Bombay High Court
Ajay Macchindra Nandeshwar And ... vs State Of Mah. Thr. Its Secty. And ... on 23 August, 2016
Bench: V.A. Naik
WP 1646&4887/11 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1646/2011
1. Navprabhat Shikshan Sanstha, Warthi,
having Regn. No.F-59 (Bhandara),
through its President, Ramlal Tikaram
Choudhary.
2. Bhiva S/o Zingruji Kamane,
Aged Major, R/o Eklari,
Tah. Mohadi, Distt. Bhandara.
3. Ramlal S/o Tikaram Choudhary,
Aged Major, R/o Bhandara,
Tah. & Distt. Bhandara.
4. Nandkumar S/o Rajaramji Lonare,
Aged Major, R/o Warthi,
Tah. Mohadi, Distt. Bhandara.
5. Nilkanth S/o Baliram Kodape,
Aged Major, R/o Kandri,
Tah. Mohadi, Distt. Bhandara.
6. Anandrao S/o Tukaram Wanjari,
Aged Major, R/o Bhandara,
Tah. & Distt. Bhandara.
7. Sau. Snehalata Narayan Aadai,
Aged Major, R/o Bhandara,
Tah. & Distt. Bhandara.. PETITIONERS
.....VERSUS.....
1. State of Maharashtra,
through its Secretary,
Ministry of Education,
Mantralaya, Mumbai - 32.
2. Director of Education,
Maharashtra State, Pune.
3. Education Officer,
Zilla Parishad, Bhandara.
4. Kalyan S/o Laluji Dongre,
Aged Major, R/o Warthi,
Tah. Mohadi, Distt. Bhandara.
5. Mahadeo S/o Ramchandra Kamble,
Aged Major, R/o Warthi,
Tah. Mohadi, Distt. Bhandara.
6. Sau. Kamal Balwantrao Bachere,
Aged Major, R/o Warthi,
Tah. Mohadi, Distt. Bhandara.
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7. Chandmal S/o Damdu Sathawane,
Aged Major, R/o Warthi,
Tah. Mohadi, Distt. Bhandara.
8. Shailendra Charandas Sukhdeve,
Aged Major, R/o Kothurna,
Tah. & Distt. Bhandara.
9. Ulhas Phadke,
Headmaster, Navprabhat High School,
R/o LIC MHADA Colony, Plot No.3435,
Near Sham Kirana, Bhandara,
Tq. & Dist. Bhandara.
10. M.S. Ambade,
Headmaster, Navprabhat High School,
Amgaon (Dighori),
Tq. & Distt. Bhandara.
11. Urmila Singh,
R/o Shahar Ward, Old Tumsar,
Tq. Tumsar, Dist. Bhandara.
12. T.G. Hatzade,
Headmaster, Navprabhat High School,
Kanhalgaon, Tq. Mohadi, Distt. Bhandara.
13. Trupti Mahadeorao Kambale,
Aged about 29 years, Occu: Service,
C/o Navprabhat High School, Warthi,
Tah. Mohadi, Distt. Bhandara.
14. Satish Pralhad Dhurve,
Aged about 28 years, Occu: Service,
C/o Navprabhat High School, Amgaon
(Dighori), Tah. & Distt. Bhandara.
15. Devendra Baburao Kokude,
Aged about 28 years, Occu: Service,
C/o Navprabhat High School, Kanhalgaon,
Tah. Mohadi, Distt. Bhandara.
16. Rameshwar Ishwar Koparkar,
Aged about 28 years, Occu: Service,
C/o Navprabhat High School, Kandri,
Tah. Mohadi, Distt. Bhandara.
17. Sanjog Mahadev Kamble,
Aged about 26 years, Occu: Service,
C/o Navprabhat High School, Kandri,
Tah. Mohadi, Distt. Bhandara.
18. Rohini Shivdas Fendar,
Aged about 28 years, Occu: Service,
C/o Navprabhat Kanya High School, Warthi,
Tah. Mohadi, Distt. Bhandara.
