Bombay High Court
Shree Samarth New Education ... vs State Of Maharashtra, Thr. ... on 8 September, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
1 [email protected] WPs.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4974/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 17/2022
(SIDDHARTH MAGASWARGIYA SHIKSHAN SANSTHA & ANOTHER VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 18/2022
( SIDDHARTH MAGASWARGIYA SHIKSHAN SANSTHA & ANOTHER VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 4976/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 4979/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 4980/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 5024/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 5025/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 5026/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 5027/2021
(SHREE SAMARTH NEW EDUCATION SOCIETY, GONDIA & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 5076/2021
(NITIN SHIKSHAN SANSTHA, NAVEGAON & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
WITH
WRIT PETITION NO. 5081/2021
(PANCHSHEEL EDUCATION SOCIETY, BRAMHAPURI & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Shri Anand Parchure, counsel for the petitioners.
Mrs. T.H. Khan, Assistant Government Pleader for the R-State.
Shri V.R. Borkar, counsel for the applicant/Intervenor in C.A.W. No. 35/2022.
2 [email protected] WPs.odt
CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
DATE : SEPTEMBER 08, 2022.
P.C.
RULE. Rule made returnable forthwith and heard the learned counsel for
the parties.
In these writ petitions, challenge has been raised to the order passed by
the Deputy Director of Education, Nagpur thereby cancelling the approval
granted to the appointment of each petitioner. One of the grounds raised in
challenge is that the notice issued to each petitioner by the Deputy Director of
Education did not indicate the reason for reconsidering the order granting
approval to their appointment.
The learned counsel for the petitioners submits that in somewhat similar
circumstances this Court in Writ Petition No.1315 of 2022 [Dilipkumar Patle &
Another Versus Deputy Director of Education, Nagpur Division, Nagpur &
Others] has set aside a similar order by the order dated 05.09.2022 and has
issued various directions by which the question as to whether the approval
granted earlier is liable to be set aside or not has been directed to be
reconsidered. The Government Resolution dated 23.08.2017 has been
considered while issuing those directions. He therefore submits that similar
course may be followed in these writ petitions.
The learned Assistant Government Pleader for the concerned respondents
does not dispute the fact that an identical issue was considered in the aforesaid
writ petitions.
We have perused the aforesaid judgment dated 05.09.2022 rendered in
the case of Dilipkumar Patle & Another (supra). In paragraphs 11 and 12 of the
said decision, it has been observed as under:-
"11. We, therefore, hold that in proceeding against the
petitioners, the Deputy Director, Higher Education has followed
the relevant Government Resolution in the breach. In such a
view of the matter, we also hold that the impugned order of
cancellation of approval of the services of the petitioners cannot
be sustained in law and the same is liable to be set aside.
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Accordingly, we propose to dispose of the writ petition by
passing the following order:-
ORDER
i. The impugned order dated 25-10-2021 stands set aside.
ii. The effect of such setting aside of the impugned order
would not automatically result in revival of the approval of the
petitioner's services granted by the Education Officer but such
approval would be dependent on the decision to be taken in
terms of this order, as indicated hereinafter.
iii. Instead of the Deputy Director, Higher Education
revisiting the matter of approval, we direct the Joint Director,
Higher Education to look into the matter and to issue show
cause notice to the petitioners if, at all, it is his prima-facie view
that such approval stands vitiated due to fraudulent activities.
Requiring the Joint Director to consider the matter, is with the
purpose of obliterating any bias that the petitioners right
apprehend.
iv. The show cause notice must indicate the tentative
reasons for taking a relook on the issue of approval of the
petitioners.
v. The petitioners shall have a week's time to respond to the
show cause notice. Within a period of two weeks thereafter, the
Joint Director shall extend an opportunity of hearing to the
petitioners and pass an appropriate order.
vi. If the order is favourable to the petitioners, they will be
entitled to continuity of service as if the approval of services
granted to them had never been cancelled. In such an event,
they will be entitled to backwages for services that they claim to
have been discharging despite the order of cancellation.
vii. Should the order be adverse to the interest of the
petitioners, they shall immediately step down from the
respective posts of Shikshan Sewaks and the respondent
no.3/School shall be under an obligation to proceed in
accordance with the law for making recruitment on the said
posts.
viii. If the Joint Director does not issue the show cause notice
within a month of receipt of a copy of this order, it will be
presumed that there is no reason to proceed against the
petitioners and in such eventuality, the order of approval of the
petitioner's services will revive and they shall be entitled to all
service benefits.
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12. The writ petition stands disposed of. No costs."
We find that the present petitioners are similarly situated and they also
seek to rely upon the Government Resolution dated 23.08.2017 to urge that the
Deputy Director of Education has not considered that Government Resolution
while passing the impugned order.
In view of aforesaid for reasons contained in the aforesaid decision, the
following order is passed:-
I) The order passed by the Deputy Director of Education in each writ
petition setting aside the order granting approval by the Education Officer
(Secondary) is quashed and set aside.
II) The effect of such setting aside of the impugned order would not
automatically result in revival of the approval of the petitioner's services granted
by the Education Officer but such approval would be dependent on the decision
to be taken in terms of this order, as indicated hereinafter.
III) Instead of the Deputy Director, Higher Education revisiting the matter of
approval, we direct the Joint Director, Higher Education to look into the matter
and to issue show cause notice to the petitioners if, at all, it is his prima-facie
view that such approval stands vitiated due to fraudulent activities. Requiring
the Joint Director to consider the matter, is with the purpose of obliterating any
bias that the petitioners right apprehend.
IV) The show cause notice must indicate the tentative reasons for taking a
relook on the issue of approval of the petitioners.
V) The petitioners shall have a week's time to respond to the show cause
notice. Within a period of two weeks thereafter, the Joint Director shall
extend an opportunity of hearing to the petitioners and pass an appropriate
order.
VI) If the order is favourable to the petitioners, they will be entitled to
continuity of service as if the approval of services granted to them had never
been cancelled. In such an event, they will be entitled to backwages for services
that they claim to have been discharging despite the order of cancellation.
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VII) Should the order be adverse to the interest of the petitioners, they shall
immediately step down from the respective posts of Shikshan Sewaks and the
respondent no.3/School shall be under an obligation to proceed in accordance
with the law for making recruitment on the said posts.
VIII) If the Joint Director does not issue the show cause notice within a month
of receipt of a copy of this order, it will be presumed that there is no reason to
proceed against the petitioners and in such eventuality, the order of approval of
the petitioner's services will revive and they shall be entitled to all service
benefits.
IX) In case the Intervenor seeks audience before the Joint Director of Higher
Education he is free to do so in accordance with law.
The writ petitions are accordingly disposed of. Pending civil applications
also stand disposed of. Rule accordingly. No costs.
(URMILA JOSHI-PHALKE, J.) (A. S. CHANDURKAR, J.)
APTE
Signed By: Digitally signed
byROHIT DATTATRAYA
APTE
Signing Date:12.09.2022 11:43
