Bombay High Court
Ravindra Pralhadrao Ghatge vs Vidyanath Shikshan Sanstha, Beed ... on 21 December, 2017
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8504 OF 2014
Sachin Shivajirao Deshmukh,
Age: 32 years, Occu.:Nil,
R/o. Deshmukh Par,
Parali-Vaijinath,Beed = PETITIONER
VERSUS
1) Vaidyanath Shikshan Sanstha,
Through its President
Parali-Vaijinath,
Tq.Parali-Vaijinath,
Dist. Beed
2) The Secretary,
Vaidyanath Shikshan Sanstha,
Parali-Vaijinath,
Tq. Parali-Vaijinath,
Dist.Beed.
3) Vaidyanath Shikshan Sanstha,
Parali-Vaijinath,
Tq. Parali-Vajinath,
Dist.Beed
Through Shri.Bhanudas Madhavrao
Deshmukh, Claiming to be Secretary.
4) Headmaster,
Vaidyanath Shikshan Sanstha,
Parali-Vajinath, Tq. Parali-Vaijinath,
Dist. Beed
5) Education Officer, Secondary,
Zila Parishad, Beed = RESPONDENTS
WITH
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WRIT PETITION NO.9773 OF 2014
Smt. Sarika Janardhan Gade,
Age: 30 years, Occu.:Nil,
R/o. Anandkar Vitthalkrupa Niwas,
Kanya Shala Road, Parli-Vaijnath
Tq.Parli-Vaijnath Dist. Beed = PETITIONER
VERSUS
1. Vidyanath Shikshan Sanstha,
Parli Vaijnath,
Ta. Parli-Vaijnath
Dist. Beed
Through its President
2. The Secretary,
Vidyanath Shikshan Sanstha,
Parli Vaijnath,
Ta. Parli-Vaijnath
Dist. Beed
3. Vidyanath Shikshan Sanstha,
Parli Vaijnath,
Ta. Parli-Vaijnath
Dist. Beed,
Through Shri Bhanudas
Madhavrao Deshmukh -
claiming to be Secretary
4. Headmaster,
Vidyanath Vidyalaya,
Parli Vaijnath,
Ta.Parli-Vaijnath,
Dist. Beed
5. Education Officer (Secondary),
Zilla Parishad, Beed
Dist. Beed = RESPONDENTS
WITH
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WRIT PETITION NO.8631 OF 2014
Ravindra Pralhadrao Ghatge,
Age:36 years, Occ: at
present Nil,
R/o. Padmavati Galli,
Parali Vaijanath,
Tq. Parli, Dist. Beed = PETITIONER
VERSUS
1. Vidyanath Shikshan Sanstha,
Parli Vaijnath,
Tq.Parli, Dist. Beed,
(Through its President)
2. Vaidyanath Shikshan Sanstha
Parli Vaijnath,
Tq. Parli, Dist.Beed
(Through its Secretary)
3. Vaidyanath Shikshan Sanstha
Parli Vaijnath,
Tq.Parli, Dist. Beed,
(Through Bhanudas Madhavrao
Deshmukh so called Secretary)
4. Head Master,
Vaidyanath Vidyalaya,
Dhokate Galli, Near Ganesh Par,
Parli Vaijnath,
Tq. Parli, Dist. Beed
5. The Education Officer
(Secondary) Zilla Parishad,
Beed. = RESPONDENTS
WITH
WRIT PETITION NO.8505 OF 2014
Rupali Rameshwar Phulari,
Age: 39 years, Occ: at present Nil,
R/o. Bopangalle Galli,
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Near Hanuman Vyayamshala
Parali Vaijanath,
Tq.Parli, Dist. Beed = PETITIONER
VERSUS
1. Vaidyanath Shikshan Sanstha,
Parli Vaijnath,
Tq.Parli, Dist. Beed,
(Through its President)
2. Vaidyanath Shikshan Sanstha
Parli Vaijnath,
Tq. Parli, Dist.Beed
(Through its Secretary)
3. Vaidyanath Shikshan Sanstha
Parli Vaijnath,
Tq.Parli, Dist. Beed,
(Through Bhanudas Madhavrao
Deshmukh so called Secretary)
4. Head Master,
Vaidyanath Vidyalaya,
Dhokate Galli, Near Ganesh Par,
Parli Vaijnath,
Tq. Parli, Dist. Beed
5. The Education Officer
(Secondary)Zilla Parishad,
Beed. = RESPONDENTS
WITH
WRIT PETITION NO.9775 OF 2014
Smt. Jayshree Vishwanathappa Shete
Age:37 years, Occu.:Nil,
R/o.C/o. Jagtap Itake, Itakegalli,
Ambives, Parli-Vaijnath
Tq. Parli-Vaijnath Dist. Beed
= PETITIONER
VERSUS
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1. Vidyanath Shikshan Sanstha,
Parli Vaijnath,
Ta.Parli, Dist. Beed,
(Through its President)
2. The Secretary,
Vidyanath Shikshan Sanstha
Parli Vaijnath,
Ta. Parli-Vaijnath, Dist.Beed
3. Vidyanath Shikshan Sanstha
Parli Vaijnath,
Ta.Parli-Vaijnath, Dist. Beed,
Through Shri Bhanudas Madhavrao
Deshmukh claiming to be Secretary.
4. Headmaster,
Vidyanath Vidyalaya,
Parli Vaijnath,
Tq. Parli-Vaijnath, Dist. Beed
5. The Education Officer
(Secondary), Zilla Parishad,
Beed, Dist. Beed. = RESPONDENTS
-----
S/Shri S.V.Deshmukh, R.J. Godbole & S.R. Sapkal,
Advocates for respective Petitioners;
Shri H.F. Pawar, Adv.for Resp.Nos.3 & 4;
Shri S.W. Munde, AGP for Respondent No.5.
...
CORAM: P.R. BORA, J.
