.3 had granted theapproval by order dated 28.12.2013. Later on even the salary came to begiven to the employee/teacher. After completion of three years probation,the Management had issued the order of continuation of service andforwarded proposal for grant of permanent approval by communicationdated 08.04.2015. Reminder was also then given, but when no decision wastaken, the employee/teacher had filed Writ Petition No.9628 of 2017 seekingpermission against respondent No.3 to decide the said proposal. Thereafterrespondent No.3 had rejected the said proposal by order dated 20.12.2018.The said order came to be challenged before this Court once again in WritPetition No.1337 of 2019. The said writ petition was decided on 08.09.2021.The matter was relegated back to respondent No.3 to decide the proposal inthe light of the observations made by this Court in the order. Thereafterrespondent No.3 had granted the approval in favour of employee/teacher on02.12.2021. However, one Dattatraya Maruti Ghodke filed complaint beforerespondent No.2 stating that the approval granted in favour ofemployee/teacher (respondent No.4) is illegal. Thereupon, respondent No.2conducted the inquiry and passed the impugned order. 6WP_145_2023+1_Jd4Heard learned Advocate Mr. G.D. Kale forpetitioners/Management, learned AGP Mr. S.J. Salgare for State and learnedAdvocate Mr. R.K. Ashtekar for the employee/teacher, in both petitions. 5The learned Advocate for petitioners/Management hasvehemently submitted that the impugned order has been passed withoutjurisdiction and power. When the Education Officer had the occasion toconsider the factual aspect involved including - whether the appointment isproper, against vacant post, as per the roaster etc. and was guided by theobservations of this Court, then the Deputy Director ought not to haveinterfered only on account of a complaint by a person who had nothing to dowith the approval of the services of the employee/teacher. 6The learned Advocate for the employee/teacher is relying on thedecision of this Court at Principal Seat in Mrs. Shivanee Prasanna Deshpandevs. The State of Maharashtra and others with companion matters [WritPetition No.10133 of 2016] decided on 01.08.2017, wherein it has beenobserved that - “Unless the power of review is specifically or by necessaryimplication is provided, the authority cannot review its own order orinterfere with the order passed by competent authority.” Further reliance ison the decision in Kalpana Ramkrishna Gavande vs. The State of Maharashtra 7WP_145_2023+1_Jdand others with companion matters [Writ Petition (Stamp) No.92916 of2020] decided by Single Judge of this Court on 06.01.2021, wherein underthe similar circumstances and taking note of the decision in ShivaneeDeshpande (supra) it is observed that “respondent No.2 – Deputy Director ofEducation was not empowered to cancel the approval which was alreadygranted on the ground that the appointments were made without filling inthe quota of the reserved category.” 7Per contra, the learned AGP by relying upon the affidavit-in-replyof Dr. Ganpat Shankarrao More, the Deputy Director of Education, LaturDivision, Latur submits that in fact in the school run by thepetitioners/Management till academic year 2008-2009 in all 10 posts ofteachers were sanctioned. As regards the addition of the posts, a specificnote was given that unless the staffing pattern is sanctioned by the StateGovernment, additional post cannot be filled in. Therefore, at the time ofappointment of the employee/teacher there was no vacancy available and,therefore, the approval ought not to have been granted by the EducationOfficer. The said mistake has been corrected by respondent No.2. 8As aforesaid, the facts are clear enough to indicate that theemployee/teacher’s initial appointment was earlier approved by order dated 8WP_145_2023+1_Jd28.12.2013. At that time there was no challenge to that order by anybodybefore any authority. Even the salary was allowed to be withdrawn betweenOctober, 2014 to February, 2015 by the appropriate authority. Thereafterrespondent No.3 had rejected the proposal for permanent approval of theemployee/teacher, which was challenged before this Court in Writ PetitionNo.1337 of 2019. Taking into consideration all the aspects involved, it wasobserved by this Court that the employee/teacher will have to be consideredfrom the graduate teachers category and the staffing pattern demonstratethat for the year 2014-2015 there were seven posts of graduate teacherssanctioned. The employee/teacher would be seventh, but then it wasobserved that the roaster would required to be considered as to whether thebacklog of ST category was meant for particular or under graduate or agraduate teacher and, therefore, the matter was again relegated torespondent No.3. Thereupon, the permanent approval came to be granted. 9It is to be noted that respondent No.2 has reopened the file onthe basis of complaint made by one Dattatraya Maruti Ghodke. Now, whatlocus standi he had to make that complaint, is a question. Thereafter, theexplanations have been given by the petitioners/Management. Now, whilerejecting the approval it is said that there was backlog of the ST category.Important point to be noted is that in that context it can be said that the post 9WP_145_2023+1_Jdwas there but according to respondent No.2 it was for reserved category. Atthe same time, the further explanation given by the Head Master has notbeen considered. 10The first and the foremost fact to be noted is that there is noprovision under M.E.P.S. Act or Rules which would empower respondent No.2to reopen the approvals those are granted by the Education Officer. Nodoubt, he is the superior authority to the Education Officer, but it cannot beipso facto provision or arrangement to recall or review order passed by thesubordinate authority assuming himself to be the appellate authority. Wewould also rely upon the decision in Shivanee Deshpande (supra), wherein itis observed in respect of backlog of reserved category that - “If the EducationOfficer is of the view that in some of the schools backlog of reserved categorycandidates is not properly maintained, the Education Officer would alwaysbe empowered to insist that hereinafter no candidate belonging to opencategory shall be filled in unless the quota of reserved category candidates, asper the requirement of MEPS Act Rules, is fulfilled.” That means, respondentNo.2 has no power to cancel the approval granted to the employee/teacheron the ground that the employee/teacher’s appointment from the opencategory was, in fact, without filling in the quota of reserved category. 10WP_145_2023+1_Jd11Now, we are constrained to observe that in spite of ShivaneeDeshpande’s decision was pronounced on 01.08.2017; yet, we are comingacross such assumption of powers by respondent No.2 in the subsequentperiod like the present one. When the Act does not empowers so the DeputyDirectors of Education are required to be careful in assuming such powers.The exercise of such power is permissible in Shivanee Deshpande (supra)only when there is a fraud, misrepresentation or suppression by thepetitioners/Management or the employee/teacher. We hope and trust thathenceforth all the Deputy Directors of Education would take note of thedecision in Shivanee Deshpande (supra) and other decisions in which thedecision in Shivanee Deshpande has been followed and then would actaccordingly. 12Since the impugned order dated 10.10.2022 passed byrespondent No.2 is without jurisdiction and power, it deserves to be set aside,so also the letter issued by respondent No.3 dated 20.10.2022 deserves to beset aside, thereby then restoring the permanent approval granted to theemployee/teacher’s appointment by order dated 02.12.2021 by respondentNo.3. Hence, following order.
Decision
11WP_145_2023+1_JdORDERi)Both the Writ Petitions stand allowed in terms of prayer clause‘B’ in both the writ petitions. ii)No order as to costs. iii)The Government Pleader attached to this Bench is directed tocirculate the copy of Judgment in Shivani Deshpande (supra), copy of thisJudgment and other such important Judgments, in which the point or subjectis involved, to all the Deputy Directors of Education throughout theMaharashtra and to take note of the observations in paragraph No.11 of thisJudgment. iv)Civil Application stands disposed of. v)Rule is made absolute in the above terms. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd