We
find that the petitions deserve to be allowed on short
ground that by the impugned order, Respondent
Education Officer has set aside the order passed by the
earlier Education Officer. As such, the impugned order
revokes the approval granted by the earlier order passed
by the predecessor in the office of the Respondent
Education Officer. By now, it is settled principle of law
that unless the power of review is specifically or by
necessary implication provided, the authority cannot
review its own order. No doubt, if an order is obtained by
exercising fraud, it would stand vitiated. However, it is
not the case of the Respondent- Education Officer that
Petitioners have obtained their initial orders by
fraudulent means. If the earlier Education Officer had
granted approval to the Petitioners' appointment, may be
erroneously, the same cannot be made a ground to recall
the same and pass contrary order, unless a case of fraud,
misrepresentation or suppression is made out.
Particularly when most of the Petitioners have already
put in their services for 11 years, the impugned orders
would amount to penalising them for no fault on their
part.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO.12234 OF 2016
Vikrant Prataprao Gaikwad Vs The State of Maharashtra
CORAM : S. S. SHINDE,
V. G. BISHT, JJ
DATE : 28th February 2020
JUDGMENT :- (S. S. SHINDE, J.)
Citation: 2021(2) MHLJ 316
1 Rule. Rule is made returnable forthwith. Lerarned AGP waives
service of notice for the Respondents-State; and Mr. Pritam Nigade waives
service of notice for Respondent Nos. 4 and 5 in the both the Petitions. By
consent of parties, petitions are taken up for final hearing.
2 Since facts in both the petitions are common, both petitions are heard
together and disposed of by this common judgment.
3 In so far as Petitioner in Writ Petition No. 12234 of 2016 is concerned,
he came to be appointed as Assistant Teacher on 30/06/2009 against a seat
which is available for the open category. On 13/07/2010 Respondent No. 2
granted approval to the appointment of Petitioner as Assistant Teacher. The
Petitioner successfully completed the probationary period of 2 years and was
made permanent in service of Respondent No.4 on 10/10/2012. On
29/05/2015 the Petitioner received a notice from Respondent No.2 informing
that on account of the complaint made to him an inquiry is going to be
conducted in respect of the approval granted to the appointment of the
Petitioner and the Petitioner was directed to remain present on 08/06/2015.
Accordingly Petitioner as well as Respondent Nos.4 and 5 appeared before
Respondent No.2 and filed their Say. However, Respondent No.2 did not
consider the say filed by the Petitioner and Respondent Nos.4 and 5 and
cancelled the approval granted to the appointment of Petitioner by order dated
22/01/2016. On the basis of the said order dated 22/01/2016 Respondent
No.2 withheld the salary of the Petitioner. Being aggrieved by the said order
dated 22/01/2016 the Petitioner preferred Writ Petition No.4190 of 2016 in
this Court. By order dated 25/04/2016 this Court allowed the said Petition
and directed Respondent No.2 to conduct fresh inquiry and to pass order
within 3 months. Thereafter by the impugned order dated 30/07/2016
Respondent No.2 again cancelled the approval granted to the appointment of
the Petitioner. Hence this Petition.
4 In other Petition i.e. Writ Petition No.12346 of 2016 the Petitioner
came to be appointed as Shikshan Sevak in Respondent No.5 School on
26/07/2010. On 30/09/2010 Respondent No.2 Education Officer granted
approval to the said appointment of the Petitioner as Shikshan Sevak in SC
category and on monthly honorarium. After satisfactorily completing said
service the Petitioner became entitled to be permanent in service, and therefore
Respondent No.4 issued order to appoint the Petitioner as Assistant Teacher on
the Pay Scale from 26/07/2013 in SC category. The Respondent No.5 received
order dated 18/05/2015 issued by Respondent No.2 informing the Head
Master that the salary of the Petitioner from May 2015 should be stayed till the
hearing is concluded. The Petitioner received notice from Respondent No.2.
