Bombay High Court
Surendra S/O Sukhadeo Wadkar vs The Education Officer ... on 11 November, 2022
Bench: A.S. Chandurkar, M. W. Chandwani
WP-6132-2019.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6132 OF 2019
SURENDRA S/O SUKHADEO WADKAR
VERSUS
THE EDUCATION OFFICER(SECONDARY), ZILLA PARISHAD, AKOLA AND
TWO OTHERS.
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Shri N.B.Kalwaghe, Advocate for petitioner.
Ms H.N.Jaipurkar, Assistant Government Pleader for respondent nos. 1 and
3.
Ms. Sonali Saware, Advocate for respondent no.2.
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CORAM :- A.S.CHANDURKAR AND M. W. CHANDWANI, JJ.
ARGUMENTS WERE HEARD ON : 14th OCTOBER, 2022
ORDER IS PRONOUNCED ON : 11th NOVEMBER, 2022
In view of notice for final disposal issued earlier, the learned
counsel for the parties have been heard at length.
2. The challenge raised in this writ petition is to the communication
dated 08.08.2019 issued by the Education Officer (Secondary), Zilla
Parishad, Akola to the extent a direction has been issued to recover excess
payment made to the petitioner on the post of Head Master for the period
from 01.07.2010 to 30.09.2016.
3. The facts giving rise to the aforesaid communication dated
08.08.2019 are that the petitioner was appointed on the post of Junior
College Teacher on 26.07.1993 at the school run by the second respondent
which is an education Society. The petitioner's appointment was duly
approved on 01.03.1994. In the seniority list published on 15.03.2010 the
petitioner was shown to be senior to one Pandit Rajaram Wankhede. The
Society through its office bearers passed a resolution on 30.06.2010
resolving to appoint the petitioner on the post of Head Master on
promotion. On 30.06.2010 the petitioner came to be promoted on the post
of Head Master. A dispute was raised by Shri Pandit Wankhede on the
petitioner being shown senior to him in the seniority list. The Education
Officer (Secondary) on 16.10.2010 held that Shri Pandit Wankhede was
senior to the petitioner. Being aggrieved the petitioner challenged the said
order dated 16.10.2010 by filing Writ Petition No.5164 of 2010. The
learned Single Judge by the judgment dated 08.02.2011 set aside the order
passed by the Education Officer (Secondary) holding Shri Pandit Wankhede
to be senior on the ground that there were no reasons contained in the said
order to indicate as to how Shri Pandit Wankhede was senior to the
petitioner. On remand the Education Officer (Secondary) passed an order
on 16.05.2011 and held that Shri Pandit Wankhede was in fact senior to the
petitioner. The petitioner being aggrieved by the aforesaid order preferred
Writ Petition No.2484 of 2011 and by the judgment dated 12.06.2012 the
learned Single Judge held that since the petitioner had already been
promoted to the post of Head Master, it would be necessary for Shri Pandit
Wankhede to challenge his supersession by initiating appropriate
proceedings. In view of this adjudication Shri Pandit Wankhede preferred
an appeal under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (for short, the Act of 1977).
The learned Presiding Officer by his judgment dated 31.01.2013 dismissed
the said appeal and upheld the promotion granted to the petitioner on
30.06.2010. This judgment of the School Tribunal was challenged by Shri
Pandit Wankhede by preferring Writ Petition No.1121 of 2013.
4. During the pendency of the writ petition the petitioner on
30.09.2013 furnished an undertaking to the Education Officer (Secondary)
stating therein that on account of pendency of the writ petition no decision
was being taken on the proposal for approving the promotion granted to the
petitioner. In the undertaking it was stated by the petitioner that the
approval be granted to his promotion subject to final outcome of the said
writ petition. The petitioner undertook to permit deduction of any excess
payment made to him on that basis. In view of such undertaking the
Education Officer (Secondary) granted approval to the appointment of the
petitioner on the post of Head Master on 09.10.2013. In the order of
approval it was specifically mentioned that the same was in view of the
undertaking furnished by the petitioner and subject to final outcome of Writ
Petition No.1121 of 2013.
On 14.09.2016 the petitioner made an application to the Society
stating therein that for personal reasons he was not desirous of functioning
on the post of Head Master. He sought to be relieved of that responsibility.
