High Court
Legal Reasoning
1 919-wp 12195-2021.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12195 OF 2021Ratnakar Rajaram Potdar.. PetitionerVersusVidya Tulsidas Maktedar and others.. RespondentsSmt. Anjali Dube (Bajpai), Advocate for the Petitioner.Mr. S. P. Joshi, AGP for Respondent No. 4.Mr. S. S. Jadhavar, Advocate for Respondent No. 1. Mr. S. R. Shirsat, Advocate for Respondent.WITHWRIT PETITION NO. 9092 OF 2022Ratnakar Rajaram Potdar.. Petitioner VersusThe State of Maharashtra Through Its Principal Secretary and others.. Respondents Mr. Prashant R. Nangare, Advocate for the Petitioner.Mr. S. P. Joshi, AGP for Respondent Nos. 1 and 5.Mr. Rahul A. Tambe, Advocate for Respondent No. 6. CORAM : KISHORE C. SANT, J. DATED : 08th JANUARY, 2025. P. C. :- .Both the petitions are at the instance of the same petitioners. Therespondents are the same except respondent No. 1 in Writ PetitionNo. 12195/2021. The respondent Nos. 1 and 6 in Writ Petition 1 of 9
Decision
2 919-wp 12195-2021.odtNo. 9092/2022 are not party in Writ Petition No. 12195/2021.2.The Writ Petition No. 12195/2021 is arising out of order ofrejection of intervention application of the petitioner in AppealNo. 103/2020 passed by the learned Presiding Officer, School Tribunal,Solapur dated 06.09.2021. The petitioner had filed an application forimpleading him as a party in the said appeal. The Writ PetitionNo. 9092/2022 is filed challenging the judgment and order passed inAppeal No. 02/2016 by the learned Presiding Officer, School Tribunal,Solapur whereby the appeal of the petitioner came to be dismissed byorder dated 28.04.2022. 3.The facts giving rise in short are that in the respondents schoolpost of senior clerk had fallen vacant in November 2010 due toretirement of a senior clerk. The junior clerk who was working in thesaid school was eligible to get promotion to his post. The said personhowever was implicated in an offence and therefore, was absconding.As the said person was absconding he was placed under suspension bythe management. In view of the above position, there was vacancyeven of the post of junior clerk in the school. The Headmastertherefore sent a letter to the Education Officer on 30.05.2011 seekingpermission to allow the Headmaster to fill up post of the Clerk. Thesaid letter was replied by the Education Officer. It was stated that, if in 2 of 9 3 919-wp 12195-2021.odtcase the management is not functioning and if there is no schoolcommittee in existence, a non teaching staff can be appointed by theHeadmaster for a period of one year on temporary basis. It is on thesaid letter the Headmaster appointed the petitioner to the post ofJunior Clerk by letter dated 15.06.2012. His appointment wascontinued for a considerable period till 2016. It is the case of thepetitioner that subsequently in 2016 he was terminated without anyreason.4.In view of termination, the petitioner had filed an AppealNo. 02/2016 before the learned School Tribunal. The learned SchoolTribunal initially allowed the appeal by judgment and order dated08.07.2020. In Writ Petition No. 6927/2020 challenging the said orderby the management, this Court set aside the order in the appeal andremanded the matter back to School Tribunal for fresh decision.5.After remand, the learned Presiding Officer, School Tribunaldismissed the appeal. It is this order which is under challenge in WritPetition No. 9092/2022. In the meantime, the respondent No. 1 inWrit Petition No. 12195/2021 was appointed to the post of Junior Clerkand subsequently she was also terminated. She approached thelearned School Tribunal by filing an Appeal No. 103/2020. As the 3 of 9 4 919-wp 12195-2021.odtpetitioner’s appeal was already allowed by that time, he filed anapplication seeking intervention in the Appeal No. 103/2020 statingthat he is a necessary party as he was appointed to the said post and hisappeal was allowed. This application came to be rejected by orderdated 06.09.2021 which is the subject matter of Writ PetitionNo. 12195/2021.6.Heard the parties of both sides.7.The learned advocate for the petitioner vehemently argued thatthe petitioner was appointed by following due process of law by theorder of the Headmaster. Since there was dispute between themanagement and as there was no control of any of the managementthe Headmaster had sought permission to fill up the post. The learnedEducation Officer had clearly replied that the Headmaster had theauthority to appoint a non teaching staff when school committee is notin existence and when there is dispute in the management. He thussubmits that, the Headmaster has rightly exercised his power andappointed the petitioner to the post of Junior Clerk. He wascontinuous till 15.01.2016 and thus he is deemed to be confirmed. Theservices of the petitioner could not have been terminated withoutfollowing due process of law. The learned School Tribunal had 4 of 9 5 919-wp 12195-2021.odtcommitted illegality in recording a finding that the petitioner has failedto prove that his appointment was by following due process of law. Hethus submits that, other finding recorded by the learned SchoolTribunal that there was no vacant post available in the school is alsoagainst record in view of the letter by the Headmaster to the EducationOfficer. He thus prays for allowing the writ petition.8.Mr. Jadhavar, learned advocate for respondent No. 1 in WritPetition No. 12195/2021 vehemently opposes the writ petition. Hesubmits that it was very much necessary for the petitioner to prove thefact that he was duly appointed to the post of Clerk. He specificallysubmits that even from the circular dated 23.12.1996 it is clear thatsuch appointment can be made only for one year by the Headmaster.Within one year it is for the management to form a school committeeand to fill up the post thereafter. He submits that the Headmaster isnever authorised by the Education Officer to make appointment of anyperson on probation basis. The power is given only to handle thetemporary situation. This power cannot be taken to be a power toappoint a permanent employee. 