1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL APPLICATION NO.13587 OF 2010 IN WRIT PETITION NO. 5348 OF 2003 01. Shrirampur Education Society, Shrirampur, Taluka Shrirampur, District Ahmednagar, through its Chairman. 02. Shrirampur Education Society's Applicants/ High School, Shrirampur, Taluka original Shrirampur, District Ahmednagar Resp. Nos. through its' Headmaster. 5 and 6. versus 01. The State of Maharashtra, through its Principal Secretary, School Education Department, Maharashtra State, Mantralaya, Mumbai-32. 02. The Director of Education, Maharashtra State, Pune. 03. The Deputy Director of Education, Pune Division, Pune. 04. the Education Officer (Secondary), Zilla Parishad, Ahmednagar, Taluka and District Ahmednagar. 2 05. Mahadu s/o Shrawan Gaikwad, age 48 years, occup. service, presently working as Assistant Teacher in applicant No.2 School Shrirampur, Dist. Ahmednagar. 06. Ramdas s/o Mhasu Dnawade, age 40 years, occupation service presently working as Assistant Teacher in applicant No.2 School Shrirampur, Dist. Ahmednagar. 07. Smita w/o Nandkishor Nirmal @ Smita d/o Ganesh Lahade, age 43 years, occup. service, presently working as Assistant Teacher in applicant No.2 School, Shrirampur, District Ahmednagar. 08. Bebinanda d/o Eknath Bhingardive age 37 years, occupation service, presently working as Assistant Teacher in applicant No. 2 School, Shrirampur, Dist. Ahmednagar. 09. Shirish s/o Laxman Suryawanshi Respondents/ age 31 years, occupation service, Nos.1 to 4 presently working as Assistant orig. Resps. & Teacher in applicant No.2 School, Nos. 5 to 8 Shrirampur, District Ahmednagar. Orig. Petnrs. --------------------------------------------------------------------------------------------------- Shri A.C.Darandale, Adv. i/by Shri R.N.Dhorde, Adv. for applicants. Shri P.V. Suryawanshi, Advocate, i/by Shri S.R.Barlinge, Advocate for Respondent Nos. 5 to 8 (original petitioners). --------------------------------------------------------------------------------------------------- 3 Coram: S.B.Deshmukh and Shrihari P.Davare, JJ. Date : 28th October, 2010. ORAL ORDER (Per: S.B.Deshmukh, J.) 01. Heard the learned counsel for the parties. 02. Writ Petition No.5348 of 2003 appears to have been filed on 11.8.2003. With the assistance of learned counsel for the parties, we have seen the orders passed in the Writ Petition proper. It appears that the said writ petition was before this court on 10.12.2003 when, after hearing learned counsel for the petitioners, the court had directed issuance of notices to Respondent Nos.5 and 6, returnable on 20.1.2004 and they were directed not to make further appointments in the school without prior permission from this court. It was also directed that the notices shall indicate that the petition would be disposed of at the admission stage. 03. While parting from the writ petition, we desire to reproduce prayers made by the petitioners (5 petitioners) which are as follows; (A) By a writ of Mandamus or any other appropriate Writ, Order or directions in the like nature, the respondent Nos. 1 to 4 be directed to compel the respondent No. 5 to implement the Circular dated 9.7.1987 in its letter and spirit and appoint the 4 petitioners positively as per the said Circular as trained graduate teachers. (B) By a Writ of Mandamus or any other appropriate Writ, Order or directions in the like nature, the respondent No. 5 may further be directed to give deemed date of appointment to the petitioners from the date on which they became eligible for appointment to the post of trained graduate teachers and also pay them consequential benefits. (C) Pending hearing and final disposal of this Writ Petition the respondents Nos. 1 to 4 be directed to compel the respondent No.5 to appoint the petitioners as trained graduate teachers immediately. (D) Pending hearing and final disposal of this Writ Petition the respondent No. 5, his agents, servants or any other person acting on its behalf be restrained from appointing any other candidate as Assistant Teacher/Shikshan Sevak in the school unless the claims of the petitioners are considered. (E) Pending hearing and final disposal of this Writ Petition the respondent No.4 be directed not to grant approval to the appointment of the teachers who are illegally appointed by the respondent No.5 in violation of the Circular dated 9.7.1987. 5 (F) Grant ad-interim relief in terms of prayer clause (C), (D) and (E) above. (G) Any other relief to which the petitioners are found entitled to may please be granted." 