Allowed

Mahadeo Krishna Kumbhar v. Administrative Olfficer, Sangli, Miraj and Kupwad City Municipal Corporation and Ors.

Bombay HC6 Oct 2010WP/2331/2010

Case brief

AI extract

What is this about?

This writ petition challenges an order by the Deputy Director of Education cancelling the petitioner's upgradation and directing the school to grant the same to a colleague. The High Court held the Deputy Director lacked statutory power to cancel management orders and struck down the decision for violating natural justice.

What did the court decide?

Order dated 30-1-2010 passed by the Deputy Director of Education is set aside; Rule made absolute.

Mahadeo Krishna Kumbhar Vs Administrative Olfficer… — Service and Employment | Bombay HC (2010)

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Kambli 1 wp2331.10

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 IN THE HIGH COURT JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.2331 OF 2010

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Mahadeo Krishna Kumbhar...Petitioner

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vs.

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Administrative Officer
Sangli Miraj & Kupwad & ors. ...Respondents

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Mr.S.S.Pakale i/b K.J.Phakade for Petitioner.

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Mr.S.R.Nargolkar, AGP for Respondent No. 1 &
3.
Mr.A.A.Kumbhakoni i/b Mr.A.M.Kulkarni for
Respondent No.5.
Mr.G.H.Keluskar for Respondent No.3.

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---

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 CORAM: D.K.DESHMUKH &
 N.D.DESHPANDE,JJ.

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 Dated: 6th October, 2010

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P.C.:

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Rule. Returnable forthwith. Heard finally by

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Kambli 2 wp2331.10

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consent of parties.

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1.Following can be taken as admitted

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facts:

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 That the Petitioner and the Respondent
No.5 are working under the same management,
which is running the schools, which are
private recognised schools. The Respondent
No.5 admittedly is senior to the Petitioner.
On 20thSeptember, 2000, a letter was
addressed by the management to the Respondent
No.5 stating therein that on 9-9-2000 the
school committee has passed a resolution that
the Respondent No.5 is to be upgraded with
effect from 1-10-2000 to the scale of Rs.
5500-175-2000 (graduate scale) and therefore
the Respondent No.5 was asked to give her
consent for her up-gradation. The Respondent
No.5respondedtothatletterby
communication dated 22-10-2000 stating
therein that she has filed a petition in this

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Kambli 3 wp2331.10

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court claiming post of Head-Mistress of some
school under the same management, and
therefore, because that petition is pending
she is not expressing any opinion about
accepting the graduate scale and that she is
reserving her right. It is the case of the
Management that on 19-3-2004 again a letter
was addressed to the Petitioner stating
therein that she has not given her clear
consent by her letter dated 22-10-2000 and
that her claim for promotion to the post of
Head-Mistress and accepting the graduate
scale are totally independent and one has
nothing to with other and therefore, if she
is willing to accept the graduate scale she
should give her consent. According to the
Respondent No.5, she did not receive that
letter. On 16-11-2006, the management again
addressed a letter to the Respondent No.5
referring to the earlier correspondence and

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Kambli 4 wp2331.10

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pointing out that if the Petitioner does not
give her clear consent accepting the graduate
scale, some other person will be given that
scale assuming that she is not willing. To
that letter the Respondent No.5 gave a reply
dated 22-11-2006 again repeating the same
thing, that because the petition is pending
for post of Head-Mistress, she cannot
exercise the option and she is reserving her
right. It appears that assuming that the
Respondent No.5 is not willing to accept
graduate scale, the management upgraded the
Petitioner to the graduate scale with effect
from 15-6-2007. It appears that after two
years the Respondent No.5 made a complaint
about graduate scale being given to the
Petitioner before the Deputy Director,
Education and it also appears that she was

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heard by the Deputy Director on 1-9-2009 and
the decision of the Deputy Director was

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Kambli 5 wp2331.10

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communicated to the Management by order dated
30-1-2010. By that order, the up-gradation of
the Petitioner was cancelled and the
Respondent No.5 was directed to be given
graduate scale from 15-6-1996. It is this
order which is under challenge.

