Allowed

Maheshkumar Ramlu Akulwar and Others v. the State of Maharashtra and Others

Bombay HC28 Nov 2016WP/1391/2015

Case brief

AI extract

What is this about?

In three consolidated writ and contempt proceedings, the High Court quashed cancellation orders against Shikshan Sevak employees appointed by a school Headmaster. The Court held the plaintiffs were eligible, posts were vacant, and the Headmaster was competent under a relevant circular despite management disputes. Writ No. 7523/2016 challenging conditional approval was not interfered with.

What did the court decide?

Orders impugned in Writ Petitions No. 644/2015 and No. 1391/2015 were quashed and set aside; salaries and arrears to be paid within three months; Contempt Petition No. 49/2016 disposed of.

Maheshkumar Ramlu Akulwar and Others Vs the State of… — Service and Employment | Bombay HC (2016)

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13wp644-15 &.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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13 WRIT PETITION NO. 644 OF 2015

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WITH

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CONTEMPT PETITION NO. 49 OF 2016

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IN WRIT PETITION NO.644 OF 2015

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ALLAUDDIN KONDAJI CHAUDHARI

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VERSUS

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THE EDUCATION OFFICER, (SECONDARY), ZILLA PARISHAD,
LATUR AND OTHERS

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Advocate for Petitioner : Mr. Dhorde Vikram R
AGP for Respondents State: Mrs. M. A. Deshpande
Advocate for Respondent No.2 : Mr. Rajendra S.

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Deshmukh

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Advocate for Respondent No.3 : Mr. V. D. Gunale
Advocate for the intervenor : Mr. Prashant Nagargoje
h/for Mr. R. J. Godbole

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WITH

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 WRIT PETITION NO. 1391 OF 2015

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1. MAHESHKUMAR RAMLU AKULWAR 2) SUNIL RAMKISHAN GURME

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AND 3) JEEVANKALA ANNARAO PATL
VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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Advocate for Petitioners : Mr. S. R. Kolhare and Mr.

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P. S. Kochar

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AGP for Respondents State: Mrs. M. A. Deshpande
Advocate for Respondent No.5 : Mr. Rajendra S.

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Deshmukh

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WITH

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WRIT PETITION NO. 7523 OF 2016

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WITH

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CIVIL APPLICATION NO. 12217 OF 2016

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SHRIKANT JANARDHANRAO KULKARNI

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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...

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Advocate for Petitioner : Mr. Prashant Nagargoje
h/for Mr. R. J. Godbole

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AGP for Respondents State: Mrs. M. A. Deshpande
Advocate for Respondent No.7 : Mr. V. R. Dhorde

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13wp644-15 &.odt

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CORAM: S. V. GANGAPURWALA &

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K. L. WADANE, JJ.

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 DATE:28th November, 2016

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ORDER:

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1.Writ Petition No.644/2015 is filed by one of

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the employees who was appointed on 25.09.2011 as
Shikshan Sevak. Writ Petition No.1391/2015 is filed

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by three employees who were also appointed on
25.09.2011 as Shikshan Sevak. Initially, the
appointment of all these petitioners was approved on
21.10.2011. On 30.03.2012, the approval granted to
the appointment of the petitioner in Writ Petition No.
644/2015 was stayed. On 04.05.2012, the approval
granted to the appointment of the petitioner in Writ
Petition No.644/2015 was cancelled. The matter came
up to this Court. This Court set aside that order and

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remitted the matter back. After the matter was
remitted back, again the approval came to be cancelled
of the said petitioner in Writ Petition No.644/2015 on

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03.08.2015. The said order is assailed in Writ

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Petition No.644/2015. The approval granted to the

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petitioners in Writ Petition No. 1391/2015 is
cancelled on 18.02.2013. The said order is assailed

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in Writ Petition No. 1391/2015. During the pendency of

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13wp644-15 &.odt

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these two writ petitions, conditional approval is
granted to the appointment of the petitioners in the
aforesaid writ petitions. The said order granting
conditional approval to these employees is assailed by
a person claiming to be the President of the Sansthan
which runs the School, in Writ petition No. 7523/2016.

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2. Mr. Dhorde and Mr. Kolhare, the learned
counsel for the petitioners/employees submit that
after following due procedure, the petitioners were
appointed. Advertisement was issued in the newspaper
dated 19.09.2011, pursuant thereto, the employees/
petitioners had applied and after conducting
interviews, they were selected and appointment orders
were issued to them on 25.09.2011 and proposal
submitted for approval was granted. The learned
counsel submit that no illegality has been committed
while appointing the petitioners. There is dispute
between the members of the Management and there are
rival factions. As such, the Headmaster has, after
issuing advertisement and following due procedure,
appointed these petitioners/employees, relying on the
Circular dated 19.11.2001. According to the learned
counsel, the reasons given in the impugned orders are

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13wp644-15 &.odt

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erroneous. Roster is approved by the B.C. Cell. Even
in earlier round of litigation, the Education Officer

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filed an affidavit clearly stating therein that the
petitioner in writ petition No.644/2015 has been

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appointed as per the Roster. The learned counsel
submit that since the date of appointment, the
petitioners/employees are performing their duties
regularly and diligently.