***
Date of reserving the judgment:09/08/2017
Date of pronouncing the judgment: 21/12/2017
***
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JUDGMENT:
1. The petitioners in all these petitions are the
terminated employees of Vaidyanath Shikshan Sanstha. Their
appointments were cancelled vide order dated 3.9.2012, by
Shri Bhanudas Deshmukh, who claims himself to be the
Secretary of Vaidyanath Shikshan Sanstha.
2. Petitioner in Writ Petition No.8504/2014 was
appointed as a Clerk whereas the petitioners in the remaining
four petitions were appointed as Shikshan Sevaks in respondent
No.4 School i.e. Vaidyanath Vidyalaya, Parali Vaijnath. The
petitioners were appointed on their respective posts vide
appointment order dated 13th September, 2010. Their
appointments were for a period of three years i.e. from
14.9.2010 to 13.9.2013. The petitioners joined their duties
w.e.f. 14.9.2010. The appointments of all these petitioners
were approved by the Education Officer ( Secondary), Zilla
Parishad, Beed, vide his order dated 23rd of May, 2011. The
petitioners were working on their respective posts from
14.9.2010 till 31st of August, 2012. The then Headmaster of
respondent no.4 School restrained the petitioners from signing
the muster roll w.e.f. 1.9.2012. Subsequently, the written
orders dated 3rd of September, 2012 were issued against each
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of the petitioners whereby the petitioners were communicated
that their appointments were cancelled. The petitioners
challenged the said orders by filing the appeals under Section 9
of the Maharashtra Employees of Private Schools ( Conditions of
Service) Regulation Act, 1977 ( hereinafter, referred to as the
M.E.P.S.Act ) before the School Tribunal at Aurangabad.
3. It was the case of the petitioners before the
Tribunal that their appointments were illegally cancelled without
following due process of law and in violation of the provisions
under the M.E.P.S. Act and the M.E.P.S. Rules. As against it, it
was the contention of respondent no.3 that the appointments of
the petitioners were rightly cancelled by him since their
appointments were made by the former Headmaster, namely,
Janardan Gade, in his individual capacity by representing that
he was having an authority to make the said appointments
since there was a dispute in the management of the trust. It
was also contended that the circulars and the letters on the
basis of which the appointments were issued by the
Headmaster and were approved by the Education Officer were
inapplicable to the appointments of the petitioners.
4. Respondent nos. 1 and 2 supported the case of the
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petitioners contending that the appointments of all the
petitioners were perfectly legal and were made after following
due process of law. It was also contended that respondent
no.3, in connivance with respondent no.4 had illegally cancelled
the said appointments, without having any authority therefor.
5. Learned School Tribunal, after having considered
the submissions made on behalf of the respective parties,
dismissed the appeals. Aggrieved thereby, the petitioners
have preferred the present writ petitions. Learned Advocate
Shri R.J.Godbole advanced the lead argument on behalf of the
petitioners and the other learned Counsel appearing for the
petitioners adopted his argument and made few additional
submissions. Shri H.P.Pawar, learned Counsel appearing for
respondent nos. 3 and 4 resisted the submissions made on
behalf of the petitioners. He supported the impugned
judgments and orders.
6. After having heard the learned Counsel appearing
for the parties and on perusal of the impugned judgment as
well as the other material placed on record, it is apparently
revealed that the entire approach of the School Tribunal in
deciding the subject appeals was erroneous.
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7. It is not in dispute that the petitioners were working
on their respective posts in Vaidyanath Vidyalaya, Parali
Vaijnath w.e.f. 14.9.2010. According to the petitioners, their
appointments were made by the School Committee of the
Vaidyanath Vidyalaya on the strength of Resolution of the said
School Committee passed in the meeting held on 12th of
September, 2010. There is further no dispute that the
Education Officer ( Secondary), Z.P., Beed, granted approval to
the appointments of the petitioners for the period of three years
i.e. from 14.9.2010 to 13.9.2013 vide his order dated 23rd of
May, 2011. The petitioners were admittedly working on their
respective posts till the end of August, 2012.
8. Shri Bhanudas Deshmukh, claiming himself to be
the Secretary of Vaidyanath Shikshan Sanstha, issued the letter
dated 3.9.2012, to each of the petitioners informing them that
their appointments stood cancelled w.e.f. 1st of September,
2012. As alleged by the petitioners, on instructions of said
Shri Bhanudas Deshmukh, the then Head Master, namely, Shri
Jogdand had restrained the petitioners from signing the muster
roll w.e.f. 1.9.2012. Subsequently, by communication dated
3.9.2012, as noted hereinabove, the petitioners were informed
that their appointments were cancelled. After having received
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the aforesaid communication which had an effect of otherwise
terminating the services of the petitioners, the petitioners filed
the appeals before the School Tribunal at Aurangabad under
Section 9 of the Maharashtra Employees of Private Schools
( Conditions of Service ) Act, 1977 ( hereinafter referred to as
`M.E.P.S.Act').
9. In the appeals before the School Tribunal, it was the
specific contention of the present petitioners that the order
dated 3.9.2012, passed by Shri Bhanudas Deshmukh was
patently illegal and said Shri Deshmukh was not having any
right or authority to cancel the appointments of the petitioners.
It was also contended that the petitioners being appointed to fill
up permanent posts, after following due process of law, their
appointments could not have been cancelled or their services
could not have been terminated without following the due
process of law and without giving them an opportunity of
hearing. The petitioners had also contended in their respective
appeals that prior to making their appointments, an
advertisement was issued on 26th of August, 2010, the B.C.
Cell report was called, the roster was verified and their
appointments were made by the School Committee by taking
interviews. Along with the memo of appeal, the petitioners
11 WP NO.8504/2014gr
had filed on record copy of the newspaper advertisement, the
B.C. Cell report, and the resolution of the School Committee
dated 12.9.2010. The petitioners had also filed on record
their appointment orders, copy of approval dated 23.5.2011
granted by the Education Officer (Secondary), Zilla Parishad,
Beed, and the communication dated 3.9.2012 whereby their
appointments were cancelled by Shri Bhanudas Deshmukh.
