Bombay High Court
Arun Baban Nangare vs The School Tribunal Kolhapur And ... on 2 May, 2016
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4470 OF 2015
1. Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist.Sangli, )
Through its Chairman/Secretary. )
2. Dongarsoni High School, Dongarsoni )
A/P.Dongarsoni, Tal.Tasgaon, )
Dist. Sangli, )
Through its Head Master ) .. Petitioners
Versus
1. The State Of Maharashtra )
Through the Secretary )
School Education&Sports Department)
Mantralaya, Mumbai - 400 032. )
2. The Deputy Director of Education )
Kolhapur Region, Kolhapur. )
3. The Education Officer (Secondary) )
Zilla Parishad, Sangli. )
4. Shri Ganesh Bharat Pawar )
Age: Adult, Occupation : Not known )
R/At Maravade, Tal.Mangalvedha, )
Dist.Solapur. )
5. Shri Vishal Ramrao Patil )
Age: Adult, Occupation : Not known )
R/At Wadgaon, Tal.Tasgaon, )
Dist.Sangli. )
6. Shri Suryakant Rajaram Patil )
Age: Adult, Occupation : Not known )
R/At Hatnur, Tal. Tasgaon, )
Dist.Sangli. )
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7. Shri Balkrishna Waman Zambre )
Age: Adult, Occupation : Not known )
R/At Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. )
8. Shri Pravin Ramesh Kate )
Age: Adult, Occupation : Not known )
R/At Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. )
9. Shri Arun Baban Nangare )
Age: Adult, Occupation : Service )
R/At Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. )
10.
Sou.Saraswati Ankush Damame )
Age: Adult, Occupation : Service )
R/At Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. )
11. Shri Dnayandeo Ramchandra Zambre)
Age: Adult, Occupation : Agriculture )
R/At Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. )
12. Shri Tanaji Narayan Patil )
Age: Adult, Occupation : Agriculture )
R/At Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. ) .. Respondents
---
Mr.Prashant Bhavake for the petitioners.
Ms.M.S. Bane, AGP for the respondent nos.1 to 3 -State.
Mr.Mihir Desai, Senior Advocate i/by Mr.Kirankumar Phakade for the
respondent nos.4 to 8.
Mr.N.V. Bandiwadekar for the respondent nos.9 & 10.
Mr.Pramod Kathane for the respondent nos.11 & 12.
---
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ALONG WITH
WRIT PETITION NO.2307 OF 2012
WITH
CIVIL APPLICATION NO.445 OF 2014
WITH
CIVIL APPLICATION NO.2908 OF 2013
1. Shri Arun Baban Nangare )
Age: 32, Occu : Shikshan Sevak )
Residing at Dongarsoni, Tal.Tasgaon, )
Dist. Sangli, ) .. Petitioner
Versus
1.
Kolhapur
The School Tribunal Kolhapur )
)
2. President )
Shri Shivaji Shankar Zambare )
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
3. Ex President )
Shri Dnayandeo Ramchandra Zambre)
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
4. Shri K.B. Deshmukh )
Present Secretary )
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
5. Shri Tanaji Narayan Patil )
Ex Secretary )
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
6. The Headmaster/Ic. Head Master )
Dongarsoni High School, Dongarsoni,)
Tal.Tasgaon, Dist. Sangli. )
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7. The Education Officer (Sec) )
Zilla Parishad, Sangli. )
8. Shri Vishal Ramrao Patil )
Age : Adult, Occ: Not known, )
A/P. Hatnur, Tal. Tasgaon, )
Dist. Sangli. ) .. Respondents
---
Mr.N.V. Bandiwadekar i/by Mr.Umesh Pawar for the petitioner.
Ms.M.S. Bane, AGP for the respondent nos.1 & 7 -State.
Mr.Prashant Bhavake for the respondent nos.2, 4 and 6.
Mr.Pramod Kathane for the respondent nos.3 & 5.
Mr.Mihir Desai, Senior Advocate i/by Mr.Kirankumar Phakade for the
respondent no.8.
---
ALONG WITH
WRIT PETITION NO.2308 OF 2012
WITH
CIVIL APPLICATION NO.446 OF 2014
WITH
CIVIL APPLICATION NO.2909 OF 2013
1. Sou.Saraswati Ankush Damame )
Age: 32, Occ : Shikshan Sevak )
Residing at Dongarsoni, Tal.Tasgaon, )
Dist. Sangli. ) .. Petitioner
Versus
1. The School Tribunal Kolhapur )
Kolhapur )
2. President )
Shri Shivaji Shankar Zambare )
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
3. Ex President )
Shri Dnayandeo Ramchandra Zambre)
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
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4. Shri K.B. Deshmukh )
Present Secretary )
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
5. Shri Tanaji Narayan Patil )
Ex Secretary )
Shri Siddheshwar Shikshan Sanstha )
Dongarsoni, Tal.Tasgaon, Dist. Sangli.)
6. The Headmaster/Ic. Head Master )
Dongarsoni High School, Dongarsoni,)
Tal.Tasgaon, Dist. Sangli. )
7.
Zilla Parishad, Sangli.
The Education Officer (Sec) )
) .. Respondents
---
Mr.N.V. Bandiwadekar i/by Mr.Umesh Pawar for the petitioner.
Ms.M.S. Bane, AGP for the respondent nos.1 & 7 -State.
Mr.Prashant Bhavake for the respondent nos.2, 4 and 6.
Mr.Pramod Kathane for the respondent nos.3 & 5.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 30th March 2016
PRONOUNCED ON : 2nd May 2016
Judgment :-
. Rule. Learned counsel appearing for the respondents waive
service. The facts in the aforesaid three writ petitions being identical
and being inter-connected, were heard together and are being disposed
of by a common order.
2. By Writ Petition No.4470 of 2015, the petitioner no.1-
Management which runs the petitioner no.2-School has impugned the
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order dated 23rd February 2015 passed by the respondent no.3-the
Education Officer (Secondary), Zilla Parishad, Sangli thereby vacating
the stay granted to the individual approval to the so-called appointments
of the respondent nos.4, 5, 6 and 8 and approval to the promotion of the
respondent no.7 and continuing the order of their approvals and seeks a
writ of mandamus to cancel and/or withdraw his orders dated 15 th
September 2012 and 15th October 2012 by which the respondent no.1
granted the individual approval to the appointments of the respondent
nos.4, 5, 6 and 8 and approval to the promotion of the respondent no.7.
3.
By Writ Petition No.2307 of 2012, the petitioner (respondent
no.9 in Writ Petition No.4470 of 2015) has impugned the order dated
17th January 2012 passed by the Presiding Officer, School Tribunal,
Kolhapur in Appeal No.53 of 2011 dismissing the appeal filed by the
petitioner impugning termination of his service by the respondent nos.1
and 2 (petitioners in Writ Petition No.4470 of 2015) by letter dated 23 rd
June 2011.
4. By Writ Petition No.2308 of 2012, the petitioner (respondent
no.10 in Writ Petition No.4470 of 2015) has impugned the order dated
17th January 2012 passed by the Presiding Officer, School Tribunal,
Kolhapur in Appeal No.53 of 2011 dismissing the appeal filed by the
petitioner impugning termination of her service by the respondent nos.1
and 2 (petitioners in Writ Petition No.4470 of 2015) by letter dated 23 rd
June 2011. For the sake of convenience, the parties in this judgment are
described as they were described in the Writ Petition No.4470 of 2015.
Some of the relevant facts for the purpose of deciding these three writ
petitions are as under:-
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5. The petitioner no.1 is an Educational Institution running
the petitioner no.2-Secondary School which is recognized, fully aided
secondary school having classes from 5th to 10th Std. The respondent
no.2 is the Deputy Director of Education, Kolhapur Region, Kolhapur.
The respondent no.3 is the Education Officer (Secondary), Kolhapur
appointed under the provisions of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (for short "the
MEPS Act"). The respondent nos.4 to 6 were claiming to be appointed
as Shikshan Sevaks in the petitioner no.2-School. The respondent no.7 is
claiming to be promoted in the post of Junior Clerk from the post of
Laboratory Assistant. The respondent no.8 is claiming to be appointed
as a Peon in the petitioner no.2-School. The respondent nos. 9 and 10
were appointed as Shikshan Sevaks in the petitioner no.2-School and
are the petitioners in Writ Petition Nos.2307 of 2012 and 2308 of 2012
respectively. The respondent no.11 is an Ex-President of the petitioner-
Sanstha. The respondent no.12 is an Ex-Secretary of the petitioner-
Sanstha.
6. It is the case of the petitioners that the respondent no.3 had
granted permission on 12th January 2010 for publication of an
advertisement in the daily newspaper for recruitment of teaching staff.
On 16th January 2010, the petitioner no.1-Management published an
advertisement in the daily newspaper "Lokmat" inviting applications
for appointment of one post of Shikshan Sevak from Open Category.
The petitioner no.1 appointed the respondent no.9 to the said post of
Shikshan Sevak with effect from 15th June 2010 by issuing him an
appointment letter dated 14th June 2010.
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7. According to the petitioners, one more post of Assistant
Teacher became vacant in view of the retirement of one Assistant
Teacher i.e.Mr.J.D.Pawar. The petitioners once again obtained permission
from the respondent no.3 for issuance of an advertisement for filling up
the said post of Assistant Teacher. By an order dated 12th July 2010, the
respondent no.3 granted permission for issuing an advertisement to the
petitioners. The petitioners accordingly published an advertisement in
the daily newspaper "Lokmat" dated 14th July 2010 inviting applications
for recruitment of one post of Shikshan Sevak. The petitioner no.1
appointed the respondent no.10 to the said post of Shikshan Sevak with
effect from 26th July 2010 by issuing her a letter of appointment dated
14th July 2010.
8. It is the case of the petitioners that the petitioner no.1-
management in the Managing Committee Meeting held on 20th June
2010 appointed the present Secretary of the petitioner no.1-management
in the post of Secretary and accordingly submitted a change report (492
of 2010) on 28th June 2010 under the provisions of the Maharashtra
Public Trusts Act, 1950 (for short "the MPT Act"). The tenure of the
Managing Committee thereafter expired. It is the case of the petitioners
that the petitioner no.1-management vide the Annual General Meeting
dated 21st September 2010 elected a Managing Committee for the
tenure of the year 2010-13 and submitted a change report (719 of 2010)
on 27th October 2010 under the provisions of the MPT Act. The
petitioner no.1-management also submitted another change report (720
of 2010) regarding the election of officials of the Managing Committee.
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9. It is the case of the petitioners that the respondent nos.11
and 12 also submitted a change report (566 of 2010) to the Charity
Commissioner under the provisions of the MPT Act. According to the
petitioners, the said change report submitted by the respondent nos.11
and 12 was false and bogus. According to the petitioners, the petitioner
no.1-management took a charge on 21st September 2010 and started
functioning of the management of the petitioner no.2-School.
10. It is the case of the petitioners that though the respondent
nos.11 and 12 had no right to interfere in the administration of the
management of the petitioner nos.1 and 2, in collusion with the Ex-
Incharge Head Master Mr.Vitthal Tukaram Jadhav, they obstructed the
respondent nos.9 and 10 from signing the muster roll and threatened
them on 23rd June 2011. The respondent nos.9 and 10, thereafter, made
a representation to the respondent no.3-Education Officer (Secondary)
and requested for a direction to the Ex-Incharge Head Master Mr.V.T.
Jadhav to permit them to sign muster roll. On 30 th September 2010, the
respondent no.3 temporarily rejected the individual approval to the
appointments of the respondent nos.9 and 10 on the ground that there
was a dispute in the management of the petitioner nos.1 and 2. On 18 th
October 2010, the respondent no.3 directed the Ex-Incharge Head
Master to permit the respondent nos.9 and 10 to sign the muster roll.
11. Sometime in the year 2011, the respondent nos.9 and 10
filed two separate appeals bearing Nos.52 of 2011 and 53 of 2011
respectively before the Presiding Officer, School Tribunal, Kolhapur inter
alia impugning the oral termination of their services. By an order dated
17th June 2012, the Presiding Officer of the School Tribunal dismissed
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those two appeals bearing Nos.52 of 2011 and 53 of 2011 respectively.
Being aggrieved by the said order dated 17th January 2012, the
respondent nos.9 and 10 filed two separate Writ Petition bearing
Nos.2307 of 2012 and 2308 of 2012 respectively for a writ of certiorari
or any other writ or direction for quashing the said orders passed by the
Presiding Officer of the School Tribunal.
12. It is the case of the petitioners that though the respondent
no.12 did not have any authority to publish any advertisement or to
make any appointment of any staff member in the petitioner no.2-School,
the respondent no.12 published an advertisement in the daily newspaper
"Lokmat" on 18th May 2011 for recruitment of three posts of Shikshan
Sevaks and one post of Junior Clerk. It is the case of the petitioners that
no permission was obtained by the respondent no.12 from the Education
Officer before issuing any such advertisement. On 20 th May 2011, the
petitioner no1-management immediately made a representation to the
respondent no.3 and requested to direct the respondent nos.11 and 12
not to conduct any such recruitment process. The petitioners also issued
a public notice in the daily newspaper "Lokmat" on 25 th May 2011
and declared that the said advertisement issued by the respondent
no.12 was false and issued without any authority. A copy of the said
public notice was also displayed on the notice board of the petitioner
no.2-School.