19. Dhansay Ramchandra Malkam,
Aged about 28 years, Occu: Service,
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C/o Navprabhat High School, Kandri,
Tah. Mohadi, Distt. Bhandara.
20. Deputy Director of Education,
Nagpur Region, Nagpur.
21. Narayan S/o Wamanrao Joshi,
Aged about 50 years, At present holding
the post of Education Officer (Secondary),
Zilla Parishad, Bhandara,
Office of Education Officer (Secondary),
Zilla Parishad, Bhandara.
22. Manohar Pandurang Waghmare,
Aged Major, Occu: Shikshan Sevak,
Navprabhat Kanya High School, Warthi,
Tah. Mohadi, Distt. Bhandara.
23. Nareshkumar Deorao Vaidya,
Aged Major, Occu: Shikshan Sevak,
Navprabhat Kanya High School, Warthi,
Tah. Mohadi, Distt. Bhandara.
24. Ku.Pratiksha Natthuji Bansode,
Aged Major, Occu: Shikshan Sevak,
Navprabhat Kanya High School, Warthi,
Tah. Mohadi, Distt. Bhandara.
25. Ajay Machindra Nandeshwar,
Aged Major, Occu: Shikshan Sevak,
Navprabhat High School, Amgaon
Dighori, Tah. & Distt. Bhandara. RESPONDENTS
Shri R.L. Khapre, counsel for the petitioners.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondent nos.1 to 3.
Shri A.P. Thakre, counsel for the respondent nos.5 and 6.
Shri A.R. Patil, counsel for the respondent nos.7 and 8.
Shri A.D. Mohgaonkar, counsel for the respondent nos.9 to 19 and 22 to 25.
WITH
WRIT PETITION NO.4887/2011
1. Ajay Machindra Nandeshwar,
Age: Major, Occuupation : Service,
R/o C/o Navprabhat Kanya High School, Warthi,
Tahsil : Mohadi, Dist. Bhandara.
2. Shri Dhansay Ramchandra Markam,
Age : Major, Occupation : Service,
R/o C/o Navprabhat High School,
Aamgaon Dighori, Tahsil & District : Bhandara.
3. Shri Manohar Pandurang Waghmare,
Age: Major, Occupation : Service,
R/o C/o Navprabhat Kanya High School, Warthi,
Tahsil : Mohadi, Dist. Bhandara.
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4. Pratiksha nathuji Bansode,
Age : Major, Occupation : Service,
R/o C/o Navprabhat Kanya High School,
Warthi, Dist. Bhandara.
5. Nareshkumar Deorao Vaidya,
Age : Major, Occupation : Service,
R/o C/o Nav Prabhat Kanya School,
Warthi, District : Bhandara.
6. Rohini Shivdas Fendar,
Age : Major, Occupation : Service,
R/o C/o Nav Prabhat Kanya High School, Warthi,
Tah : Mohadi, District : Bhandara.
7. Sanjog Mahadeo Kamble,
Age : Major, Occupation : Service,
R/o C/o Navprabhat High School,
Kandri, Dist : Bhandara. PETITIONERS
ig .....VERSUS.....
1. State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2. Education Officer (Secondary),
Zilla Parishad, Bhandara.
3. Navprabhat Shikshan Sanstha,
Warthi, Tah : Mohadi, Dist : Bhandara,
Though its Secretary, M.R. Kamble.
4. Nav Prabhat Vidyalaya,
Through its Head Master,
Amagaon Dighori,
Tahsil and District : Bhandara.
5. Nav Prabhat Vidyalaya, Kandri,
Through its Head Master,
Tahsil : Mohadi, Dist : Bhandara.
6. Navprabhat Kanya High School, Warthi,
through its Head Master,
Tahsil : Mohadi, Dist : Bhandara. RESPONDENTS
Shri A.D. Mohgaonkar, counsel for the petitioners.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondent nos.1 and 2.
Shri A.P. Thakre, counsel for the respondent no.3.
None for the respondent nos.4, 5 and 6.
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CORAM :SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 23 RD AUGUST, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
Since the issues involved in these writ petitions are
interconnected, they are heard together and are decided by this common
judgment.
