Dismissed

Ashok Inrvantrao Gaikwad v. the State of Maharashtra and Ors.

Bombay HC26 Aug 2010WP/1217/2006

Case brief

AI extract

What is this about?

A teacher challenged an order canceling his admission to a Postal D.Ed. Course due to irregularities in his appointment and lack of record. The Court found no case for interference as the order was in accordance with law and material on record, dismissing the petition and vacating interim reliefs.

What did the court decide?

The impugned order dated 31.12.2005 is upheld; the writ petition dismissed; Civil Application rejected; ad-interim relief vacated.

Ashok Inrvantrao Gaikwad Vs the State of… — Pension and Retirement Benefits | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.1217 of 2006

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Ashok s/o Irvantrao Gaikwad,
Age 35 years, Occ. Service as
an Assistant Teacher in Jijamata Primary
Girls School, Fulenagar, Mukhed,
Tq.Mukhed, Dist. Nanded.

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...PETITIONER

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VERSUS

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1. The State of Maharashtra Through its Secretary, School Education Department, Mantralaya, Mumbai.

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2. The Director of Education, Research and Training Council, Pune 30.

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3. The Deputy Director of Education, Latur Division, Latur.

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4. The Education Officer (Primary), Zilla Parishad, Nanded, Tq. and Dist. Nanded.

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5. The Head Master, Jijamata Primary Girls School, Fulenagar, Mukhed, Tq.Mukhed, Dist.Nanded.

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6. The Peoples Education Society, Beli (Bk.), Tq.Mukhed, dist.Nanded, Through its Secretary.

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(added as per leave granted by Hon'ble
Court vide order dated 16.4.2007)

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7. The Maharashtra State Examination Council, 17, Dr.B.R.Ambedkar Marg, Pune, Through its Commissioner.

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 (Intervenor added as per
 Hon'ble Court's order
 dt.08/01/2010 passed in C.A.
 10617 of 2010)

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...
Mr. A.V.Patil, Adv., h/f Mr. V.D.Gunale,
Adv., for the petitioner.

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Mr.R.P.Phatake, AGP for respondent nos.1 to
3.

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Mr. V.S.Panpatte, Adv. for respondent no.4.
Respondent nos. 5 and 6 served, absent.
Mr. A.R.Nikam, Adv., for intervenor/
respondent no.7.

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...

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CORAM:S.B.DESHMUKH AND K.U.CHANDIWAL, JJ.

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DATE:26/8/2010

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...

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PER COURT : (Per S.B.Deshmukh, J.)

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1.Heard Mr. A.V.Patil, learned Counsel,
appearing for Mr. V.D.Gunale, learned Counsel for
the petitioner, Mr.R.P.Phatke Patil, learned
A.G.P., for respondent nos. 1 to 3, and learned
Counsel Mr.V.S.Panpatte for respondent no.4.
Respondent nos. 5 and 6 served, absent. Mr.
A.R.Nikam,learnedCounsel,appearsfor

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respondent no.7/intervenor.

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2.The petitioner claims to have been
appointed by respondent no.5 School on a vacant,
clear and permanent post after following due
procedure, by its Local Selection Committee.
According to the learned Counsel, proposal of the
present petitioner was submitted to the
authorities concerned. Staff approval has been
granted by the competent authority especially for
the appointment of the present petitioner. He
has also made a statement that Education Officer
did not grant approval to the appointment of the
petitioner and reasons were not known to the
present petitioner. It is not in dispute that
respondent No.1 State had introduced a scheme of
Postal D.Ed. Course for untrained primary
teachers, who were working in primary recognized
schools. The petitioner claims that the
application for Postal D.Ed. course was in
prescribed format, processed through concerned
school authorities, with all required documents.
According to the petitioner, on Oct.,28, 2002,
respondent no.2, after scrutinizing application
of the petitioner for Postal D.Ed. Course,
selected the petitioner for admission to the
Postal D.Ed. Course. Petitioner claims to have
appeared for the First Year of Postal D.Ed.
Course and has successfully passed the
examination. According to him, he has also

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appeared for the Second Year of the Course,
however, the result of the petitioner has not
been declared by the authorities concerned. On
July, 26th, 2005, the petitioner had received a
show cause notice from respondent no.2 as to why
his application for Postal D.Ed. Course may not
be cancelled. Petitioner claims to have
submitted reply to the said show cause notice
through Head Master of the school and denied the
charges and indictments made. Proper and
detailed explanation was submitted by the
petitioner. Mr.Patil, learned Counsel, submits
that on Dec.,31st, 2005, without considering the
reply given by the petitioner to the show cause
notice dt.July 26th, 2005, respondent no.2 passed
an order and cancelled the admission of the
present petitioner to the Postal D.Ed. Course
granted for the year 2000-2001. This order,
therefore, is assailed in this writ petition.

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3.The petitioner in this writ petition
made following prayers:

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"(A)This writ petition may kindly
be allowed.

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(B)Record and proceedings be called
for.

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(C)By issuing writ of certiorari or any
other writ, order or direction in the
nature of appropriate writ, the impugned
order dated 31.12.2005 passed by the
Deputy Director of Maharashtra State

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Research and Training Council, Pune, be
quashed and set aside.

