1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 5344 OF 2009 1 Anjuman Taraqqui-E-Taleem, Kasolda, Taluka Erandol, District Jalgaon, through its Chairman, Samad Ali Haji Nazar Ali, age 65 years, occupation Chairman, Resident of Syed Mohalla, Kasoda, Taluka Ernadol, District Jalgao. 2 The Head Master, Haji N.M. Sayyed Urdu High School, Kasoda, Taluka Erandol, District Jalgaon. ...Petitioner VERSUS 1 The State of Maharashtra, through Secretary, Education Department, Mantralaya, Mumbai-400 008, 2 The Education Officer (Secondary), Zilla Parishad, Jalgaon ...Respondents ..... Smt. A.N.Ansari, advocate for the petitioners Shri S.K.Kadam, A.G.P. for the respondents ..... 2 CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 06.10.2010 DATE OF PRONOUNCING THE JUDGMENT : 13.10.2010 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing at the admission stage. 2 By the present petition, filed by the petitioners under Article 226 of the Constitution of India, the petitioner by prayer clauses ‘B’ and ‘C’ prayed as follows :- “(B) To quash and set aside the impugned letter dated 24.4.2009 passed by Respondent no.2 by issuing any appropriate writ, order or direction as the case may be. 3 (C) The Respondent no.2 be directed to grant the approval to the appointment of Shri Shaikh Chiragodiin Kamruddin from the date of appointment dated 21.6.2007 by issuing any appropriate writ, order or direction as the case may be. “ FACTUAL MATRIX :- 3 Petitioner no.1 is the Educational Institution receiving 100% grants and petitioner no.2 is the School run by petitioner no.1; whereas respondent no.1 is the State of Maharashtra, represented through its Secretary, Education Department, Mantralaya, Mumbai and respondent no.2 is the Education Officer (Secondary), Zilla Parishad, Jalgaon. 4 In the year 2007, one vacancy of S.S.C., D.Ed. was created in petitioner no.2 School on account of promotion of one Shaikh Nuroddin Gaffar, who was promoted to Secondary School in the Graduate pay scale. Hence petitioner no.1 Management approached to the respondents by letter dated 18.5.2007 seeking permission to fill up the said post and copy of the said letter dated 18.5.2007 is annexed at Exh. ‘A’ collectively. In response, the respondent no.2 granted said permission by letter dated 25.5.2007 4 and copy thereof is annexed at Exh. ‘A’ collectively. 5 Pursuant to the said permission, the petitioners gave an advertisement in local daily news paper, ‘Gaokari” for filling the said post and copy of the said advertisement is annexed at Exh. ‘B’. Accordingly, interviews of nine candidates were conducted on 20.6.2007 and depending upon the performance, one of the said candidates, namely Shaikh Chiragoddin Kamroddin was selected. Copy of the said performance sheet is annexed at Exh. ‘C’ collectively. Hence, petitioner no.1 Management decided to appoint the said selected candidate as Shikshan Sevak (Primary) and resolution to that effect came to be passed on 20.6.2007 and copy thereof is annexed at Exh. ‘C’ collectively (page no.17). 6 In pursuance of the said selection and resolution, Shaikh Chiragoddin Kamroddin came to be appointed by the petitioners by appointment letter dated 21.6.2007 as Shikshan Sevak (Primary) for the period of three years from 21.6.2007 and copy of the said appointment letter is annexed at Exh. ‘D’. 7 Thereafter, the petitioners submitted the proposal for approval of the appointment of Shaikh Chiragoddin Kamroddin as 5 afore said, by letter dated 26.7.2007, which was tendered to respondent no.2 on 19.9.2007 and the same was pending approval with respondent no.2 since September, 2007. 8 The other relevant facts, which are necessary to mention, are that petitioner no.1 Management is running the classes from 5 th to 10 th standards and at the time of granting additional division of 8 th standard in the year 1997, the Education Officer put the condition that the surplus teacher, namely Mohammad Haroon be absorbed and the petitioner/Management complied with the said condition. Prior to absorption, said Mohammad Haroon was serving with Anglo Urdu High School, Chalisgaon and he was declared surplus in the school and was absorbed in the school of present Management. However, in the year 2007, a vacancy arose in Anglo Urdu High School i.e. parent school of Mohammad Haroon, and hence, he expressed his desire to be repatriated to his parent school by application dated 15.2.2007. 9 Accordingly, after ascertaining the factual position, the Education Officer granted the same vide letter dated 23.4.2007 asking the petitioner to relieve him forthwith. Accordingly, said surplus teacher was relieved from the present school on 5.5.2007 6 and copy of the order sending the surplus teacher to his parent school, passed by the Education Officer on 23.4.2007 is annexed at Exh. ‘F’. However, since said Mohammad Haroon was not absorbed in his parent school, respondent no.2 asked the petitioner to release his salary till his absorption in his parent school by letter dated 20.9.2007 and copy thereof is annexed at Exh. ‘G’. 