13. The respondent nos.11 and 12, however, conducted the
recruitment process though they were not part of the petitioner no.1-
management and passed Resolutions dated 14 th June 2011, 21st August
2011, 12th June 2011, 24th June 2011, 25th September 2011 and 24th
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June 2012 purporting to appoint the respondent nos.4 to 6 as Shikshan
Sevaks and the respondent no.8 as Peon and promoted the respondent
no.7 to the post of Junior Clerk from the post of Laboratory Assistant.
The respondent nos.11 and 12 through the Ex-Incharge Head Master
Mr.V.T. Jadhav, thereafter, submitted a proposal on 2nd June 2011 to the
respondent no.3 Education Officer for seeking individual approval to the
appointments of the respondent nos.4 to 8.
14. The petitioner no.1-management through one of the
Managing Committee Members, thereafter, submitted an application to
the Education Officer under the provisions of the Right to Information
Act, 2005 and sought information as to whether the respondent nos.11
and 12 had obtained any prior permission from the Education Officer
for issuing any advertisement or not. The Public Information Officer of
the respondent no.3 by his letter dated 24 th June 2011 informed the
petitioners that the prior permission was not obtained by the respondent
nos.11 and 12 for publishing advertisement and further informed that
the proposals were submitted by the respondent nos.11 and 12 for the
individual approval to the appointments of the respondent nos.4 to 8.
15. It is the case of the petitioners that though the change reports
filed by the respondent nos.11 and 12 were pending before the Assistant
Charity Commissioner, the Ex-Incharge Head Master Mr.V.T. Jadhav
submitted false and bogus certificates to the respondent no.3 on 14 th
September 2011 stating that there was no litigation of the management
pending. On 24th October 2011, the petitioner no.1-management issued a
legal notice to the Education Officer and requested him not to grant any
individual approval to the respondent nos.4 to 8 on various grounds.
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16. On 15th September 2012 and 15th October 2012, the
respondent no.3 granted individual approval to the appointments of the
respondent nos. 4 to 6 as Shikshan Sevaks, to the respondent no.8 as
Peon and approval to the promotion of the respondent no.7 as a Junior
Clerk in the petitioner no.2-School. The petitioner no.1-management,
thereafter, made a complaint on 5th January 2013 to the respondent no.3
and requested it to hold an enquiry in the matter and to take appropriate
action. The respondent no.3, however, neither conducted any enquiry nor
give any reply to the said complaint.
17.
On 15th January 2013, the petitioner no.1-management made
a representation to the respondent no.2-Deputy Director of Education
and requested to cancel the individual approval granted to the respondent
nos.4 to 8. The petitioner no.1-management also submitted a complaint
to the Chief Executive Officer, Zilla Parishad, Sangli on 22nd February
2013. In view of the said representation made by the petitioner no.1-
management, the Chief Executive Officer, Zilla Parishad, Sangli directed
the Education Officer herein to give hearing to the parties and to take a
decision within 15 days and to submit a report.
18. The petitioners, thereafter, appeared before the Education
Officer and submitted their written statement and also made oral
submissions and requested to cancel the individual approvals granted
to the respondent nos.4 to 8. The respondent nos.11 and 12 also filed
their written statements before the respondent no.3. On 26 th March 2013,
the respondent no.3 passed an order that it would not be proper to take
decision regarding cancellation of the individual approvals of the
respondent nos.4 to 8 since his predecessor officer had granted such
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approvals in favour of the respondent nos.4 to 8. The respondent no.3
also held that it would be better to take the appropriate decision on the
issue after the final decision of this Court in the Writ Petition Nos.2307
of 2012 and 2308 of 2012 filed by the respondent nos.9 and 10
respectively is rendered.
19. Sometime in the year 2013, the petitioners lodged a First
Information Report (FIR) against the respondent nos. 11 and 12 bearing
C.R.NO.114 of 2013. The respondent nos.11 and 12 also filed separate
FIR against the present management of the petitioner no.1.
20. On 26th June 2013, the respondent no.3 passed an order
staying the individual approval granted to the respondent nos.4 to 8.
Being aggrieved by the said order dated 26 th June 2013, the respondent
nos.4 to 8 filed a Writ Petition (5758 of 2013) in this Court. The
petitioners herein were not parties to the said writ petition initially. The
petitioners, thereafter, applied for intervention in the said writ petition
which application was allowed by this Court.
21. On 22nd November 2013, the learned Assistant Charity
Commissioner allowed all the change reports filed by the petitioner no.1
and rejected the change report filed by the respondent nos.11 and 12.
The respondent nos.11 and 12 have challenged the said order passed by
the Assistant Charity Commissioner by filing a revision application
which is pending. There is no stay of the order passed by the Assistant
Charity Commissioner allowing the change reports filed by the
petitioner no.1 and rejecting the change report filed by the respondent
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nos.11 and 12. The names of the office bearers of the petitioner no.1
are entered in Annexure-1 of the petitioner no.1-management. The
Assistant Charity Commissioner had accordingly issued an extract
P.T.R. It is the case of the petitioners that since 2010, the office bearers
of the petitioner no.1 are holding charge of the petitioner no.2-School
and the Sanstha.
22. On 14th January 2015, this Court admitted the Writ Petition
(5758 of 2013) filed by the respondent nos.4 to 8 and rejected the interim
relief. This Court, however, in the said order made it clear that the
Education Officer was free to hear the petitioners and concerned
respondents on the issue of cancellation of approval to the appointments
of the respondent nos.4 to 8 and pass an appropriate order during the
pendency of the said writ petition.
23. Pursuant to the said liberty granted by this Court in the said
order dated 14th January 2015, the Education Officer issued notices to
all the concerned parties for hearing. The petitioners appeared before
the respondent no.3 and submitted their objection and once again prayed
for cancellation of individual approval granted to the respondent nos.4
to 8. By an order dated 23rd February 2015, the respondent no.3 vacated
the stay granted to the individual approval to the appointments of the
respondent nos.4 to 8 and continued the earlier individual approvals
granted in their favour.
24. On 25th March 2015, the respondent nos.4 to 8 withdrew
the said Writ Petition No. 5758 of 2013 in view of the fresh order passed
by the respondent no.3 thereby vacating the stay granted to the individual
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approval to the respondent nos.4 to 8. Being aggrieved by the said order
dated 23rd February 2015 passed by the respondent no.3, the petitioner
no.1-management filed a Writ Petition (4470 of 2015) for a writ, order
and direction for quashing and setting aside the order dated 23 rd February
2015. By an order dated 5 th May 2015 passed by this Court, ad-interim
order is granted in terms of prayer clause (c) of the Writ Petition
No.4470 of 2015 thereby operation, effect, execution and implementation
of the impugned order dated 23rd February 2015 passed by the respondent
no.3-Education Officer (Secondary) is stayed.
25.
Mr.Bhavake, learned counsel appearing for the petitioner
no.1-management in Writ Petition No.4470 of 2015 invited my attention
to various correspondence exchanged between the parties referred to
aforesaid and the impugned order passed by the Education Officer which
is subject matter of the Writ Petition No.4470 of 2015 and the orders are
passed by the Presiding Officer, School Tribunal, Kolhapur dismissing
the Appeals filed by the respondent nos.9 and 10 which orders are subject
matter of the Writ Petition No.2307 of 2012 and Writ Petition No.2308 of
2012. It is submitted by the learned counsel that the Managing
Committee of the petitioner no.1 had started their functioning from the
date of their selection/election i.e. from the year 2010 itself.
26. It is submitted that when the petitioner no.1-management
started the process of appointing the teaching staff in the year 2010, the
respondent nos.11 and 12 were also the part of the Committee. The
petitioners had obtained prior approval of the Education Officer before
publishing an advertisement in the daily newspaper "Lokmat" for filling
up the posts of Shikshan Sevaks from the Open Category as contemplated
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under Section 5 of the MEPS Act. The petitioner no.1-management had
issued advertisements on 16th January 2010 and 14th July 2010 for
recruitments to the posts of Shikshan Sevaks from the Open Category
respectively.
27. It is submitted that the petitioner no.1-management had
after following the due process of law appointed the respondent no.9 in
one of the posts of Shikshan Sevak with effect from 15 th June 2010 and
appointed the respondent no.10 in the post of Shikshan Sevak from the
Open Category with effect from 14th July 2010. He submits that when
the respondent nos.9 and 10 were appointed as Shikshan Sevaks, there
was no dispute between the trustees of the petitioner no.1-management
and the respondent nos.11 and 12. The respondent nos.11 and 12 filed a
false change report bearing no.566 of 2010 after appointment of the
respondent nos.9 and 10. He submits that the respondent nos.11 and 12
in collusion with the Ex-Incharge Head Master Mr.V.T.Jadhav had
threatened the respondent nos.9 and 10 not to sign the muster roll
though they had no authority to stop the respondent nos.9 and 10 from
signing the muster roll.
28. It is submitted that the learned Assistant Charity
Commissioner in his order dated 22nd November 2013 while allowing
the change reports filed by the petitioner no.1-management and
rejecting the change report filed by the respondent nos. 11 and 12 has
held that the changes reported in the change reports filed by the
petitioner no.1-management were made by legal and valid members/
trustees whereas the change reported in the change report filed by the
respondent nos.11 and 12 was effected by illegal members of the trust.
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It is held that though the executive council mentioned in the Change
Report No.566 of 2010 was looking after the management of the trust,
they had no any legal authority to manage the affairs of the trust and
after August 2010, they would be treated as defacto trustees for the
acts done by them during 2008 to 2010. It is held that it was necessary
to recognize the trustees and members as per Change Report Nos.492 of
2010, 719 of 2010 and 720 of 2010 which were filed by the petitioner
no.1-management being legal and valid trustees and members for
further better management of the trust. In the said order, it is held by
the Assistant Charity Commissioner that the changes reported in the
application no.566 of 2010 by the respondent nos.11 and 12 were illegal
and invalid.
29. It is held that the respondent nos.11 and 12 failed to prove
the legality and validity of the change reported by them whereas, the
petitioner no.1-management had succeeded in proving the legality and
validity of reported changes mentioned in the other three reports filed
by them. The Assistant Charity Commissioner also came to the
conclusion that it had come in the evidence that Mr.Tanaji Patil,
Mr.Dnayandeo Zambre and Clerk Mr.Jayant Patil had withdrawn Rs.4
lacs from the trust fund and it was necessary to direct the Inspector of
his office to inquire into the irregularity and contravention of the
provisions of the MPT Act so as to take further action against the errant
trustees.
30. In so far as the appointments of the respondent nos.4 to 8
made by the respondent nos.11 and 12 are concerned, it is submitted
that it is now proved beyond reasonable doubt that the respondent
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nos.11 and 12 were not validly appointed trustees/office bearers of the
petitioner no.1-management when they published an advertisement in
the daily newspaper "Lokmat" dated on 18 th May 2011 for recruitment
of three posts of Shikshan Sevaks and one post of Junior Clerk. He
submits that since the Assistant Charity Commissioner had categorically
held that the changes reported by the respondent nos.11 and 12 were
illegal and invalid and had rejected the said change report, it is proved
beyond reasonable doubt that the respondent nos.11 and 12 at the
material time acted illegally and thus could not have made any
appointment of the respondent nos.4 to 8 in the year 2011 or thereafter.
The Assistant Charity Commissioner had held that the petitioner no.1-
management, however, had proved that the changes reported by them
in the change reports submitted by them were proved and they were
validly appointed as trustees and office bearers. He submits that
admittedly there is no stay granted by the Appellate Authority against
the said order dated 22nd November 2013.
31. It is submitted that in any event, the respondent nos.11 and
12 did not comply with the mandatory requirements under Section 5(1)
of the MEPS Act by obtaining prior permission of the Education Officer
for issuance of any advertisement for recruitment of any teaching or
non-teaching staff and did not ascertain from the Education officer,
Zilla Parishad whether there was any suitable person available on the
list of surplus persons maintained by him, for absorption in other
schools and in the event of such person being available, the management
shall appoint that person in such vacancy. He submits that the petitioner
no.1-management had followed such procedure by obtaining prior
permission from the Education Officer before issuing an advertisement
ppn 19 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
and only after following the procedure, the petitioner no.1 had appointed
the respondent nos.9 and 10 to the posts of Shikshan Sevaks respectively.
32. Learned counsel for the petitioner no.1-management invited
my attention to the advertisement issued by the respondent nos.11 and
12 and would submit that the respondent nos.11 and 12 had deliberately
given the personal address of the respondent no.11 and not the address of
the office of the petitioner nos.1 and 2. He submits that though the
petitioners had issued a public notice in the newspaper raising an
objection regarding issuance of the said advertisement by the respondent
nos.11 and 12, the same being without any authority, the respondent
nos.11 and 12 passed resolutions illegally and appointed the respondent
nos.4 to 6 & 8 and promoted the respondent no.7. He submits that
pursuant to the said advertisement illegally issued by the respondent
nos.11 and 12, initially the respondent nos.11 and 12 appointed
Mr.Shinde as a Shikshan Sevak who thereafter resigned.
