Bombay High Court
Sanjay Khemraj Rathod vs The State Of Maharashtra on 5 December, 2012
Bench: A.V. Nirgude
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WP.2858.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2858 OF 2012
Sanjay Khemraj Rathod,
Age: 35 Years, Occupation: Service,
R/o.: Saideep Nagar, Plot No.56,
Pipeline Road, Savedi,
Taluka & District: Ahmednagar. ... PETITIONER
V E R S U S
1) The State of Maharashtra,
Through its Secretary,
Social Welfare Department,
Mantralaya, Mumbai.
2) The Special District Social
Welfare Officer,
Social Welfare Office,
Datrange Mala, Delhi Gate,
Taluka & District: Ahmednagar.
3) The Divisional Social Welfare Officer,
Nasik Division, Nasik,
Taluka & District: Nasik.
(Copy to be served on Govt. Pleader,
High Court of Judicature of Bombay,
Bench at Aurangabad.) ... RESPONDENTS
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WP.2858.12
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Mr. S.V.Suryawanshi, Advocate h/f Mr. Abhijeet P. Avhad, Advocate for
the Petitioner.
Mr. K.J.Ghute Patil, AGP for the Respondents.
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CORAM : A.V. NIRGUDE, J.
DATE : 5 December, 2012.
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ORAL JUDGMENT:
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1 This writ petition challenges part of order dated 19
September, 2011 passed by the Appellate Authority appointed under the
provisions of Ashram School Code. The facts leading to this litigation, in
short, can be stated as under:
2 The Petitioner - Sanjay was appointed as an assistant
teacher in 1998 in a school by name Kai. Sau. Vatsalabai Pote Ashram
Shala, Bardari, Taluka and District Ahmednagar, which is run by a public
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trust. This is a Government aided school. On 30 May, 2003, the
Petitioner was appointed on probation on the post of Headmaster for a
period of one year. Respondent No.2, who is competent Authority for
granting of approval for such appointment, granted approval vide order
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dated 30 April, 2004. The Petitioner even after April 2004, continued
on the said post though no specific order appointing him as Headmaster
for period subsequent to April 2004 was passed. The Management of
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the school, however, by resolution dated 1 April, 2007 decided to
WP.2858.12
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appoint the Petitioner on the post of Headmaster with effect from 1
May, 2004. Thus, they decided to appoint him permanently as
Headmaster and sent a proposal for approval to Respondent No.2.
Respondent No.2, however, refused to grant such approval and passed
a one line order. The Petitioner challenged this order under Section
3.35 of the Code before the Divisional Social Welfare Officer, Nasik
Division, Nasik. After hearing the submissions of all the parties, the
Divisional Officer allowed the Petitioner's appeal partly and directed
Respondent No.2 to accord sanction for Petitioner's appointment as
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Headmaster with effect from 9 May, 2011. Being aggrieved, the
Petitioner came to this Court by filing this writ petition. He says that, he
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deserved to get approval from 1 May, 2004.
3 Respondent No.2 apposed the petition by filing reply. In
this reply, he defended the order. But, made no reference to any reason
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as to why the Petitioner cannot be given approval from 1 May, 2004
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and why approval granted from 9 May, 2011 was correct. In paragraph
No.7 of the affidavit, he stated as under:
"7. It is further submitted that, the Chairman of
the said society vide letter dt. 3.9.2007 informed to
this deponent about the different allegations and to
take legal action against the present petitioner as
well as to stop his salary. It is pertinent to note that,
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the Chairman of the said society has taken
objection on the proposal of appointment of
petitioner as Headmaster, therefore, the office of
this deponent has not taken any action on the
proposal of the petitioner."
4 The question is whether the Petitioner was entitled to get
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approval with effect from 1 May, 2004 ? The answer appears to be in
affirmative. All along the Petitioner claimed and it is not denied that he
worked as Headmaster of the school even after his tenure of one year
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on probation was over on 1 May, 2004. There is nothing on record to
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show that the Petitioner did not act as Headmaster of the school after 1
May, 2004 or that someone else was appointed by the Management of
the school. It is also an admitted fact that there is dispute pending
between two factions of Management. It is apparent that the Chairman
is opposed to rest of the Committee and he has been making
allegations against the Petitioner. However, the Management by
majority decision sent a resolution approving appointment of the
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Petitioner as Headmaster of the school with effect from 1 May, 2004. It
can be argued that since the proposal for sanction was sent rater
belatedly in 2011, it required different consideration for giving approval.
However, there does not appear any reason as to why approval should
not be given to the Petitioner's appointment as Headmaster with effect
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from 1 May, 2004 because the resolution passed by the Management
has clearly stated that they wanted such approval. This indicates that
the Management of the school accepted the fact that the Petitioner
acted as Headmaster of the school even after his first tenure of one year
was over till today. The Appellate Authority as said above, did not give
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any reason why approval from 1 April, 2004 should not be given and
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why only it should be given only from 9 May, 2011. The learned AGP
could not throw any light on this subject. However, as stated above, it
was necessary for Respondent No.2 to examine the case and find out
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as to whether the Petitioner has in fact acted as Headmaster from 1
May, 2004 till date. Now it is clear that the answer is in affirmative. So
then he has no reason not to grant approval for such appointment.
Therefore, the writ petition should succeed and the Petitioner should get
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approval for the post of Headmaster with effect from 1 May, 2004.
5 Petition is allowed on above terms and the same stands
disposed of.
[ A.V. NIRGUDE, J ]
ndm
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