Bombay High Court
Shri Girish B. Rai vs Kalindi K. Rai And Ors on 11 July, 2016
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.145 OF 2015
IN
WRIT PETITION NO.255 OF 2002
Shri Girish B. Rai )
Aged 37 years, Occupation Service, )
R/at : 501, Nav Gokuldham Co-op. )
Housing Society, Kate Manivli, )
Kalyan (East), District Thane ) ...Petitioner
....Versus....
1. Kalindi K. Rai )
Aged Adult, Occupation Service, )
R/o : Rom No.17, New Elizabeth )
House, Shivajinagar, Thane - 400 604 )
)
2. Adarsh Vidya Prasarak Mandal )
Neelam Niwas, Mahatma Phule )
Nagar, Opp. Somex Group Kamgar )
Hospital, Thane - 400 604, )
through its Secretary / President. )
)
3. Adarsh Saraswati Hindi High School, )
Shiv Dham, Sant Dnyaneshwar )
Nagar, Wagle Estate, Thane. )
)
4. The State of Maharashtra )
through the Education Officer )
(Secondary), Zilla Parishad, Thane. ) ...Respondents
Mr.N.V. Bandiwadekar for the Petitioner.
Mr.M.S. Lagu for the Respondent No.1.
Ms.M.S. Bane, A.G.P. for the State - Respondent No.4.
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CORAM : R.D. DHANUKA, J.
DATE : 11TH JULY, 2016.
JUDGMENT :-
1. By this review petition the review petitioner (original
petitioner) seeks review of the order and judgment dated 10 th
January, 2011 passed by this Court in Writ Petition No.255 of 2002
along with Contempt Petition No.111 of 2006. By the said order and
judgment dated 10th January, 2011, this Court has dismissed the writ
petition filed by the review petitioner and consequently dismissed the
Contempt Petition No.111 of 2006 as infructuous. Some of the
relevant facts for the purpose of deciding this review petition are as
under :
2. The petitioner is having qualification of Shastri (B.A.) from
Sampoornanand University and B.Ed. (Physical) from Mumbai
University. On 13th June, 1995, the petitioner was appointed as
trained graduate teacher in the respondent no.3 school which is the
Government recognized and aided private secondary school run by
the respondent no.2 society. The appointment of the petitioner was
approved by the respondent no.4 i.e. Education Officer (Secondary),
Thane on 22nd December, 1999. It is the case of the petitioner that on
11th June, 1996, the petitioner was appointed as In-Charge
Headmaster of the respondent no.3 school. According to the
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petitioner, that he was promoted to the said post of Headmaster vide
order dated 5th May, 2000 with effect from 13th June, 2000. The
Education Officer granted approval to the said promotion vide order
dated 7th July, 2000. It is the case of the petitioner that the respondent
no.2 management also had passed a requisite resolution for granting
promotion to the petitioner.
3. It is the case of the petitioner that the respondent no.1 was
appointed as Assistant Teacher on 18th June, 1993 in another school
i.e. Raje Shivaji Vidyalay (Hindi Medium), Khadegolawadi, Taluka
Kalyan, District Thane when she had only passed 12th standard and
was not qualified for the appointment to the post of the Assistant
Teacher in the school run by the management in which her father
was the Secretary. The respondent no.1 passed B.A. In 1994 and
B.Ed. in 1999. It is the case of the petitioner that the respondent no.1
thus became qualified for the post of Assistant Teacher only when
she passed B.Ed. in the year 1999. The Education Officer granted
approval to the appointment of the respondent no.1 as the Assistant
Teacher on 30th September, 2000 with effect from 14th June, 1999.
4. It is the case of the petitioner that the father of the
respondent no.1 was the Chairman of the respondent no.2 trust and a
false and frivolous appointment order dated 29th June, 1994 was
prepared to show that the respondent no.1 had been appointed as
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Headmistress with effect from 1st July, 1994. According to the
petitioner, the respondent no.2 had prepared another false document
of appointment dated 30th September, 2000 by which the respondent
no.1 was shown to have been demoted from the post of
Headmistress to the post of Assistant Teacher. The respondent no.1
filed Appeal (96 of 2000) before the School Tribunal at Navi Mumbai
against the management impugning the said purported appointment
letter dated 30th September, 2000. The petitioner herein was not
impleaded as a party to the said appeal initially but was impleaded
subsequently. It is the case of the petitioner that the respondent no.1
in collusion with the management obtained interim order of stay to the
order of the alleged reversion from the School Tribunal and also
obtained approval to her alleged appointment as Headmistress of the
school from the Education Officer. The petitioner thereafter made an
application for being impleaded as a party respondent to the said
Appeal (96 of 2000) and was joined as a party respondent to the said
appeal.
