Sheetal D/O. Ramkrushna ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 7046 Bom

                                                                  Cri.W.P.471/2017
                                         1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO. 471 OF 2017


Sheetal d/o Ramkrushna Abhyankar,
Age 42 years, Occu. in charge Headmaster
R/o Rachana Nagar, Parbhani                             .. Petitioner

        Versus

1.      The State of Maharashtra,
        through P.I. District Parbhani

2.      Sou. Yashoda w/o Uttamrao Rathod,
        Age 53 years, Occu. Service and
        President, Prerna Bahu Uddeshiya
        Shikshan Prasarak Mandal,
        Sanchalika, Shivaji Prathamik
        Vidyalaya, Parbhani                             .. Respondents

Mr C.V. Thombre, Advocate for petitioner
Mr S.D. Ghayal, A.P.P. for respondent no.1
Mr P.R. Katneshwarkar, Advocate h/f Mr Suvidh S. Kulkarni, Advocate
for petitioner


                                   CORAM : S.S. SHINDE AND
                                           A.M. DHAVALE, JJ

                                   DATE OF RESERVING
                                   THE JUDGMENT : 01.09.2017

                                   DATE OF PRONOUNCING
                                   THE JUDGMENT : 13.09.2017

JUDGMENT (Per A.M. Dhavale, J.)

1. Rule. Rule returnable forthwith. With the consent of parties,

petition is heard finally at admission stage.

2. This is a petition under Article 226 of Constitution of India and

Section 482 of Cr.P.C. for quashing of F.I.R. No.105/2017 as per order

under Section 156 (3) of Cr.P.C. registered at Nava Mondha Police

Station, Parbhani for the offences punishable under Sections 406, 420,

423, 465, 471, 472, 474 read with Sec.34 of Indian Penal Code.

Cri.W.P.471/2017

3. The facts relevant for deciding this petition may be stated as

follows :

4. Respondent no.2 Yashoda is President of Prerana Prerna Bahu

Uddeshiya Shikshan Prasarak Mandal, Parbhani, an educational trust

which is running the school by name Shivaji Prathamik Vidyalaya,

Parbhani. The petitioner is serving there as a senior teacher. The

dispute is about promotion to the post of Head Master among the

petitioner and son of respondent no.2. One Nivrutti Raosaheb Khonde

was the senior-most teacher. He went on earned leave on medical

ground. According to respondent no.2, her son Kapil was diligent

Assistant Teacher. Hence, on 1.6.2015, the management unanimously

resolved to promote him as a Head Master. The resolution was

forwarded to Education Officer on 28.8.2015 and it was followed up.

Kapil Rathod was given authority as in-charge Head Master from

1.6.2015 to 30.11.2015. Since the arrears of payments were to be

made, again correspondence was made on 11.1.2016, 25.2.2016,

8.3.2016 and 10.3.2016. Asha Garud who was Education Officer and

is shown as accused no.2 sent a letter dated 19.3.2016 and refused to

grant sanction to the promotion of Kapil Rathod. Accused no.1 Sheetal

Abhyankar was authorised to sign as in-charge Head Master from

1.12.2016 to 31.5.2017. Thus, the Education Officer accused no.2

Asha Garud misused her position. Accused no.1 taking advantage of

the same drew her own bill of arrears of Rs.4,62,458/- and thereby

they have cheated the management and institution - school. The

F.I.R. shows that the promotion to the post of Head Master is to be

Cri.W.P.471/2017

made by the management and accused no.2 acted contrary to the

provisions of law in appointing accused no.1, the petitioner as in-

charge Head Master. Thus, they have committed offences punishable

under Sections 406, 423, 465, 471, 472, 474 read with Sec.34 of

Indian Penal Code. Under Secretary, Government of Maharashtra has

also issued letter dated 19.5.2016 supporting the management.

Hence, the application was filed in the Court of Judicial Magistrate,

First Class, Parbhani on 27.2.2017 with a request to issue directions to

the police to register the crime and investigate the same. The learned

Magistrate by order dated 10.3.2017, issued the directions as prayed

for and the F.I.R. came to be registered at Nawa Mondha Police

Station, Parbhani at C.R. No.105/2017.

