Bombay High Court
Mahadeo Prabhu Ghadge vs The State Of Maharashtra Through The ... on 29 November, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:24974-DB
906.CA.12544.23 +.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.12544 OF 2023
IN
REVIEW APPLICATION (ST) NO.29251/2022
IN
WRIT PETITION NO.4061 OF 2017
Hanmant s/o. Babruwan Dure ... APPLICANT
VERSUS
The State of Maharashtra
through the Secretary and Ors. ... RESPONDENTS
WITH
REVIEW APPLICATION (ST) NO.29251/2022
IN
WRIT PETITION NO.4061 OF 2017
Hanmant s/o. Babruwan Dure ... APPLICANT
VERSUS
1. The State of Maharashtra
through the Secretary,
in the Department of Education,
Mantralaya, Mumbai - 32
2. The Director,
Maharashtra State Educational
Research and Training Council,
Pune - 32
3. The Deputy Director of Education,
Division Latur, Tq. and Dist. Latur
4. The Principal District Education and
Training Institute, Murud,
Tq. and Dist. Latur.
5. The Education Officer (Secondary),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
6. The Manjra Charitable Trust,
Khadgaon Road, Latur,
through its President
7. Smt. Sushiladevi Deshmukh
Mahila Adhyapak Vidyalaya,
MIDC, Plot No.P-43, Barshi Road,
Latur, Tq. and Dist. Latur
1/12
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through its Administrator of
Manjra Charitable Trust at Latur
8. The Principal,
Vivekanand D.Ed. College,
Babhalgaon, Tq. and Dist. Latur ... RESPONDENTS
...
AND
CIVIL APPLICATION NO.12548 OF 2023
IN
REVIEW APPLICATION (ST) NO.29259/2022
IN
WRIT PETITION NO.3681 OF 2017
Mahadeo s/o. Prabhu Ghadge ... APPLICANT
VERSUS
The State of Maharashtra
through the Secretary and Ors. ... RESPONDENTS
WITH
REVIEW APPLICATION (ST) NO.29259/2022
IN
WRIT PETITION NO.3681 OF 2017
Mahadeo s/o. Prabhu Ghadge ... APPLICANT
VERSUS
1. The State of Maharashtra
through the Secretary,
in the Department of Education,
Mantralaya, Mumbai - 32
2. The Director,
Maharashtra State Educational
Research and Training Council,
Pune - 32
3. The Deputy Director of Education,
Division Latur, Tq. and Dist. Latur
4. The Principal District Education and
Training Institute, Murud,
Tq. and Dist. Latur.
5. The Education Officer (Secondary),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
6. The Manjra Charitable Trust,
Khadgaon Road, Latur,
through its President
7. Smt. Sushiladevi Deshmukh
2/12
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Mahila Adhyapak Vidyalaya,
MIDC, Plot No.P-43, Barshi Road,
Latur, Tq. and Dist. Latur
through its Administrator of
Manjra Charitable Trust at Latur
8. The Principal,
Vivekanand D.Ed. College,
Babhalgaon, Tq. and Dist. Latur ... RESPONDENTS
AND
CIVIL APPLICATION NO.12547 OF 2023
IN
REVIEW APPLICATION (ST) NO.29273/2022
IN
WRIT PETITION NO.3680 OF 2017
Deepak s/o. Shriram Kadam ... APPLICANT
VERSUS
The State of Maharashtra
through the Secretary and Ors. ... RESPONDENTS
WITH
REVIEW APPLICATION (ST) NO.29273/2022
IN
WRIT PETITION NO.3680 OF 2017
Deepak s/o. Shriram Kadam ... APPLICANT
VERSUS
1. The State of Maharashtra
through the Secretary,
in the Department of Education,
Mantralaya, Mumbai - 32
2. The Director,
Maharashtra State Educational
Research and Training Council,
Pune - 32
3. The Deputy Director of Education,
Division Latur, Tq. and Dist. Latur
4. The Principal District Education and
Training Institute, Murud,
Tq. and Dist. Latur.
5. The Education Officer (Secondary),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
6. The Manjra Charitable Trust,
Khadgaon Road, Latur,
3/12
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906.CA.12544.23 +.odt
through its President
7. Smt. Sushiladevi Deshmukh
Mahila Adhyapak Vidyalaya,
MIDC, Plot No.P-43, Barshi Road,
Latur, Tq. and Dist. Latur
through its Administrator of
Manjra Charitable Trust at Latur
8. The Principal,
Vivekanand D.Ed. College,
Babhalgaon, Tq. and Dist. Latur ... RESPONDENTS
AND
CIVIL APPLICATION NO.12546 OF 2023
IN
REVIEW APPLICATION (ST) NO.29263/2022
IN
WRIT PETITION NO.3674 OF 2017
Khalil s/o Maheboob Shaikh ... APPLICANT
VERSUS
The State of Maharashtra
through the Secretary and Ors. ... RESPONDENTS
WITH
REVIEW APPLICATION (ST) NO.29263/2022
IN
WRIT PETITION NO.3674 OF 2017
Khalil s/o Maheboob Shaikh ... APPLICANT
VERSUS
1. The State of Maharashtra
through the Secretary,
in the Department of Education,
Mantralaya, Mumbai - 32
2. The Director,
Maharashtra State Educational
Research and Training Council,
Pune - 32
3. The Deputy Director of Education,
Division Latur, Tq. and Dist. Latur
4. The Principal District Education and
Training Institute, Murud,
Tq. and Dist. Latur.
