Bombay High Court
Vidyasagar Dnyanoba Gaikwad vs The State Of Maharashtra And Others on 8 May, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:9954-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13261 OF 2019
Shri Vidyasagar Dnyanoba Gaikwad,
age 45 years, Occ. Service as Special Teacher,
R/o C/o Chhatrapati Shivaji Maharaj
Residential Matimand School, Walandi,
Tq. Deoni, Dist. Latur Petitioner
Versus
1. The State Of Maharashtra
Through It's Secretary
Social Justice and Special Assistance,
Department, Mantralaya, Mumbai - 32.
2. The Competent Authority And Commissioner
For Handicap Welfare,
Maharashtra State, Pune.
3. The District Social Welfare Officer,
Grade-I, Zilla Parishad, Latur.
Tq. & Dist. Latur.
4. Shri Sangameshwar Shikshan Prasarak Mandal,
Shirur Anantpal, Tq. Nilanga, Dist. Latur.
5. Shri Chhatrapati Shivaji Maharaj
Residential Matimand School, Walandi,
Tq. Deoni, Dist. Latur.
Through it's Headmaster Respondents
.....
Advocate for the Petitioner : Mr. A.V. Indrale Patil
AGP for Respondents no.1 : Mr. S.J.Salgare
Advocate for Respondents nos.2 and 3 : Mr. S.V. Adwant
Advocate for Respondent no. 3 : Mr. S.S.Manale
Respondent Nos.4 and 5 are Served.
.....
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CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
Reserved on April 24, 2024
Pronounced on May 08, 2024
JUDGMENT :
- (Per S.G. Chapalgaonkar, J.)
1. The petitioner has approached this Court under
Article 226 of the Constitution of India, impugning the
order/communication dated 24.10.2017 issued by respondent
no.3, thereby cancelling the approval granted to his
appointment on the post of Special Teacher, on establishment
of respondent no.5-School.
2. Mr. A.V. Indrale Patil, learned advocate appearing
for the petitioner submits that respondent no.4-Educational
Institution runs respondent no.5-School for the specially able
children. On 6.5.2007 respondent nos.4 and 5 issued an
advertisement inviting applications from the eligible candidates
for appointment on the spot of special teacher. Petitioner
responded to such advertisement and after going through
selection process came to be appointed vide order dated
15.6.2007. The proposal seeking approval to his appointment
was forwarded by respondent nos.4 and 5. However, no
decision was taken.
3. Mr. Patil would further submit that the
respondent/Management had approached this Court vide writ
petition no.448 of 2015 raising grievance that respondent
authorities are not granting approval to 4th post of Special
Teacher which would be admissible as per the applicable
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staffing pattern prescribed under Government Resolution dated
18.8.2004. This Court admitted the said writ petition vide
order dated 18.2.2015 and directed respondents to grant
provisional approval to appointment of additional Teacher in
tune with Government Resolution dated 18.8.2004. Pursuance
of the aforesaid interim order, respondent no.3 granted
approval to the appointment of the petitioner vide order dated
5.3.2015. Surprisingly, vide impugned order dated 24.10.2017,
giving reference to the communication dated 28.1.2017, issued
by the Commissioner, Handicapped Welfare, approval granted
to the appointment of the petitioner has been cancelled.
4. Mr. Patil would submit that before passing the
impugned order, neither petitioner was served with any show
cause notice nor was he granted opportunity of hearing. Even,
Management of School was not heard. Consequently, the
impugned order is passed in utter violation of the principles of
natural justice. Resultantly, Petitioner has suffered great
prejudice. His salary has been blocked, though he is
continuously working with the school. In support of his
contentions, he places reliance on the order passed by this
Court in Writ Petition nos.7831 of 2019 with connected
petitions dated 14.10.2019 wherein this Court quashed and set
aside the similar orders.