2. By filing Writ Petition No.1646 of 2011, the petitioners-some
of the recorded trustees, have challenged the order of the Education
Officer, dated 26.03.2011 granting permission to the respondent nos.5, 6,
7 and 8 to fill the posts of Assistant Teachers. So also, Writ Petition
No.4887 of 2011 is filed by the employees, that are appointed in
pursuance of the order of permission, dated 26.03.2011 and whose
approvals were cancelled by the order, dated 29.07.2011.
3. The petitioners in Writ Petition No.1646 of 2011, specially the
petitioner nos.2 to 6, claim to be the recorded trustees of the trust along
with the respondent nos.5, 6, 7 and 8, who are also the recorded trustees.
According to the petitioners in Writ Petition No.1646 of 2011, in the year
1998, there were 1576 members of the trust. A joint application was filed
by some of the petitioners and the respondent nos.5, 6, 7 and 8 in Writ
Petition No.1646 of 2011 in the year 2000 for framing of a scheme. The
application for framing of the scheme was allowed by the Joint Charity
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Commissioner, thereby permitting the enhancement of the membership
fees for the existing members also. It is the case of the respondent nos.5,
6, 7 and 8 that a notice was served on all the members in respect of the
enhancement of the membership fees and only 166 members paid the
enhanced fees and were entitled to retain their membership. It is the case
of the respondent nos.5 to 8 in Writ Petition No.1646 of 2011 that the
petitioner nos.2 to 6 in the said writ petition did not pay the enhanced
membership fees and challenged the order in the scheme, before the
learned District Judge. The appeal was, however, dismissed as the
learned District Judge refused to condone the inordinate delay in filing
the same. The order of the learned District Judge is challenged by the
petitioners in Writ petition No.1646 of 2011, in a second appeal. The
said second appeal is pending. In the meanwhile, an application was filed
in the year 2003 under Section 41-A of the Bombay Public Trusts Act by
the petitioners in Writ Petition No.1646 of 2011 seeking a restrainment
order against the respondent nos.5, 6, 7 and 8 from managing the affairs
of the trust. Apart from the other orders, that are passed in the said
application, the Assistant Charity Commissioner, by direction no.3 in the
order dated 28.07.2008, restrained the respondent nos.5, 6, 7 and 8 from
taking policy decisions like recruitment, appointment of teachers,
suspension, termination, etc., without the prior permission of the
authorities under the Bombay Public Trusts Act. Before the said order
was passed on 28.07.2008, the petitioners on one hand and the
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respondents on the other, had claimed that the elections were conducted.
Two rival change reports were filed by the parties. Change Report
No.142 of 2008 was filed by the respondent nos.5, 6, 7 and 8 and others,
whereas Change Report No.968 of 2007 was filed by the petitioner nos.1
to 6 and others. The change report filed by the respondents bearing
Change Report No.142 of 2008 was allowed by the order dated
03.05.2014. The said order was challenged by the petitioners before the
Joint Charity Commissioner and the order passed by the Assistant Charity
Commissioner was confirmed by the dismissal of the appeal. The
petitioners in Writ Petition No.1646 of 2011 then filed an appeal before
the learned District Judge and the learned District Judge stayed the order
of the Assistant Charity Commissioner. The order of the District Judge is
challenged by the respondent nos.5 to 8 in a writ petition and in the said
petition, an ad-interim order staying the order of the District Judge is
passed. The matter is still pending. As a consequence of the order
accepting Change Report No.142 of 2008, the change report filed by the
petitioners, bearing Change Report No.968 of 2007, was rejected. During
the pendency of the aforesaid two change reports, an application was
filed by some of the members of the trust under Section 47 of the Bombay
Public Trusts Act for appointment of trustees as, according to them, a
vaccum was created in the absence of a managing body to manage the
trust. The application filed by the members of the trust under Section 47
of the Act was rejected by the judgment dated 02.12.2010. To the
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proceedings under Section 47 of the Act, some of the petitioners and
some of the respondents were parties. It was held by the Joint Charity
Commissioner in the order on the application under Section 47 of the Act
that there was no necessity to appoint the trustees as the respondents in
Writ Petition No.1646 of 2011, i.e. the applicants in Change Report
No.142 of 2008 were taking policy decisions and were in the
management and administration of the trust. It is not in dispute that the
order dated 02.12.2010 has attained finality as none of the parties has
challenged the same before a superior forum. After the order dated
02.12.2010 was passed, the respondent nos.5 to 8 and others applied to
the Education Officer for grant of permission to fill the vacancies in the
posts of Assistant Teachers. Permission was granted by the Education
Officer to fill the vacancies by the order, dated 26.03.2011. The said
order is impugned by the petitioners in Writ Petition No.1646 of 2011.
