Writ Petition No. 2549 of 2018 · Bombaybench High Court
Case Details
2024:BHC-AUG:13864-DB wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO.2549 OF 2018Gitanjali d/o Prakash PatilAge: 34 years, Occu.: Service,R/o. Aadarsh Madhyamik Vidyalaya, Mandane, Tq. Shahada, Dist. Nandurbar... PetitionerVersus1.The State of MaharashtraThrough its Secretary,School Education and SportsDepartment, Mantralaya,Mumbai-400032.2.The Dy. Director of Education,Nashik Division, Nashik.3.The Education Officer (Secondary),Zilla Parishad, Nandurbar.4.The Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar Through its President/Secretary.5.The Headmaster,Aadarsh Madhyamik Vidyalayaand Junior College, Mandane,Tq. Shahada, Dist. Nandurbar... Respondents...WITHCIVIL APPLICATION NO.5618 OF 2018IN WP/2549/2018Bhimsing s/o Harsing Pawara,Age: 69 years, Occu.: Agriculture,& Director of Peoples Education Society,[1]
Legal Reasoning
wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtMandane, Tq. Shahada, Dist. Nandurbar,R/o. At village Bhongare, Post Chandsauli,Tq. Shahada, Dist. Nandurbar... ApplicantVersusGitanjali d/o Prakash Patil and others.. Respondents…WITHWRIT PETITION NO.2550 OF 2018Shri. Pankaj s/o Jijabrao PawarAge: 37 years, Occu.: Service,R/o. Aadarsh Madhyamik Vidyalaya,Mandane, Tq. Shahada, Dist. Nandurbar .. PetitionerVersus1.The State of MaharashtraThrough its Secretary,School Education and SportsDepartment, Mantralaya,Mumbai-400032.2.The Dy. Director of Education,Nashik Division, Nashik.3.The Education Officer (Secondary),Zilla Parishad, Nandurbar.4.The Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar Through its President/Secretary.5.The Headmaster,Aadarsh Madhyamik Vidyalayaand Junior College, Mandane,Tq. Shahada, Dist. Nandurbar... Respondents…WITHCIVIL APPLICATION NO.5651 OF 2018IN WP/2550/2018[2] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtBhimsing s/o Harsing Pawara,Age: 69 years, Occu.: Agriculture,& Director of Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar,R/o. At village Bhongare, Post Chandsauli,Tq. Shahada, Dist. Nandurbar... ApplicantVersusPankaj s/o Jijabrao Pawar and Others.. Respondents…WITHWRIT PETITION NO.2553 OF 2018Shri. Dhairyashil s/o Chandrakant PatilAge: 37 years, Occu.: Service,R/o. Aadarsh Madhyamik Vidyalaya,Mandane, Tq. Shahada, Dist. Nandurbar.. PetitionerVersus1.The State of MaharashtraThrough its Secretary,School Education and SportsDepartment, Mantralaya,Mumbai-400032.2.The Dy. Director of Education,Nashik Division, Nashik.3.The Education Officer (Secondary),Zilla Parishad, Nandurbar.4.The Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar Through its President/Secretary.5.The Headmaster,Aadarsh Madhyamik Vidyalayaand Junior College, Mandane,Tq. Shahada, Dist. Nandurbar... Respondents[3] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt…WITHCIVIL APPLICATION NO.5616 of 2018IN WP/2553/2018Bhimsing s/o Harsing Pawara,Age: 69 years, Occu.: Agriculture,& Director of Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar,R/o. At village Bhongare, Post Chandsauli,Tq. Shahada, Dist. Nandurbar... ApplicantVersusShri. Dhairyashil s/o Chandrakant Patiland others... Respondents…WITHWRIT PETITION NO.2570 OF 2018Shri. Deepak s/o Sahebrao PawarAge: 43 years, Occu.: Service,R/o. Aadarsh Madhyamik Vidyalaya,Mandane, Tq. Shahada, Dist. Nandurbar.. PetitionerVersus1.The State of MaharashtraThrough its Secretary,School Education and SportsDepartment, Mantralaya,Mumbai-400032.2.The Dy. Director of Education,Nashik Division, Nashik.3.The Education Officer (Secondary),Zilla Parishad, Nandurbar.4.The Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar Through its President/Secretary.[4] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt5.The Headmaster,Aadarsh Madhyamik Vidyalayaand Junior College, Mandane,Tq. Shahada, Dist. Nandurbar... Respondents…WITHCIVIL APPLICATION NO.5654 of 2018IN WP/2570/2018Bhimsing s/o Harsing Pawara,Age: 69 years, Occu.: Agriculture,& Director of Peoples Education Society,Mandane, Tq. Shahada, Dist. Nandurbar,R/o. At village Bhongare, Post Chandsauli,Tq. Shahada, Dist. Nandurbar... ApplicantVersusDeepak s/o Sahebrao Pawar and others... Respondents……….Ms. Pradnya S. Talekar i/b Talekar and Associates, Advocate for petitionersin all the petitions.Mr. P. S. Patil, AGP for respondent Nos.1 to 3 – State in all the petitions.Mr. N. E. Deshmukh, Advocate for respondent Nos.4 and 5 in all thepetitions.Mr. Sandesh R. Patil, Advocate for applicant in all the civil applications.……….CORAM : MANGESH S. PATIL AND SHAILESH P BRAHME, JJ. RESERVED ON : 02 JULY 2024 PRONOUNCED ON : 10 JULY 2024JUDGMENT [ Per Shailesh P. Brahme, J. ] :- Rule. Rule is made returnable forthwith. With the consent ofthe parties, heard litigating sides finally.[5]
Decision
wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt2.These petitions can be disposed of by common judgment andorder, as relevant facts and points for determination are common.Petitioners are the employees of respondent Nos.4 and 5 Management.They are challenging common orders dated 06.02.2018 and 29.06.2017passed by respondent No.2 Deputy Director of Education, revokingapproval to their appointments.3.The sequence of events in all the matters can be summarizedas follows :-Sr.Nos.Events/DocumentsWP/2549/2018Geetanjali PatilWP/2550/2018Pankaj PawarWP/2553/2018DhairyasheelPatilWP/2570/2018Deepak Pawar1Advertisement21.06.201108.06.201028.01.20042Appointment 12.07.201114.06.201002.04.200402.04.2004(Promotion)3Approval 30.12.2011 19.10.201029.12.200929.12.20094Enquiry Report of Dy.Director of Educationcancelling approvals.10.10.201310.10.201310.10.201310.10.20135Dismissal 19.11.201319.11.201319.11.201319.11.2013(reversion)6Dismissal set aside byJudgment and orderpassed by SchoolTribunal 28.03.201428.03.201428.03.201428.03.20147HC judgment andorder upholdingjudgment of SchoolTribunal08.03.201608.03.201608.03.201608.03.20168Order of Dy. Directorof