8

W. P. No. 6095/2020

12. The Commissioner, vide order dated 28.02.2020, has finally decided the appeal and set-aside the order of the Collector holding that the petitioner is not entitled to get the ten marks of BPL because admittedly, the name of her husband was not there in the BPL list before the date of issuance of the advertisement, but it was added only on the last date of submitting the applications i.e. 20.07.2015, whereas the advertisement was issued on 07.07.2015. The Commissioner, therefore, observed that if the ten marks of BPL card are deleted from the total marks awarded to the petitioner, then her total marks adds up-to 61, whereas respondent No.5 secured 64.50 marks and as such, she secured first position in the list and the Commissioner directed the Project Officer, Integrated Child Development, Sidhi, to issue order of appointment in favour of respondent No.5 cancelling the appointment order of the present petitioner.

3 Present respondent No.1 is the original complainant, who has filed private complaint bearing R.C.C. No.106/2015 before learned Judicial Magistrate First Class, Khultabad, Dist. Aurangabad. It was filed against five persons contending that they have committed offence punishable under Section 467, 468, 469, 409, 420 read with Section 34 of the Indian Penal Code.

4 Brief facts narrated in the complaint are, that the original accused No.3 is the President of institution by name Anjuman Eshat-e-Taleem and accused No.4 is the Secretary. The said institution is registered as Trust under the Maharashtra Public Trust Act. It receives 100% grants from the Government to run college by name Maulana Azad Higher Secondary School at Khultabad. Accused No.1 is serving as Assistant Teacher since 2011 and ::: Uploaded on - 08/05/2020 ::: Downloaded on - 09/05/2020 11:32:24 ::: 4 Cri.WP_932_2019+1_Jd prior to that he was serving as Shikshan Sevak in the subject of Phychology and Sociology. Accused No.2 is the Headmistress of the said school since 2008. Original accused No.5 was then Deputy Director of Education. It is contended that when accused No.1 was in service, he has completed the course of M.A. 1st part in Psychology for the academic year of 2008-09 from Vivekanand College, Aurangabad. His attendance on the Transfer Certificate of said college is said to be 75%. Thereafter, for the year 2010-11 he has completed the M.A. 2nd part in Psychology as a regular student of the said college. The college timing is stated to be 4.00 p.m. to 7.00 p.m. and for 2010-11 it is from 12.00 noon to 5.40 p.m.. The Institution record shows that during the said period, he has taken only 8 days Earned Leave. This shows that accused No. 1, in conspiracy with the accused Nos.1 to 4, was only signing the attendance register and taking the salary/honorarium of Rs.9,000/- per month, amounting to Rs.2,00,000/- for two years. It is stated that in the past also there were instances in the said college run by the accused, in respect of payments made towards salary without candidate putting any work. That amount has been recovered by the Government. All those persons had come to this Court, however, those petitions were rejected and criminal proceedings are pending against two of them. The complainant had given a complaint application on 18.01.2012 to the Deputy Director of Education, Aurangabad. He has passed an order on 11.06.2012. It was ::: Uploaded on - 08/05/2020 ::: Downloaded on - 09/05/2020 11:32:24 ::: 5 Cri.WP_932_2019+1_Jd directed that the accused No.1 should deposit the entire amount, which he has received towards honorarium with the Government. Further directions were given to take action under Rule 28(5) of Maharashtra Private Schools (Terms of Service) Rules, 1981. It was also stated in the said order that since the accused No.1 has derelicted from duty, inquiry be held and after the report is received then only the further action of continuation in his service would be taken. Therefore, the continuation was not done and as the salary was not given, accused No.1 staged agitation from 09.07.2012 in front of the office of Deputy Director of Education. He was advised on 12.07.2012 to file an appeal and he was then prevented from continuing the agitation. The appeal was filed by him and stay was granted to the order passed. In view of the said stay the accused No.1 was given continuation of service. No opportunity was given to the complainant to put forth his say by the Director of Education when stay was granted. The complainant thereafter filed writ petition before this Court bearing Writ Petition No.6756 of 2012. In that petition the Director of Education was directed to file affidavit. Accordingly, affidavit was filed on 24.04.2013. It was specifically stated that on 17.04.2013 further order has been passed that the stay has been vacated and the order passed by Deputy Director of Education Aurangabad on 11.06.2012 is confirmed. In view of the said contentions in the writ petition, the writ petition came to be rejected. In the meantime, accused No.5 took charge as ::: Uploaded on - 08/05/2020 ::: Downloaded on - 09/05/2020 11:32:24 ::: 6 Cri.WP_932_2019+1_Jd Deputy Director of Education, Aurangabad and he gave letter on 24.06.2013, thereby cancelling the confirmation to the service given to accused No.1. Accused Nos.2 to 4 had not taken any steps for inquiry in view of the order dated 11.06.2012. A false report was submitted to the Deputy Director of Education. Accused No.1 has not even deposited the amount of Rs.2,00,000/- which he had taken as honorarium for two years. Yet, after accepting the false report the accused No.5 has continued the services of accused No.1 by letter dated 26.08.2013. It has been submitted that all the accused persons with common intention with each other prepared false report, prepared false attendance register, pay bills and other documents, thereby all of them have cheated the Government as well as the students, and therefore, he says that offence has been committed by all the accused persons. He, therefore, prayed for issuing process and punishing the accused persons.

Vs.

Smt. Manika Dhara (Pal) and Ors. Mr. Sakti Pada Jana ..for the Applicants Let the matter appear a fortnight hence whenever the court convenes.

The State should show cause why the State should not be directed to pay the writ petitioner's salary till the disposal of the appeal, subject to the writ petitioner undertaking to refund the same in the event the appeal succeeds.

Advocate for the writ petitioner should communicate this direction to Advocate appearing for the State and the relevant authorities well in advance of the next date of hearing.

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