Prakash Madhukar Sawalkar vs Deputy Director Of Education, ...
2016 Latest Caselaw 2141 Bom

                                                                 1                            wp265.16.odt

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH AT NAGPUR




                                                                                                      
                                  WRIT PETITION NO.265/2016




                                                                          
          Prakash Madhukar Sawalkar,
          aged 54 years, Occ. Service, 
          r/o Ward No.2, Ansing, Tq. Dist.
          Washim.                                                           .....PETITIONER




                                                                         
                              ...V E R S U S...

     1. Deputy Director of Education,
        Amravati Division, Amravati.




                                                       
     2. The Education Officer (Secretary),
        Zilla Parishad, Washim. 
     3. Swadwad Education Society, through
        its President Balchand Jaikumarsha Warli,
        Ansing, Tq. Dsit. Washim.
                               
     4. P. D. Jain Vidyalaya, thr. Its Headmaster,
        Ansing, Tq. Dist. Washim.                                           ...RESPONDENTS
     -----------------------------------------------------------------------------------------------------------
      

     Shri A. S. Kilor, Advocate for petitioner.
     Smt.K. Deshpande, Assistant Government Pleader for respondent nos.1 and 2.
     Shri F. T. Miza, Advocate for respondent no.3.
   



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                                        CORAM:-  SMT. VASANTI A. NAIK AND
                                                   V. M. DESHPANDE, JJ.

DATED :- MAY 2, 2016

ORAL JUDGMENT (Per : Smt. Vasanti A. Naik, J.)

Rule. Rule made returnable forthwith. The writ

petition is heard finally at the stage of admission as a notice of

final disposal was issued to the respondents and the respondents

are duly served.

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2. By this writ petition, the petitioner impugns the order-

decision of the Education Officer (Secondary) dated 22.12.2015

cancelling the approval to the appointment of the petitioner as

Incharge Head Master.

3. The petitioner was appointed as an Assistant Teacher

on 26.08.1987 and the services of the petitioner were approved by

the Education Officer. When a vacancy occurred the post of Head

Master on 25.06.2015, the petitioner was appointed as an

Incharge Head Master. The Education Officer granted approval to

the appointment of the petitioner as Incharge Head Master on

04.11.2015. The Education Officer then decided to consider

cancelling the approval to the promotion of the petitioner as

Incharge Head Master and served a notice on the petitioner,

asking the petitioner to remain present for hearing on 03.12.2015.

The petitioner remained present on the said date. It is the case of

the petitioner that the subsequent date of hearing was not

informed to the petitioner on the said date. The notice-

communication, asking the petitioner to remain present for

hearing on 14.12.2015 was received by the petitioner on

18.12.2015 and the petitioner could not remain present in the

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office of the Education Officer on 14.12.2015. By the impugned

communication-order dated 22.12.2015, the approval to the

promotion of the petitioner as Incharge Head Master was

cancelled.

3. Inter alia, it is submitted on behalf of the petitioner that

the impugned order is bad in law as it is passed in violation of the

principles of natural justice. It is stated that though the matter

was fixed for hearing before the Education Officer on 14.12.2015,

the notice was belatedly issued to the petitioner informing him

about the date of hearing on 14.12.2015. It is stated that though

the hearing was fixed on 14.12.2015, the petitioner received the

notice of hearing on 18.12.2015. It is stated that in the absence of

service of notice on the petitioner before 14.12.2015, the

petitioner could not have remained present above the Education

Officer on 14.12.2015. It is stated that on 03.12.2015, the

petitioner was not informed about the next date of hearing and

this fact could be substantiated from the order passed by the

Education Officer dated 22.12.2015, which records in the last

paragraph before the final decision that the petitioner was

informed about the hearing being fixed on 14.12.2015 by a notice

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dated 10.12.2015. It is stated that when the notice dated

10.12.2015 was received by the petitioner on 18.12.2015, the

petitioner could not have remained present.

