Bombay High Court
Abhijit Ashok Waje vs The State Of Maharashtra Thr The ... on 21 January, 2022
Author: Amit B. Borkar
Bench: Nitin Jamdar, Amit B. Borkar
Digitally signed by
SMITA SMITA JOHNSON
JOHNSON GONSALVES
Date: 2022.01.24
GONSALVES 17:03:55 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8881 OF 2021
Abhijit Ashok Waje .. Petitioner
v/s.
The State of Maharashtra, through
Secretary School Education And Ors. .. Respondents
WITH
WRIT PETITION NO.6262 OF 2021
Mahesh Namdeo Phule .. Petitioner
v/s.
The State of Maharashtra, through
Secretary And Ors. .. Respondents
WITH
WRIT PETITION NO.137 OF 2022
Mahadev Balkrishna Dhamange .. Petitioner
v/s.
The State of Maharashtra, through Secretary
School Education And Sports Dept. Ors. .. Respondents
WITH
WRIT PETITION NO.139 OF 2022
Abhijit Anandrao Suryawanshi .. Petitioner
v/s.
The State of Maharashtra, through
the Secretary And Ors. .. Respondents
WITH
WRIT PETITION NO.9781 OF 2021
Vitthal Tayappa Memane .. Petitioner
v/s.
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The State of Maharashtra, through
Secretary School Education And Ors. .. Respondents
....
Mr. Nikhil Waje, i/b. Vishesh Srivastav, for the Petitioner in WP/8881/2021.
Ms. Pranita P. Hingmire, for the Petitioner in WP/6262/2021.
Mr. Prashant Bhavake, for the Petitioners in WP/137/2022 and in WP/ 139/2022.
Mr. Nikhil Waje, for the Petitioner in WP/9781/2021.
Mrs. P.J. Gavhane, AGP, for State in WP/8881/2021, WP/137/2022 and in WP/139/2022.
Mr. N.C. Walimbe, AGP, for State in WP/6262/2021.
Mr. N.K. Rajpurohit, AGP, for State in WP/9781/2021.
....
CORAM: NITIN JAMDAR & AMIT B. BORKAR JJ.
DATE : 21 JANUARY 2022.
(Through Video Conferencing) P.C:-
In these five petitions, the common factor is the challenge to the action taken by the Deputy Director of Education while allotting Shalarth ID to the Petitioners. The question is regarding the purpose of Shalarth ID and the scope of the enquiry while maintaining the Shalarth ID.
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2. The petitioners contend that maintaining Shalarth ID is a technical and clerical function, and no review of approval granted to the appointment is contemplated and permitted at this stage. A reply affidavit is tendered by the Deputy Secretary, School Education and Sports Department, Government of Maharashtra, dated 20 January 2022.
3. There are two concepts. First, the entry and maintaining of the Shalarth ID as per the Government Resolution dated 7 November 2012. Second, taking a review of the approvals granted by the Education Officers.
4. The Shalarth ID is a code given to the teaching and non- teaching staff of aided schools in the State of Maharashtra. The primary purpose is to create a database and facilitate the paperless disbursement of the grant, particularly the salary grant. Regarding eligibility to receive such a grant, the Education Officers grants approval to the appointments of the teaching and non-teaching staff made by such aided institutions. Instead of making physical registers, an ID Code is created. The Government Resolution, by which this concept was introduced, is of 7 November 2012.
5. Regarding taking a review of the approvals granted by the Education Officer by the Deputy Director, the reply affidavit states 3 of 11 sg 4/11 2.wp8881-21&Ors.doc that it is specified in the Government Resolution dated 6 February 2012 read with corrigendum dated 23 August 2017. It is contended by the learned AGP that Government Resolution dated 6 February 2012, along with the corrigendum dated 23 August 2017, permits the Authorities can take a review of the approvals granted. The learned AGP further submitted a review of all approvals at the time of entering the data to maintain Shalarth ID can be made. The reply affidavit has referred to a document dated 29 March 2019 issued by the Commissionerate of Education. The learned AGP states that the Government Resolution dated 20 March 2019 is the source for issuing this curriculum dated 29 March 2019. According to the learned AGP, Clause 1 of the Government Resolution dated 20 March 2019 permits the Deputy Director to take a decision regarding the approval while entering the data in Shalarth ID. The learned AGP has also drawn our attention to the preamble of the Government Resolution dated 20 March 2019.
