Shashikant Ramchandra Pathare vs The State Of Maharashtra Thru ...
2023 Latest Caselaw 11435 Bom

ppn                                    1              906-10627.23 & 3554.23.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.10627 OF 2023

Pandurang Dnyaneshwar Gawade                         .. Petitioner
      Versus
The State of Maharashtra
through its Principal Secretary & Ors.               .. Respondents

                                  WITH
                       WRIT PETITION NO.3554 OF 2023

Shashikant Ramchandra Pathare                        .. Petitioner
      Versus
The State of Maharashtra
through its Principal Secretary & Ors.               .. Respondents

                 ---
Mr.Saurabh Pakale i/by Ms.Padmaja Malgaonkar for the petitioner.
Mr.V.M. Mali, A.G.P. for the respondent nos.1 to 5-State.
                        ----

                                CORAM : G.S.KULKARNI &
                                        JITENDRA JAIN, JJ.

DATE : 7th November 2023 P.C.:-

. We have heard Mr.Saurabh Pakale, learned counsel for the

petitioner and the Mr.Malgaonkar, learned AGP for respondent nos.1 to 5.

2. Initially the petitioner was appointed by respondent no.6 as

an Assistant Teacher in pursuance of a selection process as undertaken by

respondent no.6 under an approved advertisement dated 24 th October

2011. Such appointment of the petitioner as made by respondent no.6

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was approved by the Deputy Director of Education, Pune by an order

dated 31st March 2012 (Exhibit B) which was on a permanent non aided

basis w.e.f. 20th July 2010 upto the probation period.

3. Thereafter, a further approval came to be granted by Education

Officer, Zilla Parishad, Pune dated 11 th July 2013 (Exhibit C) which

appears to be after the petitioner completing his probationary period.

Subsequent thereto, the petitioner continued to work on the said post.

4. On 1st June 2019, respondent no.6 proposed the petitioner's transfer

from the non-aided post to the aided post interalia in view of the

retirement of Headmaster Shri Bhosale Bhaskar Adinath on 31 st May

2019. To this effect an order dated 2 nd June 2019 came to be issued in

favour of the petitioner. On 17th March 2020, the Education Officer

(Secondary), Zilla Parishad, Pune granted an approval to the petitioner's

appointment from the un-aided post to the aided post, however, on the

condition of a phase-wise approval in regard to release of grant can be

granted.

5. Being aggrieved by the order dated 17 th March 2020, the

petitioner approached this Court in Writ Petition No.9978 of 2022. On

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the said writ petition, a Division Bench of this Court while disposing of

the petition, passed the following order dated 25th August 2022 :-

"1. The proposal seeking approval to the transfer of the Petitioner from un- aided to aided is granted, however, in a phase-wise grant-in-aid manner.

2. Heard the learned counsel for the Petitioner and the learned AGP.

3. The Petitioner claims to have been appointed on un-aided post on 17th June 2013. The said appointment is approved. The Petitioner is transferred to grant-in-aid post on 2nd June 2019.

4. The phase-wise approval has been granted relying upon the Circular dated 28th June 2016.

5. This Court in it's judgment and order dated 4th July 2019 in Writ Petition No. 1493 of 2018 with connected Writ Petitions has held that some of the clauses of the Circular dated 28th June 2016 are erroneous.

6. It has been held that if the Petitioner has rendered three years or more service on un-aided basis and thereafter transferred to the 100% grant-in- aid post, then the approval has to be on 100% grant-in-aid post.

7. In light of the above, the impugned order to the extent of granting approval in a phase-wise grant-in-aid manner is quashed and set aside.

8. The Education Officer shall confirm whether the transfer of the Petitioner was on 100% grant-in-aid post and if convinced with the transfer of the Petitioner, then shall approve the transfer of the Petitioner on 100% grant- in-aid post.

9. We have passed the aforesaid order in view of the premise that the Education Officer has approved the transfer of the Petitioner to the aided post, meaning thereby the Education Officer was convinced about the qualification possessed by the Petitioner, the roster and seniority. The same shall be considered and decided preferably within four months.