In pursuance of the order granting permission to advertise the
posts, the respondent nos.5 to 8 and the headmaster had advertized the
posts, conducted the interviews and appointed the petitioners in Writ
Petition No.4887 of 2011 on the posts of Assistant Teachers. The
Education Officer, on an appreciation of the material tendered before
him, granted approval to the appointments of the petitioners in Writ
Petition No.4887 of 2011. On the basis of an order of status quo granted
in Writ Petition No.1646 of 2011, it is stated on behalf of the Education
Officer that the order granting approval to the appointment of the
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petitioners in Writ Petition No.4887 of 2011 was cancelled by the order
dated 29.07.2011. The petitioners in Writ Petition No.4887 of 2011 have
challenged the order of the Education Officer, dated 29.07.2011
cancelling their approval.
4. Shri Khapre, the learned counsel for the petitioners in Writ
Petition No.1646 of 2011, submitted that the respondent nos.5 to 7 could
not have, in collusion with the headmaster, sought the permission of the
Education Officer for filling the vacant posts of Assistant Teachers without
the permission of the authorities under the Bombay Public Trusts Act,
1950. It is submitted that by the order dated 28.07.2008, the Assistant
Charity Commissioner had restrained the respondent nos.5 to 8 from
taking any policy decision in the matter of appointment, dismissal, etc. It
is submitted that the order dated 28.07.2008 had attained finality with
the dismissal of the writ petition filed against the same and in view of the
said order of restrainment, the respondent nos.5 to 8 could not have
sought permission from the Education Officer to fill the vacant posts
without seeking the permission of the authorities under the Bombay
Public Trusts Act. It is submitted that the permission to appoint the
Assistant Teachers is secured by the respondent nos.5 to 8 without any
authority to do so and in violation of the directions issued by the Assistant
Charity Commissioner, by the order dated 28.07.2008 in proceedings
under Section 41-A of the Act. It is submitted that in the circumstances of
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the case, the Education Officer was not justified in granting permission to
the respondent nos.5 to 8 and the Headmaster to fill up the vacancies.
5. Shri Dharmadhikari, the learned Assistant Government
Pleader appearing on behalf of the Education Officer, has submitted that
the Education Officer has rightly granted permission to the respondent
nos.5 to 8 and the Headmaster to fill the vacant posts of Assistant
Teachers, by the order dated 26.03.2011. It is submitted that the order of
the Joint Charity Commissioner in the proceedings under Section 47 of
the Bombay Public Trusts Act clearly recites that the respondent nos.5
to 8 along with others, were administering the affairs of the trust and
there was no vaccum. It is submitted that the approval was granted to
the appointment of the petitioners in Writ Petition No.4887 of 2011 as
their appointments were made by the respondents in Writ Petition
No.1646 of 2011, after following the due procedure of selection. It is
submitted that since an order of status quo was granted in Writ Petition
No.1646 of 2011, the Education Officer cancelled the approval to the
appointment of the petitioners in Writ Petition No.4887 of 2011, by the
order dated 29.07.2011. It is submitted that though some teachers are
absorbed in the schools run by the trust, still there are vacancies in the
posts of Assistant Teachers and no prejudice would be caused to the
teachers that are absorbed, if this Court sets aside the order of
cancellation of the approval, dated 29.07.2011.