5. The Education Officer (Secondary),
4/12
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906.CA.12544.23 +.odt
Zilla Parishad, Latur,
Tq. and Dist. Latur.
6. The Manjra Charitable Trust,
Khadgaon Road, Latur,
through its President
7. Smt. Sushiladevi Deshmukh
Mahila Adhyapak Vidyalaya,
MIDC, Plot No.P-43, Barshi Road,
Latur, Tq. and Dist. Latur
through its Administrator of
Manjra Charitable Trust at Latur
8. The Principal,
Vivekanand D.Ed. College,
Babhalgaon, Tq. and Dist. Latur ... RESPONDENTS
AND
CIVIL APPLICATION NO.12545 OF 2023
IN
REVIEW APPLICATION (ST) NO.29266/2022
IN
WRIT PETITION NO.3679 OF 2017
Dagdu s/o Ratan Tamboli ... APPLICANT
VERSUS
The State of Maharashtra
through the Secretary and Ors. ... RESPONDENTS
WITH
REVIEW APPLICATION (ST) NO.29266/2022
IN
WRIT PETITION NO.3679 OF 2017
Dagdu s/o Ratan Tamboli ... APPLICANT
VERSUS
1. The State of Maharashtra
through the Secretary,
in the Department of Education,
Mantralaya, Mumbai - 32
2. The Director,
Maharashtra State Educational
Research and Training Council,
Pune - 32
3. The Deputy Director of Education,
Division Latur, Tq. and Dist. Latur
5/12
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4. The Principal District Education and
Training Institute, Murud,
Tq. and Dist. Latur.
5. The Education Officer (Secondary),
Zilla Parishad, Latur,
Tq. and Dist. Latur.
6. The Manjra Charitable Trust,
Khadgaon Road, Latur,
through its President
7. Smt. Sushiladevi Deshmukh
Mahila Adhyapak Vidyalaya,
MIDC, Plot No.P-43, Barshi Road,
Latur, Tq. and Dist. Latur
through its Administrator of
Manjra Charitable Trust at Latur
8. The Principal,
Vivekanand D.Ed. College,
Babhalgaon, Tq. and Dist. Latur ... RESPONDENTS
...
Advocate for applicants/petitioners in all matters : Mr. A.N. Irpatgire
A.G.P. for respondent Nos.1 to 5: Mr. S.G. Sangale
Advocate for respondent Nos.6 to 8 : Mr. V.D. Hon, Senior advocate i/b
Mr. A.V. Hon in all matters
...
CORAM : MANGESH S. PATIL &
NEERAJ P. DHOTE, JJ.
RESERVED ON : 08.11.2023
PRONOUNCED ON: 29.11.2023
JUDGMENT (MANGESH S. PATIL, J.) :
Heard the learned advocate for the petitioners, the learned
AGP for respondent Nos.1 to 5 and learned Senior advocate Mr. Hon for
the respondent Nos.6 to 8, on the applications for delay condonation as
also on the review applications.
2. The delays are condoned. The review applicants in all these
proceedings who are similarly placed are seeking review of the common
order passed by this Court in their individual matters on 11.08.2022,
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dismissing the petitions.
3. In substance the applicants' stand in the petitions was that
they were appointed and working as lecturers in the respondent No.7 -
College being run by the respondent No.6 - Management which illegally
closed down the respondent No.7 - College and transferred/absorbed
these students in the respondent No.8 - College. The applicants were
alleging that they were duly appointed by following selection process and
personal approvals were granted to their appointments on 05.06.2006.
Since the respondent No.7 - College was not receiving any grant-in-aid, it
was the management's responsibility to pay the salaries. The respondent
No.6 - Management by resolution dated 17.08.2016 closed down the
respondent No.7 - College from academic year 2016-17 and notified its
decision to the office of the Deputy Director of Education.
4. Some of the teaching and non-teaching staff lodged a
complaint with the Deputy Director of Education (DDE) who granted
approval to the proposal for absorption of 48 students of the respondent
No.7 - College in respondent No.8 - College, however, did not take any
action as far as the teaching and non-teaching staff was concerned. The
applicants, therefore, challenged the letter dated 21.10.2016 issued by
the DDE.
5. As was the stand of the applicants in the petition, their
learned advocate Mr. Irpatgire would submit that the respondent No.6 -
Management was running 18 Educational Institutions and the respondent
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No.6 - Management ought to have maintained a common seniority list in
the office of the Deputy Director for being absorbed in the light of the
provisions of Rule 25A and Rule 27(d) of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981 (Rules of 1981). He
would submit that while dismissing the petitions this Court has observed
that there was no such common seniority list maintained though this
Court had observed that the circumstances indicated that there was
deemed retrenchment even without there being any specific
order/communication. However, merely because there was no common
seniority list, which was not the fault of the present applicants-
petitioners, the prayer for absorption was turned down by the order
under review.
