Case Note & Summary
The petition was filed under Article 226 of the Constitution by an educational institution running a 100% granted school and its headmaster, challenging the communication dated 24.4.2009 issued by the Education Officer (Secondary), Zilla Parishad, Jalgaon, whereby the permission earlier granted to fill a vacant post was cancelled and fresh recommendation was sought. In 2007, a vacancy of S.S.C., D.Ed. arose in the school due to promotion of a teacher. The management sought permission on 18.5.2007, which was granted on 25.5.2007. After advertising and interviewing candidates, one Shaikh Chiragoddin Kamroddin was selected and appointed as Shikshan Sevak on 21.6.2007. The proposal for approval was submitted in July 2007 and remained pending. Meanwhile, a surplus teacher, Mohammad Haroon, who had been absorbed in the school earlier, sought repatriation to his parent school. The Education Officer ordered his repatriation in April 2007, and he was relieved on 5.5.2007. However, his parent school did not reabsorb him, leading to litigation, and ultimately an absorption order was passed on 17.3.2009. The Education Officer issued the impugned communication canceling the earlier permission, allegedly because the vacancy was linked to the repatriation and the post was not vacant. The petitioners argued that the cancellation after the appointment and pendency of approval was arbitrary and illegal, and that the vacancy was due to promotion, not repatriation. The respondents contended that permission was granted assuming reabsorption of the surplus teacher, and since the surplus teacher’s salary was drawn from the institution until his absorption, approval could not be granted for want of a vacant post; they offered approval prospectively from 18.3.2009. The court examined the facts and found that the permission dated 25.5.2007 was not granted on account of repatriation of the surplus teacher or on the assumption of his reabsorption. The vacancy was created by promotion, and there was no nexus between the appointment of Shaikh Chiragoddin Kamroddin and the repatriation issue. The court held the cancellation was arbitrary and directed quashing of the impugned communication, with a direction to grant approval from the date of appointment.
Headnote
A) Administrative Law - Cancellation of Permission - Arbitrary Action - Constitution of India, 1950, Article 226 - The Education Officer granted permission to fill a vacant post of Shikshan Sevak due to promotion, and after due selection process the appointee was appointed on 21.6.2007. The officer subsequently cancelled the permission after two years, without valid justification. Held, the cancellation is arbitrary and illegal, and the appointment approval cannot be denied on the ground of a repatriation dispute unrelated to the vacancy. (Paras 13-18)
B) Education Law - Repatriation of Surplus Teacher - Vacancy Independence - The vacancy arose due to promotion of a teacher, not due to repatriation of a surplus teacher. The Education Officer's linking of the appointment to the repatriation and absorption of the surplus teacher was misconceived, as the permission was not granted on the assumption of reabsorption. Held, the appointment is valid and approval must be considered based on the original vacancy. (Paras 18-19)
Issue of Consideration
Whether the Education Officer's communication dated 24.4.2009 cancelling the permission to fill a vacant post and directing fresh recommendation is arbitrary and illegal, and whether the petitioner is entitled to approval of the appointment of Shaikh Chiragoddin Kamroddin from the date of appointment.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- cancellation of permission after appointment arbitrary
- vacancy due to promotion independent of surplus teacher repatriation
- writ jurisdiction under Article 226
Case Details
2010 LawText (BOM) (10) 6
WRIT PETITION NO. 5344 OF 2009
S.B. DESHMUKH AND SHRIHARI P. DAVARE, JJ.
Smt. A.N. Ansari, advocate for the petitioners; Shri S.K. Kadam, A.G.P. for the respondents
Anjuman TaraqquiETaleem, Kasolda, Taluka Erandol, District Jalgaon, through its Chairman, Samad Ali Haji Nazar Ali; The Head Master, Haji N.M. Sayyed Urdu High School, Kasoda, Taluka Erandol, District Jalgaon
The State of Maharashtra, through Secretary, Education Department, Mantralaya, Mumbai; The Education Officer (Secondary), Zilla Parishad, Jalgaon
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Nature of Litigation
Writ petition under Article 226 of the Constitution challenging the Education Officer’s communication cancelling permission to fill a vacant post and seeking a direction to approve the appointment of a teacher from the date of appointment.
Remedy Sought
Quash the impugned letter dated 24.4.2009 and direct respondent no.2 to grant approval to the appointment of Shri Shaikh Chiragodiin Kamruddin from 21.6.2007.
Filing Reason
The Education Officer cancelled the permission granted earlier for filling the post after the appointment had been made and the proposal for approval was pending for nearly two years, without valid justification.
Previous Decisions
Mohammad Haroon (surplus teacher) filed Writ Petition No. 5812 of 2007 seeking absorption in parent school; court directed absorption; Contempt Petition No. 237 of 2008 filed; Education Officer passed absorption order on 17.3.2009.
Issues
Whether the Education Officer's communication dated 24.4.2009 canceling the permission to fill the vacant post and directing fresh recommendation is arbitrary, illegal, and in violation of the principles of natural justice.
Whether the vacancy filled by the appointment of Shaikh Chiragoddin Kamroddin was genuinely available and independent of the repatriation and absorption dispute of surplus teacher Mohammad Haroon.
Submissions/Arguments
Petitioners contended that permission was sought and granted for filling a vacant post created due to a promotion; appointment was made after due process; the Education Officer kept the approval pending for two years and then abruptly cancelled the permission without valid reason, rendering the action arbitrary and illegal.
Petitioners further argued that the cancellation is unfair and unreasonable, as it was issued in response to the approval proposal after substantial delay, and the permission was not linked to the absorption of the surplus teacher.
Respondents submitted that the permission was granted on the assumption that Mohammad Haroon would be reabsorbed by his parent school; since he was not accommodated, the post was not vacant and the approval could not be granted, but they were willing to approve the appointment from 18.3.2009, the date of his actual absorption.
Respondents also contended that the institution was directed to continue drawing the salary of Mohammad Haroon until his absorption, indicating that the post was not vacant for the period in question.
Ratio Decidendi
The Education Officer's cancellation of a previously granted permission to fill a vacant post, after the selection process and appointment have been completed and the approval proposal is pending, without any valid justification, is arbitrary and illegal. The vacancy created due to a promotion is independent of the repatriation or absorption of a surplus teacher, and the permission cannot be linked to the fate of the surplus teacher's absorption when such linkage is not supported by the facts or the original permission.
Judgment Excerpts
the respondent no.2 did not grant the said permission to petitioners by letter dated 25.5.2007 on the assumption that Mohammad Haroon would be reabsorbed 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 reabsorption to his parent school.
the impugned communication dated 24.4.2009 is arbitrary and illegal.
Procedural History
In January 2007, a vacancy arose due to promotion. On 18.5.2007, the management sought permission to fill the post. Permission was granted on 25.5.2007. Advertisement was published on 14.6.2007; interviews on 20.6.2007; selection and appointment on 21.6.2007. Proposal for approval submitted on 26.7.2007, tendered on 19.9.2007. Meanwhile, surplus teacher Mohammad Haroon was relieved on 5.5.2007 after repatriation order dated 23.4.2007. Salary direction issued on 20.9.2007. Mohammad Haroon filed WP 5812/2007; Contempt Petition 237/2008; absorption order passed on 17.3.2009. Petitioner wrote for approval on 26.3.2009. Impugned communication cancelling permission was issued on 24.4.2009. Present writ petition filed in 2009; heard and judgment reserved on 6.10.2010, pronounced on 13.10.2010.
Acts & Sections
- Constitution of India: Article 226