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6. Shri Thakre and Shri Patil, the learned counsel for the
respondent nos. 5 & 6 and 7 & 8, respectively, submitted that the
Education Officer rightly granted permission to fill the posts of Assistant
Teachers by the order dated 26.03.2011. It is submitted that the order
dated 28.07.2008 in the proceedings filed by the petitioners in Writ
Petition No.1646 of 2011 under section 41-A of the Bombay Public Trusts
Act was wiped off by the order of the Joint Charity Commissioner, dated
02.12.2010 in the proceedings filed under Section 47 of the Bombay
Public Trusts Act, for appoinment of trustees. It is stated that it is
categorically held by the Joint Charity Commissioner in the order dated
02.12.2010 in the proceedings under Section 47 of the Act, that the
respondent nos.4 to 8 along with the other members on the managing
committee, as per Change Report Enquiry no.142 of 2008, were in the
management and were administering the affairs of the trust. It is
submitted that the order of the Assistant Charity Commissioner, dated
28.07.2008 was wiped off by the order of the Joint Charity
Commissioner, dated 02.12.2010 in the proceedings under Section 47 of
the Act. It is submitted that a judgment-order in the proceedings
under Section 47 of the Act partakes the character of a decree and it,
therefore, cannot be said by the petitioners in Writ Petition No.1646 of
2011 that the respondent nos.5 to 8 and some others were not in the
management of the trust, when the permission was granted by the
Education Officer to fill the posts of Assistant Teachers by the order
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dated 26.03.2011. The learned counsel sought for the dismissal of Writ
Petition No.1646 of 2011. It is submitted that the relief may be granted
to the petitioners in Writ Petition No.4887 of 2011.
7. Shri Mohgaonkar, the learned counsel for the petitioners in
Writ Petition No.4887 of 2011, has supported the order of the Education
Officer, dated 26.03.2011 granting permission. It is stated that the
petitioners cannot be deprived of the approval of their services, specially
when their appointment is made after following the due procedure for
appointment. It is submitted that the order cancelling the approval,
dated 29.07.2011 is liable to be set aside, specially when the petitioners
in Writ Petition No.4887 of 2011 were not heard when the order
cancelling their approval was passed on 29.07.2011.
8. On hearing the learned counsel for the parties and on a
perusal of the various orders passed by the authorities under the Bombay
Public Trusts Act, it appears that the prayers made in Writ Petition
No.1646 of 2011, cannot be granted and the order of the Education
Officer granting permission to the management to advertise the posts of
Assistant Teachers, cannot be set aside. Originally, the petitioner nos.2
to 6 and the respondent nos.5 to 8 were the recorded trustees of the
trust. There were rival factions in the management and the petitioner
nos.2 to 6 belong to one faction and the respondent nos.5 to 8 belong to
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the other. In the scheme proceedings, certain orders were passed, with
which we are not concerned in these writ petitions. We are only
concerned with the order passed by the Assistant Charity Commissioner in
the proceedings filed by the petitioners in Writ Petition No.1646 of 2011
under Section 41-A of the Act for a direction against the respondent nos.5
to 8 from managing the affairs of the trust. In the said proceedings under
Section 41-A of the Act, by an order dated 28.07.2008, the Assistant
Charity Commissioner had restrained the respondent nos.5 to 8 from
taking any policy decision in the matter of appointment, termination, etc.,
without the permission of the authorities under the Bombay Public Trusts
Act. Just before the passing of the order, dated 28.07.2008 by the
Assistant Charity Commissioner, two rival change reports were filed, one
by the petitioners bearing Change Report No.968 of 2007 and the other
by the respondent nos.5 to 8 and others bearing Change Report No.142 of
2008. During the pendency of these change reports, an application was
filed by some interested members under Section 47 of the Act for
appointment of trustees, as according to them, a vaccum was created as
there was no legal body to manage the affairs of the trust. To the
application under Section 47 of the Act, some of the petitioners and some
of the respondents to Writ Petition No.1646 of 2011 were parties. In
these proceedings, the Joint Charity Commissioner, held by the order
dated 02.12.2010 that the respondent nos.5 to 8 and some other trustees
