Allowed

Sanjay Govindrao Ghodke and Others v. the State of Maharashtra and Others

Bombay HC3 Oct 2018WP/3107/2017

Case brief

AI extract

What is this about?

This Division Bench allowed a writ petition challenging the rejection of appointment proposals for Assistant Teachers. The court held that the Education Officer's rejection order was based on unsustainable assumptions regarding unauthorized signatures and pending disputes, finding the appointments made following due procedure were valid.

What did the court decide?

The writ petition challenging the rejection of appointment proposals was allowed, thereby validating the appointment of the petitioners.

Sanjay Govindrao Ghodke and Others Vs the State of… — Education and Admissions | Bombay HC (2018)

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(1)

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3107.17wp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3107 OF 2017

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1.Sanjay Govindrao Ghodke,
Age: 34 years, Occ: Service,
as Shikshan Sevak,
R/o. Lohara, Tal. Lohara,
Dist. Osmanabad.

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2.Smt. Sarika d/o Suryakant Patil,
Age: 31 years, Occ: Service
as Shikshan Sevak,
R/o. Lohra, Tal. Lohara,
Dist. Osmanabad.

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3.Satish Tamanappa Jatte,
Age: 31 years, Occ: Service,
as Shikshan Sevak,
R/o. Lohara, Tal. Lahora,
Dist. Osmanabad.

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4.Shivraj Suresh Shidore,
Age: 30 years, Occ: Service
as Shikshan Sevak,
R/o. Jewali, Tal. Lohara,
Dist. Osmanabad...PETITIONERS
VERSUS

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

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2. The Education Officer (Secondary) Zilla Parishad, Osmanabad. Dist. Osmanabad.

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3.High School, Lohara,
Lohara, Tal. Lohara,
Dist. Osmanabad

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Through its Secretary,
Shri. Suresh Kishanrao Sutar,
Age: 60 years, Occ: Social Worker,
R/o. Lohara, Tal. Lohara,
Dist. Osmanabad.

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4.High School, Lohara,
Lohara, Tal. Lohara,
Dist. Osmanabad
Through its Headmaster...RESPONDENTS

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Mr V.D. Gunale, Advocate for petitioners;
Mr S.S. Dande, A.G.P. for respondent Nos.1 & 2;
Mr A.N. Sabnis, Advocate for respondent Nos.3 & 4

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CORAM : PRASANNA B. VARALE & MANISH PITALE,JJ.

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 DATE : 3rd OCTOBER, 2018

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ORAL ORDER :

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Heard Mr. Gunale, learned Counsel

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appearing for the petitioners.

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2.By way of present petition, the

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petitioners challenged the communication dated 31st
January, 2017 issued by the Education Officer

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(Secondary), Zilla Parishad, Osmanabad thereby
rejecting the proposal for grant of approval to the
appointment of these petitioners on the post of
Assistant Teacher.

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(3)

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3.Mr. Gunale, learned Counsel appearing for

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the petitioners, in his detailed submissions before
us, submitted that the order impugned in the
petition is unsustainable on more than one grounds
and the Education Officer (Secondary) passed the
order on wholly erroneous grounds and only on
assumptions rejected the approval. It was also
submitted by Mr. Gunale, learned Counsel for the
petitioner that because of non application of mind
of the Education Officer (Secondary), the
petitioners are required to approach this Court
time and again and this petition is second round of
litigation of the petitioners to approach this

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Court for their rightful claim. He further
submitted that the petitioners who possess
requisiteacademicqualificationforthe
consideration to the post of Assistant Teachers as

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the posts were available in the respondent
management school at Lohara, Taluka Lohara,
District Osmanabad. On 8th February, 2013 Secretary

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of the Education Committee forwarded a proposal to

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3107.17wp (4)

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the Education Officer (Secondary) for filling up

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the posts of non teaching and teaching staff. The
copy of the said proposal is placed on record at
Exhibit-C.