Education29.06.201729.06.201729.06.201729.06.20179Orders in reviewpassed by DeputyDirector of Education16.01.201816.01.201816.01.201816.01.2018[6] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt4.It is the case of petitioners that they were appointed inrespondent No.5 School after following due procedure of law. Theirappointments were approved by respondent No.3 Education Officer on thedates referred in above chart. Intervenors in the present matter madecomplaints against the appointment and approval of the petitioners. Anenquiry was conducted by respondent No.2 Deputy Director of Education,which culminated into revocation of the approvals vide report/order dated10.10.2013. Consequently, all the petitioners were terminated and theywere required to approach School Tribunals by distinct appeals. Theirappeals were allowed by the Tribunal. Intervenors challenged thejudgments of the Tribunal in the High Court by Writ Petition No.10004 of2015, which was dismissed, but liberty was given to Deputy Director ofEducation to proceed with the report dated 10.10.2013. 5.In view of the liberty given by the High Court, Deputy Directorof Education proceeded with the report and revoked the approvals grantedto the petitioners. Petitioners and respondent – Management were notheard and they preferred review applications before respondent No.2Deputy Director of Education. After hearing them, orders of revocation ofapprovals were confirmed, thereby dismissing applications for review,which are under challenge.[7] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt6.Learned Counsel for the petitioners Ms. Pradnya Talekarsubmits that respondent No.2 Deputy Director of Education had no powerto revoke the approvals granted to the petitioners vide order dated29.06.2017. When appointments of the petitioners were made afterfollowing due procedure of law and were approved, it was not open to digout old orders of approval. It is further submitted that though theappointments of the petitioners – teachers were against reserved post,there is no backlog as on today. It is further submitted that belatedsubmission of proposals for approval in case of non teaching members /petitioners was not within their control. 7.Learned Counsel would submit that approvals were grantedsubject to undertaking by the Management to comply with the reservationpolicy. Necessary compliance has been made. It is further submitted that incase of appointments of teachers – petitioners, intimation was given to theEducation Department before proceeding for recruitment. Learned Counselseeks to rely on the judgments of Murlidhar s/o Datta Kayande Vs. TheState of Maharashtra and others, [Writ Petition No.13707 of 2018 withconnected matters decided on 12.04.2022], Gangadhar Baburao Shere Vs.The State of Maharashtra and others, [Writ Petition No.11613 of 2015decided on 04.03.2016], Sau. Jagtap Sunita Manikrao Vs. State ofMaharashtra and Ors. [Writ Petition No.8221 of 2016 decided on[8] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt12.07.2017] and Namdeo s/o Vishnu Sase Vs. State of Maharashtra andothers, [2023(2) Mh.L.J. 598].8.Per contra, learned AGP Mr. P. S. Patil supports impugnedorders by referring to affidavit-in-reply. He would submit that appointmentsof the petitioners were not in accordance with law and necessary enquirywas not made when approvals were granted to them. Petitioners – Teacherswere not eligible for the appointments against the reserved post. He wouldfurther submit that the appointments of non teaching members was foundto be suspicious and made by manipulation of the record. He would furthersubmit that it was open for the higher authorities to conduct scrutiny, asallegations were of fraud, nepotism and discrimination. After giving dueopportunity of hearing, respondent No.2 – Deputy Director of Educationproceeded to revoke the approvals, which cannot be faulted with. 9.He would further submit that in view of the liberty granted byHigh Court in Writ Petition No.10004 of 2015, enquiry was conducted andapprovals were revoked by Deputy Director of Education. It is furthersubmitted that School Tribunal had allowed appeals of the petitioners onlyon the ground of violation of principles of natural justice and the issue ofvalidity of the approvals was not germane before the Tribunal. He wouldrely upon judgments in the matter of Priyadarshini Education Trust andothers, Vs. Ratis (Rafia) Bano d/o Abdul Rasheed and others, [2007 (6)[9] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtMh.L.J. 667], Afrozkhan s/o Firozkhan Pathan Vs. State of Maharashtraand others, [2019 (4) Mh.L.J. 933] and Vandana Pandurang Patle Vs.Kalpana Shikshan Sanstha and others, [2017(6) Mh.L.J. 696].10.Learned Counsel Mr. N. E. Deshmukh, who appears forrespondent Nos.4 and 5 in all the matters, supports the petitioners andadopts the submissions. 11.Learned Counsel Mr. Sandesh R. Patil, who appears for theintervenors, adopts the submissions of learned AGP. He would vehementlysubmit that the appointments of the petitioners are backdoor entries. Hewould further submit that intervenors are deliberately not impleaded in thematters, though they are having locus. It is further submitted thatimpugned orders are reasonable and are in accordance with law, which callfor no interference. According to him petitioners are closely related toPresident Jijabrao Pawar and bypassing statutory procedure, theirappointments were made. 12.Having heard learned Counsel for the litigating sides, whatemerges is that petitioner, Gitanjali Patil, belongs to OBC category andappointed as Shikshan Sevak against post reserved for ST vide order dated12.07.2011. Petitioner, Pankaj Pawar, belongs to open category and wasappointed as Shikshan Sevak against category reserved for NT vide order[10] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtdated 14.06.2010. Advertisement published in newspaper “AplaMaharashtra” indicates that posts were reserved