High Court
Legal Reasoning
wp-267-2022.odtunderstand that there was only one post sanctioned as Junior Clerk inrespondent No.3 School. Without a clerk, the school cannot definitelyfunction. Therefore, it appears that as per the procedure the Trust hadmade the said application on 03.09.2021 after the earlier clerk stoodretired. When there is acknowledgment given by respondent No.2,then there ought to have been an explanation in the affidavit-in-replyfiled on behalf of respondent No.2 as to why there was no response.He had neither granted the approval, nor rejected it. It appears thathe had simply kept quiet. Therefore, we would like to rely on thedecision of this Court in Gopal Siddheshwar Akhade and Ors. Vs. Stateof Maharashtra and Ors., [MANU/MH/2590/2013]. The observationsfrom the said decision are that when the respondent authorities hadnot responded to the application seeking permission to fill up the postand thereupon published an advertisement and went ahead with theinterview and selected a candidate, then the appointments which aremade are required to be held to be as per procedure. Here, in thiscase, respondent No.2 is not seriously disputing the procedure thatwas undertaken at the time of appointment of the petitioner.According to respondent No.2, the post on which the petitioner hasbeen appointed would become admissible newly, only after the normsspecified in Government Resolution dated 28.01.2019 are followed,that means, there should be the exercise of absorption of surplusemployees. As regards this reason is concerned, again coming back to[5] wp-267-2022.odtthe application for filling up the post dated 03.09.2021, it can be saidthat it specifically states that there are two posts vacant at twodifferent schools run by the institution and information regarding thesame was given to the Education Department earlier i.e. prior to03.09.2021, but no response was given to fill up of those posts. Thatmeans the letter dated 03.09.2021 is a subsequent letter. Even inrespect of this letter, there is no response as the surplus employeewas not made available and, therefore, ultimately the advertisementappears to have been published on 19.10.2021. A specific statement isalso made in the petition that there was no surplus employee availablein entire Osmanabad district when the petitioner came to beappointed. Respondent No.2 appears to have not taken data from theconcerned department to show that how many employees weredeclared surplus in Osmanabad district between the period 31.08.2021(when Ramesh Supekar stood retired) till 27.10.2021. Merely byquoting the Government Resolutions, it will not be sufficient forrespondent No.2 to say that the appointments are subject to thoseGovernment Resolutions. Definitely, those Government Resolutions arebinding, but then whether the situation was there, is a question. If nosurplus employee was available and there is no response to the letterdated 03.09.2021, then certainly we can say that the appointment ofthe petitioner is legal. Now, even as regards the new staffing pattern,if the number of students is less than 500, certainly one junior clerk[6] wp-267-2022.odtwould be permissible, otherwise the school cannot run without theclerk. We, therefore, find this to be a fit case where we shouldexercise our constitutional powers. Hence, the following order :-ORDERI)The Writ Petition stands allowed in terms of prayer clauses‘B’ and ‘C’.II)Respondent No.2 to grant approval to the appointment ofthe petitioner as Junior Clerk in respondent No.3 – School withina period of two months from today.III)Rule is made absolute in the above terms.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[7]
Arguments
