Bombay High Court
Ashok Satram Honmane vs State Of Maha & Ors on 5 October, 2017
Bench: R.D. Dhanuka
Writ Petition No.2000/4004
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.4000 OF 2004
Ashok s/o Satram Honmane
Age 34 years, Occu. Service,
R/o At Post : Tadkalas, Tq. Purna,
District Parbhani ... PETITIONER
VERSUS
1) The State of Maharashtra
School Education Department,
Mantralaya Vistar Bhavan,
Mumbai, through its Secretary
(Copy to be served on G.P.,
High Court of Bombay,
Bench at Aurangabad)
2) Education Officer (Secondary),
Zilla Parishad, Parbhani
3) Ganga Shikshan Prasarak Mandal,
Gorakshan Road, Parbhani,
Tq. and Dist. Parbhani
through its President
4) Yeshwant Madhyamik Vidyalaya,
Sadegaon, Tq. & Dist. Parbhani
through Head Master. ... RESPONDENTS
.....
Shri R.J. Godbole, Advocate for petitioner
Mrs. M.A. Deshpande, A.G.P. for respondents No.1 & 2
Shri S.R. Barlinge, Advocate for respondents No.3 & 4
.....
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Writ Petition No.2000/4004
2
CORAM: R.D. DHANUKA AND
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 27th September, 2017
Date of pronouncing judgment : 5th October, 2017
JUDGMENT (PER R.D. DHANUKA, J.):
1. By this Writ petition filed under Article 226 of the
Constitution of India, the petitioner seeks a writ of certiorari and
appropriate writ for quashing and setting aside the order dated
6.12.1999, passed by the Education Officer (Secondary), Zilla
Parishad, Parbhani cancelling the alleged approval order dated
11.11.1999, alleged to have been granted in favour of the
petitioner. The petitioner also seeks a mandatory order against
the respondent No.2 to recognize and to accord an approval in
favour of the petitioner as Physical Education Teacher w.e.f.
14.6.1999 and to pay salary to the petitioner w.e.f. 14.6.1999 till
the date of petition jointly or severally as per Vth Pay
Commission. Some of the relevant facts for the purpose of
deciding this Writ Petition are as under :
2. The petitioner is B.A. M.P.Ed. Respondent No.4 is a
school, namely Yashwant Madhyamik Vidyalaya at Sadegaon,
which was a recognized and aided school. It is the case of the
petitioner that he was appointed as Physical Education Teacher
by the school of respondents No.3 and 4 on 4.6.1999 w.e.f.
Writ Petition No.2000/4004
14.6.1999 on probation for two years according to the provisions
of the Maharashtra Employees of Private schools (Conditions of
Service) Regulation Act, 1977. It is the case of the petitioner
that, the appointment order was in the custody of the respondent
No.4 and was not physically served on the petitioner. It is the
case of the petitioner that the Education officer accorded an
approval to the appointment of the petitioner as Physical
Education Teacher on 11.11.1999.
3. The petitioner has alleged to have worked as Physical
Education Teacher in the school of the respondent No.4
satisfactorily during the probationary period. The respondent
no.3 thereafter resolved to transfer the place of school from
Sadegaon to Tadkalas after obtaining permission from State
Government. It is the case of the petitioner that the respondent
no.2, in his letter dated 20.4.2000, specifically observed that, the
teachers working in Sadegaon School would be accommodated in
the school situated in Tadkalas. According to the petitioner,
there were total 10 employees working in the school at Tadkalas
prior to the shifting of the school from Sadegaon to Tadkalas. It
is the case of the petitioner that the petitioner accordingly
started performing his duties at Tadkalas in the school namely
Yeshwant Madhyamik Vidyalaya, Tadkalas, District Parbhani.
4. Some time in the year 2000, the inhabitants of
Writ Petition No.2000/4004
Tadkalas filed a Writ Petition No.2889/2000 in this Court
challenging the validity of the order passed by the State
Government allowing the respondent No.3 to transfer the school
from Sadegaon to Tadkalas. Pursuant to an interim order passed
by this Court in the said Writ Petition, the respondent No.2 has
alleged to have inspected the school at Tadkalas and found the
name of the petitioner at Sr.No.2 on the date of his visit. The
name of the petitioner is reflected in the said report dated
21.2.2002.