33. It is submitted that the respondent nos.11 and 12 did not
issue fresh advertisement for filling up the said post and appointed the
respondent no.5 as a Shikshan Sevak in his place illegally. He submits
that similarly, one Mrs.Shubhangi Prakash Shinde resigned and in her
place without issuing any fresh advertisement, the respondent nos.11
and 12 appointed the respondent no.6. He submits that the respondent
nos.11 and 12 could not have promoted the respondent no.7 who was a
Laboratory Assistant to the post of Junior Clerk. Similarly, the respondent
no.8 could not have been appointed as a Peon on the compassionate
ground.
ppn 20 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
34. It is submitted by the learned counsel for the petitioner no.1-
management that in collusion with the respondent nos.11 and 12, the
Ex-Incharge Head Master Mr.V.T. Jadhav issued a false certificate of the
Education Officer while seeking an individual appointment that there
was no dispute in the management knowingly well that three change
reports filed by the petitioner no.1-management and one change report
filed by the respondent nos.11 and 12 challenging the appointment of
each other were pending before the Assistant Charity Commissioner. He
submits that though all these facts were brought to the notice of the
Education Officer by the petitioners, the Education Officer granted
individual approval to the appointments of the respondent nos.4 to 8 and
vacated the stay granted by his predecessor and restored the original
order passed by his predecessor. He submits that the respondent nos.4
to 8 had not been working from the date of their appointment by the
respondent nos.11 and 12 till the date of their approval. However, their
salary was released by the Education Officer illegally. He submits that
in place of the respondent no.4, Mr.Kolekar is working in the petitioner
no.2-School. In place of the respondent no.5, the respondent no.9 is
working as a Shikshan Sevak. In place of the respondent no.6, the
respondent no.10 is working as a Shikshan Sevak.
35. My attention is also invited to the order passed by this Court
in the writ petition filed by the respondent nos.4 to 8 in which at the
material time, the petitioners were not impleaded as parties-respondents
and it is submitted that the respondent nos.4 to 8 in collusion with the
respondent nos.11 and 12 obtained an order against the Education Officer
for releasing the salary of the respondent nos.4 to 8 though they were
illegally appointed. After obtaining such order from this Court, the
ppn 21 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
respondent nos.4 to 8 withdrew that writ petition. He submits that the
Education Officer could not have granted individual approval to the
appointments of the respondent nos.4 to 8 illegally made by the
respondent nos.11 and 12.
36. Learned counsel for the petitioner no.1-management invited
my attention to the order of approval granted by the Education Officer to
the appointments of the respondent nos.4 to 8 and would submit that the
Education Officer had rejected the approval of the appointments of the
respondent nos.9 and 10 on the ground that they had not produced the
latest P.T.R. certificate and there being a dispute in the management,
however, individual approval to the appointments of the respondent nos.4
to 8 was granted though no such P.T.R. Extract was produced by the
respondent nos.4 to 8 and though admittedly there was a dispute about
the management of the trust pending before the Assistant Charity
Commissioner. The Education Officer overlooked these two conditions
which were considered by him while rejecting the approval to the
appointments of the respondent nos.9 and 10. He submits that the order
passed by the Education Officer is ex-facie illegal and shows different
approach in rejecting the approval to the appointments of the respondent
nos.9 and 10 and approving the appointment of the respondent nos.4
to 8.
37. It is submitted by the learned counsel that though the
petitioners had brought various illegalities in the appointments of the
respondent nos.4 to 8 before the Education Officer and also about the
pending management dispute before the Assistant Charity Commissioner,
the Education Officer without conducting any enquiry or investigation
ppn 22 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
whether the appointments of the respondent nos.4 to 8 made by the
respondent nos.11 and 12 were legal and valid and in accordance with
the provisions of law or not, passed a mechanical order approving the
appointments of the respondent nos.4 to 8 and vacated the stay granted
by his predecessor. He submits that the Education Officer was also
aware of the public notice issued by the petitioner no.1-management
against the advertisement issued by the respondent nos.11 and 12, but
still he approved the appointments of the respondent nos.4 to 8. The
respondent nos.11 and 12 admittedly had not produced the P.T.R. Extract
of the year 2011.
38. Learned counsel for the petitioner no.1-management invited
my attention to the Government resolution dated 6 th February 2012 by
which the Government had framed guidelines for granting approval in
the aided Schools in respect of teaching and non-teaching staff including
the duties of the Education Officer while considering the application for
approval. He submits that even under the said Government Resolution,
if prior permission of the Education Officer is not obtained before
issuing an advertisement, the Education Officer cannot approve such
appointment made without obtaining prior consent. He submits that
under the said Resolution, the Education Officer is empowered to cancel
the approval granted by him, however, after hearing the parties
concerned. The Education Officer thus ought to have exercised his
power and ought to have cancelled the approval of the respondent nos.4
to 8 granted by his predecessor.
39. Learned counsel for the petitioner no.1-management
produced original muster roll for the relevant period and would submit
ppn 23 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
that during the period between June 2011 to May 2013, the respondent
nos.4 to 8 were not found working. He submits that since the respondent
nos.4 to 8 obtained the alleged arrears of their salary under an ad-interim
order passed by this Court by suppressing the facts, the appropriate
action should be taken against the Education Officer and an order and
direction shall be issued against the Education Officer to take steps to
recover the amount of salary released by the Education Officer in favour
of the respondent nos.4 to 8. He submits that the Education Officer
could not have considered the records produced by the respondent nos.11
and 12 as their appointments itself reported in the change report were
rejected by the Assistant Charity Commissioner.
40. In support of his submission that the appointments of the
respondent nos.4 to 8 were illegal, an appropriate order shall be passed
for refund of the amount, learned counsel for the petitioner no.1-
management placed reliance on the judgment of this Court in the case
of Nilkanth s/o Sambhuppa Ajbe Vs. State of Maharashtra and
Ors., reported in 1999 (2) Bom C.R. 30 and in particular paragraphs 4
and 6 thereof. Learned counsel also placed reliance on an unreported
judgment of this Court delivered on 19 th January 2016 in the case of
Akole Taluka Education Society Vs. The State of Maharashtra &
Ors. in Writ Petition No.3481 of 2015 and other companion writ
petitions and more particularly paragraph 42 thereof.
41. It is submitted by the learned counsel for the petitioner no.1-
management that there were no permanent or clear vacancies on which
the respondent nos.4 to 8 could be appointed by the respondent nos.11
and 12. In so far as the two posts of Assistant Teachers were concerned,
ppn 24 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
it is submitted that on those two posts, two eligible persons were
already appointed as Shikshan Sevaks and their applications for approval
were already sent before the Education Officer. The dispute raised by
the respondent nos.9 and 10 challenging termination of their services
was pending.
42. Mr.Bandiwadekar, learned counsel for the respondent nos.9
and 10 (petitioners in Writ Petition Nos.2307 of 2012 and 2308 of 2012
respectively) tendered compilation of the documents. It is submitted that
the appeals filed by his clients have been rejected basically on the ground
that there was a pending management dispute. He submits that the
changes reported by the petitioner no.1-management have been
admittedly accepted by the Assistant Charity Commissioner and changes
reported by the respondent nos.11 and 12 who had made appointments
of the respondent nos.4 to 8 have been rejected by the Assistant Charity
Commissioner. He submits that admittedly there was no stay of the order
passed by the Assistant Charity Commissioner.
43. Learned counsel invited my attention to the permission
dated 12th September 2010 granted by the Education Officer in favour
of the petitioner no.1-management to publish an advertisement. He
submits that in response to the advertisement issued by the petitioners,
the respondent nos.9 and 10 had applied for the posts of Shikshan
Sevaks. He submits that when the management had issued the said
advertisement, the respondent nos.11 and 12 did not raise any objection
challenging the powers of the petitioner no.1-management nor any action
was taken by them against the petitioner no.1-management. He submits
that the respondent nos.11 and 12 were actually a part of the said
ppn 25 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
management when the advertisement was issued by the petitioner no.1-
management.
44. My attention is invited to the resolution passed by the School
Committee on 22nd May 2010 approving the appointments of the
respondent nos.9 and 10 to the posts of Shikshan Sevaks and also to the
resolution passed by the petitioner no.1-management on 23 rd September
2010 approving the appointments of the respondent nos.9 and 10. He
submits that the respondent nos.9 and 10 were appointed by separate
appointment letters. He also invited my attention to the appointment
letters appointing the respondent nos.9 and 10 as Shikshan Sevaks for a
period of three years. The petitioner no.2-School had sent a proposal to
the Education Officer on 24th September 2010 for seeking approval of
appointment of the respondent nos.9 and 10. He submits that the
appointments of the respondent nos.9 and 10 made by the petitioner no.1
were within the sanctioned strength. Several documents which were
required to be filed along with proposal for approval were sent by the
petitioner no.1 to the Education Officer.
45. Learned counsel for the respondent nos.9 and 10 invited my
attention to the order dated 30th September 2010 passed by the Education
Officer on the ground that the latest P.T.R. Extract was not annexed and
there was alleged pending management dispute. He submits that when
the respondent nos.9 and 10 were appointed by the petitioner no.1-
management, there was no dispute in the management. He submits that
though the proposal of the petitioner no.1-management for approval of
the appointments of the respondent nos.9 and 10 was rejected by the
ppn 26 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
Education Officer, the petitioner no.1-management continued their
services, however, without payment of salary.
46. It is submitted by the learned counsel that when the Ex-
Incharge Head Master Mr.V.T. Jadhav in collusion with the respondent
nos.11 and 12 threatened the respondent nos.9 and 10 not to sign the
muster roll, three teachers including the respondent nos.9 and 10 had
made a complaint on 24th June 2010 to the Education Officer. There
was however neither any reply to the said complaint nor any action
taken by the Education Officer thereon. It is submitted by the respondent
nos.9 and 10 that though the approval of appointment of the respondent
nos. 9 and 10 was rejected by the Education Officer on the ground that
there was no latest P.T.R. extract filed by the petitioner no.1-management
and there was a dispute in the management, the Education Officer granted
approval to the appointments of the respondent nos.4 to 8 overlooking
the same conditions.
47. It is submitted by the learned counsel for the petitioner nos.9
and 10 that though the resolution dated 6th February 2012 issued by the
Government was binding on the Education Officer while granting
approval to any appointment of teaching and non-teaching staff in an
aided school, the Education Officer totally overlooked and violated the
conditions of the said Government resolution which was binding on him.
48. Reliance is placed on clause 4 of the Government resolution
which provided that if prior permission of the Education Officer was not
obtained for publishing an advertisement, the Education Officer could
not have granted any approval. He submits that the said Government
ppn 27 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
resolution mandates compliance of various conditions according to the
check-list before granting approval which the respondent nos.11 and 12
had failed to submit. The Education Officer however still granted
approval to the appointments of the respondent nos.4 to 8 in gross
violation of the said Government resolution.
49. Mr.Bandiwadekar, learned counsel for the respondent nos.9
and 10 invited my attention to paragraphs 43 to 47 of the order passed
by the Assistant Charity Commissioner allowing the change reports
0filed by the petitioner no.1-management and rejecting the change report
filed by the respondent nos.11 and 12 and would submit that the learned
Assistant Charity Commissioner has ordered an enquiry against the
respondent nos.11 and 12. The said order passed by the Assistant Charity
Commissioner accepting the change reports submitted by the petitioner
no.1-management and rejecting the change report submitted by the
respondent nos.11 and 12 was not stayed by the Joint Charity
Commissioner.
50. Learned counsel for the respondent nos.9 and 10 placed
reliance on the judgment of this Court in the case of Chembur Trombay
Education Society & Ors. Vs.D.K. Marathe & Ors., reported in
2002(3) Bom C.R. 161 and would submit that any amendment or change
in the management brought about in accordance with law would come
into effect from the date of resolution of the trust to bring about such a
change and merely because the change report is pending consideration
before the Charity Commissioner, would be of no avail. He submits that
the changes in the management had come into effect from the date of
resolution of the trust and not from the date of approval of the Charity
ppn 28 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
Commissioner. He submits that when the respondent nos.9 and 10 were
appointed by the petitioner no.1-management, they were validly
appointed trustees. The order passed by the Assistant Charity
Commissioner will have retrospective effect. It is submitted that the
findings of the Education Officer as well as the School Tribunal that the
appointments of the respondent nos.4 to 8 could not be approved because
of pending dispute in the management is ex-facie contrary to the law laid
down by this Court in the case of Chembur Trombay Education Society
& Ors. (supra). He submits that since the petitioner no.1-management
has been working all throughout since the date of their appointment,
this Court shall not only set aside the orders passed by the School
Tribunal and the Education Officer but shall grant reinstatement with
back wages and shall direct the government to release the salary to the
respondent nos.9 and 10 with continuity of service.
51. Mr.Bandiwadekar, learned counsel for the respondent nos.9
and 10 placed reliance on an unreported judgment of the Full Bench of
this Court delivered on 13th February 2013 in the case of Dr.Ishrat
Ullah Khan s/o Muzaffarullah Khan Vs. The State of Maharashtra &
Ors. in Writ Petition No.4474 of 2012 and more particularly paragraphs
2 and 10 thereof and would submit that while granting the approval of
any appointment, the Education Officer is not required to go into the
dispute inter se between the management but has to consider whether a
person has been appointed in accordance with law or not. He submits
that the dispute inter se between the management has to be looked into
by the Joint Charity Commissioner or Assistant Charity Commissioner
under the Maharashtra Public Trust Act and not the Education Officer.
The orders passed by the School Tribunal as well as the Education Officer
ppn 29 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
are ex-facie contrary to the law laid down by this Court in the case of
Dr.Ishrat Ullah Khan s/o Muzaffarullah Khan (supra) delivered by the
Full Bench.