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3. Mr. Deshmukh, the learned counsel appearing

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for the then Headmaster submits that on 08th

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September, 2011, an application was given by the
Headmaster to the Education Officer seeking permission
to advertise the posts and fill in the same. Since

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2006, the said posts were vacant and the students were
made to suffer. According to the learned counsel, the

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first advertisement was issued on 12.09.2011. As no
application wasreceived, againadvertisement was given
on 19.09.2011. On 21.09.2011, the Headmaster received
permission from the Education Officer to fill in the

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said posts and as per permission, the appointment
orders are issued. Dispute between two factions of the

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management exists. As such, the Headmaster exercised
the powers as per Circular dated 19.11.2001.

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13wp644-15 &.odt

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4. Mr. Gunale, the learned counsel appears for

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Respondent No.3 in Writ Petition No. 644/2015 and

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submits that respondent No.3 is Secretary of the
Trust/Sanstha and is functioning as such and added

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respondent Shrikant Kulkarni is not a Member of the
Trust. He is nephew of the earlier President, who is

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no more and was appointed for remaining term of one

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year and five months and subsequently he is not the

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President. Change reports are pending. The learned
counsel supports the cause of the petitioners/
employees in both the writ petitions.

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5. Mr. Nagargoje, learned counsel for the

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petitioner in Writ Petition No. 7523/2015 submits that

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the Change Report bearing No.477/2006 was initially

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rejected by the Assistant Charity Commissioner. An
application preferred before the District Judge came
to be allowed and the second appeal filed by the

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opponents therein came to be dismissed by this Court.

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The learned counsel submits that the person
representing as Secretary in the writ petitions filed

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by the employees has no locus standi nor is a
Secretary. The Headmaster at the relevant time,
committed illegality and as such was suspended

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13wp644-15 &.odt

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subsequently. The learned counsel submits that even
before the Assistant Charity Commissioner, the
proceedings were filed, wherein, status quo order
was passed restraining the Headmaster from issuing any
appointment orders. The learned counsel submits that
no permission could have been granted by the Education

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Officer on 21.09.2011 as is contended by the
petitioners and the Headmaster, because, on 21.09.2011
meeting was scheduled in the Office of the Education
Officer and the noting was made that at present no
decision can be taken and it is inappropriate to grant

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any such permission. In view of that, on the very
same day, the letter giving permission to the
Headmaster to fill in the posts could not have been
issued. The said letter is false one.

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6. The learned counsel further submits that the
initial order of approval itself is false as it would
be seen that in the camp wherein the proceedings were
taken up for approval, it was noted that the proposals

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are to be kept pending. The order of approval is
contrary to the noting made in the said camp. This

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also shows that the letter of approval is erroneous
and false. The Education Officer who had granted such

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13wp644-15 &.odt

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false and illegal approval was suspended and
prosecution is also lodged against him. According to
the learned counsel, preliminary enquiry was conducted
upon the complaint of one MLA Mr. Bhalerao and in the

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said preliminary enquiry also, it has been observed
that before the enquiry committee could submit the

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report, the approvals have been granted to the
appointments of these employees and no plausible
reason has been given inspite of the fact that the
order of status quo was in force, the orders of
approval have been passed. Orders of approval are

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issued in back dates. Specific observations are made
in this regard. According to the learned counsel,

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inspite of the fact that for meeting to be held on
21st September, 2011, the Headmaster was directed to

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attend, the Headmaster remained absent in the meeting
as it can be clear from the observations made in the

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minutes of the meeting. According to the learned
counsel, no procedure has been adhered to and there
are no applications received, no interviews conducted
and it is shown that interviews are conducted at

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different places than the school. The order
rejecting the approval makes the position abundantly

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13wp644-15 &.odt

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clear. The learned counsel submits that the approval
was rejected by a speaking order. During the pendency
of the writ petitions filed by the employees, the
Education Officer could not have passed the order
granting conditional approval. The same being illegal,
is rightly assailed in the said writ petition.

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7. Learned AGP submits that the the appointments

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are not made as per the Roster. No roster was
approved at that time. According to the learned AGP,
conditional approval granted during the pendency of
these writ petitions filed by the employees was
pursuant to the fact that contempt petition was filed

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and directions were given to pay salary and it was
thought that the salary could not be paid unless the
approval is granted and on that premise, the approval
was granted. According to the learned AGP, the order
rejecting approval is self speaking and all factors
are rightly considered. The Headmaster did not follow
the proper procedure.