04. This Court, by order dated 10.3.2004, issued Rule, making the same returnable after six weeks and the interim relief granted earlier, was directed to be continued. 05. Present Civil Application No.13587 of 2010 earlier was before this Court on 22.10.2010, when learned Counsel for the applicants made a statement that he had already served copy of present civil application on learned Counsel Shri S.R. Barlinge for Respondent Nos. 5 to 9 who was absent on 22.10.2010. Therefore, learned counsel for the applicants and learned A.G.P. for Respondent Nos. 1 to 4 were heard on that day. The Court, therefore, adjourned the matter to 28.10.2010. Compilation of earlier orders tendered by learned counsel for the applicants was taken on record and marked "X" for identification. 06. Today, Shri A.C.Darandale, learned counsel for the applicants points out the earlier orders passed by this court. Learned Counsel took us through the order passed on 22.2.2006 in Civil Application No.12428 of 2005. This was the order passed after hearing learned counsel for the applicants and learned counsel Shri 6 S.R.Barlinge for Respondent Nos. 5 to 9. This court allowed the said civil application, permitting respondent Nos. 5 and 6 to fill up the posts, making it clear that the appointments are to be made subject to the decision of the writ petition and this fact should also be made clear in the advertisement to be issued for filling up of the posts. At the request of the learned counsel for the petitioners, the court expedited hearing of the writ petition. Suffice it to say that the said civil application was allowed by the court. 07. Another order shown to us from the compilation is dated 25.8.2008 passed in Civil Application No.7602 of 2008 filed in the present writ petition. At that time, the applicants in the said civil application were seeking permission for appointment of teachers in the subjects of Zoology and Botany, having qualification of B.Sc. B.Ed. Learned Counsel for the parties were heard. In the said order, and more particularly in paragraph 6 thereof, the court has observed that the reasoning in earlier order passed in Civil Application No.12248 of 2005, has been adopted and allowed the said Civil Application No.7602 of 2008, permitting to issue advertisement for appointments to the posts in the subjects Zoology and Botany, having qualification B.Sc. B.Ed., on the condition that the advertisement to be issued should make it clear that the appointments shall be subject to decision of this writ petition, and the candidates selected pursuant to the selection process should also be made clear that their appointments will be subject to decision of the writ petition hearing of which is already 7 expedited and Rule issued was made returnable within six weeks and, therefore, the court set down the petition for final hearing in the week commencing from 13th October, 2008 on condition that the petitioners shall remove all office objections. Needless to say that the said Civil Application No.7602 of 2008 was allowed. 08. After the said order, learned counsel for the applicants took us to next order in the compilation, passed in Civil Application No. 6405 of 2010, on 30.7.2010. This time also, learned Division Bench heard the learned counsel for the parties, referred to earlier similar orders and allowed the said Civil Application also, with similar directions permitting respondent Nos. 5 and 6 to make appointments, which are to be found in para. 3 of the said order. We quote the same; " We, therefore, permit the applicants to issue advertisement for the appointment of teachers for teaching Economics and teacher for teaching Geography & Physical Education on the condition that the advertisement, which will be issued, should contain the clause that the appointment would be subject to the decision of this petition. The candidates so selected pursuant to the selection process should also be informed in writing that the appointment would be subject to the result of this writ petition. These selected candidates should also be informed that they would not be entitled to claim any equity in law because of the appointment." 8 In paragraph 4 of the said order, this court has again observed that the petition has already been directed to be listed for final hearing from time to time, and once again reiterated the same order and directed that the petition be set down for final hearing in the week commencing from 27.9.2010. 