Shafiqunnisa Abdul Samad vs The State Of Maharashtra Throuh ...
2021 Latest Caselaw 5706 Bom

skn                               1               6.WP-1378.2019 & others.doc



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         ORDINARY ORIGINAL CIVIL JURISDICTION

                  WRIT PETITION NO. 1378 OF 2019

Shaikh Rana Md. Adil.                             ...        Petitioner.
     V/s.
The State of Maharashtra and others.              ...        Respondents.

                              WITH
                  WRIT PETITION NO. 1370 OF 2019

Naseem Amir Hasan.                                ...        Petitioner.
     V/s.
The State of Maharashtra and others.              ...        Respondents.

                              WITH
                  WRIT PETITION NO. 1363 OF 2019

Shafiquinnisa Abdul Samad.                        ...        Petitioner.
      V/s.
The State of Maharashtra and others.              ...        Respondents.




Mr.Sachin S. Punde for the Petitioner.
Mr.A.L.Patki, Addl.GP with Mr.Amit Shastri, AGP (in WP
Nos.1378, 1363/2019) and Mr.Himanshu Takke, AGP (in WP
No.1370/2019) for the Respondent- State.

                CORAM :         NITIN JAMDAR AND
                                C. V. BHADANG, JJ.

                DATE :          30 March 2021.

P.C. :

The Petitioners are working as Teacher in Respondent No.7- School established by Respondent No.6- Education Trust.

 skn                                    2                6.WP-1378.2019 & others.doc



Respondent No.6 is a minority institution.          In the year 2003, the

Petitioners submitted an application for appointment as Shikshan Sevak. The Petitioners were interviewed and appointed as Shikshan Sevak on 15 June 2005. The proposals of the Petitioners were submitted to Respondent No.5- Education Inspector for individual approval, and by order dated 30 April 2013, the Petitioners came to be transferred to the aided pot of Assistant Teacher with effect from 15 June 2011. The Petitioners continued to work and, according to the Petitioners, having completed the probationary period, in view of Section 5(2A) of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977, the Petitioners have become deemed permanent.

2. In the year 2017, Respondent No.5 issued a communication to Respondent No.6- Trust that the approval to the Petitioners' appointment is liable to be revoked and the Petitioners' services be terminated. The ground given for cancellation/ recall of the approval was that the Petitioners' appointment was made without issuing an advertisement in violation of Rule 9(8) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The Petitioners filed a writ petitions impugning this communication along with various other similarly situated teachers. The Division Bench disposed of the said writ petitions by order dated 16 August 2017 following the order of this Court dated 14 August 2017 passed in other companion petitions.

skn 3 6.WP-1378.2019 & others.doc

3. Thereafter, by the impugned order dated 13 November 2018, the approval granted to the appointment of the Petitioners was cancelled/ recalled on the same ground, i.e. not following Rule 9(8) of the Rules of 1981 in respect of issuance of advertisement. Being aggrieved, the Petitioners have filed the present petition.

4. The contention of the Petitioners is that as far as the Petitioners are concerned, the controversy regarding approval of their appointment stands concluded by the decision dated 16 August 2017 and the same cannot be reopened. It is contended that even assuming that the issue can be reopened, it has to be within the parameters of the observations of the Division Bench laying down parameters. It is contended that the impugned order is neither passed after issuing show-cause-notice nor does it satisfy the test of review/ recall as laid down by this Court. The learned Additional Government Pleader submitted that the observation of the Division Bench in the order dated 16 August 2017 wherein, in the facts of that case and more particularly in the context that the order was sought to be reviewed/ recalled by the Education Officer himself, it was contended that subsequently by instructions issued by the Director of Education to all the Education Officers to take review in respect of grant of approval since large scale complaints were received, a hearing was given and the impugned order was passed. It was sought to be contended that, therefore, the observations made in the context of review by the same Education Officer would not apply when such specific instructions are issued by the superior officer, i.e. Director of Education and, secondly, only ground that was urged in

skn 4 6.WP-1378.2019 & others.doc

the earlier round of litigation was that the order was by the same officer. Our attention is drawn to the Resolution dated 23 August 2017. It was also sought to be contended that not following the mandatory provisions of the Rules is a fraud by itself and, therefore, there is no fault in the impugned order.

