Full Judgment Text
11297.2014 WP.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11297 OF 2014
Adarsh Vidyalaya Shikshan Samiti,
Manatha, Tq. Hadgaon, Dist. Nanded,
Through -
1] The President,
Marotrao s/o. Nagorao Shinde,
Aged: 62 Years, Occ: Agriculture
& Social Work,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded.
2] The General Secretary,
Sandeep s/o. Marotrao Shinde,
Aged: 28 Years, Occ: Advocate,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded. PETITIONERS
VERSUS
1] The State of Maharashtra,
Through the Secretary to the
Government of Maharashtra
in the School Education and
Sports Department,
Mantralaya, Fort, Mumbai – 32.
2] The Deputy Director of Education,
Aurangabad Region,
Aurangabad
3] The Education Officer [Secondary],
Zilla Parishad, Nanded
4] The Education Officer [Primary],
Zilla Parishad, Nanded
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5] The Headmaster,
Adarsh Vidyalaya Manatha
Kondba s/o. Namdeo Sandve,
Aged: 56 Years, Occ: Service,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded.
6] Subhashram s/o. Ghanshyam Tarte,
Aged: 60 years, Occ: Agril. and
Ex-General Secretary of
Adarsha Vidyalaya Shikshan
Samiti, Manatha,
Tq. Hadgaon, Dist. Nanded,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded. RESPONDENTS
...
Mr. N.P.Patil Jamalpurkar, Advocate for the Petitioners
Mr. N.B.Patil, AGP for Respondent – State
Mr. S.V.Deshmukh, Advocate for the Respondent No.4
Mr. M.V.Deshpande, Advocate for Respondent Nos.5 & 6
...
CORAM: S.S.SHINDE &
P.R.BORA, JJ.
Reserved on : 25.03.2015
Pronounced on: 08.04.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith heard
with the consent of the parties.
3] This Petition is filed with following prayers:
B] The order dated 12.11.2014, issued by the
respondent No.3 – Education Officer
[Secondary], Zilla Parishad, Nanded granting
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approval to the appointment of the respondent
no.5 as Headmaster on the basis of proposal
submitted by the respondent no.6 on
10.10.2014, may please be quashed and set
aside by issuing writ of certiorari, or orders, or
directions or any other appropriate writ in the
nature of writ of certiorari.
C] The respondents no.1 to 4 may please be
directed not to accept and consider any
correspondence / communication and proposal
submitted by the respondent no.6 for and on
behalf of Adarsh Vidyalaya Shikshan Samiti,
Manatha, Tq. Hadgaon, Dist. Nanded.
D] It may please be held and declared that, the
Executive Committee / Management elected on
01.05.2013 is legally entitled to administer,
control and manage the day-to-day affairs of
Adarsh Vidyalaya Shikshan Samiti, Manatha, Tq.
Hadgaon, Dist. Nanded.
Brief facts as disclosed is in the Memo of
Petition are as under:
4] It is the case of the petitioners that, the
petitioner – Adarsh Vidyalaya Shikshan Samiti, Manatha,
Taluka Hadgaon, District Nanded has been registered in
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accordance with the provisions contained in the Societies
Registration Act, 1860. It has also been registered in
accordance with the provisions contained in the
Maharashtra Public Trusts Act, 1950. It bears registration
No.F-90 [Nanded]. It is running a High School under the
name and style as ‘ Adarsh Vidyalaya’ at Manatha, Taluka
Hadgaon, District Nanded, and conducting the classes from
st th
1 to 7 Standard. It is the further case of the petitioners
that, the last elections to the Executive Committee of
Adarsh Vidyalaya Shikshan Samiti were held on 01.05.2013.
In the said elections, new Executive Committee consisting
of 11 members is constituted. The petitioners no.1 and 3
respectively were elected as President and General
Secretary. The respondent No.6 was General Secretary of
Executive Committee of the said trust for earlier term.
