Bombay High Court
Nava Yuwak Education Socielty, ... vs The Education Officer ... on 29 November, 2021
Bench: S.B. Shukre, Anil Laxman Pansare
41-WP2246-20- 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2246 OF 2020
PETITIONER :- 1. Nava Yuwak Education, Society, Nagpur,
Public Trust duly Registered under the
Bombay Public Trusts Act, 1950 on
5/11/1962 vide Registration P.T.R,
Number F-475 (N) and Society
registered under the Societies
Registration Act, 1860 vide Registration
Number Maharashtra 151/1962
(Nagpur) Office at New Babulkheda,
Kunjilal Peth, Nagpur-400027 through its
President Smt.Birjulabai Pandurang
Meshram.
2. Manavata High School and Junior
College, Kesalvada, Taluka:-Tiroda,
District Gondia 441911 through its Head
Master.
...VERSUS...
RESPONDENTS :- 1. The Education Officer (Secondary), Zilla
Parishad, Fulchurpeth, Gondia 441601.
2. Shri Krishnakumar Maroti Badvaik, aged
about 61 years, Occupation:-Retired
(Suspended) Head Master of Petitioner
No.2-School, R/o Parth Nivas,
Keshavnagar, Khat Road, Taluka and
District Bhandara 441904.
3. Mr. Andeo Vitthobaji Dongre, aged about
72 years , Occ. Nil, R/o. Plot number
KHUNTE
41-WP2246-20- 2/8
365-A, New Nandanvan Layout, Near
Gayatri Convent, Nagpur 440024.
--------------------------------------------------------------------------------------------
Mr. Swapnil A. Pathak, counsel for the petitioners.
Mr.K.L.Dharmadhikari, AGP for respondent No.1.
None for respondent Nos.2 and 3.
---------------------------------------------------------------------------------------------
CORAM : SUNIL B.SHUKRE &
ANIL L. PANSARE, JJ.
DATE : 29.11.2021.
ORAL J U D G M E N T (Per : Sunil B.Shukre, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
Though respondent Nos.2 and 3 are served, none present on their
behalf.
3. The order of suspension dated 21/08/2019 of
respondent No.2 was objected to by respondent No.3 before the
Education Officer i.e. respondent No.2. Respondent No.2-
Education Officer held the hearing on 23 rd September 2019 and
came to the conclusion that the suspension order having been
KHUNTE
41-WP2246-20- 3/8
passed by only one member out of two Schedule-I members was
not sustainable in law. He also found that prior permission of the
Education Officer was necessary before issuance of suspension
order.
4. According to learned counsel for the petitioners, it is
well settled law, as held in the Full Bench decision rendered in the
case of Awdhesh Narayan K. Singh v. Adarsh Vidya Mandir Trust
and another, reported in 2004 (1) Mh.L.J 676, that prior
permission of the Education Officer for issuing suspension order of
a school teacher or head master is not necessary. He further
submits that when the suspension order was passed, the signatory
to the suspension order, Smt.Birjubhai Meshram, was already
elected as President of the Managing Committee and her change
report was pending before the learned Assistant Charity
Commissioner and therefore, no fault could be found with
Smt.Birjubhai Meshram signing the suspension order.
5. Shri Dharmadhikari, learned AGP submits that it is
also well settled law that it is only the Schedule-I trustees, who
would have authority to take decision on behalf of the registered
KHUNTE
41-WP2246-20- 4/8
trust and in the present case, the petitioners could not show that
on the date on which the suspension order was issued which was
21st August, 2019, name of Smt.Birjubhai Meshram was recorded
in Schedule-I Register as the President of the society. But, he also
concedes that as held by the Hon'ble Full Bench, there is no need
for the Management to obtain prior permission of the Education
Officer for suspending a school employee.
6. The impugned order dated 1st October, 2019, whereby
the Education Officer has held suspension of respondent No.2 to
be illegal is based upon two grounds. Firstly, there is no document,
particularly, the one in the nature of Schedule-I Register of
trustees, which would show that Smt.Birjubhai Meshram was the
President of the society at the time when the suspension order was
issued. Secondly, it was found by the Education Officer that prior
permission for issuance of suspension order was necessary.
