1. Rule. Rule made returnable forthwith and heard finally by the
2. Both these petitions, under Article 226 of the Constitution of
W. P. No. 2469-2018.odt
facts and law arise therein. The main challenge in both these Writ
3. The learned Senior Advocate would submit that the Director of
the order passed by the Education Officer. According to the learned
Nilkanth Dhale Vs. State of Maharashtra [2016(5)Mh.L.J.] & Sandeep
Chudaman Shinde and Others Vs. State of Maharashtra and Others
2023 DGLS (Bom.)5194, wherein it has been so observed.
"9. We have given careful consideration to the submissions
advanced by the learned counsel appearing for the petitioner,
learned AGP for respondent Nos. 1 and 2 State, the learned
counsel for respondent No.3 and learned counsel appearing for
Nos. 4 and 5. With their able assistance, perused the pleadings
in the petitions and annexures thereof. Clauses 1 and 2 of the
Government Resolution dated 13.04.11 issued by the General
Administration Department Government of Maharashtra, reads
thus :
W. P. No. 2469-2018.odt
"1½ xV&v o xV&c laoxkZrhy inkae/khy ekxkloxhZ;kapk vuq'ks"k
Hkj.;kph fo'ks"k eksghe lq# dj.;kr ;koh-
2½ xV&d o xV&M laoxkZrhy inkae/khy ekxkloxhZ;kapk vuq'ks"k
Hkj.;kph inHkjrhph izfdz;k lq# dj.;kdjhrk foRr foHkkxkpk fnukad
29-11-2010 P;k 'kklu fu.kZ;kP;k vk/khu jkgwu fo'ks"k eksghe
dj.;kr ;koh-
Thereafter, by issuing another Government Resolution dated
21.08.2013, time to appoint the candidates from the reserved
category, so as to fill in the backlog, has been extended till
31.03.2013.
(7) By amending the petition, the Petitioners canvassed in
paragraph Nos. 16-A and 16-B as under.
16-A. Petitioners submit that, it has been reliably learnt that
the complainant has filed numerous complaint with the office of
the Deputy Director, with regard to the issue of appointments
and approvals of the various teachers. Thus, it appears that, the
complainant is habitual complainant and service jurisprudence
does not recognize the concept of public interest and the said
issue is no more res integra in the wake of the authoritative
pronouncement of Hon'ble Apex Court in case of Duryodhan
Shaush case (1998) 7 SCC 273, which is reiterated and
followed in (2004) 3 SCC 363 as well as (2010) 9 SCC 655 Hari
Banslal. Thus there was no occasion to try and entertain the
complaint of the habitual complainant, who has neither
participated in the recruitment process, wherein the petitioners
have been selected and appointed by following due procedure
of law. In any case the appointments of the petitioners are of
the year 2012 respectively as such a substantial period has been
lapsed, therefore, also the complaint ought not to have been
entertained by the authorities and necessarily should have been
rejected at threshold.
W. P. No. 2469-2018.odt
10. It is obvious that a total stranger has approached the
education department alleging that the petitioners have been
illegally appointed. The education department has entertained
the complaint, practically giving audience to a stranger who
claims to be a social worker and heads a political outfit, to
unsettle an employee, more so a teacher on the basis of baseless
allegations.
15. We are astonished by the conduct of the education
department. The only issue as regards the appointments of the
Petitioners is that the vacancies were not available when they
were appointed. The petitioners have been granted approval
and have put in almost a decade of service. Such cases have
to be delicately handled by the Education Officer. No doubt
irregularities committed by the Management have to be dealt
with sternly. However, when an employee has been working
for a long time, unless any illegality or fraud turns upon the
conduct of such an employee and it is proved or is apparent
that laches are attributable to his conduct or the appointment
is patently illegal, issuing an order of cancellation of approval
when they are not at fault, is an issue which needs to be
thought over and pondered upon by the Education
Department."