5] It is the further case of the petitioners that,
after the elections, on 18.06.2013, the petitioner No.1 –
Marotrao s/o. Nagorao Shinde filed change report before
the Assistant Charity Commissioner, Nanded, in accordance
with the provisions contained in Section 22 of the
Maharashtra Public Trusts Act, 1950. It is registered as
Enquiry No. 578/2013 in the office of the Assistant Charity
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Commissioner, Nanded. It is now pending. It is the further
case of the petitioners that, in the month of April, 2014, as
the post of Headmaster of Adarsh Vidyalaya fell vacant due
to retirement of Shri Wagh, the newly elected Executive
Committee took a decision to appoint Shri S.M. Manatkar as
Incharge Headmaster of Adarsha Vidyalaya. Accordingly, a
proposal was forwarded to the respondent No.3 – Education
Officer [Secondary], Zilla Parishad, Nanded for grant of
approval to the appointment of Shri S.M. Manatkar as
Incharge Headmaster. It is the further case of the
petitioners that, on 30.06.2014, the respondent No.3 –
Education Officer [Secondary], Zilla Parishad, Nanded
granted approval to the appointment of Shri S.M. Manatkar
as Incharge Headmaster with directions to the petitioners to
take immediate steps for appointing regular Headmaster.
6] It is the further case of the petitioners that, on
13.08.2014, the respondent No.6 by posing himself as
General Secretary of the Trust made a representation to the
respondent No.3 – Education Officer [Secondary] and
requested to cancel the appointment of Shri S.M.Manatkar
as Incharge Headmaster. On the basis of the
representation dated 13.08.2014 submitted by the
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respondent No.6, the respondent No.3 Education Officer
[Secondary] vide order dated 20.08.2014 cancelled the
approval granted to the appointment of Shri S.M.Manatkar
as Incharge Headmaster. It is the further case of the
petitioners that, in the year 2014, the newly elected
President of the Trust i.e. petitioner No.1 has filed Writ
Petition No.8299/2014 in this High Court for and on behalf
of the Trust, challenging the order dated 20.08.2014, issued
by the Education Officer [Secondary], Zilla Parishad,
Nanded, cancelling the order of approval granted in favour
of Shri S.M.Manatkar as Incharge Headmaster in pursuance
of the complaint made by the respondent No.6.
7] It is the further case of the petitioners that,
after hearing the parties, on 29.09.2014, this High Court
disposed of the Writ Petition No.8299/2014 and Writ
Petition No.8077/2014 on the basis of the statement made
for and on behalf of the petitioners that, if Shri Kondba s/o.
Namdeorao Sandve would approach the newly elected
Executive Committee for his appointment as Headmaster,
then the Executive Committee / Management would take
decision for his appointment. After the order passed by this
Court as referred to above, it was expected from the
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respondent No.5 – Kondba s/o. Namdeorao Sandve to give
consent in writing for his appointment on the post of
Headmaster. However, the respondent No.5 did not give
consent. In spite of that, the present Executive Committee
has taken a decision to appoint the respondent No.5 –
Kondba s/o. Namdeorao Sandve as Headmaster. It is the
further case of the petitioners that, appointment order was
issued in favour of the respondent No.5 on 07.10.2014,
directing him to join the post of Headmaster. However, the
respondent No.5 refused to accept the said appointment
order dated 07.10.2014.
8] It is the further case of the petitioners that, it
appears that, the respondent No.6 posing himself as
General Secretary of the Trust appears to have submitted a
proposal dated 10.10.2014 to the respondent No.3, seeking
approval to the appointment of respondent No.5 – Kondba
s/o. Namdeorao Sandve as Headmaster. It is the further
case of the petitioners that, the respondent No.5 – Kondba
s/o. Namdeorao Sandve wrote a letter to the petitioner No.1
on 13.10.2014, stating that, the Management of the Trust
has already appointed him as Headmaster vide order dated
01.08.2014. This appointment has been given by the
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Executive Committee members, whose names appeared in
the scheduled-I of the trust. It is the further case of the
petitioners that, the petitioner No.1 made a representation
on 17.10.2014 to the respondent No.3 – Education Officer
[Secondary], Zilla Parishad, Nanded on 17.10.2014 and
requested not to issue any order on the basis of proposal
submitted by the respondent No.6 for and on behalf of
Adarsh Vidyalaya Shikshan Samiti. The respondent No.3 –
Education Officer [Secondary], Zilla Parishad, Nanded by
order dated 12.11.2014 granted approval to the
appointment of the respondent No.5 – Kondba s/o.