52. Learned counsel for the respondent nos.9 and 10 placed
reliance on the judgment of this Court in the case of St.Ulai High
School and Anr. Vs. Devendrapprasad Jagannath Singh, reported in
2007(1) Mh.L.J. 597 and in particular paragraph 10.7 thereof and would
submit that there is no mandate in the said MEPS Act and the Rules
framed thereunder for approval of the Education Department as a
condition precedent to a valid order of appointment. He submits that
the approval of the Education Department is required only to the
disbursement of financial aid and even if the approval is denied by the
Education Department to the appointment, it cannot invalidate the order
of appointment. He submits that if the management fails to comply
with the conditions prescribed by the Government for the disbursal of
aid which has been sanctioned, the Government would be entitled to
take such measures as are open in law against the management. He
submits that the management thus could not have terminated the services
of the respondent nos.9 and 10 merely because the Education Officer
had refused to approve the appointments of the respondent nos.9 and 10
on flimsy ground or otherwise. He submits that the termination of
services of the respondent nos.9 and 10 based on refusal of the approval
by the Education Officer is thus ex-facie illegal and contrary to the law
laid down by this Court in the case of St.Ulai High School and Anr.
(supra).
ppn 30 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
53. The next submission of the learned counsel for the
respondent nos.9 and 10 is that though his clients were appointed on
probation for a period of three years, while terminating the services of
his clients, the petitioner no.1-management has neither given one
month's notice nor had paid salary in lieu of one month's notice. In
support of this submission, learned counsel placed reliance on Sections
5(2) and 5(3) of the MEPS Act. He submits that the findings of the
School Tribunal that the appointment of the respondent nos.9 and 10
being nullity and thus whether notice of one month or salary in lieu of
one month's notice is given or not is irrelevant, is perverse and contrary
to Section 5(2) read with Section 5 (3) of the MEPS Act. He submits that
the compliance of Sections 5(2) and 5(3) is mandatory and not directory.
In support of this submission, learned counsel placed reliance on the
judgment of this Court in the case of Rehana Begum d/o. SK Safdar
Vs.Khwaja Baba Urdu Education Society, Amravati & Ors., reported
in 2009 (3) Mh.L.J. 665 and in particular paragraphs 5 and 9 thereof
and the judgment of this Court in the case of Progressive Education
Society Hinghanghat & Ors. Vs. Nitin Krishnarao Nimbalkar & Ors.,
reported in 2006 (4) Mh.L.J. 747 and in particular paragraph 5 thereof.
54. Learned AGP appearing for the respondent nos.1 to 3 placed
reliance on the affidavit-in-reply filed by the Education Officer to justify
the reasons recorded in the order passed by the Education Officer and
also placed reliance on the reasons recorded by the School Tribunal in
the Writ Petition Nos.2307 of 2012 and 2308 of 2012. Upon raising
a query, the learned AGP admitted that prior permission of the Education
Officer before issuing any advertisement was mandatory however the
respondent nos.11 and 12 had not obtained such permission. She submits
ppn 31 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
that if this Court comes to a conclusion that the salary was wrongly
paid to the respondent nos.4 to 8 and if any direction is issued to the
Education Officer for initiating any proceedings for recovery of such
amount against the respondent nos.4 to 8, the Education Officer will take
such steps as may be directed.
55. Mr.Kathane, learned counsel appearing for the respondent nos.11
and 12 in Writ Petition No.4470 of 2015 and respondent nos.3 and 5 in
Writ Petition Nos.2307 of 2012 and 2308 of 2012 invited my attention to
the order passed by the Assistant Charity Commissioner allowing the
change reports filed by the petitioners management and rejecting the
change reports of his clients. He submits that against the said order
passed by the Assistant Charity Commissioner, his clients have already
filed an appeal before the Joint Charity Commissioner and the same is
pending.
56. Insofar as the submission of the petitioners that the
respondent nos.11 and 12 had not obtained prior permission of the
Education Officer before issuing any advertisement is concerned, it is
submitted that prior permission of the Education Officer before issuing
any advertisement is mandatory, only if any recruitment to the reserved
post is made. He submits that since in this case the appointments were
made in the open category, section 5(i) of MEPS Act did not apply. He
submits that the Managing Committee has to only communicate the
decision taken by the Management of the School Committee to the
Education Department which procedure was complied with by his clients.
He submits that none of the appointments made by the respondent nos.11
and 12 were in violation of the provisions of MEPS Act and MEPS Rules.
ppn 32 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
57. Learned counsel appearing for the respondent nos.11 and 12
invited my attention to one of the appointment letter dated 23 rd
September, 2010 signed by the petitioners management and would submit
that when the said appointment letter was issued by the petitioners
management, the same was signed by the persons claiming to the trustees
and/or committee members in respect of whose appointments, the change
reports were not even filed by the petitioners management with the
Assistant Charity Commissioner. He submits that Mr.K.B. Deshukh could
not have signed the appointment letter as a Secretary of the petitioner
no.1. It is submitted that the respondent nos.11 and 12 have raised an
objection specifically by a letter dated 15th July, 2010 when the
advertisement was issued by the petitioners management. He submits that
a separate letter was also addressed to the Education Officer by his clients
raising objection about the advertisement issued by the petitioners. The
respondent nos.11 and 12 also raised an objection vide letter dated 17 th
September, 2010 to the grant of approval of the appointments made by
the petitioners in favour of respondent nos.9 and 10.
58. It is submitted that insofar as the appointment letter issued
to the respondent no.9 (the petitioner in Writ Petition No.2307 of 2012) is
concerned, the said appointment letter is neither signed by the Secretary
of the Managing Committee nor by the Secretary of the School
Committee but is signed by the Vice Chairman. It is submitted that the
respondent nos.11 and 12 were justified in raising an objection before the
Head Master for allowing the respondent nos.9 and 10 to sign the muster
roll. He submits that the change reports of the persons, who had
appointed the respondent nos.9 and 10 were filed only after the
ppn 33 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
appointments of the respondent nos.9 and 10 were made by them and thus
the appointments of the respondent nos.9 and 10 were illegal. He submits
that the respondent nos.11 and 12 also had filed a separate FIR against the
trustees and the Managing Committee Members of the petitioner no.1 and
the statements of the respondent nos.11 and 12 were recorded by the
concerned Police Officer pursuant to such FIR lodged by the respondent
nos.11 and 12.
59. It is submitted by the learned counsel for the respondent
nos.11 and 12 that certain registers of the petitioner no.2 school were
illegally taken away by the petitioners management which registers used
to be signed by the employees appointed by the respondent nos.11 and
12. He submits that since the Education Officer had stopped grant in aid
to the petitioner no.2 school in respect of the appointments made by the
respondent nos.11 and 12, the respondent nos.4 to 8 had filed a Writ
Petition in this Court (5758 of 2013). He submits that pursuant to an ad-
interim order passed by this Court in the said writ petition, the salary to
the respondent nos.4 to 8 were disbursed after getting grant in aid from
the Education Department. He submits that the Writ Petition No.5758 of
2013 was withdrawn by the respondent nos.4 to 8 in view of the
subsequent order passed by the Education Officer.
60. Learned counsel for the respondent nos.11 and 12 invited my
attention to one of the report of the Education Officer and submits that
the said report would also indicate that the respondent nos.4 to 8 were
present in the school but were not allowed to work or to sign the muster
roll by the petitioners management. He submits that since the change
ppn 34 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
report filed by the respondent nos.11 and 12 was pending before the
Assistant Charity Commissioner, the defacto trustees were entitled to run
the school.
61. In support of his submission that prior permission of the
Education Officer was mandatory only if an advertisement was required
to be issued for the recruitment in the post reserved for the reserved
category, he placed reliance on Rule 9(8) of the MEPS Rules, 1981. He
submits that the requirement of permission of the Education Officer under
section 5(1) of the MEPS Act, 1977 is not mandatory but is directory. He
submits that there was no grievance made by the Education Officer even
after five years of the appointments made by the respondent nos.11 and
12 that though they were surplus employees, they were to be absorbed by
the petitioner no.2 school, were not absorbed and on that ground the
recruitment made by the respondent nos.11 and 12 were not valid. He
submits that in any event the respondent nos.11 and 12 had applied for
permission but the same was not granted for quite some time. He submits
that the respondent nos.11 and 12 thus had followed the entire procedure
prescribed under the provisions of the MEPS Act, 1977 and MEPS Rules,
1981.
62. Mr.Mihir Desai, learned senior counsel appearing for the
respondent nos.4 and 8 in Writ Petition No.4470 of 2015 and for the
respondent no.8 in Writ Petition Nos.2307 of 2012 and 2308 of 2012
respectively submits that the respondent no.9 ( the petitioner in Writ
Petition No.2307 of 2012) was appointed as English Teacher which
appointment was to corresponding to the appointment of the respondent
ppn 35 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
no.5 in Writ Petition No.2307 of 2012. The appointment of the
respondent no.10 was made as a Marathi Teacher which appointment was
to corresponding to the appointment of the respondent no.6 in Writ
Petition No.2308 of 2012, who was also appointed as a Marathi Teacher.
He submits that insofar as respondent nos.4, 7 and 8 are concerned, there
was no inter-se competition between them and the respondent nos.9 and
10. The respondent no.4 was appointed as a Mathematics Teacher,
whereas respondent nos.7 and 8 as Junior Clerk and Peon in the petitioner
no.2 school respectively. He submits that the father of the respondent no.8
was working as a Peon in the same school and upon his demise, the
respondent no.8 was appointed on compassionate ground.
63. It is submitted by the learned senior counsel that during the
period between 2008 and 2010, both the groups claiming to be part of the
management were working together. The dispute inter-se in the rival
group started in 2010. When the respondent nos.4 to 8 were appointed,
the respondent nos.11 and 12 were controlling the management and
thereafter till 30th November, 2013.
64. It is submitted by the learned senior counsel that it was not
the case of the respondent nos.9 and 10 either in the writ petition or in the
appeal filed before the School Tribunal nor in the civil application filed
by them that they were working all through out in the petitioner no.2
school.
65. Learned senior counsel invited my attention to the
advertisement issued by the petitioners management on 16th January, 2010
ppn 36 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
which was the subject matter of Writ Petition No.2307 of 2012 and would
submit that though the advertisement was issued on 16 th January, 2010,
interviews were called by the petitioners on 21st January, 2010 i.e. before
expiry of eight days required under condition no.6 of the permission
granted by the Education Officer on 12th September, 2010. He submits
that minimum eight days notice for interview was required with a view to
get eligible and suitable candidates. He submits that in this case, the
petitioners management had only given five days notice for interview
which was contrary to condition no.6 of the permission granted by the
Education Officer on 12th September, 2010. He submits that the
appointments of the respondent nos.9 and 10 were not made by the
School Committee.
66. Learned senior counsel for the respondent nos.4 to 8 submits
that the petitioner in Writ Petition Nos.2307 of 2012 and 2308 of 2012
had not challenged the order passed by the Education Officer refusing to
grant approval to their appointments but had challenged only the oral
termination of their services before the School Tribunal. It is submitted
that even if the School Tribunal would have come to the conclusion that
the termination of the respondent nos.9 and 10 was illegal, the School
Tribunal was not bound to exercise its power to grant reinstatement to
those teachers. He submits that since his clients have been working in the
petitioner no.2 school for last several years, their appointments cannot be
set aside.
67. Insofar as the submission of the petitioners that the
respondent nos.11 and 12 had not obtained prior permission of the
ppn 37 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
Education Officer before issuing any advertisement is concerned, it is
submitted by the learned senior counsel that the sanctioned strength was
already decided by the Government in the petitioner no.2 school. He
submits that it was not the case of the Education Officer before the
School Tribunal that there were surplus employees available but were not
absorbed by the respondent nos.11 and 12 and appointed respondent
nos.4 to 8 in violation of the mandatory procedure. He submits that even
if prior approval of the Education Officer was not obtained by the
respondent nos.11 and 23 that cannot be a ground of termination of the
services of respondent nos.4 to 8.
68. It is submitted that the condition of obtaining prior
permission from the Education Officer was for the purpose of getting
grant in aid from the Education Department to the school and cannot
affect the validity of the valid appointments made by the management.
Learned senior counsel placed reliance on the judgment of this Court in
case of Gopal & Ors. vs. State of Maharashtra & Ors, 2014(2) BCR 807
and in particular paragraphs 5, 16 and 17 in support of his aforesaid
submission.
69. It is submitted by the learned senior counsel for the
respondent nos.4 to 8 that the respondent nos.4 to 8 were appointed by
the respondent nos.11 and 12 representing the petitioner no.1 on 14 th
June, 2011, 20th August, 2011, 24th July, 2011, 1st July, 2012 and 26th
September, 2011 respectively. The Education Officer has granted
approval to the appointments of the respondent nos.4 to 6 on 15 th
September, 2012, to the appointment of respondent no.8 on 15 th
ppn 38 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
September, 2012 and to the appointment of respondent no.7 on 15 th
October, 2012. The petitioners management had made a complaint to the
Education Officer on 24th October, 2011 not to give approval to the
appointments of the respondent nos.4 to 8. He submits that though the
complaint was made on 26th February, 2013 to the Education Officer by
the petitioners, there was no complaint to the effect that the respondent
nos.4 to 8 were not working in the petitioner no.2 school. He submits that
the Education Officer rightly passed an order dated 8 th March, 2013
refusing to re-consider the earlier order passed by his pre-decessor. It is
submitted that the new management of the petitioners had changed the
muster roll deliberately.