6. Firstly, as the learned Counsel for the Petitioners have pointed out, the Division Bench of this Court in the order passed in Writ Petition No.10133 of 2016 dated 1 August 2017, which was followed in O.S. Writ Petition No.1380 of 2019 by order 30 March 2021 has held that the review of approvals already granted is only limited grounds and not a routine review. Secondly, the document relied upon by the learned AGP dated 29 March 2019 issued by 4 of 11 sg 5/11 2.wp8881-21&Ors.doc Commissionerate of Education not a Government Resolution but circular by one officer.
7. The learned Counsel for the Petitioners have also submitted that earlier, as per the Government Resolution dated 7 November 2012, this task was being done by the Education Officer, and as the preamble of the Government Resolution dated 20 March 2019 would show since the work of entering the data is over the duty is disbanded and what was being done by the Education Officer earlier is to be done by the Deputy Director. According to the learned Counsel for the Petitioners, this Resolution nowhere contemplates or confers powers on the Deputy Director to take a review of all approvals granted at the time of making an entry in Shalarth ID.
8. Furthermore, the Division Bench of this Court in Writ Petition No.11244 of 2019 and others order dated 8 October 2021, and in Writ Petition No.6897 of 2021 order dated 20 October 2021 has taken the view that such exercise is not permissible. The Division Bench in Writ Petition No.6897 of 2021 in paragraphs 6 to 9 has stated as under:-
"6 Mr. Patil, the learned counsel for the Petitioners in this bunch of petitions, invited our attention to the judgment of this Court declared on 23.08.2021 in Writ Petition No.2003/2020 in the case of Vilas J. Londe Vs. State of Maharashtra & Ors. and tendered a copy of order 5 of 11 sg 6/11 2.wp8881-21&Ors.doc dated 08.10.2021 passed by this Court in Writ Petition No.11244/2019 in the case of Sanjay Pandurang Powar Vs. State of Maharashtra and other companion matters and would submit that this Court has already held that once an approval is granted by the Education Officer to the appointment of the Petitioners on non teaching posts, the Dy. Director of Education has no jurisdiction to refuse to enter the name of the employees in Shalarth Pranali. He further submits that the Government Resolutions referred to and relied upon in the impugned orders dated 22.09.2020 in each of the petitions are not applicable to the Petitioners. He submits that the validity of the similar orders has been already dealt with by this Court in the above referred judgments and it is categorically held that none of the Government Resolutions are applicable. Even otherwise, the learned AGP for the State could not distinguish the judgment of this Court in the case of Vikas Londe (supra) and Sanjay Pawar (supra).
7 In our view, both these judgments and orders would squarely apply to the facts of the present cases. We do not propose to take a different view in the matter. The Dy. Director of Education could not have refused to enter the names of the Petitioners in Shalarth Pranali once the Education Officer has already granted approval. The impugned order passed by the Dy. Director of Education on 22.09.2020 is contrary to the principles and law laid down by this court in the above judgment and order. The show-cause notices issued by the Dy. Director of Education are also without jurisdiction.
8 In our view, neither the above referred judgment / orders are challenged nor stayed by the Hon'ble Supreme Court. It is noticed by this Court that though this Court has repeatedly taken a view that once an approval is granted by the Education Officer, the Dy. Director of Education 6 of 11 sg 7/11 2.wp8881-21&Ors.doc could not have refused to enter the names of the employees in the Shalarth Pranali and could not have refused to issue Shalarth ID by passing cyclostyled orders that have been passed by the Dy. Director of Education, contrary to the principles and law laid down by this Court.
9 We hope that the learned AGP would issue appropriate directions to the Dy. Director of Education as well as the concerned officer to comply with the orders passed by this Court who shall not pass such orders, contrary to the law laid down by this Court, in future and to avoid further litigation at the cost of public exchequer and to save time of this Court."