Namdeorao Sandve as Headmaster. Hence this Petition.
9] The learned counsel appearing for the
petitioners submits that, after the elections the petitioner
No.1 has filed change report in accordance with the
provisions contained in Section 22 of the Maharashtra
Public Trusts Act, 1950, and same is registered as Enquiry
No. 578/2013 in the office of the Assistant Charity
Commissioner, Nanded. It is submitted that, the petitioner
No.1 is the President and the petitioner No.2 is the General
Secretary of the newly elected body and in view of the
reported Judgment of Division Bench of this Court in the
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case of Janata Shikshan Prasarak Mandal and another
Vs. The State of Maharashtra and others in Writ
Petition No.6073/2005 delivered on 22.09.2005, the newly
elected representatives can not be prohibited from
functioning, merely because the change report is pending.
The old body therefore cannot be permitted to function
merely on the count that the Change Report is pending
consideration before the appropriate authority. Therefore,
relying on the pleadings in the Petition, grounds taken
therein, annexure thereto, learned counsel appearing for
the petitioner submits that, Petition may be allowed.
10] On the other hand, the learned AGP appearing
for the respondent Nos. 1 to 3 submits that, this Court may
pass appropriate orders. The learned counsel appearing for
the respondent No. 5 invited our attention to the impugned
order at Exhibit-J Page 63 of the compilation of the Writ
Petition i.e. a letter written by the Education Officer
[Secondary], Zilla Parishad, Nanded to the President /
Secretary, Adarsh Vidyalaya Shikshan Samiti, Manatha,
Taluka Hadgaon, District Nanded and submits that, the
present petitioner also recommended the name of the
present respondent No.5 for appointment and approval,
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and therefore, the impugned order of granting approval to
the appointment of the respondent No.5 as Headmaster
deserves no interference.
11] We have given careful consideration to the
submissions advanced by the learned counsel appearing for
the petitioners and the learned counsel appearing for the
respective respondents. With their able assistance,
perused the pleadings and the grounds taken in the
Petition, annexure thereto and we are of the opinion that,
the newly elected representatives are entitled to function
and look after the affairs of the Adarsha Vidyalaya Shikshan
Samiti, Manatha, Taluka Hadgaon, District Nanded. The
Division Bench of this Court in the case of Janata
Shikshan Prasarak Mandal and another Vs. The State
of Maharashtra and others in Writ Petition No.
6073/2005, while considering the issue whether the
pendency of the Change Report before the Assistant
Charity Commissioner enables the old body to continue to
function in spite of the fact that, newly elected
representatives have assumed charge, after considering
the earlier authoritative pronouncement on the aforesaid
aspect held that, submission of the Change Report is a
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mere formality and till such time as orders are passed by
the competent authorities rejecting the Change Report, the
newly elected representatives could not be prohibited from
functioning. Merely because the change report is pending,
the old body does not continue and the old body therefore
cannot be permitted to function merely on the count that
the Change Report is pending consideration before the
appropriate authority .
[Emphasis supplied]
12] In the light of the afore stated observations of
this Court in the case of Janata Shikshan Prasarak
Mandal and another Vs. The State of Maharashtra
and others in Writ Petition No.6073/2005, in the facts of
the present case, once the newly elected representatives
have submitted change report and elected office bearers
i.e. petitioners, respondent No.6 herein had no authority
either to appoint respondent No.5 or give recommendation
for the approval of the appointment of Respondent No.5 as
Head Master. Since respondent No.6 had no authority to
appoint respondent No.5 as squeal Education Officer could
not have acted upon recommendation of the respondent
No.6 for granting approval to the appointment of the
respondent No.5 as Headmaster.
