Bombay High Court
Deepak Sahebrao Pawar vs The State Of Maharashtra And Others on 10 July, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:13863-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2549 OF 2018
Gitanjali d/o Prakash Patil
Age: 34 years, Occu.: Service,
R/o. Aadarsh Madhyamik
Vidyalaya, Mandane,
Tq. Shahada, Dist. Nandurbar. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai-400032.
2. The Dy. Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Secondary),
Zilla Parishad, Nandurbar.
4. The Peoples Education Society,
Mandane, Tq. Shahada,
Dist. Nandurbar
Through its President/Secretary.
5. The Headmaster,
Aadarsh Madhyamik Vidyalaya
and Junior College, Mandane,
Tq. Shahada, Dist. Nandurbar. .. Respondents
...
WITH
CIVIL APPLICATION NO.5618 OF 2018
IN WP/2549/2018
Bhimsing s/o Harsing Pawara,
Age: 69 years, Occu.: Agriculture,
& Director of Peoples Education Society,
[1]
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Mandane, Tq. Shahada, Dist. Nandurbar,
R/o. At village Bhongare, Post Chandsauli,
Tq. Shahada, Dist. Nandurbar. .. Applicant
Versus
Gitanjali d/o Prakash Patil and others .. Respondents
...
WITH
WRIT PETITION NO.2550 OF 2018
Shri. Pankaj s/o Jijabrao Pawar
Age: 37 years, Occu.: Service,
R/o. Aadarsh Madhyamik Vidyalaya,
Mandane, Tq. Shahada, Dist. Nandurbar .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai-400032.
2. The Dy. Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Secondary),
Zilla Parishad, Nandurbar.
4. The Peoples Education Society,
Mandane, Tq. Shahada,
Dist. Nandurbar
Through its President/Secretary.
5. The Headmaster,
Aadarsh Madhyamik Vidyalaya
and Junior College, Mandane,
Tq. Shahada, Dist. Nandurbar. .. Respondents
...
WITH
CIVIL APPLICATION NO.5651 OF 2018
IN WP/2550/2018
[2]
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Bhimsing s/o Harsing Pawara,
Age: 69 years, Occu.: Agriculture,
& Director of Peoples Education Society,
Mandane, Tq. Shahada, Dist. Nandurbar,
R/o. At village Bhongare, Post Chandsauli,
Tq. Shahada, Dist. Nandurbar. .. Applicant
Versus
Pankaj s/o Jijabrao Pawar and Others .. Respondents
...
WITH
WRIT PETITION NO.2553 OF 2018
Shri. Dhairyashil s/o Chandrakant Patil
Age: 37 years, Occu.: Service,
R/o. Aadarsh Madhyamik Vidyalaya,
Mandane, Tq. Shahada, Dist. Nandurbar .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai-400032.
2. The Dy. Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Secondary),
Zilla Parishad, Nandurbar.
4. The Peoples Education Society,
Mandane, Tq. Shahada,
Dist. Nandurbar
Through its President/Secretary.
5. The Headmaster,
Aadarsh Madhyamik Vidyalaya
and Junior College, Mandane,
Tq. Shahada, Dist. Nandurbar. .. Respondents
[3]
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...
WITH
CIVIL APPLICATION NO.5616 of 2018
IN WP/2553/2018
Bhimsing s/o Harsing Pawara,
Age: 69 years, Occu.: Agriculture,
& Director of Peoples Education Society,
Mandane, Tq. Shahada, Dist. Nandurbar,
R/o. At village Bhongare, Post Chandsauli,
Tq. Shahada, Dist. Nandurbar. .. Applicant
Versus
Shri. Dhairyashil s/o Chandrakant Patil
and others. .. Respondents
...
WITH
WRIT PETITION NO.2570 OF 2018
Shri. Deepak s/o Sahebrao Pawar
Age: 43 years, Occu.: Service,
R/o. Aadarsh Madhyamik Vidyalaya,
Mandane, Tq. Shahada, Dist. Nandurbar .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai-400032.
2. The Dy. Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Secondary),
Zilla Parishad, Nandurbar.
4. The Peoples Education Society,
Mandane, Tq. Shahada,
Dist. Nandurbar
Through its President/Secretary.
[4]
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5. The Headmaster,
Aadarsh Madhyamik Vidyalaya
and Junior College, Mandane,
Tq. Shahada, Dist. Nandurbar. .. Respondents
...
WITH
CIVIL APPLICATION NO.5654 of 2018
IN WP/2570/2018
Bhimsing s/o Harsing Pawara,
Age: 69 years, Occu.: Agriculture,
& Director of Peoples Education Society,
Mandane, Tq. Shahada, Dist. Nandurbar,
R/o. At village Bhongare, Post Chandsauli,
Tq. Shahada, Dist. Nandurbar. .. Applicant
Versus
Deepak s/o Sahebrao Pawar and others. .. Respondents
..........
Ms. Pradnya S. Talekar i/b Talekar and Associates, Advocate for petitioners
in all the petitions.
Mr. P. S. Patil, AGP for respondent Nos.1 to 3 - State in all the petitions.
Mr. N. E. Deshmukh, Advocate for respondent Nos.4 and 5 in all the
petitions.
Mr. Sandesh R. Patil, Advocate for applicant in all the civil applications.
..........