10. In view of the grounds of objections raised by the
petitioners in their respective appeals and the documents filed
on record by them along with the said appeals, the School
Tribunal was expected to decide the correctness, legality and
validity of the order dated 3.9.2012, whereby Shri Bhanudas
Deshmukh had cancelled the appointments of the petitioners.
Perusal of the impugned order, however, reveals that instead of
deciding the legality and validity of the order dated 3.9.2012,
which was impugned by the petitioners in their respective
appeals, the School Tribunal indulged in deciding the validity of
the appointments of the petitioners and ultimately dismissed
the appeals filed by the petitioners holding that the petitioners
have failed in establishing that they were appointed on their
respective posts after following due process of law and by the
appropriate authority.
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11. In fact, the moot question was whether Shri
Bhanudas Deshmukh was having any authority to cancel the
appointments of the petitioners vide the impugned
communication and even if he was having such authority,
whether he could have cancelled the said appointments without
giving any opportunity of hearing to the petitioners and without
following the process of law. In the impugned judgments, the
learned School Tribunal has not at all addressed the aforesaid
issues.
12. Section 9 of the M.E.P.S.Act provides a right to an
employee in a private school who is dismissed or removed or
whose services are otherwise terminated by an order passed by
the management, to prefer an appeal to the School Tribunal.
In such appeal, the School Tribunal has to adjudicate upon the
validity of an order of termination challenged in the said appeal.
No doubt, the Tribunal has the jurisdiction to decide the
incidental and ancillary questions which would also include the
issue whether the appointment of the concerned employee was
legal and valid. Perusal of the impugned judgment reveals
that the learned School Tribunal has not recorded any finding
whether Shri Bhanudas Deshmukh was having any authority to
cancel the appointments of the petitioners and if he was having
13 WP NO.8504/2014gr
such authority, whether he has followed the due process of law
before cancelling the said appointments.
13. As noted earlier, the petitioners were in the
employment of Vaidyanath Vidyalaya w.e.f. 14.9.2010, and
their appointments were approved by the Education Officer
(Secondary), Zilla Parishad, Beed, vide his order dated 23rd of
May, 2011, for the period of three years i.e. from 14.9.2010 to
13.9.2013. As is revealing from the appointment orders and
the approval granted to the said appointments by the Education
Officer, the petitioners were appointed on the permanent posts.
The question arises whether appointments of the petitioners
could have been cancelled after they had put in continuous
service of about two years and when their appointments were
approved by the Education Officer, without giving them any
opportunity of hearing or without following the procedure as
laid down in the M.E.P.S. Act and the Rules, even if in the
opinion of Shri Bhanudas Deshmukh, their appointments were
not valid.
14. Firstly, Shri Bhanudas Deshmukh could not have
unilaterally cancelled the appointments of the petitioners even
though it was his contention that the said appointments were
14 WP NO.8504/2014gr
not valid and were not made in accordance with law. In fact,
on this ground alone, the said orders were liable to be set aside
and quashed. By placing on record (i) copy of the
advertisement published in daily `Viveksindhu' on 26th of
August, 2010, (ii) the B.C. Cell report, (iii) the resolution
dated 12th of September, 2010, passed by the School
Committee of Vaidyanath School, and (iv) the approval
accorded to their appointments by the Education Officer
(Secondary), Zilla Parishad, Beed, vide his order dated 23rd of
May,2011, the petitioners have sufficiently discharged the
burden on them to primarily prove that they were appointed
after following due process of law. In view of the primary
evidence placed on record by the petitioners, the burden was
shifted on Shri Bhanudas Deshmukh to first prove his authority
and competence to cancel the appointments of the petitioners
and substantiate the reasons assigned by him for cancelling the
said appointments. It was also incumbent on his part to clarify
whether due process of law was followed before cancelling the
said appointments.
15. From the discussion made in the impugned
judgments, it however appears that, the learned School
Tribunal has accepted the contentions of Shri Bhanudas
15 WP NO.8504/2014gr
Deshmukh as gospel truth without putting any burden on him
to prove the facts which he had alleged while cancelling the
appointments of the petitioners. The Tribunal, must have first
ascertained whether proper procedure was followed before
cancelling the said appointments. Instead of recording any
finding on the said issue, the Tribunal proceeded to hold that
the petitioners have failed in proving that their appointments
were legally and validly made after following due process of
law. The entire approach of the School Tribunal was, thus,
erroneous. Even if it is assumed that the appointments of the
petitioners were not in accordance with law, the same could not
have been cancelled by Shri Bhanudas Deshmukh unilaterally
without following the procedure laid down in M.E.P.S.Act and
Rules thereunder.
16. It is further apparently revealed that the learned
School Tribunal has failed in appreciating that the appointments
of the petitioners w.e.f. 14.9.2010 and the approval granted to
the said appointments by the Education Officer vide his order
dated 23rd of May, 2011, were questioned by Shri Bhanudas
Deshmukh by filing Writ Petition No. 5492/2011. The same
objections which are raised by said Shri Bhanudas Deshmukh in
his affficavit in reply filed before the School Tribunal were
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raised by him in the aforesaid writ petition in challenge to the
appointments and approval to the said appointments. The
material on record reveals that in the said Writ Petition
No.5492/2011, one Shri Laxman Pasalwad filed an additional
affidavit for and on behalf of the Education Officer, Secondary,
Zilla Parishad, Beed, on 8th of May, 2012, contending therein
that the appointments of the petitioners were made by the
School Committee and the proposal for their approval was
accordingly submitted to the Education Office. It is further
contended in the said affidavit that the Education Officer has
granted approval to the appointments of the petitioners after
verifying the requirements of law.
