Bombay High Court
Smt.Farhad Bano Shah Mohammad ... vs State Of Mah.Thr.Director Of ... on 9 June, 2022
Bench: A.S. Chandurkar, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
MISC. CIVIL APPLICATION NO. 3/2018
IN
WRIT PETITION NO.4103/2000 (D)
Smt. Farhad Bano Shah Mohammad Ibrahim Vs. State of Maharashtra and Ors.
...........................................................................................................................................
Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's order
or directions and Registrar's orders
..............................................................................................................................................
Shri M. R. Joharapurkar, Advocate for the Applicant/Petitioner.
Ms N. P. Mehta, A.G.P. for Non-applicant(s)/Respondent(s)/State.
CORAM : A. S. CHANDURKAR &
AMIT BORKAR, JJ.
DATED : 06th JUNE, 2022.
. By this application, the petitioner is seeking review of
order dated 13.07.2017 in Writ Petition No.4103/2000.
2. The case of the petitioner in the present application
in substance is to the effect that the order under review is
challenged on the basis that there is no power to condone
the delay. The petitioner in the petition has pointed out a
specific provision in the form of Section 76(2) of the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965. According to the petitioner,
the order under review being in ignorance of the said
provision as it falls within the purview of error on the face
of record. Therefore, the judgment under review dated
13.07.2017 deserves to be recalled.
3. Ms. N. P. Mehta, learned A.G.P. opposed the
submission of the petitioner. She submitted that though on
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the date of the appointment of petitioner, the right under
Section 76(2) of the said Act was available with the
petitioner, on the date of the filing of the application for
condonation i.e. on 29.04.1995, the said right was not
available with the petitioner.
4. We have carefully considered the order under review
and the submissions made on behalf of the parties. We are
satisfied that while deciding Writ Petition No.4103/2000,
the Co-ordinate Bench of this Court has adjudicated upon
the controversy involved in the petition without
adjudicating as to whether Section 76(2) of the said Act is
applicable or not. Without such adjudication and without
recording finding, as to whether the benefits of Section
76(2) of the said Act was available to the petitioner,
disposal of the petition would amount to "error apparent on
the face of record". We have also perused the order dated
17.01.2001 passed by the Director of Municipal Council
Administration by which the Director had condoned
maximum age of similarly situated teachers. It appears that
said exercise of power was done on 17.01.2001.
5. Both the above material aspects have not been
considered by the Co-ordinate Bench of this Court,
therefore, in our view, the order dated 13.07.2017 needs to
be recalled and the writ petition needs to be adjudicated on
merits.
6. We therefore pass following order :
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ORDER
i] Misc. Civil Application No.3/2018 is allowed.
ii] Writ Petition No.4103/2000 is restored on the file for
adjudication on merits.
iii] Misc. Civil Application No.3/2018 stands disposed of.
WRIT PETITION NO.4103/2000
. By this Writ Petition, the petitioner is challenging
order dated 24.11.2000 passed by the respondent No.3,
order dated 21.11.2000 passed by the respondent No.2 and
also order dated 19.09.2000 passed by the respondent No.1
terminating the service of the petitioner on the ground that
the petitioner was over aged on the date of the
appointment.
2. The petitioner was appointed temporarily as Assistant
Teacher by the respondent No.3 by order dated 30.12.1986
for a period of one year. Thereafter, the petitioner was
further appointed from academic years 1987-88. The
petitioner was also appointed as in charge Head Mistress on
24.08.1987 and was awarded pay scale of 600-30-750-40-
950. The petitioner was promoted by an order under
Schedule - B of Rule 9(5) on 07.06.1990. By order dated
21.12.1990 the Education Officer (Secondary), Zilla
Parishad, Yavatmal granted approval for the appointment of
the petitioner.
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3. The petitioner was served with a show cause notice
dated 31.10.1994 which was replied by the petitioner on
08.11.1994. Thereafter, again a show cause notice was
issued to the petitioner by respondent No.3 on 19.05.2000,
which was replied by the petitioner on 02.06.2000. On
24.11.2000, the petitioner was served with the order of
termination on the ground that on the date of
appointment, the petitioner was over aged. Director
Administration of Municipal Council, Amravati Division has
not granted sanction to the appointment of the petitioner.
