Bombay High Court
Parasram Dullchand Surywanshi vs State Of Maharashtra, Through Its ... on 5 July, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 420 OF 2013
Parasram Dulichand Suryawanshi (Dead)
(the legal representatives of the deceased
petitioner)
a) Smt. Hirawatibai Parasram Suryawanshi (Wife),
Occu - Nil, Age - 55 Years,
R/o Subhash Ward, Tirora, Gondia.
b) Rajendra Parasram Suryawanshi (Son),
Occu - Business, Age - 37 Years,
R/o. Subhash Ward, Tiroda,
District - Gondia.
c) Rajbala Tarachand Darwade (Daughter),
Occu - Nil, Age - 35 Years,
R/o. C/o. Parasram Suryawanshi,
Subhash Ward, Tirora, Gondia.
d) Surendrakumar Parasram Surywanshi (Son),
Occu - Student, Age - 33 Years,
R/o. Subhash Ward, Tirora,
Gondia. ..... PETITIONERS
...V E R S U S...
1. State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya, Mumbai.
2. Deputy Director of Education,
Nagpur Division, Nagpur.
3. The Education Officer (Secondary)
Zilla Parishad, Gondia.
4. Saraswati Shikshan Sanstha,
Through its Secretary, Mendha
Thanegaon, Taluka : Tiroda,
District : Gondia.
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5. Shri Swami Vidyalaya,
Through its Head Master,
Tiroda, Dist : Gondia. ... RESPONDENTS
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Shri A. D. Mohgaonkar, Advocate for the petitioners.
Shri K. L. Dharmadhikari, AGP for the respondent Nos.1 to 3.
Shri P. N. Shende, Advocate for the respondent Nos. 4 and 5.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
05/07/2017.
ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)
By this writ petition, the petitioner challenges the order
of the respondent No.3 - Education Officer dated 01/09/2012 rejecting
the representation of the petitioner.
The petitioner was appointed in the school run by the
respondent No.4 - management on 01/06/1994. At the relevant time,
the school was run on no grant-in-aid basis. The school in which the
petitioner was teaching was brought on grant-in-aid in the year 2001.
The management sent the proposal of the petitioner for grant of
approval to his appointment to the Education Officer on 28/08/2002.
At the same time, a proposal for granting approval to the promotion of
the petitioner to the post of Headmaster was also sent. The Education
Officer initially granted approval to the appointment of the petitioner
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on 29/08/2002 but the same was cancelled by an order dated
25/03/2003 on the ground that the initial appointment of the petitioner
was not made by following due procedure for selection. The order
cancelling the approval was challenged before this Court in Writ
Petition No.2313/2003. The said writ petition was dismissed and the
decision of cancellation of the approval to the appointment of the
petitioner as an Assistant Teacher was upheld. After the approval to the
appointment of the petitioner was cancelled, the petitioner continued to
work on the post of Assistant Teacher and was also performing
administrative and financial duties of the Headmaster. Though the
approval of the petitioner was cancelled, the respondent - authorities
continued to pay the salary to the petitioner from the Government
Exchequer till the mistake was realized by the Education Officer in the
year 2008. The Education Officer asked the petitioner to repay the
amount that was wrongfully paid to the petitioner from the State
Exchequer after the cancellation of his approval till the same was
released in his favour. The said order was challenged by the petitioner
in Writ Petition No.1164/2012. This Court while disposing of Writ
Petition No.1164/2012 directed the Education Officer to hear the
petitioner on the issue of cancellation of his approval and also in regard
to recovery. The Education Officer by the impugned order dated
01/09/2012 has partly rejected the representation of the petitioner. It is
held by the Education Officer that the approval was rightly cancelled.
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Shri Mohgaonkar, the learned counsel for the petitioner
submits that the petitioner was continuously working in the school run
by the respondent No.4 from the year 1994 till he retired on attaining
the age of superannuation in the 2014. It is submitted that the
petitioner has expired in the year 2016 and the petitioner's wife would
be entitled to the pensionary benefits, if the services rendered by the
petitioner from the year 1994 till the year 2014 are reckoned for
computing the pensionary benefits. It is submitted that though the
approval to the petitioner's appointment was cancelled on 25/03/2003,
the Government paid the salary to the petitioner from the State
Exchequer till the year 2008 and till then, the petitioner was also
permitted to exercise financial and administrative powers of the
Headmaster. It is submitted that in the circumstances of the case, the
services of the petitioner from the year 1994 till 2014 should be
reckoned for granting the pensionary benefits.