70. Learned senior counsel placed reliance on the visit report of
the officer in the Education Department dated 8 th August, 2014 in support
of his submission that though the respondent nos.4 to 8 were present in
the school but were not allowed to work or to sign the muster roll. He
submits that when the respondent nos.4 to 8 were appointed, the
respondent nos.11 and 12 were in-charge of the management and his
clients cannot suffer merely because the change report submitted by the
respondent nos.11 and 12 was not accepted by the Assistant Charity
Commissioner. He submits that the order by the Assistant Charity
Commissioner rejecting the change report submitted by the respondent
nos.11 and 12 has been passed much after the appointments of the
respondent nos.4 to 8 and has no consequence. He submits that till 30 th
November, 2013, the respondent nos.4 to 8 were allowed to sign the
muster and to discharge the duties and thereafter were stopped by the
petitioners management.
ppn 39 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
71. Mr.Bandiwadekar, learned counsel appearing for the
respondent nos.9 and 10 in Writ Petition No.4470 of 2015 and for the
petitioners in Writ Petition Nos.2307 of 2012 and 2308 of 2012 submits
that when the advertisement was issued by the petitioners management in
response to which his clients were appointed and when the resolution was
passed by the petitioners management proposing to appoint his clients,
there was no dispute in the management of the petitioner no.1. The
selection process was started by consent of all the trustees. My attention
is also invited to the resolution passed by the School Committee and the
Managing Committee and also to the letter of appointments issued by the
petitioners management in favour of his clients. He submits that when the
resolution dated 14th January, 2010 was passed by the petitioners, no
objection of any nature whatsoever had been raised by the respondent
nos.11 and 12. He submits that as on 14th June, 2010, there was no dispute
between the petitioners management and the respondent nos.11 and 12.
He submits that the submission of respondent nos.11 and 12 that the
petitioners in Writ Petition Nos.2307 of 2012 and 2308 of 2012 were
never appointed in the petitioner no.2 school before the School Tribunal
was factually incorrect and without any basis.
72. Insofar as the submission of the learned counsel for the
respondent nos.4 to 8 and the respondent nos.11 and 12 that prior
permission of the Education officer was not required for issuing any
advertisement for the recruitment of the candidates from the open
category is concerned,it is submitted that proviso to section 5 of the
MEPS Act, 1977 would be relevant. He submits that it is the case of the
respondent nos.11 and 12 themselves that they had applied for permission
ppn 40 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
to the Education Officer, the permission was not granted for quite some
time and thus they proceeded with issuance of an advertisement. He
submits that prior permission of the Education Officer before issuing such
advertisement is mandatory and not directory. Learned counsel for the
petitioners in Writ Petition No.2307 of 2012 and 2308 of 2012
distinguished the judgment of this Court in case of Gopal & Ors. vs.
State of Maharashtra (supra). He placed reliance upon paragraph 16 of
the said judgment and would submit that the said judgment is contrary to
several other judgments of this Court and is thus per-incuriam. Learned
counsel placed reliance on the judgment of the Full Bench of this Court in
case of Tanaji Madhukar Barbade vs. State of Maharashtra & Ors.,
2010(6) Mh.L.J. 901 and in particular paragraphs 16 to 19 and would
submit that prior permission of the Education Officer before issuing an
advertisement for recruitment in case of open category is mandatory and
not directory.
73. Mr.Bandiwadekar also placed reliance on the judgment
delivered by the Division Bench of this Court in case of Priyadarshini
Education Trust & Ors. vs. Ratis (Rafia) Bano Abdul Rasheed & Ors.,
2007(6) Bom.C.R. 79 and in particular paragraph 11 in support of his
submission that the Division Bench of this Court has rejected the
contention of the management that there was no necessity to issue an
advertisement for the purpose of filling up the vacancies of open
category.
74. Insofar as the appointment of respondent no.7 who was
promoted as a Clerk from the post of Laboratory Assistant is concerned, it
ppn 41 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
is submitted by the learned counsel for the petitioners in Writ Petition
Nos.2307 of 2012 and 2308 of 2012, that no such preference could be
given to the Laboratory Assistant for the purpose of granting promotion
as a Clerk. He submits that even the said appointment made by the
respondent nos.11 and 12 is thus illegal.
75. Insofar as the submission of learned senior counsel for the
respondent nos.4 to 8 that the advertisement issued by the petitioners
management without giving eight days clear notice for interview is
contrary to the permission granted by the Education Officer is concerned,
it is submitted that this objection of the respondent nos.4 to 8 clearly
indicates that there is no dispute that prior permission of the Education
Officer for issuance of an advertisement for appointing the candidates
from open category was mandatory. He submits that the Education
Officer has not refused to approve the appointments of the petitioners in
Writ Petition No.2307 of 2012 and 2308 of 2012 on the ground that the
advertisement issued by the management was in violation of condition
no.8 of the permission granted by the Education Officer.
76. It is submitted that there is no such eight days notice
prescribed under any of the provisions of the MEPS Act, 1977 and MEPS
Rules, 1981. He submits that such condition imposed by the Education
Officer in any event is directory and not mandatory. He submits that the
petitioners management has in any event made substantial compliance of
the terms and conditions imposed by the Education Officer. It is
submitted that no candidate who applied in response to such
advertisement made any grievance that he had lost an opportunity to
ppn 42 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
apply for the said post in response to the said advertisement because of
shorter period mentioned in the said advertisement. No such arguments
were advanced by any of the parties before the School Tribunal.
77. It is submitted by the learned counsel that if according to the
respondent nos.4 to 8, they were not allowed to work or sign the muster
roll by the petitioner management for some period, it amounted to oral
termination which admittedly has not been impugned by the respondent
nos.4 to 8 by filing appeal before the School Tribunal under section 9 of
the MEPS Act, 1977.
78. Insofar as the submission of the learned senior counsel for
the respondent nos.4 to 8 that even if the School Tribunal came to the
conclusion that the termination of the petitioners in Writ Petition
Nos.2307 of 2012 and 2308 of 2012 was illegal, the reinstatement of
such employees would not be as a matter of course is concerned, it is
submitted by Mr.Bandiwadekar, learned counsel for the petitioners in
Writ Petition Nos.2307 of 2012 and 2308 of 2012 that it is at the
discretion of the School Tribunal to pass appropriate order for directing
reinstatement and for other reliefs depending upon the facts of each case.
He submits that his clients have made out a case for reinstatement with
back wages with continuity of service.
79. Mr.Bandiwadekar, learned counsel for the petitioners in Writ
Petition Nos.2307 of 2012 and 2308 of 2012 invited my attention to
section 4(6) of the MEPS Act, 1977 and would submit that the
management could not have terminated the services of the petitioners
ppn 43 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
except in accordance with the provisions of the MEPS Act, 1977 and
MEPS Rules, 1981 made in that behalf. Learned counsel also placed
reliance on Rules 36 and 37 of the MEPS Rules, 1981 and it is submitted
that the services of the employees could be terminated only in accordance
with those provisions after conducting an enquiry as contemplated
therein. The petitioners management has not followed any such
provisions of law while terminating the services of his clients.
80. Mr.Bandiwadekar learned counsel also placed reliance on
the judgment of this Court in case of Jaimala Ramteke vs. School
Trustees, 2009(5) Mah.L.J. 333 and in particular paragraphs 22, 24, 25
and 27 in support of his submission that merely because the Education
Officer had granted approval to the appointments of the respondent nos.4
to 8, their illegal appointments cannot be validated.
81. Mr.Bhavake, learned counsel for the petitioners management
in rejoinder submits that the respondent no.7 could not have been
promoted by the respondent nos.11 and 12 to the post of Clerk from
Laboratory Assistant and the said promotion could not have been
approved by the Education Officer. He submits that the petitioners
management had made a representation and had requested the Education
Officer not to give approval to the appointments of respondent nos.4 to 8,
the Education Officer however, ignored such request and passed two
contradictory orders. He submits that there was only one muster roll
prepared by the petitioners management of the employees whether they
were approved or not. He submits that the petitioners management has
continued the services of respondent nos.9 and 10 (the petitioners in Writ
ppn 44 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
Petition Nos.2307 of 2012 and 2308 of 2012) till date however, no salary
could be paid to them in view of the grant not disbursed by the Education
Department in respect of their appointments.
82. Learned counsel for the petitioner management placed
reliance on the judgment of this Court in case of Akole Taluka
Education Society vs. State of Maharashtra & Others in Writ Petition
No.3481 of 2015 and other companion matters delivered on 19 th January,
2016 and in particular paragraph 42 and would submit that since the
appointments of the respondent nos.4 to 8 by the respondent Nos.11 and
12 were illegal, they cannot be allowed to retain the financial benefits
obtained in pursuance to the ad-interim order passed by this Court and
thus this Court shall direct the respondent nos.4 to 8 to refund to the State
Government all such financial benefits which they have received by way
of salary etc. obtained under the ad-interim order passed by this Court.
83. Mr.Mihir Desai, learned counsel for the respondent nos.4 to
8 made an attempt to distinguish the judgment of this Court in case of
Tanaji Madhukar Barbade (supra) on the ground that any observations
made by the Full Bench in the said judgment which is relied upon by the
petitioners other than on the specific issues which were referred to the
Full Bench as set out in paragraph 1 of the said judgment would not be a
binding precedent but at most would be an obiter dicta. He submits that
section 5 of the MEPS Act, 1977 does not refer to any prior permission.
He submits that the respondent Nos.11 and 12 had already sent an
intimation to the Education Officer on 5 th February, 2011 along with
proforma advertisement and issued an advertisement subsequently on 18 th
ppn 45 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
May, 2011. The Education Officer had enough time to raise any objection
upon such advertisement. He submits that there was thus compliance of
requirement, if any, under section 5 by the respondent Nos.11 and 12 in
issuing the advertisement pursuant to which the respondent nos.4 to 8
were appointed.
84. Insofar as the submission of Mr.Bandiwadekar and
Mr.Bhavake that the respondent nos.4 to 8 should be directed to refund
the amount of salary and other benefits recovered pursuant to an ad-
interim order passed by this Court in the writ petition filed by them is
concerned, it is submitted that no such directions can be issued by this
Court for refund of amounts of salary recovered by his clients on the
ground that there is no such prayer in any of the writ petitions either filed
the management or by the respondent nos.9 and 10 i.e. Writ Petition
Nos.4470 of 2015,2307 of 2012 and 2309 of 2012 respectively.
85. Mr.Mihir Desai, learned senior counsel appearing for the
respondent nos.4 to 8 submits that if this Court comes to the conclusion
that the order passed by the Assistant Charity Commissioner rejecting the
change report submitted by the respondent nos.11 and 12 and accepting
the change report submitted by the present management will have to be
considered and/or will have any bearing on the appointments of the
petitioners in Writ Petition Nos.2307 of 2012 and 2308 of 2012 and on
the appointments of the respondent nos.3 to 4, this Court can remand the
matter to the School Tribunal and/or to the Education Officer for
reconsideration of the entire evidence, including the orders passed by the
Assistant Charity Commissioner by keeping all the contentions of the
ppn 46 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
parties open. Learned counsel appearing for the petitioners in Writ
Petitioner No.2307 of 2012 and 2308 of 2012 did not agree to this
suggestion made by Mr.Mihir Desai, learned senior counsel appearing for
the respondent nos.4 to 8.
86. There is no dispute that the appointments of the respondent
nos.9 and 10 were made by the petitioner management. When the
appointments of the respondent nos.9 and 10 were made, the respondent
nos.11 and 2 were also part of the management of the petitioner no.1.
When the petitioners issued an advertisement on 16 th January, 2010 and
14th July, 2010 for the recruitments to the posts of Shikshan Sevaks from
open category, the resolution passed by the petitioner no.1 management,
respondent nos.11 and 12 who were part of management of the petitioner
no.1 did not raise any objection.
87. A perusal of the record further indicates that the petitioner
no.1 management had obtained prior approval of the Education Officer
before issuing an advertisement in the daily news paper "Lokmat", for
filling up the posts of Shikshan Sevaks from open category in terms of
section 5 of the MEPS Act. Pursuant to the said advertisements issued by
the petitioners, several persons including the respondent nos.9 and 10
had applied for the said posts of Shikshan Sevaks. There were clear
permanent vacancies in respect of the said two posts of Shikshan Sevaks
when the advertisements were issued by the petitioners for recruitment of
the suitable candidates in open category. There was no pending
management dispute when the respondent nos.9 and 10 were appointed
by the petitioners.
ppn 47 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
88. A perusal of the record further indicates that the School
Committee of the petitioner no.1 had passed a resolution on 22 nd May,
2010 approving the appointments of the respondent nos.9 and 10 to the
posts of Shikshan Sevaks. The petitioner no.1 management also passed a
separate resolution on 23rd September, 2010 approving the appointments
of the respondent nos.9 and 10 to the said posts of the Shikshan Sevaks.
The appointment letters were thereafter issued in favour of the
respondent nos.9 and 10 for a period of three years. It is not in dispute
that when the appointments of the respondent nos.9 and 10 were made by
the petitioner no.1, the said appointments were within the sanctioned
strength.
89. A perusal of the record further indicates that the petitioner
management had thereafter applied for approval for those appointments
made by the petitioner management to the Education Officer and had
filed several documents which were required to be filed for obtaining
such approval.
