Bombay High Court
Sandeep Chudaman Shinde And Another vs The State Of Maharashtra And Others on 8 December, 2023
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2023:BHC-AUG:26343-DB
(1) 1051 wp 7740.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7740 OF 2021
1. Sandeep Chudaman Shinde,
Age 35 years, Occ. Service
as Assistant Teacher
2. Sandeep Bhatu Patil
Age 36 years, Occ. Service
as Assistant Teacher
Both R/o Burzad,
Tq. & District Dhule. ... PETITIONERS
V/s.
1. The State of Maharashtra
Through its Secretary,
Department of School Education,
Mantralaya, Mumbai - 400 032.
2. The Deputy Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Secondary)
Zilla Parishad, Dhule.
4. Janta Vikas Mandal,
Burzad, Tq. & Dist. Dhule,
Through its President.
5. Late Bhausaheb K.R. Patil
Secondary School, Burzad,
Tq. & District Dhule,
Through its Head Master. ... RESPONDENTS
...
Advocate for Petitioners : Mr. Sachin S. Deshmukh
AGP for Respondent/State : Mr. P.K. Lakhotiya
Advocate for Respondent Nos.4 & 5 : Mr. P.R. Nangare
...
(2) 1051 wp 7740.21
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
DATE : 8th December, 2023
ORAL JUDGMENT (Per: Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The Petitioners have put-forth prayer clause-B, B1, B2 and B3 as
under:
"B) By issuance of a writ of mandamus or any other appropriate
writ, order or direction in the like nature, it be directed to the
respondent No.2 and 3 in particular to disburse the salary of the
petitioners forthwith.
B-1) By issuance of writ of certiorari or writ or order in like
nature quash and set aside the impugned show cause notice
(Exh.G) dtd.25/6/2021 issued by the respondent no.2; and for that
purpose issue necessary directions.
B-2) By issuance of writ of certiorari or writ or order in like
nature grant stay to the implementation, operation and execution of
the impugned show cause notice (Exh.G) dtd.25/6/2021 issued by
the respondent no.2 with further direction to allow the petitioner to
continue their services and to release the salary, to which the
petitioner are legitimately entitled and also no coercive action
based upon the impugned communication be taken against the
petitioners; and for that purpose issue necessary directions.
B-3) Quash and set aside the impugned communication/ order
dtd.5/8/2021 issued by the respondent no.2 with further directions
to restore the same and confer the consequential service benefits
including the salary; and for that purpose issue necessary
directions."
(3) 1051 wp 7740.21
3. This matter was heard at length on 06.12.2023, 07.12.2023 and
today.
4. We have considered the last order dated 05.08.2021 that has been
passed by the Deputy Director of Education, Nashik Division, Nashik which has
been impugned in this petition through an amendment. Suffice it to say that
the approval to the payment of salaries of the Petitioners have been refused on
the following grounds:
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(4) 1051 wp 7740.21
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5. There is no dispute that the Petitioners possess qualifications of
M.Sc, B.Ed and B.A., B.Ed respectively. They were qualified to be appointed as
'Shikshan Sevak' for a period of three years. After their selection and
appointment vide orders dated 09.02.2012, they were appointed as 'Shikshan
Sevak'. The Education Officer accorded permanent approval to the
appointments of these Petitioners vide his order dated 27.03.2015 and they
were granted the pay scale of Rs.9300-34800 in the grade pay of Rs.4300/-.
Their names were included in the Shalarth ID and they were regularly receiving
their salaries.
6. A complaint dated 06.11.2020 was filed by Bahujan Republican
Association Party under the signature of one Mr. Anand Londhe, who claims to
be the State Convener of the party. Vide the said complaint addressed to the
Deputy Director of Education Nashik Division, it was alleged that the
Petitioners have been illegally appointed. Based on such allegations,
Respondent No.2 issued show cause notices dated 01.02.2021 to the Petitioners
and directed that their salaries shall be with held from February - 2021. The
Petitioners have, therefore, approached this Court.