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It is not in dispute that, Kondba s/o. Namdeo
Sandve is the senior most teacher, and the petitioners have
also appointed him as Headmaster and forwarded his
proposal to that effect to the Education Officer. Therefore,
in our considered view, the appointment of the respondent
No.5 as Headmaster and approval to his services can only
be on the basis of the appointment – recommendations of
the newly elected representatives i.e. petitioners.
Therefore, we hold that, the appointment of the respondent
No.5 and also approval to his appointment as Headmaster
granted by the Education Officer was at the instance of the
present petitioners and appointment of the respondent No.
5 by the respondent No.6, or his recommendations will
have to be held per se illegal, and accordingly, we hold that
the appointment of the respondent No.5 at the instance of
the respondent No.6 or his recommendation for the
approval for the appointment as Headmaster was not
sustainable in law.
13] In the light of the discussion herein above, in
our opinion, though filing of change report is a necessary
formality, the newly elected representatives i.e. petitioners
can not be prohibited from functioning on the ground that
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the change report has not been accepted by the Assistant
Charity Commissioner. Merely because the change report
is pending, the old body does not continue and cannot be
permitted to function.
14] Thus, Respondent No.6 was not having any
right or authority to forward the proposal of Respondent No.
5 for approval. Such proposal could have been moved only
by the present petitioners and non else. Respondent Nos.1
to 4 have to act only at the instance of the elected
representatives in respect of affairs of Adarsh Vidyalaya
Shikshan Samiti, Manatha, Taluka Hadgaon, District
Nanded.
15] Rule made absolute in above terms. Petition is
allowed to above extent, and same stand disposed of.
Sd/- Sd/-
[P.R.BORA] [S.S.SHINDE]
JUDGE JUDGE
...
DDC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11297 OF 2014
Adarsh Vidyalaya Shikshan Samiti,
Manatha, Tq. Hadgaon, Dist. Nanded,
Through -
1] The President,
Marotrao s/o. Nagorao Shinde,
Aged: 62 Years, Occ: Agriculture
& Social Work,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded.
2] The General Secretary,
Sandeep s/o. Marotrao Shinde,
Aged: 28 Years, Occ: Advocate,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded. PETITIONERS
VERSUS
1] The State of Maharashtra,
Through the Secretary to the
Government of Maharashtra
in the School Education and
Sports Department,
Mantralaya, Fort, Mumbai – 32.
2] The Deputy Director of Education,
Aurangabad Region,
Aurangabad
3] The Education Officer [Secondary],
Zilla Parishad, Nanded
4] The Education Officer [Primary],
Zilla Parishad, Nanded
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5] The Headmaster,
Adarsh Vidyalaya Manatha
Kondba s/o. Namdeo Sandve,
Aged: 56 Years, Occ: Service,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded.
6] Subhashram s/o. Ghanshyam Tarte,
Aged: 60 years, Occ: Agril. and
Ex-General Secretary of
Adarsha Vidyalaya Shikshan
Samiti, Manatha,
Tq. Hadgaon, Dist. Nanded,
R/o. Manatha, Tq. Hadgaon,
Dist. Nanded. RESPONDENTS
...
Mr. N.P.Patil Jamalpurkar, Advocate for the Petitioners
Mr. N.B.Patil, AGP for Respondent – State
Mr. S.V.Deshmukh, Advocate for the Respondent No.4
Mr. M.V.Deshpande, Advocate for Respondent Nos.5 & 6
...
CORAM: S.S.SHINDE &
P.R.BORA, JJ.
Reserved on : 25.03.2015
Pronounced on: 08.04.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith heard
with the consent of the parties.