7. So far as the second ground taken by the Education
Officer is concerned, it is squarely covered by the view taken by
the Hon'ble Full Bench in the case of Awdhesh Narayan K. Singh v.
KHUNTE
41-WP2246-20- 5/8
Adarsh Vidya Mandir Trust (supra) in para-43 of the judgment,
the Hon'ble Full Bench has held that "Conjoint reading of Rules 33
and 35 in their entirety leaves no room of doubt that failure to
obtain prior permission of education authorities does not affect an
action of suspension pending inquiry and it has its repercussions
and consequences only in payment of subsistence allowance."
Such being the view, we find that the reason given by the
Education Officer regarding non-obtaining of his prior permission
is inconsistent with the requirement of law and therefore, on this
ground, the impugned order dated 1 st October, 2021 cannot be
sustained. But, matter does not end here.
8. The impugned order also rests on another ground. It
states that it could not be reliably ascertained from the material
available on record that Smt.Birjubhai Meshram was the President
at the time when the suspension order was issued. It is an
admitted fact that name of Smt.Birjubhai Meshram had been
entered in Schedule-I Register only as the member and not as the
President of the society and it continued to be so, till the time the
suspension order dated 21st August, 2019 was issued. We must
KHUNTE
41-WP2246-20- 6/8
add here that this position continues even today as admittedly the
Change Report showing election of Smt.Birjubhai Meshram as
President of the society is still pending and it has not been
accepted by the Deputy Charity Commissioner. Therefore, other
reason given by the Education Officer in the impugned order
cannot be faulted with.
9. The learned counsel for the petitioners relying upon
the view taken by the Coordinate Division Bench of this Court in
the case of Adarsh Vidyalaya Shikshan Samiti v. The State of
Maharashtra and others, reported in 2015 SCC OnLine Bom 1162,
argues that submission of the change report is the mere formality
and till such time as orders are passed by the Competent
Authorities rejecting the Change Report, the newly elected
representatives could not be prohibited from functioning and that
merely because the Change Report is pending, the old body does
not continue and the old body therefore, cannot be permitted to
function merely on the count that the Change Report is pending
consideration before the appropriate authority.
KHUNTE
41-WP2246-20- 7/8
10. In the said case of Adarsh Vidyalaya Shikshan Samiti
v. State of Maharashtra and others (supra), what the Coordinate
Division Bench of this Court has held is that merely because the
Change Report is pending, it cannot be said that the old body
continues and is permitted to function, rather during such
pendency of the Change Report, the newly elected representatives
could not be prohibited from functioning and this would only
mean that the Division Bench, by holding so, has ensured that no
crisis occurs in the management of day-to-day affairs and the basic
functions of the society or the trust are discharged in accordance
with law so that the society or the trust does not come to a sudden
halt. This view is, therefore, only in the interest of smooth running
of the affairs of the society or the trust with a view to ensure that
the society or the trust does not cease to exist. But, this is the
reason why the Division Bench has only said that the newly
elected representatives can function and nothing more. The
Division Bench has not said anything about taking of major policy
decisions by the newly elected representatives pending the
Change Report and has not granted any permission to the newly
elected representatives to effect any permanent change to the
KHUNTE
41-WP2246-20- 8/8
administration of the society or the trust. Suspension of a
Headmaster like the petitioner is a major policy decision, which is
not expressly permitted to be taken by the said decision in Adarsh
Vidyalaya Shikshan Samiti v. State of Maharashtra and others
(supra). This is also in consonance with the settled position of law.
11. In the result, we find no substance in the petition. The
petition stands dismissed.
12. Rule stands discharged. No costs.
(ANIL L. PANSARE, J) (SUNIL B. SHUKRE, J)
KHUNTE
Signed By:GHANSHYAM S
KHUNTE
Signing Date:30.11.2021 18:30