CORAM : MANGESH S. PATIL AND
SHAILESH P BRAHME, JJ.
RESERVED ON : 02 JULY 2024
PRONOUNCED ON : 10 JULY 2024
JUDGMENT [ Per Shailesh P. Brahme, J. ] :-
Rule. Rule is made returnable forthwith. With the consent of
the parties, heard litigating sides finally.
[5]
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2. These petitions can be disposed of by common judgment and
order, as relevant facts and points for determination are common.
Petitioners are the employees of respondent Nos.4 and 5 Management.
They are challenging common orders dated 06.02.2018 and 29.06.2017
passed by respondent No.2 Deputy Director of Education, revoking
approval to their appointments.
3. The sequence of events in all the matters can be summarized
as follows :-
Sr. Events/Documents WP/2549/2018 WP/ WP/ WP/
Nos. Geetanjali Patil 2550/2018 2553/2018 2570/2018
Pankaj Pawar Dhairyasheel Deepak Pawar
Patil
1 Advertisement 21.06.2011 08.06.2010 28.01.2004
2 Appointment 12.07.2011 14.06.2010 02.04.2004 02.04.2004
(Promotion)
3 Approval 30.12.2011 19.10.2010 29.12.2009 29.12.2009
4 Enquiry Report of Dy. 10.10.2013 10.10.2013 10.10.2013 10.10.2013
Director of Education
cancelling approvals.
5 Dismissal 19.11.2013 19.11.2013 19.11.2013 19.11.2013
(reversion)
6 Dismissal set aside by 28.03.2014 28.03.2014 28.03.2014 28.03.2014
Judgment and order
passed by School
Tribunal
7 HC judgment and 08.03.2016 08.03.2016 08.03.2016 08.03.2016
order upholding
judgment of School
Tribunal
8 Order of Dy. Director 29.06.2017 29.06.2017 29.06.2017 29.06.2017
of Education
9 Orders in review 16.01.2018 16.01.2018 16.01.2018 16.01.2018
passed by Deputy
Director of Education
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4. It is the case of petitioners that they were appointed in
respondent No.5 School after following due procedure of law. Their
appointments were approved by respondent No.3 Education Officer on the
dates referred in above chart. Intervenors in the present matter made
complaints against the appointment and approval of the petitioners. An
enquiry was conducted by respondent No.2 Deputy Director of Education,
which culminated into revocation of the approvals vide report/order dated
10.10.2013. Consequently, all the petitioners were terminated and they
were required to approach School Tribunals by distinct appeals. Their
appeals were allowed by the Tribunal. Intervenors challenged the
judgments of the Tribunal in the High Court by Writ Petition No.10004 of
2015, which was dismissed, but liberty was given to Deputy Director of
Education to proceed with the report dated 10.10.2013.
5. In view of the liberty given by the High Court, Deputy Director
of Education proceeded with the report and revoked the approvals granted
to the petitioners. Petitioners and respondent - Management were not
heard and they preferred review applications before respondent No.2
Deputy Director of Education. After hearing them, orders of revocation of
approvals were confirmed, thereby dismissing applications for review,
which are under challenge.
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6. Learned Counsel for the petitioners Ms. Pradnya Talekar
submits that respondent No.2 Deputy Director of Education had no power
to revoke the approvals granted to the petitioners vide order dated
29.06.2017. When appointments of the petitioners were made after
following due procedure of law and were approved, it was not open to dig
out old orders of approval. It is further submitted that though the
appointments of the petitioners - teachers were against reserved post,
there is no backlog as on today. It is further submitted that belated
submission of proposals for approval in case of non teaching members /
petitioners was not within their control.
7. Learned Counsel would submit that approvals were granted
subject to undertaking by the Management to comply with the reservation
policy. Necessary compliance has been made. It is further submitted that in
case of appointments of teachers - petitioners, intimation was given to the
Education Department before proceeding for recruitment. Learned Counsel
seeks to rely on the judgments of Murlidhar s/o Datta Kayande Vs. The
State of Maharashtra and others, [Writ Petition No.13707 of 2018 with
connected matters decided on 12.04.2022], Gangadhar Baburao Shere Vs.
The State of Maharashtra and others, [Writ Petition No.11613 of 2015
decided on 04.03.2016], Sau. Jagtap Sunita Manikrao Vs. State of
Maharashtra and Ors. [Writ Petition No.8221 of 2016 decided on
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12.07.2017] and Namdeo s/o Vishnu Sase Vs. State of Maharashtra and
others, [2023(2) Mh.L.J. 598].
8. Per contra, learned AGP Mr. P. S. Patil supports impugned
orders by referring to affidavit-in-reply. He would submit that appointments
of the petitioners were not in accordance with law and necessary enquiry
was not made when approvals were granted to them. Petitioners - Teachers
were not eligible for the appointments against the reserved post. He would
further submit that the appointments of non teaching members was found
to be suspicious and made by manipulation of the record. He would further
submit that it was open for the higher authorities to conduct scrutiny, as
allegations were of fraud, nepotism and discrimination. After giving due
opportunity of hearing, respondent No.2 - Deputy Director of Education
proceeded to revoke the approvals, which cannot be faulted with.
