High Court · 2024

Legal Reasoning

(1) wp-8161-2022 (1).odt(This judgment is corrected as per speaking to minutes order dated 23.04.2024)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8161 OF 2022Yogesh S/o Shrikrushna Sambre Age: 44 Years Occu: Service, Bharatmata Vidyalay, Phulambri, Tq. Phulambri Dist. Aurangabad, R/o: Plot No. 14, Maruti Nagar, Opp. Datta Mandir, Jadhavwadi, Harsul, Aurangabad...PetitionerVersus1.The Deputy Director of Education,Aurangabad Region, Aurangabad Near Bhadkal Gate, Aurangabad.2.The Education Officer (Secondary),Zilla Parishad, Aurangabad.3.The State of Maharashtra,(Through its Secretary), School Education & Sports Department, Mantralaya, District Mumbai.4.Padmakar S/o Vinayak Ingale,Age: 59 Years, Occu: Claiming himself as President of Prabhodhan Bahuvidh Sanstha, Raigad Nagar N-9, M-2, R 26/79 Mhada, CIDCO Aurangabad.5.Manoj S/o Shridharrao Mule,Age: 50 Years, Occu: Claiming himself as Secretary, Prabhodhan Bahuvidh Sanstha, R/o: H.No. L.B/31, N-11 Jijau Building Yadav Nagar, Hudco Aurangabad...Respondents…Mr. R. J. Godbole, Advocate for the Petitioner.Dr. Kalpalata B. Patil Bharaswadkar, AGP for Respondent Nos.1to 3.Mr. C. K. Shinde, Advocate for Respondent No.4.Mr. N. P. Patil Jamalpurkar, Advocate for Respondent No.5. (2) wp-8161-2022 (1).odt CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 02nd APRIL 2024.JUDGMENT PRONOUNCED ON :- 15th APRIL 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consentof the parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 226 ofthe Constitution of India impugning order dated 23/24.06.2022passed by respondent no.1-Deputy Director of Education,Aurangabad Region, Aurangabad.3.The petitioner contends that he has been appointed asAssistant Teacher with Bharatmata Vidyalay, Phulambri w.e.f.11.02.2004. Thereafter, on 01.04.2009 he has been promoted asHeadmaster of the school. Accordingly, respondent no.2-EducationOfficer granted approval to his appointment as Headmaster w.e.f.01.02.2009 (although the petitioner joined on 03.04.2009). Sincethere are disputes between two groups of the Management, headedby Mr. Padmakar Ingale and Mr. Manoj Mule, they are litigating totake over control of the Management. Such disputes are pendingbefore the Charity Commissioner and other courts. 4.Mr. Manoj Mule had raised objection to EducationOfficer against approval granted to petitioners appointment asHeadmaster, accordingly, Education Officer canceled the approval.Meanwhile, co-teachers in the petitioners school, Mr. RajendraJadhav and Mr. Suryakant Ubale had raised a dispute regardingseniority. This court, in Writ Petition No.524/2015, filed by Mr.Rajendra Jadhav had issued direction to respondent no.1-Deputy (3) wp-8161-2022 (1).odtDirector of Education to decide the interse seniority. Therespondent no.1 after hearing the respective parties declaredpetitioner to be senior most teacher. Consequently, the proposalfor the petitioner’s appointment as Headmaster was forwarded andit was granted by respondent no.2-Education Officer vide orderdated 23.02.2017 w.e.f. 11.02.2009. The respondent no.5-Mr.Manoj Mule again raised objection with respondent no.1-DeputyDirector of Education regarding approval order dated 23.02.2017.The respondent no.1 canceled the approval vide impugned orderdated 23/24.06.2022 recording various reasons. According topetitioner order impugned is contrary to law and facts , hencedeserves to be quashed.5.The respondent nos.1 and 2 filed affidavit-in-reply andsupported the impugned order contending that the petitioner wasremanded to Judicial Custody for the period from 29.07.2008 to13.08.2008 in pursuance to the complaint lodged by Mr. ManojMule and consequential registration of offenses punishable underSections 420, 467, 468, 471, 34 of the Indian Penal Code.Considering the initial date of appointment of the petitioner,coupled with period of his Judicial Custody from 29.07.2008 to13.08.2008, his service falls short of 5 years till 11.02.2009. Thesaid fact was suppressed when proposal was forwarded seekingapproval to the appointment of the petitioner as Headmaster. 