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2.We have heard the learned Counsel for
both sides.

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3.On behalf of the Respondent No.5, it
was claimed that the Petitioner has given an
undertaking while accepting the graduate
scale that in case there is an objection
raised and if he has to surrender the
graduate scale he will do so. According to
the RespondentNo.5,therefore,the

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Petitioner is not entitled to maintain this
petition.

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4.In our opinion, the objection that is
raised by the Respondent No.5 has no

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Kambli 6 wp2331.10

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substance. Because undertaking was given by
the Petitioner that if somebody else is held
entitled to the graduate scale in preference
to the Petitioner, then he will surrender his
graduate scale. In this petition, he has
raised a question whether the Respondent No.5
was at all entitled to graduate scale from
15-6-1996 as has been held by the order dated
30-1-2010. Perusal of the communication dated

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20-9-2000 from the management to the
Respondent No.5 shows that the Resolution of
the School Committee was to give upgraded
scale to the Respondent No.5 with effect from
1-10-2000. There is no Resolution passed by

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the management to give graduate scale to
Respondent No.5 from 15-6-1996. In any case

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none has been produced before us by which the
management has resolved to give upgraded
scale to the Respondent No.5 with effect from
1996, as has been done by the impugned order.

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Kambli 7 wp2331.10

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What she was offered was graduate scale from
2000. However, the Deputy Director has
directed giving the graduate scale to the
Respondent No.5 from 15-6-1996, for which
there appears to be no foundation at all.

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5.Perusal of the correspondence placed

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on record shows that the Respondent No.5 was
offered graduate scale from 1-10-2000 and her
willingness was sought. She did not give her
willingness and therefore, again a letter was
written after this letter on 16-11-2006.
Again the Respondent No.5 by her letter dated
22-11-2006 did not give her consent. In our
opinion, once the management informed the
Respondent No.5 that her claim for the post
of Head-Mistress, which she has made in writ
petition in this court, has nothing to do
with her upgradation to the graduate scale.
The Respondent No.5 was absolutely free to

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Kambli 8 wp2331.10

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accept the graduate scale without prejudice

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to her contentions in the Writ Petition. But
for unknown reason she did not do so. She did
not raise any objection even to the grant of
graduate scale to the Petitioner in 2007. The
Petitioner has been given graduate scale from
15-6-2007. RespondentNo.5madeher

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representation two years thereafter on
17-8-2009 and the Deputy Director, who was

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aware that graduate scale has been given in
place of Respondent No.5 to the Petitioner,

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even without granting an opportunity of being
heard to the Petitioner, cancelled the order
granting graduate scale to the Petitioner. We
do know in what power the Deputy Director has
made this order. If the management has
upgraded the Petitioner to graduate scale
becauseoftheconductofthe

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Respondent No.5, her remedy was else where.
To our knowledge there is no provision

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Kambli 9 wp2331.10

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contained either in the M.E.P.S. Act or in
the Secondary School Code, which empowers the
Deputy Director of Education to cancel the

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order passed by the management giving
graduate scale to a teacher.

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6.Thus, we find that the order impugned
in the petition is without authority of law
and has been made in breach of principles of
natural justice and ignoring the obstinate
conduct of the Respondent No.5.

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7.In the result, therefore, the
petition succeeds and is allowed. The order
dated 30-1-2010 passed by the Deputy Director
of Education is set aside. Rule made absolute

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accordingly. No order as to costs.

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 (D.K.DESHMUKH,J.)

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 (N.D.DESHPANDE,J.)

Mahadeo Krishna Kumbhar v. Administrative Olfficer, Sangli, Miraj and Kupwad City Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Mahadeo Krishna Kumbhar v. Administrative Olfficer, Sangli, Miraj and Kupwad City Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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