Bombay High Court
Ravisoot Vyayam And Shikshan ... vs The State Of Maharashtra And Ors on 31 March, 2017
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4346 OF 2009
WITH CIVIL APPLICATION NO.2249 OF 2010
Ravisut Vyayam and Shikshan ... Petitioner
Prabodhan Sanstha, Indira
Smriti, Bhoiwada, Milk Corner,
Aurangabad, Through its
President Shri B. P. Salve
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Social Justice and Special
Assistance Department,
Mantralaya, Mumbai
2. Director of Social Welfare,
Maharashtra State, Pune
3. The Divisional Social Welfare
Officer, Aurangabad Division,
Aurangabad.
4. District Social Welfare
Officer, Aurangabad.
5. Shivam Bahuuddeshiya Sevabhavi
Mandal, Ghusurtanda, Taluka
Kannda, Dist. Aurangabad,
Through its President Namdeo
Soma Chavan.
6. Chagan S/o Balaji Pawar,
Age 51 yrs.Occ.Service,
Presently working as a
Asstt.Teacher in Primary
Ashram School, With Resp.No.6
at Chapner, Tq.Kannad,
Dist. Aurangabad.
7. Pradeep S/o Vidnyan Borde,
Age 51 yrs. Occ.Service,
Presently working as a
Asstt.Teacher, In Primary
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School,With Resp.No.6 at
Chapner,Tq.Kannad,
Dist.Aurangabad.
8. Smt.Anita Narayan Suradkar,
Age 37 Yrs.Occ.Service,
Presently working as Cook
In Primary Ashram School,
With Resp.No.6 at Chapner,
Tq.Kannad, Dist.Aurangabad.
9. Smt.Radhabai Harishchandra
Rathod,
Age 50 Yrs.Occ.Service
Presently working as Cook
In Primary Ashram School,
With Resp.No.6 at Chapner,
Tq.Kannad, Dist.Aurangabad.
10. Suresh S/o Tanaji Jamdade,
Age 49 yrs.Occu.Service
Presently working as Kamathi
In Primary Ashram School,
With Resp.No.6 at Chapner, Respondents
Tq.Kannad, Dist.Aurangabad. ...
Mr. V. D. Sapkal, Advocate for the petitioner,
Mrs. M.A. Deshpande, Addl. G. P. for respondents 1 to 4
Mr. V. J. Dixit, Senior Advocate instructed by Mr. V.
B. Garud, Advocate for respondent No.5
Mr. M. P. Gude, Advocate for respondent Nos. 6 to 10.
WITH
WIRT PETITION NO.2871 OF 2009
1. Pradeep s/o Vidnyan Borde,
Age: 50 Years, Occ. Service,
presently working as Assistant
Teacher in Primary Ashram
School, Chapaner, Taluka-Kannad,
Dist. Aurangabad.
2. Ravindra s/o Tulsiram Gavai,
Age: 51 Years, Occ. Service,
presently working as Assistant
Teacher in Primary Ashram
School, chapaner, Taluka-Kannad,
Dist. Aurangabad.
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3. Chagan s/o Balaji Pawar,
Age: 50 Years, Occ. Service,
presently working as Assistant
Teacher in Primary Ashram
School, chapaner, Taluka-Kannad,
Dist. Aurangabad.
4. Himmatsingh s/o Bharatsingh
Girase,
Age: 40 Years, Occ. Service,
presently working as Assistant
Teacher in Primary Ashram
School, Chapaner, Taluka-Kannad,
Dist. Aurangabad.
5. Navalsing s/o Tarasing Rajput,
Age: 40 Years, Occ. Service,
presently working as Assistant
Teacher in Primary Ashram
School, chapaner, Taluka-Kannad,
Dist. Aurangabad.
6. Smt. Vimal Anandrao More,
Age: 38 Years, Occ. Service,
presently working as Assistant
Teacher in Primary Ashram
School, chapaner, Taluka-Kannad,
Dist. Aurangabad.
7. Chandrakant s/o Sampatrao Sable,
Age: 38 Years, Occ. Service,
presently working as Hostel
Superintendent, Primary Ashram
School, Chapaner, Taluka-Kannad,
Dist. Aurangabad.