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8. We have considered the submissions canvassed

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by the learned counsel for the respective parties.

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13wp644-15 &.odt

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9. It is not disputed that the petitioners are

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working with the respondent School since 2011. It is

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also a fact that the dispute exists between the rival
factions of the members of the Trust. Various change

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reports are still pending is an admitted fact,
allegations and counter allegations are made about the
right of the person representing himself as Secretary
and person representing himself as President to
prosecute their respective stands.

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10. Circular dated 19.11.2001 lays down that if
there is dispute amongst the members claiming to be in

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the Management, then the Headmaster is empowered to
make appointment. It is also not disputed that since

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the year 2006, these four posts were vacant. It is
also a matter of record that the Headmaster, on 8th
September, 2011, sent letter to the Education Officer
seeking permission to fill in these four posts. It
also appears that the advertisement has been issued on
19.09.2011. The only contention of respondents is that

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it is not issued in widely circulated newspaper and
further issue is about the Education Officer granting
permission to fill in the posts on 21.09.2011. It is
also a fact that during the relevant time, there was

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13wp644-15 &.odt

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no ban on the recruitment nor any direction were
given to the Institution to absorb any surplus
candidates. Appointment orders are placed on record.

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11. We had asked the learned AGP about the roster
and vacant posts on which the petitioners were
appointed, whether the same are as per roster.
Learned AGP, on instructions from the Officer present
in the Court, accepts that the petitioners/employees
are appointed on the vacant posts and the same is as
per roster.

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12. Eligibility of the petitioners is not

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disputed. The petitioners are eligible to be
appointed on the said posts on which they are
appointed and as per category from which they are
appointed. It appears that there are some notings
about the permissions not to be granted at this stage,
however, on the subsequent date, letter is shown to

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have been issued by the Education on 21.09.2011
granting permission.

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13. We may not enter into the said debate as there

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are rival contentions. Twice the matter was remitted

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back to the Education Officer in respect of the

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13wp644-15 &.odt petitioner in Writ Petition No. 644/2015. The reasons given for refusing approval to the appointment is that the Headmaster had not followed the proper procedure and that roster was not approved. The issue is no

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longer germane as the learned AGP, on instructions,
submitted that four vacant posts exist, on which the

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petitioners claim their appointment and their
appointment would be from the categories which, as per
the roster, is permissible. It appears that order
of status quo was passed by the Assistant Charity

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Commissioner in the proceedings filed by the
petitioner in Writ Petition No. 7523/2016, on
12.10.2011, whereas the employees were appointed on

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25.09.2011 i.e. prior to the order of status quo
being passed. The petitioners employees cannot be

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faulted. It does not appear to be a case of back door
entry. Advertisement was issued and the Headmaster,

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in the given circumstance, was empowered to issue
appointment orders, more particularly in view of

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Circular dated 19.11.2001. The petitioners are
eligible and qualified to be appointed on the said

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posts, interviews were held but, the only objection

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of the respondent Education Officer is that the

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13wp644-15 &.odt

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interviews were held at some other places than the
school, in which the petitioners were being
appointed. The petitioners are officiating their
duties for more than 5 years continuously. Because of
the warring members of the Management, they are being
made to suffer. Even the approval in respect
petitioners in Writ Petition No. 1391 of 2016 has been
cancelled, without hearing the petitioners though
earlier their appointment was approved.

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14. We would not have interfered in the matter had
these petitioners employees being not qualified to be
appointed or were not appointed as per the roster.
However, the facts are otherwise. Their appointment is
as per roster and they are qualified and eligible to
be appointed. The advertisement was issued, interviews
were also conducted and the Headmaster at the
relevant time, was competent to appoint these
petitioners.

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15. Considering the aforesaid aspects of the

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matter, the orders impugned in Writ petition No. 644
of 2015 and Writ Petition No.1391/2015 are quashed and
set aside.

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13wp644-15 &.odt

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16. As far as the order impugned in writ petition

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No. 7523/2016 is concerned, in view of the aforesaid

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discussions, we are not inclined to interfere with the
same.

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17. The contempt petition is filed for

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disobediance of the orders of this Court. It is not
disputed that the petitioners are now receiving
regular salary. The learned AGP, on instructions,
states that the proposal is already made for
administrative sanction for the payment of arrears.
On receipt of the same, the arrears also would be
paid. The same shall be paid within three months.

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18. In view of above, the writ petitions and

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contempt petition accordingly stand disposed of. No
costs.

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19. Civil applications also stand disposed of.

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20. It is made clear that we have not observed

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anything about the capacity of various persons in the
Management.

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JPC

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Maheshkumar Ramlu Akulwar and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Maheshkumar Ramlu Akulwar and Others v. the State of Maharashtra and Others

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

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