9. He would further submit that in view of the liberty granted by
High Court in Writ Petition No.10004 of 2015, enquiry was conducted and
approvals were revoked by Deputy Director of Education. It is further
submitted that School Tribunal had allowed appeals of the petitioners only
on the ground of violation of principles of natural justice and the issue of
validity of the approvals was not germane before the Tribunal. He would
rely upon judgments in the matter of Priyadarshini Education Trust and
others, Vs. Ratis (Rafia) Bano d/o Abdul Rasheed and others, [2007 (6)
[9]
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Mh.L.J. 667], Afrozkhan s/o Firozkhan Pathan Vs. State of Maharashtra
and others, [2019 (4) Mh.L.J. 933] and Vandana Pandurang Patle Vs.
Kalpana Shikshan Sanstha and others, [2017(6) Mh.L.J. 696].
10. Learned Counsel Mr. N. E. Deshmukh, who appears for
respondent Nos.4 and 5 in all the matters, supports the petitioners and
adopts the submissions.
11. Learned Counsel Mr. Sandesh R. Patil, who appears for the
intervenors, adopts the submissions of learned AGP. He would vehemently
submit that the appointments of the petitioners are backdoor entries. He
would further submit that intervenors are deliberately not impleaded in the
matters, though they are having locus. It is further submitted that
impugned orders are reasonable and are in accordance with law, which call
for no interference. According to him petitioners are closely related to
President Jijabrao Pawar and bypassing statutory procedure, their
appointments were made.
12. Having heard learned Counsel for the litigating sides, what
emerges is that petitioner, Gitanjali Patil, belongs to OBC category and
appointed as Shikshan Sevak against post reserved for ST vide order dated
12.07.2011. Petitioner, Pankaj Pawar, belongs to open category and was
appointed as Shikshan Sevak against category reserved for NT vide order
[10]
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dated 14.06.2010. Advertisement published in newspaper "Apla
Maharashtra" indicates that posts were reserved for ST and NT category.
The interviews were held and other aspirants were also present for
interviews.
13. At the relevant time, there was backlog in the school. No post
for unreserved and OBC category was available. Duly verified roster of the
School by Assistant Commissioner Backward Class Cell, indicates that there
was backlog of posts, 1 - SC, 2 - ST, 1 - VJA, 1 - NT(C) and there was excess
post of 1 OBC and 2 Open.
14. Petitioner/Gitanjali is alleged to be daughter-in-law of brother of the
President Mr. Jijabrao Pawar and Petitioner/Pankaj Pawar is the son of
Mr. Jijabrao Pawar. It is alleged that due procedure of law and policy of
reservation have been bypassed.
15. In case of petitioner, Dhairyashil Patil, it is contended that he
was appointed as Junior Clerk on 02.04.2004. Petitioner, Deepak Pawar, is
stated to be promoted to the post of Senior Clerk from Junior Clerk vide
order dated 02.04.2004. The proposals, in case of these petitioners, were
forwarded on 01.06.2008 belatedly, after four years and two months. The
approvals to their appointments were issued by Education Officer on
29.12.2009. It is alleged that these two petitioners were not in service at
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all and a bogus record is created to show their appointments. Dhairyashil
is President's sister's grandson. Deepak is nephew of the President.
16. It reveals from record that immediately after grant of
approvals, complaints were made by the intervenors before respondent
No.2 Deputy Director of Education for violation of due procedure of law,
policy of reservation, discrimination and nepotism. Respondent No.2 being
Higher Authority of respondent No.3 Education Officer, conducted enquiry
and recommended to revoke the approvals given to the petitioners. The
appointments of Gitanjali and Pankaj were held to be against policy of
reservation and statutory procedure. The appointments of Dhairyashil and
Deepak were castigated to be suspicious. These findings are confirmed by
impugned orders dated 29.06.2017 and 06.02.2018.
17. It reveals from Government Resolution dated 06.02.2012 and
the Corrigendum dated 23.08.2017 referred to by learned AGP that Higher
Officer in the Education Department was having jurisdiction to cancel the
approval, only rider was to extend opportunity of hearing to the concerned
employee. In the present matter, respondent No.2 Deputy Director of
Education received complaints against grant of approvals to the petitioners,
which are serious in nature. By conducting enquiry and extending
opportunity to the petitioners and Management, report was submitted by
respondent No.2 on 10.10.2013. It is not a case of petitioners that there
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was violation of principles of natural justice.
18. In pursuance of the report dated 10.10.2013, services of
petitioners were terminated by distinct orders passed on 19.11.2013. They
preferred separate appeals before School Tribunal, Nashik. Their appeals
were allowed predominantly on the point that procedure for terminating
employees appointed on probation was not followed. Intervenors
challenged judgment of the School Tribunal by preferring Writ Petition
No.10004 of 2015. In the concluding paragraph of the judgment, liberty
was given to present respondent Nos.2 and 3 to take action in pursuance of
report dated 10.10.2013 with a rider to hear the present petitioners.
19. In view of liberty granted by High Court vide its judgment
dated 08.03.2016, referred above, fresh enquiry was conducted by
respondent No.2 Deputy Director of Education into the validity of the
approvals of the petitioners. Intervenors approached the respondent No.2
with the serious allegations against the petitioners challenging orders of
approvals. Enquiry was conducted and by order dated 29.06.2017,
recommendations made on 10.10.2013 were confirmed. Petitioners sought
review of the orders passed on 29.07.2017 on the ground that they were
not extended opportunity of hearing. As per their request, again enquiry
was conducted and by order dated 16.02.2018, the revocations of
approvals were confirmed.