17. It has to be stated that earlier one more Writ
Petition was filed by Shri Bhanudas Deshmukh bearing Writ
Petition No.3940/2010 wherein he had challenged the
temporary appointments issued in favour of the petitioners. In
the said writ petition also, Laxman Pasalwad had filed an
affidavit on 26.11.2010. In the said affidavit, it was averred
that there was no School Committee in existence and that there
were disputes in the management of the Education Trust. In
the said affidavit, it was not disclosed that the proposal was
received seeking approval to the appointments of the
17 WP NO.8504/2014gr
petitioners made by the School Committee and that such
proposal was under consideration in the Education Office. In
the additional affidavit filed by Shri Laxman Pasalwad in Writ
Petition No.5492/2011, he has, therefore, tendered
unconditional apology for not disclosing in the earlier affidavit
filed on 26.11.2010 in Writ Petition No.3940/2010 that the
proposal seeking approval to the appointments of the
petitioners made by the School Committee was received in the
Education Office and that it was under consideration. Shri
Laxman Pasalwad in his affidavit dated 8.5.2012, has stated
that it was an inadvertent mistake and there was no intention
not to disclose the said fact. I deem it appropriate to
reproduce paragraph no.5 of the said affidavit dated 8.5.2012
which reads thus:
" I say that, Education Officer granted approval to the
services of respondent no. 5 to 10 after following due
procedure and verifying the requirement of law. That,
this deponent is tendering unconditional apology, because
of not pointing out the proposal submitted by the School
Committee on 20.9.2010 as per resolution dated
12.9.2010 which is inadvertent and is not deliberate or
intentional. Therefore, this deponent is filing this
additional affidavit in reply. "
Nothing is brought on record showing that Shri Bhanudas
Deshmukh denied or disputed the contentions in the aforesaid
18 WP NO.8504/2014gr
additional affidavit by filing any rejoinder to the said affidavit. It
leads to an inference that Shri Deshmukh did not deny or
dispute the averments in the said additional affidavit in reply.
On the contrary, record shows that Shri Bhanudas Deshmukh
withdrew the said writ petition on 30th of October, 2012.
18. It has to be further stated that Shri Bhanudas
Deshmukh had made a complaint to the Deputy Director of
Education in respect of the appointments of the petitioners and
approval granted to the said appointments by the Education
Officer vide his order dated 23rd of May, 2011, whereupon, the
Deputy Director, vide his letter dated 7.7.2011, directed the
Education Officer to temporarily stay the order of approval
dated 23rd of May, 2011 and, accordingly, such temporary stay
was ordered by the Education Officer, Zilla Parishad, Beed, on
13th of July, 2011. The Deputy Director then has directed an
enquiry into the complaint made by Shri Bhanudas Deshmukh.
Shri B.R.Deogude, the Deputy Education Officer was asked to
conduct an enquiry and submit the report. Accordingly, the
said officer conducted an enquiry and submitted his report to
the Deputy Director of Education. The said officer submitted
the report that there was no substance in the complaint made
by Shri Bhanudas Deshmukh. After receiving the said report,
19 WP NO.8504/2014gr
the Deputy Director of Education vacated the interim stay which
was granted to the order of approval dated 23rd of May, 2011.
The Education Officer, Secondary, vide letter dated 18.10.2011,
informed the Headmaster of Vaijnath School that the interim
stay dated 13.7.2011 granted to the order of approval dated
23rd of May, 2011, is vacated. As submitted on behalf of the
petitioners, Shri Bhanudas Deshmukh did not challenge the
enquiry report submitted by Shri B.R.Deogude wherein he had
recorded a finding that there was no substance in the complaint
made by Shri Bhanudas Deshmukh as about the appointments
of the petitioners and the approval granted to the said
appointments by the Education Office vide order dated 23rd of
May, 2011.
19. From the facts mentioned as aforesaid it is quite
evident that Shri Bhanudas Deshmukh had made an attempt to
challenge the appointment orders and the approval to the said
appointments first by making a complaint to the Education
Office and thereafter by filing Writ Petition No.5492/2011.
20. It is the matter of record that Bhanudas
Deshmukh did not challenge the enquiry report submitted in
regard to the complaint made by him before the Deputy
20 WP NO.8504/2014gr
Director of Education and also withdrew Writ Petition
No.5492/2011 without inviting any verdict from the High Court
on the issues raised by him in the said writ petition.
21. The question arises why Shri Deshmukh did not
challenge the enquiry report wherein a finding was recorded
that there was no substance in the complaint made by him in
regard to the appointments and approval of the petitioners.
The question also arises why Shri Deshmukh did not deny or
dispute the statement on oath made by Shri Pasalwad in his
additional affidavit dated 8th of May, 2012, to the effect that
the appointments of the petitioners were made by the School
Committee and were duly approved by the Education Officer
after verifying the requirements of law, in the said writ petition
itself and instead, chose to withdraw the writ petition without
inviting the verdict of the Court on the issues raised by him in
the said writ petition. The conduct of Shri Deshmukh, as
above, leads to an inference that he conceded to the findings
recorded in the enquiry report submitted by Shri Deogude and
the facts which were averred by Shri Pasalwad in his additional
affidavit in reply dated 18th of May, 2012. It was, therefore,
not open and permissible for Shri Bhanudas Deshmukh to
unilaterally cancel the appointments of the petitioners on the
21 WP NO.8504/2014gr
same grounds which were raised by him in the complaint filed
by him before the Deputy Director of Education and in the Writ
Petition No.5492/2011.
22. Copy of the additional affidavit in reply filed by Shri
Pasalwad on 8th of May, 2012, was filed on record before the
School Tribunal, however, from the discussion made by the
learned School Tribunal in the impugned judgment, it is quite
clear that it misread and misinterpreted the contents of the said
affidavit. In the additional affidavit filed by Shri Pasalwad,
though it is specifically averred that the appointments of the
petitioners were made by the School Committee, the learned
School Tribunal has recorded a finding that the petitioners have
failed in establishing that their appointments were made by the
School Committee. Such finding cannot be sustained.