The Society on 24.09.2016 accepted that request and reverted the petitioner
on the post of Junior College Teacher. The Deputy Director of Education on
07.11.2016 therefore cancelled the approval granted to the petitioner's
appointment on the post of Head Master. The writ petition preferred by Shri
Pandit Wankhede came to be decided on 11.06.2019. The learned Single
Judge held that Shri Pandit Wankhede was senior to the petitioner and was
entitled to be promoted on the post of Head Master from 01.07.2010. The
judgment of the School Tribunal came to be set aside and the Society was
directed to promote Shri Pandit Wankhede on the post of Head Master. It
was declared that he was entitled to be treated as Head Master from
01.07.2010 and was also entitled to all consequential reliefs including
financial benefits. As a consequence of this direction, the Education Officer
(Secondary) on 08.08.2019 directed recovery of the excess payment made
to the petitioner on the post of Head Master from 01.07.2010 to
30.09.2016. A similar direction was also issued to recover the excess
payment made to one Shri G.T.Pohankar who had been appointed as Head
Master on 01.10.2016 to 30.06.2019. The petitioner is thus aggrieved by
the direction to recover the excess payment made to him.
5. Shri N.B.Kalwaghe, learned counsel for the petitioner submitted
that the petitioner having worked on the post of Head Master it could not be
said that any excess payment was made to him on that post. After the
petitioner was promoted on 01.07.2010 the dispute was pending in this
Court for a considerable period. Writ Petition Nos.5164 of 2010 and 2484
of 2011 preferred by the petitioner came to be allowed and the petitioner
was directed to continue to function as Head Master. Even the appeal
preferred by Shri Pandit Wankhede came to be dismissed by the School
Tribunal on 31.01.2013. In the writ petition preferred by Shri Pandit
Wankhede challenging that judgment there was no stay operating to the
petitioner's functioning as a Head Master. Thus in effect the petitioner
worked on the post of Head Master from 01.07.2010 to 30.09.2016. It
could not be said that the petitioner had held the post of Head Master in an
illegal manner. There was no requirement for the Education Officer
(Secondary) to have obtained the undertaking dated 30.09.2013 from the
petitioner. There was no provision under the Act of 1977 to obtain such
undertaking. Merely because the petitioner had furnished an undertaking,
the same would not mean that it was legal for being enforced. Placing
reliance on the decision in State of Punjab and others Vs. Rafiq Masih(White
Washer) and others [(2015) 4 SCC 334] it was submitted that since the
petitioner had discharged duties on the post of Head Master and was paid
accordingly, there was no reason to recover the excess payment. Moreover,
such excess payment was made for a period exceeding five years before the
order of recovery came to be issued. It was then submitted by the learned
counsel that the benefit of salary on the post of Head Master received by the
petitioner could not be withdrawn since such benefit was received during
the pendency of the litigation. In that regard reliance was placed on the
decision in Maruti Tukaram Bagawe and others Vs. State of Maharashtra
and another [(2020) 13 SCC 298] . As regards furnishing of the undertaking
by the petitioner is concerned, it was submitted that the ratio of the decision
in High Court of Punjab and Haryana and others Vs. Jagdev Singh [(2016)
14 SCC 267 would not be applicable since the undertaking in that case was
required to be submitted under the Service Rules. That was not the position
in the present case. Reliance was also placed on the decision in State
of Jharkhand through its Chief Secretary and others Vs. Abdul Qayum and
others [(20210 1 JLJR 270(HC)] to substantiate the stand of the petitioner.
It was thus submitted that the impugned communication by which direction
to recover excess payment was issued was liable to be set aside.
6. Ms H. N. Jaipurkar, learned Assistant Government Pleader for the
respondent nos. 1 and 3 supported the impugned communication. According
to her, the petitioner having furnished an undertaking that he would not
object to recovery of any excess payment made to him on the post of Head
Master could not now be permitted to urge that such undertaking was not
binding. The writ petition preferred by Shri Pandit Wankhede had been
allowed and he had been held entitled to the post of Head Master from
01.07.2010 with all consequential benefits. As result of this direction, the
salary on the post of Head Master would be required to be paid to two
persons namely, the petitioner as well as Shri Pandit Wankhede. Same
would not be permissible and hence the excess payment made to the
petitioner was rightly directed to be recovered. The petitioner had
submitted the undertaking voluntarily and the Education Officer
(Secondary) had acted upon the same by granting him approval. It was
thus submitted that there was no illegality committed in directing recovery
of excess payment as made to the petitioner.
Ms Sonali Saware, learned counsel for the respondent no.2
submitted that the impugned communication was issued by the Education
Officer (Secondary) and the Society had obeyed various orders passed by
the Courts.