It is, therefore, clear that there has been a consistent view of this Court that at the time of making an entry in Shalarth ID if the approval is granted, the Deputy Director could not have refused to enter the names.
9. However, it cannot be said that approval, once granted, cannot be reviewed at all. It is also not the contention of the learned Counsel for the Petitioners. Their objection is to the wholesale review of all approvals at the time of entering the data in Shalarth ID. This exercise cannot be done solely on the basis of the Circular of 29 March 2019 as it is not a Government Resolution issued under the name of Governor of Maharashtra, but a circular by an officer of State Government which would not have a force of law as a Government Resolution. Therefore, unless and until a Government Resolution is issued, which at present is not being placed before us, the review of 7 of 11 sg 8/11 2.wp8881-21&Ors.doc approvals will have to be done as per the Government Resolution placed on record that is 6 February 2012, read with corrigendum dated 23 August 2017, as interpreted by this Court to be done in the limited ambit. Also, this exercise is to be done in different circumstances and for which a different methodology is prescribed. If the State Government has to review the approval granted and set aside the same on the ground that it was based on misrepresentation or fraud, the separate Government Resolution and procedure for that purpose are contemplated . The power cannot be exercised at the stage when it was not conferred. Furthermore, the recent decisions of this Court referred to above, from where passages have been quoted, have also clarified the position.
10. We would have proceeded to pass final orders, but the learned AGP on the instructions of the Deputy Secretary states that the State Government is in the process of filing and challenging said view taken by this Court in respect of Shalarth ID by approaching the Supreme Court. As of today, the view taken by this Court and the position referred to above continues; therefore, while we defer the hearing of these petitions by 12 weeks, we issue the following interim directions in each of these Petitions, subject to further orders.
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11. Writ Petition No.8881 of 2021
The Petitioner was granted approval. However, the entry in Shalarth ID is not made, and the proposal has been returned by Respondent No.4, the Deputy Director, to Respondent No.2, the Education Officer. The name of the Petitioner in the Shalarth ID be incorporated by the Respondents within a period of two weeks.
12. Writ Petition No.6262 of 2021 The Petitioner has been granted approval on the post of Assistant Teacher. However, in Shalarth ID, the same is reflected as Shikshan Sevak. The Respondents will take corrective steps to bring Shalarth ID in consonance with the approval granted within two weeks.
13. Writ Petition No.137 of 2022 In this case, by the impugned order, at the stage of entering the name of the Petitioner in Shalarth ID, the Deputy Director held an enquiry and set aside the approval and, therefore, no entry in Shalarth Id was made. The effect of the impugned order is stayed, and it is directed that the Petitioner's name shall be entered into the Shalarth ID based on the approval already granted.
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14. Writ Petition No.139 of 2022
In this petition, the Petitioner has been granted approval as Junior Clerk. However, no entry has been made in Shalarth ID by the Deputy Director. The Deputy Director will take necessary steps in that regard within two weeks, in light of what is observed above in this order.
15. Writ Petition No.9781 of 2021 The Education Officer granted the approval to the Petitioner's appointment as Junior Clerk by order dated 30 September 2020, which after further proceedings, at the time of making an entry in Shalarth ID, the approval itself was rejected, and the Education Officer was informed that the Petitioner's name could not be entered into Shalarth ID. The impugned order dated 26 August 2021 is stayed. It is directed that the entry in Shalarth ID in respect of the Petitioner be made, pursuant to the order dated 30 September 2020.
16. We, however, make it clear that it will be open to the Respondent State to take necessary steps as regards the approval granted after following the procedure in respect of the review of approvals as laid down in the concerned Government Resolutions within the parameters set by this Court which we have referred to 10 of 11 sg 11/11 2.wp8881-21&Ors.doc above, after complying with the interim order, irrespective of interim order granted and the pendency of these Petitions.
17. Stand over to twelve weeks.
(AMIT B. BORKAR J.) (NITIN JAMDAR, J.)
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