6.The respondent nos.4 and 5 filed respective affidavits.The respondent no.4 in a way supported the petitioner, whereasrespondent no.5 supported the impugned order and points out thatMrs. Swati Bhagwantrao Joshi has been appointed asHeadmistress after cancellation of the approval of the petitioner.She is not added as party to the petition. Consequently, prayers in (4) wp-8161-2022 (1).odtthe petition cannot be considered. The petitioner is not senior mostteacher and his appointment as Headmaster was illegal and suffersfrom suppression of the material facts. Further there are criminalcases pending against the petitioner. The service record of thepetitioner cannot be considered as satisfactory in view of thepending criminal cases. 7.We have heard Mr. Godbole, learned Advocate appearingfor the petitioner, Dr. Bharaswadkar, learned A.G.P. forrespondent nos.1 to 3, Mr. Shinde, learned Advocate for respondentno.4 and Mr. N.P. Patil Jamalpurkar, learned Advocate forrespondent no.5.8.Admittedly, the petitioner has been appointed as anAssistant Teacher on 11.02.2004. His services were approved bythe Education Officer, initially for the period of two years onprobation. Under the same order, other teachers of the school werealso granted approval. Apparently, considering the dates ofappointments petitioner appears to be the senior most teacher.Management had promoted the petitioner as Headmaster w.e.f.11.02.2009. However, the approval to his appointment waswithdrawn vide order dated 14.09.2010 on the basis of the objectionraised by Mr. Manoj Mule. The order dated 14.09.2010 depicts thatthe only reason for withdrawal of the approval was the disputebetween two groups of Management. Pertinently, the dispute asregards to the seniority amongst the teachers working in the schoolwas referred to respondent no.1 under order of this Court dated20.01.2016. The respondent no.1 after deliberation with allconcern given verdict declaring the petitioner to be the senior mostteacher in the school. It appears that, meanwhile Mr. Manoj Mulelodged a criminal complaint against his rival Mr. Padmakar Ingale (5) wp-8161-2022 (1).odtand the petitioner. Consequently, offence was registered videCrime No.280/2008. However, on investigation a closure report interms of Section 169 of the Code of Criminal Procedure has beenfiled by the police. The said litigation is still pending. Pertinently,till this date no charge-sheet is filed against the petitioner. 9.In deference to decision of respondent no.1 regardingseniority among teachers in the school, the petitioner’s approval asHeadmaster from the date of his initial appointment was restored,however, again on complaint made by Mr. Manoj Mule, respondentno.1 passed the impugned order of withdrawal of the approval.The order impugned, depicts that respondent no.1 had arrangedhearing of all the concerned and recorded his conclusions as under:(i)The Resolution of the Management Committee is dated01.04.2009, however, he is shown to have assumed thecharge of Headmaster on 11.02.2009. The Resolutiondepicts that the promotion has been grantedretrospectively w.e.f. 11.02.2009.(ii)Mr. Jadhav worked as in-charge Headmaster during theperiod from 15.10.2010 to 23.02.2017. However, noexplanation offered by Management or the petitioner.(iii)In pursuance of the order dated 28.01.2016 passed by thisCourt, the Deputy Director of Education, Aurangabadfixed the seniority vide his communication dated07.07.2016 holding that the petitioner is working asregular teacher w.e.f. 11.02.2004. As such, he is seniormost teacher. Based on such decision, the Institutionsubmitted the proposal dated 01.02.2017 seeking approvalto the appointment of the petitioner as Headmaster. (6) wp-8161-2022 (1).odtAccordingly, vide order dated 23.02.2017 the EducationOfficer granted approval.(iv)Although the petitioner and Mr. Padmakar Ingale were inthe Judicial Custody during the period from 29.07.2008 to13.08.2008, and break in the service of the petitioner is notcondoned, said period is considered in five yearsexperience for appointment on the post of Headmaster. 