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4.Perusaloftheabovereferred

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communication clearly shows that certain posts were
falling vacant due to retirement of earlier
employees and in view of ban imposed by the State
Government, there were no appointments made and the
students were sufferer. It is stated in the
proposal that the management be permitted to fill
up these posts as early as possible. It is also
stated in the proposal that the Education Officer
(Secondary) may also inform about surplus employees
either teaching or non teaching and permit the
institution to fill up the posts in view of
Maharashtra Employees Private Schools Act, more
particularly Section 5(1) of the said Act. As
there was no reply from the Education Officer
(Secondary), the institute is left with no choice

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but to publish an advertisement in local newspaper

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(5)

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namely “Daily Bandhuprem” on 15th March, 2013.

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5.In response to the advertisement, the

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petitioners appeared before the committee for
interview and they were selected by the Committee
as suitable candidates to be appointed. Resolution

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is passed on 30th March, 2013 by the school
committeeapprovingappointmentofthese

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petitioners. Petitioner Sanjay Ghodke was appointed
to teach History and Hindi subjects, petitioner
Smt. Sarika Patil was appointed to teach Geography
and English subjects, whereas petitioner Sadashiv

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Bachate was appointed to teach Mathematics and
Science subjects, petitioner Shrikant Ghuge was
appointed to teach all subjects, as well as
petitioner Satish Jatte was appointed in primary
section for teaching all subjects. These persons

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were appointed on probation and have completed
their probation period. The appointment letters
are also placed on record collectively at Exhibit-
F.

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(6)

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6.The Education Officer (Secondary) was

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again informed about these appointments on 14th
April, 2013 and it is stated in the communication,
which is placed on record at Exhibit-G that as
there was no reply to the communication dated 8th
February, 2013, management by complying all the
requisite procedure appointed these petitioners.

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The said communication is received by the Education
Officer (Secondary) on the next day i.e. on 15th
April, 2013. The communication dated 8th February,
2013 was received by the Education Officer
(Secondary) on the very day i.e. on 8th February,
2013 and there is an endorsement of receiving
letter by the office of the Education Officer
(Secondary), Zilla Parishad, Osmanabad. The
management then submitted proposal for approval to
the appointment of these petitioners. The said
proposal was rejected by communication dated 12th
August, 2014. The reasons assigned for rejection
were, no prior permission of the department was
sought for, there is dispute in the management,
appointment orders are passed by unauthorized

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person and there is reference made to Government
Resolution No.6th February, 2001.

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7.Being aggrieved by the rejection, the

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petitioners were before this Court in Writ Petition
No. 9604 of 2015. Reply was filed to the petition
on behalf of respondent Nos. 1 and 2. In the reply,
only grounds for rejection are reiterated and
nothing more than is stated in the reply.

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8.Consideringrival submissions,the

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Division Bench of this Court disposed of the above
referred writ petition on 19th September, 2016. The
Division Bench, by assigning reasons in the order
observed in paragraph Nos.5 and 6 as follows :

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“5.Though the affidavit gives some
reason, the order impugned is bereft of
any such details, except that prior
permission is not taken, the same is
violative of Government Resolution of 6th
February, 2012 and dispute amongst the
Management Committee and also the
appointment order being signed by

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(8)

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unauthorized person. The education
officer ought to have given details as to
how the person who has signed the
appointment order was not an authorized
person; whether he had authority to issue
appointment order. No doubt, the
Education Officer has to consider whether
the selection process has been properly
followed and the authorized person has
conducted the selection process so also
the bar of Government Resolution dated 6th
February, 2012.

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6.The petitioner claims to have
been appointed as Shikshan Sevak on
30.03.2013 on probation. The Education
Officer is also required to consider,
whether any application was given seeking
permission to fill in the posts and after
considering all these aspects, has to
decide the question of granting approval
or not.”