5. Mr. S.V. Adwant, learned advocate appearing for
respondent nos.2 and 3, relying on the affidavit-in-reply filed
by Mr. Santosh Trimbakrao Naikwadi, District Social Welfare
Officer, Zilla Parishad, Latur dated 24.4.2024, submits that
appointment of the petitioner has been made without
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following due process of law. The Management has appointed
the petitioner, although the post was not available. Any such
illegal appointment cannot be approved by the respondent
authorities. No vested right has been created in favour of the
petitioner on the basis of provisional approval to his
appointment granted in pursuance of interim order of this
Court, particularly, when such order of approval is now
rescinded under impugned communication dated 24.10.2017.
The state authorities are not obliged to pay the petitioner
whose appointment is contrary to the statutory scheme. In
support of his contentions, he relies upon compilation of 48
reported judgments.
6. Mr. Adwant would further submit that Writ
Petition at the behest of the petitioner would not be
maintainable under Article 226 of the constitution of India
since the Writ Petition No.448 of 2015 filed by the Respondent
Management is still pending adjudication before this Court and
approval to petitioner's appointment was granted in pursuance
of the interim order passed in that petition. He would further
submit that the petitioner has already filed one more petition
i.e. WP No.2461 of 2017 alongwith others and claimed for
release of salary in pursuance of his appointment and
consequential approval. In this background, present petition is
liable to be dismissed.
7. Mr. Manale, learned advocate appearing for
respondent no.3 adopts the submissions advanced on behalf of
respondent no.2.
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8. Learned AGP also adopts the same line of
contentions in tune with Mr. Adwant.
9. We have considered the submissions advanced on
behalf of the respective parties. We have perused the record
tendered into service.
10. The undisputed factual matrix, which is relevant
for deciding controversy in this petition, can be narrated as
under :-
i. Respondent nos.4 and 5 appointed the petitioner as
Special Teacher assuming that post of the Special
Teacher is available as per the staffing pattern
prescribed in terms of the Government Resolution
dated 18.8.2004.
ii. Respondent authorities were reluctant to grant
approval to the appointment of the petitioner.
iii. The Management of the School approached this Court
by filing Writ Petition no.448 of 2015 seeking
directions against the respondents authorities to
approve one Special Teacher appointed by them with
respondent no.5 School.
iv. On 18.2.2015 this Court granted Rule in the Writ
Petition no.448 of 2015 and by way of interim
arrangement directed respondents authorities to grant
provisional approval to appointment made, in view of
staffing pattern prescribed under Government
Resolution dated 18.8.2004.
v. On 5.3.2015 respondent no.3 granted approval to
appointment of the petitioner subject to final outcome
of Writ Petition no.448 of 2015.
vi. On 24.10.2017 respondent no.3 cancelled his own
order granting approval in favour of the petitioner,
giving reference to a communication made by
respondent no.2 in this regard.
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vii. Neither respondent no.2 nor respondent no.3 had
issued any show cause notice or granted opportunity
of hearing to the petitioner or school Management
before passing the impugned order.
viii. Writ Petition No.448 of 2015 filed by the Management
is still pending and interim orders dated 18.2.2015 still
stands as it is.
ix. Respondents authorities have not moved this Court
either for modification of the order dated 18.2.2015 or
for final hearing of writ petition No.448 of 2015.
11. The aforesaid sequence of events would clearly
demonstrate that provisional approval granted in favour of the
petitioner was in deference to interim directions issued by this
Court under order dated 18.2.2015 passed in Writ Petition
No.448 of 2015. Respondent No.3 had acted upon such
directions and issued order dated 5.3.2015 granting approval
to the appointment of the petitioner. Abrupt action of
cancellation of approval is taken under the impugned order
dated 24.10.2017 on the basis of instructions given by
respondent no.2. Apparently, the impugned order is
contemptuous. As long as the directions of this Court under
order dated 18.2.2015 in Writ Petition no.448 of 2015 subsists,
it was not permissible for the respondents to revert back and
withdrew approval granted in favour of the petitioner. Even,
otherwise, such an order is passed without following the
principles of natural justice. Once approval is granted to
petitioners appointment, right has been created in his favour.
