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2012 DIGILAW 2265 (BOM)

Sanjay Khemraj Rathod v. State of Maharashtra

2012-12-05

A.V.NIRGUDE

body2012
Judgment : 1. This writ petition challenges part of order dated 19th September, 2011 passed by the Appellate Authority appointed under the provisions of Ashram School Code. The facts leading to this litigation, in short, can be stated as under: 2. The Petitioner – Sanjay was appointed as an assistant teacher in 1998 in a school by name Kai. Sau. Vatsalabai Pote Ashram Shala, Bardari, Taluka and District Ahmednagar, which is run by a public trust. This is a Government aided school. On 30th May, 2003, the Petitioner was appointed on probation on the post of Headmaster for a period of one year. Respondent No.2, who is competent Authority for granting of approval for such appointment, granted approval vide order dated 30th April, 2004. The Petitioner even after April 2004, continued on the said post though no specific order appointing him as Headmaster for period subsequent to April 2004 was passed. The Management of the school, however, by resolution dated 1st April, 2007 decided to appoint the Petitioner on the post of Headmaster with effect from 1st May, 2004. Thus, they decided to appoint him permanently as Headmaster and sent a proposal for approval to Respondent No.2. Respondent No.2, however, refused to grant such approval and passed a one line order. The Petitioner challenged this order under Section 3.35 of the Code before the Divisional Social Welfare Officer, Nasik Division, Nasik. After hearing the submissions of all the parties, the Divisional Officer allowed the Petitioner’s appeal partly and directed Respondent No.2 to accord sanction for Petitioner’s appointment as Headmaster with effect from 9th May, 2011. Being aggrieved, the Petitioner came to this Court by filing this writ petition. He says that, he deserved to get approval from 1st May, 2004. 3. Respondent No.2 apposed the petition by filing reply. In this reply, he defended the order. But, made no reference to any reason as to why the Petitioner cannot be given approval from 1st May, 2004 and why approval granted from 9th May, 2011 was correct. In paragraph No.7 of the affidavit, he stated as under: “7. It is further submitted that, the Chairman of the said society vide letter dt. 3.9.2007 informed to this deponent about the different allegations and to take legal action against the present petitioner as well as to stop his salary. In paragraph No.7 of the affidavit, he stated as under: “7. It is further submitted that, the Chairman of the said society vide letter dt. 3.9.2007 informed to this deponent about the different allegations and to take legal action against the present petitioner as well as to stop his salary. It is pertinent to note that, the Chairman of the said society has taken objection on the proposal of appointment of petitioner as Headmaster, therefore, the office of this deponent has not taken any action on the proposal of the petitioner.” 4. The question is whether the Petitioner was entitled to get approval with effect from 1st May, 2004? The answer appears to be in affirmative. All along the Petitioner claimed and it is not denied that he worked as Headmaster of the school even after his tenure of one year on probation was over on 1st May, 2004. There is nothing on record to show that the Petitioner did not act as Headmaster of the school after 1st May, 2004 or that someone else was appointed by the Management of the school. It is also an admitted fact that there is dispute pending between two factions of Management. It is apparent that the Chairman is opposed to rest of the Committee and he has been making allegations against the Petitioner. However, the Management by majority decision sent a resolution approving appointment of the Petitioner as Headmaster of the school with effect from 1st May, 2004. It can be argued that since the proposal for sanction was sent rater belatedly in 2011, it required different consideration for giving approval. However, there does not appear any reason as to why approval should not be given to the Petitioner’s appointment as Headmaster with effect from 1st May, 2004 because the resolution passed by the Management has clearly stated that they wanted such approval. This indicates that the Management of the school accepted the fact that the Petitioner acted as Headmaster of the school even after his first tenure of one year was over till today. The Appellate Authority as said above, did not give any reason why approval from 1st April, 2004 should not be given and why only it should be given only from 9th May, 2011. The learned AGP could not throw any light on this subject. The Appellate Authority as said above, did not give any reason why approval from 1st April, 2004 should not be given and why only it should be given only from 9th May, 2011. The learned AGP could not throw any light on this subject. However, as stated above, it was necessary for Respondent No.2 to examine the case and find out as to whether the Petitioner has in fact acted as Headmaster from 1st May, 2004 till date. Now it is clear that the answer is in affirmative. So then he has no reason not to grant approval for such appointment. Therefore, the writ petition should succeed and the Petitioner should get approval for the post of Headmaster with effect from 1st May, 2004. 5. Petition is allowed on above terms and the same stands disposed of.