5. He would further submit that the petitioners were appointed
against reserved category posts. Both the petitioners fulfilled all the
criteria for the recruitment to those posts. One of the petitioners
belong to Scheduled Caste, while the other is of Scheduled Tribe
category. According to him, there are sufficient pleadings to indicate
that procedure prescribed for filling up the vacancy, has been
W. P. No. 2469-2018.odt
followed. In affidavit-in-reply, there is no specific challenge to those
averments. According to him, the matter has been dug out at the
instance of the stranger. In service matters, strangers should have no
locus standi. The Director of Education ought not to have succumbed
to pressure exerted by the intervenor herein, who claims to be one of
the trustees of the education trust. His right, if any, would be
determined by the appropriate authority under Maharashtra Public
Trust Act. He took us through each and every document indicating
the Education Officer to have duly approved the appointments of
these petitioners and Director of Education did not have any business
to interfere therewith.
5. On the other hand, the learned A.G.P. would submit that no
prescribed procedure was followed and that, the order passed by the
Director of Education was within his powers. He relied on certain
paragraphs of the judgment of this Court in the case of Gitanjali d/o
Prakash Patil Vs. The State of Maharashtra and others in Writ Petition
No. 2549 of 2018 decided on 10th July 2024 wherein reference has
been made to certain Government Resolutions, authorizing the
Director of Education to take such cases and when the facts warrant,
he may recall approval granted by the Education Officer. He would
further submit that the Management did not place before the Director
of Education the name of newspaper wherein the advertisement was
published, who were the candidates applied for the posts pursuant to
W. P. No. 2469-2018.odt
said advertisement, the marks secured by each and every candidates
appeared for the interview etc. In short, according to the learned
A.G..P, no tangible proof of the management to have followed the
prescribed procedure for filling up the vacancy, was placed on record.
He has strongly placed reliance on the Judgment in the case of
Gitanjali (supra) to submit that the facts and circumstances therein
were similar to the one in question. It was the very management
although different recruitment procedure was there. The petitioners
therein have been unsuccessful in those Writ Petitions. They were
unsuccessful before the Apex Court as well. As such, according to the
learned A.G.P., the issue decided in Gitanjali's case is squarely
applicable to facts and circumstances of the present case. The same
cannot be reopened in this matter. He also relied on the judgment of
this Court in the case of Sou. Revati Kusha Wagh and Another Vs. The
State of Maharashtra and Another in Writ Petition No. 10580 of 2015
with W. P. No. 1145 of 2016 dated 09.03.2017 and recent judgment of
this Bench in the case of Sandeep Chudaman Shinde and Another
Versus State of Maharashtra and others 2023 DGLS (Bom.) 5194
Coram : R.V. Ghuge & Y.G. Khobragade, JJ . to submit that there has to
be strict compliance of the procedure for the recruitment, prescribed
under Section 5, Section 9 and Requisite Rules thereunder. Since the
same has not been complied with, the Director of Education rightly
revoked the approval. The learned AGP reiterated reasons mentioned
W. P. No. 2469-2018.odt
in the order impugned herein.
6. The learned Advocate for the intervenor would reiterate
submissions made by the learned A.G.P. He relied on the judgment of
this Court in case of Datta Education Society Vs. The State of
Maharashtra and others 2016(6) ALL MR 387 to submit that
complainant therein was one of the trustees and the Division Bench of
this Court, therefore, held him to have interest in the affairs of the
trust. It was further observed that, the matter required to be deeply
probed. He then relied on the facts of the said case to submit that
approval granted therein was rightly revoked by the authority
concerned and upheld by this Court. He also took us through written
complaint made by him to the learned Joint Charity Commissioner.
According to him, since 2009, there has been no election. The
President appears to have acted in breach of authority. He therefore,
urged for the dismissal of both the petitions.
7. We have considered the submissions advanced. One of the
petitioners namely Mahendra Bajirao Pawar belongs to Scheduled
Caste category while the other is of Scheduled Tribe. The State of
Maharashtra had initiated special drive with direction to all the
Education Institutes to fill up the vacancies reserved for Reserve
Category candidates. The communication was issued by the Director
of Education to all the Educational Institutes with a direction to
W. P. No. 2469-2018.odt
initiate recruitment process for filling up reserve posts. In view of the
same, the respondent-Management was not expected to seek
independent prior permission to fill up the vacancies of the reserved
posts.
8. It has been specifically averred in the Writ Petition that an
advertisement was issued. The learned senior counsel submits across
the bar that it was an advertisement in the daily " Apla Maharashtra".
