Mrs. Shivanee Prasanna Deshpande v. The State Of Maharashtra Through Secretary And ORS

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION No. 10133 OF 2016 Mrs. Shivanee Prasanna Deshpande ...

WRIT PETITION No. 10134 OF 2016 Mrs. Archana Prasad Dhavalikar WRIT PETITION No. 10135 OF 2016 Ms. Suvarna Narayan Jadhav WRIT PETITION No. 10136 OF 2016 Ms. Ujwala Ramchandra Gaikwad WRIT PETITION No. 10137 OF 2016 Mrs. Sangita Vishwas Patil WRIT PETITION No. 10138 OF 2016 1 / 10

Mrs. Anuradha Mohanrao Patil WRIT PETITION No. 10139 OF 2016 Jaydip Shivajirao Patil WRIT PETITION No. 10140 OF 2016 Sakharam Eku Kolekar WRIT PETITION No. 10141 OF 2016 Santosh Sarjerao Patil WRIT PETITION No. 10142 OF 2016 Ganesh Shankar Bidave WRIT PETITION No. 10143 OF 2016 Ms. Anupama Ishwaragouda Yallappagouda ...Petitioner 2 / 10

WRIT PETITION No. 10210 OF 2016 Narayan Gorakh Bhosale WRIT PETITION No. 10211 OF 2016 Gulab Jotiram Katkar WRIT PETITION No. 10212 OF 2016 Ankush Dada Barkade WRIT PETITION No. 10214 OF 2016 Sagar Vithoba Masal WRIT PETITION No. 10215 OF 2016 Ms. Archana Appaji Jadhav WRIT PETITION No. 10216 OF 2016 3 / 10

Shankar Sukhdev Kale WRIT PETITION No. 10217 OF 2016 Rajendra Ganpat Mali WRIT PETITION No. 10218 OF 2016 Laxman Aba Lavate WRIT PETITION No. 10219 OF 2016 Kum.Asharani Jagannath Pawar WRIT PETITION No. 10220 OF 2016 Narayan Vasant Shinde WRIT PETITION No. 10286 OF 2016 Shamrao Bajirao Naikwade 4 / 10

WRIT PETITION No. 10287 OF 2016 Milind Gopal Kumbhar WRIT PETITION No. 10288 OF 2016 Jyotiba Govind Joshi WRIT PETITION No. 10289 OF 2016 Ms. Simota Bapuso Zambare WRIT PETITION No. 10290 OF 2016 Nilesh Sahebrao Mane WRIT PETITION No. 10291 OF 2016 Kum. Deepali Shankar Patil ...

WRIT PETITION No. 10292 OF 2016 Rajiv Sahadev Kadam 5 / 10

WRIT PETITION No. 10294 OF 2016 Smt. Vaishali Tukaram Shinde WRIT PETITION No. 10295 OF 2016 Rajaram Piraji Salunkhe WRIT PETITION No. 10296 OF 2016 Nivas Shankar Mane WRIT PETITION No. 10297 OF 2016 Satish Pandurang Gurav WRIT PETITION No. 10313 OF 2016 Gorakhnath Vitthal Ghuge 6 / 10

WRIT PETITION No. 10318 OF 2016 Arjun Shrirang Thombare *** Mr. Narendra V. Bandiwadekar a/w M. G. Bagkar, for all Petitioners. Ms. Kavita Solunke, AGP for the Respondent Nos. 1 to 3. Mr. Chetan Patil, for Respondent Nos. 4 & 5 in WP. 10133/2016, 10136/2016, 10134/2016, 10135/2016, 10137/2016 to 10139/2016, 10141/2016.

Mr. R. A. Naik h/f U. R. Mankapure, for Respondent Nos. 4 & 5 in WP. 10294/2016.

*** CORAM : B. R. GAVAI, & RIYAZ I. CHAGLA, JJ.

DATE : AUGUST 1, 2017 PC.

1.

Rule. Rule is made returnable forthwith. Lerarned AGP waives service of notice for the Respondent-State; and Mr. Chetan Patil and R. A. Naik waives service of notice for Respondent Nos. 4 and 5 in the respective petitions. By consent of parties, petitions are taken up for final hearing.

2.

Since facts in all the petitions are common, all the petitions are heard together and disposed of by this common judgment 7 / 10

and order.

3.

For the sake of convenience, we are referring to the facts in Writ Petition No. 10133 of 2016. The Petitioner came to be appointed as Shikshan Sevak on 3rd November, 2009 against a seat which is available for the open category. On 13th of July, 2010 Respondent No. 2 granted approval to the appointment of Petitioner as Shikshan Sevak. After three years satisfactory completion as Shikshan Sevak by the Petitioner, Respondent No. 5 submitted proposal to the Respondent No. 2 for approval. The Education Officer vide order dated 5th March, 2013 granted approval to the Petitioner as Assistant Teacher from 3.11.2012 in open category. By the impugned order dated 30th July, 2016, the approval which was given to the appointment of the Petitioner as the Assistant Teacher has been cancelled. Being aggrieved thereby, present petition is filed. 4.

In all other petitions, though the dates of initial appointment as Shikshan Sevak, the dates of approval and appointment as Assistant Teacher of the Petitioners in other petitions are different to some extent, however, order cancelling the approval is is of same date i.e. 30th July, 2016.

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5.

Affidavit in reply is filed by the Dy. Education Officer. Perused the reasons given in the impugned orders. In some cases, it is submitted that the selection process was conducted without obtaining prior approval of the Education Officer; and in some cases it is stated that though there was a backlog of reserved category candidates, the candidates were appointed from open category. 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 RespondentEducation Officer that Petitioners have obtained their initial orders by 9 / 10

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.

8.

Rule is therefore, made absolute in terms of prayer clause (b) with no orders as to costs. All the writ petitions are accordingly disposed of.

Sd/- Sd/- [RIYAZ I. CHAGLA, J.] [B. R. GAVAI, J.] Vinayak Halemath 10 / 10