Bombay High Court
Pravin Raghunath Pawar vs The State Of Maharashtra Thr. The ... on 17 January, 2024
Bench: Nitin Jamdar, M.M.Sathaye
Trupti 1 32-cp-460-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 460 OF 2022
IN
WRIT PETITION NO. 6883 OF 2018
Pravin Raghunath Pawar ... Petitioner
versus
The State of Maharashtra and Others ... Respondents
.......
Mr.Narendra V.Bandiwadekar, Senior Advocate with Mr.Vinayak
Kumbhar i/b. Mr. A.N.Bandiwadekar for the Petitioner.
Ms.Nisha Mehra, AGP for Respondent Nos. 1, 2 and 2A-State.
.......
CORAM : NITIN JAMDAR &
M.M.SATHAYE, JJ.
DATE : 17 JANUARY 2024
P.C.:
What prima facie emerges before us is not only a defiance of
the orders passed by this Court but also the matter of administrative
indiscipline.
2. On 21 December 2021, the Division Bench of this Court
allowed the Writ Petition No. 6883 of 2018 filed by the Petitioner
which reads thus :
" Rule. Mr. Rajpurohit, learned AGP waives service
for the respondents. By consent of parties, petition is
heard finally.
Trupti 2 32-cp-460-2022.doc
2. By this petition filed under Article 226 of the
Constitution of India, the petitioners have impugned
the order dated 28th February, 2018 passed by the
respondent no.2 for granting approval to the
appointment of the petitioner no.1 as peon-shikshan
sevak w.e.f. 12th September, 2016 in the aided
secondary school of the petitioner no.2
and to release the grant-in-aid for payment of
monthly honorarium for a period of three years from
the date of appointment.
3. Mr. Bandiwadekar, learned counsel for the
petitioners invited our attention to the impugned
order dated 28th February, 2018 insofar as the
petitioner no.1 is concerned and would submit that
the proposal submitted by the Management for
approval is rejected on the ground that there was ban
on appointment of the employee under Government
Resolution dated 12th February, 2015. He submits
that the petitioner no.2 is a minority institution and
thus Section 5 of the MEPS Act would not apply to
the minority institution. He relied upon the
judgment of this Court delivered on 27 th June, 2019
in case of Mr.Jaydev Subhash Manerkar v/s. State of
Maharashtra and Ors. Writ Petition No. 7962 of
2017 and in another Writ Petition No. 4350
of 2017 and also an unreported judgment delivered
on 16th July, 2021 in Writ Petition No. 4273 of
2019 in case of Shital Kumar Patil v/s.
State of Maharashtra and Ors. This Court in both the
judgments adverted to the Judgments of Hon'ble
Supreme Court and held that Section 5(1) of the
MEPS Act does not apply to the minority
institutions and thus the Government Resolution
pressed in service by the respondents would not
apply to the petitioner no.2 institution.
Trupti 3 32-cp-460-2022.doc
4. Mr. Rajpurohit, learned AGP for the respondents
could not distinguish the judgments relied upon by
Mr. Bandiwadekar, learned counsel for the
petitioners. In our view, the judgment of this Court
referred to aforesaid would apply to the facts of this
case. We are respectfully bound by the said
judgments and we do not propose to
take any different view in the matter.
5. The order passed by the respondent no.2 is
contrary to the provisions of Section 5(1) of the
MEPS Act and the principals of law
laid down by this Court in the judgments referred to
aforesaid and deserves to be quashed and set aside.
The petitioner no.1 thus has made out a case for
approval of his appointment.
6. We accordingly pass the following order :-
(a) Writ Petition is allowed in terms of prayer
clause (b).
(b) The approval to the appointment of the
petitioner as prayed shall be granted within
four weeks from today. The name of the
petitioner no.1 shall be entered in the
Shalarth ID within two weeks thereafter and
shall release the consequential benefits
including the payment of salary within two
weeks from the date of entering the
name of the petitioner no.1 in Shalarth ID.
(c) The petitioner no.2-Management is
directed to submit fresh proposal for
appointment to the petitioner no.2 as
peon on regular pay scale from 12th
September, 2019 after expiry of three years as
peon-shikshan sevak within two weeks from
Trupti 4 32-cp-460-2022.doc
today. Upon receipt of such fresh
proposal from the petitioner no.2-
Management, the respondent no.2 shall
consider the said proposal within
four weeks thereafter and shall release the
necessary grant-in-aid in favour of the
Management in respect of such appointment
within four weeks from the date of
granting such approval.
