Bombay High Court
Dattatray Marotirao Ghodke vs The State Of Maharashtra Through Its ... on 7 May, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:9770-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.145 OF 2023
1 The Secretary,
Bharat Balaji Amre,
Age 30 yrs., Occ. Agri. & Secretary
of Shri. Shambhu Shikshan Sanstha,
Sambhunagar, Latur,
Tq. & Dist. Latur.
2 The Head Master,
Ram Venkajirao Patil,
Age 50 yrs., Occ. Head Master
of Shri. Sambhaji Madhyamik Vidyalaya,
Ghonshi, Tq. Jalkot, Dist. Latur.
... Petitioners
... Versus ...
1 The State of Maharashtra
Through it's Secretary,
School Education Department,
Mantralaya, Mumbai - 32.
2 The Deputy Director of Education,
Latur Division, Latur.
3 The Education Officer (Secondary),
Zilla Parishad, Latur, Dist. Latur.
4 Smt. Rukmin d/o Bhagwan Sawargave,
Age 39 yrs., Occ. Service,
R/o Ghonshi, Tq. Jalkot,
Dist. Latur.
... Respondents
...
2 WP_145_2023+1_Jd
Mr. G.D. Kale, Advocate for petitioners
Mr. S.J. Salgare, AGP for respondent Nos.1 to 3
Mr. R.K. Ashtekar, Advocate for respondent No.4
...
WITH
WRIT PETITION NO.11411 OF 2022
WITH
CIVIL APPLICATION NO.825 OF 2023
IN/WP/11411/2022
Smt. Rukmin d/o Bhagwan Sawargave,
Age 39 yrs., Occ. Service,
R/o Ghonshi, Tq. Jalkot,
Dist. Latur.
... Petitioner
... Versus ...
1 The State of Maharashtra
Through it's Secretary,
School Education Department,
Mantralaya, Mumbai - 32.
2 The Deputy Director of Education,
Latur Division, Latur.
3 The Education Officer (Secondary),
Zilla Parishad, Latur,
Dist. Latur.
4 The Secretary,
Shri. Shambhu Shikshan Sanstha,
Sambhunagar, Latur,
Tq. & Dist. Latur.
3 WP_145_2023+1_Jd
5 The Head Master,
Shri. Sambhaji Madhyamik Vidyalaya,
Ghonshi, Tq. Jalkot, Dist. Latur.
... Respondents
...
Mr. R.K. Ashtekar, Advocate for petitioner
Mr. S.J. Salgare, AGP for respondent Nos.1 to 3
Mr. G.D. Kale, Advocate for respondent Nos.4 and 5
Mr. R.D. Biradar, Advocate for applicant in CA
...
CORAM : SMT. VIBHA KANKANWADI &
S.G. CHAPALGAONKAR, JJ.
RESERVED ON : 21st MARCH, 2024
PRONOUNCED ON : 07th MAY, 2024
JUDGMENT :
(PER : SMT. VIBHA KANKANWADI, J.)
1 Rule. Rule made returnable forthwith. Heard learned Advocates
for the parties finally, by consent.
2 Writ Petition No.11411 of 2022 is filed by the employee/teacher,
whereas Writ Petition No.145 of 2023 is filed by the Management. Both the
petitions challenged the order passed by respondent No.2 - Deputy Director
of Education, Latur Division, Latur dated 10.10.2022, whereby the
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permanent approval granted in favour of the employee/teacher by the
Education Officer (Secondary), Zilla Parishad, Latur on 02.12.2021 came to
be set aside. Therefore, henceforth we would like to address the petitioner in
Writ Petition No.11411 of 2022 as 'employee/teacher' and the petitioners in
Writ Petition No.145 of 2023 as 'petitioners/Management'.
3 The facts which are not in dispute are - the
petitioners/Management runs a school at Ghonshi, Tq. Jalkot, Dist. Latur.