for ST and NT category.The interviews were held and other aspirants were also present forinterviews.13.At the relevant time, there was backlog in the school. No postfor unreserved and OBC category was available. Duly verified roster of theSchool by Assistant Commissioner Backward Class Cell, indicates that therewas backlog of posts, 1 - SC, 2 - ST, 1 - VJA, 1 - NT(C) and there was excesspost of 1 OBC and 2 Open. 14.Petitioner/Gitanjali is alleged to be daughter-in-law of brother of thePresident Mr. Jijabrao Pawar and Petitioner/Pankaj Pawar is the son ofMr. Jijabrao Pawar. It is alleged that due procedure of law and policy ofreservation have been bypassed.15.In case of petitioner, Dhairyashil Patil, it is contended that hewas appointed as Junior Clerk on 02.04.2004. Petitioner, Deepak Pawar, isstated to be promoted to the post of Senior Clerk from Junior Clerk videorder dated 02.04.2004. The proposals, in case of these petitioners, wereforwarded on 01.06.2008 belatedly, after four years and two months. Theapprovals to their appointments were issued by Education Officer on29.12.2009. It is alleged that these two petitioners were not in service at[11] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtall and a bogus record is created to show their appointments. Dhairyashilis President’s sister’s grandson. Deepak is nephew of the President.16.It reveals from record that immediately after grant ofapprovals, complaints were made by the intervenors before respondentNo.2 Deputy Director of Education for violation of due procedure of law,policy of reservation, discrimination and nepotism. Respondent No.2 beingHigher Authority of respondent No.3 Education Officer, conducted enquiryand recommended to revoke the approvals given to the petitioners. Theappointments of Gitanjali and Pankaj were held to be against policy ofreservation and statutory procedure. The appointments of Dhairyashil andDeepak were castigated to be suspicious. These findings are confirmed byimpugned orders dated 29.06.2017 and 06.02.2018.17.It reveals from Government Resolution dated 06.02.2012 andthe Corrigendum dated 23.08.2017 referred to by learned AGP that HigherOfficer in the Education Department was having jurisdiction to cancel theapproval, only rider was to extend opportunity of hearing to the concernedemployee. In the present matter, respondent No.2 Deputy Director ofEducation received complaints against grant of approvals to the petitioners,which are serious in nature. By conducting enquiry and extendingopportunity to the petitioners and Management, report was submitted byrespondent No.2 on 10.10.2013. It is not a case of petitioners that there[12] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtwas violation of principles of natural justice.18.In pursuance of the report dated 10.10.2013, services ofpetitioners were terminated by distinct orders passed on 19.11.2013. Theypreferred separate appeals before School Tribunal, Nashik. Their appealswere allowed predominantly on the point that procedure for terminatingemployees appointed on probation was not followed. Intervenorschallenged judgment of the School Tribunal by preferring Writ PetitionNo.10004 of 2015. In the concluding paragraph of the judgment, libertywas given to present respondent Nos.2 and 3 to take action in pursuance ofreport dated 10.10.2013 with a rider to hear the present petitioners.19.In view of liberty granted by High Court vide its judgmentdated 08.03.2016, referred above, fresh enquiry was conducted byrespondent No.2 Deputy Director of Education into the validity of theapprovals of the petitioners. Intervenors approached the respondent No.2with the serious allegations against the petitioners challenging orders ofapprovals. Enquiry was conducted and by order dated 29.06.2017,recommendations made on 10.10.2013 were confirmed. Petitioners soughtreview of the orders passed on 29.07.2017 on the ground that they werenot extended opportunity of hearing. As per their request, again enquirywas conducted and by order dated 16.02.2018, the revocations ofapprovals were confirmed. [13] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt20.If the sequence of events are considered, then we have nohesitation to hold that respondent No.2 Deputy Director of Education beingHigher Officer had jurisdiction to look into the serious allegations. It ispertinent to note that the allegations were of violation of reservation policy,nepotism and discrimination, which are akin to fraud. Due to interventionof High Court, power was conferred on the respondent No.2 DeputyDirector of Education. It was not power of review that was exercised byhim as is being submitted by learned Advocate Ms. Talekar.21.Learned Counsel for the petitioners refers to judgment in caseof Murlidhar s/o Datta Kayande (Supra), and reiterates paragraph Nos.11and 12, which read as follows :-“11.Be that as it may, the issue that arises forconsideration of this Court is whether respondent No.2-Commissioner of Education could have interfered with theapproval granted by the Education Officer on the proposalsubmitted by the Management in respect of these twoteachers under any of the provisions of the MaharashtraEmployees of Private Schools (Conditions of Service)Regulation Act, 1977 as well as the Rules framed under thesaid Act or not. The learned Counsel for the respondentscould not point out any provision under the said Act and theRules empowering the Commissioner of Education tointerfere with the order of approval granted by the EducationOfficer on the proposal submitted by the Management. [14] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt12.In our view, the power to interfere with the decisiontaken by any Authority by another authority has to beexpressly provided under the provisions of the statute andcannot be exercised even if any illegalities are noticed by suchHigher authority unless empowered. The Commissioner ofEducation admittedly has neither