Bombay High Court
Vikramaditya Ram More vs The State Of Maharashtra And Others on 4 February, 2025
2025:BHC-AUG:3076-DB
1 wp 351.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 351 OF 2022
Vikramaditya S/o Ram More,
Age : 33 Years, Occu. : Service,
R/o At Post Vijora, Tq. Washi,
District Osmanabad. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai.
2. The Education Officer (Secondary),
Zilla Parishad, Osmanabad.
3. Shri Lokmanya Shikshan Sanstha,
Vijora, Tq. Washi, Dist. Osmanabad,
Through its Administrator,
Shri Ram Dhere,
Age : Major, Occu. : Service,
(Inspector, Office of Assistant
Charity Commissioner, Osmanabad),
R/o C/o Office of Assistant
Charity Commissioner, Osmanabad.
4. Vidya Vikas Vidyalaya, Vijora,
Tq. Washi, District Osmanabad,
Through its Head Master.
5. Shri Gajana Susar,
Age : Major, Occu. : Service,
R/o C/o the office of Education Officer
(Secondary), Zilla Parishad,
Osmanabad, Dist. Osmanabad. .. Respondents
Shri S. S. Jadhavar, Advocate for the Petitioner.
Shri P. S. Patil, Addl.G.P. for the Respondent Nos. 1 to 3 & 5.
Shri B. A. Dhengle, Advocate for the Respondent No. 4.
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WITH
CIVIL APPLICATION NO. 8115 OF 2024
IN
WRIT PETITION NO. 351 OF 2022
Rajendra Bhanudas Khose and another .. Applicants
Versus
Vikramaditya Ram More and others .. Respondents
Shri Vikram S. Kadam, Advocate for the Applicants.
Shri S. S. Jadhavar, Advocate for the Respondent No. 1.
Shri P. S. Patil, Addl.G.P. for the Respondent Nos. 2 to 4 and 6.
Shri B. A. Dhengle, Advocate for the Respondent No. 5.
WITH
CIVIL APPLICATION NO. 8116 OF 2024
IN
WRIT PETITION NO. 351 OF 2022
Anil Jagannath Khose .. Applicant
Versus
Vikramaditya Ram More and others .. Respondents
Shri R. C. Brahmankar, Advocate h/f Shri N. L. Jadhav, Advocate
for the Applicant.
Shri S. S. Jadhavar, Advocate for the Respondent No. 1.
Shri P. S. Patil, Addl.G.P. for the Respondent Nos. 2 to 4 and 6.
Shri B. A. Dhengle, Advocate for the Respondent No. 5.
CORAM : S. G. MEHARE AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR THE JUDGMENT ON : 29.01.2025
JUDGMENT PRONOUNCED ON : 04.02.2025
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. With consent
heard both sides finally at the admission stage.
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2. The petitioner is aggrieved by order dated 24.11.2021
passed by the respondent No. 2/Education Officer (Secondary),
Zilla Parishad, Osmanabad turning down the proposal of the
petitioner seeking approval to his appointment. He is also
seeking direction for granting approval to his appointment as
Shikshan Sevak with effect from 01.01.2016 and as Assistant
Teacher with effect from 01.01.2019.
3. The respondent No. 3/Educational institution runs the
respondent No. 4 aided secondary school. Due to promotion to
the post of head master a vacancy was created in the sanctioned
posts admissible to the school. Hence the vacancy was notified to
the respondent No. 2 and permission was solicited for recruiting
the posts of Mathematics teacher vide letter dated 06.10.2015.
An advertisement was published on 20.12.2015. The petitioner
was qualified for the subject of Mathematics. He was appointed
vide order dated 29.12.2015 and he joined service from
01.01.2016 as a Shikshan Sevak. His proposal seeking approval
to his appointment was rejected on 17.02.2020. Being aggrieved
Writ Petition No. 8016 of 2020 was filed. Impugned order was
sought to be withdrawn and matter was relegated back for
consideration afresh, vide order dated 29.09.2021.
4. In pursuance of the orders passed by the High Court,
hearing was conducted by the respondent No. 2/Education
Officer. By the impugned order, proposal was rejected on
following grounds :
(a) There were disputes in the management, when
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permission was sought for the recruitment. Deficiencies
were notified, which were not removed. The permission
was refused.
(b) As per written submissions of Mr. P. L. Chavan, the then
Head Master, the petitioner was not appointed from
01.01.2016 and he never joined the school.
(c) For the academic year 2015-2016, eight posts were
sanctioned and all were occupied. The petitioner was not
appointed on vacant post.
(d) The appointment was not made by the competent
authority.