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20. If the sequence of events are considered, then we have no
hesitation to hold that respondent No.2 Deputy Director of Education being
Higher Officer had jurisdiction to look into the serious allegations. It is
pertinent to note that the allegations were of violation of reservation policy,
nepotism and discrimination, which are akin to fraud. Due to intervention
of High Court, power was conferred on the respondent No.2 Deputy
Director of Education. It was not power of review that was exercised by
him as is being submitted by learned Advocate Ms. Talekar.
21. Learned Counsel for the petitioners refers to judgment in case
of Murlidhar s/o Datta Kayande (Supra), and reiterates paragraph Nos.11
and 12, which read as follows :-
"11. Be that as it may, the issue that arises for
consideration of this Court is whether respondent No.2-
Commissioner of Education could have interfered with the
approval granted by the Education Officer on the proposal
submitted by the Management in respect of these two
teachers under any of the provisions of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 as well as the Rules framed under the
said Act or not. The learned Counsel for the respondents
could not point out any provision under the said Act and the
Rules empowering the Commissioner of Education to
interfere with the order of approval granted by the Education
Officer on the proposal submitted by the Management.
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12. In our view, the power to interfere with the decision
taken by any Authority by another authority has to be
expressly provided under the provisions of the statute and
cannot be exercised even if any illegalities are noticed by such
Higher authority unless empowered. The Commissioner of
Education admittedly has neither any appellate jurisdiction
nor any power of review against the order of the Education
Officer."
22. In the above referred matter, approval granted by Education
Officer was revoked by Commissioner of Education. It was not a case of
fraud, violation of policy of reservation or nepotism. Under peculiar
circumstances, the orders of the Commissioner of Education were quashed
holding that there did not exist either appellate or review jurisdiction.
However, case in hand reflects that jurisdiction of the Deputy Director of
Education was derived from express liberty given by High Court and
additionally there were allegations of fraud and nepotism. We do not
accept the submissions of learned Counsel for the petitioners in this regard.
The judgment cited is not applicable to the matter in hand.
23. The appointments of petitioners Pankaj and Geetanjali were
made in the year 2010 and 2011 respectively. At the relevant time,
recruitment was regulated by Section 5(1) of the Maharashtra Employees
of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter
referred to as the "Act") and Rule 9 of the Maharashtra Employees of
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Private Schools (Conditions of Service) Regulation Rules, 1981 (hereinafter
referred to as the "Rules"). It is apposite to refer to unamended Rule 9(8)
and 9(9)(a) of the Rules and Section 5(1) of the Act, which read as
follows :-
"9. Appointment of staff.
(8) For the purpose of filling up the vacancies reserved
under sub-rule(7) the Management shall advertise the
vacancies in at least one newspaper having wide
circulation in the region and also notify the vacancies to
the Employment Exchange of the District and to the
District Social Welfare Officer [and to the associations or
organisations of persons belonging to Backward Classes,
by whatever names such associations or organisations are
called, and which are recognised by Government for the
purposes of this sub-rule]requisitioning the names of
qualified personnel, if any, registered with them. If it is
not possible to fill in the reserved post from amongst
candidates, if any, who are recommended by the
Employment Exchange or the District Social Welfare
Officer [or such associations or organisations as aforesaid]
or if no such names are recommended by the Employment
Exchange or the District Social Welfare Officer [or such
associations or organisation as aforesaid] within a period
of one month the Management may proceed to fill up the
reserved post in accordance with the provisions of sub-
rule(9).
(9)(a) In case it is not possible to fill in the
teaching post for which a vacancy is reserved for a person
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belonging to a particular category of Backward Classes,
the post may be filled in by selecting a candidate from the
other remaining categories in the order specified in sub-
rule(7) and if no person from any of the categories is
available, the post may be filled in temporarily or an year-
to-year basis by a candidate not belonging to the
Backward Classes."
Further, Section 5(1) of the Act, reads as follows :-
"5. Certain obligations of Management of Private
Schools.
(1) The Management shall, as soon as possible, fill in,
in the manner prescribed every permanent vacancy in a
private school by the appointment of a person duly
qualified to fill such vacancy:
[Provided that unless such vacancy is to be filled in by
promotion, the management shall, before proceeding to
fill such vacancy, ascertain from the Education Inspector,
Greater Bombay, [the Education Officer, Zilla Parishad or,
as the case may be, the Director or the officer designated
by the Director in respect of schools imparting technical,
vocational, art or special education,] whether there is any
suitable person available on the list of surplus persons
maintained by him, for absorption in other schools; and in
the event of such person being available, the Management
shall appoint that person in such vacancy.]"
24. When the statutory procedure was applicable, it was
mandatory for the respondent - Management to follow procedure
prescribed in Rule 9(8) and 9(9)(a) of the Rules. As referred above,
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Section 5(1) of the Act mandates that the Management shall as soon as
possible fill in permanent vacancy in the manner prescribed by appointing a
person duly qualified to fill up vacancy. Petitioners Gitanjali and Pankaj
were not eligible, as they are not belonging to ST or NT. If the suitable
candidates to fill in reserved post were not available, then candidates from
other remaining categories in the order specified in sub-rule (7) of Rule 9
were required to be appointed. If such a candidate was not available, then
the post could have been filled in temporarily on year-to-year basis by
candidates of unreserved category. Respondent - Management failed to
follow the procedure contemplated by Rule 9(8) and 9(9)(a) of the Rules.