The Petitioner as well as Respondent No.5 appeared before Respondent No.2
and filed their Say. Respondent No.2 did not consider the Say filed by the
Petitioner as well as Respondent Nos.4 and 5 and cancelled the approval
granted to the appointment of the Petitioner by order dated 22/01/2016. Being
aggrieved by the said order dated 22/01/2016, the Petitioner preferred Writ
Petition No.2955 of 2016 in this Court. This Court by order dated 25/04/2016
allowed the said Writ Petition and directed Respondent No.2 to conduct fresh
inquiry and pass order within three months. Thereafter by the impugned order
dated 30/07/2016 Respondent No.2 again cancelled the approval granted to
the appointment of the Petitioner. Hence this Petition.
5 In both the Petitions the dates of approval and the appointment as
Assistant Teacher of the Petitioners are different, however, the orders
cancelling the approval granted to their appointments is of the same date i.e.
30/07/2016.
6 In Writ Petition No.12234 of 2016 an Affidavit in reply has been filed by
the Dy. Education Officer. It is stated that considering back log of 6 posts of
various backward class categories it was not permissible to appoint candidate
from open category when already teacher belonging to open category are in
excess than actually required as per percentage ear marked. It is also stated
that the appointment of the Petitioner is not as per provisions of rules and
hence the same is improper.
7 The learned AGP appearing for the Respondents/State fairly
conceded that the facts in Writ Petition No.12234 of 2016 and Writ Petition
No.12346 of 2016 are similar in nature. It is also submitted across the bar that
by earlier order dated 01/08/2017 passed in Group of Petition i.e. Writ Petition
No.10133 of 2016 and others this Court (Coram : B. R. Gavai & Riyaz I Chagla,
JJ) disposed of the said Writ Petition by holding that the impugned orders
dated 20/07/2016 are not sustainable in law. It is informed that the present
Writ Petitions are from the said group and remained to be disposed of. It
appears that the facts involved in both the Writ Petitions and the facts in the
said Group of Petitions are similar in nature. The learned counsel for the
parties, therefore, submits that both these Petitions can be disposed of on the
basis of the said order dated 01/08/2017.
8 In the context of the aforesaid submissions, paragraphs 6 and 7 of
the order dated 01/08/2017 are relevant and are reproduced herein under for
ready reference :-
6 We find that it will not be necessary for us to go into the
merits to find out as to whether the reasons given by the
Education Officer in the affidavit are correct or not. We
find that the petitions deserve to be allowed on short
ground that by the impugned order, Respondent
Education Officer has set aside the order passed by the
earlier Education Officer. As such, the impugned order
revokes the approval granted by the earlier order passed
by the predecessor in the office of the Respondent
Education Officer. By now, it is settled principle of law
that unless the power of review is specifically or by
necessary implication provided, the authority cannot
review its own order. No doubt, if an order is obtained by
exercising fraud, it would stand vitiated. However, it is
not the case of the Respondent- Education Officer that
Petitioners have obtained their initial orders by
fraudulent means. If the earlier Education Officer had
granted approval to the Petitioners' appointment, may be
erroneously, the same cannot be made a ground to recall
the same and pass contrary order, unless a case of fraud,
misrepresentation or suppression is made out.
Particularly when most of the Petitioners have already
put in their services for 11 years, the impugned orders
would amount to penalising them for no fault on their
part.
7 In that view of the matter, we find that the impugned
orders dated 30th July, 2016 are not sustainable in law.
We, however, clarify that if the Education Officer is of the
view that in some of the schools backlog of reserved
category candidates is not properly maintained, the
Education Officer would always be empowered to insist
that hereinafter no candidate belonging to open category
shall be filled in unless the quota of reserved category
candidates, as per the requirement of MEPS Act Rules, is
fulfilled.
9 In view of order dated 01/08/2017 passed in the group of
Petitions i.e. Writ Petition No.10133 of 2016 and others, both the present Writ
Petitions are also required to be disposed of. Therefore Rule in both the Writ
Petition is made absolute in terms of prayer clause (b) with no orders as to
costs. Both the Writ Petitions are accordingly disposed of.
[V. G. BISHT, J] [S. S. SHINDE , J]
No comments:
Post a Comment