Bombay High Court
Gurusfurtnath Bahuddeshiya ... vs State Of Maharashtra & 4 Others on 25 January, 2018
Bench: B.P. Dharmadhikari
wp.3800.02
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 3800/2002
1) Gurusfurtnath Bahuudeshiya Shikshan Sanstha
Nagpur - PTR No. F-507 (N) Through its President
Shri Udaram s/o Laxmanrao Dekate
Aged about 66 years, occu: retired
R/o Prem nagar, Ward no.67, Zenda Chowk, Nagpur.
2) Sou. Sheelabai w/o Arvind Bakade
Aged about 32 years, occu: service
Secretary of the petitioner no.1-society
R/o Opp: Telegrpah office
Ayodhya Nagar, Nagpur -24. .. ..PETITIONERS
versus
1) State of Maharashtra
Education Department
Mantralaya. Mumbai-400 032
Through Government Pleader
High Court of Judicature at Mumbai
Nagpur Bench, Nagpur.
2) Education Officer (Secondary )
Zilla Parishad, Nagpur.
3) Damodar s/o Raibhan Damke
Aged 47 years, occu: Headmaster
Baba Raghunath Swami High School
Rajic Gandhi Nagar, Nagpur.
4) Vikas Kachruji Hambhurkar
Major, C/o Baba Raghunath Swami High School
Rajiv Gandhi Nagar, Nagpur.
5) Gajanan Narayan Kashikar
Major C/o Baba Raghunath Swami High School
Rajiv Gandhi Nagar, Nagpur. ..RESPONDENTS
............................................................................................................................................................................
Shri V.A.Dhabe, Advocate for petitioners
Shri A.D.Mohgaonkar, Adv.for respondents 3,4 and 5
Shri Amit Chutke, AGP for respondents 1 and 2
............................................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 25th January, 2018
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ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Heard Adv.Dhabe for petitioners, Adv. Mohgaonkar for respondent nos.
3,4 and 5 and AGP Amit Chuke for respondent nos.1 and 2.
2. Sanction/approval given to appointment of respondent nos.4 and 5
on 31.07.2002 by respondent no.2-Education Officer, has been questioned by petitioners
on the ground that though School Committee was in existence, appointments have been
made by Headmaster.
3. This Court has initially issued notice and then directed petitioners to file
resolution of management reiterating decision to file petition. Thereafter, Rule has been
issued on 09.07.2003. However till date, the resolution passed by management has not
been placed on record and, therefore, orders of this Court dated 25.02.2003 have not
been complied with.
4. This non-compliance assumes importance because of dispute inter se
amongst management. It appears that two groups were claiming to be in Management.
5. The respondent nos. 1 and 2 have filed their reply-affidavit through
respondent no.2. They have pointed out that in year 1999-2000, total 14 teaching staff
and a post of Headmaster were sanctioned on 12.11.1999. Then there was increase and
additional sections of Standard VI and IX were available. Hence, three posts in teaching
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cadre were created. The respondent no.2-Education Officer on 24.12.1999 granted
permission to fill in two posts out of these three posts. The respondent no.2 has also in
reply-affidavit pointed out proceedings before the Assistant Charity Commissioner Nagpur
in Inquiry Nos. 4/2000 and 25/2000. It is further submitted by him that no objection
certificate was issued by respondent no.2 to respondent no.3-Headmaster, to fill in four
teaching posts for a period of one year, vide letter dated 27.11.2000. In Paragraph 6,
he points out that two surplus teachers were absorbed by petitioner no.1-School on
14.10.2000 and 10.11.2000 respectively. The respondent no.2 thereafter granted no
objection certificate to respondent no.3-Headmaster on 07.07.2001 to fill up teaching
posts which were filled in by the Secretary of the School Committee, in capacity of
Shikshan Sevak (Teaching Assistant). Those two appointments were of respondent nos.4
and 5.
6. We need not dilate more on facts.
7. The petitioners claiming to in Management, have not produced before this
Court appointment orders issued to respondent nos.4 and 5. What is available on record
is order dated 31.07.2002 passed by respondent no.2 granting approval to services of
respondent nos.4 and 5. The respondent no.4 is given approval from 24.07.2001 for a
period of three years, while respondent no.5 is given approval for a period of three years
from 01.03.2001.
7.
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8. Counsel for respondents has invited our attention to a judgment dated
02.12.2010 delivered by Division Bench of this Court in Writ Petition No.4045/2009
wherein the Circulars issued by State Government permitting Headmaster to make
appointments were questioned and have not been set aside. Those Circulars in that
matter are dated 23.12.1996 and 19.11.2001. Here, though there is an attempt to show
that such a power cannot be given to Headmaster expressly, no such circular with its
date has been pointed out and challenged.
9. Learned AGP appearing for respondent nos.1 and 2 has submitted that
no illegality has been demonstrated in appointment of respondent nos. 4 and 5.
10. The judgment dated 2nd December 2010 in Writ Petition No.4045/2009
considers the controversy on facts. It finds that Headmaster can make appointment
only when for some reason the School Committee is not in existence or then it is not fully
formed. Facts in Writ Petition No.4045/2009 show that such a School Committee was
available and therefore Headmaster could not have made appointments. The Division
Bench therefore has set aside those appointments. In the judgment, as delivered on 2nd
December 2010, erroneously a statement that Circular dated 23.12.1996 and 19.11.2001
are set aside, has appeared. Division Bench has corrected this error on 10.12.2010.
11. Here, we have tried to find out steps, if any, taken by petitioners to fill in
vacancies. The petitioners have not pointed out a single step taken by them in the
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interest of school or trust, for filling in those vacancies. They have only opposed
appointments made by respondent no.3-Headmaster. Material therefore shows that when
there was some dispute inter se amongst the management, the number of students and
number of sections has gone up. The respondent no.3-Headmaster, therefore,
approached the Education Department, got necessary permission and then has filled in
the posts as per law. The petitioners do not point out absence of any transparent
selection process or then selection of incompetent or ineligible candidates. Their only
grievance is, respondent no.3-Headmaster does not possess power to make
appointment.
12. In Writ Petition No.4045/2009, it appears that matter came to this Court
immediately after appointments and it was decided finally on 2nd December, 2010.
Appointments were thus set aside within a short time. Unfortunately the judgment of
Division Bench does not mention anywhere the date of order of appointment which was
set aside.
13. In present matter, vacancies were in existence since 1999-2000 and no
steps were taken by petitioners to fill in those vacancies. They have also not pointed out
that rival group took any steps. The Headmaster not associated with any group has
independently initiated those steps and taken action of recruitment to safeguard interest
of students.
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14. This action of Headmaster is being questioned only on the ground that
when School Committee was functioning, he could not have made appointments. We
find no substance in this contention. If School Committee was in existence, the petitioner
could have pointed out steps taken by School Committee or then by Management to
fill in the available vacancies. Mere existence of School Committee is of no use if it is
not functioning at all. Here, the petitioners have not pointed out any School Committee,
its members then functioning, any meeting conducted by it before or after recruitment or
then condemning the recruitment made by respondent no.3-Headmaster. They have
remained satisfied by raising a technical issue.
15. The appointments have been made way back in 2001 and respondent
nos.4 and 5 have now put in 17-years of service.
16. In this situation, when independent Officer, like respondent no.2, has not
found anything wrong with recruitment process, we are not inclined to intervene in writ
jurisdiction.
17. The Writ Petition is dismissed. Rule discharged. No costs.
JUDGE JUDGE
sahare
