Shagufta Ajaz Khan vs Education Officer (Secondary) ...
2021 Latest Caselaw 13721 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR.


                               WRIT PETITION NO.1703/2021


 Shagufta Ajaz Khan,
 aged about 52 Yrs., Occ. Service,
 R/o 2nd Floor, Shiv Palace, Rajasthan
 Chowk, Akot, Tq. Akot, Dist. Akola.                                            ..Petitioner.

          ..Vs..

 1.       Education Officer (Secondary),
          Education office, Zilla Parishad,
          Akola, Behind Santoshi Mata Mandir,
          Akola.

 2.       Urdu Education Society, Akot,
          Tq. Akot, Dist. Akola, through its
          President Mohibullah Khan Fakrullah
          Khan Patel, R/o Satranji Pura, Akot,
          Tq. Akot, Dist. Akola.

 3.       Shabina Jamal D/o Sy. Bakhat Jamal,
          aged adult, Occ. Service, R/o 1st Floor,
          Shiv Palace, Rajasthan Chowk, Akot,
          Tq. Akot, Dist. Akola.

 4.       Deputy Director of Education,
          Amravati.                                                           ..Respondents.
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          Mr. C.S. Kaptan, Senior Advocate with Mr. Palash K. Mohta, Advocate for the
          petitioner.
          Mr. A.S. Fulzele, Additional Government Pleader for respondent No.1.
          Mr. S.N. Tapadia, Advocate for respondent No.2.
          Mr. Ateeb A. Syed, Advocate for respondent No.3.
 ------------------------------------------------------------------------------------------------

                           CORAM :-        SUNIL B. SHUKRE AND
                                           ANIL S. KILOR, JJ.

                           DATED :-        23.9.2021.






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 ORAL JUDGMENT (Per Sunil B. Shukre, J.)

Learned counsel for respondent Nos.2 and 3 seeks time in the

matter. However, considering the narrow compass of the facts relating

to the dispute involved in this petition, we do not think that any

fruitful purpose would be served by granting further time to these

respondents and, therefore, the request on their behalf is declined.

2. Heard. Leave to amend cause title by adding the Deputy

Director of Education as party respondent is granted. Amendment be

carried out forthwith. Mr. A.S. Fulzele, learned Additional Government

Pleader waives notice for newly added respondent.

3. Heard. Rule. Rule made returnable forthwith. Heard finally

by consent.

4. The dispute involved in this petition is as to whose appointment

as Headmaster of Urdu Girls High School, Akot from amongst

petitioner and respondent No.3 should be approved by the Education

Officer and the Education Officer, after considering the proposals

received regarding appointment of petitioner from one faction of the

Board of Trustees of Urdu Education Society and the proposal of

respondent No.3 made by the other faction of Urdu Education Society,

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decided that approval to neither petitioner nor respondent No.3 could

be granted and accordingly he passed his order on 12.2.2021.

5. Later on, the Education Officer i.e. respondent No.1 reviewed

his order dated 12.2.2021 and took a decision to grant approval to the

appointment of respondent No.3 as Headmaster of the said school

vide his next order dated 26.4.2021. According to learned Senior

Advocate, the subsequent order dated 26.4.2021 being in the nature

of review of the earlier order dated 12.2.2021, could not have been

passed by respondent No.1 and it is an order which is made without

jurisdiction. He places reliance upon the view taken by coordinate

Bench of this Court in the case of Rekha Ashok Khandare V/s.

Bahuuddeshiya Shikshan Prasarak Mandal, through its Secretary

Dashrath and others reported in 2021 SCC OnLine Bom 564.

6. Learned counsel for respondent No.3 supports the impugned

order which appoints respondent No.3 as Headmaster of the said

school. However, learned counsel for respondent No.2 supports the

stand of the petitioner.

7. In the case of Rekha Ashok Khandare (supra) this Court has

taken a view that the Education Officer being an Authority to decide

wp1703.2021.odt

the issue pertaining to grant or refusal of approval to the

appointments of Teachers / Headmasters, ceases to exercise

jurisdiction the moment he exercises his power by taking decision one

way or the other and, therefore, unless power of review is expressly

conferred upon such an Authority under the Statute, the Education

Officer would have no power to review his own decision. The view so

taken by the coordinate Bench of this Court commends to us.

8. In the present case by the subsequent order dated 26.4.2021

respondent No.1 has taken a decision which is contrary to the decision

he had taken on 12.2.2021. On 12.2.2021, respondent No.1 had

decided that he could not grant approval to the appointment of the

petitioner as Headmaster nor could he grant approval to the

appointment of respondent No.3 as the Headmaster and thus, he

rejected the proposals received by him in respect of petitioner as well

as respondent No.3 in this regard. Then, suddenly on 26.4.2021,

respondent No.1 reviewing his order dated 12.2.2021, granted

approval to the appointment of respondent No.3 as Headmaster of the

school. This subsequent order is nothing but an order which is passed

without power of review which he never possessed under the Statute.

Therefore, the subsequent order dated 26.4.2021 has to be held as

illegal and it deserves to be quashed and set aside.

wp1703.2021.odt

9. Now, the question would be as to how the imbroglio which has

arisen on account of dispute between two factions of the Board of

Trustees is to be resolved. The issue has to be resolved as the school

would require an administrative head for its day to day management

and for payment of salary to the teachers and other staff. In our view,

the issue could be resolved if the parties are referred to the Deputy

Director i.e. respondent No.4 for resolution of the issue. Accordingly,

we direct the Deputy Director i.e. respondent No.4 to consider the

legality and correctness of the order dated 12.2.2021 and take a

decision regarding grant of approval to the appointment of eligible

teacher as Headmaster of Urdu Girls High School, Akot, in accordance

with law and after hearing the parties as early as possible and

preferably within two weeks from the date of appearance of the

parties before it. The petitioner and respondent Nos.2 and 3 are

directed to appear before respondent No.4 on 27.9.2021. We also

direct respondent No.4 to consider issuance of appropriate directions

by way of an interim arrangement for making regular payment of

salary and looking after other essential administrative matters in case

he is unable to take a decision regarding grant of approval or

otherwise to the appointment of the Headmaster within the time

stipulated under this order. Rule accordingly. No costs.

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10. In view of above, all the pending applications do not survive

and are disposed of accordingly. No costs.

                               JUDGE                               JUDGE




 Tambaskar.