At the most, petitioners Gitanjali and Pankaj could have been appointed
temporarily on year-to-year basis, however, they were appointed on
probation of three years, which is brazen violation of policy of reservation.
25. It reveals from record that along with petitioner Gitanjali,
some other reserved category candidates had appeared for interview,
namely, Sangle Amit Shantaram (NT), More Ravindra Bhika (NT) and More
Sandip Punaji (NT). It is incomprehensible as to why petitioner Gitanjali
was selected. In the case of petitioner Pankaj, Avinash Pawar (OBC),
Dinesh Pawar (OBC) and Vishwas Patil (OBC) had appeared for interview
and were available, but Pankaj was selected. We find that selection of
petitioners Gitanjali and Pankaj was strategic and we are assigning the
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reasons demonstrating element of nepotism, in the further part of our
judgment.
26. Learned AGP has relied on the judgment of Priyadarshini
Education Trust and Others (Supra). We have gone through paragraph
No.11 of the judgment. The significance of the advertisement and
principles of equality of opportunity under Article 16 and equality before
law contemplated under Article 14 of the Constitution of India have been
discussed. Though facts are different, the principles culled down from
various decisions of the Supreme Court as referred in paragraph No.12
equally apply to the case in hand. In the present case also, nepotism has
been practised by the office bearers of the respondent - Management.
There is every reason to infer that appointment of petitioners would
amount to denial of equal opportunity to the citizens desirous of seeking
employment/other candidates.
27. Learned AGP further relied on the judgment of Afrozkhan s/o
Firozkhan Pathan (Supra). In that case, order of Deputy Director of
Education refusing to grant approval was challenged. Appointment of the
petitioner therein, was made violating policy of reservation when there was
backlog of ST. We prefer to reiterate paragraph Nos.18, 21, 22 and 23, as
follows :-
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"18 The aforesaid Government Resolutions, circulars, of the Act
and Rules show that it is mandatory on the institution, appointing
authority to prepare roster of appropriate points as per the post
sanctioned and then get it approved from the competent authority,
B.C. Cell. Unless and until such approved roster was available with
the institution, it was not possible for the institution to start the
process of appointment and it was also not possible for the
Education Officer to ascertain whether there is backlog of reserved
class. If there is backlog of reserved class, no post from open
category can be filled unless the aforesaid procedure is followed. It
needs to be ascertained as to whether the post, which has fallen
vacant was of reserved class even if one employee from open
category retired and the post had become available. This is because
invariably open category candidates are appointed as against the
reserved category and so it needs to be ascertained whether the
post which has fallen vacant was of reserved category candidate.
Thus, unless and until the roster is prepared and it is got approved,
the Education Officer cannot give permission to the institution to
start process of appointment of the candidate from open category.
In the past, about 15 years back, candidates from reserved category
were not available, but after that the candidates from all the
reserved categories started becoming available and at present, even
the reserved category candidates are jobless. Thus, when there is a
backlog in respect of reservation, steps to fill those posts need to be
taken first. Only when the post for open category candidate is
clearly available, steps can be taken to fill that post. The process of
appointment involves publication of advertisement and if there is
backlog of reserved class, reserved post needs to be advertised and
not open post. In the present matter, it is admitted by the institution
that the Petitioner was appointed as against the post reserved for
S.T. Thus, on this single ground, the approval could have been
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cancelled. Further, in the present matter, there was no roster, there
was no clearance from B.C. Cell before advertisement and even the
Education Officer had not given permission to advertise the post
though he subsequently helped the institution by giving approval to
the appointment of the Petitioner. When appointments are made
without following the said procedure, the Education Officer is not
expected to give approval to such appointments.
21 Both the sides placed reliance on many reported and
unreported cases. The learned counsel for Zilla Parishad and the
learned AGP placed reliance on the following cases in support of
order of cancellation of approval.
a) 2017 (5) All M.R. 649, (Vandana Pandurang Patle
Vs. Kalpana Shikshan Sanstha, Dhanegaon and others)
Nagpur Bench of this Court. In this case, this Court has
held that in view of the Rule 9(9) of the MEPS Rules, 1981,
reserved post can be filled by person belonging to other
reserved category if the person of reserved category is not
available and such post cannot be filled from open
category. This Court held that the appointment made of
open category candidate against the reserved category
candidate cannot sustain in law.
b) 2015 (6) Mh.L.J. 355, (Monali Laxman Nemade Vs.
State of Maharashtra and others) Aurangabad Bench of
this Court. In this case also after considering Rule 9(9) of
the MEPS Rules and Section 5 of MEPS Act, this Court has
laid down that only if reserved category candidate is not
available, open category candidate can be appointed, but
on year to year basis and not on permanent post and that
can be only as per the reservation policy (mentioned
above). It is further laid down that there is no power to the
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Education Officer to give approval in respect of
appointment of open category candidate if it is made
against reserved post.
c) 2007 (6) Bom.C.R. 402, (Asha Shamkumar Patil Vs.