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9.The Education Officer was directed to

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consider the proposal and pass orders afresh. As
there were claims of groups claiming membership of
the managing committee, the parties were permitted
to submit their representation to the Education

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(9)

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Officer and the Education Officer was directed to
pass orders within stipulated period of six months
from the date of order. At page No.183 (Exhibit-N)
of the petition, Secretary submitted a detailed
representation giving all the detailed factual
aspects, such as, appointment of the petitioners,
administrative committee being appointed to take
care of the affairs of the management. There is
also reference made to dismissal of one headmaster
Jadhav. Then there is also reference made to the
proceedings namely Trust Suit No. 1 of 2009
instituted on behalf of Rajendra Kadam and others
and the decision in the suit by the competent
judicial forum.

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10.The Education Officer (Secondary) on 31st
January, 2017 by assigning four reasons rejected

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the proposal. The first reason assigned by the
Education Officer is, the appointment orders of the
petitioners are signed by the person who was not
authorized by the Education Department is worked as
headmaster, as such, these appointment orders are

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(10)

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issued by unauthorized person and are invalid.

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11.Now, there are sufficient documents placed

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on record to show that as earlier headmaster was
dismissed, the management appointed Mr. Panchal, as
headmaster, being senior most teacher so as to meet
the situation and to take care of aspect that the
teaching and non teaching employees are not
suffered because of non availability of headmaster.

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Though for some time, Mr. Panchal worked as
headmaster, subsequently expressed his inability to
work as headmaster and resigned, the management
appointed one Mr. Potdar, who was second senior
most teacher in the school. The Education Officer
on his own appointed Mr. Rathod as headmaster who
was at Serial No.4 in the list of senior teachers.

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12.It seems that Mr. Rathod also filed writ
petition in this Court, that was Writ Petition
No.6073 of 2013 and the school was also before this
Court by filing Writ Petition No.8721 of 2013.
While deciding both these petitions by the common

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(11)

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judgment dated 13th March, 2014, the Division Bench
of this Court could not find any justifiable reason
for action taken by the Education Officer i.e.
appointing Mr. Rathod as headmaster. The Division
Bench was pleased to observe in the order dated
13th March, 2014 in the following words.

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“Therefore, upon reading the
order in W.P.No. 4998/12, there is no any
observation or direction by this Court
which would have enabled the Education
Officer (Secondary) Zilla Parishad,
Osmanabad to appoint the petitioner i.e.
Shri. Vasant Rathod, as Head Master so as
to look into the day to day affairs and
administration of the school. As already
observed, the learned A.G.P. has not
brought any legal provisions to our
notice which enables the Education
Officer (Secondary), Zilla Parishad,
Osmanabad to make such appointment.”

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13.Meantime, Mr. Panchal expressed his

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willingness to work as headmaster and he was party
to the petition as respondent No. 7. The Division

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Bench accepted this position and permitted Mr.

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Panchal i.e. respondent No. 7 to sign and forward
salary bills of teaching and non teaching staff to
the Education Officer. Thus, Mr. Gunale, learned
Counsel for the petitioner was justified in
submitting that the first reason assigned in the
rejection order is only on assumptions and
presumptions of the Education Officer and is not in
consonance with the record, as such, this reason is
unsustainable.

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14.Then second reason assigned in the order
is, that the Charity Commissioner was unable to
give opinion on the aspect of the valid managing
committee as certain certain proceedings were
pending. Now, this ground is also not sustainable
for the reason that in the first round itself it
was brought to the notice of this Court that there

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is dispute in the managing committee and
administrative body was appointed to take care of
routine affairs of the society.

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(13)

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judgment of the Division Bench of this Court in
Writ Petition Nos.1647 of 2014 and 1675 of 2014, as
identical issue was before this Court for
consideration. It was submitted before this Court
that even if objection is raised about body which
was in power at the relevant time, certain acts
done by the body in lawful manner cannot be held to
be illegal merely because there is some dispute.
Reliance was placed on the judgment of Apex Court
in the matter of Gokaraju Rangaraju vs State of
Andhra Pradesh, reported in 1981 (3) SCC 132. The
observations of the Apex Court are quoted in the
order and we reproduce the same as follows:

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“What would be the effect of the
declaration of the Supreme Court that the
appointment of the Sessions Judge is
invalid on the judgments pronounced by
thesaidJudgepriortosuch
declaration.” While answering the issue
so raised, the Hon'ble Apex Court
interpreted the de-facto doctrine and
held that, even if the appointment of a
Judge is found to be invalid, the
judgments, decrees or orders made by the

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(14)

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said Judge would continue to be valid and
effective.”

