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2023 Supreme(Bom) 979
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Patel, Neela Gokhale, JJ.
Abdul Jabbar Shaikh – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No. 460 of 2023
Decided On : 30-01-2023
Amrut Joshi, Advocate, Akhil Kupade, Advocate, N.C.Walimbe, Advocate, Sujeet Bugade, Advocate, Omkar Mane, Advocate
The power of review must be specifically conferred by statute and cannot be exercised in anticipation of civil disputes.
Headnote:
Review Power - Appointment Dispute - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Sec. 3(2) of the MEPS Act
Fact of the Case:
The Petitioner, an assistant teacher, was appointed as the Headmaster and granted extensions in accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and the MEPS Act. The 4th Respondent, in a purported review, revoked the approval for the extension, leading to a legal dispute.
Finding of the Court:
The court found that the 4th Respondent's review power was not conferred by statute and was exercised in anticipation of civil disputes, which was not a sufficient reason. The court held that the review was illegal and arbitrary, and ruled in favor of the Petitioner.
Issues: The legality, validity, and propriety of the 4th Respondent's revocation of the extension approval for the Petitioner's appointment as Headmaster.
Ratio Decidendi: The court emphasized that the power of review must be specifically conferred by statute and cannot be exercised in anticipation of civil disputes. The approval for the extension created undoubted rights and had consequences for the college and students, making it not purely ministerial.
Final Decision: The court made the rule absolute, quashing and setting aside the impugned order, and declared it illegal, arbitrary, and in egregious violation of Rule 17(2) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. No costs were awarded.
JUDGMENT
1. Rule. The contesting Respondents waive service. Rule returnable forthwith.
2. In our view, the Petition deserves to be allowed on one simple legal ground. By an impugned order of 30/12/2022 passed by the 4th Respondent, The Education Officer (Secondary), Zilla Parishad, Solapur, the authority has purported to review his predecessor's earlier order. The fact that the officer who passed the order purported to be reviewed was another person only makes matters that much worse.
3. The Petitioner holds an M.A. B.Ed. He was appointed to a vacant post of an assistant teacher in the Solapur Social Association Urdu High School and Junior College of Science, Solapur. This is the 6th Respondent and it is run by the 5th Respondent.
4. There is no dispute about the legality of the Petitioner's initial appointment. The Petitioner was on probation from 20/1/1996. This appointment was in accordance with the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and the governing Act, the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.
5. On 3/2/1996, the management sent a detailed proposal to the 4th Respondent for formalising his appointment and seeking approval. That approval followed with effect from 20/1/1996, the date of commencement of the probation. Later, the Petitioner was appointed as an assistant teacher in the trained graduate pay scale with effect from 1/4/2003. For this the management also sent a detailed proposal for approval to the 4th Respondent. That was granted on 11/6/2003.
6. The Petitioner served for more than 12 years and became entitled to be appointed as the Headmaster of the school. The management decided to appoint the Petitioner as the Headmaster inter alia invoking Sec. 3(2) of the MEPS Act. His appointment as Headmaster was from 1/9/2007 by the Trust. Once again, the management submitted a proposal on 5/9/2007 for approval of the appointment of the Petitioner as a Headmaster. Even this received approval from the 4th Respondent on 8/10/2007 with effect from 1/9/2007 in a regular pay scale.
7. The Petitioner's appointment was extended periodically. He was due to retire by superannuation on 31/12/2022, in the midst of the educational term of 2022 -2023. Therefore, the management passed a resolution on 6/10/2022 granting him an extension in the post of Headmaster to avoid prejudice to the school and the students. This extension was as contemplated by Rule 17(2) of the MEPS Rules. The extension was till the end of the academic term for 2022 -2023 since the Petitioner was retiring by superannuation in the middle of the academic year.
8. Even for this extension the management sought approval from the 4th Respondent. The 4th Respondent granted its approval on 10/11/2022 subject to certain conditions which the Petitioner states have been fulfilled. Again, that extension was only to the end of that academic year.
9. It seems then that some persons claiming to be aggrieved and who are represented before us today saying they were trustees or committee members made complaints to the 4th Respondent. It is unfortunate that in this contest between rival claimants to management and trusteeship, a person like the Petitioner who has served the institution, college and its students for nearly two decades should be caught in the crossfire and should have to suffer like this. We are not concerned with the merits of that dispute or with the change reports that are said to be filed with the Charity Commissioner. Those will be dealt with in accordance with law. We are expressing no opinion in that regard. There are also civil suits filed in various Courts. Even those are of no consequence so far as we are concerned. What is relevant is that on 30/12/2022 the officer then temporarily holding charge in the office of the 4th Respondent, in purported exercise of some power of the review, sought to upset, overturn and reverse the previously approved extension pro
