Bombay High Court High Court

2 The Head Master vs The State Of Maharashtra on 13 October, 2010

Bombay High Court
2 The Head Master vs The State Of Maharashtra on 13 October, 2010
Bench: S.B. Deshmukh, Shrihari P. Davare
                                         1




                                                                            
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 AURANGABAD BENCH, AURANGABAD




                                                    
                    WRIT PETITION NO.  5344 OF 2009




                                                   
    1          Anjuman Taraqqui-E-Taleem,
               Kasolda, Taluka Erandol,
               District Jalgaon,
               through its Chairman,




                                      
               Samad Ali Haji Nazar Ali,
               age 65 years, occupation
                      
               Chairman, Resident of
               Syed Mohalla,
               Kasoda, Taluka Ernadol,
                     
               District Jalgao.

    2          The Head Master,
               Haji N.M. Sayyed Urdu High School,
      


               Kasoda, Taluka Erandol,
               District Jalgaon.                                   ...Petitioner
   



                       
               VERSUS





    1          The State of Maharashtra,
               through Secretary,
               Education Department,
               Mantralaya, Mumbai-400 008,





    2          The Education Officer (Secondary),
               Zilla Parishad, Jalgaon                              ...Respondents



                                        .....
    Smt. A.N.Ansari,  advocate for the petitioners
    Shri S.K.Kadam, A.G.P.  for the respondents
                                        .....




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                                    CORAM  :     S.B.DESHMUKH




                                                          
                                                          AND
                                                         SHRIHARI P.DAVARE, JJ.

DATE OF RESERVING
THE JUDGMENT : 06.10.2010
DATE OF PRONOUNCING

THE JUDGMENT : 13.10.2010

ORAL JUDGMENT : (Per Shrihari P. Davare, J.)

1 Rule. Rule made returnable forthwith. With the consent of

the learned counsel for the parties, the petition is taken up for final

hearing at the admission stage.

2 By the present petition, filed by the petitioners under

Article 226 of the Constitution of India, the petitioner by prayer

clauses ‘B’ and ‘C’ prayed as follows :-

“(B) To quash and set aside the impugned letter
dated 24.4.2009 passed by Respondent no.2 by issuing
any appropriate writ, order or direction as the case may
be.

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(C) The Respondent no.2 be directed to grant the
approval to the appointment of Shri Shaikh Chiragodiin

Kamruddin from the date of appointment dated
21.6.2007 by issuing any appropriate writ, order or
direction as the case may be. ”

FACTUAL MATRIX :-

3 Petitioner no.1 is the Educational Institution receiving

100% grants and petitioner no.2 is the School run by petitioner no.1;

whereas respondent no.1 is the State of Maharashtra, represented

through its Secretary, Education Department, Mantralaya, Mumbai

and respondent no.2 is the Education Officer (Secondary), Zilla

Parishad, Jalgaon.

4 In the year 2007, one vacancy of S.S.C., D.Ed. was

created in petitioner no.2 School on account of promotion of one

Shaikh Nuroddin Gaffar, who was promoted to Secondary School in

the Graduate pay scale. Hence petitioner no.1 Management

approached to the respondents by letter dated 18.5.2007 seeking

permission to fill up the said post and copy of the said letter dated

18.5.2007 is annexed at Exh. ‘A’ collectively. In response, the

respondent no.2 granted said permission by letter dated 25.5.2007

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and copy thereof is annexed at Exh. ‘A’ collectively.

5 Pursuant to the said permission, the petitioners gave an

advertisement in local daily news paper, ‘Gaokari” for filling the said

post and copy of the said advertisement is annexed at Exh. ‘B’.

Accordingly, interviews of nine candidates were conducted on

20.6.2007 and depending upon the performance, one of the said

candidates, namely Shaikh Chiragoddin Kamroddin was selected.