10 Besides, although said Mohammad Haroon was relieved from the petitioner school and was not absorbed in the parent school, he filed Writ Petition No. 5812 of 2007 before this court and this court directed his absorption in the parent school. Said direction was not complied with, and therefore, Contempt Petition No. 237 of 2008 was filed, and ultimately, the Education Officer came with the order dated 17.3.2009 about absorption of said Mohammad Haroon. 11 After absorption of Mohammad Haroon, as afore stated, the petitioner wrote a letter to respondent no.2 on 26.3.2009 about approval of Shaikh Chiragoddin Kamroddin and copy thereof is annexed at Exh. ‘H’. However, in response to the said letter of petitioner, respondent no.2 sent the communication dated 24.4.2009 canceling the permission granted to fill up the post after publishing the advertisement on 25.5.2007 and asked the petitioner to submit 7 fresh recommendation for permission. 12 Being aggrieved and dissatisfied by the afore said impugned communication, dated 24.4.2009, the petitioners have challenged the same in the present petition. SUBMISSIONS :- 13 Learned counsel for the petitioners canvassed that on the promotion of Shaikh Nuroddin Gaffar on 10.1.2007, a post of S.S.C. D.Ed. of Shikshan Sevak was created in petitioner no.2 School, and therefore, although the petitioner sought permission from respondent no.2 to fill up the said post after publishing the advertisement therefor by letter dated 18.5.2007, and although permission was granted by respondent no.2 to the petitioner therefor by letter dated 25.5.2007, and although accordingly the petitioners published the advertisement for the said post in local daily news paper ‘Gaokari’ on 14.6.2007, to which nine candidates responded, who were interviewed on 20.6.2007, out of them, a candidate namely Shaikh Chiragoddin Kamroddin was selected considering his performance and although appointment letter was issued to the said appointee by petitioners on 21.6.2007, appointing him as Shikshan Sevak for the period of three 8 years in petitioner no.2 school, and thereafter although proposal for his approval was sent by petitioner no.2 on 26.6.2007, respondent no.2 kept the said proposal pending for the substantial period of about two years and abruptly issued the impugned communication dated 24.4.2009, thereby canceling the permission granted to the petitioners by letter dated 25.5.2007 and also directing to submit fresh recommendation for permission, which is arbitrary and illegal. 14 Learned counsel for the petitioners submitted that the said action of issuance of communication dated 24.4.2009 by respondent no.2 is unfair and unreasonable. It is also submitted that pursuant to the permission granted by respondent no.2, selection process was initiated by the petitioners, and accordingly, Shaikh Chiragoddin Kamroddin was selected and he came to be appointed on 21.6.2007 for the period of three years in petitioner no.2 school and thereafter abruptly respondent no.2 issued the communication dated 24.4.2009 and canceled the same in response to the proposal of approval sent by the petitioners, having no rationale therefor, and therefore, submitted that the said impugned communication dated 24.4.2009 deserves to be quashed and set aside. 15 Respondent no.2 filed affidavit in reply, which is sworn in 9 by Ramesh Gulab Jaiswal, presently working as Superintendent in the office of Education Officer (Secondary), Zilla Parishad, Jalgaon and thereby narrated the afore said facts and opposed the present petition. 16 Learned A.G.P. appearing for the respondents canvassed that Mohammad Haroon, who was originally serving as Assistant Teacher and who was rendered surplus, was absorbed in petitioner no.2 school run by petitioner no.1 Management on 1.12.1997 and since then he was serving with the petitioners. However, in the year 2007, one vacancy arose in Anglo Urdu High School, Chalisgaon, and therefore, said Mohammad Haroon applied for repatriation to his parent school, and hence, respondent no.2 by order dated 23.4.2007 directed that Mohammad Haroon be repatriated to his parent school, and accordingly, he was relieved by the petitioner Institution on 5.5.2007. However, it is submitted that Anglo Urdu High School, Chalisgaon had not re-absorbed him, and hence, petitioner Institution was directed to continue to draw his salary from their estiblishment until said Mohammad Haroon was absorbed by Anglo Urdu High School, Chalisgaon. 