He showed his willingness to place on record hard copy of the said
advertisement. We do not find specific Traverse to the pleadings in
the Writ Petitions. We also do not expect the Management now to
place on record copy of the advertisement since it has to be presumed
that the Education Officer, who granted the approval, had gone
through each and every aspect relating thereto. To our query, as to
whether the Education Officer, who allegedly granted approval in
contravention of Rules and Regulations, has been taken to task or
subjected to any departmental action is concerned, the learned AGP
did not have any instructions in that regard. The appointments of the
petitioners are of the year 2012. More than 13 years have passed
thereafter. Both of them belong to Scheduled Caste and Scheduled
Tribe category respectively. The learned A.G.P. was candid enough to
concede that there is Government Resolution directing not to revoke
appointment of Reserved Category candidates, if there is any minor
W. P. No. 2469-2018.odt
breach.
9. The submissions of the learned A.G.P. that the post ought to
have been kept vacant, if concerned category candidate was not
available, or if some other category candidate was appointed, his
appointment ought to have been only for the period of one year, we do
not agree with the submission made by the learned AGP, since rules
9(a) of Maharashtra Employees of Private Schools (Conditions of
service) Rules, 1981 reads thus :-
"9(a) In case it is not possible to fill in the teaching post
for which a vacancy is reserved for a person belonging to a
particular category of Backward Classes, the post may be
filled in by selecting a candidate from the other remaining
categories in the order specified in the sub-rule(7) and if
no person from any of the categories is available, the post
may be filled in temporarily on an year to year basis by a
candidate not belonging to the Backward Classes.
10. Close reading of the said Rule would indicate that if a
candidate from a particular reserved category was not available,
the said post can be filled up from other reserved category.
There is no such phraseology that the appointment has to be for
a particular period i.e. for a year only.
11. In Gitanjali's Judgment (supra) the Division Bench of this
Court referred to the Government Resolution suggesting that the
Director of Education was authorized to exercise his power and
W. P. No. 2469-2018.odt
in such exercise, he is even authorized to recall the orders of
granting approval passed by the Education officer. In view of the
same, we do not wish to dwell at length on the issue that the
exercise of powers by Director of Education was not statutorily
bad. True, no statute provides for right of appeal to Director of
Education or power of review. In spite of the authority having
been relied by the learned A.G.P, we reiterate that we do not
make any observation in this regard.
12. The facts remain that the Education Officer, supposedly
verified all the documents put forth before him for granting
approval. The intervenor herein in his complaint to the learned
deputy Director of Education, has specifically admitted that the
Management had given advertisement in a daily newspaper for
filling up the vacancies of reserved category candidates. He was
confronted with the said averment. He would submit the said
averment pertains to some other year i.e. 2011. It was his oral
submission, close perusal of his complaint do not inlead us to
agree with him. As such, the fact remains that at the instance of
the intervenor Director of Education reopened the case of
approval granted by the Education Officer.
So far as the aspect of workload is concerned for the post
which has been filled up by appointing Smt. Deepavali Suresh
Ahire is concerned, now we do not wish to go therein, since she
W. P. No. 2469-2018.odt
has been in service for not less than 13 years, and rendering the
same continuously. For all the aforesaid reasons, we are inclined
to allow the Writ Petition.
13. The Writ Petitions, therefore, stand allowed in terms of prayer
clauses (B) (C) and (D) of both the Writ Petitions which reads thus :-
(B) To quash and set aside Orders dated 29.06.2017 and
06.02.2018 passed by the Deputy Director of Education,
Nashik Division, Nashik, by issuing appropriate writ or order or
directions in the nature of writ.
(C) To restore the Order of Education Officer (Secondary)
granting approval to the appointment of petitioner No.2
dated 22.07.2016, by issuing appropriate writ or order or
direction in the nature of writ.
(D) To direct Education Department to include the name of
petitioner in on-line payment system for releasing the payment
by issuing appropriate writ or order or direction in the nature of
writ.
14. Rule made absolute in above terms.
15. Intervention application stands disposed of.
(SANDIPKUMAR C. MORE) (R. G. AVACHAT )
JUDGE JUDGE
Y.S. Kulkarni