5. The learned counsel Mr. Jadhavar appearing for the
petitioner submits that the grounds for rejection of the proposal
are unsustainable and perverse. He would submit that the
petitioner was not appointed against any reserved category, but
he was appointed against vacancy of Maths teacher created due
to promotion within the sanctioned strength. He would submit
that there was sufficient compliance of Section 5(1) of the
Maharashtra Employees of Private Schools (Condition of Service)
Regulation Act (for the sake of brevity and convenience
hereinafter referred as to the "M. E. P. S. Act"). No surplus
teacher was ever referred to the school in question. The
deficiencies notified vide letter dated 29.10.2015 are
inconsequential. He further submits that there was no reason to
entertain the submission of retired Head Master Mr. P. L.
5 wp 351.22
Chavan. His statement was never served upon the petitioner.
6. It is further submitted that there is voluminous record
indicating that petitioner has continuously rendered the services
in the school. It is further submitted that appointment of
subsequently appointed teacher Mr. Gawali is approved. He
would further submit that the Education Officer vindictively
rejected the proposal of the petitioner because in earlier round of
litigation cost of Rs. 5,000/- was imposed upon him by the High
Court. It is further submitted that the petitioner was not aware
of any dispute in the management or the status of the recruiting
authority.
7. The learned Additional Government Pleader Mr. Patil
appearing for the respondent Nos. 1 to 3 and 5 opposes the
submissions of the petitioner with the help of affidavit in reply.
He supports the impugned order. It is submitted that no
permission was granted for the recruitment and directly
advertisement was issued. The petitioner's appointment was not
made by following due procedure of law, it was back dated and
back door entry. As the retired Head Master Mr. Chavan was
having knowledge, he was called for the hearing. There was no
vacancy when the petitioner was recruited. The allegations of
unlawful demand made against the respondent No. 5 are refuted.
8. Learned counsel Mr. B. A. Dhengle appearing for the
respondent No. 4 adopts the submissions of the petitioner. He
affirms that the record produced before this Court by the
petitioner indicating discharge of duties by petitioner is genuine
6 wp 351.22
and reliable.
9. We permitted intervenors to address the Court. Learned
counsel Mr. Vikram Kadam submits that the appointment was
undertaken by the persons who had no authority in law. The
disputes are pending before the Charity Commissioner.
Administrator is looking after the affairs of the trust. Hence the
appointment of the petitioner is de-hors the procedure.
10. Another intervenor being represented by Mr. R. C.
Brahmankar learned counsel supports the case of the petitioner.
11. We have considered rival submissions of the parties.
12. At the outset, it is necessary to mention that the petitioner
has referred school record to show that he was all the while
discharging the duties and there was vacancy of one assistant
teacher after promoting Shri Dhengle. The contesting parties
during the course of hearing did not raise objection to the record.
The respondent No. 4 affirms that those are part of the school
record. Even affidavit in reply of the respondent Nos. 1 and 2 is
silent regarding the school record. We do not find that there is
any hurdle in referring the school record while appreciating the
submissions of the parties.
13. There is no dispute that in staff sanction for the academic
year 2015-2016, one post of Head Master and seven posts of
teachers were earmarked/sanctioned. The senior most teacher
Mr. Dhengle Sahaji Sheshrao was promoted to the post of Head
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Master and his appointment was approved on 09.02.2015. He
was B. Sc. B. Ed. Obviously, vacancy was created for B. Sc. B.
Ed. Teacher. Therefore, application dated 06.10.2015 was
submitted none other than the then Head Master Mr. L. P.
Chavan seeking permission for recruitment. After receiving the
application, the deficiencies were notified by the Education
Officer vide reply dated 29.10.2015. It was imperative for him to
refer surplus teacher for accommodation in the respondent No.
4/school, if those were available. Pointing out the deficiencies
was not contemplated. The Education Officer surprisingly did
not notify that no vacancy available was for the recruitment.
14. The learned Addl. G. P. adverted our attention to the
Government Resolution dated 06.02.2012 to buttress that a
permission was contemplated for recruiting a post and
management was expected to submit proposal seeking
permission for advertisement. It's clause (03) is not in
consonance with Sec. 5(1) of the M. E. P. S. Act. Neither Section
5, nor Rule 9 of the M. E. P. S. Act and Rules contemplate
soliciting of any permission from the Education Department for
advertisement of recruitment. What is expected from the
education department is to notify the availability of surplus
candidates on their role. Application submitted by the head
master on 06.10.2015 was sufficient intimation of proposed
recruitment against vacant post. Therefore, notifying
deficiencies vide letter dated 29.10.2015 and refusing the
permission for the advertisement are extraneous and without
any foundation in law. This reason assigned in the impugned
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order is unsustainable.