8. Sow. Radhabai Harischandra
Rathod,
Age: 50 Years, Occ. Service,
presently working as Cook in
Primary Ashram School, Chapaner,
Taluka-Kannad, Dist. Aurangabad.
9. Sow. Anita Narayan Suradkar,
Age: 37 Years, Occ. Service,
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presently working as Cook in
Primary Ashram School, chapaner,
Taluka-Kannad, Dist. Aurangabad.
10. Sow. Raubai Wamanrao Bagul, ... Petitioners
Age: 52 Years, Occ. Service,
presently working as Cook in
Primary Ashram School, Chapaner,
Taluka-Kannad, Dist. Aurangabad.
11. Suresh s/o Tanaji Jamdhade,
Age: 40 Years, Occ. Service,
presently working as Kamathi in
Primary Ashram School, Chapaner,
Taluka-Kannad, Dist. Aurangabad.
VERSUS
1. The State of Maharashtra,
Through its Social Justice and
Special Assistance Department,
Mantralaya, Mumbai
2. The Director of Social Welfare,
Maharashtrta State, Pune.
3. The Divisional Social Welfare
Officer, Aurangabad Division,
Aurangabad.
4. The District Special Social
Welfare Officer, Aurangabad
5. Ravisut Vyayam Va Shikshan
Prabodhan sanstha, Aurangabad,
Through its President-
Bhimcharan Anandrao More
Age 48 years, Occu: Social work,
R/o Mill Corner, Bhoiwada,
Aurangabad.
6. Shivam Bahuuddeshiya Sevabhavi
Mandal, Ghusur Tanda, Taluka
Kannad, District Aurangabad,
Through its President, Namdeo
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Soma Chavan r/o Kannad, Taluka
Kannad, District Aurangabad.
7. Shri Namdeo Soma Chavan, ... Respondents
Age 52 years, Occu: Service and
President of hivam Bahuuddeshiya
Sevabhavi Mandal, Ghusur Tanda,
Taluka Kannad, District
Aurangabad.
Mr. P. M. Gaikwad, Advocate for the petitioner,
Mrs. M.A. Deshpande, Addl. G. P. for respondents 1 to 4
Mr. V. J. Dixit, Senior Advocate instructed by Mr. V.
B. Garud, Advocate for respondent No.6 and 7
Mr. M. V. Salunke h/for Mr. V. D. Salunke, Advocate
for respondent No.5.
CORAM : S. V. GANGAPURWALA &
K. L. WADANE, JJ.
RESERVED ON : 9th March, 2017
PRNOUNCED ON : 31st March, 2017
JUDGMENT:
1. JUDGMENT (Per K. L. Wadane, J.):
2. Government Resolution dated 1st March, 2009
transferring Primary Ashram School, Chapaner, Taluka
Kannad, run by Ravisut Vyayam and Shikshan Prabodhan
Sanstha (Petitioner in WP No.4346/2009 and Respondent
No.5 in WP No.2871/2009, hereinafter refereed to as the
Petitioner Ravisut Society) to Shivam Bahuuddeshiya
Sevabhai Mandal, Ghusur Tanda Taluka Kannad (Respondent
No.5 in WP No.4346/09 and Respondent No.6 in WP
No.2871/2009, hereinafter refereed to as the Respondent
Shivam Society) is challenged in the above writ
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petitions. Writ Petition No. 4346/2009 is filed by the
Petitioner Ravisut Society whereas, Writ Petition
No.2871/2009 is filed by the permanent employees
appointed in the Primary Ashram School, Chapaner
(hereinafter referred to as the 'petitioner
employees'). As such both the petitions are heard
together.
3. It is the contention of the petitioner in Writ
Petition No. 4346 of 2009 that the Petitioner Ravisuit
Society is registered under the provisions of the
Societies Registration Act as well as Bombay Public
Trust Act. The petitioner society is running primary
Ashram School at Chapaner, Taluka Kannad and employed
entire staff including Assistant Teacher, Hostel
Superintendent, Cook, and Kamathi. The petitioner
Society is receiving grant for running the Ashram
schools.