5. On 15th January, 2001, the petitioner made a complaint to
the Education Officer, who passed the order after hearing the
petitioner and the management thereafter suspending the order dated
3rd January, 2001 by which the respondent no.1 was granted approval
to her promotion as Headmistress. The Education Officer however,
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passed another order on 31st October, 2001, thereby revoking the
approval granted to the respondent no.1 to the post of Headmistress.
The respondent no.1 thereafter filed a Civil Suit (1618 Of 2001) in the
Court of Civil Judge (Senior Division) Thane. The respondent no.1
withdrew the said civil suit and filed Writ Petition (5662 of 2001) in
this Court. This Court granted stay of the operation of the order dated
31st October, 2001 passed by the Education Officer revoking the
approval granted to the respondent no.1 to the post of Headmistress
till 31st December, 2001 and directed the School Tribunal to decide
the appeal expeditiously. By an order and judgment dated 29 th
December, 2001, the School Tribunal allowed the said Appeal (96 of
2000) filed by the respondent no.1. By the said order and judgment,
order of demotion dated 30th September, 2000 passed against the
respondent no.1 came to be quashed and set aside.
6. Being aggrieved by the said order and judgment dated 29th
December, 2001 passed by the School Tribunal, the petitioner herein
filed a Writ Petition (255 of 2002) in this Court.
7. It is the case of the petitioner that since the management
was not paying the salary of the petitioner, the petitioner filed a Civil
Application (13 of 2006) in this writ petition inter-alia praying for a
direction against the management to pay the salary of the petitioner.
By an order dated 23rd January, 2006, this Court allowed the said civil
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application and directed the management to pay the salary of the
petitioner. Inspite of the order passed by this Court on 23 rd January,
2006, since the management did not pay the salary to the petitioner,
the petitioner filed Contempt Petition (111 of 2006) against the
contemnors for non-compliance of the order dated 23rd January,
2006. The said contempt petition was also heard along with Writ
Petition No.255 of 2002. By an order and judgment dated 10 th
January, 2011, this Court dismissed the said writ petition. In view of
dismissal of the writ petition,
ig this Court observed that Contempt
Petition No.111 of 2006 pending in the said writ petition did not
survive and accordingly the said contempt petition was also
dismissed as infructuous. On 6th September, 2011, the petitioner filed
this review petition inter-alia praying for recall of the order and
judgment dated 10th January, 2011 passed in Writ Petition No.255 of
2002 along with Contempt Petition No.111 of 2006. There was some
delay in filing this review petition. This Court by a separate order,
allowed the said civil application and condoned the delay in filing the
review petition.
8. Mr.Bandiwadekar, learned counsel appearing for the
petitioner invited my attention to the correspondence annexed to the
writ petition and also various observations made by this Court in the
said order and judgment dated 10th January, 2011. It is submitted that
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though the petitioner had annexed a copy of the letter of appointment
of the order of the petitioner as Headmaster and had also annexed
the copy of the approval granted by the Education Officer thereby
approving the appointment of the petitioner as Headmaster, this
Court in paragraph 8 of the said order and judgment dated 10th
January, 2011 has observed that the petitioner had neither
substantiated his contention nor has brought any material on record
to indicate that he was appointed as Headmaster in the year 1999 or
that he was functioning as In-Charge Headmaster from 1996. In the
same paragraph, this Court further observed that the criminal
proceedings had been initiated by the management against the
petitioner as well as the Education Officer for fabricating certain
documents which indicated that the petitioner had been appointed as
Headmaster and that his appointment was approved.
9. It is submitted that the entire order and judgment
delivered by this Court rejecting the petition filed by the petitioner on
the ground that his appointment as Headmaster was not
substantiated or that the petitioner had not brought any material on
record to indicate that he was functioning as In-Charge Headmaster
from 1996 is contrary to the documents produced by the petitioner in
the writ petition and is also inconsistent with the finding recorded in
the same paragraph that the petitioner had been appointed as
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Headmaster and that his appointment was approved. It is therefore,
submitted that that there is an error apparent on the face of order
passed by this Court.
10. Learned counsel appearing for the petitioner invited my
attention to the annual inspection reports dated 7th October, 1994,
16th August, 1995, 8th October, 1996, 17th October, 1997, 12th
January, 1999 and 9th December, 1999 which were annexed to the
writ petition. He submits that in the annual inspection report dated 7 th
October, 1994, which was a statutory record prepared by the
Education Department, list of the teachers was prepared. In the list of
teachers, appended to the said annual inspection report for the year
1994, the name of Hargovind Pandey was shown as Headmaster.