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(D)Pending hearing and final disposal
of this writ petition, effect, operation
and execution of the impugned order
dated 31.12.2005 passed by the Deputy
DirectorofMaharashtraState
Educational Research and Training
Council, Pune, be stayed.

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(E)Pending admission, hearing and final
disposal of this writ petition,
respondents be directed not to take any
coersive action against the petitioner
in pursuance of the impugned order dated
31.12.2005. Consequently, the
respondents be further directed to
continue the service of the petitioner
in the respondent no.5 School and the
petitioner be paid his regular salary.

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(F) Ad-interim relief in terms of
prayer clauses D & E, may kindly be
granted.

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(G)Any other suitable and equitable
relief to which the petitioner is found
entitled in the peculiar facts and
circumstances of the present case may
kindly be granted. "

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From these prayers, we have noticed that prayer
clause (C) is the principal prayer made by the
petitioner whereby issuance of writ of certiorari
is sought for quashing and setting aside the
order dt.31st Dec.,2005, passed by the Deputy
Director of Maharashtra State Research and
Training Council, Pune. This petition was filed
on 10th Feb.,2006.

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4.With the assistance of Counsel for the
parties, we have seen the order impugned dated
Dec.31st 2005 (Page No.50). This order and
communication is addressed to present petitioner
Mr.A.I.Gaikwad. From the reference, we have
noticed that the Government letter dated, June,
9th, 2005, has been referred to. At Sr.No.2 of
the Reference, show cause notice of the
MSERTC/PTS is mentioned. Item no.3 of the
reference has been pointed out by learned Counsel
Mr.V.S.Panpatte, which reads:

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"Your explanation not received."

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This is important from the view point that
petitioner claims that he has submitted detailed
explanation to the show cause notice. With the
assistance of learned Counsel for the parties, we
have seen this order ( Annexure H, page No.50).
Mr.Patil, Counsel for the petitioner, fairly
points out item no.16 of this order, which reads,
"Record is changed". Another ground, item no.17
is also shown to us by Mr.Patil, learned Counsel,
which reads:

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"Recommendation is not made by
EducationOfficer(Primary)and
DivisionalDeputyDirectorof
Education."

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With this, learned Counsel Mr.Patil points out,
item No.25, which reads:

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"Others: (1) Record has been not
submitted. "

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5.In response to the petition, affidavit-
in-reply is filed on behalf of respondent no.4.
This affidavit is affirmed by one Mr. Laxman s/o
Kishanrao Pasalwad, Superintendent, Primary
Education Department, Zilla Parishad, Nanded.
With the assistance of Counsel for the parties,
we have considered this affidavit. Portion of
paragraph no.2 from this affidavit is material to
meet the pleadings and contentions raised by the
petitioner. We reproduce that portion here-in-
below.

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"Thus, it is crystal clear that
the respondent no.5 - school has
been opened and started by the said
Management only from the academic
year 1999-2000. However, the said
managementhasshownthe
petitioner's appointment in the said
school from 15.6.1997 at which time
therewasnodepartmental
recognition/permissiontothe
respondent no.5 school and there was
no occasion for the said management
and the school to apply for getting
staff sanctioned in the said school
and the officer of the answering
respondent had not sanctioned any
staff in the respondent no.5 school
before the academic year 1999-2000.
Therefore, the appointment of the

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petitioner has been shown in the
said school when the respondent no.5
School was not in existence and was
not started. Thus, the appointment
of the petitioner was not on
sanctioned post. I, therefore say
that the petitioner was not eligible
even to apply for admission to
postal D.Ed. Course for the academic
year 2000-2001. Apart from this,
since the said Management is running
only respondent no.5 school and only
one post for Scheduled Caste has
been reserved in the said school,
whereas, two teachers from Scheduled
Caste have been appointed, namely,
Kamble Bapurao Madhavrao whose date
of appointment is 10.6.1996 and
petitioner whose date of appointment
has been shown as 15.6.1998 and,
therefore, petitioner being junior
to the said Kamble, the appointment
of the petitioner is not as per
roster. Therefore, after scrutiny
of the application of the petitioner
for Postal D.Ed. Course for the
academic year 2000-2001 it was found
that his appointment was not on
sanctioned post and the same being
irregularandillegaland,
therefore, while forwarding the
application of the petitioner to
respondent no.2, the office of the
answeringrespondentmadean
endorsement thereon that "Not
recommended" since petitioner was
not fulfilling the eligibility
condition Nos. 2, 3 and 7 as per the
Government Resolution dated 2nd
June, 2000. However, it seems that
the petitioner has been given
admission to the postal D.Ed. Course
inadvertently. "

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6.Mr.Patil, learned Counsel for the
petitioner, raised two-fold submission; firstly,
the show cause notice was issued by the Director
of Education and, the order impugned has been
passed by the Deputy Director of Education. Both
of them, they are public servants, indisputably,
working in the Education Department of the State
Government. Respondent No.4 is Education
Officer (Primary). In this order impugned,
Reference to Item No.1, there is reference to the
Government communication. Mr.Patil, learned
Counsel, submitted that opportunity was not given
to the petitioner. Mr.Panpatte, learned Counsel,
submitted that inquiry was conducted in view of
the order passed by this Court in Criminal Writ
Petition No.47/2004. Such statement is pointed
out from paragraph no.3 of the reply affidavit of
respondent no.4. In view of the directions of
this Court in Criminal Writ Petition No.47/2004,
Government had appointed an Inquiry Committee to
inquire into the malpractices and illegalities
that occurred while giving admissions to the
Postal D.Ed. Course.