23. Now, I revert to the order dated 3.9.2012 whereby
Shri Bhanudas Deshmukh cancelled the appointments of the
petitioners. Shri Deshmukh has cancelled the appointments of
the petitioners on the following grounds:
(1) That, Shri J.V. Gade, in his individual capacity,
made the appointment of his daughter as well as the
wards of the former Headmasters, wrongly representing
22 WP NO.8504/2014gr
that there are disputes in the management.
(2) That the letter and the circular on the basis of
which the approval has been obtained to the
appointments of the petitioners were inapplicable for such
appointments and approval.
(3) As on date, there is no dispute in the
management of the school.
24. It is well settled that one who asserts the existence
of facts, must prove that those facts exist. The burden was,
therefore, on Shri Bhanudas Deshmukh to prove the existence
of the facts asserted by him in the letter of cancellation of
appointments dated 3.9.2012. Shri Bhanudas Deshmukh has
not placed on record any document to show that the
appointments of the petitioners were made by Shri J.D.Gade in
his individual capacity and by representing that there are
disputes in the management of the school. On the contrary,
the petitioners have, along with their appeals, filed on record
the copy of the resolution passed by the School Committee in
its meeting held on 12.9.2010 whereby it was resolved by the
School Committee to appoint the petitioners on their respective
posts. In the order of approval dated 23rd of May, 2011 also,
it is categorically mentioned that the appointments of the
23 WP NO.8504/2014gr
candidates at Sr.Nos. 1 to 5 on the post of Shikshan Sevak and
the appointment of the candidate at Sr.No.6 on the post of
Junior Clerk made by the School Committee of Vaidyanath
Vaidyalaya, Parali Vaijnath vide Resolution no.2 dated
12.9.2010, are approved for the period of three years from
14.9.2010. The order of approval nowhere reflects that the
appointments of the petitioners were made by Shri J.V.Gade in
his individual capacity. Further, in the additional affidavit filed
by Laxman Pasalwad in Writ Petition No.5492/2011 also it has
been clarified that the appointments of the petitioners were
made and proposal for their approval was submitted by the
School Committee of Vaidyanath Vidyalaya, Parali Vaijnath.
25. The material on record, thus, demonstrates that
Shri Bhanudas Deshmukh did not bring on record any evidence
to substantiate his assertion in the order dated 3.9.2012 that
the appointments of the petitioners were made by Shri J.V.
Gade, the then Headmaster of the School in his individual
capacity. On the contrary, by placing on record the
documents referred hereinabove, the petitioners have negated
the allegations made in the letter dated 3.9.2012.
26. In the order dated 3.9.2012, there is reference of
24 WP NO.8504/2014gr
the Government letter dated 1.11.2001 and the letter dated
19.11.2000 by the Director of Education. However, in the
entire judgment of the School Tribunal, there is no reference of
the aforesaid two letters. It is further not revealed whether
the copies of these letters were filed on record of the School
Tribunal and whether they were relevant to decide the
controversy in the matters before the Tribunal.
27. In the order dated 3.9.2012, it is the further
contention that Bhanudas Deshmukh alone is the Secretary of
the educational trust and there is no dispute existing as on date
of issuance of the said order in regard to the management of
the trust. The contention as aforesaid is also not established
by Shri Bhanudas Deshmukh. On the contrary, from the
material on record the contention of said Shri Deshmukh that,
there are no disputes existing as on the date of issuance of the
impugned order, apparently appears false. It has come on
record that several change reports are pending before the
Assistant Charity Commissioner relating to the management of
the trust.
28. From the facts as aforesaid, it is, thus, evident that
Shri Bhanudas Deshmukh has not at all substantiated the facts
25 WP NO.8504/2014gr
asserted in the order dated 3.9.2012. In fact, when the
grounds on which the appointments of the petitioners were
cancelled by Shri Bhanudas Deshmukh were not substantiated
by him, the order dated 3.9.2012 could not have been
maintained by the Tribunal and was liable to be set aside.
However, as I have mentioned earlier, the Tribunal has
presumed the said facts to be true and correct. Such
presumption was apparently wrong and it has resulted in
recording erroneous conclusions by the Tribunal.
29. I am constrained to observe that the learned
Tribunal has blindly relied upon the averments made by
respondent No.3 Bhanudas Deshmukh in his affidavit in reply
filed on 1.11.2012. It was the contention of Shri Deshmukh in
the said affidavit in reply that the School Committee was not in
existence and the appointments of the petitioners were not
made by the School Committee but were made by
ShriJ.V.Gade, the then Headmaster in his individual capacity.
The Tribunal has blindly accepted the said contention. As
noted earlier, the appellants i.e. present petitioners had placed
on record the additional affidavit in reply filed by Shri Laxman
Kisanrao Pasalwad in Writ Petition No.5492/2011, on 8th of
May, 2012, for and on behalf of the Education Officer
26 WP NO.8504/2014gr
(Secondary), Zilla Parishad, Beed. In the said additional
affidavit, it has been specifically averred that the appointments
of the petitioners were made by the School Committee and the
proposal for approval was also submitted by the School
Committee and that the Education Officer granted approval to
the said appointments after following due procedure and by
verifying the requirements of law. The Tribunal has, however,
misread and misinterpreted the averments in the said affidavit.