Copy of the said performance sheet is annexed at Exh. ‘C’

collectively. Hence, petitioner no.1 Management decided to appoint

the said selected candidate as Shikshan Sevak (Primary) and

resolution to that effect came to be passed on 20.6.2007 and copy

thereof is annexed at Exh. ‘C’ collectively (page no.17).

6 In pursuance of the said selection and resolution, Shaikh

Chiragoddin Kamroddin came to be appointed by the petitioners by

appointment letter dated 21.6.2007 as Shikshan Sevak (Primary) for

the period of three years from 21.6.2007 and copy of the said

appointment letter is annexed at Exh. ‘D’.

7 Thereafter, the petitioners submitted the proposal for

approval of the appointment of Shaikh Chiragoddin Kamroddin as

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afore said, by letter dated 26.7.2007, which was tendered to

respondent no.2 on 19.9.2007 and the same was pending approval

with respondent no.2 since September, 2007.

8 The other relevant facts, which are necessary to mention,
th
are that petitioner no.1 Management is running the classes from 5

th th
to 10 standards and at the time of granting additional division of 8

standard in the year 1997, the Education Officer put the condition

that the surplus teacher, namely Mohammad Haroon be absorbed

and the petitioner/Management complied with the said condition.

Prior to absorption, said Mohammad Haroon was serving with Anglo

Urdu High School, Chalisgaon and he was declared surplus in the

school and was absorbed in the school of present Management.

However, in the year 2007, a vacancy arose in Anglo Urdu High

School i.e. parent school of Mohammad Haroon, and hence, he

expressed his desire to be repatriated to his parent school by

application dated 15.2.2007.

9 Accordingly, after ascertaining the factual position, the

Education Officer granted the same vide letter dated 23.4.2007

asking the petitioner to relieve him forthwith. Accordingly, said

surplus teacher was relieved from the present school on 5.5.2007

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and copy of the order sending the surplus teacher to his parent

school, passed by the Education Officer on 23.4.2007 is annexed at

Exh. ‘F’. However, since said Mohammad Haroon was not absorbed

in his parent school, respondent no.2 asked the petitioner to release

his salary till his absorption in his parent school by letter dated

20.9.2007 and copy thereof is annexed at Exh. ‘G’.

10

Besides, although said Mohammad Haroon was relieved

from the petitioner school and was not absorbed in the parent

school, he filed Writ Petition No. 5812 of 2007 before this court and

this court directed his absorption in the parent school. Said direction

was not complied with, and therefore, Contempt Petition No. 237 of

2008 was filed, and ultimately, the Education Officer came with the

order dated 17.3.2009 about absorption of said Mohammad Haroon.

11 After absorption of Mohammad Haroon, as afore stated,

the petitioner wrote a letter to respondent no.2 on 26.3.2009 about

approval of Shaikh Chiragoddin Kamroddin and copy thereof is

annexed at Exh. ‘H’. However, in response to the said letter of

petitioner, respondent no.2 sent the communication dated 24.4.2009

canceling the permission granted to fill up the post after publishing

the advertisement on 25.5.2007 and asked the petitioner to submit

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fresh recommendation for permission.

12 Being aggrieved and dissatisfied by the afore said

impugned communication, dated 24.4.2009, the petitioners have

challenged the same in the present petition.

SUBMISSIONS :-

13 Learned counsel for the petitioners canvassed that on the

promotion of Shaikh Nuroddin Gaffar on 10.1.2007, a post of S.S.C.

