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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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