1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5768 OF 2007 Kirantai D/o Chandrakant Patil } Age : 30 Years, Occ. Service as } Head Mistress, R/o : At Post : } Jawala (Nizamuddin), Tq. : } Paranda, District : Osmanabad. } .... PETITIONER V E R S U S 1. The State of Govt. of } Maharashtra, Through Secretary Education Department, } Mantralaya, Mumbai – 32. } 2. The Education Officer } (Secondary), Zilla Parisha } Osmanabad, Tq. and Dist. : } Osmanabad. } 3. Sri. Siddheshwar Vidyalaya, } Deogaon (Khurd), Tq. Paranda,} District : Osmanabad } Through its Head Master. } 4. Kailaswasi Manohar Shikshan } Prasarak Mandal, Jawla, } Tq. Paranda, Dist. Osmanabad } Through its President. } 2 5. Smt. Shanta D/o Sitaram } Bhatlawande, Age : 32 Years, } Occ. Service, presently working} as Assistant Teacher in } Kai. Manohar Karkar Shikshan } Prasarak Mandal’s } Sow .Pratibha Pawar Kanya } High School, Jawla } (Nizamuddin), Tq. Paranda, } Dist. Osmanabad. } .... RESPONDENTS Mr. R.J.Godbole, Counsel for Petitioner. Mr. S.K.Tambe, A.G.P. for Respondent Nos. 1 & 2. Mr. V.G. Sakolkar, Counsel for Respondent No. 3. Mr. V.S.Paithankar,Counsel for Respondent No. 4. Mr. S.R.Barlinge, Counsel for Respondent No. 5. .......................... [ CORAM : S.S.SHINDE, J. ] JUDGMENT RESERVED ON : 04/08/2009 JUDGMENT PRONOUNDED ON : 20/08/2009 JUDGMENT : 1. Rule. Rule returnable forthwith. 2. This Writ Petition is filed challenging the decision of the 3 Education Officer dated 29/3/2007 and 6/10/2006 and further it is prayed that the petitioner be continued after setting aside the orders passed by the Education Officer as Head Mistress in the school namely Sow. Pratibha Pawar KanyaHigh School, Jawla (Nizamuddin), Tq. Paranda, Dist. Osmanabad. 3. The back-ground facts of the case as disclosed in Writ Petition are as under : It is the case of the petitioner that she is B.Sc. B.Ed. And serving as Assistant Teacher in the school of Respondent no. 3 for the period from 13/6/2000 to 30/4/2004. It is further case of the petitioner that the senior most teacher in the school of Respondent no. 4 waived her right against the post of Head Mistress, therefore, on the basis of experience certificate dated 30/4/2004, petitioner applied for the post of Head Mistress and she was appointed as Head Mistress in Respondent no. 4 school. It is further case of the petitioner that Education Officer vide Order dated 9/3/2006 was pleased to accord approval in favour of the petitioner as Head Mistress. 4. It is further case of the petitioner that the Education Officer has subsequently cancelled the approval by conducting enquiry through Dy. Education Officer without affording any opportunity of hearing to the petitioner in violation of principles of natural justice. 4 5. Being aggrieved by Order dated 6/10/2006, petitioner preferred Writ Petition before this Court and said Writ Petition came to be allowed by setting aside the Order passed by the Education Officer dated 6/10/2006. This Court while disposing of Writ Petition No. 7489 of 2006, granted liberty to the petitioner to produce necessary documents before the Education Officer and Education Officer was directed to decide the matter after giving full opportunity to the petitioner and pass necessary orders after following principles of natural justice. 6. It is further case of the petitioner that the Education Officer called petitioner for the purpose of enquiry on 18/12/2006, but as the petitioner was suffering from urenial infection, by addressing letter to the Education Officer, prayed to extend the date of hearing. It is further case of the petitioner that she was called again by the Education Officer and petitioner vide letters dated 4/1/2007 and 5/2/2007, submitted all relevant documents including expert’s opinion, affidavit of expert, affidavit of one of the parents, etc. to substantiate her stand before the Education Officer. It is further case of the petitioner that the Head Master of Sidheshwar Vidyalaya not only issued experience certificate but also put signature on service book acknowledging petitioner’s service in Sidheshwar Vidyalaya. It is further case of the petitioner that all documents were given to the Education Officer on 9/1/2007 and as 5 such it was the boundand duty of the Education Officer to call petitioner for the purpose of cross examination and petitioner was also required to be permitted to cross examine the Head Master of Sidheshwar Vidyalaya because the important question is whether the Head Master of Sidheshwar Vidyalaya has given experience certificate, was the issue before the Education Officer and as such for the purpose of ascertaining the truth, the Education Officer ought to have allowed petitioner to cross examine head master of Sidheshwar Vidyalaya, but instead of considering the evidence which the petitioner had adduced before the Education officer and without verifying the record, Education Officer observed in the impugned Order that the petitioner failed to supply documentary evidence and confirmed the Order dated 6/10/2006 vide order dated 29/3/2007. 