D.Ed. of Shikshan Sevak was created in petitioner no.2 School, and

therefore, although the petitioner sought permission from respondent

no.2 to fill up the said post after publishing the advertisement therefor

by letter dated 18.5.2007, and although permission was granted by

respondent no.2 to the petitioner therefor by letter dated 25.5.2007,

and although accordingly the petitioners published the advertisement

for the said post in local daily news paper ‘Gaokari’ on 14.6.2007, to

which nine candidates responded, who were interviewed on

20.6.2007, out of them, a candidate namely Shaikh Chiragoddin

Kamroddin was selected considering his performance and although

appointment letter was issued to the said appointee by petitioners on

21.6.2007, appointing him as Shikshan Sevak for the period of three

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years in petitioner no.2 school, and thereafter although proposal for

his approval was sent by petitioner no.2 on 26.6.2007, respondent

no.2 kept the said proposal pending for the substantial period of

about two years and abruptly issued the impugned communication

dated 24.4.2009, thereby canceling the permission granted to the

petitioners by letter dated 25.5.2007 and also directing to submit

fresh recommendation for permission, which is arbitrary and illegal.

14 Learned counsel for the petitioners submitted that the said

action of issuance of communication dated 24.4.2009 by

respondent no.2 is unfair and unreasonable. It is also submitted that

pursuant to the permission granted by respondent no.2, selection

process was initiated by the petitioners, and accordingly, Shaikh

Chiragoddin Kamroddin was selected and he came to be appointed

on 21.6.2007 for the period of three years in petitioner no.2 school

and thereafter abruptly respondent no.2 issued the communication

dated 24.4.2009 and canceled the same in response to the proposal

of approval sent by the petitioners, having no rationale therefor, and

therefore, submitted that the said impugned communication dated

24.4.2009 deserves to be quashed and set aside.

15 Respondent no.2 filed affidavit in reply, which is sworn in

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by Ramesh Gulab Jaiswal, presently working as Superintendent in

the office of Education Officer (Secondary), Zilla Parishad, Jalgaon

and thereby narrated the afore said facts and opposed the present

petition.

16 Learned A.G.P. appearing for the respondents canvassed

that Mohammad Haroon, who was originally serving as Assistant

Teacher and who was rendered surplus, was absorbed in petitioner

no.2 school run by petitioner no.1 Management on 1.12.1997 and

since then he was serving with the petitioners. However, in the year

2007, one vacancy arose in Anglo Urdu High School, Chalisgaon,

and therefore, said Mohammad Haroon applied for repatriation to his

parent school, and hence, respondent no.2 by order dated

23.4.2007 directed that Mohammad Haroon be repatriated to his

parent school, and accordingly, he was relieved by the petitioner

Institution on 5.5.2007. However, it is submitted that Anglo Urdu High

School, Chalisgaon had not re-absorbed him, and hence, petitioner

Institution was directed to continue to draw his salary from their

estiblishment until said Mohammad Haroon was absorbed by Anglo

Urdu High School, Chalisgaon.

17 It is further submitted that in the mean while, due to

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repatriation of Mohammad Haroon, the petitioner applied to

respondent no.2 seeking permission to fill up the vacancy arose due

to repatriation of Mohammad Haroon, and accordingly, said

permission was granted assuming Mohammad Haroon would be

reabsorbed by his parent school. However, it is further submitted

that since Mohammad Haroon was not accommodated by Anglo

Urdu High School, Chalisgaon, petitioner Institution was directed to

draw his salary from their establishment until such re-absorption. It

is further submitted that mean while the petitioner proceeded to

appoint Shaikh Chiragoddin Kamroddin as Assistant Teacher in the

vacancy which arose, if Mohammad Haroon was absorbed by his

parent school. Hence, learned A.G.P. for the respondents submitted

that since the salary of Mohammad Haroon was being drawn from

the establishment of petitioner Institution, the approval to the

appointment of Shaikh Chiragoddin Kamroddin as Assistant

Teacher could not be granted by respondent no.2 for want of vacant

post. It is further submitted by learned A.G.P. for the respondents

that ultimately Mohammad Haroon was absorbed in Anglo Urdu High

School, Chalisgaon on 17.3.2009. Accordingly, learned A.G.P. for

the respondents submitted that pursuant to the proposal by the

petitioner Management, respondent no.2 is ready to grant approval

to the appointment of Shaikh Chiragoddin Kamroddin from

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18.3.2009.