4. Since a short issue arises for consideration in this writ

petition and since the petitioner has mainly challenged the

impugned order in view of the absence of an opportunity of

hearing, we had, while issuing notice to the respondents on

18.01.2016, directed the respondents to consider whether the

notice of hearing was served upon the petitioner before

14.12.2015. Though the issue involved in the writ petition is short

and the writ petition could have been decided only on a

submission made on behalf of the Education Officer, whether the

notice was served on the petitioner before 14.12.2015 or not, time

was sought on behalf of the Education Officer on 21.04.2016 for

filing the reply. When the matter came up for hearing on

28.04.2016, we made a prima facie observation in the order that

the Education Officer was not responding to the queries of the

Court despite grant of adjournment on 21.04.2016. Though, we

had clearly observed that if the Education Officer fails to inform

this Court on the adjourned date of hearing, that is today, whether

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the notice was served on the petitioner on 18.12.2015 or before

14.12.2015, this Court would consider taking appropriate action

against the respondent no.2-Education Officer, the respondent

no.2 has not filed any reply till date. It is informed to this Court

by the learned Assistant Government Pleader that though the

learned Assistant Government Pleader tried to contact the

Education Officer since morning but the cell phone of the

Education Officer has been switched off. It is informed that the

learned Assistant Government Pleader tried to contact the clerk of

the Education Officer but the the clerk informed the learned

Assistant Government Pleader that the Education Officer is not

available. It is further informed by the clerk of the Education

Officer to the learned Assistant Government Pleader that the

adjourned date of the hearing was informed to the petitioner on

03.12.2015.

5. From a reading of the impugned order, it is clear that

the petitioner was not informed about the adjourned date of

hearing on 03.12.2015. The order of the Education Officer clearly

depicts that the petitioner was informed about the adjourned date

only by the communication dated 10.02.2015. It is the case of the

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petitioner that the petitioner has received the communication on

18.12.2015. The said fact is not disputed by the respondents.

Despite the grant of a couple of chances just to answer a small

query of the Court, the Education Officer has not responded. The

Education Officer has also not responded to the order dated

28.04.2016. On hearing the learned counsel for the parties and on

a perusal of the impugned order, we find that the petitioner could

not remain present before the Education Officer on 14.12.2015 as

the date of hearing was not conveyed to the petitioner orally on

03.12.2015 and the petitioner received the notice of hearing that

was scheduled on 14.12.2015, after hearing was concluded, on

18.12.2015. In the circumstances of the case, the impugned order

is liable to be quashed and set aside. It would be free for the

Education Officer to take appropriate steps in the matter of

cancellation of approval after hearing the parties concerned

including the petitioner.

While quashing and setting aside the impugned order,

it is also necessary to take some action against the Education

Officer for not responding to the Court queries despite the order

dated 28.04.2016. We find that the action on the part of the

Education Officer is extremely high handed. The steno copy of the

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order, dated 28.04.2016 was supplied to the learned Assistant

Government Pleader and it is the case of the learned Assistant

Government Pleader that though the order was conveyed to the

Education Officer, the Education Officer did not give any

instructions to the Assistant Government Pleader. The Education

Officer has caused hindrance in the conduct of the Court

proceedings and in the administration of justice. It would be

therefore necessary for the Education Officer to pay costs of

Rs.10,000/- (Rs. Ten Thousand Only) personally from his pocket,

to the petitioner within period of ten days.

At this stage, the learned counsel for the petitioner

states that instead of paying the costs to the petitioner, the

Education Officer should be directed to pay the amount to the

Chief Minister's Drought Relief Fund.

6. Hence, for the reasons aforesaid, the writ petition is

allowed. The impugned order is quashed and set aside. The

Education Officer is free to take appropriate steps in the matter of

cancellation of approval to the promotion of the petitioner as

Incharge Head Master, in accordance with law. The Education

Officer should personally pay costs of Rs.10,000/- (Rs. Ten

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Thousand Only) to the Chief Minister's Drought Relief Fund,

immediately and file a compliance report in this Court till

06.05.2016. Order accordingly.

(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.)

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