3] This Petition is filed with following prayers:
B] The order dated 12.11.2014, issued by the
respondent No.3 – Education Officer
[Secondary], Zilla Parishad, Nanded granting
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approval to the appointment of the respondent
no.5 as Headmaster on the basis of proposal
submitted by the respondent no.6 on
10.10.2014, may please be quashed and set
aside by issuing writ of certiorari, or orders, or
directions or any other appropriate writ in the
nature of writ of certiorari.
C] The respondents no.1 to 4 may please be
directed not to accept and consider any
correspondence / communication and proposal
submitted by the respondent no.6 for and on
behalf of Adarsh Vidyalaya Shikshan Samiti,
Manatha, Tq. Hadgaon, Dist. Nanded.
D] It may please be held and declared that, the
Executive Committee / Management elected on
01.05.2013 is legally entitled to administer,
control and manage the day-to-day affairs of
Adarsh Vidyalaya Shikshan Samiti, Manatha, Tq.
Hadgaon, Dist. Nanded.
Brief facts as disclosed is in the Memo of
Petition are as under:
4] It is the case of the petitioners that, the
petitioner – Adarsh Vidyalaya Shikshan Samiti, Manatha,
Taluka Hadgaon, District Nanded has been registered in
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accordance with the provisions contained in the Societies
Registration Act, 1860. It has also been registered in
accordance with the provisions contained in the
Maharashtra Public Trusts Act, 1950. It bears registration
No.F-90 [Nanded]. It is running a High School under the
name and style as ‘ Adarsh Vidyalaya’ at Manatha, Taluka
Hadgaon, District Nanded, and conducting the classes from
st th
1 to 7 Standard. It is the further case of the petitioners
that, the last elections to the Executive Committee of
Adarsh Vidyalaya Shikshan Samiti were held on 01.05.2013.
In the said elections, new Executive Committee consisting
of 11 members is constituted. The petitioners no.1 and 3
respectively were elected as President and General
Secretary. The respondent No.6 was General Secretary of
Executive Committee of the said trust for earlier term.
5] It is the further case of the petitioners that,
after the elections, on 18.06.2013, the petitioner No.1 –
Marotrao s/o. Nagorao Shinde filed change report before
the Assistant Charity Commissioner, Nanded, in accordance
with the provisions contained in Section 22 of the
Maharashtra Public Trusts Act, 1950. It is registered as
Enquiry No. 578/2013 in the office of the Assistant Charity
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Commissioner, Nanded. It is now pending. It is the further
case of the petitioners that, in the month of April, 2014, as
the post of Headmaster of Adarsh Vidyalaya fell vacant due
to retirement of Shri Wagh, the newly elected Executive
Committee took a decision to appoint Shri S.M. Manatkar as
Incharge Headmaster of Adarsha Vidyalaya. Accordingly, a
proposal was forwarded to the respondent No.3 – Education
Officer [Secondary], Zilla Parishad, Nanded for grant of
approval to the appointment of Shri S.M. Manatkar as
Incharge Headmaster. It is the further case of the
petitioners that, on 30.06.2014, the respondent No.3 –
Education Officer [Secondary], Zilla Parishad, Nanded
granted approval to the appointment of Shri S.M. Manatkar
as Incharge Headmaster with directions to the petitioners to
take immediate steps for appointing regular Headmaster.
6] It is the further case of the petitioners that, on
13.08.2014, the respondent No.6 by posing himself as
General Secretary of the Trust made a representation to the
respondent No.3 – Education Officer [Secondary] and
requested to cancel the appointment of Shri S.M.Manatkar
as Incharge Headmaster. On the basis of the
representation dated 13.08.2014 submitted by the
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respondent No.6, the respondent No.3 Education Officer
[Secondary] vide order dated 20.08.2014 cancelled the
approval granted to the appointment of Shri S.M.Manatkar
as Incharge Headmaster. It is the further case of the
petitioners that, in the year 2014, the newly elected
President of the Trust i.e. petitioner No.1 has filed Writ
Petition No.8299/2014 in this High Court for and on behalf
of the Trust, challenging the order dated 20.08.2014, issued
by the Education Officer [Secondary], Zilla Parishad,
Nanded, cancelling the order of approval granted in favour
of Shri S.M.Manatkar as Incharge Headmaster in pursuance
of the complaint made by the respondent No.6.