7. This Court issued notices to the respondents and pursuant to issuance of notices, the respondents appeared in the matter. Dy. Education officer ( Secondary) Zilla Parishad, Osmanabad has filed affidavit in reply on behalf of Respondent no. 2 i.e. Education Officer. There is also affidavit in reply filed on behalf of intervener Smt. Shanta D/o Sitaram Bhatlavande. 8. Learned counsel appearing for the petitioner submitted that the documents i.e. appointment order issued by School Committee of Sidheshwar Vidyalaya dated 11/6/2000, 15/6/2001, 9/6/2002 and 6 17/6/2003 were submitted before the Education Officer. The Service Book record on which Head Master of Sidheshwar Vidyalaya had put his signature, was also submitted before the Education Officer. The petitioner also submitted copy of the expert’s opinion along with affidavit. The statements of students of Sidheshwar Vidyalaya and statement of one of the parents of Sidheshwar Vidyalaya were also submitted before the Education Officer. According to learned counsel, all these documents were relevant documents for deciding the issue in controversy and the Eduction Officer being quasa judicial Officer and being Enquiry Officer, ought to have considered the documents which the petitioner had submitted before the Education officer for the purpose of scrutiny. It is further argued by the learned counsel that the Education Officer should have shown agreement or disagreement to the evidence, which the petitioner had put before the Education Officer for the purpose of enquiry. But, the Education Officer did not consider the documents produced before him and without showing any disagreement to the said documents, by Order dated 29/3/2007, passed final order. It is further argued that the Education Officer is not correct in holding that the petitioner has not supplied documentary evidence at the time of final hearing. It is further argued that the same Education Officer has put his signature on letter of the petitioner dated 9/1/2007 by which all documents were given to the Education Officer for the purpose of enquiry. Such decision of the Education Officer dated 29/3/2007 is contrary to the principles of natural justice. Learned 7 counsel further submitted that the Education Officer has not even considered the opinion expressed by the expert. The Education Officer only relied on the statement made by the Head Master without showing any disagreement to the documentary evidence produced by the petitioner and as such acted contrary to the principles of natural justice and failed to respect parameters regulating the power of the Inquiry Officer to adjudicate the issues. It is further contended by the learned counsel for the petitioner that under Rule 3 of M.E.P.S. (CS) Rules, 1981, the petitioner has served 5 years in secondary school, petitioner has worked in Sidheshwar Vidyalaya for 4 years and for another one year in Respondent no. 1 school. It is further submitted that the core issue before the Education Officer was that whether the petitioner has worked in Sidheshwar Vidyalaya or not and without adverting to the documents submitted by the petitioner, the Education Officer has passed the final order. According to the learned counsel, it is not material whether petitioner was appointed against the unsanctioned post or Education Officer never granted approval for her services in Sidheshwar Vidyalaya. But the important issue is whether the petitioner has actually worked for 4 years in the said school. It is further argued that the question of approval for the purpose of granting aid and grant of approval by the Education Officer to the appointment of petitioner is not relevant to decide the status of the petitioner. It is further argued that when both the parties take inconsistent stand before 8 the quasa judicial authority, then the said authority has to act like a Judge by allowing the parties to examine their witnesses and allow the party to cross examine witnesses examined by the respective parties. It is the boundand duty of the Education Officer to allow petitioner to cross examine the Head Master of the Sidheshwar Vidyalaya but the Education Officer failed to afford reasonable opportunity to the petitioner and as such impugned order passed by the Education Officer, deserves to be set aside. 9. It is further submitted that on the basis of the order passed by the Education Officer, reverse order reverting the petitioner from the post of Head Mistress to the Assistant Teacher was passed, but the Presiding Officer, School Tribunal, Solapur stayed the said order. It is further argued that the order of the Education Officer is passed without following principles of natural justice and in effect visits the petitioner with civil consequences and, therefore, impugned order is required to be quashed and set aside. 