CONSIDERATION :-

18 We have perused the contents of the present petition, its

annexures, contents of the affidavit in reply filed by the respondents

and the impugned communication dated 24.4.2009 issued by

respondent no.2 and heard the submissions advanced by learned

counsel for the petitioners and the learned A.G.P. for the

respondents anxiously, and at the out set, it is important to note that

the petitioners sought permission by letter dated 18.5.2007 sent to

respondent no.2 to fill up the vacant post, which arose on account of

promotion of Shaikh Nuroddin Gaffar, and in pursuance of the said

letter, respondent no.2 granted permission to the petitioners to fill up

the said post after publication of advertisement by letter dated

25.5.2007 which came to be filled in after completion of selection

process as afore said by appointing Shaikh Chiragoddin Kamroddin

by appointment letter dated 21.6.2007 and it is material to note that

respondent no.2 did not grant said permission on account of

repatriation of Mohammad Haroon to his parent school. Moreover,

the respondent no.2 did not grant the said permission to petitioners

by letter dated 25.5.2007 on the assumption that Mohammad Haroon

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would be re-absorbed by his parent school, as canvassed by learned

A.G.P. for the respondents and there is no substance in the said

arguments advanced by the learned A.G.P. for the respondents. In

substance, the appointment of Shaikh Chiragoddin Kamroddin as

Assistant Teacher was on the vacant post which was created on

account of promotion of Shaikh Nuroddin Gaffar and not on account

of repatriation of Mohammad Haroon and his alleged re-absorption to

his parent school, and the argument advanced by learned A.G.P. for

the respondents is misconceived in that respect, and therefore, there

is no connection between the appointment of Shaikh Chiragoddin

Kamroddin on 21.6.2007 and alleged re-absorption of Mohammad

Haroon to his parent school on 18.3.2009 on his repatriation.

19 Besides that although it is stated by respondent no.2 in

his affidavit in reply that Mohammad Haroon was directed to be re-

absorbed in his parent school by the repatriation order dated

23.9.2007, his parent school Anglo Urdu High School, Chalisgaon

did not re-absorb him as per the said order till 18.3.2009, but

pertinently, affidavit in reply filed by respondent no.2 is silent

regarding any action taken by respondent no.2 against the said

parent school of Mohammad Haroon and respondent no.2 has not

given any justification for the said inaction, nor the action of

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respondent no.2 of issuance of impugned communication dated

24.4.2009, canceling already granted permission by letter dated

25.5.2007, can be justified. Moreover, it is significant to note that

there is no whisper in the letter dated 25.5.2007 issued by

respondent no.2 to the petitioners that permission to fill up the post

of Shikshan Sevak was granted by letter dated 18.5.2007 because

of repatriation of Mohammad Haroon, and such reason given by

respondent no.2 in the impugned communication dated 24.4.2009,

i.e. after almost two years, is without any basis and foundation, and

hence, the said impugned communication deserves to be quashed

and set aside.

20 In the circumstances, we are of the considered view that

there is no substance in the arguments canvassed by the learned

A.G.P. for the respondents and the action of respondent no.2 of

issuance of impugned communication dated 24.4.2009 is apparently

arbitrary, and therefore, same deserves to be quashed and set aside.

Moreover, since Shaikh Chiragoddin Kamroddin has been working

with petitioner no.2 school since 21.6.2007 as per appointment letter

dated 21.6.2007, the respondent no.2 is required to be directed to

grant approval to the said appointment of Shaikh Chiragoddin

Kamroddin from the date of his appointment i.e. 21.6.2007, which

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shall subserve the interest of justice.

21 In the result, present petition succeeds and same is

allowed in terms of prayer clauses ‘B’ and ‘C’ thereof. Rule is made

absolute in the afore said terms. No costs.

    (SHRIHARI P. DAVARE, J.)                              (S.B.DESHMUKH, J.)
                   
                        
                                                            
    dbm/wp5344.09
      
   






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