However, without issuing notice to him, approval has been
withdrawn after more than 31 months. Pertinently, approval
granted under order dated 18.2.2015 was provisional in nature
and subject to outcome of Writ Petition no.448 of 2015.
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However, the impugned order records series of reasons in
support of cancellation of approval ignoring effect and purport
of the interim directions given by this Court.
12. At this stage, Mr. Adwant, learned advocate
appearing for respondent no.2 relies upon the Judgment of the
Supreme Court in case of DharamPal Satyapal Limited Vs.
Deputy Commissioner of Central Excise, Guahati and others
reported in (2015) 8 Supreme Court Cases 519 to contend
that the rule of the principles of natural justice is flexible in
nature and no straight jacket formula can be applied. The
Authority is competent to determine "whether such rule has
application in the facts of the particular case ." If authority has
reason to believe that in a given situation grant of hearing
would not change ultimate conclusion, then no legal duty to
supply a hearing would arise. If non-grant of hearing has not
caused any prejudice to the person, technical violation of the
facet of the natural justice would not nullify the order. He
would therefore submit that, in the facts of the present case,
when petitioners appointment itself was illegal, respondent
no.3 was competent to withdraw approval.
13. Although, there cannot be dispute to the
proposition of law espoused in case of Dharam pal (supra), we
find that when appointment of the petitioner was approved
under the orders of this Court and, interim directions leading
to such approval are still in force, abrupt withdrawal without
granting an opportunity of hearing is certainly unwarranted in
the facts and situation of the case. It is not a case where
approval was granted on the basis of manipulated documents
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or it was outcome of fraud or misrepresentation. In fact,
approval to petitioners appointment was granted under orders
of this Court. Respondent Authorities, instead of seeking
revival/modification of interim directions issued by this Court
or seeking final disposal of the pending writ petition,
proceeded to cancel provisional approval, which cannot be
sustained in law.
14. So far as maintainability of present writ petition is
concerned, we find that present petition is based on
subsequent cause of action dated 24.10.2017, by which
approval granted in favour of the petitioner came to be
withdrawn. Earlier writ petition is filed by the Management.
Dispute in that matter is regarding staffing pattern to be
approved by the Government in pursuance of the Teacher -
Pupil ratio laid down in the Government Resolution dated
18.8.2004. The petitioner is not party in that writ petition
although, he is beneficiary of the interim orders passed therein.
Petitioner is prejudiced by the impugned order dated
24.10.2017. Therefore, he has every right to seek redressal of
his grievance by invoking writ jurisdiction of this Court.
15. So far another writ petition No.2461 of 2017 filed
by the petitioner and others is concerned, prayer is for release
of regular salary. Therefore, although Writ Petition no.448 of
2015 field by the Respondent/Management, WP no.2461 of
2017 filed by the petitioner seeking release of salary is
interlinked with the present petition, the cause of actions and
reliefs claimed are independent. Hence, there is no bar to
maintain the present writ petition.
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16. In light of the aforesaid observations, writ petition
deserves to be allowed. Hence, we proceed to pass the
following order.
ORDER
i. Writ petition is partly allowed.
ii. The impugned order dated 24.10.2017 issued
by the District Social Welfare Officer, Grade-I,
Zilla Parishad, Latur - Respondent No.3 is
quashed and set aside.
iii. The provisional approval granted to the
appointment of the petitioner vide order dated
18.2.2015 is restored, subject to the orders that
would be passed in Writ Petition no.448 of 2015
pending before this Court.
iv. The petitioner shall be at liberty to prosecute his
prayers regarding arrears of salary or regular
salary, independently.
v. Writ Petition is accordingly disposed off. Rule is
made absolute in above terms. No costs.
( S. G. CHAPALGAONKAR ) ( SMT. VIBHA KANKANWADI )
JUDGE JUDGE
aaa/- (f) ....