5. It is the case of the petitioner that she was senior-most

Assistant Teacher working with the institution. The Education Officer,

Zilla Parishad, Parbhani is required to grant approval for the

promotion as Head Master as per the rules. The petitioner had filed

Writ Petition No. 7017 of 2016 and by order dated 14.10.2016,

direction was issued to consider her proposal for appointment of Head

Master. The Deputy Director of Education, Aurangabad also directed

the Education Officer to grant approval for appointment of the

petitioner as Head Master, as the Education Officer is competent

authority to decide the seniority and pass the appropriate orders. Still,

the Education Officer has only granted authority to the petitioner to

act as in-charge Head Master and no permanent appointment has

been made. The bill of the petitioner for legal dues was submitted by

Kapil Rathod himself when he was in-charge Head Master and the

Cri.W.P.471/2017

same was returned on technical ground, which was signed by the

petitioner and resubmitted. There is no cheating or misappropriation

of the funds of the society and the school. Respondent no.2 has

suppressed material facts regarding the orders passed by the

Honourable High Court. The F.I.R. was registered that there was no

sanction obtained for prosecuting accused no.2 who is a public

servant. No enquiry was held and the process was issued. Education

Officer has duly sanctioned the petitioner to work as in-charge Head

Master. No offence has been committed by the accused persons and,

therefore, the F.I.R. deserves to be quashed.

6. Respondent no.2 filed her reply, which is in tune with her F.I.R.

It is claimed that the bill submitted by Kapil Rathod was rejected by

pay unit. There was no direction by the Honourable High Court to

appoint the petitioner as Head Master. The direction was only to take

expeditious decision. Therefore, the learned Magistrate has rightly

taken cognizance of the offences committed by the petitioner and

Education Officer.

7. We have heard learned Counsel for the petitioner Mr C.V.

Thombre and learned A.P.P. Mr S.D. Ghayal and learned Counsel for

respondent no.2 Mr P.R. Katneshwarkar holding for Mr Suvidh

Kulkarni. We have gone through the papers of investigation produced

before us.

8. We find that this is a serious dispute of civil nature regarding

grant of promotion to the post of Head Master in the school run by the

Cri.W.P.471/2017

public trust of which respondent no.2 is a President. Nivrutti Raosaheb

Khonde was appointed on 14.6.2004. Mrs Rasve and Mrs M.R. Kadam

were appointed as teacher on 15.6.2004, while Mrs Garud was

appointed on 16.6.2010. They have declined to accept the post of

Head Master. Then, the petitioner Sheetal Abhyankar was appointed

as teacher on 15.2.2006, whereas Kapil Rathod, son of respondent

no.2 was appointed as teacher on 26.6.2010. Thus, there is no

dispute that the petitioner was senior-most Assistant Teacher willing

to act as Head Master. It is not disputed that the post of Head Master

is to be filled up by promotion by the management as per seniority

and which is to be approved by the Education Officer.

9. By resolution dated 30.9.2015, it was recorded that Smt. M.R.

Kadam, Mr N.R. Khonde, Smt. A.S. Rasve and Smt. M.T. Garud who

were senior to Kapil Rathod had declined to accept the responsibility

of Head Master and, therefore, Kapil Rathod was appointed as Head

Master on permanent basis. This resolution does not refer to the

name of the petitioner Sheetal Abhyankar who is senior to Kapil

Rathod and no ground has been given why she was side tracked for

giving promotion to Kapil Rathod. It appears that it was done only

with intention to promote Kapil Rathod, as he was son of President of

the institution. The reasons why other four persons have declined to

accept the post of Head Master are not known but the petitioner

Sheetal Abhyankar decided to fight. She filed application to the

Education Officer and the Education Officer wrote a letter to Deputy

Director of Education, Aurangabad on 10.3.2016 soliciting guidance in

the matter. On 9.3.2016, Education Officer noted that there was no

Cri.W.P.471/2017

resolution by the management for appointment of Head Master and,

therefore, as per seniority, either Sheetal Abhyankar or Kapil Rathod

will have to be authorised for signing the bills and for payment of

income tax. The Deputy Director of Education, Aurangabad, by letter

dated 16.3.2016, informed the Education Officer that as per

Maharashtra Employees of Private Schools (Condition of Services)