Sadhana Rajan Kamble & Ors) Supreme Court. In this case,
the Apex Court has laid down that in view of Rule 9 of
MEPS Rules, when a post is reserved and a candidate of
that category is not available, only candidate of other
reserved category can be appointed in view of the policy of
the Government and on that post, open category candidate
cannot be appointed.
These three cases are as per the policy decision of the State
Government and as per the spirit of reservation policy.
22 On the other hand, following cases were cited by the learned
counsel for Petitioner:
a) 2015 (1) Bom.C.R 694, (Namita Narayan Jha &
anr. Vs. Education Officer & ors.) Nagpur Bench of this
Court. The facts show that the appointment of open
category candidate was not against the backlog of reserved
category and so the appointment was upheld.
b) Decision given in Writ Petition No.8221 of 2016,
(Sau. Jagtap Sunita Manikrao Vs. State of Maharashtra &
ors.) Principal Seat of this Court. Three years service was
completed by the Shikshan Sevak, he was from open
category and the appointment was upheld when the
appointment was against reserved post. In view of the
decision of the Apex Court in the case of Asha Shamkumar
Patil (supra), this case can be of no help to the Petitioner.
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c) Decision given in Writ Petition No.8818 of 2017
and other writ petitions, which were decided at Principal
Seat on 14th August, 2017. Cancellation of approval to the
appointment of open category candidate was challenged
on other ground, but during pendency, the decision of
cancellation was withdrawn by the authority probably due
to circumstance of absence of following proper procedure
for cancellation.
d) Decision given in Writ Petition No.10133 of 2016,
(Mrs. Shivanee Prasanna Deshpande Vs. State of
Maharashtra & ors.) decided with other writ petitions at
Principal Seat of this Court. This Court held that
cancellation of approval was not possible even when
appointment was against reserved category. This case is of
no use to the Petitioner in view of the decision of the
Supreme Court in the case of Asha Shamkumar Patil
(supra).
e) Decision given in Writ Petition No.4455 of 2009,
(Sandeep S/o Damodar Chavan Vs. State of Maharashtra
and others) decided at this Bench and decision given in
Writ Petition No.3945 of 2017, (Anilkumar s/o Nivruttirao
Boiwar Vs. State of Maharashtra and others) decided at
this bench. It appears that this Court obtained undertaking
from the institution to fill backlog in future and appointed
candidates of open category were protected. In view of the
decision of the Supreme Court in the case of Asha
Shamkumar Patil (supra) this decision also cannot help
the Petitioner.
f) 1978 AIR (SC) 851, (Mohinder Singh Gill Vs. Chief
Election Commissioner, New Delhi) Supreme Court. By
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referring some observations, the learned counsel for
Petitioner submitted that only on the ground of
appointment as against surplus teachers, the present
matter could have been considered by the authority, but
the matter is decided on other grounds like reservation
policy and so the decision is not tenable. This submission
is not at all acceptable. In view of the aforesaid policy of
the State Government, this Court holds that it was the
duty of the authority to make inquiry into such matters
and take decision like cancellation of approval.
23 In view of the discussion made above, this Court holds that
no relief can be given to the Petitioner. This Court further holds
that criminal action is warranted as against the Management for
aforesaid illegal activity for aforesaid offences and other. Action
also needs to be taken against the Petitioner and the Education
Officer concerned as apparently there was a conspiracy to do such
illegality, which amounts to fraud. Steps are to be taken by the
Deputy Director of Education to see that criminal action is taken.
During investigation, the investigating agency can trace out the
other persons involved in the offence. The amount already paid by
the Government as a salary in respect of the Petitioner is to be
recovered from the institution. Further possible action also can be
taken against the Respondent/institution. The petition is
dismissed. Interim relief already granted is vacated. A copy of
order to be sent to Deputy Director of Education of this region."
28. We propose to follow the view taken by the coordinate bench
in Afrozkhan s/o Firozkhan Pathan (Supra). The principles laid down
therein would apply with equal force to the case in hand. It is useful to
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refer to the judgment in the matter of Asha Shamkumar Patil Vs. Sadhana
Rajan Kamble & Ors.(Supra). In that matter appellant before the Supreme
Court was of unreserved category but was appointed against post of
reserved category. Her appointment was challenged by the respondent
No.1, who was from reserved category, but could not be selected to the post
in question.. High Court allowed writ petition and quashed the
appointment of appellant. Being aggrieved, appellant had approached
Supreme Court. Her appeal was dismissed confirming the judgment of
High Court mainly for following reasons :-
"6. Having heard the learned Counsel for the parties and after
going through the relevant rules and resolutions, we are of the
view that no interference is called for in the present case.
Admittedly, the appellant is from the general category. From the
advertisement in the daily newspaper, it would be clear that the
posts for which teachers were wanted were reserved for
candidates belonging to ST/DT/NT and other backward classes.
However, it was also clarified that if candidates from the aforesaid
reserved category were not available, then, candidates belonging
to scheduled caste would be considered. In this connection, we
may also refer to Rule 9(a) of the Maharashtra Employees of
Private Schools, 1981, which reads as follows:
Rule 9(a) - In case it is not possible to fill in the
teaching post for which a vacancy is reserved for a
person belonging to a particular category of Backward
Classes, the post may be filled in by selecting a
candidate from the other remaining categories in the
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order specified in Sub-rule (7) and if no person from
any of the categories is available, the post may be filled
in temporarily on an year to year basis by a candidate
not belonging to the Backward Classes.