10. The learned A.G.P. appearing for the State invited my attention to the affidavit in reply filed on behalf of the Education Officer and submitted that petitioner has forged and fabricated the documents in respect of service record and obtained the approval from the office of the respondent for the appointment as Head Mistress and, therefore, after proper enquiry, the Education Officer has rightly 9 cancelled the approval. It is further submitted that the petitioner has never served as an Assistant Teacher in the school of Respondent nos. 3 and 4 during the period 13/6/2000 to 13/4/2004 and, therefore, the petitioner is not having requisite experience of 5 years of holding the post of Head Mistress. It is further contended that the appointment of the petitioner as a Head Mistress was obtained on the basis of forged documents, the Dy. Education Officer conducted enquiry by visiting Respondent no. 3 school i.e. Sidheshwar Vidyalaya and submitted report to the Education Officer stating therein that the petitioner has never served as an Assistant Teacher in the said school as well as Head Mistress of the said school . The learned A.G.P. relied on the copies of the report dated 30/9/2006 and certificate of the Head Master dated 18/9/2006. It is further submitted that sufficient opportunity of hearing is given to the petitioner on 9/1/2007, however, the petitioner came late at 16.30 hrs. and, therefore, the hearing was required to be adjourned on the next date and scheduled on 5/2/2007. The petitioner remained present on the said date, however, again requested for adjournment and again hearing was postponed to 7/2/2007. On the said date, petitioner, the Head Master of Respondent no. 3 School and Secretary as well as in-charge Head Master of the Respondent no. 4 Society namely Sow. Pratibha Pawar Kanya High School, Jawla also contended that they have not issued any experience certificate in favour of petitioner as well as submitted a letter of the Editor to the effect that even no advertisement was published in daily newspaper namely ‘ 10 Kashtakari Lokhit ’ for such appointment as alleged and further contended that the said newspaper itself was not published since November 2004 and no advertisement for the purpose of appointment of Head Master was published. It is further argued that the Secretary of the said institution also cross examined the Head Master of Respondent no. 3 school and in cross examination also, Head Master has stated that he has not issued any experience certificate to the petitioner. 11. It is further argued by the A.G.P. that the Head Master of Respondent o. 3 school also contended before the Education Officer that no appointment order was given to the petitioner because as per staff approval, there were only 5 sanctioned posts including Head Master and also 5 teachers were working in the school, who were already signing on the muster role of the teachers. However, the name of the petitioner is not included therein. It is further submitted that the petitioner had no experience of teaching for 5 years and, therefore, she is not eligible to be appointed as a Head Mistress. It is further submitted that the authority has followed principles of natural justice and only thereafter impugned order is passed. 12. The learned counsel appearing for the intervener has invited my attention to the affidavit in reply filed on behalf of intervener. On the basis of averments in the affidavit in reply, the learned counsel submitted that the petitioner has not come with clean 11 hands before this Court as she has not only relied on fake documents, but also suppressed some material facts from this Court. It is submitted that it was on the complaint of the intervener, the Education Officer was pleased to pass order of cancellation of approval. It is the submission of the learned counsel that on the date of appointment of the petitioner as Head Mistress, the intervener was working as in- charge Head Mistress and has also acquired the necessary experience as required under Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Services), Rule, 1981. The intervener being qualified for the post of Head Mistress and was very much willing to work as a regular Head Mistress. However, at the relevant time, just to appoint the petitioner, who happens to be the wife of the Secretary of the Respondent No. 4 Trust, the Management by force, obtained an undertaking from her that the intervener do not wish to work as Head Mistress. According to the learned counsel, the said undertaking was withdrawn immediately by the intervener. It is further submitted that the appointment of the petitioner as a Head Mistress was contrary to the provisions of Rule 3 (6) of the M.E.P.S. (Conditions of