15. The joining report produced by the petitioner indicates that
from 01.01.2016, he started discharging duties as a Shikshan
Sevak. There is voluminous record produced by the petitioner to
show that he was continuously discharging the duties. The
record produced at Exhibit N of the paper book would enure to
the benefit of the petitioner. We have already recorded that the
record has not been disputed by the contesting parties. Following
documents indicate that the petitioner is in service of the
respondent No. 4.
(i) Instructions issued to the students bearing
acknowledgment of the petitioner.
(ii) Attendance certificate of training programme.
(iii) Minutes of the monthly meetings.
(iv) Extracts of the evaluation statements of the students.
(v) Daily lesson notes.
The above documents clearly falsify the plea raised by the then
head master Mr. Chavan during the course of hearing before the
education officer and consequential findings recorded in the
impugned order.
16. For the year 2015-2016, total eight posts were sanctioned.
Due to promotion of Mr. Dhengle Shahaji, which was approved on
09.02.2015, a vacancy was created. The said vacancy has been
consistently reflected in further school record, which is at
Exhibits P, Q. and R. The list of teaching staff for the year 2015-
9 wp 351.22
2016, extract of muster and the pay bills show that one post was
vacant. Therefore, the finding of the education officer that
appointment of the petitioner was not against sanctioned post is
perverse. Surprisingly, the education officer failed to disclose
this material deficiency while notifying the deficiencies vide
letter dated 29.10.2015. During the course of hearing, we made a
specific query to learned Add. G. P., but no satisfactory
explanation was tendered. Hence, we have no doubt to hold that
the plea that sanctioned posts were not available is after thought.
17. It has come on record that there are disputes in the
management. Rival groups have filed change reports, which are
subjudice. Merely disputes in the management would not operate
against the petitioner. He was appointed against vacant
sanctioned post and by following due procedure of selection. We
are fortified by the observations of the Coordinate Bench recorded
in the matter of Navnath S/o Narsing Gore Vs. State of Maharashtra
and others reported in 2021(6) Mh. L. J. 118, which is as follows :
32. From the pleadings as well as during the hearing it become
evident that the dispute referred to in the order 20.01.2016 was in
relation to management of the institution by rival claimants. Such
dispute had no nexus or connection with the selection and
appointment of the petitioner and the approval sought for. Just
because there was a dispute as to control of management of the
Institution that could not have been a ground to decline approval
or to keep such approval in abeyance. Routine affairs of the
institution including appointments and approvals thereto are to be
considered de-hors such tussle as to management of the
institution. That being the position impugned order dated
20.01.2016 cannot be sustained and is liable to be set aside and
quashed.
10 wp 351.22
18. Another facet of the matter is that, no fault can be
attributed to the petitioner. When he was seeking employment,
he could not be said to have knowledge of the disputes in the
management or right of the authority which has undertaken the
process of recruitment. As incumbent is always at the receiving
end, his appointment cannot be faulted for the rival claims to the
office or the irregularities committed by the management. The
education officer lost sight of this aspect of the matter and
arrived at totally erroneous conclusion.
19. We find that the conduct of the education officer who is
impleaded by name as respondent No. 5 is objectionable. In
earlier round of litigation, Coordinate Bench had imposed cost of
Rs. 5,000/-. We have already recorded that grounds for rejecting
the proposal are perverse and after thought. It was his duty to
examine the school record and to ascertain as to the position of
vacancy. He should have ascertained as to whether the
petitioner is discharging the duties or not. His reliance on the
statement of ex-head master Mr. Chavan is also vulnerable. We
hold that vindictively the proposal of the petitioner has been
rejected by him.
20. None of the reasons assigned in impugned order are
sustainable. For the reasons assigned above, we pass following
order :
ORDER
(I) The order dated 17.02.2020 issued by the respondent No.
11 wp 351.22
2/Education Officer (Secondary), Zilla Parishad,
Osmanabad is quashed and set aside.
(II) The respondent No. 2/Education Officer (Secondary), Zilla
Parishad, Osmanabad shall forthwith grant approval to the
appointment of the petitioner as Shikshan Sevak with
effect from 01.01.2016 and consequentially as Assistant
Teacher with effect from 01.01.2019.
(III) The petitioner shall be entitled to all consequential benefits
if not disbursed to him earlier.
(IV) The respondent No. 5 is saddled with cost of Rs. 20,000/-
(Rs. Twenty Thousands only). Said cost shall be deposited
from his salary within a period of two (02) weeks from
today.
(V) Rule is made absolute in above terms.
(VI) The civil applications for intervention stand disposed of.
[ SHAILESH P. BRAHME, J. ] [ S. G. MEHARE, J. ]
bsb/Feb. 25