7. Having heard the learned counsel for the parties at length and
having perused the material placed on record, we find that the Education
Officer (Secondary) was justified in issuing the impugned communication
dated 08.08.2019 thereby directing recovery of excess payment made to the
petitioner on the post of Head Master from 01.07.2010 to 30.09.2016.
Undisputedly, the order of promotion dated 01.07.2010 issued to the
petitioner was subjected to challenge by Shri Pandit Wankhede. Though
such challenge based on his supersession was not accepted by the School
Tribunal when it dismissed the appeal preferred by Shri Pandit Wankhede,
Writ Petition No.1121 of 2013 preferred by him came to be allowed on
11.06.2019. While holding the denial of promotion to Shri Pandit
Wankhede as illegal a direction was issued that he would be entitled to be
treated as Head Master with effect from 01.07.2010 and to all consequential
reliefs including financial benefits. It is thus clear that this Court has found
Shri Pandit Wankhede entitled to the post of Head Master from 01.07.2010
for all purposes.
8. Though the petitioner was promoted on the post of Head master
from 01.07.2010, approval was not granted to him on the ground that the
proceedings were pending in the Court. Though the School Tribunal
dismissed the appeal preferred by Shri Pandit Wankhede on 31.01.2013,
Shri Pandit Wankhede had preferred Writ Petition No.1121 of 2013 in this
Court. On noticing that sometime would be spent in having the dispute
finally adjudicated, the petitioner on his own volition submitted an
undertaking on 30.09.2013 to the Education Officer (Secondary). In that
undertaking the petitioner clearly stated that the dispute with regard to his
promotion was likely to be pending for sometime. With that aspect in mind
the petitioner requested that his promotion on the post of Head Master be
approved subject to final outcome of Writ Petition No.1121 of 2013. He
specifically undertook that he would not oppose the recovery of any excess
payment made to him in that regard. Acting on this undertaking the
Education Officer (Secondary) granted such approval to the petitioner's
appointment on the post of Head Master from 01.07.2010. In the order of
approval dated 09.10.2013 it was specifically mentioned that it was granted
subject to final outcome of Writ Petition No.1121 of 2013 and in view of the
undertaking furnished by the petitioner. It was also mentioned that such
undertaking was also given by the President of the Society.
From the aforesaid it becomes clear that the petitioner on his own
furnished such undertaking with a view to have his appointment on the post
of Head Master approved. Having voluntarily furnished that undertaking
and with due awareness of the consequences therein, it would not now be
permissible for the petitioner to turn around and urge that notwithstanding
such undertaking the payment made to him on the post of Head Master was
not liable to be recovered. It is to be noted that the approval was granted to
the petitioner's appointment only in view of the undertaking furnished by
him and without such undertaking the Education Officer (Secondary) was
not inclined to grant approval. Having furnished the undertaking and
thereafter having obtained benefit on that basis, the petitioner could not be
permitted to approbate and reprobate in such manner. It is not the case of
the petitioner that the said undertaking was given under duress or any
coercion. This conduct of the petitioner disentitles him to urge that the said
undertaking was not binding on him.
9. The contention raised on behalf of the petitioner that the Act of
1977 and the Rules framed thereunder do not contemplate furnishing of
such an undertaking and hence the petitioner may not be held to be bound
by it cannot be accepted. But for such an undertaking, the Education Officer
(Secondary) would not have approved the appointment of the petitioner on
the post of Head Master. It would have been a different matter if no
consequential benefits having financial implications would have been
granted to Shri Pandit Wankhede in Writ Petition 1121 of 2013 while
holding him entitled to the post of Head Master. In such situation, it could
be considered as to whether the petitioner having worked on the post of
Head Master, the excess payment made could be directed to be recovered.
However, when a specific direction has been issued in favour of Shri Pandit
Wankhede holding him entitled to all consequential benefits with financial
implications for the post of Head Master, the Education Officer (Secondary)
cannot be faulted for directing such recovery since the State is not expected
to make payment to two persons on a singular post of Head Master. The
decisions thus relied upon by the learned counsel for the petitioner do not
assist the case of the petitioner as urged.
10. For all these reasons we do not find that the present is a fit case
to exercise extra ordinary jurisdiction in favour of the petitioner and relieve
him of voluntary undertaking submitted by him. However, it would be open
for the petitioner to seek the aforesaid difference in the amount of salary of
the post of Head Master and Junior College Teacher from the second
respondent, if so advised. In the facts of the case the amount due shall be
recovered in twelve monthly instalments.
The writ petition is dismissed with no order as to costs.
(M. W. CHANDWANI, J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
11.11.2022 13:01