5. In the earlier round of litigation, the Petitioners had challenged cancellation/ recall of approval of their appointment dated 3 April 2017, which was based inter alia on the ground that no advertisement was issued. When the petitions were disposed of, the Division Bench followed the law laid down earlier vide order dated 14 August 2017 and, therefore, it would be necessary to reproduce the order dated 16 August 2017 in its entirety. The said order reads as under:

"Heard the learned counsel appearing for the parties finally.

2 The submission is made by the learned counsel appearing for the respective parties that all these Petitions are also covered and governed by order passed by this Bench on 14 August 2017 in Writ Petition No.8818 of 2017 and other connected matters in every aspects, including the facts and impugned orders and the actions and the reliefs.

3 Therefore, we are inclined to dispose of all these Writ Petitions by common order as agreed by all the parties on the same line. Order dated 14 August 2017 passed by this Court in WP No.8818 of 2017 and other companion matters, reads thus-

"FINAL ORDER:-

1) Rule. Rule is made returnable forthwith. Heard finally by consent of parties as the common issues are involved and so also the action of common respondents,

skn 5 6.WP-1378.2019 & others.doc

we are inclined to dispose of the present writ petitions by this common order, as agreed by all. Learned A.G.P. waives service of notice for the Respondent State in all the matters.

2) The petitioners are working as Assistant Teacher in their respective Institutions since long, ranging from 6 to 12 years. They were appointed on vacant posts after following the due procedure of law, initially as a Shikshan Sevaks, after three years approvals were granted, and confirmed/appointed as Assistant Teachers. At both stages, the concerned respondents/officers in the respective petitions have granted approvals as required in accordance with the law. All the petitioners therefore in view of this have been in service in the respective posts.

3) The respondents, suddenly based upon a report of the Commissioner, (Education) Maharashtra State, Pune initiated the proceedings/impugned action of cancellation of approvals, already granted since long. It is stated that the said Commissioner did issue show cause notice, but without specifying the changes/reasons, for intended action.

4) The respondents Authorities, who have granted the approvals so recorded above, have recalled the order of approval by cancelling it without following the due procedure of law specifically, in spite of a Division Bench Judgment of this Court (Coram: B.R.Gavai & Riyaz I. Chagla, JJ) in Writ Petition No 10133 of 2016 (Shivanee Deshpande Vs. State of Maharashtra and others) and other connected matters, whereby it is specifically held after considering the similar situation, as under:-

"By now, it is settled principle of law that unless the power of review is specifically or by necessary implication provided, the authority cannot review its own order. No doubt, if an order is obtained by exercising fraud, it would stand vitiated. However, it is not the case of the respondent- Education Officer that the petitioners have obtained their initially orders by fraudulent means. It is further observed in the said order as under if the earlier Education

skn 6 6.WP-1378.2019 & others.doc

Officer had granted approval to the petitioners' appointment, may be erroneously, the same cannot be made a ground to recall the same and pass contrary order, unless a case of fraud, misrepresentation or suppression is made out. Particularly, when most of the petitioners have already put in their services for 11 years, the impugned orders would amount to penalising them for no fault on their part".

5) In view of the above, there is a force in the contention so raised by the learned Counsel appearing for the petitioners. The learned AGP therefore on instructions, conceded to the position of law and makes statement that the concerned respondents/officers/authorities shall recall the impugned order/action and related proceeding, if any dated 27th June, 2017 or such other dates as early as possible, preferably within two weeks; and they will also recall/withdraw their impugned action and/or orders of cancellation of approval in question. Further, they will grant/continue to provide all service benefits / entitlement to the petitioners or such teachers.

6) In the interest of justice and to avoid further delay and complication, we are inclined to accept the statement made the learned AGP on behalf of the respondents-authorities. In view of this, we are inclined to dispose of these petitions by keeping all contentions open of both sides.