7] It is the further case of the petitioners that,
after hearing the parties, on 29.09.2014, this High Court
disposed of the Writ Petition No.8299/2014 and Writ
Petition No.8077/2014 on the basis of the statement made
for and on behalf of the petitioners that, if Shri Kondba s/o.
Namdeorao Sandve would approach the newly elected
Executive Committee for his appointment as Headmaster,
then the Executive Committee / Management would take
decision for his appointment. After the order passed by this
Court as referred to above, it was expected from the
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respondent No.5 – Kondba s/o. Namdeorao Sandve to give
consent in writing for his appointment on the post of
Headmaster. However, the respondent No.5 did not give
consent. In spite of that, the present Executive Committee
has taken a decision to appoint the respondent No.5 –
Kondba s/o. Namdeorao Sandve as Headmaster. It is the
further case of the petitioners that, appointment order was
issued in favour of the respondent No.5 on 07.10.2014,
directing him to join the post of Headmaster. However, the
respondent No.5 refused to accept the said appointment
order dated 07.10.2014.
8] It is the further case of the petitioners that, it
appears that, the respondent No.6 posing himself as
General Secretary of the Trust appears to have submitted a
proposal dated 10.10.2014 to the respondent No.3, seeking
approval to the appointment of respondent No.5 – Kondba
s/o. Namdeorao Sandve as Headmaster. It is the further
case of the petitioners that, the respondent No.5 – Kondba
s/o. Namdeorao Sandve wrote a letter to the petitioner No.1
on 13.10.2014, stating that, the Management of the Trust
has already appointed him as Headmaster vide order dated
01.08.2014. This appointment has been given by the
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Executive Committee members, whose names appeared in
the scheduled-I of the trust. It is the further case of the
petitioners that, the petitioner No.1 made a representation
on 17.10.2014 to the respondent No.3 – Education Officer
[Secondary], Zilla Parishad, Nanded on 17.10.2014 and
requested not to issue any order on the basis of proposal
submitted by the respondent No.6 for and on behalf of
Adarsh Vidyalaya Shikshan Samiti. The respondent No.3 –
Education Officer [Secondary], Zilla Parishad, Nanded by
order dated 12.11.2014 granted approval to the
appointment of the respondent No.5 – Kondba s/o.
Namdeorao Sandve as Headmaster. Hence this Petition.
9] The learned counsel appearing for the
petitioners submits that, after the elections the petitioner
No.1 has filed change report in accordance with the
provisions contained in Section 22 of the Maharashtra
Public Trusts Act, 1950, and same is registered as Enquiry
No. 578/2013 in the office of the Assistant Charity
Commissioner, Nanded. It is submitted that, the petitioner
No.1 is the President and the petitioner No.2 is the General
Secretary of the newly elected body and in view of the
reported Judgment of Division Bench of this Court in the
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case of Janata Shikshan Prasarak Mandal and another
Vs. The State of Maharashtra and others in Writ
Petition No.6073/2005 delivered on 22.09.2005, the newly
elected representatives can not be prohibited from
functioning, merely because the change report is pending.
The old body therefore cannot be permitted to function
merely on the count that the Change Report is pending
consideration before the appropriate authority. Therefore,
relying on the pleadings in the Petition, grounds taken
therein, annexure thereto, learned counsel appearing for
the petitioner submits that, Petition may be allowed.
10] On the other hand, the learned AGP appearing
for the respondent Nos. 1 to 3 submits that, this Court may
pass appropriate orders. The learned counsel appearing for
the respondent No. 5 invited our attention to the impugned
order at Exhibit-J Page 63 of the compilation of the Writ
Petition i.e. a letter written by the Education Officer
[Secondary], Zilla Parishad, Nanded to the President /
Secretary, Adarsh Vidyalaya Shikshan Samiti, Manatha,
Taluka Hadgaon, District Nanded and submits that, the
present petitioner also recommended the name of the
present respondent No.5 for appointment and approval,
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and therefore, the impugned order of granting approval to
the appointment of the respondent No.5 as Headmaster
deserves no interference.