90. A perusal of the record indicates that the Education Officer
had imposed various conditions before issuance of the advertisements by
the petitioner management for recruitment on the said posts of Shikshan
Sevaks in open category. A perusal of the order dated 30th September,
2010 passed by the Education Officer on the said proposal of the
petitioner management for approval of the appointments of the
respondent nos.9 and 10 indicates that the Education Officer has rejected
the said proposal on the ground that the latest PTR extract was not
annexed and there was alleged pending management dispute. Since the
ppn 48 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
respondent nos.11 and 12 were already part of the same management,
which had appointed the respondent nos.9 and 10, there was no dispute
in the management at all.
91. A perusal of the record further indicates that the respondent
nos.11 and 12 in collusion with the In-charge Headmaster Mr.V.T. Jadhav
had threatened the respondent nos.9 and 10 not to sign the muster roll.
The respondent nos.9 and 10 had thus made a complaint on 24 th June,
2010 to the Education Officer. The Education Officer however, neither
took any action on the said compliant made by the respondent nos.9 and
10 nor gave any response to the said complaint. It is thus clear beyond
reasonable doubt that insofar as the appointments of the respondent nos.9
and 10 are concerned, the petitioner management had already obtained
prior approval of the Education Officer as contemplated under section
5(1) of the MEPS Act before issuance of advertisement and after
following due procedure had appointed the respondent nos.9 and 10 on
the clear permanent vacancies on the posts of Shikshan Sevaks in open
category.
92. The petitioner management thereafter had filed change
reports under section 22 of the Maharashtra Public Trusts Act with the
Assistant Charity Commissioner reporting changes made in the
management of the petitioner no.1 i.e. change report nos.492 of 2010, 719
of 2010 and 720 of 2010. Insofar as the respondent nos.11 and 12 are
concerned, they also filed a separate change report bearing No.566 of
2010 notifying the alleged changes in the petitioner no.1 thereby making
purported appointments of the respondent nos.11 and 12.
ppn 49 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
93. It is not in dispute that by an order dated 22 nd November,
2013, passed by the Assistant Charity Commissioner, it has been held that
the changes reported in application no.566 of 2010 filed by the
respondent nos.11 and 12 were illegal and invalid. It is held that those
respondent had failed to prove the legality and validity of the change
report filed by them, whereas the petitioner management had succeeded
in proving the legality and validity of the changes mentioned in change
report nos.492 of 2010, 710 of 2010 and 720 of 2010. It is held that those
three change reports filed by the petitioner no.1 management being legal
and valid, the petitioner management had been validly appointed.
94. It is not in dispute that though the respondent nos.11 and 12
have impugned the said order passed by the Assistant Charity
Commissioner dated 22nd November, 2013, the said order has not been
stayed by the Appellate Authority till date. In the said order passed by the
Assistant Charity Commissioner he has come to the conclusion that it had
come in the evidence that Mr.Tanaji Patil, Dnayandeo Zambare and Clerk
Jayant Patil had withdrawn Rs.4.00 lacs from the trust fund and
accordingly he directed an enquiry into the irregularity and contravention
under the provisions of the Maharashtra Public Trusts Act so as to have
further action against the errant trustees. It is thus clear beyond
reasonable doubt that respondent nos.11 and 12 who had appointed the
respondent nos.4 to 8 on various posts, themselves were not validly
appointed trusteed and thus could not have made any such appointments
on behalf of the petitioner no.1 trust.
95. Insofar as the order passed by the Education Officer
refusing to grant approval to the appointments of the respondent nos.9
ppn 50 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
and 10 on the ground of alleged pending dispute in the management is
concerned, it is held by the Division Bench of this Court in case of
Dr.Ishrat Ullah Khan (supra) that the Education Officer while
considering the issue of approval is not required to go into the dispute
inter-se between the management and he has only to see whether a person
functioning has been appointed in accordance with law or not. It is held
that the Education Officer cannot go into the dispute whether the
appointment was made by the competent authority or legally recognized
body, which issue can be looked into by the Joint Charity Commissioner
or Assistant Charity Commissioner under the Bombay Public Trusts Act.
The Division Bench of this Court in the said judgment also considered
the similar facts where the Education Officer had refused to grant
approval to the appointment of a Headmaster on the ground that there was
dispute inter-se in the management.
96. In my view, the order passed by the Education Officer
refusing to grant approval to the appointments of the respondent nos.9
and 10 on the ground that there was management dispute is totally
contrary to the law laid down by this Court in case of Dr. Dr.Ishrat Ullah
Khan (supra). In my view, the Education Officer was not required to
consider whether the appointments of the respondent nos.9 and 10 or any
other employee of the petitioner no.1 was duly appointed by the
competent authority or not or by the proper management or not and is not
required to look into inter-se dispute, if any, between the management
while granting approval to the appointment of any employee. If there is
any inter-se dispute between the management, the authority under the
provisions of the Maharashtra Public Trusts Act can look into those
ppn 51 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
allegations while considering the change reports field under section 22 of
the said Act or under various other provisions of the said Act.
97. Be that as it may, the Education Officer however, applied
different yard-stick while granting approval to the respondent nos.4 to 8
and totally over looked the fact that on the date of granting such approval,
the change reports filed by the rival groups were pending before the
Assistant Charity Commissioner in respect of the management of the
petitioner no.1. In my view, the Education Officer could not have applied
different yard-stick while considering two sets of approval, one against
the respondent nos.9 and 10 and another in favour of the respondent
nos.4 to 8.
98. This Court in case of Chembur Trombay Education Society
& Ors. (supra) has held that fortiori, a resolution of the general body of
the society is sufficient to ignite the change of amendment in the
constitution as well as of electing new general body for administering the
affairs of the society. The fact that the change report was pending
consideration before the Charity Commissioner, would be of no avail. It
is held that for the management or the change brought already in
accordance with law would come into effect from the date of the
resolution of the society to bring about such a change. This Court after
interpreting section 22 of the Maharashtra Public Trusts Act has held that
under the said provisions where any change occurs in any of the entries
recorded in the register kept under section 17, the trustee shall, within 90
days from the date of the occurrence of such change, report such change
to the Deputy or Assistant Charity Commissioner, as the case may be. It is
ppn 52 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
held that when the act does not require that registration of any change is a
condition precedent to come into effect, the amendment to the
constitution as well as subsequent elections of the President and the
members of the Governing Council therefore, came into effect from the
date of the respective resolutions of the general body. It is held that the
enquiry postulated under section 22 is only to ascertain the factum as to
whether the change has occurred or not . If the competent authority is
satisfied that the change has not occurred in accordance with law, only
then that change will have to be undone and status quo ante will have to
be restored.
99. In my view, any amendment or changes in the management
brought about in accordance with law would come into effect from the
date of resolution of the trust and not from the date of the order passed
by the Assistant Charity Commissioner accepting the changes reported
in the change report filed by the trust. It is not in dispute that when the
respondent nos.9 and 10 were appointed by the petitioner no.1-
management, the resolution was already passed by the petitioner no.1-
management appointing trustees and office bearers of the petitioner
no.1 much prior thereto.
100. In my view, the order passed by the Assistant Charity
Commissioner thus accepting the change reports filed by the petitioner
no.1-management will have retrospective effect from the date of passing
of the resolution by the petitioner no.1-management. Merely because
the change reports were not filed on the date of appointments of the
respondent nos.9 and 10 which were made by the petitioner no.1-
ppn 53 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
management, the same would not invalidate the appointments legally
made by passing an appropriate resolution by the management. In my
view, approval granted by the Assistant Charity Commissioner to the
change reports filed by the petitioner no.1-management would relate
back to the date of resolution passed by the petitioner no.1-management
appointing trustees and office bearers by the petitioner no.1-management.
101. Be that as it may, the fact remains that the changes
reported by the petitioner no.1-management in respect of the
appointments of trustees and office bearers made by the petitioner no.1
who had appointed the respondent nos.9 and 10 have been accepted by
the Assistant Charity Commissioner by an order dated 22nd February
2013 which order has admittedly not been stayed by the higher authority
till date. By the said order, the Assistant Charity Commissioner has
admittedly rejected the change report submitted by the respondent nos.11
and 12 and holding their appointments illegal. In my view, since the
appointments of the respondent nos.11 and 12 have been held illegal by
the Assistant Charity Commissioner which order has not been stayed by
any higher authority, appointments of the respondent nos.4 to 8 made
by such illegally appointed alleged office bearers of the petitioner no.1
i.e. the respondent nos.9 and 10, are also illegal on that ground also.
102. The next question that arises for consideration of this Court
is whether a prior permission of the Education officer before issuance
of any advertisement for making recruitment to the posts in open
category was mandatory or directory and if it is mandatory, whether the
petitioner no.1-management while appointing the respondent nos.9 and
ppn 54 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
10 and the respondent nos.11 and 12 while appointing the respondent
nos.4 to 8 have followed such mandatory procedure or not.
103. A perusal of the record indicates that the petitioner no.1-
management had obtained prior permission of the Education Officer
before issuance of advertisement for the posts of Shikshan Sevaks in
open category. There is no dispute that the petitioner no.1 had issued
such advertisement before recruiting the respondent nos.9 and 10 to the
posts of Shikshan Sevaks. The prior permission granted by the Education
Officer was placed on record by the parties.
104. In so far as the appointments of the respondent nos.4 to 8
by the respondent nos.11 and 12 are concerned, no such prior permission
was obtained by the respondent nos.11 and 12 from the Education
Officer before issuing any such advertisement for the posts on which
the respondent nos.4 to 8 were appointed by the respondent nos.11 and
12. During the course of the arguments in the present proceedings,
though initially it was contended by the learned counsel for the
respondent nos.11 and 12 and learned senior counsel for the respondent
nos.4 to 8 that no such prior permission from the Education Officer
before issuing an advertisement was mandatory but was a directory,
learned counsel for the respondent nos.11 and 12 and for the respondent
nos.4 to 8 subsequently admitted that the respondent nos.11 and 12 had
in fact applied for such permission from the Education Officer, but was
not granted for a quite some time. It is thus clear that even according
to the respondent nos.11 and 12 and the respondent nos.4 to 8, such
prior permission of the Education Officer before issuance of an
ppn 55 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
advertisement for making any recruitment to the said posts of Shikshan
Sevaks in open category was required.
105. In my view, merely because the Education Officer did not
grant any approval for some time, the respondent nos.11 and 12 could
not have issued any such advertisement without obtaining any such prior
permission from the Education Officer.
106. Clause 4 of the Government Resolution dated 6th February
2012 which was placed on record and which is admittedly applicable to
the parties including the Education Officer prescribed that if prior
permission from the Education Officer was not obtained before
publishing an advertisement, the Education Officer cannot grant any
approval to the appointments made by the management. Learned AGP
appearing for the Education Officer admitted before this Court that no
such prior permission was obtained by the respondent nos.11 and 12
before issuing any advertisement for the posts on which the respondent
nos.4 to 8 were appointed by them. In my view, the approval thus
granted by the Education Officer to the appointments of the respondent
nos.4 to 8 without the respondent nos.11 and 12 following the mandatory
procedure of obtaining prior permission from the Education Officer is
illegal and contrary to the Government Resolution dated 6th February
2012 which had already come into effect when the approval was granted
by the Education Officer. The said resolution was in conformity with
the mandatory requirement of obtaining such prior permission under
Section 5(1) of the MEPS Act.
ppn 56 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
107. Full Bench of this Court in the case of Tanaji Madhukar
Barbade (supra) after considering the Section 5 of the MEPS Act has
held that the proviso to the said section shows that except those posts
which were permitted to be filled in by promotion, obviously by
the Act or the Rules before filling in the posts, intimation has to be
given about the vacancy by every school to the Education Department,
so that the names of candidates from the surplus cell can be intimated
to the school for absorption. It is held that the said proviso was to be
read along with the provisions of Rule 26 which relates to retrenchment
on account of abolition of post. It is held that the employees from
various private schools whose services were retrenched for various
reasons get their names entered into surplus cell maintained by the
Education Department and as and when vacancies occur in any school,
those persons whose names are included in the surplus cell get an
opportunity of being absorbed against those vacancies. It is held that the
management is permitted to fill in the vacancy by promotion, though
there is no specific provision made in the Act or the Rules for filling in
those vacancies by promotion, then it will frustrate a well thought out
scheme which is included in the Act or the Rules for absorption of
surplus staff from.
108. Full Bench of this Court in the above referred judgment has
held that Rule 9(3) of the MEPS Rules shows that this Rule gives a
right to every eligible candidate to apply for any vacancy either for
teaching or non-teaching post in a private school. In order to make this
right meaningful and effective, a corresponding duty will have to be read
in the Management to give wide publicity to the fact that there is a
ppn 57 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
vacancy in that school, so that every candidate who is eligible to apply
can come to know of the existence of the vacancy and apply for the post.
This Court also considered Article 14 of the Constitution of India in the
said judgment and has held that many private schools also receive
grant-in-aid from the State Government and therefore salaries of the
teaching and non-teaching staff in the Schools are paid from the public
funds, there would be an obligation on the Management to advertise the
vacancy. Full Bench of this Court in the said judgment after interpreting
Rule 9(8) of the MEPS Rules, held that so far as reserved vacancies are
concerned, thus, the Management is not only obliged to issue
advertisement at least in one newspaper, but has also to notify vacancies
to various agencies and if the management is permitted to fill in the post
without advertisement, though there is a clear provision made in the Act
or the Rules, it would be contrary to the scheme of the Act and the Rules.
