Vikas Jaysing Londe vs The State Of Maharashtra Through ...
2021 Latest Caselaw 11525 Bom

            This Order is modified/corrected by Speaking to Minutes Order dated 30/08/2021


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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION


                          WRIT PETITION NO.2003 OF 2020


      Vilas J. Londe                                                      ...Petitioner
                 V/s.
      The State of Maharashtra & Ors.                                     ...Respondents


      Mr.Chetan G. Patil with Mr.Mandar G. Bagkar for the Petitioner.

      Mr.A.A. Alaspurkar, AGP for the State - Respondent Nos.1 to 3.

                                   CORAM : R.D. DHANUKA &
                                           A.K. MENON, JJ.

DATE : 23RD AUGUST, 2021.

P.C. :-

1. Mr.Patil, learned counsel for the petitioner seeks liberty to

delete the respondent nos.4 and 5. Leave to amend is granted as

prayed. The amendment to be carried out forthwith. Re-verification is

dispensed with. By consent of the parties the petition is heard finally.

2. By this petition filed under Article 226 of the Constitution of

India, the petitioner has impugned the show cause notice dated 8 th

February, 2021 issued by the respondent no.2 and seeks an order

and direction against the respondent no.3 to fix the pay scale of the

petitioner described in prayer clause (A) of the petition. The petitioner

also seeks an order and direction against the respondent no.3 to

This Order is modified/corrected by Speaking to Minutes Order dated 30/08/2021

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release the grant-in-aid in accordance with the sanctioned pay scale

to the petitioner to the post of Junior Clerk in the respondent no.5

school.

3. The petitioner was appointed to the post of Junior Clerk in

the respondent no.5 on 1st June, 2017 on the vacancy having arisen

for the said post of Junior Clerk. The respondent no.5 management

submitted a proposal to the respondent no.3 along with requisite

documents for approval to the appointment of the petitioner to the

post of Junior Clerk on 1st March, 2019. The Education Officer

granted individual approval to the petitioner with effect from 1st June,

2017.

4. It is the case of the petitioner that the Education Officer

however in the said approval order dated 1 st March, 2019 wrongly

fixed the pay band of Rs.2000 only to the approved post of the

petitioner. The petitioner thus filed this writ petition.

5. During the pendency of this petition, the respondent no.3

issued a show cause notice to the petitioner as to why the

appointment granted to the petitioner shall not be cancelled. By a

letter dated 24th February, 2021, the Deputy Director of Education

however, stayed the said proceedings initiated pursuant to the said

show cause notice.

6. Mr.Patil, learned counsel for the petitioner invited our

This Order is modified/corrected by Speaking to Minutes Order dated 30/08/2021

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attention to various averments made in the affidavit in reply filed by

the respondent nos.1 and 2. He states that in paragraph 6 of the said

affidavit in reply that it is the case of the Government that in case of

minority institutes, there is no permission for new recruitment or

filling the vacant post without obtaining permission from the State

Government.

7. The Deputy Director of Education in the said affidavit in

reply however, alleged that the appointment of the petitioner to the

said post was made on the ground that no prior permission had been

obtained by initiating the proceedings. The recruitment has been

done when there was ban on the recruitment. The Government

Resolution dated 13th July, 2016 was not complied with by the

management while appointing the petitioner on the said post.

8. Mr.Patil, learned counsel for the petitioner relied upon the

judgment of this Court delivered on 16 th July, 2021 in case of Shital

Kumar Patil vs. State of Maharashtra & Others in Writ Petition

No.4273 of 2019 along with Writ Petition No.4275 of 2019 and would

submit that the issue raised by the Deputy Director of Education in

the affidavit in reply is correct. He submits that the Government

Resolution which is relied upon by the Deputy Director of Education

in affidavit in reply and more particularly the Government Resolution

dated 13th July, 2016 does not apply to the minority institutions. The

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management who has appointed the petitioner is a minority

institution.

9. Learned AGP on the other hand would submit that though

the management is minority institution, no permission for new

recruitment filling the vacant post without obtaining permission of the

State Government can be granted in view of the said Government

Resolution dated 13th July, 2016. Learned AGP does not dispute that

the management having appointed the petitioner to the said post is a

minority institution. Learned AGP could not distinguish the judgment

passed by this Court in Shital Kumar Patil (supra).

10. After referring to the several judgments passed by this

Court in the same judgment in case of Shital Kumar Patil (supra)

has held that the Government Resolution itself had issued

subsequent to the Government Resolution dated 13th July, 2016 after

adverting to the judgment of the Hon'ble Supreme Court in case of

T.M.A. Pai Foundation vs. State of Karnataka and in case of

Secretary, Malankara Syrian Catholic College has clearly stated

that the minority institutions have been excluded from the

applicability of section 5(1) of the MEPS Act. In our view, the

principles laid down by this Court in the said judgment clearly applies

to the facts of this case. We do not propose to take a different view in

the matter.

This Order is modified/corrected by Speaking to Minutes Order dated 30/08/2021

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11. In our view, the Deputy Director of Education thus could

not have issued any show cause notice for recalling of the approval

already granted by the Education Officer. In our view the show cause

notice issued by the Education Officer is without jurisdiction, the

same deserves to be quashed and set aside. The petitioner has

made out a case for grant of relied as prayed.

12. We therefore, pass the following order :-

a). The impugned show cause notice dated 8th February, 2021

issued by the Deputy Director of Education Department is quashed

and set aside.

b). The respectfully no.3 is directed to release grant-in-aid in

accordance with the sanctioned pay scale of the petitioner to the post

of Junior Clerk in the respondent no.5 school from the date of initial

appointment within four weeks from today.

c). The writ petition is allowed in aforesaid terms.

d). Rule is made absolute accordingly. There shall be no

order as to costs.

(A.K. MENON, J.)                                            (R.D. DHANUKA, J.)