any appellate jurisdictionnor any power of review against the order of the EducationOfficer.”22.In the above referred matter, approval granted by EducationOfficer was revoked by Commissioner of Education. It was not a case offraud, violation of policy of reservation or nepotism. Under peculiarcircumstances, the orders of the Commissioner of Education were quashedholding that there did not exist either appellate or review jurisdiction.However, case in hand reflects that jurisdiction of the Deputy Director ofEducation was derived from express liberty given by High Court andadditionally there were allegations of fraud and nepotism. We do notaccept the submissions of learned Counsel for the petitioners in this regard.The judgment cited is not applicable to the matter in hand.23.The appointments of petitioners Pankaj and Geetanjali weremade in the year 2010 and 2011 respectively. At the relevant time,recruitment was regulated by Section 5(1) of the Maharashtra Employeesof Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafterreferred to as the “Act”) and Rule 9 of the Maharashtra Employees of[15] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtPrivate Schools (Conditions of Service) Regulation Rules, 1981 (hereinafterreferred to as the “Rules”). It is apposite to refer to unamended Rule 9(8)and 9(9)(a) of the Rules and Section 5(1) of the Act, which read asfollows :-“9.Appointment of staff.(8)For the purpose of filling up the vacancies reservedunder sub-rule(7) the Management shall advertise thevacancies in at least one newspaper having widecirculation in the region and also notify the vacancies tothe Employment Exchange of the District and to theDistrict Social Welfare Officer [and to the associations ororganisations of persons belonging to Backward Classes,by whatever names such associations or organisations arecalled, and which are recognised by Government for thepurposes of this sub-rule]requisitioning the names ofqualified personnel, if any, registered with them. If it isnot possible to fill in the reserved post from amongstcandidates, if any, who are recommended by theEmployment Exchange or the District Social WelfareOfficer [or such associations or organisations as aforesaid]or if no such names are recommended by the EmploymentExchange or the District Social Welfare Officer [or suchassociations or organisation as aforesaid] within a periodof one month the Management may proceed to fill up thereserved post in accordance with the provisions of sub-rule(9).(9)(a)In case it is not possible to fill in theteaching post for which a vacancy is reserved for a person[16] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtbelonging to a particular category of Backward Classes,the post may be filled in by selecting a candidate from theother remaining categories in the order specified in sub-rule(7) and if no person from any of the categories isavailable, the post may be filled in temporarily or an year-to-year basis by a candidate not belonging to theBackward Classes.”Further, Section 5(1) of the Act, reads as follows :-“5.Certain obligations of Management of PrivateSchools.(1)The Management shall, as soon as possible, fill in,in the manner prescribed every permanent vacancy in aprivate school by the appointment of a person dulyqualified to fill such vacancy:[Provided that unless such vacancy is to be filled in bypromotion, the management shall, before proceeding tofill such vacancy, ascertain from the Education Inspector,Greater Bombay, [the Education Officer, Zilla Parishad or,as the case may be, the Director or the officer designatedby the Director in respect of schools imparting technical,vocational, art or special education,] whether there is anysuitable person available on the list of surplus personsmaintained by him, for absorption in other schools; and inthe event of such person being available, the Managementshall appoint that person in such vacancy.]”24.When the statutory procedure was applicable, it wasmandatory for the respondent – Management to follow procedureprescribed in Rule 9(8) and 9(9)(a) of the Rules. As referred above,[17] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtSection 5(1) of the Act mandates that the Management shall as soon aspossible fill in permanent vacancy in the manner prescribed by appointing aperson duly qualified to fill up vacancy. Petitioners Gitanjali and Pankajwere not eligible, as they are not belonging to ST or NT. If the suitablecandidates to fill in reserved post were not available, then candidates fromother remaining categories in the order specified in sub-rule (7) of Rule 9were required to be appointed. If such a candidate was not available, thenthe post could have been filled in temporarily on year-to-year basis bycandidates of unreserved category. Respondent – Management failed tofollow the procedure contemplated by Rule 9(8) and 9(9)(a) of the Rules.At the most, petitioners Gitanjali and Pankaj could have been appointedtemporarily on year-to-year basis, however, they were appointed onprobation of three years, which is brazen violation of policy of reservation.25.It reveals from record that along with petitioner Gitanjali,some other reserved category candidates had appeared for interview,namely, Sangle Amit Shantaram (NT), More Ravindra Bhika (NT) and MoreSandip Punaji (NT). It is incomprehensible as to why petitioner Gitanjaliwas selected. In the case of petitioner Pankaj, Avinash Pawar (OBC),Dinesh Pawar (OBC) and Vishwas Patil (OBC) had appeared for interviewand were available, but Pankaj was selected. We find that selection ofpetitioners Gitanjali and Pankaj was strategic and we are assigning the[18] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtreasons demonstrating element of nepotism, in the further part of ourjudgment.26.Learned AGP has relied on the judgment of PriyadarshiniEducation Trust and Others (Supra). We have gone through paragraphNo.11 of the judgment. The