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16.The Division Bench of this Court in the

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judgment in Writ Petition Nos.1647 of 2014 and 1675
of 2014 further observed that in the instant case
also, even if it is assumed that the body which
made the appointments of Respondent No. 4 in Writ
Petition No.1647/2014 and Respondents No. 4 and 5
in Writ Petition No. 1675/2014 was illegally in
power, the appointments made by them by following
due process of law and which are otherwise held to
be valid by the competent authority would continue
to be valid and effective. (emphasis supplied)

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17.At the cost of repetition, we state that
in the present matter, the appointments of the
petitioners were made by following due procedure,
such as, seeking approval from the Education
OfficerapprisingtheEducationOfficer

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availability of posts, also informed the Education
Officer that if there is any surplus employee, the
information ought to have been provided to the

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(15)

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management. As there was no response from the
Education Officer, advertisement was issued and in
the interviews conducted by the school committee,
the petitioners were appointed. Thus, the second
ground assigned by the Education Officer is also
clearly unsustainable.

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18.The third ground in the order reads that
by letter dated 8th February, 2013 then Secretary
without seeking any permission from the Education
Department appointed the petitioners, as such,
these appointments are without permission from the
concerned department. Even the third ground is not
sustainable for the reason referred by us namely
communication dated 8th February, 2013 itself is a
communication seeking permission from the Education
Officer giving all the details and again on 14th
April, 2013 the Education Officer is informed about
the appointment of the petitioners with reference
that there was no reply from the office of the
Education Officer to communication dated 8th
February, 2013, as such, management was left with

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3107.17wp (16)

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no choice to complete procedure and appoint these
petitioners. Therefore, Mr. Gunale, learned Counsel
was justified in submitting that this objection is
raised only for sake of objection without there
being any application of mind and this ground is in
total contrast to the record.

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19.The other ground is that appointments are

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not in consonance with Government Resolution dated
6th December, 2012. Now, this issue is dealt in
detail in the judgment decided at the Principal
Seat in Writ Petition No.8587 of 2016 (Smt. Munoli

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Rajashri Karabasappa vs State of Maharashtra
through Secretary and others) with other connected
matters, decided on 10th July, 2017 (Coram: B.R.
Gawai and Riyaz I. Chagla, JJ.). Oft quoted ground
namely the appointments are in a ban period and in
spite of availability of excess teachers is dealt
in by this Court and in the present matter, the
appointments were with following due procedure and
not only this, the petitioners specifically stated
in the petition that in the year 2015 when the

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3107.17wp (17)

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Education Officer sent one surplus teacher to
respondent Nos. 3 and 4 for absorption i.e. Shri.
V.S. Nagne in their school. As such, whenever the
Education Officer provided information of the
excess teacher, the management absorbed excess
teacher by following direction of the Education
Officer but at the relevant time, when these
petitioners were appointed, there was not such
information provided by the Education Officer in
spite of communication order was forwarded to the
Education Officer on 8th February, 2013. Thus, even
this fourth ground is unsustainable.

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20.Considering all these aspects, as there is

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no valid reasons assigned in the order impugned in
the petition and reasons assigned in the rejected
order are clearly unsustainable. The petition
deserves to be allowed. Resultantly, the petition
is allowed in terms of prayer clause (C).

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21.In view of disposal of the writ petition,

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no orders are required to be passed on the

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3107.17wp (18)

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application being Civil Application No.7462 of
2017 filed for seeking intervention.

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(MANISH PITALE)(PRASANNA B. VARALE)
JUDGE JUDGE

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Tupe

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S.U. Tupe

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Digitally signed by S.U. Tupe Date: 2018.10.06 10:32:30 +0530

Sanjay Govindrao Ghodke and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sanjay Govindrao Ghodke and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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