Services), Rules, 1981. It is further submitted that no prior permission of the Dy. Director of Education was obtained before appointing the petitioner as Head Mistress. It is further submitted that the petitioner had fabricated the evidence in the form of appointment orders and certificates to show that she had worked as an Assistant Teacher in Sidheshwar Vidyalaya. However, the Head Master of the said school informed the intervener 12 that no evidence in respect of the petitioner having worked in the school is available with them. It is further submitted that the Head Master of Respondent no. 4 has also stated before the Education Officer that the certificate dated 30/4/2004 is fabricated certificate and it does not bear his signature. It is further submitted that the petitioner has also fabricated the evidence to show that she has worked as an Assistant Teacher for one year in the school of intervener. It is further submitted that when the intervener was on leave, the Secretary prepared experience certificate by using her signature on blank letter bad, which the intervener specifically denied before the Education Officer. The learned counsel invited my attention to the affidavit in reply on behalf of the intervener and submitted that she is senior most teacher in the school and was working as an in-charge Head Mistress and she is very much willing to work as a Head Mistress and, therefore, the appointment of the petitioner as Head Mistress which was obtained on the basis of fake and fabricated documents, has rightly been cancelled by the Education Officer. 13. The petitioner has filed re-joinder affidavit in reply to the intervener’s affidavit in reply by denying the allegations in the said affidavit in reply. 14. I have heard the learned counsel appearing for the respective parties at length and also perused the copy of the petition 13 and annexures thereof, reply filed by Education Officer as well as intervener and other respondents. Though, it is prayed in the petition that the Order dated 29/3/2007 and 6/10/2006 passed by the Education Officer, may be quashed and set aside, on perusal of the earlier order passed by this Court on 29/11/2006, I find that the order dated 6/10/2006 is already set aside by this Court in Writ Petition No. 7489 of 2006, which was filed by the present petitioner. On careful perusal of the earlier order passed by this Court on 29/11/2006 in Writ Petition No. 7489 of 2006, it clearly emerges that in paragraph 4, this Court has taken a note that the petitioner was neither served with any show cause notice nor the petitioner was granted an opportunity of hearing before the Order dated 6/10/2006 came to be issued cancelling the approval granted to the petitioner. This Court further observed that the order visits the petitioner with civil consequences, it was incumbent for the authorities to grant sufficient opportunity to the petitioner before cancelling the approval of the petitioner and, therefore, this Court allowed the petition. In paragraph 5 of the Order dated 29/11/2006, this Court has taken note of the copies of documents annexed by the petitioner to the petition on which petitioner wanted to rely and the Court further observed that since the petitioner has served with copies of the material, on which reliance could be placed by the respondent, it is not necessary to furnish fresh set of documents to the petitioner. It is further observed that the petitioner, therefore, shall appear before the 14 Respondent No. 2 – Education Officer on 18/12/2006 and if the petitioner is so desirous, may submit her reply. It is further observed that the Respondent Education Officer shall hear the petitioner and pass Order in accordance with law. This Court set aside the Order dated 6/10/2006 passed by the Education Officer. 15. On careful perusal of the annexures to the petition, more particularly Exh. ‘ F ’ i.e. letter written by the petitioner to the Education Officer dated 18/12/2006, it appears that though this Court directed the petitioner to appear before the Education Officer on 18/12/2006, on the same day, letter is addressed requesting for adjournment on the ground of ill health as well as inability of the petitioner to produce necessary documents and evidence on the said date. There is another letter addressed by the petitioner to the Education Officer on 9/1/2007 which is at Exh. ‘ G ’ to the compilation to this petition, in which it is stated that as communicated by the Education Officer about the hearing of the matter on 9/1/2007, the petitioner is present with the documents and there is further request to the Education Officer to accept all documents produced by the petitioner. There is another letter dated 9/1/2007 at page 36 of the compilation by the petitioner to the Education Officer mentioning therein that though the petitioner is present for hearing on 9/1/2007, but