17 It is further submitted that in the mean while, due to 10 repatriation of Mohammad Haroon, the petitioner applied to respondent no.2 seeking permission to fill up the vacancy arose due to repatriation of Mohammad Haroon, and accordingly, said permission was granted assuming Mohammad Haroon would be reabsorbed by his parent school. However, it is further submitted that since Mohammad Haroon was not accommodated by Anglo Urdu High School, Chalisgaon, petitioner Institution was directed to draw his salary from their establishment until such re-absorption. It is further submitted that mean while the petitioner proceeded to appoint Shaikh Chiragoddin Kamroddin as Assistant Teacher in the vacancy which arose, if Mohammad Haroon was absorbed by his parent school. Hence, learned A.G.P. for the respondents submitted that since the salary of Mohammad Haroon was being drawn from the establishment of petitioner Institution, the approval to the appointment of Shaikh Chiragoddin Kamroddin as Assistant Teacher could not be granted by respondent no.2 for want of vacant post. It is further submitted by learned A.G.P. for the respondents that ultimately Mohammad Haroon was absorbed in Anglo Urdu High School, Chalisgaon on 17.3.2009. Accordingly, learned A.G.P. for the respondents submitted that pursuant to the proposal by the petitioner Management, respondent no.2 is ready to grant approval to the appointment of Shaikh Chiragoddin Kamroddin from 11 18.3.2009. CONSIDERATION :- 18 We have perused the contents of the present petition, its annexures, contents of the affidavit in reply filed by the respondents and the impugned communication dated 24.4.2009 issued by respondent no.2 and heard the submissions advanced by learned counsel for the petitioners and the learned A.G.P. for the respondents anxiously, and at the out set, it is important to note that the petitioners sought permission by letter dated 18.5.2007 sent to respondent no.2 to fill up the vacant post, which arose on account of promotion of Shaikh Nuroddin Gaffar, and in pursuance of the said letter, respondent no.2 granted permission to the petitioners to fill up the said post after publication of advertisement by letter dated 25.5.2007 which came to be filled in after completion of selection process as afore said by appointing Shaikh Chiragoddin Kamroddin by appointment letter dated 21.6.2007 and it is material to note that respondent no.2 did not grant said permission on account of repatriation of Mohammad Haroon to his parent school. Moreover, the respondent no.2 did not grant the said permission to petitioners by letter dated 25.5.2007 on the assumption that Mohammad Haroon 12 would be re-absorbed by his parent school, as canvassed by learned A.G.P. for the respondents and there is no substance in the said arguments advanced by the learned A.G.P. for the respondents. In substance, the appointment of Shaikh Chiragoddin Kamroddin as Assistant Teacher was on the vacant post which was created on account of promotion of Shaikh Nuroddin Gaffar and not on account of repatriation of Mohammad Haroon and his alleged re-absorption to his parent school, and the argument advanced by learned A.G.P. for the respondents is misconceived in that respect, and therefore, there is no connection between the appointment of Shaikh Chiragoddin Kamroddin on 21.6.2007 and alleged re-absorption of Mohammad Haroon to his parent school on 18.3.2009 on his repatriation. 19 Besides that although it is stated by respondent no.2 in his affidavit in reply that Mohammad Haroon was directed to be re- absorbed in his parent school by the repatriation order dated 23.9.2007, his parent school Anglo Urdu High School, Chalisgaon did not re-absorb him as per the said order till 18.3.2009, but pertinently, affidavit in reply filed by respondent no.2 is silent regarding any action taken by respondent no.2 against the said parent school of Mohammad Haroon and respondent no.2 has not given any justification for the said inaction, nor the action of 13 respondent no.2 of issuance of impugned communication dated 24.4.2009, canceling already granted permission by letter dated 25.5.2007, can be justified. Moreover, it is significant to note that there is no whisper in the letter dated 25.5.2007 issued by respondent no.2 to the petitioners that permission to fill up the post of Shikshan Sevak was granted by letter dated 18.5.2007 because of repatriation of Mohammad Haroon, and such reason given by respondent no.2 in the impugned communication dated 24.4.2009, i.e. after almost two years, is without any basis and foundation, and hence, the said impugned communication deserves to be quashed and set aside. 20 In the circumstances, we are of the considered view that there is no substance in the arguments canvassed by the learned A.G.P. for the respondents and the action of respondent no.2 of issuance of impugned communication dated 24.4.2009 is apparently arbitrary, and therefore, same deserves to be quashed and set aside. Moreover, since Shaikh Chiragoddin Kamroddin has been working with petitioner no.2 school since 21.6.2007 as per appointment letter dated 21.6.2007, the respondent no.2 is required to be directed to grant approval to the said appointment of Shaikh Chiragoddin Kamroddin from the date of his appointment i.e. 21.6.2007, which 14 shall subserve the interest of justice. 21 In the result, present petition succeeds and same is allowed in terms of prayer clauses ‘B’ and ‘C’ thereof. Rule is made absolute in the afore said terms. No costs. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) dbm/wp5344.09