The said school has been granted permission to run 5 th to 10th classes on
100% grant-in-aid basis by the competent authority. The staff was sanctioned
by order dated 18.10.2011 and subsequent thereto. There are 11 sanctioned
posts of teachers. The bifurcation is one Head Master, seven trained graduate
teachers and three D.Ed. Teachers i.e. under graduate. One post of D.Ed. i.e.
under graduate teacher has been declared as surplus. Two of the teachers
from the school had retired by superannuation. One teacher came to be
appointed on compassionate ground. Thereafter on 21.01.2012 one teacher
by name Daulatrao Sudhakar Jantine died and because of his death one post
of teacher from open category had fallen vacant. The
petitioners/Management had sought permission by communication dated
23.01.2012 to respondent No.3 to fill the vacant post. Respondent No.3 had
not responded to the said communication. Ultimately the Management went
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ahead with the recruitment process, gave advertisement in daily newspaper,
adopted the procedure and then appointed employee/teacher by order dated
09.02.2012. Proposal was forwarded on 27.08.2013 to accord approval to
her appointment as Shikshan Sevak. Respondent No.3 had granted the
approval by order dated 28.12.2013. Later on even the salary came to be
given to the employee/teacher. After completion of three years probation,
the Management had issued the order of continuation of service and
forwarded proposal for grant of permanent approval by communication
dated 08.04.2015. Reminder was also then given, but when no decision was
taken, the employee/teacher had filed Writ Petition No.9628 of 2017 seeking
permission against respondent No.3 to decide the said proposal. Thereafter
respondent No.3 had rejected the said proposal by order dated 20.12.2018.
The said order came to be challenged before this Court once again in Writ
Petition No.1337 of 2019. The said writ petition was decided on 08.09.2021.
The matter was relegated back to respondent No.3 to decide the proposal in
the light of the observations made by this Court in the order. Thereafter
respondent No.3 had granted the approval in favour of employee/teacher on
02.12.2021. However, one Dattatraya Maruti Ghodke filed complaint before
respondent No.2 stating that the approval granted in favour of
employee/teacher (respondent No.4) is illegal. Thereupon, respondent No.2
conducted the inquiry and passed the impugned order.
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4 Heard learned Advocate Mr. G.D. Kale for
petitioners/Management, learned AGP Mr. S.J. Salgare for State and learned
Advocate Mr. R.K. Ashtekar for the employee/teacher, in both petitions.
5 The learned Advocate for petitioners/Management has
vehemently submitted that the impugned order has been passed without
jurisdiction and power. When the Education Officer had the occasion to
consider the factual aspect involved including - whether the appointment is
proper, against vacant post, as per the roaster etc. and was guided by the
observations of this Court, then the Deputy Director ought not to have
interfered only on account of a complaint by a person who had nothing to do
with the approval of the services of the employee/teacher.
6 The learned Advocate for the employee/teacher is relying on the
decision of this Court at Principal Seat in Mrs. Shivanee Prasanna Deshpande
vs. The State of Maharashtra and others with companion matters [Writ
Petition No.10133 of 2016] decided on 01.08.2017, wherein it has been
observed that - "Unless the power of review is specifically or by necessary
implication is provided, the authority cannot review its own order or
interfere with the order passed by competent authority." Further reliance is
on the decision in Kalpana Ramkrishna Gavande vs. The State of Maharashtra
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and others with companion matters [Writ Petition (Stamp) No.92916 of
2020] decided by Single Judge of this Court on 06.01.2021, wherein under
the similar circumstances and taking note of the decision in Shivanee
Deshpande (supra) it is observed that " respondent No.2 - Deputy Director of
Education was not empowered to cancel the approval which was already
granted on the ground that the appointments were made without filling in
the quota of the reserved category."
7 Per contra, the learned AGP by relying upon the affidavit-in-reply
of Dr. Ganpat Shankarrao More, the Deputy Director of Education, Latur
Division, Latur submits that in fact in the school run by the
petitioners/Management till academic year 2008-2009 in all 10 posts of
teachers were sanctioned. As regards the addition of the posts, a specific
note was given that unless the staffing pattern is sanctioned by the State
Government, additional post cannot be filled in. Therefore, at the time of
appointment of the employee/teacher there was no vacancy available and,
therefore, the approval ought not to have been granted by the Education
Officer. The said mistake has been corrected by respondent No.2.
