1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7306 OF 2009 Shri Mahadeo Govind Khanolkar : Petitioner versus Vengurla Education Society & ors. : Respondents. Mr.Narendra Walawalkar, Senior Advocate a/w Mr. S M Sabrad for the Petitioner. Mr. V S Gokhale, AGP, for the Respondent Nos.3, 4, 6 and 7. Mr. M S Karnik for Respondent No.2. CORAM : S B MHASE & R M SAVANT, JJ. DATE : 1st September 2009 P.C. 1. The Petitioner has approached this Court invoking our jurisdiction under Article 226 of the Constitution of India for the reliefs that his pension papers be directed to be submitted to the concerned officers of the Respondents. The Petitioner was working as an Assistant Teacher with Respondent No.1 in school located in Vengurla Taluka. He was promoted as a Head Master by an order dated 14 th June 2008. The Education Officer has granted approval to his appointment as Head Master. He served as a Head Master for six months and then retired with effect from 31 st January 2009. 2 2. Another set of facts which requires to be mentioned at this juncture is that there was mismanagement in the Respondent No.1-Trust, and therefore, the application under Section 41(A) of the Bombay Public Trust Act, 1950 was filed by one Shashikant Jagannath Dabholkar, who is the Respondent No.2 in the present Petition. While issuing directions in the said Application the Joint Charity Commissioner, Kolhapur Region, Kolhapur, removed Opponent Nos. 2 to 17 from the posts of trusteeships of Respondent No.1 society and appointed Respondent No.2 Shashikant Jagannath Dabholkar to manage the affairs of the said Trust until further orders and he shall not take any policy decisions without approval in writing of Assistant Charity Commissioner, Sindhudurg (Oros). The said order was passed on 10/12/2001 and thus from the date of the said order the Respondent No.2 is looking after the affairs of the said trust. 3. When the Petitioner was under the zone of consideration for promotion as a Head Master, it is the Respondent No.2 who asked the Petitioner as to whether he is willing to act as Head Master and, accordingly a consent was given by the Petitioner to the Respondent No. 2. But surprisingly the Petitioner accepted the appointment as Head Master from the Chairman of the said Trust viz Jayprakash Narayan 3 Chamankar. What is interesting to note that the said Chamankar and the Respondent No.2 have claimed that they are the trustees of the said trust in view of the elections conducted in 2008. and they have filed a Change Report bearing No.329 of 2008. It is to be noted that the said elections were conducted by the said persons because the tenure of the managing committee had expired. Therefore on reading the cause for holding the elections it is eloquently clear that the earlier managing committee was not in office in view of the order passed by the Joint Charity Commissioner on 10/12/2001 and there was no question of the tenure of the said managing committee coming to an end. It is further interesting to note that when the Respondent No.2 was incharge of the said trust in view of the order passed by the Joint Charity Commissioner, as stated above, either the elections of the said trust should have been conducted by the Respondent No.2 or the elections should have been conducted under his supervision. The so called elections conducted in 2008 were neither conducted by the Respondent No.2 nor by the Charity Commissioner. Under these circumstances, the persons who are not the incharge of the trust, though may be members of the said trust, were not entitled to hold the elections and file Change Report and to interfere with the affairs of the said Trust. 4 4. Further it appears that the present Petitioner accepted the order from the said chairman Mr.Chamankar, who claims to have been elected in 2008 and joined the duties. Unfortunately the cognizance of this aspect should have been taken by the Education Officer. But for the reasons best known to him, the Education Officer has failed to take cognizance of the said fact and has granted approval. 5. Now difficulty is that since the appointment was not issued by the Respondent No.2 promoting the Petitioner to the post of Head Master, the Respondent No.2 has refused to sign the pension papers of the Petitioner. That appears to be justifiable ground, since the Respondent No.2 has not issued the appointment order and he was not in the management of the said trust. 6. However, what we find is that immediately after the appointment of the Petitioner, the Respondent No.2 did not take any objection to the said appointment. The Respondent No.2 has allowed the Petitioner to work for a period of six months and also allowed him to draw salary. Not only that when the Education Officer has granted approval, he has represented before the Education Officer but the Education Officer did not take any objection, that the appointment of the 5 Petitioner is improper and the approval should be withdrawn. 7. Apart from that, by a letter dated 28/1/2009 the Respondent No.2 intimated the Petitioner about the date of retirement of the Petitioner as 31 st January 2009 and asked him to hand over the charge of the said post to one Mr. M K Patil. Therefore, as a result of the subsequent acts which the Respondent No.2 has done, he has acquiesced in the appointment of the Petitioner and having accepted the appointment of the Petitioner, it is now not open for the Respondent No. 2 to contend that he will not sign the pension papers of the Petitioner. Even though we find the conduct of the Petitioner requires to be deprecated, we are taking sympathetic view of the matter by considering the acquiescence of the Respondent No.2, and therefore, we direct the Respondent No.2 to sign the pension papers of the Petitioner. 8. Our attention is also invited to the fact that on 14/5/2009 the Respondent No.2 has conducted the elections of the Respondent No.1- Trust and the change report in respect of the persons elected has been submitted to the Charity Commissioner. Therefore, after the elections the Respondent No.2 should have handed over the charge to the newly elected persons. It is not necessary for him to hold charge of the society 6 till the change report is accepted by the Charity Commissioner or the Assistant Charity Commissioner. Otherwise in the process of accepting the change report, the term of the newly elected body will be over and the elections will be rendered infructuous. Therefore, in view of this fact, we direct the Respondent No.2 to hand over the charge of the said trust to the newly elected persons and accordingly intimation to the Charity Commissioner be given by the Respondent No.2. 9. We are constrained to observe that it is the conduct of the Petitioner which is responsible for filing of this Petition in this Court, as the Petitioner sought an appointment as Head Master from a person who was not authorised at the relevant time to issue such letter. What we find is that the Petitioner sought to exploit the rift amongst the members of the trust. Not only that the Respondents and more specifically the Respondent No.2 is required to engage an advocate. The advocate fees in the matter shall not be paid out of the account of the said trust. The Petitioner shall pay the costs of Rs.5000/- to be reimbursed to the Respondent No.2. The amount shall be deposited within a period of two weeks from date with the Respondent No.2 and, the Respondent No.2 in turn shall pass an appropriate receipt to that effect. If the amount is not received by the Respondent No.2, the Respondent No.2 shall report to 7 this Court. In that event, the office shall send this order to the Collector, Sindhudurg for recovery of the said amount. 10. With the aforesaid directions, the present Petition is disposed of. [R.M.SAVANT, J] [S.B.MHASE, J]