10. The Writ Petition is disposed of. No costs."

6. In pursuance of the above order passed by this Court, an

order dated 18th November 2022 was issued by the Education Officer

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rectifying the approval dated 17th March 2020.

7. Thus, insofar as the petitioner was considered there was

neither any dispute nor any occasion for the respondents to revisit any

issue more particularly in the light of orders passed by this Court.

However, surprisingly a notice was issued not only in the context of the

petitioner but appears to be a general notice issued to respondent no.6

calling upon respondent no.6 to submit various documents i.e. roster,

advertisement, reports of the selection committee as also the list of the

eligible candidates. In pursuance of such notice, respondent no.6 was

heard as also the petitioner was called upon to participate in the hearing

and by the impugned order approval granted to the petitioner transferring

the petitioner to the aided post has been cancelled.

8. The petitioner has more than one grievance against the

impugned order. Firstly the impugned order is illegal inasmuch as the

case of the petitioner has not been independently considered and in fact

the impugned order proceeds on the ground as if the petitioner was a

fresh recruit / appointee secondly that the Government Resolution dated

6th February 2012 as made by the impugned order is applicable only to

the fresh recruitment and cannot be applied the case of the petitioner, who

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admittedly was transferred to the aided post from the non-aided post and

which was already approved by the Education Officer as also by the

Deputy Director.

9. It is next submitted by Mr.Pakale that initial approval was

granted after following the due process which does not find a reference at

all in the impugned order. It is submitted that even the further

development in the petitioner approaching this Court and an order being

passed by this Court has not been taken into consideration in the

impugned order. It is also submitted that the impugned order is also

clearly in breach of principles of natural justice as there were no separate/

specific notice issued to the petitioner before any order was proposed to

be passed, questioning the petitioner's appointment.

10. Having heard the learned counsel for the parties and having

perused the record, prima facie we are quite astonished as to how the Deputy

Director of Education can pass such drastic order nullifying the earlier

approvals granted in favour of the petitioner. On a reading of the impugned

order, it is quite clear that the case of the petitioner has been treated as a fresh

recruitment. It is certainly not a case that the Education Officer as also the

Deputy Director of Education were earlier not confronted on the issue

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to grant an approval to the petitioner's appointment. Infact no fault

whatsoever was found in granting the approvals to the petitioner's

transfer from the non-aided to the aided posts. We also find that there was

no separate show cause notice issued to the petitioner as to why the

approval granted in his favour be not cancelled. Thus, prima facie we are

of the opinion that the impugned order is in breach of principles of

natural justice insofar as the petitioner is concerned.

11. This apart, even the orders passed by this Court have not

been taken into consideration, wherein a relief was granted to the

petitioner as is seen from paragraphs 6 to 9 of the said order. Such order

passed by this Court was subsisting and was acted upon. This has

completely gone unnoticed in passing the impugned order. In our opinion,

the impugned order prima facie appears to be patently illegal in its

application to the petitioner.

12. In the aforesaid circumstances, we pass the following

order :-

(i) Respondent nos.3 to 5 are directed to file reply affidavit to this

petition. Let the same be filed on or before 14th December 2023.

Respondent no.6 has already appeared and a reply affidavit is placed on

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record.

(ii) Till the adjourned date of hearing, the impugned order dated 24 th

January 2023 shall remain stayed.

(iii) Respondent nos.1 to 5 are directed to release the petitioner's unpaid

salary within a period of two weeks from today. To this effect if a

proposal is not made by respondent no.6, let the same be made within a

period of three days from today.

(iv) There shall be no extension to release the salary grant insofar as the

petitioner is concerned.

(v) Any breach of this order should be taken as an intentional

disobedience of the order.

(vi) Ordered accordingly.

13. Parties are to put to notice that on the adjourned date of

hearing, the Court shall proceed to hear the petition at the admission stage

and make an endeavour to pass an appropriate final orders.

14. Insofar as the second writ petition being No.3554 of 2023 is

concerned, Mr.Pakale, learned counsel for the petitioner states the facts

are not different except the date of appointment order. This petition would

also stand covered by our above order passed in Writ Petition No.10627

of 2023.

15. List the proceedings on 18th December 2023.

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          JITENDRA JAIN, J.              G.S.KULKARNI , J.