5. By an order dated 26.2.2003, this Court allowed the
said Writ Petition no.2889/2000 filed by some of the inhabitants
of Sadegaon and was pleased to set aside the order dated
20.4.2000 passed by the State Government, granting permission
to the management to transfer the said school from Sadegaon to
Tadkalas. This Court directed the management to take steps to
close down its school at Tadkalas and not to run the said school
in the coming academic years unless it had been granted fresh
permission by the competent authority. By a letter dated
25.3.2003, the petitioner requested the management to allow
him to resume duty in the said Yeshwant Madhyamik Vidyalaya,
Sadegaon followed by various other letters to the management
to allow him to join as Physical Education Teacher in the said
school.
Writ Petition No.2000/4004
6. It is the case of the petitioner that, some unknown
persons took signatures of the petitioner on 16.9.2003 on various
blank papers. The petitioner, therefore, lodged a complaint
against respondent No.3. It is the case of the petitioner that, the
respondent No.3 thereafter terminated the services of the
petitioner vide letter dated 17.9.2003. The petitioner, therefore,
challenged the said order by filing an appeal under Section 9 of
the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 before the School Tribunal at
Aurangabad. By an order and judgment dated 21.1.2008, the
School Tribunal, Aurangabad dismissed the said appeal filed by
the petitioner. The petitioner had filed a Writ Petition in this
Court, thereby impugning the said order and judgment dated
21.1.2008 passed by the School Tribunal. The said Writ Petition,
however,, is dismissed for non-compliance of office objections.
The said order dated 21.1.2008 was passed by the School
Tribunal during the pendency of this Writ Petition. Application
filed by the petitioner for restoration of the said Writ Petition is
pending.
7. It is the case of the petitioner that, he thereafter
came to know that the approval granted to the appointment of
the petitioner was cancelled by the Education Officer, Zilla
Parishad, Parbhani. The petitioner addressed a letter to the
Writ Petition No.2000/4004
Education Officer (Secondary), Zilla Parishad, Parbhani,
demanding a copy of the cancellation of the approval letter. The
petitioner sent a reminder to the Education Officer on 9.2.2004.
It is the case of the petitioner that the Education Officer
thereafter on 16.4.2004, produced a copy of the letter dated
3.4.2004, annexing a copy of letter cancelling the approval of the
appointment of the petitioner. The said order was dated
6.12.1999. Being aggrieved by the said order dated 6.12.1999,
the petitioner filed this Writ Petition, interalia praying for
quashing and setting aside the said order and for various reliefs.
8. Mr. Godbole, learned counsel for the petitioner invited
our attention to some of the annexures to the petition and more
particularly to the letter of approval dated 11.11.1999,
purporting to approve the appointment of the petitioner and
other teachers. He submits that, by the said approval order
dated 11.11.1999, the appointment of the petitioner was not only
approved but the petitioner was also granted powers to sign the
pay bills for the period 14.6.1999 to 31.12.1999. It is submitted
by the learned counsel that the petitioner had worked in the
respondent No.4 school as Physical Training Teacher and was
confirmed on completion of the probation period.
9. Learned counsel for the petitioner invited our
attention to the inspection report dated 21.2.2002 submitted by
Writ Petition No.2000/4004
the Education Officer (Secondary), Zilla Parishad, Parbhani and
would submit that, when the Education Officer had visited the
school at Tadkalas pursuant to an interim order passed by this
Court, the Education Officer had found the petitioner present in
the school premises at Tadkalas. In the said report, the
Education Officer had also mentioned the date of the
appointment of the petitioner as 14.7.1999. He submits that, at
the bottom of the said report, it is clearly mentioned by the
Education Officer (Secondary) that the said report was prepared
after considering the admission register, school leaving
certificate, attendance register.