wp-267-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.267 OF 2022Pruthviraj Kisan MoteAge: 27 years, Occu.: Service,R/o. Girwali, Tq. Bhoom,Dist. Osmanabad. .. PETITIONERVERSUS1.The State of MaharashtraThrough its Secretary,School Education Department,Government of Maharashtra,Mantralaya, Mumbai-32.2.The Education Officer (Secondary)Zilla Parishad, Osmanabad.3.The Headmaster,Dr. Padmasinh Patil High School,Deolali, Tq. Bhoom, Dist. Osmanabad... RESPONDENTS…Mr. C. K. Shinde, Advocate for the petitioner.Mr. S. K. Shirse, AGP for respondent Nos.1 and 2 – State.Mr. N. N. Bhagwat, Advocate for respondent No.3.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. RESERVED ON : 1st March, 2024. PRONOUNCED ON : 14th March, 2024.JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Rule. Rule made returnable forthwith. Heard learned Advocatesfor the appearing parties finally by consent.[1] wp-267-2022.odt2.The petitioner challenges the order passed by respondent No.2Education Officer (Secondary), Zilla Parishad, Osmanabad dated29.12.2021, thereby refusing the approval to the appointment of thepetitioner as Junior Clerk in respondent No.3 School.3.The petitioner has come with the case that he came to beappointed as Junior Clerk in respondent No.3 School, which runs underthe administration of one Banganga Public Charitable Trust. OneRamesh Kisanrao Supekar, who was serving as Junior Clerk in the saidschool, retired on superannuation on 31.08.2021. Therefore, the saidpost become vacant. There was only one post of Junior Clerkadmissible in the school. Therefore, on his retirement, theadministration of the school got hampered and, therefore, the schoolmanagement was constrained to fill up the said vacancy. The schoolmanagement had applied for permission to respondent No.2 toadvertise for the said post. There were no surplus Junior Clerks inOsmanabad district at that time. Respondent No.3 School was arecognized secondary school and receiving 100% grant. Under thesaid circumstance, the school management had publishedadvertisement in local newspaper “Dainik Kulaswamini” on19.10.2021. Thereupon, after the due procedure, the petitioner cameto be appointed from 27.10.2021. Thereafter, the school managementhad sent a proposal to respondent No.2 seeking approval to his[2] wp-267-2022.odtappointment. However, it has been refused. The petitioner says thathis appointment is not violating any of the Government Resolutionsand, therefore, the approval ought to have been granted. 4.Affidavit-in-reply has been filed by one Gajanan Sugdeo Susar,the then Education Officer (Secondary), Zilla Parishad, Osmanabad onbehalf of respondent No.2, wherein he does not dispute the facts,however, he says that Government of Maharashtra had passedResolution on 12.02.2015 and decided to fix the revised non-teachingemployees staffing pattern of 100% aided and partially aidedSecondary, Higher Secondary Schools and Sainiki Schools. It wasstated that till the said revised staffing pattern is declared, no freshappointment should be made. Thereafter, as per GovernmentResolution dated 28.01.2019, the government has fixed the revisedstaffing pattern and by Government Resolution dated 07.03.2019, thegovernment has laid down the norms to the posts which are lapsedand become surplus. He then states that the Government ofMaharashtra had directed the Director of Education, Secondary andHigher Secondary, Maharashtra State, Pune to allot/sanction theadmissible posts as per the guidelines issued at Clause No.1 inGovernment Resolution dated 07.03.2019 and as per the norms laiddown in Government Resolution dated 28.01.2019. If the posts aresanctioned or created without following the procedure in the[3] wp-267-2022.odtGovernment Resolutions, then those posts will not be treated as legalor valid or admissible.According to him, as per the policy prevailing,approval to the post of petitioner as Junior Clerk cannot be grantedand, therefore, the rejection is proper.5.Affidavit-in-reply has also been filed by respondent No.3 insupport of the petition.6.Heard learned Advocate Mr. C. K. Shinde for the petitioner,learned AGP Mr. S. K. Shirse for respondent Nos.1 and 2 – State andlearned Advocate Mr. N. N. Bhagwat for respondent No.3. In order tocut short, it can be said that all of them have made submissions insupport of their respective contentions. We have perused thedocuments on record. 7.At the outset, it is to be noted that on the factual aspects aspleaded by the petitioner, there is no denial, that means it is admittedthat the management had sought permission to fill up the posts whichhad become vacant after the retirement of earlier Junior ClerkMr. Ramesh Kisanrao Supekar on 31.08.2021. The petitioner’sAdvocate has produced copy of the said application dated 03.09.2021given by the Secretary of the Trust to the Education Officer(Secondary), Zilla Parishad, Osmanabad. It is having acknowledgmentof the same day from the office of the said authority. We must[4]