6. In addition a false statement was made on behalf of the
respondent No.6- Management that there was no vacancy, which
prompted this Court to hold that the petitioners could not have been
directed to be absorbed. It was not the petitioners' case that there was
any actual retrenchment or termination still this Court observed that a
suitable alternate remedy was available to them, treating on the basis of
the factual scenario, that there was deemed retrenchment.
7. Mr. Irpatgire would submit that in spite of availability of 27
to 28 vacancies and in spite of availability of the vacancies even now, in
violation of the provisions of Rule 25A, 26 and Rule 27(d) of the Rules
1981 the applicants have not been absorbed. Information has been
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solicited under the Right to Information Act, 2005 regarding availability
of vacancies.
8. Lastly, Mr. Irpatgire would submit that while passing the
order under review, only the prayer clauses regarding absorption was
considered. Simultaneously, the applicants-petitioners were claiming
arrears of salary but the point was not considered and was not decided.
He also placed reliance on the full bench decision of this Court in the
matter of Kanhaiyyalal s/o Sonbaji Gajbhiye Vs. Bhartiya Jagruti
Shikshan Sanstha, Sawari (Javahar Nagar) and Ors.; 2020 SCC OnLine
Bom 7461.
9. The learned AGP and the learned advocate for the
respondent Nos.6 and 7 would strongly opposes the review applications.
They would submit that the Management was running the D.Ed College
for women on permanent non-grant basis. A decision was taken to close
it down due to scarcity of students. A resolution was passed. The
College in which the applicants-petitioners were appointed being on non-
grant basis they could not have been absorbed in other institutes being
run by the Management which were receiving grants. In any case, this
Court had recorded cogent reasons in the order under review while
refusing to issue any mandamus directing absorption.
10. They could also submit that this Court cannot sit in appeal.
The order under review being erroneous, cannot be a ground to resort to
the remedy of review. It was always open for the applicants-petitioners to
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challenge the order and the applications be dismissed.
11. Bearing in mind the inherent limitations in review
jurisdiction, we are of the considered view that no ground exists to
invoke that jurisdiction. This Court in the order under review had merely
pointed out that though there are provisions contained in Rule 25A, 26
and Rule 27 regarding retrenchment and absorption of the employees
governed by the M.E.P.S. Act and the Rules, it was also indicated that no
combined seniority list was in existence, which was a sine qua non for
considering the request of absorption.
12. Admittedly, the college was closed down, the students were
absorbed in another college and practically the college was
nonfunctional. However, simultaneously, there were no orders of
termination or retrenchment as well. Nothing was communicated to the
applicants-petitioners. No prior notice as is required by Rule 25A and
Rule 26 of the Rules of 1981 was issued to the petitioners by the
Management and in the circumstances, we had concluded that it could be
a case of deemed retrenchment on account of failure to follow the
prescribed statutory provisions. It is in light of such peculiar
circumstances this Court observed that alternate efficacious remedy of
preferring an appeal to the School Tribunal, challenging the retrenchment
could be availed of by the petitioners.
13. It is in the process that it was observed that absence of any
evidence demonstrating availability of the vacancies was also a fact for
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not considering the request for absorption.
14. Admittedly, though the respondent No.6 - Management has
been running several institutions, no common seniority list of the
teaching and non-teaching staff has ever been maintained which is a
prerequisite for claiming the absorption. In the absence of which, the
order under review observes that the petitioners could not be directed to
be absorbed.
15. Again, the stand of the respondents that since the petitioners
were appointed in the respondent No.7 - College which was not receiving
any grant-in-aid from the Government and consequently the authorities
were not obliged to direct petitioners' absorption in other institutes being
run by the same management which were receiving grant-in-aid, was
neither met at the time of the hearing of the petitions nor has any
submission been made before us while deciding these review
applications.
16. Pertinently, even now the applicants-petitioners though claim
to have applied under the RTI Act to solicit the information regarding the
vacancies, they have not been provided any as is averred in the review
applications. Meaning thereby that even now there is no evidence before
us to positively say that there are vacancies in the institutions being run
by the same Management.
17. So far as the prayer for arrears of salaries is concerned, true
it is that it was not expressly dealt with while deciding the petitions by
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the order under review. However, since this Court had expressly observed
that the petitioners could avail of the remedy of preferring an appeal
under Section 9 of the M.E.P.S. Act before the School Tribunal for the
deemed retrenchment/termination, their right to claim arrears was
apparently not argued and in all probability was kept open to be
considered by the School Tribunal. These being the review applications
in our considered view, issuing a clarification in this regard would serve
the purpose, to the effect that all the issues including that of claim
regarding salaries have been kept open. That would cause no prejudice
to either of the parties.
18. In view of such peculiar state of circumstances which even
prevail now, there are no sufficient and cogent grounds which would
enable us to undertake review.
19. The Review applications are rejected. However, it is clarified
that the petitions were dismissed by keeping open the issue regarding
arrears of salaries.
[ NEERAJ P. DHOTE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