significance of the advertisement andprinciples of equality of opportunity under Article 16 and equality beforelaw contemplated under Article 14 of the Constitution of India have beendiscussed. Though facts are different, the principles culled down fromvarious decisions of the Supreme Court as referred in paragraph No.12equally apply to the case in hand. In the present case also, nepotism hasbeen practised by the office bearers of the respondent – Management.There is every reason to infer that appointment of petitioners wouldamount to denial of equal opportunity to the citizens desirous of seekingemployment/other candidates.27.Learned AGP further relied on the judgment of Afrozkhan s/oFirozkhan Pathan (Supra). In that case, order of Deputy Director ofEducation refusing to grant approval was challenged. Appointment of thepetitioner therein, was made violating policy of reservation when there wasbacklog of ST. We prefer to reiterate paragraph Nos.18, 21, 22 and 23, asfollows :-[19] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt“18 The aforesaid Government Resolutions, circulars, of the Actand Rules show that it is mandatory on the institution, appointingauthority to prepare roster of appropriate points as per the postsanctioned and then get it approved from the competent authority,B.C. Cell. Unless and until such approved roster was available withthe institution, it was not possible for the institution to start theprocess of appointment and it was also not possible for theEducation Officer to ascertain whether there is backlog of reservedclass. If there is backlog of reserved class, no post from opencategory can be filled unless the aforesaid procedure is followed. Itneeds to be ascertained as to whether the post, which has fallenvacant was of reserved class even if one employee from opencategory retired and the post had become available. This is becauseinvariably open category candidates are appointed as against thereserved category and so it needs to be ascertained whether thepost which has fallen vacant was of reserved category candidate.Thus, unless and until the roster is prepared and it is got approved,the Education Officer cannot give permission to the institution tostart process of appointment of the candidate from open category.In the past, about 15 years back, candidates from reserved categorywere not available, but after that the candidates from all thereserved categories started becoming available and at present, eventhe reserved category candidates are jobless. Thus, when there is abacklog in respect of reservation, steps to fill those posts need to betaken first. Only when the post for open category candidate isclearly available, steps can be taken to fill that post. The process ofappointment involves publication of advertisement and if there isbacklog of reserved class, reserved post needs to be advertised andnot open post. In the present matter, it is admitted by the institutionthat the Petitioner was appointed as against the post reserved forS.T. Thus, on this single ground, the approval could have been[20] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtcancelled. Further, in the present matter, there was no roster, therewas no clearance from B.C. Cell before advertisement and even theEducation Officer had not given permission to advertise the postthough he subsequently helped the institution by giving approval tothe appointment of the Petitioner. When appointments are madewithout following the said procedure, the Education Officer is notexpected to give approval to such appointments. 21Both the sides placed reliance on many reported andunreported cases. The learned counsel for Zilla Parishad and thelearned AGP placed reliance on the following cases in support oforder of cancellation of approval. a) 2017 (5) All M.R. 649, (Vandana Pandurang PatleVs. Kalpana Shikshan Sanstha, Dhanegaon and others)Nagpur Bench of this Court. In this case, this Court hasheld that in view of the Rule 9(9) of the MEPS Rules, 1981,reserved post can be filled by person belonging to otherreserved category if the person of reserved category is notavailable and such post cannot be filled from opencategory. This Court held that the appointment made ofopen category candidate against the reserved categorycandidate cannot sustain in law. b) 2015 (6) Mh.L.J. 355, (Monali Laxman Nemade Vs.State of Maharashtra and others) Aurangabad Bench ofthis Court. In this case also after considering Rule 9(9) ofthe MEPS Rules and Section 5 of MEPS Act, this Court haslaid down that only if reserved category candidate is notavailable, open category candidate can be appointed, buton year to year basis and not on permanent post and thatcan be only as per the reservation policy (mentionedabove). It is further laid down that there is no power to the[21] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtEducation Officer to give approval in respect ofappointment of open category candidate if it is madeagainst reserved post. c) 2007 (6) Bom.C.R. 402, (Asha Shamkumar Patil Vs.Sadhana Rajan Kamble & Ors) Supreme Court. In this case,the Apex Court has laid down that in view of Rule 9 ofMEPS Rules, when a post is reserved and a candidate ofthat category is not available, only candidate of otherreserved category can be appointed in view of the policy ofthe Government and on that post, open category candidatecannot be appointed. These three cases are as per the policy decision of the StateGovernment and as per the spirit of reservation policy.22 On the other hand, following cases were cited by the learnedcounsel for Petitioner: a) 2015 (1) Bom.C.R 694 , (Namita Narayan Jha &anr. Vs. Education Officer & ors.) Nagpur Bench of thisCourt. The facts show that the appointment of opencategory candidate was not against the backlog of reservedcategory and so the appointment was upheld. b) Decision given in Writ Petition No.8221 of 2016,(Sau. Jagtap Sunita Manikrao Vs. State of Maharashtra &ors.) Principal Seat of this Court. Three years service wascompleted by the Shikshan Sevak, he was from opencategory and the appointment was upheld when theappointment was against reserved post. In view of thedecision of the Apex Court in the case of Asha ShamkumarPatil (supra), this case can be of no help to the Petitioner. [22] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtc) Decision given in Writ Petition No.8818 of 2017and other writ petitions, which were decided at PrincipalSeat on 14th August, 2017. Cancellation of approval to theappointment of open category candidate was challengedon other ground, but during pendency, the decision ofcancellation was withdrawn by the authority probably dueto circumstance of absence of following proper procedurefor cancellation. d) Decision given in Writ Petition No.10133 of 2016,(Mrs. Shivanee Prasanna Deshpande Vs. State ofMaharashtra & ors.) decided with other writ petitions atPrincipal Seat of this Court. This Court held thatcancellation of approval was not possible even whenappointment was against reserved category. This case is ofno use to the Petitioner in view of the decision of theSupreme Court in the case of Asha Shamkumar Patil(supra). e) Decision given in Writ Petition No.4455 of 2009,(Sandeep S/o Damodar Chavan Vs. State of Maharashtraand others) decided at this Bench and decision given inWrit Petition No.3945 of 2017, (Anilkumar s/o NivruttiraoBoiwar Vs. State of Maharashtra and others) decided atthis bench. It appears that this Court obtained undertakingfrom the institution to fill backlog in future and appointedcandidates of open category were protected. In view of thedecision of the Supreme Court in the case of AshaShamkumar Patil (supra) this decision also cannot helpthe Petitioner. f) 1978 AIR (SC) 851, (Mohinder Singh Gill Vs. ChiefElection Commissioner, New Delhi) Supreme Court. By[23] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtreferring some observations, the learned counsel forPetitioner submitted that only on the ground ofappointment as against surplus teachers, the presentmatter could have been considered by the authority, butthe matter is decided on other grounds like reservationpolicy and so the decision is not tenable. This submissionis not at all acceptable. In view of the aforesaid policy ofthe State Government, this Court holds that it was theduty of the authority to make inquiry into such mattersand take decision like cancellation of approval.23 In view of the discussion made above, this Court holds thatno relief can be given to the Petitioner. This Court further holdsthat criminal action is warranted as against the Management foraforesaid illegal activity for aforesaid offences and other. Actionalso needs to be taken against the Petitioner and the EducationOfficer concerned as apparently there was a conspiracy to do suchillegality, which amounts to fraud. Steps are to be taken by theDeputy Director of Education to see that criminal action is taken.During investigation, the investigating agency can trace out theother persons involved in the offence. The amount already paid bythe Government as a salary in respect of the Petitioner is to berecovered from the institution. Further possible action also can betaken against the Respondent/institution. The petition isdismissed. Interim relief already granted is vacated. A copy oforder to be sent to Deputy Director of Education of this region.”28.We propose to follow the view taken by the coordinate benchin Afrozkhan s/o Firozkhan Pathan (Supra). The principles laid downtherein would apply with equal force to the case in hand. It is useful to[24] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtrefer to the judgment in the matter of Asha Shamkumar Patil Vs. SadhanaRajan Kamble & Ors.(Supra). In that matter appellant before the SupremeCourt was of unreserved category but was appointed against post ofreserved category. Her appointment was challenged by the respondentNo.1, who was from reserved category, but could not be selected to the postin question.. High Court allowed writ petition and quashed theappointment of appellant. Being aggrieved, appellant had approachedSupreme Court. Her appeal was dismissed confirming the judgment ofHigh Court mainly for following reasons :-“6. Having heard the learned Counsel for the parties and aftergoing through the relevant rules and resolutions, we are of theview that no interference is called for in the present case.Admittedly, the appellant is from the general category. From theadvertisement in the daily newspaper, it would be clear that theposts for which teachers were wanted were reserved forcandidates belonging to ST/DT/NT and other backward classes.However, it was also clarified that if candidates from the aforesaidreserved category were not available, then, candidates belongingto scheduled caste would be considered. In this connection, wemay also refer to Rule 9(a) of the Maharashtra Employees ofPrivate Schools, 1981, which reads as follows: Rule 9(a) - In case it is not possible to fill in theteaching post for which a vacancy is reserved for aperson belonging to a particular category of BackwardClasses, the post may be filled in by selecting acandidate from the other remaining categories in the[25] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtorder specified in Sub-rule (7) and if no person fromany of the categories is available, the post may be filledin temporarily on an year to year basis by a candidatenot belonging to the Backward Classes. A plain reading of Rule 9(a), which deals withappointment of staff of a school, would show that incase it is not possible to fill in the teaching post forwhich a vacancy is reserved for a person belonging to aparticular category of candidates, the post may be filledin by selecting a candidate from the other remainingcategories in the order specified in Sub-rule (7) and ifno person from any of the categories is available, thepost may be filled in temporarily on an year to yearbasis by a candidate not belonging to the Backwardclasses. 