1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1217 of 2006 Ashok s/o Irvantrao Gaikwad, Age 35 years, Occ. Service as an Assistant Teacher in Jijamata Primary Girls School, Fulenagar, Mukhed, Tq.Mukhed, Dist. Nanded. ...PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary, School Education Department, Mantralaya, Mumbai. 2. The Director of Education, Research and Training Council, Pune 30. 3. The Deputy Director of Education, Latur Division, Latur. 4. The Education Officer (Primary), Zilla Parishad, Nanded, Tq. and Dist. Nanded. 5. The Head Master, Jijamata Primary Girls School, Fulenagar, Mukhed, Tq.Mukhed, Dist.Nanded. 6. The Peoples Education Society, Beli (Bk.), Tq.Mukhed, dist.Nanded, Through its Secretary. (added as per leave granted by Hon'ble Court vide order dated 16.4.2007) 2 7. The Maharashtra State Examination Council, 17, Dr.B.R.Ambedkar Marg, Pune, Through its Commissioner. (Intervenor added as per Hon'ble Court's order dt.08/01/2010 passed in C.A. 10617 of 2010) ...RESPONDENTS ... Mr. A.V.Patil, Adv., h/f Mr. V.D.Gunale, Adv., for the petitioner. Mr.R.P.Phatake, AGP for respondent nos.1 to 3. Mr. V.S.Panpatte, Adv. for respondent no.4. Respondent nos. 5 and 6 served, absent. Mr. A.R.Nikam, Adv., for intervenor/ respondent no.7. ... CORAM:S.B.DESHMUKH AND K.U.CHANDIWAL, JJ. DATE:26/8/2010 ... PER COURT : (Per S.B.Deshmukh, J.) 1. Heard Mr. A.V.Patil, learned Counsel, appearing for Mr. V.D.Gunale, learned Counsel for the petitioner, Mr.R.P.Phatke Patil, learned A.G.P., for respondent nos. 1 to 3, and learned Counsel Mr.V.S.Panpatte for respondent no.4. Respondent nos. 5 and 6 served, absent. Mr. A.R.Nikam, learned Counsel, appears for 3 respondent no.7/intervenor. 2. The petitioner claims to have been appointed by respondent no.5 School on a vacant, clear and permanent post after following due procedure, by its Local Selection Committee. According to the learned Counsel, proposal of the present petitioner was submitted to the authorities concerned. Staff approval has been granted by the competent authority especially for the appointment of the present petitioner. He has also made a statement that Education Officer did not grant approval to the appointment of the petitioner and reasons were not known to the present petitioner. It is not in dispute that respondent No.1 State had introduced a scheme of Postal D.Ed. Course for untrained primary teachers, who were working in primary recognized schools. The petitioner claims that the application for Postal D.Ed. course was in prescribed format, processed through concerned school authorities, with all required documents. According to the petitioner, on Oct.,28, 2002, respondent no.2, after scrutinizing application of the petitioner for Postal D.Ed. Course, selected the petitioner for admission to the Postal D.Ed. Course. Petitioner claims to have appeared for the First Year of Postal D.Ed. Course and has successfully passed the examination. According to him, he has also 4 appeared for the Second Year of the Course, however, the result of the petitioner has not been declared by the authorities concerned. On July, 26th, 2005, the petitioner had received a show cause notice from respondent no.2 as to why his application for Postal D.Ed. Course may not be cancelled. Petitioner claims to have submitted reply to the said show cause notice through Head Master of the school and denied the charges and indictments made. Proper and detailed explanation was submitted by the petitioner. Mr.Patil, learned Counsel, submits that on Dec.,31st, 2005, without considering the reply given by the petitioner to the show cause notice dt.July 26th, 2005, respondent no.2 passed an order and cancelled the admission of the present petitioner to the Postal D.Ed. Course granted for the year 2000-2001. This order, therefore, is assailed in this writ petition. 3. The petitioner in this writ petition made following prayers: "(A) This writ petition may kindly be allowed. (B) Record and proceedings be called for. (C) By issuing writ of certiorari or any other writ, order or direction in the nature of appropriate writ, the impugned order dated 31.12.2005 passed by the Deputy Director of Maharashtra State 5 Research and Training Council, Pune, be quashed and set aside. (D) Pending hearing and final disposal of this writ petition, effect, operation and execution of the impugned order dated 31.12.2005 passed by the Deputy Director of Maharashtra State Educational Research and Training Council, Pune, be stayed. (E) Pending admission, hearing and final disposal of this writ petition, respondents be directed not to take any coersive action against the petitioner in pursuance of the impugned order dated 31.12.2005. Consequently, the respondents be further directed to continue the service of the petitioner in the respondent no.5 School and the petitioner be paid his regular salary. (F) Ad-interim relief in terms of prayer clauses D & E, may kindly be granted. (G) Any other suitable and equitable relief to which the petitioner is found entitled in the peculiar facts and circumstances of the present case may kindly be granted. " From these prayers, we have noticed that prayer clause (C) is the principal prayer made by the petitioner whereby issuance of writ of certiorari is sought for quashing and setting aside the order dt.31st Dec.,2005, passed by the Deputy Director of Maharashtra State Research and Training Council, Pune. This petition was filed on 10th Feb.,2006. 