Shri Dharmadhikari, the learned Assistant Government
Pleader appearing for the respondent Nos.1 to 3 has supported the
order of the education authorities. It is submitted that the approval
granted to the appointment of the petitioner on 29/08/2002 was
cancelled by the Education Officer on 25/03/2003 as the appointment
of the petitioner was not made after following the due procedure for
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selection. It is submitted that the writ petition filed by the petitioner
against the order of cancellation of his approval bearing Writ Petition
No.2913/2003 was dismissed and the order of the Education Officer
cancelling the approval attained finality. It is submitted that though the
approval to the appointment of the petitioner was cancelled on
25/03/2003, the Education Authorities wrongly continued to release
the salary of the petitioner from the Government Exchequer and the
mistake in this regard was realized in the year 2008. It is submitted that
the recovery of the amount wrongfully paid to the petitioner was sought
by an order passed by the Education Officer in the year 2008. It is
submitted that after 2008, the petitioner has not rendered any services
in the respondent No.4 - school. It is stated that the petitioner had not
worked on the post of Assistant Teacher or Headmaster after
31/08/2008. It is submitted that since the petitioner was the President
of the Education Society that runs the school in which the petitioner
claims to have worked, by misusing his power and authority, the
petitioner did not give the charge of the post of Headmaster or Assistant
Teacher to any other employee though after 31 st August, 2008, the
petitioner has not rendered any services in the school. It is submitted
that since the approval to the appointment of the petitioner was
cancelled, on 25/03/2003 and the said order has attained finality, the
petitioner would not be entitled to any pensionary benefits as there is
no approval to the services of the petitioner right from 1994 in view of
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the cancellation of the approval to his appointment. The learned
Assistant Government Pleader sought for the dismissal of the writ
petition.
Shri Shende, the learned counsel for the respondent
Nos.4 and 5 has supported the case of the petitioner. It is submitted that
the relief sought by the petitioner needs to be granted.
On hearing the learned counsel for the parties and on a
perusal of the documents annexed to the petition, specially the order
passed in Writ Petition No.2913/2003 as also the order of cancellation
of approval dated 25/03/2003, it appears that the relief sought by the
petitioner cannot be granted. The petitioner was appointed in the year
1994 when the school was not receiving grant-in-aid. The school was
brought on grant-in-aid in the year 2001. After the school was brought
on grant-in-aid, the proposal of the petitioner was sent to the Education
Officer in the year 2002 for grant of approval. The Education Officer
had initially granted approval to the appointment of the petitioner on
the post of Assistant Teacher on 29/08/2002. The said approval was
however, cancelled by the Education Officer by the order dated
25/03/2003 after finding that the appointment of the petitioner was
not made after following the due process of selection. The petitioner
challenged the said order in Writ Petition No.2913/2003 but the said
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writ petition was dismissed and the order of the Education Officer was
upheld. Though the approval to the appointment of the petitioner was
cancelled in the year 2003, the Education Authorities mistakenly
continued to pay the salary to the petitioner from the Government
Exchequer till the mistake was realized in the year 2008. The Education
Authorities after realizing the said mistake sought a recovery of the
amount that was paid to the petitioner from the Government
Exchequer. The petitioner challenged the said action in Writ Petition
No.1164/2012. When the said writ petition was heard, none of the
parties pointed out that this Court had dismissed Writ Petition
No.2913/2003 filed by the petitioner and had upheld the order of
cancellation of approval to the appointment of the petitioner. On a re-
examination of the matter, by the impugned order, the Education
Officer has again rejected the claim of the petitioner for grant of
approval. Actually, the Education Officer could not have undertaken the
exercise of again considering whether the approval of the petitioner was
rightly cancelled or not. The issue in regard to cancellation of the
approval of the petitioner to the post of Assistant Teacher was decided
against the petitioner in Writ Petition No.2913/2003 and this Court had
upheld the order of the Education Officer cancelling the approval. The
services of the petitioner were approved for a few months and after
realizing the mistake, the approval to the appointment of the petitioner
was cancelled. In the absence of any approval to the petitioner's
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services, the petitioner cannot be heard to say that his services from the
year 1994 till the date of his retirement in the year 2014 should be
considered for granting the pensionary benefits. When the appointment
of the petitioner is not approved, the petitioner cannot seek the
pensionary benefits. Moreover, the claim of the petitioner that the
petitioner had worked till the date of his retirement is seriously
disputed by the respondent - authorities. It is categorically stated in the
additional affidavit-in-reply filed on behalf of the respondent Nos.2 and
3 that the petitioner has never worked in the school after 31 st August,
2008 and has misused his power and authority of being the President of
the society that runs the school in which he was working. Since we find
that there was no approval to the services of the petitioner, the
petitioner would not be entitled to the relief claimed. The services
rendered by the petitioner as an Assistant Teacher cannot be considered
for granting pensionary benefits, as the services of the petitioner were
not approved. In the circumstances of the case, the writ petition is liable
to be dismissed.
Hence, we dismiss the same as such, with no order as to
costs.
JUDGE JUDGE
Choulwar