30. It is true that in the affidavit in reply filed by the
Education Officer, secondary, Zilla Parishad, Beed, on
26.11.2010 in Writ Petition No.3940/2010, it was not disclosed
that the Education Office has received the proposal from the
School Committee of Vaijanath School, Parali Vaijnath, seeking
approval to the appointments of the petitioners and that the
said proposal was under consideration. However, in the
additional affidavit in reply filed in Writ Petition No.5492/2011,
on 8th of May, 2012, for and on behalf of the Education Officer
( Secondary), Zilla Parishad, Beed, it has been amply clarified
that it was an inadvertent mistake that the facts to the effect
that the proposal is received from the School Committee of
Vaijnath School, Parali Vaijnath, seeking approval to the
appointments of the present petitioners and it is under
27 WP NO.8504/2014gr
consideration was not mentioned. In the additional affidavit in
reply, as stated hereinabove, it has been specifically stated that
the proposal was received from the School Committee and the
same was approved by the Education Office after verifying the
requirements of law. I deem it appropriate to reproduce
hereinbelow the entire contents of the said affidavit dated 8th
of May, 2012, in W.P.No.5492/2011, which read thus:
"Additional affidavit in reply on behalf of
Respondents No.2.:
" I, Laxman s/o Kishanrao Pasalwad, Age 58 years, Occu.
Govt. Service, at presently working as Office Superintendent in
the office of Education Officer, Secondary, Zilla Parishad, Beed.
I am filing this Additional Affidavit duly authorized by Education
Officer, Secondary, Zilla Parishad, Beed, do hereby state on
oath as under:-
1. I am filing this Additional-Affidavit in Reply on the basis
of record available with the office of Education (Secondary),
Zilla Parishad, Beed and as per authorization given by Incharge
Education Officer, because regular Education Officer is on long
medical leave.
2. That, in Writ Petition No.5492/2011, the Affidavit-in-
Reply filed on behalf of me by one Mr.Shankar s/o Kashiram
Pawar, the Education Officer (Secondary), Zilla Parishad, Beed,
however, in addition to that reply, I am filing this additional
affidavit-in-reply as under:
I say that, in Writ Petition No.3940/2010 the approval
granted by Education Officer for the period of 3 months i.e.
16.08.2009 to 11.10.2009 was questioned. In the said
petition, approval was granted on the basis of proposal
submitted by the then Head Master. The said proposal was
not backed by decision of the school committee, but same
appears to be forwarded in individual capacity of Head Master,
therefore, in paragraph No.5 ( Page No.78) statement was
made that, in case if in future, Head Master submits proposal,
the same will be considered over after scrutiny.
3. I say that, affidavit was filed on 26.11.2010 in
W.P.No.3940/2010, in the said Affidavit though the proposal
28 WP NO.8504/2014gr
submitted by school committee dated 12.09.2010 was pending
under consideration, the issue in Writ Petition No.3940/2010
was as to whether the Head Master in his individual capacity
can forward the proposal or whether, he can give appointment
was questioned. Therefore, in paragraph No.5, I had stated
that, in case if the Head Master forward the proposal, the same
would be scrutinized. I say that, the school committee's
proposal dated 20.09.2010 was pending when earlier reply was
filed / order was passed, but due to inadvertent, it could not
pointed out that, the proposal has been submitted by School
Committee on the basis of School Committee's resolution dated
12.09.2010. When the Head Master insisted to grant
approval as per proposal for the future of students and when it
is noticed that, the advertisement was issued by Head Master
to fill-up the post on 26.08.2010, the school committee took
decision on 12.09.2010, B.C. Cell's report on 17.09.2010 and
appointment were issued to the employees on 13.09.2010 and
the employees joined on 14.09.2010. The copy of request
made by Head Master dated 08.06.2010, proposal dated
20.09.2010 and B.C.Cell Report are annexed herewith and
marked as EXHIBIT 'R-1" Colly.
4. I say that, as the appointments were made and proposal
was submitted by the School Committee as per circular issued
by Director of Education time to time, wherein it is stated that,
when there is dispute between management then as a
secretary of school committee, Head Master can give
appointment to the employees in the school for the period of
three years. That, considering the need and urgency for
appointment of the teachers in the said school for the interest
of the students. The Education Officer has granted approval
to the appointment of the respondents as per proposal
submitted by school committee i.e. after verifying the
requirement about advertisement B.C.Cell report, vacancy,
etc., that, Head master empower issue appointment to the
employees for the period of three years and after considering
the requirement for approval Education Officer granted
approval to the services of respondent w.e.f. 14.09.2010,
because till 14.09.2010, appointment had been issued to the
respondents employees but except earlier one approval for
three months, there was no approval. Though employees
were working with the school, that, till 14.09.2010, all the
requirements had been complied by the school committee.
Therefore, approval is granted w.e.f. 14.09.2010.
5. I say that, Education Officer granted approval to the
services of respondent No.5 to 10 after following the due
procedure and verifying the requirement of law. That, this
deponent is tendering unconditional apology, because of not to
pointing out the proposal submitted by the school committee
29 WP NO.8504/2014gr
on 20.09.2010 as per Resolution dated 12.09.2010 which is
inadvertent and is not deliberate or intentional. Therefore,
this deponent is filing this Additional Affidavit-In-Reply.
Considering the above facts and circumstances, Writ
Petition may kindly be dismissed.
Hence this Additional affidavit-In-Reply.
Date: 08/05/2012 DEPONENT
Place: Aurangabad. Sd/- 8/5/12
(Laxman s/o Kishanrao Pasalwad)"
31. It is significant to note that in the affidavit in reply
filed by Shri Bhanudas Deshmukh in the appeals before the
School Committee though there is a reference of the affidavit in
reply filed by the Education Officer on 26.11.2010 in Writ
Petition No.3940/2010, there is no mention or disclosure about
the additional affidavit in reply filed by the said Education
Officer on 8th of May, 2012, in Writ Petition No.5492/2011.
The affidavit in reply was filed by Shri Bhanudas Deshmukh in
the appeals before the School Tribunal on 1.11.2012 i.e. after
about six months of the filing of the additional affidavit in reply
by the Education Officer in Writ Petition No.5492/2011. It
has also to be stated that Shri Deshmukh withdrew the
W.P.NO.5492/2011 on 30-10-2012 i.e. prior to filing affidavit in
reply before the School-Tribunal; but he did not disclose the
said fact in his said affidavit in reply. Shri Bhanudas Deshukh,
thus, suppressed the said material facts in his affidavit in reply
filed before the School Tribunal.