The name of the respondent no.1 was not even shown as Assistant
Teacher. Similarly in the annual inspection report dated 16 th August,
1995, name of Amarjeet Singh was shown as Headmaster. The name
of the respondent no.1 was not even shown as Assistant Teacher. He
submits that remaining annual inspection reports for the years 1996
onwards, the name of the petitioner was shown as Headmaster. The
name of the respondent no.1 was not even shown as Assistant
Teacher till 2000.
11. Learned counsel for the petitioner also invited my attention
to the text of the affidavit filed by the Education Officer before the
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School Tribunal referred in the order passed by the School Tribunal
stating that the respondent no.1 herein had passed her B.Ed. in the
year 1999 and during the period between 1988 to 1995, she was
serving as Assistant Teacher in Raje Shivaji Vidyalay (Hindi Medium),
Khadegolawadi, Taluka Kalyan, District Thane. It was further stated in
the said affidavit that since the respondent no.1 herein had passed
her B.Ed. in the year 1999, her promotion to the post of Headmistress
from 1st July, 1994 was illegal. Her proposal for promotion was not
submitted to the office of the Education Officer by the management.
No permission was sought from the Education Officer for giving an
authority for signing as Headmistress to the respondent no.1.
12. He submits that though the respondent no.1 was not
working in the school run by the respondent no.2 from 1994 till she
was alleged to have been promoted to the post of Headmistress by
the management and had not produced any documents in support of
her appointment initially as Assistant Teacher and thereafter also
showing her alleged promotion to the post of Headmistress in the
respondent no.2 school, this Court committed an error apparent on
the face of record and dismissed the writ petition filed by the
petitioner. He submits that the respondent no.1 was not even
qualified to be appointed as Assistant Teacher in the year 1994 since
she had completed B.Ed. qualification only in the year 1999 and thus
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the question of submitting her proposal by the management for
approval of her promotion to the post of Headmistress therefore, did
not arise.
13. Learned counsel for the petitioner also invited my attention
to paragraph 9 of the said order and judgment dated 10th January,
2011 delivered by this Court and would submit that the finding
recorded by this Court that the contention of the petitioner that there
was no material on record nor a certificate produced to indicate that
the institution was a minority institution is not correct and that
institution had produced a letter from the Education Officer relaxing
necessary qualifications for appointing the respondent no.1 as a
Headmistress in the respondent no.2 school before the School
Tribunal, shows an error apparent on the fact of order.
14. It is submitted that the respondent no.2 had submitted an
application on 7th October, 2008 to be declared as minority institution.
Hearing on that application was conducted on 7 th January, 2009. The
order was passed by the Education Department on the said
application on 22nd January, 2009, declaring the respondent no.2 as a
minority institution under section 3(2) of the M.E.P.S. Act, 1977. He
submits that though these crucial facts were placed on record before
the School Tribunal and also before this Court that the respondent
no.2 school was granted the status of minority institution only with
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effect from 22nd January, 2009, this Court committed an error
apparent on the fact of order by holding that the respondent no.3 had
produced a letter from the Education Officer which had relaxed
necessary qualifications for appointing the respondent no.1 to the
school as Headmistress. There was no question of relaxation of all
the conditions under section 3(2) of the M.E.P.S. Act 1977 before an
institution is recognized as minority institution.
15. Mr.Bandiwadekar, learned counsel for the petitioner
placed reliance on the judgment of this Court in case of Secretary,
Bombay St.Xavier's College Society, Mumbai & Anr. vs. Anwar
Hasan Bhombal & Ors., (2008) 5 Mh.L.J. 268 and in particular
paragraph 8 and would submit that right to exercise discretion under
section 3(2) of the M.E.P.S. Act available to a minority institution is
essentially in respect of the direct recruitment of a person and not
while promotion. He submits that it was admittedly the case of the
respondent no.1 before the School Tribunal that the respondent no.1
was initially appointed as Assistant Teacher in the respondent no.2
school and was thereafter promoted to the post of Headmistress. He
submits that the impugned order thus would clearly indicate an error
apparent on the fact of the order and thus can be recalled by this
Court.
16. Learned counsel appearing for the respondent no.1 on the
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other hand submits that the management also had categorically
asserted before the School Tribunal that the appointment of the
respondent no.1 was made under section 3(2) of the M.E.P.S. Act by
exercising discretion of a minority institution. He submits that the
respondent no.2 was already a minority institution much prior to the
respondent no.2 making an application for obtaining a certificate
under section 3(2) of the M.E.P.S. Act, however the certificate could
be obtained only in the year 2009. He submits that the respondent
no.2 had thus rightly exercised such discretion by relaxing the
conditions of seniority in case of the respondent no.1. He submits that
this Court cannot review the order passed by this Court on merits.
17. It is submitted by the learned counsel for the respondent
no.1 that the petitioner had on the contrary fabricated the record and
had obtained approval from the Education Officer based on the
fabricated documents. He submits that the School Tribunal has
passed strictures against the petitioner in respect of such approval
obtained by the petitioner based on the fabricated documents.
