Dismissed

Shri. Govind Umaji Gaigopal and Ors. v. the State of Maharashtra, through Secretary, Higher Secondary Education Dept and Ors.

Bombay HC21 Aug 2012WP/5089/2012

Case brief

AI extract

What is this about?

Two teachers filed a writ petition challenging an advertisement for vacant posts in a college. The High Court held that the petitioners failed to prove their eligibility for permanency and dismissed the petition, allowing the principal to proceed with valid recruitment procedures.

What did the court decide?

The writ petition was dismissed; the advertisement issued by the Fifth Respondent was allowed to proceed; ad-interim orders, if any, were vacated.

Shri. Govind Umaji Gaigopal and Ors. Vs the State of… — Education and Admissions | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5089 OF 2012

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Govind Umaji Gai Gopal and others versus State of Maharashtra and others

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Petitioners

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Respondents

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Mr.Balasaheb Deshmukh for Petitioners. Mr.V.S.Gokhale, AGP for Respondents 1 and 2. Mr.Ajay A. Joshi for Respondent no.3. Mr.S.G.Deshmukh i/by Mr.A.J.Kandarkar for Respondents 4 and 5.

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CORAM : DR.D.Y.CHANDRACHUD AND A.A.SAYED, JJ.

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DATE : 21 August 2012

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JUDGMENT - (PER : DR.D.Y.CHANDRACHUD, J.) :

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Rule. Counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal, by consent and on the request of learned counsel.

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These proceedings under Article 226 of the Constitution have been instituted by two teachers in order to impugn an advertisement dated 24 May 2012 issued by the Fifth Respondent, who is the principal of Shree Sant Damaji Mahavidyalaya, at Mangalwedha, an institution which is conducted by the Third Respondent-management.

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There have been disputes in the management of the Third Respondent as a result of which two earlier proceedings came to this Court in the form of petitions under Article 226 of the Constitution. On 25 October 2010, a Division Bench of this Court, while dealing with one of those petitions namely, Shri Vidyavikas Mandal Vs. Board of Colleges and University Development and others¹ , passed an order by the consent of all the parties by which M.V.Sawant who was then in-charge of the college as principal, was permitted to act as a representative of the management on the Selection Committee to be constituted for selecting a principal for regular appointment. The Court issued directions to the University to take steps to ensure that the post of principal was filled up in accordance with the prevailing regulations and statutes. M.V.Sawant was to act as a nominee of the management on the selection committee to be constituted by the University.

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Subsequently, on the appointment of a Principal (the Fifth Respondent herein), a fresh proceeding was instituted before this Court. In the second proceeding, the Fifth Respondent, was the Petitioner in Dr.Ramesh B. Chougule Vs. The Board of Colleges & University Development, Solapur University, Solapur and others)² . He sought a direction in those proceedings for allowing him to make appointments of the teaching and non-teaching staff. While disposing of the petition, the Division Bench observed as follows :

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1 Writ Petition No.7119 of 2010 decided on 25 October 2010 2 Writ Petition No.7603 of 2011 decided on 19 April 2012

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"2) The aforesaid reliefs have been claimed by the Petitioner in peculiar circumstances. There is an on going dispute between the two factions of the management. On account of the said dispute, no appointments to the posts of teaching and non teaching staff are being made by the Respondent Management, after following necessary procedure. As of now, 7 teaching posts in Senior College and 5 teaching posts in Junior College are vacant and 4 non-teaching posts are vacant in the concerned colleges."

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The Division Bench was of the view that the welfare of the students cannot be allowed to suffer, there being nearly 1,200 students in the college. Following the precedent of the earlier order dated 25 October 2010, the Division Bench permitted the Fifth Respondent herein to act as a representative of the management on the selection committee to be constituted for selecting candidates for appointment on posts which were vacant. The Division Bench issued the following directions :-

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"4) We accordingly dispose of this petition by permitting the Petitioner to act as Representative of the Management on the selection committee, which will consist of members specified in statute 195. The Petitioner will have to act in dual capacity as Principal of the Institution as well as Representative of the Management of the Selection Committee for selecting the candidates to teaching and non teaching vacant posts."

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The Court directed that the entire process of appointment shall be completed on or before 15 June 2012.

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The Fifth Respondent has filed an affidavit stating that following the order of the Division Bench, the Education Officer, Solapur inspected the roster on 8 May 2012 and granted his approval. On 14 May 2012, the roster was submitted to the office of Deputy Director of Education, Pune, whose permission was sought for publishing an advertisement. Pursuant to the letter dated 14 May 2012, the Deputy Director of Education, Pune furnished his no objection to the publication of an advertisement on 21 May 2012. On 25 May 2012, an advertisement was published. The advertisement stipulates, inter alia, that the posts at serial numbers 1 to 6 are reserved for various categories. These include the posts at serial numbers 1 and 5 (Assistant Teachers in Political Science and Economics) to which the Petitioners stake a claim. Of the six posts for which an advertisement has been issued, only two posts have been approved, whereas the other posts are proposed.