30 WP NO.8504/2014gr
32. Shri Bhanudas Deshmukh, however, has mentioned
about the order passed by the Division Bench on 9th of May,
2012 in Writ Petition No.5492/2011. It is quite evident that
the said order was mentioned with the only intention of
prejudicing the mind of the School Tribunal. I deem it
appropriate to reproduce the order passed by the Division
Bench of this Court on 9th of May, 2012 in Writ Petition
No.5492/2011 which reads thus:
"1] Heard learned counsel for the parties.
2] Rule.
3] Our attention is invited to the affidavit in reply filed by one
Laxman Kisanrao Pasalwad, on behalf of the Education Officer
(Secondary) Zilla Parishad, Beed in earlier W.P. No. 3940 of
2010. It will be necessary to make a reference to what is
stated in the said affidavit, which was filed on 26
November,2010.
4] In paragraph 3 and in particular on page 78, it is stated that
:-
"Hence, it is submitted that,this office has granted
approval to the appointments made for the period from
16.8.2009 to 11.10.2009. It is submitted that, the
school committee is not yet formulated in the petitioner
institution however, the career of the students should
not be placed at stay, as per the letter of the Director of
Education, the Head Master has been given authority to
make appointments. It is submitted that, as the approval
has been granted for a period of 57 days i.e. from
16.8.2009 to 11.10.2009, the honorarium needs to be
paid. However, it is brought to the notice of this Hon'ble
High Court that the said appointments are purely on
temporary and for a period of less than 3 months."
5] Now it is brought to our notice that the Education Officer
Secondary, Zilla Parishad has granted approval to the
appointment of the same persons w.e.f. 14th September,
2010. We may note that on the basis of the aforesaid
statement made in the affidavit dated 26th November,2010, by
31 WP NO.8504/2014gr
order dated 7th December, 2010, this Court disposed of the
writ petition, by accepting the statement made in paragraph 5
of the aforesaid affidavit. While disposing of the petition, this
Court observed thus :-
"It is thus clear that unless the permission is obtained
from B.C. Cell and the appointments are made in
accordance with due process of law, the same would not
be approved by the Education Officer."
6] Prima facie, we are of the view that after making categorical
statement as aforesaid and after the order dated 7th
December,.2010 was passed by this Court, the Education
Officer, could not have granted approval with retrospective
effect from 14.9.2010.
7] Prima facie, it appears that this will have to be viewed very
seriously. However, at this stage we refrain from passing any
further orders, as it is pointed by the learned AGP that the
Education Officer is on Medical Leave.
8] Hence, Rule on interim relief is made returnable on 13th
June, 2012. Concerned counsel appearing for the respondents
waive service."
33. It is more significant to note that inspite of an order
as above passed by the Division Bench, Shri Bhanudas
Deshmukh withdrew Writ Petition No.5492/2011 on 30th of
October, 2012. I reiterate that Shri Bhanudas Deshmukh did
not controvert the averments made in the additional affidavit in
reply filed by the Education Officer in Writ Petition
No.5492/2011 on 8th of May, 2012 by filing any rejoinder to it.
In the aforesaid writ petition, it was the specific allegation of
Shri Bhanudas Deshmukh that the appointments of the
petitioners w.e.f. 14.9.2010 were not made by the School
Committee and were not made by following due process of law.
32 WP NO.8504/2014gr
It was, therefore, the further contention of Shri Deshmukh that
the Education Officer should not have granted approval to such
appointments for the period of three years and Shri Deshmukh
has, therefore, challenged the order of approval dated 23rd
May, 2011 also.
34. The contents of the additional affidavit in reply filed
by the Education Officer in Writ Petition No.5492/2011 on 8th of
May, 2012, demonstrate that the Education Officer has
specifically denied all the allegations made by Shri Bhanudas
Deshmukh in respect of appointments of the petitioners and
approval to the said appointments by the Education Office.
When Shri Bhanudas Deshmukh inspite of the facts as above
did not file any rejoinder to the additional affidavit in reply filed
by the Education Officer and did not prosecute the writ petition
further, and instead of that withdrew the writ petition on 30th
of October, 2012, his such conduct leads to the only inference
that he conceded to the facts as were stated by the Education
Officer in his additional affidavit in reply. In the circumstances,
I reiterate that it was not open and permissible for Shri
Bhanudas Deshmukh to cancel the appointments of the
petitioners on the grounds which were raised by him in Writ
Petition No.5492/2011.
33 WP NO.8504/2014gr
35. If it was the genuine complaint of Shri Bhanudas
Deshmukh that the School Committee was not in existence and
the appointments of the petitioners were not made by the
School Committee and by following due procedure of law, he
must have prosecuted the said writ petition and must have
invited some verdict from the Division Bench on the issues
raised by him. Learned School Tribunal has failed in
appreciating the aforesaid aspects and ignoring the material on
record as aforesaid, has recorded a conclusion that the
petitioners have failed in establishing that their appointments
were made by the School Committee by following due process
of law. It is to be reiterated that by placing on record the
Resolution of the School Committee dated 12th of September,
2010, and placing on record the order of approval granted to
the said appointments by the Education Officer, wherein also it
was categorically mentioned that appointments of the
petitioners were made by the School Committee in accordance
with law, the petitioners have sufficiently discharged the
primary burden on them and when it was the case of
respondent Bhanudas Deshmukh that the School Committee
was not in existence at the relevant time, the said fact was to
be proved by him. As elaborately discussed hereinabove, Shri
34 WP NO.8504/2014gr
Bhanudas Deshmukh has failed in establishing his allegation
that the School Committee was not in existence at the relevant
time. In the circumstances, the finding recorded by the School
Tribunal in the impugned judgments that the appellants /
petitioners have failed in proving that their appointments were
made by the School Committee and were made in accordance
with law is contrary to the evidence on record and, therefore,
deserves to be set aside and quashed.