10. It is submitted that since the petitioner was already
working in the respondent no.4 school as is apparent from the
report submitted by the Education Officer (Secondary), and his
appointment was already approved by the Education Officer
(Secondary), the approval granted to his appointment could not
have been cancelled by the Education Officer without any notice
and without rendering an opportunity of being heard to the
petitioner and merely on the basis of the complaints made by
some of the teachers or even otherwise. He submits that, the
impugned order thus passed by the Education Officer
(Secondary) is in gross violation of principles of natural justice.
In support of this submission, learned counsel placed reliance on
Writ Petition No.2000/4004
the judgment of this Court in case of Shri Mali Deepak
Nagnath & anr. Vs. The State of Maharashtra through
Secretary, Education Department & ors. [2015 SCC OnLine
Bom. 3983].
11. Mrs. M.A. Deshpande, learned A.G.P. for respondents
No.1 and 2, on the other hand, invited our attention to the
alleged approval letter dated 11.11.1999, annexed at Exhibit A to
the petition and would submit that, the said letter/ alleged
sanction was never issued to the petitioner. She also invited our
attention to the order issued by the Education Officer, dated
6.12.1999, thereby cancelling the alleged sanction letter dated
11.11.1999. It is submitted that the petitioner had misused his
position as a Secretary of the educational trust i.e. Ganga
Shikshan Prasarak Mandal, the respondent No.3 herein, and
prepared a proposal for approval of his own appointment and had
misled the office of the Education Officer (Secondary), Zilla
Parishad, Parbhani. The Education Officer had accordingly
prepared a draft proposal dated 11.11.1999 for personal
approval of the petitioner for forwarding the said proposal to the
Secretary/ Head Master of the respondent No.4 School, in which
the name of the petitioner was shown as Assistant Teacher,
(Physical Education).
12. It is submitted that, on 4.12.1999, the Head Master
Writ Petition No.2000/4004
and the other employees of the respondent no.4 school made a
complaint to the Education Officer (Secondary) against the
petitioner informing that the petitioner had forwarded the
personal proposal for approval of his appointment without having
any authority and had threatened the teaching and non-teaching
staff working in the school. She submits that, pursuant to the
said complaint received from the Head Master and the other
employees of the respondent No.4, the said draft proposal of
personal approval dated 11.11.1999 was cancelled by the
Education Officer (Secondary). She submits that, no personal
approval for the appointment of the petitioner was ever granted.
The Education Officer has only prepared a draft proposal of
personal approval and the same was also cancelled after
receiving the complaint dated 4.12.1999 from the Head Master
and the other employees of the respondent No.4.
13. It is submitted that since the said proposal was
submitted by the petitioner by misusing his position as a
Secretary of the respondent No.3, no sooner the same was
noticed by the Education Officer, the said draft proposal was
immediately cancelled. The question of giving any hearing to the
petitioner did not arise. She submits that, no rights were
accrued or vested in favour of the petitioner based on such draft
proposal made by the petitioner for approval of his personal
Writ Petition No.2000/4004
appointment which was never granted by the Education Officer
(Secondary).
14. It is submitted by the learned A.G.P. that the
appointment of Balasaheb Pandharinath Deshmukh had been
approved by the Education Officer (Secondary) on 22.9.2000.
The said approval granted by the Education Officer was not
interfered with by this Court in Writ Petition No.2376/2008 which
was filed by this petitioner. Learned A.G.P. invited our attention
to various observations made and strictures passed by the School
Tribunal in the judgment dated 21.1.2008 while dismissing the
Appeal No.110/2006 filed by the petitioner before the School
Tribunal. She submits that the School Tribunal has rendered a
finding of fact that the petitioner had not produced any
appointment order. He was the then Secretary of the school
management. She submits that, the Writ Petition filed by the
petitioner against the said order and judgment, delivered by the
School Tribunal has been admittedly dismissed, though may be
for default. The said order and judgment of the School Tribunal
has thus attained finality.