(5) 1051 wp 7740.21
7. By amending the petition, the Petitioners canvassed in paragraph
nos.16-A and 16-B as under:
16-A. Petitioners submit that, it has been reliably learnt
that the complainant has filed numerous complaint with the office
of the Deputy Director, with regard to the issue of appointments
and approvals of the various teachers. Thus it appears that, the
complainant is habitual complainant and service jurisprudence
doesn't recognize the concept of public interest and the said issue is
no more res integra in the wake of the authoritative pronouncement
of Hon'ble Apex Court in case of Duryodhan Shaush case (1998) 7
SCC 273, which is reiterated and followed in (2004) 3 SCC 363 as
well as (2010) 9 SCC 655 Hari Banslal. Thus there was no
occasion to try and entertain the complaint of the habitual
complainant, who has neither participated in the recruitment
process, wherein the petitioners have been selected and appointed
by following due procedure of law. In any case the appointments of
the petitioners are of the year 2012 respectively as such a
substantial period has been lapsed, therefore, also the complaint
ought not to have been entertained by the authorities and
necessarily should have been rejected at threshold.
16-B. Apart from the aforesaid aspects the necessary
scrutiny of the proposal with regard to the proposal of the
petitioners have been made and on two successive occasion i.e.
while granting approval as Shikshan Sevak initially on 7/3/2012,
which has further culminated into a permanent approval on
27/3/2015 as such it was not open for the respondent authorities to
make any assertion, when due scrutiny of the proposal has been
made and based on the same the approvals have been accorded
therefore, there is hardly anything to assert now after a long gap of
9 years and the complaint is filed with obvious reasons. Based on
the same the petitioners are in receipt of the show cause notice
dtd.25/6/2021 to offer the explanation. Accordingly the petitioners
have offered their respective response on 6/7/2021, receipt of the
same is duly acknowledged by the office of the Deputy Director.
As such the petitioners submits that, there was no occasion much
less propriety in entertaining the compliant of the complainant. The
copy of the show cause notice dtd.25/6/2021 and response
dtd.6/7/2021 are annexed herewith and marked as EXHIBIT-G"."
(6) 1051 wp 7740.21
8. By a further amendment, paragraph nos.16-C and 16-D were
introduced in the pleadings, as the Petitioners had already completed their
three years of Shikshan Sevak tenure, had been granted permanent approval,
their names were included in the Shalarth ID and yet their salaries were
continuously withheld. Reliance is placed on the judgment delivered in the
case of Dr. Duryodhan Sahu and Ors. V/s. Jitendra Kumar Mishra and Ors.; AIR
1999 SUPREME COURT 114 and Hari Bansh Lal V/s. Sahodar Prasad Mahto
and Ors.; AIR 2010 SUPREME COURT 3515.
9. In Dr. Duryodhan Sahu (supra), the Hon'ble Supreme Court (3
Judges Bench) has recorded in paragraph nos. 19 and 20 as under:
"19. Our attention has been drawn to a judgment of the Orissa
Administrative Tribunal in Smt. Amitarani Khuntia v. State of
Orissa, 1996 (1) Orissa LR (CSR) 2. The Tribunal after
considering the provisions of the Act held that a private citizen or
a stranger having no existing right to any post and not intrinsically
concerned with any service matter is not entitled to approach the
Tribunal. The following passage in the judgment is relevant :
" . . .A reading of the aforesaid provisions would mean that
an application for redressal of grievances could be filed only by a
'person aggrieved within the meaning of the Act. Tribunals are
constituted under Article 323-A of the Constitution of India. The
above Article empowers the Parliament to enact law providing for
adjudication or trial by Administrative Tribunals of disputes and
complaints with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with
the affairs of the Union or of any State or any local or other
authority within the territory of India or under the control of the
Government of India or of any Corporation owned or controlled
(7) 1051 wp 7740.21
by the Government and such law shall specify the jurisdiction,
powers and authority which may be exercised by each of the said
Tribunals. Thus, it follows that Administrative Tribunals are
constituted for adjudication or trial of the disputes and complaints
with respect to recruitment and conditions of service of persons
appointed to public services and posts. Its jurisdiction and powers
have been well-defined in the Act. It does not enjoy any plenary
power."