(d) Rule is made absolute accordingly. There
shall be no order as to costs.
(e) Parties to act on an authenticated copy of
this order.
Writ Petition No. 6883 of 2018 was allowed in terms of prayer
clause (b) which reads thus :
"b] By a suitable Writ, order or direction, this
Hon'ble Court be pleased to quash and set aside
the impugned order dated 28.2.2018 issued by
the Respondent No.2, and accordingly the
Respondent No.2 may be directed to grant
approval to the appointment of the Petitioner
No.1 as Peon- Shikshan Sevak w.e.f. 12.9. 2016
in the aided Secondary School of the Petitioner
No.2 and to release the grant-in-aid for
payment of monthly honorarium for a period of
3 years from the said date of appointment".
3. Since the aforesaid order was not complied with, the present
contempt petition was filed wherein notice has been issued on 21
July 2022 observing thus:
" Learned Counsel for the Petitioner submits that
as yet the name of the Petitioner is not included in
the Shalarth ID.
Trupti 5 32-cp-460-2022.doc
2. For the present, simple notice to Respondent
No. 2 & 2 (a), returnable on 15 September 2022."
Thereafter, on 15 September 2022, the following order came to be
passed :
"1 The order of this court is not complied with.
The learned A.G.P. submits that Respondents
are contemplating filing SLP against the order
of which contempt is alleged.
2 The order of which contempt is alleged is
passed in December, 2021.
3 If the order of this court dated 21.12.2021 in
Writ Petition No.6883 of 2018 is in force, then
the Respondents are bound to comply the
same. If the same is not complied with before
the next date, we may take serious view of the
matter.
4 At the request of learned A.G.P. stand over to
30.11.2022".
4. In the order dated 15 September 2022, this Court had stated
that if the order dated 21 December 2021 is in force and is not
complied with, the Court may take serious view of the matter.
5. The order is not complied with. On the contrary, reply
affidavit is filed by Smt.Lalita Dahitule, the Education Officer
(Secondary), that is, Respondent No.2. In paragraph 5 of the
affidavit in reply, the Deponent states as under :
Trupti 6 32-cp-460-2022.doc
"5. I say that while making compliance of this
order of this Hon'ble court which verifying the
proposal for approval of the petitioner, it is seen
that the appointment was made in ban period. I
say that no peon post was sanction in the staffing
pattern at the time of appointment of the
petitioner. I say that as per government resolution
dated 11/12/2020 government impugned new
policy for the peon post. I say that the decision of
the Hon'ble court was contrary to this policy of
government and the reasons mentioned in this
Para".
emphasis supplied
In above underlined portion of paragraph 5, the Education Officer
states that the order of this Court is contrary to the policy of the
Government.
6. Respondent No.2 is clearly misinformed of the position of law
and what is the scope of a writ jurisdiction. Not only this, but in the
communication addressed to the Additional Principal Secretary,
School Education and Sports Department, State of Maharashtra
dated 2 September 2022, Respondent No.2 has written that the
opinion was given by the Office of the Government Pleader as well
as the Director of Education that there is no need to file a Special
Leave Petition against the main order is wrong.
7. This communication is of 2 September 2022. Till date, as we
are informed by the learned AGP, no Special Leave Petition is filed.
Trupti 7 32-cp-460-2022.doc
8. This Court has already stated as far back on 15 September
2022 that if the order is not complied with, the Court may take
serious view of the matter.
9. We direct the Registry of this Court to issue notice to
Smt.Lalita Dahitule, the Education Officer (Secondary), that is,
Respondent No.2 [a] as to why the proceedings under the Contempt
of Courts Act 1971 and under Article 215 of the Constitution of
India shall not be initiated against her. Smt.Lalita Dahitule, the
Education Officer (Secondary) will remain present in this Court on
21 February 2024 at 2.30 pm. If Smt.Lalita Dahitule, the Education
Officer (Secondary) fails to remain present in Court on the next
date, then the Court will have to secure her presence by taking
coercive measures.
10. A copy of this order be sent to the Secretary, School Education
Department, State of Maharashtra to consider the issue and if the
Secretary, School Education Department finds that there is
administrative indiscipline, it is open for the Secretary, School
Education Department can proceed accordingly.
(M.M.SATHAYE, J.) (NITIN JAMDAR, J.)