15. The learned A.G.P. distinguished the judgment of the
Division Bench of this Court in Shri Mali Deepak (supra) on the
ground that since the petitioner was not even appointed nor his
appointment was ever approved by the Education Officer, the
Writ Petition No.2000/4004
question of any hearing to the petitioner before cancellation of
the alleged approval did not arise.
16. Mr. Barlinge, learned counsel for respondents No.3
and 4 invited our attention to the affidavit-in-reply dated
21.8.2017 filed by his clients and also the annexures thereto. It
is submitted by the learned counsel that, this Court has allowed
the Writ Petition No.2389/2000, which was filed by some of the
inhabitants challenging the transfer of the school from Sadegaon
to Tadkalas. He submits that, there was no school at Tadkalas
legally recognized and thus, even if some inspection report was
prepared showing the name of the petitioner at Tadkalas school,
the said report would not create any right or interest in favour of
the petitioner. He submits that, Mr. Balasaheb Pandharinath
Deshmukh was appointed as non-trained teacher in the
respondent No.4 school in the year 1995 and his name appeared
at Sr.No.3 in the annual inspection report of the said year and
even in the subsequent annual reports. He submits that the said
Mr. Balasaheb Deshmukh was sent for training for B.P. Ed. On
12.7.1999 and he had completed his course in the year 2000.
On 22.9.2000, the said Mr. Balasaheb Deshmukh was appointed
as a regular teacher in the respondent No.4 school. Various
documents annexed to the affidavit-in-reply in support of this
submission are annexed.
Writ Petition No.2000/4004
17. It is submitted by the learned counsel that the School
Tribunal has passed a detailed judgment and order dated
21.2.2008, thereby dismissing the appeal filed by the petitioner.
It is submitted that, the petitioner was never appointed in the
respondent No.4 school. It is submitted by the learned counsel
that the petitioner has not been able to produce before this Court
any letter of appointment appointing him as Physical Training
Teacher or showing payment of any salary. He submits that, the
entire petition is totally frivolous and full of false and misleading
statement. This Court, thus, shall dismiss the Writ Petition with
exemplary costs.
18. Mr. Godbole, learned counsel for the petitioner, in
rejoinder, submits that, the petitioner has already filed a Civil
Application in the said Writ Petition which was filed by him for
impugning the order and judgment delivered by the School
Tribunal, for restoration of the said Writ Petition which came to
be dismissed for default and the said Civil Application is pending.
He submits that this Court, thus cannot consider the
observations, if any, made by the School Tribunal in the said
order and judgment of the School Tribunal.
19. It is submitted by the learned counsel that, the letter
of appointment of the petitioner was retained by the
Writ Petition No.2000/4004
management in their custody and was not issued. He submits
that, similarly, the proof of payment of salary also is with the
respondents No.3 and 4 and was not given to the petitioner. He
submits that, the respondents No.3 and 4, on the contrary, ought
to have produced the said proof of the appointment of the
petitioner, about the salary which was paid to the petitioner and
also the proof of the petitioner joining the duty and working in
the school for more than two years. He submits that, the
judgment delivered by the Division Bench of this Court in case of
Shri Mali Deepak (supra) would squarely apply to the facts of this
case and is binding on the respondents. He submits that the fact
that the Education Officer (Secondary) has cancelled the
approval granted by him on 11.11.1999 itself presupposes that
the appointment of the petitioner was approved by the Education
Officer (Secondary) and thus, the Education Officer (Secondary)
cannot be allowed to contend that the petitioner was never
appointed in the respondent No.4 school or that his appointment
was never approved by the Education Officer (Secondary).
REASONS AND CONCLUSIONS
20. It is not in dispute that, at the relevant time when
the proposal for approval of the appointment of the petitioner
was forwarded to the Education Officer (Secondary), by the
petitioner, the petitioner was the Secretary of the respondent
Writ Petition No.2000/4004
no.3. Though this Court has repeatedly called upon learned
counsel for the petitioner to produce a copy of the appointment
letter or any other proof to show that the petitioner was working
in the respondent No.4 school, in any capacity whatsoever, and
to show whether any salary or any other honourarium was paid
to him from the date of his alleged appointment till his
termination, the learned counsel for the petitioner could not
produce any such document or proof of receipt of payment of
salary by contending that those documents are not with him but
are with the management. The only document vehemently relied
upon by the learned counsel for the petitioner is the report
submitted by the Education officer (Secondary), dated 20.4.2000
showing his name at Sr.No.2 in the school situated at Tadkalas.