the another Head Master is not present for the hearing and, therefore, by accepting the documents produced by the petitioner, 15 another date of hearing may be given. There is another letter dated 5/2/2007 by the petitioner to the Education Officer mentioning therein that “ I am present today in the office of the Education Officer since the date is fixed for hearing today ”. It is further mentioned in the said letter that the documents at Exh. R-4 is genuine document and said document is not forged document as contended by Mr. Gandhale. There is also reference of the hand writing expert in the said letter. There is also reference in the said letter about various documents including appointment letter as an Assistant Teacher in Sidheshwar Vidyalaya from 2000 to 2004. It is further mentioned that the petitioner has also submitted the documents i.e. copies of the letters by 4 students of Sidheshwar Vidyalaya stating therein that the petitioner was working as Assistant Teacher in Sidheshwar Vidyalaya and she taught those students. The said letter also refers to other documents and further it is stated that the contents of the letter are true to the knowledge of the petitioner and taking into consideration entire documents and contentions of the petitioner, appropriate orders may be passed. On perusal of page 41 i.e. certificate annexed to the petition issued by the Head Master, Sidheshwar Vidyalaya, Deogaon, it appears that Certificate was issued to the petitioner mentioning therein about the services of the petitioner in the said school for the year 2000 – 2001 to 2003 – 2004. At page 42 of the compilation, there is a letter addressed by the petitioner to the Education Officer complaining 16 about not issuing documents as requested by the petitioner to the Head Master, Sidheshwar Vidyalaya, Deogaon. At page 43, there is affidavit of the petitioner stating therein that she has worked in 4 academic years in the Sidheshwar Vidyalaya. There are other documents annexed to the petition including opinion expressed by the hand writing expert. From the annexures annexed to the affidavit in reply filed by the State, it appears that at Exh. R-1 to the affidavit in reply, there is seniority list drawn for the year 2005-2006, in which petitioner is shown at Sr.No. 9. There is also another annexure at Exh. R-2 at Page 79 letter written by the Dy. Education Officer to the Education Officer, Osmanabad stating therein that the Dy. Education Officer visited Sidheshwar Vidyalaya, Deogaon, Tq. Paranda, Dist. Osmanabad on 18/9/2006 and verified teachers’ attendance register from 1999, the annual inspection report and other documents and it has came to the notice of the Dy. Education Officer that the documents submitted by the petitioner are not the genuine documents and petitioner has never worked in the said Sidheshwar Vidyalaya. It is further stated in the said letter that the Head Master has given in writing that the Head Master has never issued experience certificate to the petitioner and petitioner herein has never worked in Sidheshwar Vidyalaya. However, it is mentioned that the letter head which is used by the petitioner to prepare certificate of experience, the said letter head appears to be of Sidheshwar Vidyalaya, Deogaon. There is also another 17 letter by the Head Master to the Education Officer dated 18/9/2006 at Page 80 mentioning therein that no certificate whatsoever has been issued by the school to the petitioner. The signature on the said certificate is forged and Head Master has never signed the said certificate. The period which is mentioned in the said certificate stating therein that the petitioner has worked as Assistant Teacher in the Sidheshwar Vidyalaya, is absolutely incorrect and petitioner has never worked in Sidheshwar Vidyalaya. A letter which is produced by the petitioner stating therein that she has worked in Sidheshwar Vidyalaya, has never been issued from the office of the school and signature on the said letter is not the signature of the Head Master of Sidheshwar Vidyalaya at all. At page 81 Exh. R-3, there is also letter written by the Editor of the daily newspaper ‘ Kashtakari Lokhit ’ to the intervener stating therein that said daily ‘ Kashtakari Lokhit ’ is being published from 19/2/1989 and said newspaper is not being published regularly from November 2004 and further said letter mentions that late Manohar Karkar Shikshan Prasarak Mandal, Jawla, Tq. Paranda, Dist. Osmanabad have never sent any advertisement for publication and on 14/2/2006, daily ‘ Kashtakari Lokhit ’ newspaper was not published. At page 82, there is a letter written by the Education Officer, Osmanabad raising her objections for the appointment of petitioner as Head Mistress, in which it is stated that the letter obtained from the intervener that the intervener is not interested to work as a Head Mistress, is contrary