18. A perusal of the record clearly indicates that the petitioner
had annexed copy of the appointment order issued by the
management on 12th June, 1995 appointing the petitioner as
Assistant Teacher in the respondent no.2 school. The respondent
no.2 school had issued another appointment letter dated 11th June,
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1996 appointing the petitioner as In-Charge Headmaster in the
respondent no.2 school. On 22nd December, 1999, the Education
Officer (Secondary), Zilla Parishad, Thane had granted approved to
the appointment of the petitioner on probation pursuant to a letter
addressed by the management on 20th December, 1999. On 5th May,
2000, the respondent no.2 appointed the petitioner as Headmaster in
the respondent no.2 school. The Education Officer vide his letter
dated 7th July, 2000, addressed to the respondent no.2 approved the
appointment of the petitioner as Headmaster in the respondent no.2
school with effect from 13th June, 2000. Though all the letters of
appointment and approval were annexed to the writ petition itself by
the petitioner, this Court contrary to these documents on record has
rejected the petition on the ground that the petitioner had not
substantiated the contention that he was appointed as Headmaster in
the year 1999 nor he brought any material on record to indicate that
he was functioning as In-Charge Headmaster from 1996. In my view
the order and judgment dated 10th January, 2011 passed by this
Court shows error apparent on the face of order and judgment
delivered by this Court.
19. Similarly, this Court rejected the contention of the
petitioner that the respondent no.2 was granted status of minority
institution much after purported appointment of the respondent no.1
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as Headmistress and there was no question of any relaxation of any
condition under section 3(2) of the M.E.P.S. Act when the respondent
no.1 was purported to have been promoted to the said post.
20. A perusal of the record further indicates that though the
petitioner had annexed annual inspection reports from 1994 till 2000
not showing the name of the respondent no.1 as Assistant Teacher
and on the other hand showing the name of the petitioner as
Headmaster since 1996 which annual inspection reports were not
disputed by the management or by the respondent no.1, this Court
totally overlooked such undisputed documents on record and
recorded a contrary finding that the petitioner had not produced any
document to show that the petitioner was appointed as In-Charge
Headmaster in the year 1996.
21. Insofar as the contempt petition is concerned, the said
proceedings were filed by the petitioner alleging contempt of the
order dated 23rd January, 2013 passed by this Court in Civil
Application No.13 of 2006 directing the management to pay the
salary of the petitioner which order was not complied with by the
management even till the disposal of Writ Petition No.255 of 2002.
This Court by the said order and judgment dated 10 th January, 2011
dismissed the said contempt petition also on the ground that in view
of dismissal of the writ petition, the contempt petition did not survive
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and dismissed as infructuous. In my view, Contempt Petition No.111
of 2006, which was an independent proceedings alleging contempt of
the order passed had nothing to do with the final out come of Writ
Petition No.255 of 2002. Even if the writ petition is finally dismissed,
the parties cannot refuse to enforce interim orders passed by this
Court. In my view, the order and judgment dated 10 th January, 2011
passed by this Court shows error apparent on the fact of the order on
this ground also.
22.
A perusal of the order and judgment dated 10 th January,
2011 further indicates that this Court has recorded a finding that the
management had relaxed the conditions in respect of the
appointment of the respondent no.1 to the post of Headmistress
under section 3(2) of the M.E.P.S. Act in view of the status of minority
institution granted to the respondent no.2. In my view, even this
finding of this Court shows error apparent on the face of order in view
of the fact that under section 3(2) of the M.E.P.S. Act, discretion
available to a minority institution for granting relaxation in case of
qualifications can be exercised only in respect of the direct
recruitment and not while making a promotion. In this case, it was the
case of the management as well as of the respondent no.1 before
the School Tribunal that the respondent no.1 was granted promotion
to the post of Headmistress from the post of Assistant Teacher. The
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view taken by this Court in the said order and judgment dated 10 th
January, 2011 is contrary to the principles of law laid down by this
Court in case of Secretary, Bombay St.Xavier's College Society,
Mumbai & Anr. (supra).
23. In my view, the petitioner has thus made out a case for
recall of the order and judgment delivered by this Court on 10 th
January, 2011.
24. I therefore, pass the following order :-
a).
The order dated 10th January, 2011 passed by this Court in
Writ Petition No.255 of 2002 along with Contempt Petition No.111 of
2006 is recalled. Writ Petition No.255 of 2002 and the Contempt
Petition No.111 of 2006 are restored to file.
b). Place the Writ Petition No.255 of 2002 along with
Contempt Petition No.111 of 2006 on board for hearing and final
disposal on 2nd August, 2016.
(R.D. DHANUKA, J.)
