Bombay High Court
Ram Madhukar Shelake vs The State Of Maharashtra , Through ... on 6 December, 2017
Bench: B.R. Gavai
WP. 11418-17, 11437-17, 11438-17, 11444-17.doc
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 11418 OF 2017
Ram Madhukar Shelake ... Petitioner
Vs.
The State of Maharashtra, through
Principal Secretary & Ors. ... Respondents
WITH
WRIT PETITION No. 11437 OF 2017
Juber Rashid Bijali ... Petitioner
Vs.
The State of Maharashtra, through
Principal Secretary & Ors. ... Respondents
WITH
WRIT PETITION No. 11438 OF 2017
Balaji Prakash Nandware ... Petitioner
Vs.
The State of Maharashtra, through
Principal Secretary & Ors. ... Respondents
WITH
WRIT PETITION No. 11444 OF 2017
Pratiksha Sadanand Shelake ... Petitioner
Vs.
The State of Maharashtra, through
Principal Secretary & Ors. ... Respondents
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WP. 11418-17, 11437-17, 11438-17, 11444-17.doc
***
Mr. Vijay Killedar, for the Petitioner in all petitions.
Ms. Rupali M. Shinde, AGP for Respondent Nos. 1 to 3, in all
petitions.
Mr. Suhas Inamdar i/b Sushil Inamdar, for Respondent No. 6.
***
CORAM : B. R. GAVAI, &
MANISH PITALE, JJ.
DATE : DECEMBER 6, 2017
JUDGMENT : [PER : MANISH PITALE, J.]
1. Heard. Rule. Rule is made returnable forthwith.
Learned AGP waives service of notice for Respondent Nos. 1 to 3.
Learned counsel Mr. Suhas Inamdar waives service of notice for
Respondent No. 6.
2. The Petitioners in these writ petitions were appointed in
the post of Assistant Teacher with Respondent No. 5 School on
different dates in the year 2014. The appointments of Ram Madhukar
Shelke (Petitioner in Writ Petition No. 11418/2017) and Balaji
Prakash Nandwate (the Petitioner in Writ Petition No. 11438/2017)
were approved by an order dated 2.1.2016 by Respondent No. 3 -
WP. 11418-17, 11437-17, 11438-17, 11444-17.doc
Education Officer. Th appointments of Juber Rashid Bijali (Petitioner
in Writ Petition No. 11437/2017) and Pratiksha Sadanand Shelake
(Petitioner in Writ Petition No. 11444/2017) were approved by
Respondent No. 3 the Education Officer on 4.1.2016.
3. Thereafter, by impugned order dated 22.1.2016,
Respondent No. 3 Education Officer has stayed his own orders
granting approval to the appointments of the Petitioners. The said
order dated 22.1.2016 has been passed by Respondent No. 3 -
Education Officer on the basis of a complaint by Respondent No. 6
and it is stated that the orders of approval would remain stayed till the
complaint submitted by Respondent No. 6 is finally decided.
4. These writ petitions have been filed by the Petitioners
challenging the said impugned order dated 22.1.2016 on the ground
that Respondent No. 3 Education Officer does not have powers of
review and that having granted approval to the appointments, he could
not have exercised the power to revisit the orders of approval.
5. The question as to whether Respondent No. 3 Education
Officer could have exercised powers of review is no more res integra,
as a Division Bench of this Court in an order dated 1.8.2017 passed in
WP. 11418-17, 11437-17, 11438-17, 11444-17.doc
a group of petitions, lead petition being Writ Petition No. 10133 of
2016, has categorically held that the Education Officer does not have
power of reviewing his own order. The relevant portion of the order
reads as follows:
"6. We find that it will not be necessary for us to go into
the merits to find out as to whether the reasons given by the
Education Officer in the affidavit are correct or not. We find
that the petitions deserve to be allowed on short ground that
by the impugned order, Respondent Education Officer has
set aside the order passed by the earlier Education Officer.
As such, the impugned order revokes the approval granted
by the earlier order passed by the predecessor in the office
of the Respondent Education Officer. By now, it is settled
principle of law that unless the power of review is
specifically or by necessary implication provided, the
authority cannot review its own order. No doubt, if an order
is obtained by exercising fraud, it would stand vitiated.
However, it is not the case of the Respondent- Education
Officer that Petitioners have obtained their initial orders by
fraudulent means. If the earlier Education Officer had
granted approval to the Petitioners' appointment, may be
erroneously, the same cannot be made a ground to recall the
same and pass contrary order, unless a case of fraud,
misrepresentation or suppression is made out."
6. Thus, it is evident that in the present writ petitions,
position of law is clearly in favour of the Petitioners herein and the
impugned order dated 22.1.2016 is unsustainable and deserves to be
quashed and set aside. Although it is also placed on record that
WP. 11418-17, 11437-17, 11438-17, 11444-17.doc
Respondent No. 6 has submitted a letter dated 8.11.2016 before
Respondent No. 3 - Education Officer stating that he is withdrawing
the complaint, which had led to the issuance of the impugned order
dated 22.1.2016, we find that it is not necessary for us to go into that
aspect, because the impugned order dated 22.1.2016 could not have
been passed by Respondent No. 3 - Education Officer, as he has no
powers of review.
7. Accordingly, all the writ petitions are allowed. The
impugned order dated 22.1.2016 is quashed and set aside. Rule is
made absolute in terms of prayer clause (a), with no orders as to costs.
Sd/- Sd/-
[MANISH PITALE, J.] [B. R. GAVAI, J.]
Vinayak Halemath