The petitioner has challenged the order of termination by
way of present petition.
4. The respondents were served with the notice of this
petition. The respondent No.3 has filed reply dated
15.01.2001 and additional reply dated 25.02.2002. The
respondent No.3 has resisted the petition mainly on the
ground that the petitioner was not eligible for being
appointed on the post of Assistant Teacher as the petitioner
was over aged on the date of the appointment. It is also
stated that the said defect has not been condoned by the
Director Municipal Council Administration, Amravati
Division.
5. We have heard the learned Advocate for the
petitioner and the learned A.G.P..
6. Mr. Joharapurkar, learned Advocate for the petitioner
submitted that as a matter of fact, the respondent No.5 has
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approved appointment of the petitioner. He submitted that
during the relevant period, trained lady teachers were not
available and the practice of condoning age was in force.
He further submitted that in case of similarly situated
teachers, the delay was condoned by the Director, Municipal
Council Administration, Amravati Division. He invited the
attention of this Court to the order passed by this Court in
Writ Petition No.640/1997 to point out that respondent
No.6 had condoned age of nine teachers in relation to
Nagar Parishad, Daryapur by order dated 17.01.2001. He,
therefore, submitted that the case of the petitioner deserves
similar treatment as was done in respect of other similarly
situated teachers.
7. Ms. Mehta, learned A.G.P. submitted that the
question as to whether the provisions of Section 76(2) of
the said Act would be applicable to the petitioner has not
been considered by any of the Authorities. She, therefore,
submitted that in absence of adjudication by the
Subordinate Authorities, this Court may not for the first
time adjudicate upon the said issue.
8. We have carefully considered the submissions made
on behalf of the petitioner and the respondents. We are
satisfied that in absence of adjudication on the applicability
of Section 76(2) of the said Act and whether the case of the
petitioner is similar to the other teachers in relation to
which the Director, Municipal Council Administration,
Amravati Division has granted relaxation of the defect of
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over age needs to be adjudicated by the Competent
Authority having power under the provisions of concerned
statute. We find substance in the submission of the learned
A.G.P. that this Court for the first time may not adjudicate
upon the applicability of Section 76(2) of the said Act to the
petitioner and whether the case of the petitioner is similar
to those in relation to which the respondent No.6 had
condoned the defect of over age of the said teachers. We
are therefore, of the opinion that it would be in the fitness
of things that the parties are relegated to the Competent
Authority i.e. respondent No.6 to adjudicate upon the issue
of applicability of Section 76(2) of the said Act, and also
issue as to whether the petitioner deserves similar treatment
as has been done in relation to the teachers covered by the
order dated 17.01.2001 and 24.07.2009. We, therefore,
pass following order :
ORDER
i] The impugned order dated 24.11.2000 passed by the
respondent No.3 and order dated 21.11.2000 passed by the
respondent No.2 and also order dated 19.09.2000 passed by
the respondent No.1 are quashed and set aside.
ii] The matter is relegated back to the respondent No.6
to decide the rights of the petitioner. Respondent No.6 shall
decide whether the defect of over age of the petitioner on
the date of appointment can be condoned in view of Section
76(2) of the said Act and also in view of the similar order
passed earlier by the respondent No.6.
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iii] The respondent No.3 shall send proposal of the
petitioner to the respondent No.6 for condoning the defect
of over age of the petitioner within a period of four weeks
from the date of receipt of this Court.
iv] The respondent No.6 shall adjudicate upon the rights
of the petitioner within a period of eight weeks from the
receipt of the date of proposal from the respondent No.3.
9. It is made clear that this Court has not adjudicated
upon the merits of the contentions raised by the parties and
it is open for the respondent No.6 to adjudicate upon the
rights of the petitioner without being influenced by any of
the observations made by this Court in the present
application.
10. Writ Petition is disposed of in the above terms.
JUDGE JUDGE
RGurnule
Digitally signed byRANJANA
MANOJ MANDADE
Signing Date:09.06.2022
18:38
