Bombay High Court
Smt. Hemlata Prakash Choudhary ... vs The President/ Secretary Mumbra ... on 31 January, 2024
Author: Nitin Jamdar
Bench: Nitin Jamdar, M.M. Sathaye
2024:BHC-AS:6047-DB
Vinaa Khadpe 1 13-as-wp-6568-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6568 OF 2021
Smt. Hemlata Prakash Choudhary (Talele) ... Petitioner
residing at 434, Ganpati Apartment,
Ambernath - 421 501, District Thane
Versus
1. The President / Secretary ... Respondents
Mumbra Shikshan Prasarak Mandal,
having office at
C/o. B. S. Jondhale Vidya Mandir,
Hindi Primary School, Mumbra,
Behind Police Station, District Thane.
2. The Head Mistress,
B. S. Jondhale Vidya Mandir,
Hindi Primary School, Mumbra,
Behind Police Station, District Thane.
3. The Education Officer,
Thane Municipal Corporation,
New Administrative Building,
Chandanwadi, Thane.
4. The Education Officer,
Zilla Parishad (Primary), Thane.
5. The Deputy Director of Education,
Nehru Bal Bhavan, Charni Road,
Mumbai.
6. The Director of Education,
Maharashtra State, Pune.
7. The State of Maharashtra,
(Writ to be served upon the Secretary,
Govt. of Maharashtra, School Education
Department, Mantralaya,
Mumbai-400032.
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WITH
WRIT PETITION NO. 6569 OF 2021
Smt. Jayshree Dharma Patil ... Petitioner
residing at Kalyan Dipti Society,
1st Floor, A/2, Near Birla College,
Kalyan(W), District Thane.
Versus
1. The President / Secretary ... Respondents
Mumbra Shikshan Prasarak Mandal,
having office at
C/o. B. S. Jondhale Vidya Mandir,
Hindi Primary School, Mumbra,
Behind Police Station, District Thane.
2. The Head Mistress,
B. S. Jondhale Vidya Mandir,
Hindi Primary School, Mumbra,
Behind Police Station, District Thane.
3. The Education Officer,
Thane Municipal Corporation,
New Administrative Building,
Chandanwadi, Thane.
4. The Education Officer,
Zilla Parishad (Primary), Thane.
5. The Deputy Director of Education,
Nehru Bal Bhavan, Charni Road,
Mumbai.
6. The Director of Education,
Maharashtra State, Pune.
7. The State of Maharashtra,
(Writ to be served upon the Secretary,
Govt. of Maharashtra, School Education
Department, Mantralaya,
Mumbai-400032.
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Ms. Kumud A. Bhatia for the Petitioners.
Ms. Chaitrali A. Deshmukh for the Respondent No.3.
Mr. Shrishail Sakhare for the Respondent No.4.
Mr. B. V. Samant, Addl. Govt. Pleader a/w Mr. S. B. Kalel, AGP for
the Respondent Nos.5, 6 and 7.
CORAM : NITIN JAMDAR AND
M.M. SATHAYE , JJ.
DATE : 31 JANUARY 2024.
ORAL JUDGMENT (Per NITIN JAMDAR, J) :
1. Rule. Rule made returnable forthwith. Taken up for disposal.
2. Petitioners have filed these Writ Petitions challenging the
orders passed by Respondent No.3 - Education Officer, Thane
Municipal Corporation dated 27 July 2021 refusing to condone
break in service of the Petitioners.
3. Petitioners were working with Respondent No.1 - Education
Institution who supports the cause of the Petitioners. From the
record, it would appear that the proposals were sent by the Education
Institution to the Education Officer, Thane Municipal Corporation
("TMC") in respect of condoning break in service of the Petitioners.
The Education Officer, TMC by communications dated 11 January
2005 and 18 January 2005 placed the matters before the Divisional
Deputy Director of Education, Mumbai who by communications
dated 25 May 2021 and dated 7 June 2021 returned it to the
Education Officer, TMC to take a decision and thereafter the
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Education Officer, TMC have passed the impugned orders.
4. We have heard Ms. Kumud A. Bhatia, learned counsel for the
Petitioners, Ms. Chaitrali A. Deshmukh, learned counsel for
Respondent No.3, Mr. Shrishail Sakhare, learned counsel for the
Respondent No.4, Mr. B. V. Samant, learned Additional
Government Pleader a/w Mr. S. B. Kalel, learned Additional
Government Pleader for Respondent Nos.5, 6 and 7.
5. Learned counsel for the Petitioners has drawn our attention to
the Government Resolution dated 10 May 1989 wherein the
procedure and contingencies in which the break in service can be
condoned have been specified. After specifying the conditions, it is
stated therein that the power to condone break in service is given to
the Divisional Deputy Director of Education. There is no reference
to delegate the power to the Education Officer. Instead of exercising
the power vested in him, the Divisional Deputy Director has sent the
proposal back to the Education Officer, TMC. Even Government
Resolution dated 10 May 1989 does not refer to the Education
Officer.
6. The Divisional Deputy Director of Education is a superior
officer to the Education Officer and considering that such
condonation of break in service has consequences on grant of
pensionary benefits which may have substantial financial
implications, the power to condone break in service is vested with
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the Divisional Deputy Director of Education. Even under the
Government Resolution dated 28 April 2008 though there is
reference to the Education Officer / Education Inspector, it is only
for the purpose of scrutinizing the proposal. We have not been
shown the power to take a decision is conferred on the Education
Officer. In fact, this Government Resolution refers to the earlier
Government Resolutions of the year 1968 and 1972 indicating that
the power is vested with the superior officer.
7. We had adjourned the Petitions raising a query as to whether
the Education Officer would have power to condone break in
service. However, no satisfactory answer is coming forth. In light
thereof, the impugned orders dated 27 July 2021 are quashed and set
aside.
8. The Education Officer, TMC would forward the proposals
which are returned by the Divisional Deputy Director of Education
back to the Divisional Deputy Director of Education, Mumbai as
early as possible, who will take a decision on its own merits and as
per law within eight weeks on receipt of the proposals subject to
earlier time bound matters and pressing public duties.
9. Rule is made absolute in the above terms. Writ Petitions are
disposed of.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
