1 aswp-1181-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1181 OF 2011 Tatyasaheb Shrirang Shinde and ors. .. Petitioners Vs. The State of Maharashtra and ors. .. Respondents Mr. P. J. Thorat for petitioners. Ms. S.S. Bhende, AGP for respondent nos.1 to 3. Mr. P.B. Gujar for respondent nos.4 to 6. CORAM: B. H. MARLAPALLE & SMT.NISHITA MHATRE, JJ. OCTOBER 13, 2011. ORAL ORDER (PER B. H. MARLAPALLE,J.) 1. Heard Mr. Thorat, the learned counsel for the petitioners. 2. Rule. 3. Ms. Bhende, the learned AGP, waives service for respondent nos.1 to 3 and Mr. Gujar waives service for respondent nos.4 to 6. The petition has been heard finally more so when respondent no.2 has filed 2 aswp-1181-11 affidavit-in-reply on behalf of respondent nos.1 to 3 and respondent no.4 has also filed affidavit-in-reply. 4. The petitioner nos.1 and 2 are presently working as Assistant Teachers with the respondent no.5 – primary school and petitioner no.3 is working as Assistant Teacher with respondent no.6 – school. Petitioner no. 1 was appointed on full time basis with effect from 14/6/2000 and since then he is continuously working as Assistant Teacher with respondent no. 5-school. Similarly, petitioner no.2 was appointed on full time basis with effect from 10/6/2002 and he is also continuously working as Assistant Teacher with the respondent no.5-school. The petitioner no.3 was appointed as Assistant Teacher on full time basis from open category with effect from 9/6/2003 and he is continuously working with respondent no.6 -school. Respondent nos.5 and 6 are run by respondent no.4 – society. The approval to the appointment of petitioner no.3 was granted by respondent no.2 vide his order dated 25/2/2004 but with effect from 9/6/2003 on non- grant basis, whereas the approval to the appointment of petitioner no.1 was granted by respondent no.2 vide his order dated 27/2/2004 but with effect from 14/6/2000. Similarly, the approval to the appointment of petitioner no.2 was granted with effect from 10/6/2002 on non-grant basis. However, by a subsequent order dated 29/9/2004, the respondent no.2 granted approval to the appointment of all the petitioners on grant-basis with effect from 1/7/2004 and, therefore, their salary was being paid by the State Government from 1/7/2004 onwards. 5. Respondent No.2 by his order dated 10/12/2008 withdrew the 3 aswp-1181-11 approval granted to the appointment of the petitioners allegedly on the ground that a complaint was received from Shri Shivaji Mahadev Kamble who was working as a peon in respondent no.5 – school with regard to his appointment as an Assistant Teacher. This order came to be challenged in Writ Petition No. 531 of 2010 and this court by its order dated 5/8/2010 was pleased to quash and set aside the said order dated 10/12/2008. The petitioners, therefore, submitted representation to respondent no.2 for payment of salary on the basis of the bills submitted by the respondent nos. 4 to 6 along with arrears for the earlier two years on account of the order passed by this court on 5/8/2010 in Writ Petition No. 531 of 2010. By a reminder dated 3/1/2011 the respondent no.2 was again requested to release the arrears of salary. 6. The respondent no.2 passed a fresh order on 25/3/2011 and reiterated his earlier decision dated 10/12/2008 thereby revoking the approval granted to the appointment of the petitioners. The petitioners, therefore, approach this court in the second round in Writ Petition No. 3889 of 2011 and the said petition has been allowed by us on 5/9/2011 and the order dated 25/3/2011 passed by the respondent no.2 has been quashed and set aside. Para 7 of our order dated 5/9/2011 reads as under:- “7. In case respondent no.2 is satisfied that the approval to the appointment of any of the petitioners granted earlier was illegal or it was obtained by suppressing material facts, he shall issue a show cause notice to all the petitioners as well as the management and after hearing the parties, he will pass an 4 aswp-1181-11 appropriate order expeditiously. Needless to mention, if it is found that the approval order is not obtained by any fraud or does not suffer from any illegality, there will not be any case to issue a show cause notice.” 7. The respondent no.2 has, in his affidavit-in-reply, stated that he will, within two weeks, decide the issue as to whether the approval to the petitioners’ appointment is to be granted. Para 4 of the said affidavit reads as under:- “4. I say and undertake that within a period of two weeks from today I will decide the issue as to whether approval is to be given to the appointment of the petitioner as Assistant Teacher or not and if I come to the conclusion that approval is to be given to the appointment of the petitioner, grant in aid will be released to the school where the petitioner is working so as to enable the school to pay arrears of salary to the petitioner.” 8. We are shocked to read the averments of respondent no.2 in para 4 as reproduced hereinabove. He has not explained the source of his powers to withdraw the approval order, unless it was noticed that the earlier order of approval was obtained by playing a fraud. Respondent No.2 has been repeatedly passing orders withdrawing the approval granted to the petitioners’ appointment on 29/9/2004. In the affidavit-in-reply, now he 5 aswp-1181-11 states that he will take a decision whether to grant approval or not when, in fact, he has no such powers. Once we have set aside the order passed on 25/3/2011, the respondent no.2 cannot now take a plea that he will decide the issue as to whether approval is to be granted to the appointment of the petitioners as Assistant Teachers. 9. The petitioners have been, in our opinion, unnecessarily dragged in litigation and this high-handed action of the Education Officer has not only affected adversely to the petitioners, but indeed, it has resulted in miscarriage of justice as well as a contemptuous act on the part of respondent no.2. The petitioners have been denied their monthly salary and the affidavit-in-reply filed by respondent no.4 states that the respondent nos.5 and 6 being fully aided schools, the salary is directly released to them on submission of the bills. It is evident that on account of the illegal acts on the part of respondent no.2, the petitioners have been made to suffer and work without salary. 10. Hence, we allow this petition and make the Rule absolute in terms of prayer clause (a). 11. We direct respondent no.2 to pay an amount of Rs.3000/- to the Maharashtra State Legal Services Authority by way of costs within a period of four weeks and the said amount shall not be charged to the exchequer. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)