A plain reading of Rule 9(a), which deals with
appointment of staff of a school, would show that in
case it is not possible to fill in the teaching post for
which a vacancy is reserved for a person belonging to a
particular category of candidates, the post may be filled
in by selecting a candidate from the other remaining
categories in the order specified in Sub-rule (7) and if
no person from any of the categories is available, the
post may be filled in temporarily on an year to year
basis by a candidate not belonging to the Backward
classes.
7. From the above, it is, therefore, clear that the post may be
filled in by a candidate belonging to the other remaining
categories if no person is available from ST/DT or NT categories. If
no person is available from any of the categories, then, the said
post can be filled in temporarily on a year to year basis by a
candidate not belonging to the classes of candidates mentioned in
Rule 9(a). Here, in the present case, the appellant was appointed
on a permanent status as a teacher in the said school, which under
Rule 9(a) is not permissible.
Relying upon the ratio, the appointment of petitioners Gitanjali
and Pankaj cannot be sustained.
29. It is necessary to refer to the judgment pointed out by learned
Counsel for the petitioner in this regard. Reliance is placed on Gangadhar
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Baburao Shere (Supra). We have considered paragraph Nos.15, 16 and 17,
which read as follows :-
"15] We have heard the learned counsel appearing for the
petitioner,learned counsel appearing for the respondent
management, and the learned AGP appearing for the respondent
nos. 1 and 2. With their able assistance, perused the pleadings in
the petition, annexure thereto, reply filed by the respondent no.
2, and the relevant provisions of the MEPS Rules, 1981, and also
the Judgments of the Full Bench and the Division Bench cited
across the bar by the learned counsel appearing for the
petitioner. It is not in dispute that, the respondent no. 3 sought
permission from the Education Officer to fill in two vacant posts
of Assistant Teachers. Admittedly, out of two posts, the
permission was granted by the Education Officer to fill in the
said post was subject to fill in one post from S.T. category.
Admittedly, the advertisement was issued advertising the posts,
one for S.T. category. However, according to the petitioner and
the respondent no. 3, suitable candidate from the said category,
possessing B.Sc. B.Ed. qualification had not applied for the said
post, and therefore, in order to avoid loss to the students, the
management proceeded to appoint the petitioner, who is
teaching science and mathematics subjects. It is stated that, the
petitioner is the only teacher, who is teaching the science and
mathematics subject. Therefore, it is not in dispute that, the
advertisement was issued taking prior permission of the
respondent no. 2, and after following procedure, the posts were
filled in. However, as directed by the respondent no. 2 to fill in
one post from S.T. category, the same has not been adhered to
by the respondent no. 3. There is no denial to the fact that, the
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candidate, possessing B.Sc. B.Ed. qualification from S.T.
category, did not apply in pursuant to the advertisement issued
by the respondent no. 3
16] It is not in dispute that, the petitioner has been
appointed as Shikshan Sevak on 1st February, 2011. He has
rendered three years satisfactory services. Admittedly, the
Respondent - management was supposed to fill in the vacancy
from the S.T. category, however, circumstances are brought on
record that, the candidate from the said category was not
available, therefore, the petitioner was appointed. The learned
counsel appearing for the petitioner has invited our attention to
the judgment of the Full Bench of Bombay High Court in the
case of Ram Avadh Mahel Pal V/s Shivdutta Educational Trust
and ors. [2007(6) ALL M.R. 716] and submits that, on
completion of three years successful period, the petitioner who
was appointed as Shikshan Sevak on regular basis, on
completion of the said period, deemed to have been appointed
on regular basis. He also invited our attention to the another
judgment in the case of Lalitha Thutpi V/s C.B. Karkhanis,
Presiding officer, School Tribunal Bombay and others, [1998(1)
Mah.L.R.235] and submits that, in the facts of that case, the
Division Bench took a view that, if the qualifications are
possessed by the candidates and two years probation period is
completed, in that case, such appointment deserves to be
protected, by directing the Respondent - Management to carry
forward the post for the reserved category.
17] Upon perusal of those judgments, and if the ratio laid
down in those judgments, is applied in the present case, we find
that, in the present case also, the petitioner has completed three
years service as Shikshan Sevak, and there is assurance by the
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Respondent - management that, on immediate next vacancy, the
Management will appoint the candidate from S.T. category.
Therefore, for the reasons aforesaid and since the petitioner has
completed more than three years probation period and possess
requisite qualification, the petitioner is entitled for the relief
claimed in the Petition."
30. In the cited case, permission was granted by the Education
Officer to fill in one post, subject to filling in another post from ST category.
The candidate from ST category was not available and the petitioner was
appointed, who completed period of probation. Under these peculiar facts,
the petition was allowed and Education Officer was directed to reconsider
the proposal. The facts in hand are totally different. Section 5(1) of the Act
and Rule 9(8) and 9(9)(a) of the Rules were not pressed into service in that
matter. Besides, the Maharashtra State Public Services (Reservation For
Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Backward Category And Other Backward Classes)
Act, 2001, (hereinafter referred to as the "Act of 2001"), with which we are
dealing, was not considered by the Division Bench. This judgment is of no
avail to the petitioners.