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7.We have given consideration to the
submissions made on behalf of the respective
parties, including learned Assistant Government
Pleader, who placed reliance on the affidavit-in-
reply filed by the Education Officer, Primary,
Zilla Parishad, Nanded. At the cost of

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repetition, it is to be noticed that, according
to the order impugned, record has been changed
for making recommendation for the admission to
the Postal D.Ed. Course for untrained teachers
who are in employment. Government Resolution dt.
2nd June, 2000 with its corrigendum dt.11th July
2000, is relevant. In other words, untrained
teachers, who are complying with this Government
Resolution, read with corrigendum, are eligible
provided they have been recommended by the
Education Officer concerned. In substance, if
they are eligible, in view of this Government
Resolutionwithit'scorrigendum,their
applications can be processed and admissions can
be granted. Here is a case of malpractices,
misrepresentation, non making available record
concerned. Portion from paragraph No.2 of the
affidavit, which we have quoted in foregoing
paragraphs, even goes a step further and
statement has been made that the appointment of
the present petitioner was not in accordance with
the provisions of law but, even on the date of
such appointment, the school was not in
existence.

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8.The petitioner is invoking extraordinary
jurisdiction under Article 226 of the
Constitution of India. We have given due
consideration to the submissions made on behalf
of the petitioner and respective Advocates

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appearing for the respondents. In our view,
absolutely, there is no case for interference.
The order impugned is in accordance with the
provisions of law and material which was brought
on record.

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9.Mr.Patil, learned Counsel, while arguing
Civil Application, pointed out the documents
annexed. In this Civil Application prayer is
made to allow the application and respondent nos.
2, 3, 4 and 7 be directed to accept the
examination form of the applicant upon depositing
requisite examination fees so as to appear for
the remaining subjects of Second Year Examination
of the Postal D.Ed. Course in the ensuing
examination and for that purpose necessary
directions be issued. Entry of the present
petitioner for that Postal D.Ed. Course itself is
found full of malpractices and lack of record by
the Deputy Director. On these grounds, which he
has mentioned in his order, the order impugned is
passed against the petitioner. We do not see
any substance in this Civil Application.

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10.However, with the assistance of
Mr.Patil, learned Counsel for the petitioner, we
have seen the orders passed by this Court, placed
on record along with Civil Application
( Exh.CA-1). The order is passed by the learned
Division Bench of this Court in Writ Petition No.

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797/2006. This order is dt.21st August, 2007.
Rule has been issued by this Court and ad interim
relief in terms of prayer clause (D) was granted
since petitioner had already completed D.Ed.
Course and certificate was issued in favour of
the petitioner. This is distinguishable factor
which was accepted by this Court while passing
order in Writ Petition No.797/2006. In the case
in hand we have recorded in the foregoing
paragraphs all the happenings, the manner in
which the admission was sought, the petitioner
appeared for the First Year Examination and all
that. Since we have noticed the distinguishing
factor, in our view, the order passed by this
Court in Writ Petition No.797/2006 does not help
the present petitioner.

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11.Another order is also pointed out by
Mr.Patil, learned Counsel Mr.Patil for the
petitioner, which is passed in Writ Petition No.
783/2006 (Page No.19 of the Civil Application) by
the learned Division Bench on 25th July, 2007.
This order issues Rule and interim relief in
terms of prayer clause (D). We are not aware as
to what were the facts before the Court, what
were the prayers made and orders impugned and so
on. Such interim order cannot be said to be
ratio or precedent to be followed by this Court.

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12.Next order pointed out to us by the

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Counsel for the petitioner is at page No.25 of
the Civil Application passed by the learned
Division Bench of this Court in Writ Petition
No.776 of 2006. The order says, "Rule. Ad
interim relief in terms of prayer clause (D)".
Here also, we are not aware about the facts so
as to find out whether those facts can be made
applicable to the facts of the case in hand.
Needless to say, this also does not help the
present petitioner.

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13.In our view, no case for interference
under Article 226 of the Constitution of India.
Writ Petition stands dismissed. No costs.

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Civil Application (No.958/2008) also
stands rejected.

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Ad interim relief, if any, stands

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vacated.

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We make it clear that we have considered
copies of the orders which are annexed with the
Civil Application and also recorded our opinion
about them.

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(K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE

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agp/1217-06wp

Ashok Inrvantrao Gaikwad v. the State of Maharashtra and Ors.

Case brief

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Ashok Inrvantrao Gaikwad v. the State of Maharashtra and Ors.

Case brief

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