09. Shri A.C.Darandale, learned Counsel for the applicants, points out prayer made in the present civil application No.13587 of 2010. In paragraph 6 of the civil application, prayer made is to the effect that the applicants-original respondent Nos. 5 and 6 be permitted to fill in the post in the subject B.Sc. (Chemistry) B.Ed. in accordance with law and for that purpose issue necessary orders. 10. Shri P.V. Suryawanshi, learned Advocate , holding for Shri S.R.Barlinge, learned Counsel for Respondent Nos. 5 to 8, sought time to take instructions. He further submitted that this is now high time for the academic year, since the application is filed in the month of September 2010. Shri A.C.Darandale, learned counsel for the applicants, submits that grant of time and/or non grant of permission would cause serious sufferance to the students who have already sought admissions and taking education in the secondary schools. According to him, if such permission is not granted, the petitioners would suffer irreparable loss. 9 11. It may be noted that the schools and colleges are meant for imparting education to the students. Students taking education in the educational institutions, is the central factor, for whom, the institutions like schools and colleges are being run, either by the State Govt. or Central Govt. or trusts and societies registered in accordance with the Bombay Public Trusts Act and Societies Registration act, 1860 so far as State of Maharashtra is concerned. The trusts are being looked after by the trustees as per the education policies of the Central or State Government. Imparting of education to the students, therefore, in our opinion, has got prime importance in the education system. It is common knowledge that the academic year, so far as secondary schools in the State of Maharashtra are concerned, starts from June/July of every year, in view of policy of the State Government in that behalf. Present application we are considering before commencement of October vacation 2010 not only to the court, but also to the schools. learned counsel for the applicants, on instructions, from the officer concerned, states that October vacation (Diwali vacation) for the school concerned commences from 2.11.2010 and school reopens on 22.11.2010. 12. In our opinion, so far as this civil application is concerned, if time is extended, the same would cause irreparable loss to the students who are not before the court. We have noticed and recorded in foregoing paragraphs earlier orders passed by this court at least thrice referred to here-in-above, meaning thereby involvement of three academic years. Last of such orders passed by the court, is dated 10 30.7.2010. This court, while passing the orders earlier, has observed that the equities amongst the petitioners and respondents need to be balanced. Keeping that principle in mind and in view of the earlier orders, we are inclined to allow this civil application partly and in the same manner as indicated in the earlier orders passed by this court in various civil applications in the present writ petition. 13. In the circumstances, present civil application is partly allowed in terms of prayer clause (A) on the same conditions which are incorporated in the last order dated 30.7.2010. Those conditions we are listing hereinbelow. (a) The applicants shall publish advertisement for appointment to the post of Teacher in the subject Chemistry, having qualification B.Sc. B.Ed. (b) The advertisement so published shall contain a specific clause that the appointment would be subject to decision of Writ Petition No.5348 of 2003 pending before this court. (c) The candidates who are selected pursuant to the selection process carried out in accordance with law or relevant rules consequent upon advertisement published, shall be made clear that their appointments shall be subject to the decision of said Writ Petition No.5348 of 2003. (d) The selected candidates shall also be informed that they will not be entitled to claim equity in law only because of their appointments. 11 14. Civil Application is, accordingly, partly allowed in above terms and disposed of. 15. Incidentally, we have noticed that the present Writ Petition was before this court on 11.10.2010. On that day, we heard Shri P.V. Suryawanshi, learned Advocate holding for Shri S.R.Barlinge, learned Advocate for the petitioners and Shri R.N. Dhorde, learned Counsel for Respondent Nos. 5 and 6 in the writ petition and adjourned the matter beyond October vacation, 2010. In view of this, no separate order for listing the writ petition for final hearing, is necessary. 16. Authentic copy of this order is permitted to the requesting parties on following usual procedure. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) pnd/ca13587.10