7) It is made clear that in view of withdrawal of the impugned action so referred to above, all the petitioners/teachers are entitled for all the requisite benefits as they are otherwise entitled in law. The concerned respondents, within a period of three weeks, will take effective steps to avoid further delay. It is made clear that once the impugned action / order is withdrawn as recorded above of the consequential benefits including their salaries need to be immediately released, if withhold for such reasons.

            8)         All the writ petitions are allowed accordingly. No





 skn                                  7                 6.WP-1378.2019 & others.doc


             costs.

             9)      The parties to act on the basis of an authenticated
             copy of this order."

      4       In view of above, all these Writ Petitions are allowed for

the same reasons. All the Petitions are allowed accordingly in terms of paragraph Nos. 5 to 9 of order dated 14 August 2017 passed in Writ Petition No. 8818 of 2017. There shall be no order as to costs."

6. In the order dated 1 August 2017 passed in Writ Petition No.10133/2016 and group of matters, the Division Bench had taken an identical view of the matter.

7. Here, we are concerned with the order passed inter-party. The Petitioners had approached this Court earlier, and with certain observations, the petitions were allowed. The Division Bench opined that it is a settled principle of law that unless the power of review, specifically or by necessary implication, is provided, the Authority cannot review its own order. Second, if there is a case of fraud or misrepresentation made out, there can be ground to recall the order. Another aspect that where a person has put in a long period of service, then such a review would be highly inequitable.

8. The State Government, by issuing Government Resolution dated 23 August 2017, after noting the observations, has laid down that when approval is to be cancelled, a show-cause-notice be issued, and an opportunity of hearing be given to the concerned and then the decision be taken. The observations made in the order dated 1

skn 8 6.WP-1378.2019 & others.doc

August 2017 in Writ Petition No.10133/2016 and order dated 14 August 2017 referred to in the Government Resolution were not challenged, and we have not been shown any decision of any Court saying that this would not be the parameters. We have also not been shown any decision or Government Resolution that a full fledged review of all cases of approval is directed to be taken. We, therefore, do not agree with the submission of the learned A.G.P that the observations of the Court in the earlier Petitions were only in the context of the same officer recalling the order. The observations were not in the context of any officer but were prescribing the act of reviewing the earlier decisions, as such reviews after a long period of time when legitimate expectations arise, parties settle in life; are highly inequitable. Such powers would be arbitrarily used. The Division Bench, therefore, restricted the power of reconsideration/review in limited circumstances of fraud, suppression and misrepresentation. The phrases "fraud", "misrepresentation", and "suppression" are not colloquial terms, but they have a judicially recognized ambit. These three factors need not be restricted to the acts of teachers and management alone, but they can be by the authorities and by way of collusion. In such cases, the review would be permissible. For that purpose, show cause notice should mention that these factors exist.

9. Therefore, when the impugned orders came to be passed, the aspect of whether there was any fraud or misrepresentation or suppression was to be dealt with. The impugned orders based on a show cause proceed only on the basis that Rule 9(8) has not been

skn 9 6.WP-1378.2019 & others.doc

followed, and with no allegation of any fraud, suppression, misrepresentation or collusion. Therefore, since neither the show- cause-notice nor the impugned order is based on fraud, misrepresentation or suppression, such impugned orders would be contrary to the order passed on 16 August 2017. Considering the language of the Government Resolution dated 23 August 2017 whereby show-cause-notice and opportunity of hearing are contemplated, a reasoned order is to be passed first putting the party to the notice of the fraud or misrepresentation or suppression and then to deal with the same in the impugned order. Since this has not been done and, in view of the order passed on 16 August 2017 in Petitioners' own case, the impugned order is liable to be quashed and set aside.

10. Accordingly, the impugned orders dated 13 November 2018 are quashed and set aside. The writ petitions are disposed of in the above terms.

      (C.V. BHADANG, J.)                   (NITIN JAMDAR, J.)