We agree with the above reasoning.
20. Learned counsel for the respondents relied upon the
decision of this Court in S. P. Gupta v. Union of India, (1982) 2
SCR 365: (AIR 1982 SC 149) and read out several passages from
the judgment dealing with the question of 'standing'. In that case
the Court was not concerned with a Tribunal constituted under a
Statute. It was discussing the question of 'standing' in a proceeding
before the High Court or this Court. That ruling cannot help the
respondents in the present case. Our attention is also drawn to a
judgment in University of Mysore v. C. D. Govinda Rao, (1964) 4
SCR 575 (AIR 1965 SC 491) wherein the scope of a writ of quo
warranto has been discussed. That decision will not apply in the
present case as there was no application for issue of a writ of quo
warranto before the Tribunal. Learned counsel for the respondents
submits that the proceedings before the Tribunal is in the nature of
quo warranto and it could be filed by any member of the public as
he is an aggrieved person in the sense public interest is affected.
We have already pointed out that the applications in the present
case have been filed before the appointment of the petitioner as a
Lecturer and the relevant prayers are to quash the creation of the
post itself and preventing authorities from appointing the
petitioner as Lecturer. Hence, the applications filed by the
respondents cannot be considered to be quo warranto."
10. It is obvious that a total stranger has approached the education
department alleging that the Petitioners have been illegally appointed. The
education department has entertained the complaint, practically giving
audience to a stranger who claims to be a social worker and heads a political
(8) 1051 wp 7740.21
outfit, to unsettle an employee, more so a teacher on the basis of baseless
allegations.
11. The learned advocate for the Management has strenuously
supported the case of the Petitioners and submits that there was no illegality in
appointing them.
12. The learned AGP submits that though a total stranger ought not to
be entertained through complaints and more so when a person is posing as
being a politician and a leader of a political party who cannot be permitted to
target employees, the inquiry conducted by the education department has
revealed that both these Petitioners have been appointed without following the
provisions of the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977. Both of them were appointed when the posts
occupied by them were not vacant. He places reliance upon the affidavit in
reply filed by Dr. Bhausaheb Bhimkanrao Chavan, Deputy Director of
Education, Nashik Region, more particularly the concluding portion in
paragraph 6, wherein it is stated that the Petitioners were appointed by the
Respondent-Management before the post of a Teacher become vacant and the
proposals for getting approval and the Shalarth ID were not submitted by the
Headmaster of the School to the concerned office within the prescribed time
limit. In the light of these conclusions, Respondent No.2 cancelled the
(9) 1051 wp 7740.21
approval of the Petitioners which had been accorded by the Education Officer
vide his letter dated 07.03.2012.
13. Section 5 of the M.E.P.S. Act, 1977 reads as under:
"5. Certain obligations of Management of private Schools.
(1) The Management shall, as soon as possible, fill in, in the
manner prescribed every permanent vacancy in a private
school by the appointment of a person duly qualified to fill such
vacancy:
[Provided that unless such vacancy is to be filled in by
promotion, the management shall, before proceeding to fill such
vacancy, ascertain from the Educational Inspector, Greater
Bombay, [the Education Officer, Zilla Parishad or, as the case
may be, the Director or the officer designated by the Director in
respect of schools imparting technical, vocational, art or special
education,] whether there is any suitable person available on
the list of surplus persons maintained by him, for absorption in
other schools; and in the event of such person being available,
the Management shall appoint that person in such vacancy.]]
(2) Every person appointed to fill a permanent vacancy
[except [Assistant Teacher (Probationary)] shall be on probation
for a period of two years. Subject to the provisions of sub-
sections (4) and (5), he shall on completion of this probation
period of two years, be deemed to have been confirmed
Provided that, every person appointed as "[Assistant Teacher
(Probationary)] shall be on probation for a period of three
years.]