9.The learned advocate further submits that the Headmaster at therelevant time was placed under suspension as there were various 5 of 9 6 919-wp 12195-2021.odtcriminal proceedings pending against him. Even the petitioner’s owncase is that he was not allowed to sign the muster roll by theHeadmaster. So the case of the petitioner is contrary to his own standthat he was appointed by the Headmaster. He thus prays for dismissalof the writ petition.10.So far as Writ Petition No. 12195/2021 is concerned, Smt. Dubevehemently argued that when the petitioner had filed an application forintervention, the appeal of the petitioner was allowed by the learnedSchool Tribunal. The outcome of Appeal No. 103/2020 would clearlyaffect the rights of the petitioner and therefore, it was necessary toallow the application. The learned advocate claims that the petitionerwas appointed. The learned Presiding Officer has lost the site of thismaterial aspect. 11.Mr. Shirsat, learned advocate appearing for the managementsubmits that, in view of subsequent events this petition has becomeinfructuous and the fate of the petitioner would depend upon the fateof Writ Petition No. 9092/2022. He submits that now the petitioner’sappeal is rejected showing that he has no locus in AppealNo. 103/2020.12.The learned A.G.P. also vehemently opposes the writ petition. He 6 of 9 7 919-wp 12195-2021.odtsubmits that in view of circular dated 23.12.1996 the Headmaster ishaving power only to appoint any person on a non teaching post forone year on temporary basis. Taking the circular as it is, it is clear thatno power is given to a Headmaster to give appointment on probation.Now the administrator is appointed because of the disputes in themanagement. He prays for dismissal of the writ petition.13.The learned advocate Mr. Tambe for respondent No. 6 in WritPetition No. 9092/2022 submits that the petition deserves to bedismissed.14.From the record and from the submissions it is clear that, thepetitioner was appointed by the Headmaster who was undersuspension at the relevant time. Though the learned advocate for thepetitioner submits that the permission to place the Headmaster undersuspension was revoked by the Deputy Director of Education and it wasdirected to allow the Headmaster to be reinstated in the school from05.06.2012 the Headmaster was thus very much in service. This Courtfinds that, to place an employee under suspension is right of themanagement. The only effect suspending the employee withoutapproval is about the payment of subsistence allowance and nothingmore. There is no order on record to show that the Headmaster wasreinstated in service and was working on the date of appointment of 7 of 9 8 919-wp 12195-2021.odtthe petitioner. This Court has considered the observations and findingsof the learned School Tribunal. This Court does not find any substancein both the submissions that the appointment of the petitioner was onvacant post and that the appointment was made by following dueprocess of law. Though there is advertisement on record, but the saidadvertisement was issued by the Headmaster. The appointment orderitself shows that the petitioner was appointed on temporary basis from15.06.2012 for one year. The order further stipulates that after the saidperiod of one year is over his services would be terminated without anyintimation. There is no subsequent order showing that the petitionerwas continued for next year as it is also case of the petitioner that hewas not allowed to sign the muster roll. This also shows that there isno record to show that he has actually worked in the school evenduring the period of one year. From the pleading also it is seen that hewas not allowed to sign the muster roll.15.This Court finds that, the petitioner has failed to prove that hewas duly appointed and was working in the school. Though the musterroll was produced by the petitioner, however, the said muster roll wasnot found in the management and for this reason this Court consideredthat the findings are rightly recorded by the learned School Tribunal tothat effect. This Court need not record any findings so far as the 8 of 9 9 919-wp 12195-2021.odtAppeal No. 103/2020 is concerned. No perversity is pointed out callingfor interference in the impugned judgment. The Writ PetitionNo. 9092/2022 deserves to be dismissed.16.In view of the above discussion, this Court finds that there is nomerit even in the Writ Petition No. 12195/2021 and the same alsodeserves to be dismissed. Hence, the following order :ORDER.Both the writ petitions stand dismissed. No order as to costs.( KISHORE C. SANT, J. ) P.S.B. 9 of 9