Rules, 1981, senior-most teacher should be appointed as Head Master

and if there was no proposal submitted by the institute as per the

seniority, then the Education officer was authorised to decide the

seniority of the teacher and to appoint the senior-most teacher as

Head Master. As per the guidance received from the Deputy Director

of Education, Aurangabad, the Education Officer, by letter dated

19.3.2016 issued directions to the President of the trust that the

petitioner was appointed as in-charge Head master for the period of

1.12.2015 to 31.5.2016 subject to terms of Maharashtra Employees of

Private Schools (Condition of Services) Rules, 1981 and Right to Free

and Compulsory Education Act and directed the trust by letter dated

16.6.2016 to send the report for promotion of petitioner Sheetal

Abhyankar to the post of permanent Head Master. This authority

granted by the Education Officer to the petitioner was extended from

1.6.2016 to 30.11.2016 and again by letter dated 15.12.2016, from

1.12.2016 to 31.5.2017.

10. The bill of Rs.4,62,458/- is in respect of arrears of pay of the

petitioner, but it was initially submitted when Kapil Rathod was in-

charge Head Master and for technical reasons, it was returned.

Cri.W.P.471/2017

11. The respondent no.2 has relied on letter dated 19.5.2016

whereby the Education Officer was informed by the Under Secretary,

Government of Maharashtra that the request of the institute for

appointment of Kapil Rathod as Head Master and cancellation of rights

given to the petitioner to sign as in-charge Head Master should be

reconsidered. The said request should be considered by him as per

M.E.P.S. Rules, government resolutions. This letter does not say that

the appointment of Kapil Rathod by completely ignoring the seniority

of Sheetal Abhyankar should be made without any reason.

10. The petitioner herein has filed Contempt Petition No.194 of

2017 on 3.3.2017 for non-obedience of the directions of the High

Court and the notices were issued to respondents no.3 and 4.

Respondent no.2 suppressed the material facts about the seniority of

the petitioner as well as about the petitions filed by her in the High

Court. The Education Officer was a public servant and was

discharging his duties. There was correspondence showing that he

was authorised to fix the seniority of teachers and to grant approval to

the post of Head Master. Grant of approval by him is not an empty

formality. He has to see that resolution passed by the management is

as per the provisions of law and refusal to grant approval by him is

subject matter of criminal writ petition. Respondent no.2 has abused

the process of law and by suppressing material facts, she has filed

complaint only because the Education Officer (Primary), Zilla Parishad,

Parbhani issued direction under provisions of the of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981.

Cri.W.P.471/2017

11. We find that this is a purely civil dispute regarding promotion to

the post of Head Master. There was no mens rea on the part of

petitioner in acting as in-charge Head Master as per the directions of

the Education Officer. The institute has not received any injury, harm

or loss. The bill sanctioned was of the due amount and it was not case

of false claim made. Investigation papers do not disclose about false

claim. There was deliberate attempt to side track the seniority of the

petitioner. Normally, the promotions are to be given as per seniority,

but the management has right to refuse to appoint any person as

Head Master even though he is a senior, but there should be special

reasons for the same and those should be recorded in writing. We

find that the continuation of this proceeding itself is abuse of process

of Court. We find that the F.I.R. deserves to be quashed to the extent

of petitioner (since the Education Officer is not a petitioner, we

express no opinion regarding the maintainability of the F.I.R. against

him).

12. In the result, Criminal Writ Petition is allowed. F.I.R. registered

on at C.R.No. 105/2017 as per order under Section 156 (3) of Cr.P.C.

registered at Nava Mondha Police Station, Parbhani for the offences

punishable under Sections 406, 420, 423, 465, 471, 472, 474 read

with Sec.34 of Indian Penal Code, is hereby quashed to the extent of

petitioner herein.

13. Rule is made absolute in above terms. There shall be no order

as to costs. It is clarified that the observations made are prima facie

Cri.W.P.471/2017

in nature and are confined for deciding this application and should not

be used elsewhere as deciding the merits involved in other matters.

       ( A.M. DHAVALE, J.)                  ( S.S. SHINDE, J.)
vvr