[(2A) Subject to the provisions of sub-sections (3) and (4),
[Assistant Teacher (Probationary)] shall, on completion of the
probation period of three years, be deemed to have been
appointed and confirmed as a teacher.]
(3) If in the opinion of the Management, the work or
behaviour of any probationer, during the period of his probation,
is not satisfactory, the Management may terminate his services
at any time during the said period after giving him one month's
notice [[or salary [or honorarium] of one month in lieu of notice.]]
( 10 ) 1051 wp 7740.21
(4) If the services of any probationer are terminated under
sub- section (3) and he is reappointed by the Management in
the same school or any other school belonging to it within a
period of one year from the date on which his services were
terminated, then the period of probation undergone by him
previously shall be taken into consideration in calculating the
required period of probation for the purposes of sub-section (2).
[(4A) Nothing in sub-section (2), (3) or (4) shall apply to a
person appointed to fill a permanent vacancy by promotion or
by absorption as provided under the proviso to sub-section(1).]
(5) The Management may fill in every temporary vacancy by
appointing a person duly qualified to fill such vacancy. The
order of appointment shall be drawn up in the form prescribed
in that behalf, and shall state the period of appointment of such
person."
14. In the above backdrop, we have adverted to the affidavit in reply
filed by the Management dated 07.12.2023. The learned advocate for the
Management brings to our notice that due to the complaint filed by the said
stranger, Respondent No.2 cancelled the approval granted to the appointment
of the Petitioners vide order dated 05.08.2021 and directed the Management
that if the Petitioners are continued in employment, the liability of payment of
salary would be shouldered by the Management. Due to the said order the
Management terminated the Petitioners on 23.08.2021. Before their
termination, they had approached this Court by prefering this Petition.
Presently, their Appeal Nos.18 and 19 of 2021 are pending before the School
Tribunal at Nashik.
( 11 ) 1051 wp 7740.21
15. We are astonished by the conduct of the education department.
The only issue as regards the appointments of the Petitioners is that the
vacancies were not available when they were appointed. The Petitioners have
been granted approval and have put in almost a decade of service. Such cases
have to be delicately handled by the Education Officer. No doubt irregularities
committed by the Management have to be dealt with sternly. However, when
an employee has been working for a long time, unless any illegality or fraud
turns upon the conduct of such an employee and it is proved or is apparent that
laches are attributable to his conduct or the appointment is patently illegal,
issuing an order of cancellation of approval when they are not at fault, is an
issue which needs to be thought over and pondered upon by the Education
Department.
16. The advertisement on the basis of which the Petitioners applied for
selection, was published in a relatively unknown newspaper namely 'Khandesh
Khabar' dated 24.01.2012. The Petitioners were selected on 09.02.2012. The
approval to their appointment as Shikshan Sevak was granted. Permanent
approval as Assistant Teachers was granted on 27.03.2015 after completing the
period of 3 years probation. With the introduction of the Shalarth Pranali
(Shalarth ID), their names were registered and they started receiving online
salary payments.
( 12 ) 1051 wp 7740.21
17. In the above backdrop, the Education Officer should have taken
the Management to task for having indulged in irregularities in the process of
selection and appointment of the Petitioners. It is undisputed that both the
Petitioners are qualified and have the requisite qualifications for being selected
and appointed as Shikshan Sevak and to be confirmed in employment as
Assistant Teachers (Trained Graduate Teachers). If the Management was
responsible for certain irregularities, the Petitioners could not be faulted. They
read an advertisement, though published in a relatively unknown newspaper,
and applied for the post alongwith other applicants who aspired to be
teachers.
18. A G.R. dated 26.12.2019 has been issued by the Education
Department of the State of Maharashtra directing all Education Authorities and
other Authorities, not to entertain such complaints from strangers and
unconnected persons. We, therefore, conclude that the Education Department
should refrain from entertaining complaints from strangers. It has to be
extremely alert and diligent, more so, to avoid the department being used for
torturing employees or jeopardizing the career of teachers / employees.