6 4. With the assistance of Counsel for the parties, we have seen the order impugned dated Dec.31st 2005 (Page No.50). This order and communication is addressed to present petitioner Mr.A.I.Gaikwad. From the reference, we have noticed that the Government letter dated, June, 9th, 2005, has been referred to. At Sr.No.2 of the Reference, show cause notice of the MSERTC/PTS is mentioned. Item no.3 of the reference has been pointed out by learned Counsel Mr.V.S.Panpatte, which reads: "Your explanation not received." This is important from the view point that petitioner claims that he has submitted detailed explanation to the show cause notice. With the assistance of learned Counsel for the parties, we have seen this order ( Annexure H, page No.50). Mr.Patil, Counsel for the petitioner, fairly points out item no.16 of this order, which reads, "Record is changed". Another ground, item no.17 is also shown to us by Mr.Patil, learned Counsel, which reads: " Recommendation is not made by Education Officer (Primary) and Divisional Deputy Director of Education." 7 With this, learned Counsel Mr.Patil points out, item No.25, which reads: " Others: (1) Record has been not submitted. " 5. In response to the petition, affidavit- in-reply is filed on behalf of respondent no.4. This affidavit is affirmed by one Mr. Laxman s/o Kishanrao Pasalwad, Superintendent, Primary Education Department, Zilla Parishad, Nanded. With the assistance of Counsel for the parties, we have considered this affidavit. Portion of paragraph no.2 from this affidavit is material to meet the pleadings and contentions raised by the petitioner. We reproduce that portion here-in- below. " Thus, it is crystal clear that the respondent no.5 - school has been opened and started by the said Management only from the academic year 1999-2000. However, the said management has shown the petitioner's appointment in the said school from 15.6.1997 at which time there was no departmental recognition/permission to the respondent no.5 school and there was no occasion for the said management and the school to apply for getting staff sanctioned in the said school and the officer of the answering respondent had not sanctioned any staff in the respondent no.5 school before the academic year 1999-2000. Therefore, the appointment of the 8 petitioner has been shown in the said school when the respondent no.5 School was not in existence and was not started. Thus, the appointment of the petitioner was not on sanctioned post. I, therefore say that the petitioner was not eligible even to apply for admission to postal D.Ed. Course for the academic year 2000-2001. Apart from this, since the said Management is running only respondent no.5 school and only one post for Scheduled Caste has been reserved in the said school, whereas, two teachers from Scheduled Caste have been appointed, namely, Kamble Bapurao Madhavrao whose date of appointment is 10.6.1996 and petitioner whose date of appointment has been shown as 15.6.1998 and, therefore, petitioner being junior to the said Kamble, the appointment of the petitioner is not as per roster. Therefore, after scrutiny of the application of the petitioner for Postal D.Ed. Course for the academic year 2000-2001 it was found that his appointment was not on sanctioned post and the same being irregular and illegal and, therefore, while forwarding the application of the petitioner to respondent no.2, the office of the answering respondent made an endorsement thereon that "Not recommended" since petitioner was not fulfilling the eligibility condition Nos. 2, 3 and 7 as per the Government Resolution dated 2nd June, 2000. However, it seems that the petitioner has been given admission to the postal D.Ed. Course inadvertently. " 9 6. Mr.Patil, learned Counsel for the petitioner, raised two-fold submission; firstly, the show cause notice was issued by the Director of Education and, the order impugned has been passed by the Deputy Director of Education. Both of them, they are public servants, indisputably, working in the Education Department of the State Government. Respondent No.4 is Education Officer (Primary). In this order impugned, Reference to Item No.1, there is reference to the Government communication. Mr.Patil, learned Counsel, submitted that opportunity was not given to the petitioner. Mr.Panpatte, learned Counsel, submitted that inquiry was conducted in view of the order passed by this Court in Criminal Writ Petition No.47/2004. Such statement is pointed out from paragraph no.3 of the reply affidavit of respondent no.4. In view of the directions of this Court in Criminal Writ Petition No.47/2004, Government had appointed an Inquiry Committee to inquire into the malpractices and illegalities that occurred while giving admissions to the Postal D.Ed. Course. 