31. Reliance is also placed on the judgment of Santosh Uttamrao
Somwanshi and others Vs. The State of Maharashtra, [Writ Petition
No.203of 2016 decided on 02.11.2017], in which petitioner of open
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category was appointed against reserved category. In that case also
implication of Rule 9 was not considered. Under peculiar circumstances
stated in paragraph No.4, the matter was decided in favour of the
petitioner. It cannot enure to the benefit of the petitioner.
32. Lastly, reliance is placed on Sau. Jagtap Sunita Manikrao
(Supra), which also cannot be said to have laid down law if we consider
paragraph No.6 of its judgment. It is also not applicable to the present case.
It is tried to be persuaded by learned Counsel for the petitioners that as of
today there is no backlog. It is a matter of policy of reservation. There is
violation of statutory procedure. Petitioners Gitanjali and Pankaj have
deprived of two candidates of reserved category. This loss cannot be
patched up by subsequent conduct. We do not approve the submission.
33. It is not out of context to refer to Sections 4(1) (3) and 6(1) of
the Act of 2001. Sections 4(1)(3) and 6(1) of the Act of 2001 reads thus :-
"4. (1) Unless otherwise provided by or under this Act, the
posts reserved for the Scheduled Castes, Scheduled Tribes, De-
notified Triubes (Vimukta Jatis), Nomadic Tribes, Special
Backward Category and Other Backward Class shall not be filled
in by the candidates not belonging to that caste, tribe, category
or class for which the posts are reserved.
(2) .............................
(3) Reservation specified for the categories mentioned at
serial numbers(3) to (6) (both inclusive) in the table under sub-
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section (2) shall be inter transferable. If suitable candidates for
the posts reserved for any of the said categories are not available
in the same recruitment year, the posts shall be filled by
appointing suitable candidates from any of the other said
categories.
(4) .............................
(5) .............................
6.(1) If in respect of any recruitment year, any vacancy
reserved for any category of persons under sub-section (2) of
Section 4 remains unfilled, such vacancy shall be carried
forward upto five years in case of direct recruitment and three
years in case of promotion:
Provided that, on the date of commencement of this Act, if
any Government order regarding filling up the posts, in case of
non availability of Backward Class candidates are in force, such
Government orders shall continue to be in force unless modified
or revoked, by Government."
34. There is violation of sub-section(1), sub-section (3) of Section
4 as well as Section 6(1) of the Act of 2001. In case of violation of the
provisions of the Act, a penalty is attracted under Section 8 of the Act of
2001, which is as follows :-
"8.(1) Any appointing authority or officer or employee
entrusted with the duty or responsibility under sub-section(1) of
section 7 who willfully acts in a manner intended to contravene
or defeat the purposes of this Act shall, on conviction, be
punished with imprisonment for a term which may extend to
ninety days or fine which may extend to five thousand rupees,
or with both."
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The appointments of the petitioners/teachers are against
above referred provisions and they attract penalty under Section 8 of the
Act of 2001.
35. Present case demonstrates violation of statutory procedure of
Rule 9(8), 9(9)(a) read with Section 5(1) of the Act. There is violation of
policy of reservation. If there is a violation of policy of reservation and
Sections 4, 6 and 8 of the Act of 2001, then that amounts to fraud on
Constitution. Any other minor aberrations in the procedure of selection
undertaken by the Management may be tolerated, but not that of policy of
reservation at any cost. Therefore, the Deputy Director of Education has
rightly exercised the jurisdiction and revoked the approvals of Gitanjali and
Pankaj. The statutory procedure was bypassed and approvals were
granted, which is discriminatory. It violates the principles of privilege of
participation in the selection process.
36. There is one more aspect which needs a mention. Petitioners
Dhairyashil and Deepak were appointed on 02.04.2004 and their proposals
were forwarded after about four years, which delay has not been explained
by the respondent - Management. It has been reported that camps are
organized for the purpose of considering the proposals of approval
immediately after their appointments. Despite that no endeavour was made
by the Management to submit proposals which is very startling. This
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conduct creates suspicion regarding appointments of those petitioners. The
intervenors have rightly taken objection to their appointments and the
Deputy Director of Education is justified in revoking the approvals.
37. A very glaring and undisputed fact reveals from record.
Petitioner Gitanjali is daughter-in-law of brother of President. Petitioner
Pankaj is the son of the President. Petitioner Dhairyashil is President's
sister's grandson and Deepak is nephew of the President. These are
clinching circumstances to infer nepotism and discrimination. If it is a case
of fraud, nepotism coupled with violation of policy reservation, then
Deputy Director of Education is justified in revoking the approvals. We find
that all the petitions are devoid of any merits. Hence, we pass following
order :-
ORDER
i) All the writ petitions are dismissed.
ii) Civil Applications for intervention are disposed of.
iii) Rule is discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
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wp-2549-2018, 2550-2018, 2553-2018 and 2570-2018.odt LATER ON :-
After pronouncement of the judgment, learned Counsel for the petitioners seeks extension of the interim protection, which is in operation till this date.
As the interim order of status quo is in operation till this date, we extend the interim protection for further four (4) weeks. Thereafter, this extension shall stand vacated automatically.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
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