10.Pertinently, the aforesaid conclusions recorded in theimpugned order, nowhere depict that the petitioner was eitherdisqualified to be appointed as Headmaster or approval to hisappointment was obtained by exercise of fraud ormisrepresentation. The conclusion that can be drawn from thereasons recorded in the impugned order is that the withdrawal ofthe approval is owing to the dispute between the two groups of theManagement. It cannot be disputed that the petitioner is thesenior most teacher and going by the provisions of Rule 3 of MEPSRules, qualifies to be appointed as Headmaster. Pertinently, theseniority is finalized and approved by respondent no.1 himselfunder orders passed by this Court. None of the teacher in theschool had ever challenged seniority fixed by respondent no.1.Even going by initial approval granted to the appointment of thepetitioner and other teachers, the petitioner is the senior mostteacher. Therefore, once the petitioner is held to be the eligible forappointment on the post of Headmaster, there is no reason todecline approval to his appointment. 11.There is nothing on record to demonstrate that thepetitioner had incurred disqualification for appointment orcontinuance as Headmaster, nothing is discernible from thereasons recorded in the impugned order. It is the matter of record (7) wp-8161-2022 (1).odtthat on the complaint made by Mr. Manoj Mule an offence wasregistered against the petitioner and Mr. Padmakar Ingaleconsequently, they were remanded to Judicial Custody. However,that itself would not be disqualification for petitioner’sappointment as Headmaster. Pertinently, till this date, no charge-sheet is filed in any Court based on complaint or allegations madeagainst the petitioner. In fact, investigating agency has filedclosure report under Section 169 of the Code of CriminalProcedure. True that the said dispute is still pending, however,from the record placed before us, petitioner’s disqualification tocontinue as Headmaster cannot be inferred. Hence, withdrawal ofthe approval cannot be justified. 12.Although it is sought to be contended that the petitionerhad not completed five years service before his appointment asHeadmaster, we are not inclined to accept such contentions. Thepetitioner is appointed as an Assistant Teacher on 11.02.2004. TheManagement passed the Resolution dated 01.04.2009 to promotehim on the post of Headmaster w.e.f. 11.02.2009. He joined on thesaid post on 03.04.2009. Although his joining report depicts thedate as 11.02.2009, it is submitted that, he had addressedcorrigendum to correct the date of his joining to respondent no.4-President. Even assuming that the petitioner was promoted on11.02.2009 and joined on the same date, he had five years serviceat his credit. Nothing is brought before us to depict that the periodunder Judicial Custody cannot be counted as the service period.Therefore, merely on that factual aspect the petitioner cannot betreated as disqualified or incompetent for appointment on the postof Headmaster. (8) wp-8161-2022 (1).odt13.One more question that arose for our consideration is asto whether respondent no.1-Deputy Director of Education hasauthority to cancel the approval granted by the Education Officer.It is true that respondent no.1 being an officer in higher rank canexercise administrative control over the orders passed by thesubordinate officer. However, such exercise may be permissiblewhen the order is obtained by exercise of fraud ormisrepresentation or same is glaringly in conflict with the legalposition. In the present case, merely because litigating groups ofManagement makes a complaint to respondent no.1-DeputyDirector of Education, he cannot assume the authority as if sittingin appeal. Further without finding any legal defect in the order, hecould not have set aside approval granted to the appointment of thepetitioner as Headmaster. We do not find that in the facts of thecase that such exercise was warranted. 14.Once it is held that petitioner is senior most teacherand management has passed the Resolution to appoint him, thereis no reasons to withdraw the approval granted by the EducationOfficer to such appointment. Consequently, we proceed to pass thefollowing order:ORDERa.Writ Petition is allowed.b.The impugned order dated 23/24.06.2022 passed byrespondent no.1-Deputy Director of Education, AurangabadRegion, Aurangabad is hereby quashed and set aside.c.The consequential order dated 12.07.2022 issued byrespondent no.2-Education Officer is also quashed and set aside.The order of approval dated 23.02.2017 passed by the respondent (9) wp-8161-2022 (1).odtno.2-Education Officer (Secondary), Zilla Parishad, Aurangabad berestored with consequential benefits to petitioner. d.Writ Petition is disposed of.e.Rule is made absolute in above terms. (S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/April-2024