21. The petitioner was never appointed as Physical
Education Teacher in Yashwant Madhyamik Vidyalaya, Sadegaon.
Mr. Balasaheb Pandharinath Deshmukh was appointed as an
untrained teacher in the said school in the year 1995 and his
name had appeared in the annual inspection report at Sr.No.3.
His name was also reflected in the subsequent annual inspection
reports. He was sent for B.P. Ed. training on 12.7.1999 and had
completed his course in the year 2000. He was appointed as
regular teacher on 22.9.2000.
22. Be that as it may, the said report of the Education
Writ Petition No.2000/4004
Officer (Secondary) was in respect of the school at Tadkalas. In
our view, the said report is ex facie contrary to the record of
these proceedings produced by the management and also by the
petitioner and would not advance the case of the petitioner.
23. A perusal of the judgment dated 21/1/2008 delivered
by the School Tribunal clearly indicates that the School Tribunal
has totally disbelieved the story of the petitioner while dismissing
his appeal. The School Tribunal has also considered the evidence
produced before it by the parties. The School Tribunal observed
that, though the petitioner herein had claimed in his appeal
memo that he had been appointed as Physical Education
Teacher, in the joining report dated 14.6.1999, he has been
shown to have been appointed as Head Master and had resumed
duties of the Head Master. It was not the case of the petitioner
that he had joined the duties as a Head Master. It is held that
since the petitioner was not having five years experience or
requisite qualification to hold the post of Head Master, he could
not have held the said post of Head Master.
24. The petitioner had also pleaded before the School
Tribunal that he had not been issued written appointment order
and it was kept in custody of the school management. The
School Tribunal observed that the petitioner was the then
Secretary of the school management and, therefore, he was well
Writ Petition No.2000/4004
in a position to collect the said appointment order, but had
intentionally not filed before the School Tribunal, which would
have weaken his case.
25. The School Tribunal also considered the said so called
report submitted by the Education Officer (Secondary) showing
his name at the time of his visit in the school at Tadkalas and
observed that there was no transfer order on the record to
suggest that the petitioner was transfered to Tadkalas. He had
also not made any grievance to the effect that he was reduced
from the post of Head Master to Assistant Teacher. He also did
not show any document showing that he had joined his duties at
village Tadkalas. The Education Officer had thus shown the
name of the petitioner at his own imagination.
26. The School Tribunal observed that the petitioner had
not filed any muster roll, office business or any other relevant
document to suggest his services with the respondents No.3 and
4. None of the employees working in the said school were
supporting the case of the petitioner. The petitioner also did not
deny the fact that in the year 1999 he had acted as a secretary
of the school management. After considering various evidence
on record, the School Tribunal has rendered a finding that the
petitioner was nowhere appointed as an Assistant Teacher and
has miserably failed to establish any right in his favour. He had
Writ Petition No.2000/4004
also never worked with the respondent No.4 school as a Physical
Training Teacher. The Writ petition filed against the said order
and judgment delivered by the School Tribunal has been
dismissed for default as claimed by the petitioner.
27. Be that as it may, this Court directed the learned
counsel for the petitioner to produce before this Court his letter
of appointment, the transactions carried out by him as Head
Master or in any other capacity during the alleged employment
with the respondent No.4, the payment of salary, attendance
register or any proof showing his appointment. The petitioner,
however, is unable to produce even a single document. In these
circumstances, it cannot be said that the petitioner was actually
appointed in the respondent No.4 school as an Assistant Teacher
or in any other capacity much less validly appointed. The
petitioner has not disputed before this Court that he was the
Secretary of the respondent No.3 management at the relevant
time.