7. We have given consideration to the submissions made on behalf of the respective parties, including learned Assistant Government Pleader, who placed reliance on the affidavit-in- reply filed by the Education Officer, Primary, Zilla Parishad, Nanded. At the cost of 10 repetition, it is to be noticed that, according to the order impugned, record has been changed for making recommendation for the admission to the Postal D.Ed. Course for untrained teachers who are in employment. Government Resolution dt. 2nd June, 2000 with its corrigendum dt.11th July 2000, is relevant. In other words, untrained teachers, who are complying with this Government Resolution, read with corrigendum, are eligible provided they have been recommended by the Education Officer concerned. In substance, if they are eligible, in view of this Government Resolution with it's corrigendum, their applications can be processed and admissions can be granted. Here is a case of malpractices, misrepresentation, non making available record concerned. Portion from paragraph No.2 of the affidavit, which we have quoted in foregoing paragraphs, even goes a step further and statement has been made that the appointment of the present petitioner was not in accordance with the provisions of law but, even on the date of such appointment, the school was not in existence. 8. The petitioner is invoking extraordinary jurisdiction under Article 226 of the Constitution of India. We have given due consideration to the submissions made on behalf of the petitioner and respective Advocates 11 appearing for the respondents. In our view, absolutely, there is no case for interference. The order impugned is in accordance with the provisions of law and material which was brought on record. 9. Mr.Patil, learned Counsel, while arguing Civil Application, pointed out the documents annexed. In this Civil Application prayer is made to allow the application and respondent nos. 2, 3, 4 and 7 be directed to accept the examination form of the applicant upon depositing requisite examination fees so as to appear for the remaining subjects of Second Year Examination of the Postal D.Ed. Course in the ensuing examination and for that purpose necessary directions be issued. Entry of the present petitioner for that Postal D.Ed. Course itself is found full of malpractices and lack of record by the Deputy Director. On these grounds, which he has mentioned in his order, the order impugned is passed against the petitioner. We do not see any substance in this Civil Application. 10. However, with the assistance of Mr.Patil, learned Counsel for the petitioner, we have seen the orders passed by this Court, placed on record along with Civil Application ( Exh.CA-1). The order is passed by the learned Division Bench of this Court in Writ Petition No. 12 797/2006. This order is dt.21st August, 2007. Rule has been issued by this Court and ad interim relief in terms of prayer clause (D) was granted since petitioner had already completed D.Ed. Course and certificate was issued in favour of the petitioner. This is distinguishable factor which was accepted by this Court while passing order in Writ Petition No.797/2006. In the case in hand we have recorded in the foregoing paragraphs all the happenings, the manner in which the admission was sought, the petitioner appeared for the First Year Examination and all that. Since we have noticed the distinguishing factor, in our view, the order passed by this Court in Writ Petition No.797/2006 does not help the present petitioner. 11. Another order is also pointed out by Mr.Patil, learned Counsel Mr.Patil for the petitioner, which is passed in Writ Petition No. 783/2006 (Page No.19 of the Civil Application) by the learned Division Bench on 25th July, 2007. This order issues Rule and interim relief in terms of prayer clause (D). We are not aware as to what were the facts before the Court, what were the prayers made and orders impugned and so on. Such interim order cannot be said to be ratio or precedent to be followed by this Court. 12. Next order pointed out to us by the 13 Counsel for the petitioner is at page No.25 of the Civil Application passed by the learned Division Bench of this Court in Writ Petition No.776 of 2006. The order says, "Rule. Ad interim relief in terms of prayer clause (D)". Here also, we are not aware about the facts so as to find out whether those facts can be made applicable to the facts of the case in hand. Needless to say, this also does not help the present petitioner. 13. In our view, no case for interference under Article 226 of the Constitution of India. Writ Petition stands dismissed. No costs. Civil Application (No.958/2008) also stands rejected. Ad interim relief, if any, stands vacated. We make it clear that we have considered copies of the orders which are annexed with the Civil Application and also recorded our opinion about them. (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE agp/1217-06wp