7. From the above, it is, therefore, clear that the post may befilled in by a candidate belonging to the other remainingcategories if no person is available from ST/DT or NT categories. Ifno person is available from any of the categories, then, the saidpost can be filled in temporarily on a year to year basis by acandidate not belonging to the classes of candidates mentioned inRule 9(a). Here, in the present case, the appellant was appointedon a permanent status as a teacher in the said school, which underRule 9(a) is not permissible. Relying upon the ratio, the appointment of petitioners Gitanjaliand Pankaj cannot be sustained. 29.It is necessary to refer to the judgment pointed out by learnedCounsel for the petitioner in this regard. Reliance is placed on Gangadhar[26] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtBaburao Shere (Supra). We have considered paragraph Nos.15, 16 and 17,which read as follows :-“15] We have heard the learned counsel appearing for thepetitioner,learned counsel appearing for the respondentmanagement, and the learned AGP appearing for the respondentnos. 1 and 2. With their able assistance, perused the pleadings inthe petition, annexure thereto, reply filed by the respondent no.2, and the relevant provisions of the MEPS Rules, 1981, and alsothe Judgments of the Full Bench and the Division Bench citedacross the bar by the learned counsel appearing for thepetitioner. It is not in dispute that, the respondent no. 3 soughtpermission from the Education Officer to fill in two vacant postsof Assistant Teachers. Admittedly, out of two posts, thepermission was granted by the Education Officer to fill in thesaid post was subject to fill in one post from S.T. category.Admittedly, the advertisement was issued advertising the posts,one for S.T. category. However, according to the petitioner andthe respondent no. 3, suitable candidate from the said category,possessing B.Sc. B.Ed. qualification had not applied for the saidpost, and therefore, in order to avoid loss to the students, themanagement proceeded to appoint the petitioner, who isteaching science and mathematics subjects. It is stated that, thepetitioner is the only teacher, who is teaching the science andmathematics subject. Therefore, it is not in dispute that, theadvertisement was issued taking prior permission of therespondent no. 2, and after following procedure, the posts werefilled in. However, as directed by the respondent no. 2 to fill inone post from S.T. category, the same has not been adhered toby the respondent no. 3. There is no denial to the fact that, the[27] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtcandidate, possessing B.Sc. B.Ed. qualification from S.T.category, did not apply in pursuant to the advertisement issuedby the respondent no. 3 16] It is not in dispute that, the petitioner has beenappointed as Shikshan Sevak on 1st February, 2011. He hasrendered three years satisfactory services. Admittedly, theRespondent – management was supposed to fill in the vacancyfrom the S.T. category, however, circumstances are brought onrecord that, the candidate from the said category was notavailable, therefore, the petitioner was appointed. The learnedcounsel appearing for the petitioner has invited our attention tothe judgment of the Full Bench of Bombay High Court in thecase of Ram Avadh Mahel Pal V/s Shivdutta Educational Trustand ors. [2007(6) ALL M.R. 716] and submits that, oncompletion of three years successful period, the petitioner whowas appointed as Shikshan Sevak on regular basis, oncompletion of the said period, deemed to have been appointedon regular basis. He also invited our attention to the anotherjudgment in the case of Lalitha Thutpi V/s C.B. Karkhanis,Presiding officer, School Tribunal Bombay and others, [1998(1)Mah.L.R.235] and submits that, in the facts of that case, theDivision Bench took a view that, if the qualifications arepossessed by the candidates and two years probation period iscompleted, in that case, such appointment deserves to beprotected, by directing the Respondent – Management to carryforward the post for the reserved category. 17] Upon perusal of those judgments, and if the ratio laiddown in those judgments, is applied in the present case, we findthat, in the present case also, the petitioner has completed threeyears service as Shikshan Sevak, and there is assurance by the[28] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtRespondent – management that, on immediate next vacancy, theManagement will appoint the candidate from S.T. category.Therefore, for the reasons aforesaid and since the petitioner hascompleted more than three years probation period and possessrequisite qualification, the petitioner is entitled for the reliefclaimed in the Petition.” 30.In the cited case, permission was granted by the EducationOfficer to fill in one post, subject to filling in another post from ST category.The candidate from ST category was not available and the petitioner wasappointed, who completed period of probation. Under these peculiar facts,the petition was allowed and Education Officer was directed to reconsiderthe proposal. The facts in hand are totally different. Section 5(1) of the Actand Rule 9(8) and 9(9)(a) of the Rules were not pressed into service in thatmatter. Besides, the Maharashtra State Public Services (Reservation ForScheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),Nomadic Tribes, Special Backward Category And Other Backward Classes)Act, 2001, (hereinafter referred to as the “Act of 2001”), with which we aredealing, was not considered by the Division Bench. This judgment is of noavail to the petitioners. 