High Court · 2024
Legal Reasoning
(3) wp-2955-2021.odtbe approved. Further, the Government Resolution dated 04.05.2020 isfaulted while making appointment of petitioner no.1. According torespondent no.2, validity of amended MEPS Rules and GovernmentResolution dated 23.06.2017 is upheld by this Court. The petitionerno.1 does not possess any right for approval to her appointment, whichis de-hors to the prescribed procedure.5.Mr. More, learned Advocate appearing for the petitionersvehemently submits that petitioner no.1 holds requisite qualification forappointment of the Assistant Teacher as per MEPS Act and Rulesframed thereunder. She has been appointed after following due processof law. The reasoning given in the impugned communication is contraryto the orders passed by this Court in many such matters. Themanagement has obligation to appoint the teachers against vacancies.However, because of inaction on the part of the Education Officer togrant permission to advertise the post and carry forward recruitmentprocess, the appointments made by the Management cannot beinvalidated. 6.Mr. Tekale, learned AGP appearing for respondent nos.1and 2 supports the impugned order.7.Having considered submissions advanced and on perusal ofthe documents placed into service, it is evident that petitioner no.1holds requisite qualification for appointment on the post of GraduateTeachers. In response to the advertisement issued by the Managementof the school, she applied and faced the selection process. Consequently,she has been selected and appointed as Shikshan Sevak videappointment order dated 30.09.2020. The proposal for approval to herappointment was forwarded by the Headmaster of ManikbabaVidyalaya, that has been rejected giving reasons that the appointment (4) wp-2955-2021.odtis not made through the Pavitra Portal and the petitioner has notcleared Teachers Eligibility Test. Further, there was ban onrecruitment during relevant period.8.Section 5 of the MEPS Act, 1977 put certain obligation onthe Management of the private schools. Sub-Clause (1) of Section 5 ofthe MEPS Act, 1977 mandates that the Management shall, as soon aspossible, fill in, in the manner prescribed, every permanent vacancy in aprivate school by the appointment of a person duly qualified to fill suchvacancy. Keeping in mind the aforesaid obligation on the Management,if the copy of staff approval for the year 2019-2020 in respect ofManikbaba Secondary and Higher Secondary Vidyalaya is considered, itcan be observed that there were two vacancies, one each on aided andunaided division. Therefore, there is reason to believe that theappointment of the petitioner is made against clear vacancy. There isdispute as regards to the requisite qualification possessed by petitionerno.1.9.Pertinently, the Management of the school submitted acommunication to the office of respondent no.2-Education Officer on14.01.2020 and 12.03.2020 informing two vacancies on theestablishment of the school and urged to permit publication of theadvertisement for recruitment of the vacant posts. Both thecommunications are duly acknowledged by the office of respondent no.2.The petitioner no.1 specifically contends that there was no responsefrom the Education Officer. Consequently, the Management issued theadvertisement in ‘Daily Sanchar’ dated 19.09.2020 to which petitionerno.1 responded. It is true that the Management of the school beforeproceeding to fill the vacancies, ascertained from the Education Officerwhether there is any suitable persons available in the list of surplusteachers for absorption of the school. However, inspite of the (5) wp-2955-2021.odtManagement informing about vacancies, if there is no response from theEducation Officer, the Management would be left with no option than toproceed further with the advertisement and appoint teachers in theinterest of the school and people. In the present case, the Managementhas twice made communication with the gap of two months. The lastsuch communication was made on 12.03.2020. Finally on 19.09.2020the advertisement was issued. The interviews were conducted leadingto the appointment of petitioner no.1. In this background, petitionerno.1 or Management cannot be faulted.10.So far as the appointment from Pavitra Portal is concerned,although the Education Officer refers to the Government Resolutiondated 23.06.2017 by which system for appointment of the Teachersthrough Pavitra Portal has been introduced, there