8 As aforesaid, the facts are clear enough to indicate that the
employee/teacher's initial appointment was earlier approved by order dated
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28.12.2013. At that time there was no challenge to that order by anybody
before any authority. Even the salary was allowed to be withdrawn between
October, 2014 to February, 2015 by the appropriate authority. Thereafter
respondent No.3 had rejected the proposal for permanent approval of the
employee/teacher, which was challenged before this Court in Writ Petition
No.1337 of 2019. Taking into consideration all the aspects involved, it was
observed by this Court that the employee/teacher will have to be considered
from the graduate teachers category and the staffing pattern demonstrate
that for the year 2014-2015 there were seven posts of graduate teachers
sanctioned. The employee/teacher would be seventh, but then it was
observed that the roaster would required to be considered as to whether the
backlog of ST category was meant for particular or under graduate or a
graduate teacher and, therefore, the matter was again relegated to
respondent No.3. Thereupon, the permanent approval came to be granted.
9 It is to be noted that respondent No.2 has reopened the file on
the basis of complaint made by one Dattatraya Maruti Ghodke. Now, what
locus standi he had to make that complaint, is a question. Thereafter, the
explanations have been given by the petitioners/Management. Now, while
rejecting the approval it is said that there was backlog of the ST category.
Important point to be noted is that in that context it can be said that the post
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was there but according to respondent No.2 it was for reserved category. At
the same time, the further explanation given by the Head Master has not
been considered.
10 The first and the foremost fact to be noted is that there is no
provision under M.E.P.S. Act or Rules which would empower respondent No.2
to reopen the approvals those are granted by the Education Officer. No
doubt, he is the superior authority to the Education Officer, but it cannot be
ipso facto provision or arrangement to recall or review order passed by the
subordinate authority assuming himself to be the appellate authority. We
would also rely upon the decision in Shivanee Deshpande (supra), wherein it
is observed in respect of backlog of reserved category that - "If the Education
Officer is of the view that in some of the schools backlog of reserved category
candidates is not properly maintained, the Education Officer would always
be empowered to insist that hereinafter no candidate belonging to open
category shall be filled in unless the quota of reserved category candidates, as
per the requirement of MEPS Act Rules, is fulfilled." That means, respondent
No.2 has no power to cancel the approval granted to the employee/teacher
on the ground that the employee/teacher's appointment from the open
category was, in fact, without filling in the quota of reserved category.
10 WP_145_2023+1_Jd
11 Now, we are constrained to observe that in spite of Shivanee
Deshpande's decision was pronounced on 01.08.2017; yet, we are coming
across such assumption of powers by respondent No.2 in the subsequent
period like the present one. When the Act does not empowers so the Deputy
Directors of Education are required to be careful in assuming such powers.
The exercise of such power is permissible in Shivanee Deshpande (supra)
only when there is a fraud, misrepresentation or suppression by the
petitioners/Management or the employee/teacher. We hope and trust that
henceforth all the Deputy Directors of Education would take note of the
decision in Shivanee Deshpande (supra) and other decisions in which the
decision in Shivanee Deshpande has been followed and then would act
accordingly.
12 Since the impugned order dated 10.10.2022 passed by
respondent No.2 is without jurisdiction and power, it deserves to be set aside,
so also the letter issued by respondent No.3 dated 20.10.2022 deserves to be
set aside, thereby then restoring the permanent approval granted to the
employee/teacher's appointment by order dated 02.12.2021 by respondent
No.3. Hence, following order.
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ORDER
i) Both the Writ Petitions stand allowed in terms of prayer clause
'B' in both the writ petitions.
ii) No order as to costs.
iii) The Government Pleader attached to this Bench is directed to
circulate the copy of Judgment in Shivani Deshpande (supra), copy of this
Judgment and other such important Judgments, in which the point or subject
is involved, to all the Deputy Directors of Education throughout the
Maharashtra and to take note of the observations in paragraph No.11 of this
Judgment.
iv) Civil Application stands disposed of.
v) Rule is made absolute in the above terms.
(S.G. CHAPALGAONKAR, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