4. On 01.12.2005, the petitioner Ravisut society
had passed a Resolution and decided to transfer its
Ashram School, Chapaner to the Respondent Shivam
Society. Accordingly, a proposal was sent to the
Social Welfare Officer, Aurangabad for transfer of the
Ashram School on 13.02.2006. Such resolution was
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passed because the petitioner Society was facing some
difficulty to run the Ashram School. However,
subsequently, the difficulties being faced by the
petitioner were resolved by the villagers and leaders
of the village and on 01.03.2006, the petitioner
society passed another resolution thereby earlier
resolutions dated 01.12.2005 came to be cancelled and
accordingly communication was made to the Respondent
Shivam Society and copies of the same were forwarded
to respondent Nos. 2, 3 authorities and the Hon'ble
Minister of the concerned Department. It was
requested to the authorities concerned that no action
be taken for transfer of the Ashram School to the
Respondent Shivam Society. As nothing was communicated
to the petitioner Society by the Authorities, the
petitioner society was under impression and belief that
the proposal itself is cancelled and the appropriate
authority would not take any decision for transfer of
the Ashram Schools.
5. On 01.08.2007, the Government took a decision
that if somebody wants to transfer a Ashram School to
any other School, then no grant will be provided to
such Ashram School for three years. Subsequently, on
01.03.2009, the Government passed the impugned
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resolution, referring to decision of transfer dated
01.12.2005 taken by the petitioner society, and
decided to transfer the Primary Ashram School, Chapaner
to the respondent Society at Ghusurtanda. Further
decision is taken by the Government that from the date
of transfer, the Government grants are not payable.
Being aggrieved with the aforesaid Government the
petitioner society has field present writ petition
No.4346/2016.
6. It it is the contentions of the petitioners
employees in Writ Petition No. 2871/2009 that they
are the permanent employees of the Ashram School run
by the petitioner Ravisut society and they have been
appointed by following due process of law, prior to
10 years. They have challenged the same Government
Resolution dated 01.03.2009 on the ground that
transfer of the Ashram school by the Government was
without the consent and without hearing the petitioner
employees and no provision of the MEPS Act or the
Rules supports such transfer. It is further
contended that both the Societies i.e. petitioner
Ravisut society and Respondent Shivam Society are
registered under the provisions of the Registration of
Societies Act as well as Bombay Public Trust Act and
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no order is passed by the Charity Commissioner to
transfer one society to another society.
7. Affidavit in reply is filed on behalf of
respondent Nos. 1 to 4 Authorities. It is contended
that transfer of the Ashram School is as per the
request and the resolution passed by the petitioner
society and subsequent cancellation of such resolution
was not communicated to the respondents nor they have
knowledge about the same.
8. Chairman of the respondent Shivam Society Mr.
Namdeo Chavan has filled affidavit and opposed the
petition and disputed the authority of the present
petitioner society to file writ petition. According to
the Respondent Society, the trustees of the petitioner
Ravisut society have taken conscious decision to
transfer the Ashram School and forwarded the proposal
and accordingly respondents 1 to 4 authorities have
taken decision to transfer the school in the interest
of students. No documentary evidence is produced on
record to show that subsequent resolution cancelling
the earlier resolution was communicated to respondent
Nos. 1 to 4.
9. In the affidavit in rejoinder, the petitioner
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society has stated that the respondent Shivam Society
has manipulated some documents and disputing the case
of the petitioner society.
10. We have heard Mr. V. D. Sapkal and Mr. M. V.
Salunke Advocate for the petitioner Ravisut Society,
Mrs. M.A. Deshpande, learned Addl. G. P. for
respondents 1 to 4 State authorities in both the
petitions, Mr V. J. Dixit, learned Senior Advocate
for respondent Shivam Society, Mr. M. P. Gude, Advocate
for respondent Nos. 6 to 10 in WP 4346 and Mr. P. M.
Gaikwad, Advocate for the petitioner employees.