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Now, it is in this background that, the entitlement which has been claimed by the Petitioners, would have to be evaluated. The First Petitioner claims to be an Assistant Teacher in the subject of Political Science and belongs to the O.B.C. category. The Second Petitioner is an Assistant Teacher in Economics and belongs to the Open Category. During the course of submissions, Counsel for the Petitioners submits that both the Petitioners worked between the period 2005 and 2010 in a temporary capacity. In the affidavit-inrejoinder, the Petitioners have relied upon an advertisement which was issued in 2005 for recruitment, inter alia, of Assistant Teachers for four subjects including Political Science and Economics. The

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advertisement in respect of the aforesaid two subjects was for the appointment of Part Time Teachers, though it is stated in Note-3 that an appointment on a permanent basis could be considered. The Petitioners have not produced any letter of appointment of 2005 which would indicate that they were appointed either as Shikshan Sevaks on a regular basis or for that matter that they were appointed to a post in a regular capacity.

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At Exhibit-F to the petition is a letter signed by M.V.Sawant appointing the Petitioners for the period between June 2010 to June 2013 as Shikshan Sevaks in the junior college. The letter of appointment is undated. It is clear from the order passed by the Division Bench on 25 October 2010 that the appointment of M.V.Sawant was only for the purpose of representing the management on the selection committee to be constituted for selecting a Principal. The Petitioners have relied upon a letter of approval of the Deputy Director of Education dated 18 April 2006, but that again is only for a specified period. According to the Petitioners, a resolution was passed by the management on 27 October 2010 for entrusting full time responsibilities to them. This has been seriously disputed by the Fifth Respondent in the affidavit-in-reply in which it is submitted that the resolution is fabricated. To the contrary, it has been pointed out in the affidavit of the management that a proposal for the approval of the First Petitioner was submitted to the Deputy Director of Education on 23 October 2010 but was rejected on 1 January 2011. As far as the Second Petitioner is concerned, it has been stated that he worked as a Part Time Teacher between the period 2005 and 2008 and on a Clock

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Hour Basis from 2008 to 2010. In the case of both the Petitioners it has been submitted that the due procedure under the law was not followed including the constitution of a school committee, nor was there any approval for an advertisement after verification of the roster position. Moreover, it has been submitted that the in-charge Principal M.V.Sawant was only permitted by the Division Bench to represent the management in order to facilitate the selection of a Principal by the University Selection Committee. The Petitioners have relied upon an approval granted on 31 March 2012 by the Deputy Director of Education. In response to this, it has been submitted in the affidavitin-reply that no proposal was ever submitted on behalf of the management by the Principal to the Deputy Director of Education. As a matter of fact, the communication dated 31 March 2012 does not specifically refer to any particular proposal of the Principal for approval. At the least therefore, the facts on the basis of which the Petitioners claim permanency are seriously in dispute. There are serious allegations of fabrication against the Petitioners.

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Having considered the pleadings and the documentary material and the submissions of learned counsel appearing on behalf of the contesting parties, it is evident that there have been serious disputes in the management. Each faction claims to represent the management. To break this impasse, the Division Bench by its order dated 25 October 2010 issued directions to facilitate the appointment of a Principal through the University Selection Committee so that the interest of students did not suffer. By the second order of the Division Bench dated 19 April 2010, directions were issued for filling up of the

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vacant posts by permitting the Fifth Respondent to act as a representative of the management on the selection committee. In pursuance thereof, the roster position was examined and an advertisement has been issued. Neither of the Petitioners has been able to demonstrate that they were recruited after following requisite procedures or that they have a claim of permanency. There is a serious dispute in regard to the authenticity of the resolution on which reliance has been placed by the Petitioners and it is submitted on behalf of the Fifth Respondent that the resolution annexed at ExhibitE to the petition is fabricated. According to the management, the resolution at Exhibit-E does not refer to the appointment of the Petitioners in a temporary capacity, which would be evident from a copy of the authentic resolution dated 30 September 2010 annexed to the reply.

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In this state of the record and particularly since the Petitioners have not been able to produce cogent material in support of their claim of permanency, there is no reason or justification as to why this Court should injunct or restrain the Fifth Respondent from filling up the posts which are vacant in accordance with law. The two earlier orders of the Division Bench dated 25 October 2010 and 19 April 2012 were passed to facilitate that exercise. The object was to ensure that the welfare of the students does not suffer and that their educational needs are not disrupted as a result of the factions in the management of the trust. With that object in view, appointments of staff have to be made in any orderly manner and by following requisite procedures. An advertisement has now been issued after the

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approval of the Deputy Director of Education. The roster position has been verified. To accede to the prayer of the Petitioners would be to place a judicial imprimatur on irregular or back door appointments. That is impermissible. As a matter of fact, on 1 January 2011, the Deputy Director of Education has declined to grant approval to the appointment of the First Petitioner. Evidently both the Petitioners were appointed purely on a part time basis and in a temporary capacity and do not have a vested right to claim permanency. The Petitioners would be at liberty to apply in pursuance of the advertisement, which has been issued by the Fifth Respondent, and if applications are submitted by them for appointment, these shall be considered and processed in accordance with law.

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In the circumstances, no case for interference is made out. The petition is accordingly dismissed. In view of the dismissal of the petition, the ad-interim orders, if any, passed earlier, shall stand vacated.

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(DR.D.Y.CHANDRACHUD, J.)

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(A.A.SAYED, J.)

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MST

Shri. Govind Umaji Gaigopal and Ors. v. the State of Maharashtra, through Secretary, Higher Secondary Education Dept and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Govind Umaji Gaigopal and Ors. v. the State of Maharashtra, through Secretary, Higher Secondary Education Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Coram

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