Bombay High Court
Janata Shikshan Sanstha And Ors vs The State Of Maharashtra Through The ... on 9 August, 2024
Bench: Nitin Jamdar, M. M. Sathaye
2024:BHC-AS:31836-DB
Digitally
signed by
5-wp-7582-24.doc
ANANT
ANANT KRISHNA
KRISHNA NAIK
NAIK Date:
2024.08.09
17:43:56
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7582 OF 2024
Janata Shikshan Sanstha And Ors. ...Petitioners
Versus
The State Of Maharashtra And Ors. ...Respondents
Mr. Utkarsha Desai i/b. Mr. Prashant Bhavake for the Petitioners.
Mr. S. H. Kankal, AGP for the Respondent Nos. 1 to 4
CORAM : NITIN JAMDAR &
M. M. SATHAYE, JJ.
DATED : 9 AUGUST 2024
P.C.:
. Heard learned counsel for the Petitioners and learned AGP for
Respondents / State.
2. Petitioner No. 3 employee (Anjana Harishchandra Patil) working
with Petitioner No. 2 Junior College run by Petitioner No. 1 Education
Institute, are jointly challenging the order dated 5 September 2023 passed
by Respondent No. 5-Education Officer (Secondary) Raigad Zilla Parishad,
Alibag. By the said impugned order, Respondent No. 5 has rejected the
approval for transfer of Petitioner No. 3 from un-aided to aided division on
two grounds including that of stay granted under Government Circular
dated 1 December 2022.
3. The learned counsel for the Petitioners has relied upon the judgment
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of Friends Social Circle, Akola & Ors. v/s State of Maharashtra 1 to contend
that the impugned Order is unsustainable so far as the objection based on
said circular is concerned. Learned AGP was at pains to justify the
impugned order but could not distinguish the facts of this case from the said
Judgment relied. It is further submitted by learned Counsel for the
Petitioners that the other ground in the impugned order is taken without
any notice to them.
4. Perusal of the impugned order shows that one of the grounds on
which the proposal is rejected is the Government Circular dated 1
December 2022. In the Judgment of Friends Social Circle, Akola (supra),
this Court has clearly held that Rule 41A of the Maharashtra Employees Of
Private Schools (Conditions Of Service) Rules, 1981 cannot be stayed by
issuance of Government Circular and has set side the said Government
Circular to the extent it stays operation and Rule 41A. Indeed this view has
been consistently followed thereafter in number of decisions of this Court.
In light thereof, the said ground in the impugned order cannot be sustained
and it is set aside.
5. So far as the other ground stated in the impugned order is concerned,
it is taken without any notice to Petitioners and had an opportunity been
given, the Petitioners would have given appropriate and necessary
explanation. It has resulted in a situation where factual inquiry about a
ground of rejection is required to be done first time in this Court.
6. In light thereof, we direct that the impugned order will be treated as
notice to Petitioners of the proposed ground/s for rejection. The proposal of
1 2023 SCC Online Bom 1503
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the Petitioners is restored to file. Respondent No. 5-Education Officer is
directed to send the proposal of Petitioners within a period of two weeks
from today, to the appropriate authority as per Government Resolution
dated 29 April 2024 ('the said GR' for short) for decision in accordance
with law.
7. If there are any other grounds on which the Authority under the said
GR intends to return or reject the proposal, he is directed to communicate
the same to the Petitioners within a period of 2 weeks thereafter.
8. The Petitioners shall thereafter submit their explanation to the
proposed grounds, along with supporting material including government
resolutions, case laws / orders of this Court etc. if relied upon.
9. The Authority under the said GR is directed to decide the proposal of
Petitioners thereafter within a period of 8 weeks, by dealing with the
explanation given by the Educational Institute as also dealing with case
law/orders of this Court, by passing a reasoned order, subject to other time
bound directions. If the Authority proceeds to grant proposal as prayed,
consequent benefits will follow.
10. We have not expressed any opinion on the Petitioners' proposal and
the same shall be decided on its own merits in accordance with law.
11. Writ Petition is disposed of in the above terms. No costs.
(M. M. SATHAYE, J.) (NITIN JAMDAR, J.)