11. On perusal of the record, it appears that the
petitioner society was unable to run the Ashram School
at Chapaner due to some difficulties. Therefore, vide
resolution dated 01.03.2006, it has decided to transfer
the Ashram School to the respondent Shivam Society. It
was further resolved that till the Government sanctions
the transfer of Ashram School, the petitioner society
was to manage the Ashram School. Proposal was sent to
the Social Welfare Officer alongwith consent letters of
the employees and it was pending before the
Government for its consideration. In the meantime,
difficulties faced by the petitioner society were
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resolved with the help of villagers and village
leaders and therefore, the petitioner Society passed
another resolution dated 01.03.2006 stating that since
difficulties are resolved and till then the
Government has not transferred the Ashram School to
respondent Shivam Society, it was unanimously decided
to cancel the earlier resolution dated 01.12.2005.
Further, it reveals that copies of such resolutions
were sent to the respondents by Under Posting
Certificate (UPC) and copies of such UPC are placed on
record at Exh.R-1.
12. Respondent Shivam Society has opposed the
petitions, however, it is not made clear, how it is
related to the Ashram School run by the petitioner
society. Merely because some resolutions are passed
by the Government, transferring the Ashram school run
by the Petitioner society, the respondent Shivam
Society is opposing the writ petitions.
13. Looking to the contents of the impugned GR dated
01.03.2009, it reveals that the Ashram School, Chapaner
run by the petitioner society is transferred merely on
the ground of request of the petitioner society. No
doubt, the Government is authorized to transfer one
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Ashram School to any other Ashram School on the
grounds mentioned in clause Nos. 2 to 7 of Government
Resolution dated 01.08.2007.
14. The resolution by which it was decided to
transfer the Ashram school is subsequently withdrawn by
the petitioner society. The only stand taken by
respondents 1 to 4 authorities is that the Government
has passed the impugned resolution as per the request
of the petitioner society and no communication was
received from the petitioner society about cancelling
of the earlier decision for transfer of the Ashram
school. Copies of the UPC receipts forwarding the
subsequent resolution are placed on record. From
which, it can be presumed that the copies of the
subsequent resolution passed by the petitioner society
were received the addressee/respondents authorities. In
such circumstances, the Government ought not have
transferred the Ashram School of the Petitioner society
to the Respondent Shivam Society, that too without
hearing and without intimation to the petitioners.
15. The petitioners in Writ Petition No.2871 of
2009, employees of the Ashram School have specifically
stated that before the transfer of the Ashram School,
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no opportunity of being heard was given to them.
Further, it is the case of these petitioners employees
that the petitioner Ravisut Society has taken
signatures of the petitioners employees on blank stamp
papers and possibility of misuse of such stamp papers
cannot be ruled out. Such contention of the petitioner
employees has not been denied by the petitioner Ravisut
society.
16. It reveals from the record that the petitioner
in Writ Petition No. 2871/2009 are the employees of
Ashram School, Chapaner run by the petitioner -Ravisut
Society. It is seen from the record that both the
Societies i.e. Petitioner Ravisut society and
Respondent Shivam Society are registered under the
Provisions of the Registration of Societies Act as well
as Bombay Public Trust Act. The petitioners have
assailed the Government resolution on the ground that
upon transfer of the Ashram School, the Government is
not giving grant to such school for three years.
Therefore, it would be very difficult to maintain the
service conditions of the petitioners employees.
17. According to the petitioners employees,
transfer of the Ashram school was without notice to
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the petitioners employees. The petitioners employees
have disputed their consent to transfer the Ashram
school, for which there is no reply by the petitioner
Ravisut society.
18. The resolution to transfer the Ashram school
dated 01.12.2005 passed by the petitioner society was
subsequently withdrawn by resolution dated 01.03.2006,
which was communicated to the respondent authorities.
However, it appears that due to miscommunication or non
communication, the Government has passed the impugned
resolution behind back of the petitioners Society.
Furthermore, the impugned Government resolution was
passed without giving notice to the permanent
employees of the Ashram School and the petitioner
Ravisut Society.
19. In view of the above discussion, both the writ
petitions are allowed.
20. The impugned Government Resolution dated
01.03.2009 is quashed and set aside.
21. The Respondent Authority shall take decision
about transfer of the Ashram School afresh after
hearing the concerned parties, in accordance with law,
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expeditiously, preferably within six months from the
date of order.
22. Rule is made absolute in the aforesaid terms. No
costs.
23. In view of disposal of the writ petitions,
pending civil application also stand disposed of.
(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )
JPC