11] We have given careful consideration to the
submissions advanced by the learned counsel appearing for
the petitioners and the learned counsel appearing for the
respective respondents. With their able assistance,
perused the pleadings and the grounds taken in the
Petition, annexure thereto and we are of the opinion that,
the newly elected representatives are entitled to function
and look after the affairs of the Adarsha Vidyalaya Shikshan
Samiti, Manatha, Taluka Hadgaon, District Nanded. The
Division Bench of this Court in the case of Janata
Shikshan Prasarak Mandal and another Vs. The State
of Maharashtra and others in Writ Petition No.
6073/2005, while considering the issue whether the
pendency of the Change Report before the Assistant
Charity Commissioner enables the old body to continue to
function in spite of the fact that, newly elected
representatives have assumed charge, after considering
the earlier authoritative pronouncement on the aforesaid
aspect held that, submission of the Change Report is a
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mere formality and till such time as orders are passed by
the competent authorities rejecting the Change Report, the
newly elected representatives could not be prohibited from
functioning. Merely because the change report is pending,
the old body does not continue and the old body therefore
cannot be permitted to function merely on the count that
the Change Report is pending consideration before the
appropriate authority .
[Emphasis supplied]
12] In the light of the afore stated observations of
this Court in the case of Janata Shikshan Prasarak
Mandal and another Vs. The State of Maharashtra
and others in Writ Petition No.6073/2005, in the facts of
the present case, once the newly elected representatives
have submitted change report and elected office bearers
i.e. petitioners, respondent No.6 herein had no authority
either to appoint respondent No.5 or give recommendation
for the approval of the appointment of Respondent No.5 as
Head Master. Since respondent No.6 had no authority to
appoint respondent No.5 as squeal Education Officer could
not have acted upon recommendation of the respondent
No.6 for granting approval to the appointment of the
respondent No.5 as Headmaster.
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It is not in dispute that, Kondba s/o. Namdeo
Sandve is the senior most teacher, and the petitioners have
also appointed him as Headmaster and forwarded his
proposal to that effect to the Education Officer. Therefore,
in our considered view, the appointment of the respondent
No.5 as Headmaster and approval to his services can only
be on the basis of the appointment – recommendations of
the newly elected representatives i.e. petitioners.
Therefore, we hold that, the appointment of the respondent
No.5 and also approval to his appointment as Headmaster
granted by the Education Officer was at the instance of the
present petitioners and appointment of the respondent No.
5 by the respondent No.6, or his recommendations will
have to be held per se illegal, and accordingly, we hold that
the appointment of the respondent No.5 at the instance of
the respondent No.6 or his recommendation for the
approval for the appointment as Headmaster was not
sustainable in law.
13] In the light of the discussion herein above, in
our opinion, though filing of change report is a necessary
formality, the newly elected representatives i.e. petitioners
can not be prohibited from functioning on the ground that
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the change report has not been accepted by the Assistant
Charity Commissioner. Merely because the change report
is pending, the old body does not continue and cannot be
permitted to function.
14] Thus, Respondent No.6 was not having any
right or authority to forward the proposal of Respondent No.
5 for approval. Such proposal could have been moved only
by the present petitioners and non else. Respondent Nos.1
to 4 have to act only at the instance of the elected
representatives in respect of affairs of Adarsh Vidyalaya
Shikshan Samiti, Manatha, Taluka Hadgaon, District
Nanded.
15] Rule made absolute in above terms. Petition is
allowed to above extent, and same stand disposed of.
Sd/- Sd/-
[P.R.BORA] [S.S.SHINDE]
JUDGE JUDGE
...
DDC
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