109. Division Bench of this Court in the case of Priyadarshini
Education Trust (supra) has specifically rejected the contention of one
of the parties to the said matter that under Rule 9 (3) of the MEPS
Rules, there is no provision making it mandatory to issue an
advertisement for the purpose of filling up vacancies of open category.
This Court held that if the argument was accepted that compliance of
Rule 9(3) was not necessary in case of open category candidates, it
would be tantamount to accepting that rule 9 is drafted in such a manner
as to promote nepotism, so far as appointments of open category
candidates to teaching and non-teaching posts in private schools are
concerned. It is held that if such argument is accepted, Rule 9 will have
to be to be read in a fashion, where reserved category candidates are
required to enter the service by competing amongst themselves, but an
ppn 58 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
open category candidate may be in a position to seek an appointment
without competing.
110. In my view, the submission of the learned counsel for the
respondent nos.11 and 12 and of the learned senior counsel for the
respondent nos.4 and 8 that prior permission of the Education Officer
before issuance of an advertisement for recruitment for the posts in
open category is not mandatory and is directory and/or such permission
was not at all required in so far as appointment in open category is
concerned is totally untenable and contrary to the law laid down by the
Full Bench of this Court in the case of Tanaji Madhukar Barbade
(supra) and by the Division Bench of this Court in the case of
Priyadarshini Education Trust (supra).
111. In my view, prior permission of the Education Officer before
issuing an advertisement for making recruitment to any post either for
open category or reserved category is mandatory and not directory.
Such prior permission of the Education Officer before issuance of an
advertisement is also required to be strictly followed in view of the
Government Resolution dated 6th February 2012 which is in conformity
with the provisions of Section 5(1) of MEPS Act. In my view obtaining
prior permission of Education Officer before issuance of an
advertisement made under Section 5(1) of the MEPS Act is not an
empty formality. Admittedly, the respondent nos.11 and 12 had not
acquired any prior permission from the Education Officer before issuing
any advertisement in respect of various posts on which the respondent
nos.4 to 8 were appointed. In my view, the said appointments being in
violation of Section 5(1) of the MEPS Act are thus illegal. The Education
ppn 59 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
Officer could not have granted any approval to the appointments of the
respondent nos.4 to 8 made by the respondent nos.11 and 12 by
overlooking the breach of the mandatory condition of obtaining prior
permission from the Education Officer before issuance of any
advertisement.
112. In so far as the submission of the learned senior counsel for
the respondent nos.4 to 8 and of the learned counsel for the respondent
nos.11 and 12 that even if no prior permission of the Education Officer
under Section 5(1) of the MEPS Act was obtained since there was no
grievance made by the Education Officer even after five years of the
appointments of the respondent nos.4 to 8 made by the respondent
nos.11 and 12 that though they were surplus employees, and were to be
absorbed by the petitioner no.2 school were not absorbed is concerned,
in my view, this submission of the learned counsel is contrary to Section
5(1) of the MEPS Act and the law laid down by the Full Bench of this
Court in the case of Tanaji Madhukar Barbade (supra) and by the
Division Bench of this Court in the case of Priyadarshini Education
Trust (supra).
113. In my view, merely because the Education Officer did not
raise any objection while granting approval to the appointments of the
respondent nos.4 to 8 on the ground that mandatory requirement of
Section 5(1) of the MEPS Act was not followed and has overlooked the
non-compliance of such mandatory provision, such approval granted
by the Education Officer would not validate the illegal appointments
made by the respondent nos.11 and 12. This Court in the case of Jaimala
Bhaurao Ramteke (supra) has held that merely because an employee
ppn 60 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
was continued in the employment by virtue of the interim order of the
School Tribunal, she would not be entitled for compensation if her
appointment is found illegal. It is held that the illegal appointment can
not obtain the stature of legal appointment simply because it is challenged
by the petitioner and not contested by the Education Officer. It is held that
illegality has to be illegality for ever and it can, in no circumstances, be
allowed to be converted into a legality even if some parties do not object,
particularly, in the cases of appointments where prescribed procedure has
to be followed because of some object and rationale behind it.
114.
In my view, though the respondent no.3-Education Officer
had granted approval to the appointments of the respondent nos.4 to 8,
the appointments of the respondent nos.4 to 8 being illegal, such approval
granted by the Education Officer will not validate such illegal
appointment into a legal appointment for any purposes. The judgment
of this Court in the case of Jaimala Bhaurao Ramteke (supra) squarely
applies to the facts of this Case. I am respectfully bound by the said
judgment.
115. In so far as the judgment of this Court in the case of Gopal
& Others Vs. State of Maharashtra & Ors. (supra) relied upon by
Mr.Desai, learned senior counsel for the respondent nos.4 to 8 in support
of his submission that the prior permission from the Education Officer
was not mandatory before issuance of an advertisement is concerned, a
perusal of the said judgment indicates that in the said judgment delivered
by a Single Judge of this Court Section 5(1) of the MEPS Act is wrongly
quoted. Be that as it may, the said judgment contrary to the judgment
of the Full Bench of this Court in the case of Tanaji Madhukar Barbade
ppn 61 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
(supra) and also is contrary to the judgment of the Division Bench of this
Court in the case of Priyadarshini Education Trust (supra).
116. Though both the judgments referred to aforesaid of the Full
Bench and Division Bench respectively were pronounced prior to the date
of delivery of the judgment by the learned Single Judge of this Court, a
perusal of the said judgment indicates that none of the aforesaid
judgments i.e. the judgments of the Full Bench and Division Bench
respectively were not brought to the notice of the learned Single Judge
and thus he took a contrary view in the matter. In my view, the
judgments of the Full Bench and the Division Bench of this Court would
squarely apply to the facts of this case. I am respectfully bound by
these two judgments. In my view, reliance placed by the learned senior
counsel on the judgment of the learned Single Judge of this Court in the
case of Gopal & Others Vs. State of Maharashtra & Ors. (supra) would
not assist the case of the respondent nos.4 to 8 being contrary to the
judgments of the Full Bench and the Division Bench of this Court.
117. A perusal of the record indicates that when the respondent
nos.11 and 12 had issued an advertisement before recruiting the
respondent nos.4 to 8, the respondent nos.11 and 12 had not given the
address of the office of the petitioner nos.1 or 2 but had given personal
address of the respondent no.11. Though the petitioner no.1-management
had raised an objection that issuance of advertisement by the respondent
nos.11 and 12 for recruitment to the said post was illegal and had also
brought this fact to the notice of the Education Officer, the respondent
nos.11 and 12 continued their process of illegal appointments of the
respondent nos.4 to 8 inspite of such objection and Education Officer
ppn 62 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
granted such approval to their appointments illegally made by totally
ignoring and overlooking the objection raised by the petitioner no.1-
management.
118. In so far as the order passed by the Education Officer
rejecting the approval to the appointments of the respondent nos.9 and
10 on the ground that the management had not filed latest P.T.R.
extract is concerned, the fact remains that the respondent nos.11 and 12
also had not filed any P.T.R. extract. The petitioner no.1-management
had already passed an appropriate resolution on 23 rd September 2010
and School Committee of the petitioner no.1-management on 22 nd May
2010 for appointing the respondent nos.9 and 10 to the said posts of the
Shikshan Sevaks. Even if the P.T. R. extract was not filed by the
respondent nos.9 and 10, the Education Officer, in my view, could not
have rejected the approval to the appointments of the respondent nos.9
and 10 made by the petitioner no.1-management. The Education Officer
was not concerned with the alleged internal dispute between the
management while considering the proposal for approval of the teaching
and non-teaching staff.
119. Be that as it may, the fact remains that even the respondent
nos.11 and 12 had not filed any P.T.R. extract with the Education
Officer while seeking approval to the appointments of the respondent
nos.4 to 8 made by the respondent nos.11 and 12. Learned Education
Officer, however, totally overlooked the said fact and though rejected
the proposal of the petitioner no.1-management for approval of the
respondent nos.9 and 10 on that ground, he approved the proposal of
the respondent nos.4 to 8 made by the respondent nos.11 and 12 without
ppn 63 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
filing such P.T.R. In my view, the respondent nos.11 and 12 through the
Ex-Incharge Head Master Mr.Vitthal Tukaram Jadhav had filed a false
declaration before the Education Officer that there was no dispute
inter se in the management. The impugned order passed by the Education
Officer granting approval to the appointment of the respondent nos.4
to 8 is illegal on this ground also and deserves to be quashed and set
aside.
120. A perusal of the record indicates that it is an undisputed fact
that the respondent nos.11 and 12, even pursuant to the advertisement
issued had initially appointed Mr.Shinde as Shikshan Sevak to one of
such posts. The said Mr.Shinde thereafter resigned. The respondent
nos.11 and 12 did not issue any fresh advertisement for filling up the
said post which was mandatory and illegally appointed the respondent
no.5 as a Shikshan Sevak in his place directly. The respondent nos.11
and 12 also appointed the respondent no.6 to another post of Shikshan
Sevak without issuing fresh advertisement in the place of Mrs.Shubhangi
Prakash Shinde who was appointed pursuant to the advertisement and
had resigned. A perusal of the record further indicates that the
respondent no.7 was promoted to the post of Junior Clerk who was the
then Laboratory Assistant. No such promotion could be made to the
post of Junior Clerk from the post of Laboratory Assistant. The Education
Officer has very casually granted approval without applying provisions
of law and without application of mind. Similarly, the respondent no.8
could not have been appointed as a Peon on the compassionate ground
without following the proper procedure.
ppn 64 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
121. A perusal of the record indicates that when the respondent
nos.5 and 6 were appointed as Shikshan Sevaks from open category,
there was no clear and vacant post available. The respondent nos.9 and
10 were already appointed as Shikshan Sevaks. The respondent nos.11
and 12 through the Ex-Incharge Head Master had threatened the
respondent nos.9 and 10 not to sign the muster roll. The disputes
between the management and the respondent nos.9 and 10 were pending.
The appointments of the respondent nos.5 and 6 were made by the
respondent nos.11 and 12 without there being clear and vacant posts and
they were illegal on this ground also.
122. The petitioner no.1-management had produced the muster
roll before the School Tribunal in support of their submission that the
respondent nos.4 to 8 though were illegally appointed by the respondent
nos.11 and 12, they were not working from the date of their appointments
till the date of their approvals and had illegally drawn salary without
doing any work by obtaining any ad-interim order from this Court in
the writ petition filed by them without impleading the petitioners. After
obtaining the said ad-interim order and disbursal of the salary by the
Education in their favour, the said writ petition was withdrawn by the
respondent nos.4 to 8.
123. In so far as the reliance placed on the inspection report by
the learned senior counsel for the respondent nos.4 to 8 in support of his
submission that though the respondent nos.4 to 8 were reporting their
duties, they were not allowed to work and sign the muster roll is
concerned, no such report relied upon by the respondent nos.4 to 8
ppn 65 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
would support their case. If according to the respondent nos.4 to 8,
they were not allowed to work or sign the muster roll, in my view, the
respondent nos.4 to 8 ought to have challenged such alleged action on
the part of the petitioner no.1-management by impugning the alleged
oral termination of their services by filing an appeal under Section 9
of the MEPS Act which admittedly was not filed by them.
124. I am thus not inclined to accept the submission of the
learned senior counsel for the respondent nos.4 to 8 that though the
respondent nos.4 to 8 were present all throughout on duty, the petitioner
no.1-management had not permitted them to carry out their work or to
sign the muster roll. Be that as it may, since the appointments of the
respondent nos.4 to 8 were illegal, they were not entitled to be paid
any salary by the management or by the Education Officer.
125. In so far as the respondent nos.9 and 10 are concerned, it is
the case of the respondent nos.9 and 10 and also of the petitioner no.1-
management that though approvals in respect of the appointments were
rejected by the Education Officer, they continued to be employed in the
petitioner no.2-school and have been there working all throughout,
however, without payment of salary is concerned, I am inclined to
accept the said statement made by the learned counsel for the
management as well as the respondent nos.9 and 10. Since the
appointments of the respondent nos.9 and 10 were legally and validly
made after compliance of all the provisions of the MEPS Act and the
Rules, the respondent nos.9 and 10 are entitled to be reinstated with
back wages and all consequential benefits. Since the respondent no.3 has
ppn 66 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
illegally rejected the approval to the appointments of the respondent
nos.9 and 10, the order passed by the Education Officer is illegal. The
appeals filed by the respondent nos.9 and 10 thus ought to have been
allowed by the School Tribunal. The impugned orders passed by the
School Tribunal rejecting the appeals filed by the respondent nos.9 and
10 are contrary to the MEPS Act and the Rules and also to the law laid
down by this Court referred to the aforesaid and deserves to be set aside.
126. Division Bench of this Court in the cases of Nilkanth Ajbe
(Supra) and Akole Taluka Education Society (supra) has considered an
issue of recovery of salary wrongly recovered by the employees. This
Court has ordered the employees to refund to the State Government all
the financial benefits which they may have received by way of salary as
their appointments having been found illegal. A perusal of the record
indicates that though the appointments of the respondent nos.4 to 8
were illegally made, they obtained salary from the Education Department
under an ad-interim order passed by this Court and had subsequently
withdrawn the said writ petition. The Education Department has not
issued any grant-in-aid in so far as the respondent nos.9 and 10 are
concerned and as a result thereof, the salaries and other benefits of the
respondent nos.9 and 10 are not released in their favour by the
petitioner no.1-management. Learned AGP has made a statement before
this Court that if any order is passed by this Court directing the
Education Department to take steps for recovering the amount of salary
disbursed to the respondent nos.4 to 8, the said order would be complied
with by the Education Department. In my view, the respondent nos.4 to
8, who have been paid the salary and their appointments being held
ppn 67 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
illegal, are liable to return the salary received by them under those
illegal appointments made by the respondent nos.11 and 12 to the
Education Department.