36. Perusal of the impuged judgments reveals that the
learned School Tribunal has misinterpreted the ratio laid down
in the Full Bench judgment of this Court in the case of St. Ulai
High School and another VS. Devendraprasad Jagannath
Singh and another ( 2007 (1) Mh.L.J. 597). The
correctness of the law laid down in earlier the two Division
Bench judgments of this Court; one in the matter of Anna
Manikrao Pethe Vs. Presiding Officer, School Tribunal (
1997 (3) Mh.L.J. 697) and the other in the matter of
Shailaja Ashokrao Walse Vs. State of Maharashtra
( 1999(1) Mh.L.J. 291), was questioned in the said Full Bench
judgment. In both the aforesaid judgments, the respective
Division Benches have held that where the appointment of a
teacher has not been approved by the Education Officer, the
35 WP NO.8504/2014gr
appeal filed by the teacher against an order of termination must
fail on that ground alone. The Full Bench held that both the
aforesaid judgments were not reflecting correct position of law.
The Full Bench held that the grant of approval by the Education
Officer is not a condition precedent to hold order of
appointment valid and the approval relates to disbursement of
grant in aid to the management and want of approval will not
invalidate the order of appointment if it is otherwise valid.
Referring to the ratio laid down as above in the aforesaid
judgment, the School Tribunal has held that merely because the
petitioners possess the approval to their appointments by the
Education Officer, would not validate their appointments. In
paragraph No.48 of the impugned judgment, the School
Tribunal has further observed that the respondent no.3 Shri
Bhanudas Deshmukh has already challenged the said order of
approval in Writ Petition No.5492/2011 and the same is
pending. The School Tribunal has further observed that when
the issue of validity of the appointment order dated 23.5.2011
was under consideration of the High Court in the aforesaid writ
petition, it was not open for the petitioners to take protection of
the said approval order to justify the validity of their
appointments. From the material on record it is quite clear
that the observations so made by the Tribunal are not only
36 WP NO.8504/2014gr
legally incorrect but are also factually incorrect. It is the
matter of record that Shri Bhanudas Deshmukh withdrew Writ
Petition No.5492/2011 on 30th of October, 2012, i.e. prior to
about one and half years of the decision rendered by the School
Tribunal. If the same logic is to be applied, as has been
applied by the School Tribunal that when the validity of the
approval order was under challenge the petitioners cannot take
protection of the said order, it has to be held that it was not
open and permissible for Shri Bhanudas Deshmukh to challenge
the order of approval on the same grounds when he had given
up the said challenge by withdrawing the said writ petition.
37. There cannot be a dispute that if the order of
appointment is valid, it is immaterial whether it has received
the approval from the Education Office or not and the services
of such candidate cannot be terminated on the ground that the
Education Office has not granted approval to his appointment.
However, if the approval is granted by the Education Office and
if somebody alleges that the approval so granted is illegal or in
violation of the Act and the Rules, the burden lies on the person
who makes such allegation to substantiate the said allegation.
38 I have elaborately discussed hereinabove that
37 WP NO.8504/2014gr
though Shri Bhanudas Deshmukh has made such an allegation,
he has utterly failed in proving the said allegation. When in
the additional affidavit in reply filed by the Education Officer in
Writ Petition No.5492/2011, he has clarified that the
appointments of the petitioners were made by the School
Committee and the Education Officer has granted approval to
the said appointments after following due process of law and by
verifying the requirements of law and when the copy of the said
affidavit was filed on record of the School Tribunal, there was
no reason for the School Tribunal to disbelieve the averments in
the said additional affidavit filed by the Education Officer.
When it was the contention of the Education Officer that the
appointments of the petitioners are made by the School
Committee by following due process of law, without there being
any contrary evidence on record, the School Tribunal could not
have recorded any contrary finding. At this juncture, it has to
be reiterated that Shri Bhanudas Deshmukh had also filed a
complaint to the Deputy Director of Education against the
appointment orders of the petitioners and approval granted to
their appointments by the Education Officer. The said
allegations were enquired into by the Enquiry Officer and a
clear finding was recorded by the Enquiry Officer that there was
no substance in the allegations made by Shri Bhanudas
38 WP NO.8504/2014gr
Deshmukh in his complaint. Shri Bhanudas Deshmukh
admittedly did not challenge the findings in the said enquiry
report before any higher authority.
39. After having considered the entire material on
record, I have reached to the conclusion that the learned
School Tribunal has manifestly erred in dismissing the appeals
filed by the petitioners. The School Tribunal was swayed by
the fact that the petitioners are kins of the Headmasters, and
the members of the Managing Committee. The School
Tribunal failed in appreciating that to be a kin of the
Headmaster or the Member of the Managing Committee, cannot
be a disqualification for a person if he is otherwise eligible to be
appointed. In view of the fact that Shri Bhanudas Deshmukh,
who cancelled the appointment orders of the petitioners, failed
in justifying his said action and could not substantiate the
grounds which were taken by him in the said order of
cancellation, the said order has to be quashed and set aside.
40. In the foregoing circumstances and for the reasons
stated above, I am inclined to allow all these Writ Petitions.
Hence, the following order.
39 WP NO.8504/2014gr
ORDER
1. The orders passed by the School Tribunal, Aurangabad, in
Appeal Nos. 33/2012, 34/2012, 35/2012, 36/2012 and 37/2012
stand quashed and set aside.
2. The order dated 3.9.2012 whereby the appointments of
the petitioners were cancelled by respondent no.3 Shri
Bhanudas Deshmukh, stands set aside and quashed.
3. The respondents are directed to reinstate the petitioners
on their respective posts with continuity of service, backwages
and the consequential benefits within two months from the date
of this order.
. The Writ Petitions are allowed in the aforesaid terms. No
order as to the costs.
(P.R.BORA)
JUDGE