19. In so far as the dates on which the two posts fell vacant, the
learned AGP points out that said posts fell vacant on 31.05.2012. As such, it is
obvious that the Management issued orders of appointment on 09.02.2012.
( 13 ) 1051 wp 7740.21
The Petitioners could not have been taken into employment in the absence of a
vacancy. The learned advocate for the Petitioners fairly submits on instructions
that the Petitioners would agree to their appointments being made effective
from 31.05.2012 and they would not claim any service benefit at any stage in
their service career or post retirement with regard to the period from
09.02.2012 till 31.05.2012.
20. In the above backdrop, during the course of the hearing in this
matter, since we noticed the conduct of the Management, we expressed a view
that this is a fit case to penalize the private Management for indulging in
irregularities, by imposing costs of Rupees Five Lakhs per appointment. The
learned advocate for the Management strenuously urged us to reduce the
quantum of costs and he has tendered an affidavit of Shri Nitin Shankar Patil,
President of the Respondent No.4-Education Society (2 pages) dated
08.12.2023, stating therein that the Management would pay costs of Rupees
Two Lakhs per Petitioner. The said affidavit is taken on record and marked as
'X-1' for identification. In the light of the above and to balance the equities,
especially in the absence of laches or oblique motives being attributed to the
Petitioners, we would penalise the management.
21. This petition is partly allowed with the following directions :-
a) The impugned order dated 05.08.2021 stands quashed and set aside.
( 14 ) 1051 wp 7740.21
b) The Petitioners shall be deemed to be inducted in employment from
31.05.2012 and their services shall be deemed to be regularized from the said
date for all purposes including post retirement / retiral benefits.
c) The Education Officer is directed to be extremely careful and cautious
while dealing with any complaints against employees who have been confirmed
in employment in the light of the law laid down by the Hon'ble Supreme Court
in Dr. Duryodhan Sahu and Hari Bansh Lal (supra) and in the light of the G.R.
dated 26.12.2019 issued by the Education Department of the State of
Maharashtra.
d) The Management shall deposit a total amount of Rupees Four Lakhs in
this Court vide a demand draft, on or before 10.01.2024. It is directed that the
Management shall not recover this amount from the Petitioners, either directly
or indirectly.
e) After the said amount is deposited in this Court, Registry to transfer the
same to the following beneficiaries, as under:
i) Rs. One lakh to Infant India, Anandwan, 659/Infant Hill, Infront of
Bindusara Dam, N.H. 211, Pali, Beed-431122.
ii) Rs. One lakh to Bhavani Vidhyarthi Kalyan Pratishthan, Arvi, State Bank
of India, Shirur (Kasar) Branch. IFSC Code: SBIN0005995, A/c No.
33446000963.
iii) Rs. One lakh to the Government Cancer Hospital at Aurangabad.
( 15 ) 1051 wp 7740.21
iv) Rs. Fifty thousand to the Advocate's Association of the Bombay High
Court, Bench at Aurangabad.
v) Rs. Fifty thousand to the Bar Library of the Advocates' Association of
Bombay High Court, Bench at Aurangabad.
f) In view of the above, the Management agrees to withdraw the orders of
termination and agrees to reinstate the Petitioners in service w.e.f. 15.12.2023.
Consequentially, the Petitioners shall be deemed to be in continuous
employment.
g) The Petitioners present in the Court, have instructed the learned
advocate for the Petitioners to state they would not claim the back wages for
the duration of unemployment owing to their termination. The said statement
is recorded. Therefore, the amount of salaries, which were stopped for some
period prior to 23.08.2021, would be calculated by the Education Department
by following the due procedure and the said amounts would be released within
a period of 45 days from today.
h) The Petitioners are at liberty to approach the School Tribunal and by
placing this order on record, the said Appeals may be disposed off.
i) Rule is made absolute in the above terms.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
Signed by: Mohammed Abul Ala
Mubashir
Designation: PA To Honourable Judge
Date: 16/12/2023 11:18:27