were managing the affairs of the trust and there was no vaccum. With
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the aforesaid observations, the Joint Charity Commissioner had
dismissed the application under Section 47 of the Act for appointment of
trustees by the order dated 02.12.2010. The said order has attained
finality as none of the parties has challenged the same before the
superior forum. It is rightly submitted on behalf of the respondent
nos.5 to 8 that the order of the Assistant Charity Commissioner,
dated 28.07.2008 was wifed off by the order of the Joint Charity
Commissioner, dated 02.12.2010. The Joint Charity Commissioner had
categorically referred to the order of the Assistant Charity Commissioner,
dated 28.07.2008 in the proceedings under Section 41-A of the Act and
proceeded to hold that the respondent nos.5 to 8 and some others that
were elected as per Change Report No.142 of 2008, are managing and
administering the affairs of the trust. In pursuance of the order of the
Joint Charity Commissioner, dated 02.12.2010 to the aforesaid effect,
there was no hindrance in the path of the respondent nos.5 to 8 and the
other managing trustees that were elected as per Change Report No.142
of 2008, in seeking permission of the Education Officer to fill the vacant
posts of Assistant Teachers by publishing an advertisement. In the
circumstances of the case, we do not find any illegality in the order of the
Education Officer, dated 26.03.2011 granting permission to the
respondent nos.5 to 8 as also the headmaster to fill the vacant posts. It is
not in dispute that the vacant posts are filled after issuance of an
advertisement. The petitioners in Writ Petition No.4887 of 2011 were
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appointed in pursuance of their selection. Approval was also granted to
their appointment, however, in view of the order of status quo granted in
Writ Petition No.1646 of 2011, the Education officer, hurriedly cancelled
the approval to the appointment of the petitioners in Writ petition
No.4887 of 2011, by the order dated 29.07.2011. It is not disputed by
the Education officer that the petitioners in Writ Petition No.4887 of 2011
are appointed in clear vacancies after following the due procedure of
selection. If that is so, the Education Officer could not have cancelled the
approval to the appointment of the petitioners in Writ petition No.4887 of
2011 only on the basis of the order of status quo in Writ Petition No.1646
of 2011. The Education officer should have at least heard the petitioners
in Writ Petition No.4887 of 2011 before cancelling their appointments.
The Education Officer has not granted hearing to the petitioners in Writ
Petition No.4887 of 2011 before cancelling the approval to their
appointments. In the circumstances of the case, we do not find any
illegality in the order of the Education Officer, dated 28.03.2011 granting
permission for appointment of Assistant Teachers in the vacant posts.
The order cancelling the approval to the appointment of the petitioners in
Writ Petition No.4887 of 2011 is bad in law, as the petitioners in Writ
petition No.4887 of 2011 were not heard before their approval was
cancelled. Even otherwise, in the circumstances of the case, we do not
find any illegality in the appointment of the petitioners in Writ Petition
No.4887 of 2011 and the respondent-Education officer could not have
WP 1646&4887/11 16 Common Judgment
cancelled the approval to their appointment only on the basis of an order
of status quo passed in Writ Petition No.1646 of 2011. We find that
though some Assistant Teachers are absorbed by an order of the
Education Officer in the schools run by the trust, their absorption would
not be affected, by this judgment as it is clearly stated in the additional
affidavit filed on behalf of the Education officer that some posts of
Assistant Teachers would remain vacant even after accommodating the
petitioners in Writ Petition No.4887 of 2011 as also the absorbed
teachers.
9. Hence, for the reasons aforesaid, Writ Petition No.1646 of
2011 is dismissed and Writ Petition No.4887 of 2011 is allowed. The
order cancelling the approval to the appointment of petitioners in Writ
Petition No.4887 of 2011, dated 29.07.2011 is hereby set aside. The
respondent nos.1 and 2 in Writ Petition No.4887 of 2011 are directed to
release the arrears of salary to the petitioners in Writ Petition No.4887 of
2011 within two months and pay the monthly salary to the petitioners in
Writ Petition No.4887 of 2011, regularly.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
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