31.Reliance is also placed on the judgment of Santosh UttamraoSomwanshi and others Vs. The State of Maharashtra, [Writ PetitionNo.203of 2016 decided on 02.11.2017], in which petitioner of open[29] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtcategory was appointed against reserved category. In that case alsoimplication of Rule 9 was not considered. Under peculiar circumstancesstated in paragraph No.4, the matter was decided in favour of thepetitioner. It cannot enure to the benefit of the petitioner.32.Lastly, reliance is placed on Sau. Jagtap Sunita Manikrao(Supra), which also cannot be said to have laid down law if we considerparagraph No.6 of its judgment. It is also not applicable to the present case.It is tried to be persuaded by learned Counsel for the petitioners that as oftoday there is no backlog. It is a matter of policy of reservation. There isviolation of statutory procedure. Petitioners Gitanjali and Pankaj havedeprived of two candidates of reserved category. This loss cannot bepatched up by subsequent conduct. We do not approve the submission.33.It is not out of context to refer to Sections 4(1) (3) and 6(1) ofthe Act of 2001. Sections 4(1)(3) and 6(1) of the Act of 2001 reads thus :-“4. (1)Unless otherwise provided by or under this Act, theposts reserved for the Scheduled Castes, Scheduled Tribes, De-notified Triubes (Vimukta Jatis), Nomadic Tribes, SpecialBackward Category and Other Backward Class shall not be filledin by the candidates not belonging to that caste, tribe, categoryor class for which the posts are reserved.(2) ………………………..(3)Reservation specified for the categories mentioned atserial numbers(3) to (6) (both inclusive) in the table under sub-[30] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtsection (2) shall be inter transferable. If suitable candidates forthe posts reserved for any of the said categories are not availablein the same recruitment year, the posts shall be filled byappointing suitable candidates from any of the other saidcategories. (4) ………………………..(5) ………………………..6.(1)If in respect of any recruitment year, any vacancyreserved for any category of persons under sub-section (2) ofSection 4 remains unfilled, such vacancy shall be carriedforward upto five years in case of direct recruitment and threeyears in case of promotion:Provided that, on the date of commencement of this Act, ifany Government order regarding filling up the posts, in case ofnon availability of Backward Class candidates are in force, suchGovernment orders shall continue to be in force unless modifiedor revoked, by Government.”34.There is violation of sub-section(1), sub-section (3) of Section4 as well as Section 6(1) of the Act of 2001. In case of violation of theprovisions of the Act, a penalty is attracted under Section 8 of the Act of2001, which is as follows :-“8.(1)Any appointing authority or officer or employeeentrusted with the duty or responsibility under sub-section(1) ofsection 7 who willfully acts in a manner intended to contraveneor defeat the purposes of this Act shall, on conviction, bepunished with imprisonment for a term which may extend toninety days or fine which may extend to five thousand rupees,or with both.”[31] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtThe appointments of the petitioners/teachers are againstabove referred provisions and they attract penalty under Section 8 of theAct of 2001.35.Present case demonstrates violation of statutory procedure ofRule 9(8), 9(9)(a) read with Section 5(1) of the Act. There is violation ofpolicy of reservation. If there is a violation of policy of reservation andSections 4, 6 and 8 of the Act of 2001, then that amounts to fraud onConstitution. Any other minor aberrations in the procedure of selectionundertaken by the Management may be tolerated, but not that of policy ofreservation at any cost. Therefore, the Deputy Director of Education hasrightly exercised the jurisdiction and revoked the approvals of Gitanjali andPankaj. The statutory procedure was bypassed and approvals weregranted, which is discriminatory. It violates the principles of privilege ofparticipation in the selection process.36.There is one more aspect which needs a mention. PetitionersDhairyashil and Deepak were appointed on 02.04.2004 and their proposalswere forwarded after about four years, which delay has not been explainedby the respondent – Management. It has been reported that camps areorganized for the purpose of considering the proposals of approvalimmediately after their appointments. Despite that no endeavour was madeby the Management to submit proposals which is very startling. This[32] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtconduct creates suspicion regarding appointments of those petitioners. Theintervenors have rightly taken objection to their appointments and theDeputy Director of Education is justified in revoking the approvals. 37.A very glaring and undisputed fact reveals from record.Petitioner Gitanjali is daughter-in-law of brother of President. PetitionerPankaj is the son of the President. Petitioner Dhairyashil is President’ssister’s grandson and Deepak is nephew of the President. These areclinching circumstances to infer nepotism and discrimination. If it is a caseof fraud, nepotism coupled with violation of policy reservation, thenDeputy Director of Education is justified in revoking the approvals. We findthat all the petitions are devoid of any merits. Hence, we pass followingorder :-ORDERi)All the writ petitions are dismissed.ii)Civil Applications for intervention are disposed of.iii)Rule is discharged. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGE [33] wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odtLATER ON :-After pronouncement of the judgment, learned Counsel for thepetitioners seeks extension of the interim protection, which is in operationtill this date.As the interim order of status quo is in operation till this date,we extend the interim protection for further four (4) weeks. Thereafter,this extension shall stand vacated automatically. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGE[34]