28. Insofar as the reliance placed by the petitioner on the
approval dated 11.11.1999 is concerned, the petitioner could not
produce any proof of acknowledgement of the said alleged
approval order dated 11.11.1999. On the contrary, the record
produced before this Court further indicates that, some of the
employees whose names were mentioned in the said alleged
Writ Petition No.2000/4004
approval order, had themselves filed a complaint against the
petitioner to the Education Officer (Secondary), contending that
the petitioner had forwarded the personal proposal of approval
without any authority and was threatening the teaching and non-
teaching staff working in respondent No.4 school. When the
Education Officer (Secondary) was apprised of the true and
correct facts, he immediately cancelled the said proposal for
personal approval of the petitioner for forwarding the same to
the Secretary/ Head Master of the Yashwant Vidyalaya,
Sadegaon. The said letter dated 11.11.1999 was a draft
proposal of personal approval of the petitioner and other
teachers. In our view, since the petitioner had misused his
position as a Secretary of the respondent No.3 management and
had sent his own proposal for approval of his appointment
fraudulently, the Education Officer (Secondary) was fully
empowered to cancel such draft approval prepared by him.
29. In our view, the powers of the Education Officer
(Secondary) to grant approval to the appointment of an
employee includes the power to revoke such approval if such
approval was fraudulently obtained by any member of the staff.
In these circumstances, the respondent No.2 was justified in
revoking the draft proposal of approval of the appointment of the
petitioner. The petitioner has even failed to prove that he was
Writ Petition No.2000/4004
ever appointed by the management in the respondent No.4
school. The respondents No.3 and 4 who have filed a detailed
affidavit in these proceedings also have contended that the
petitioner was never appointed to any of the post in the
respondent No.4 school at any point of time. Several documents
in support of their contention have been annexed to the affidavit-
in-reply, which clearly indicates that the case of the petitioner is
totally false and misleading.
30. Insofar as submission of the learned counsel for the
petitioner that the fact that the respondent No.2 had issued an
order of cancellation of the approval of the appointment of the
petitioner presupposes that he was appointed to the said post of
Assistant Teacher, which appointment was already approved is
concerned, since the petitioner has miserably failed to produce
any document in support of his case that he was actually
appointed by the management and that his appointment was
approved by the respondent No.2, there is no merit in this
submission of the learned counsel for the petitioner. The said so
called draft proposal of approval to the alleged appointment of
the petitioner would not create any right or interest of any nature
whatsoever in the petitioner. In our view, even if any such draft
order of approval was prepared and found in the file of the
respondent No.2 i.e. Education Officer (Secondary), since the
Writ Petition No.2000/4004
said draft proposal of the order was not communicated to the
petitioner at any point of time, the same cannot be considered as
a binding and valid order alleged to have been passed by the
respondent No.2. No reliance thus, on such draft order in the file
of the respondent No.2 could be placed upon by the petitioner as
a binding order of approval.
31. Insofar as judgment delivered by this Court in case of
Shri Mali Deepak (supra) relied upon by the learned counsel for
the petitioner is concerned, there is no dispute about the
proposition of law laid down by the Division Bench of this Court
that the order of approval to the appointment cannot be
cancelled without affording an opportunity of hearing. However,
in this case, since the petitioner himself has not been able to
produce any document to show that he was actually appointed or
that his appointment was approved by the respondent No.2, the
question of any hearing to the petitioner before cancelling such
draft approval did not arise. The draft proposal of approval of
the appointment of the petitioner was withdrawn after the fraud
committed by the petitioner came to the notice of the respondent
No.2. No such hearing was thus contemplated even otherwise
for taking such action in law in view of the fraud committed by
the petitioner.
32. In our view, the petition is totally devoid of merit.
Writ Petition No.2000/4004
We, therefore, pass the following order :
ORDER
Writ Petition No.4000/2004 is dismissed with costs
quantified at Rs.25,000/- (Rupees twenty five thousand), which
shall be paid by the petitioner to the respondent No.2 within two
weeks from the date of this order, without fail. Rule is
discharged.
(SUNIL K. KOTWAL) (R.D. DHANUKA)
JUDGE JUDGE
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