127. In so far as the submission of the learned senior counsel for
the respondent nos.4 to 8 that since there is no prayer made in any of
the writ petitions, and in the appeals before the School Tribunal, no
such order for refund of the amount of salary against the respondent
nos.4 to 8 can be granted by this Court is concerned, since the issue
involved before this Court in these writ petitions are (i) whether the
appointments of the respondent nos.4 to 8 was illegally made and/or (ii)
whether approval to the appointments of the respondent nos.9 and 10
was wrongly rejected by the Education Officer and/or (iii) whether their
appeals of the respondent nos.9 and 10 were erroneously rejected by the
School Tribunal and (iv) whether the respondent nos.9 and 10 are
entitled to be re-instated with back wages with continuity of service, in
my view, this Court has ample power to consider the submission made
by affected parties i.e. the respondent nos.9 and 10 who were deprived
of their salary though were legally appointed on the clear and vacant
posts of the Shikshan Sevaks and have worked on such posts. In my
view, there is thus no merit in this submission of the learned senior
counsel for the respondent nos.4 to 8. The judgments of the Division
Bench of this Court in the cases of Nilkanth Ajbe (Supra) and Akole
Taluka Education Society (supra) squarely apply to the facts of this
case. I am respectfully bound by the said two judgments.
128. A perusal of the order of termination issued by the
management in so far as the respondent nos.9 and 10 are concerned, it
ppn 68 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
indicates that services of the respondent nos.9 and 10 are terminated
only on the ground that the Education Officer had rejected their
approvals. Full Bench of this Court in the case of St.Ulai High School
and Anr. (supra) has held that the management of an institution seeking
grant-in-aid is responsible to ensure compliance with the requirement
imposed by the State for the disbursal of aid. The rejection of a proposal
by the management for disbursal of grant-in-aid constitutes a lis between
the management and the Government. In the event that the management
fails to comply with the conditions prescribed by Government for the
disbursal of aid which has been sanctioned, Government would be
entitled to take such measures as are open in law. It is held that neither
the Act, nor the Rules mandate the approval of the Education Department
as a condition precedent to a valid order of appointment. The question of
approval relates to the disbursal of financial aid. The denial of approval
cannot, therefore, invalidate an order of appointment. In my view, the
said judgment of the Full Bench is squarely apply to the facts of this
case.
129. Merely because the Education Officer has refused to grant
approval to the respondent nos.9 and 10 made by the petitioner no.1-
management, the said refusal of approval would not be a ground of
termination of services of the respondent nos.9 and 10. There is no
provision either under the MEPS Act or the Rule framed under the said
Act to terminate the service of the employee on the ground that approval
to his appointment was not granted by the Education Officer. In my
view, the termination of the services of the respondent nos.9 and 10 by
the petitioner no.1-management on the ground that the approval was not
granted by the Education Officer is thus illegal and contrary to the
ppn 69 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
provisions of the MEPS Act and the law laid down by this Court in the
case of St.Ulai High School and Anr. (supra) which squarely applies to
the facts of this case.
130. The refusal of approval by the Education Officer is also
contrary to the law laid down by this Court in the case of St.Ulai High
School and Anr. (supra). The termination of services of the respondent
nos.9 and 10 based on such illegal order passed by the Education
Officer is also thus illegal and deserves to be set aside. The impugned
orders passed by the Presiding Officer, School Tribunal dismissing the
appeals filed by the respondent nos.9 and 10 are also contrary to the
principles of law laid down by this Court in the case of St.Ulai High
School and Anr. (supra), contrary to the provisions of the MEPS Act
and the Rules and thus deserve to be set aside of that ground.
131. A perusal of the record further indicates that though the
respondent nos.9 and 10 were appointed on probation for a period of
three years as Shikshan Sevaks, the petitioner no.1-management while
terminating their services had neither given one month's notice nor
had paid any salary in lieu of one month's notice. In my view, payment
of one month's salary or one month's notice before terminating the
services of an employee on probation under the provisions of Sections
5(2) and 5(3) of the MEPS Act is mandatory and not directory. This
Court in the case of Rehana Begum d/o. SK Safdar (supra) after
construing Section 5(3) of the MEPS Act read with Rule 28 (1) of the
MEPS Rules has held that issuance of one month's notice or payment of
salary in lieu of notice was mandatory under Section 5(3) of the MEPS
ppn 70 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
Act and if such mandatory procedure is not followed, the order of
termination passed by the management is invalid and has to be set aside.
132. Division Bench of this Court in the case of Progressive
Education Society Hinghanghat & Ors. (supra) after construing Section
5(3) of the MEPS Act has held that compliance of Section 5(3) of the
MEPS Act is mandatory and if the same is not complied with, termination
becomes illegal. This Court held that offer of salary subsequent to the
issuance of order of termination also cannot amount to compliance of
mandatory requirements of Section 5(3) of the MEPS Act. In my view,
since the respondent nos.9 and 10 were appointed on probation, their
services could not have been terminated without issuing one month's
notice under Section 5(2) read with Section 5(3) of the MEPS Act.
Non-compliance of mandatory requirement while terminating the
services of the respondent nos.9 and 10 under the provisions of Sections
5(2) and 5(3) has thus vitiated, the order of termination of services of the
respondent nos.9 and 10 issued by the respondent nos.11 and 12. In my
view, the judgments of this Court in the cases of Rehana Begum d/o.
SK Safdar (supra) and Progressive Education Society Hinghanghat &
Ors. (supra) squarely apply to the facts of this case. I am respectfully
bound by the said two judgments.
133. Insofar as submission of the learned counsel for respondent
nos. 11 and 12 that the appointment letter dated 23 rd September, 2010 in
favour of respondent nos. 9 and 10 was signed by Mr.K.B.Deshmukh
who could not have signed such appointment letter as a secretary of the
petitioner no.1 is concerned, in my view there is no substance in this
ppn 71 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
submission of the learned counsel for the respondent nos. 11 and 12. No
such objection was ever raised by the respondent nos. 11 and 12 at any
point of time earlier. It is not in dispute that the said appointment letter
was issued after passing of resolution passed by the management of the
petitioner no.1 and also by the school committee for appointing the
respondent nos. 9 and 10.
134. Insofar as submission of the learned counsel for the
respondent nos. 11 and 12 that certain register of the petitioner no.2
school was illegally taken away by the petitioner management is
concerned, there is no merit in this submission of the learned counsel.
The petitioner no.1 management had produced the register before the
school tribunal. No action was taken by the respondent nos.11 and 12 in
respect of such allegations.
135. Insofar as submission of the learned counsel for the
respondent nos. 4 to 8 that it was not the case of the respondent nos. 9
and 10 either in the writ petition or in the appeal filed before the school
tribunal or in the civil application that they were all throughout working
in petitioner no.2 school and thus were entitled to be paid the back wages
is concerned, the record produced by the respondent nos. 9 and 10 and the
petitioner management would indicate that the respondent nos. 9 and 10
have been working all throughout in the petitioner no.2 school. The
petitioner no.1 management has not disputed this position. In my view
there is thus no substance in the submission of the learned counsel for
respondent nos. 4 to 8.
ppn 72 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
136. Insofar as submission of the learned senior counsel for the
respondent nos. 4 to 8 that in the advertisement issued by the petitioner
management, eight days notice for interview was not given which was
alleged to be contrary to the condition imposed by the education officer
before issuance of an advertisement is concerned, in my view there is no
such provision for giving eight days notice either in the MEPS Act or in
the MEPS Rules. It was not the case of the education officer or any of
the candidates who had responded to such advertisement that they were
not able to apply or could not appear for interview for the said post
because of the petitioner management not having given 8 days notice for
the purpose of interview. In my view there was thus substantial
compliance of the condition imposed by the education officer and on that
ground the appointment made by the petitioner management cannot be
faulted at this stage.
137. Insofar as submission of the learned senior counsel for the
respondent nos. 4 to 8 that even if the termination of the respondent nos.
9 and 10 (petitioner in Writ Petition Nos.2307 of 2012 and 2308 of 2012)
is set aside, re-instatement of respondent nos. 9 and 10 is not as a matter
of course is concerned, in my view this court having found that the order
passed by the education officer refusing to grant approval to the
appointment of respondent nos. 9 and 10 and the school tribunal having
rejected their appeal erroneously and contrary to the law laid down by the
Supreme Court and this court and the provisions of the MEPS Act and the
rules, the respondent nos. 9 and 10 have made out a case for
reinstatement with backwages and with continuity of service all
throughout. I am thus not inclined to accept this submission of the
ppn 73 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
learned senior counsel for the respondent nos. 4 to 8. Under section 11 of
the MEPS Act, school tribunal has power to grant various reliefs
including re-instatement with back-wages.
138. In my view Mr.Bandiwadekar, learned counsel for the
respondent nos. 9 and 10 is right in his submission that the petitioner
management could not have terminated the service of the petitioner
except in accordance with the provisions of MEPS Act, 1977 read with
rules and more particularly rules 36 and 37 without conducting an
enquiry as contemplated therein and on this ground also the termination
of the service of respondent nos. 9 and 10 deserves to be set aside.
139. Insofar as submission of the learned senior counsel for the
respondent nos. 4 to 8 that judgment of Full Bench in case of Tanaji
Madhukar Barbade (supra) cannot be relied upon on the ground that the
observations made by the Full Bench in the said judgment that the prior
permission of the education officer under section 5 was necessary before
issuance of any advertisement is not a ratio but at most had to be
construed as a obiter dicta is concerned in my view there is no substance
in this submission of the learned senior counsel. The said view taken by
the Full Bench of this court was based on the issue involved in the said
matter and thus has to be construed as ratio decidendi and not as an obiter
dicta. The view taken by the Full Bench in the said judgment squarely
applies to the facts of this case. I am respectfully bound by the said
judgment.
140. Insofar as suggestion of the leaned senior counsel for the
respondent nos. 4 to 8 that the matter shall be remanded back to the
ppn 74 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
school tribunal or to the education officer for hearing denovo is
concerned, the petitioners in all the three petitions have strongly objected
to this suggestion of the learned senior counsel on the ground that the
matter would be further delayed and the entire matter having been argued
by all the parties at length before this court, the matter shall not be
remanded back to the school tribunal or the education officer as the case
may. There is no dispute that this court has heard all the parties at a great
length on all the issues involved and thus I am not inclined to accept the
suggestion of the learned senior counsel for the respondent nos. 4 to 8 to
remand this matter at this stage to the school tribunal or the education
officer as the case may be which would further delay the matter.
141. In my view the order passed by the school tribunal in the
appeals filed by the respondent nos. 9 and 10 is totally erroneous and
contrary to the principles laid down by the Supreme Court and this court
and also in violation of the provisions of MEPS Act and MEPS Rules and
thus deserves to be set aside. The order passed by the education officer
rejecting the approval to the appointment of respondent nos. 9 and 10 and
granting approval in favour of the respondent nos.4 to 8 being illegal and
contrary to the law deserves to be set aside.
142. I therefore pass the following order :-
(a) Rule is made absolute in Writ Petition No.4470 of 2015 in terms of
prayer clause (b). The impugned order dated 23 rd February, 2015
passed by the Education Officer (Secondary) is set aside. The
Education Officer (Secondary) is directed to cancel/withdraw his
ppn 75 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
orders dated 15th September, 2012 and 15th October, 2012 granting
individual approval to the appointment of respondent nos. 4 to 8;
(b) Respondent nos.4 to 8 are directed to refund to the State
Government all the financial benefits like salary etc. obtained by
them based upon the ad-interim order passed by this court dated 7 th
August, 2013 in Writ Petition No.5758 of 2013 and on the basis of
the orders dated 15th September, 2012 and 15th October, 2012 passed
by the Education Officer granting individual approval to the
appointment of respondent nos. 4 to 8 within eight weeks from
today;
(c) Rule is made absolute in terms of prayer clause (a) in Writ Petition
No.2307 of 2012. The impugned order dated 17th January, 2012
passed by the School Tribunal, Kolhapur in Appeal No.53 of 2011 is
set aside. Appeal No.53 of 2011 filed by the petitioner before the
School Tribunal, Kolhapur is allowed in terms of prayer clauses (2)
and (3). The respondent nos. 2 to 6 are directed to reinstate the
petitioner with full back-wages and with continuity of service within
four weeks from today;
(d) Rule is made absolute in Writ Petition No.2308 of 2012 in terms of
prayer clause (a). The impugned order passed by the School
Tribunal, Kolhapur in Appeal No. 52 of 2011 on 17 th January, 2012
is set aside. Appeal No.52 of 2011 is made absolute in terms of
prayer clauses (2) and (3). Respondent nos. 2 to 6 are directed to
reinstate the petitioner with full back-wages and continuity of
service within four weeks from today;
ppn 76 wp-4470.15 wt 2307.12 wt 2308.12(j).doc
(e) In view of the disposal of the writ petitions, all pending civil
applications in the aforesaid writ petitions do not survive and are
accordingly disposed of. No order as to costs.
R.D. DHANUKA, J.
