Jambukeshwar Samaj Vikas ... vs Education Officer (Sec.), Zilla ...
2017 Latest Caselaw 5696 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR


                         WRIT PETITION NO.4485 OF 2015


  Jambukeshwar Samaj Vikas 
  Sanstha, through its Secretary
  Sudhir Motiram Warkad,
  Aged 32 years, Occ. Nil,
  r/o. Khorda, Post Kajal,
  Tq. and Distt. Washim.         ..........        PETITIONER


          // VERSUS //


  1. Education Officer (Secondary),
      Zilla Parishad, Washim, 
      Distt. Washim.

  2. Shriram Charandas Baba 
      Vidyalaya, through its Head-Master,
      Phalegaon (Thet), Tq. and Distt.
      Washim.

  3. Nivrutti Tulshiram Raut,
      Aged 59 years, Occ. Nil,
      r/o. At Sakhara, Tq. and Distt.
      Washim.                        ..........     RESPONDENTS




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  ________________________________________________________      
               Mr.P.S.Patil, Advocate for the Petitioner.
                Mr.S.S.Doifode, A.G.P. for Respondent No.1.
         Mr.C.B.Dharmadhikari, Advocate for Respondent No.2.
                Mr.A.J.Gilda, Advocate for Respondent No.3.
  ____________________________________________________________


                                    CORAM     :   SMT. VASANTI  A  NAIK
                                                        AND
                                                         M.G.GIRATKAR, JJ.

DATE : 7.8.2017.

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

1. By this Writ Petition, the petitioner challenges the order

of respondent no.1/Education Officer (Secondary), Zilla Parishad,

Washim, dt.22.9.2014, by which the Education Officer has decided

the validity of the constitution of the School Committee.

2. According to the petitioner, the petition is filed by the

Sanstha through its Secretary Mr.Sudhir Warkad. It is the case of the

petitioner that the Change Report filed by Sudhir Warkad, Secretary

of the Society is pending before the Charity Commissioner. It is

stated that though the Education Officer does not have jurisdiction to

decide the legality of the constitution of the School Committee, the

Education Officer has wrongfully indulged in deciding the same. It is

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stated that the impugned order is passed by the Education Officer

without any authority of law and the same is liable to be set aside.

3. Mr.A.J.Gilda, the learned Counsel for respondent no.3,

who claims to be the President of the Society on the basis of an entry

in the Schedule I, has raised an objection to maintainability of the

Writ Petition. It is submitted that the petitioner would not have the

locus standi to file the Writ Petition. It is submitted that Mr.Sudhir

Warkad, who claims to be the Secretary of the Society, is not even a

member of the Society. It is submitted that, as per the order of the

Charity Commissioner, Mr.Sudhir Warkad is not even an ordinary

member of the Society. It is stated that since Mr.Sudhir Warkad is

not concerned with the Society at all, the Writ Petition could not

have been filed in the name of the Society through Mr.Sudhir

Warkad.

4. Mr.C.B.Dharmadhikari, the learned Counsel for

respondent no.2 states that, in view of the impugned order passed by

the Education Officer, atleast the School Committee is functioning

and if this order is quashed and set aside, again vacuum will be

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created and disputes between the rival groups pertaining to the

School Committee would continue.

5. Mr.Doifode, the learned A.G.P. appearing for the

Education Officer, however, fairly states that the Education Officer

does not have jurisdiction to decide the legality of the constitution of

the School Committee. It is stated that the impugned order is passed

under a mistaken belief that the said issue could have been decided

by the Education Officer. It is stated that the Education Officer has

even apologized for the mistake.

6. On hearing the learned Counsel for the parties and on a

perusal of the impugned order, it appears that the Education Officer

did not have jurisdiction to decide the question pertaining to the

legality of the constitution of the School Committee. There is no

provision in the Act, Rules or Code which empowers the Education

Officer to decide the question of the legality of the constitution of the

School Committee. The Education Officer has rightly realised his

mistake and has apologized for passing an incorrect order. The

impugned order is palpably erroneous and is liable to be set aside.

While setting aside the order, we are not inclined to upheld the

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objection raised on behalf of respondent no.3 regarding the tenability

of the Writ Petition. There is no order of the Assistant Charity

Commissioner stating that Mr.Sudhir Warkad is not the member of

the Society. It is also informed to this Court by the learned Counsel

for the petitioner that the Change Report filed by Mr.Sudhir Warkad

is pending along with the Change Report filed by respondent no.3. It

is stated that the Change Report pertaining to the election of

Mr.Sudhir Warkad as the Secretary of the Society could be decided

when the other Change Reports are decided. In any case, we do not

find any merit in the objection raised on behalf of respondent no.3 to

the tenability of the Writ Petition, moreso when the order is per se

illegal and the Education Officer has admitted his mistake.

7. In the result, the Writ Petition is allowed. The impugned

order of the Education Officer is hereby quashed and set aside.

Rule is made absolute in the aforesaid terms with no

order as to costs.

                   JUDGE                                                JUDGE
   

  [jaiswal]




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