is nothing on recordto indicate that the Pavitra Portal was made operational at the time ofpetitioner no.1’s appointment. So far as applicability of the TET isconcerned, issue pending before the Supreme Court of India. Insuch cases, appointment can be subject to the final outcome ofthe decision as to whether TET is compulsory qualification forappointment of Teachers.11.One more reason incorporated in the impugned order is thatthere was ban on recruitment in terms of Government Resolution dated04.05.2020. Prima facie, such ban may not apply to the appointmentsmade by the private Management in the school. In view of the aforesaidobservations, the impugned order dated 15.12.2020 passed byrespondent no.2-Education Officer (Secondary), Zilla Parishad,Osmanabad is liable to be quashed and set aside with direction torespondent no.2 to reconsider the proposal for grant of approval to theappointment of petitioner no.1 without insisting for procedure as per (6) wp-2955-2021.odtGovernment Resolutions dated 23.06.2017 and 20.06.2018. Resultantly,following order is passed:ORDERa.Writ Petition is partly allowed.b.The impugned order dated 15.12.2020 passed by respondent no.2-Education Officer (Secondary), Zilla Parishad, Osmanabad is herebyquashed and set aside.c.The respondent no.2-Education Officer shall consider the proposalfor grant of approval to the appointment of petitioner no.1 withoutinsisting for the procedure as per Government Resolutions dated23.06.2017 and 20.06.2018 and the observations as indicated above.d.The petitioners and the representative of the Management shallappear before respondent no.2-Education Officer on 20.03.2024alongwith requisite record. The Education Officer after hearing all theconcerned take its decision afresh and communicate the same within aperiod of two months from the date of appearance of the parties beforehim.e.Writ Petition is disposed of.f.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/March-2024
Arguments
(1) wp-2955-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2955 OF 20211.Sarika Udhav Abhang,Age: 37 yrs. Occu. Service,R/o. Shelgaon, Tal. Paranda,Dist. Osmanabad.2.Manikbaba Vidyalaya Shelgaon,Tal. Paranda, Dist. Osmanabad,Through its Head Master,Shri. Gurudas Dashrat Kale,Age: 55 yrs, Occu. Service,R/o. Shelgaon, Tal. Paranda,Dist. Osmanabad...PetitionersVersus1.The State of Maharashtra,Through its Principal Secretary,Department of School Education and Sports, Mantralaya, Mumbai-2.2.The Education Officer (Secondary),Zilla Parishad, Osmanabad...Respondents …Mr. A. S. More, Advocate for the Petitioners.Mr. S. K. Tekale, AGP for Respondent Nos.1 and 2. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 07th MARCH 2024.JUDGMENT PRONOUNCED ON :- 19th MARCH 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioners approach this Court under Article 226 of theConstitution of India, thereby impugning order/communication dated (2) wp-2955-2021.odt15.12.2020 passed by respondent no.2-Education Officer (Secondary),Zilla Parisahd, Osmanabad, thereby rejecting the proposal for approvalof petitioner no.1’s appointment as an Assistant Teacher with petitionerno.2-Manikbaba Vidyalaya, Shelgaon, Tal. Paranda. 3.The petitioner no.1 contend that she possess qualification ofB.A., B.Ed.. She came across an advertisement dated 19.09.2020published in ‘Daily Sanchar’ issued by the President and Secretary ofthe Shivshakti Shikshan Prasarak Mandal, Shelgaon thereby invitingapplications for appointment of the Assistant Teachers at ManikbabaVidyalaya at Shelgaon. The petitioner no.1 responded to anadvertisement and offered her candidature. She was interviewed by theschool committee and being a meritorious and suitable candidate, cameto be appointed vide order dated 30.09.2020 as a Shikshan Sevak. Thepetitioner no.1 joined her services on 01.10.2020 as Graduate ShikshanSevak. The Headmaster of the school forwarded proposal for approvalto the appointment of petitioner no.1 to the office of respondent no.2.However, respondent no.2 vide his impugned communication dated15.12.2020 refused to grant approval firstly for the reason that theappointment is not in tune with the Government Resolution dated23.06.2017 i.e. through the Pavitra Portal and secondly theappointment is made during the period of ban on recruitment imposedunder Government Resolution dated 04.05.2020. According topetitioner no.1, she qualified, appointed against clear vacancy afterfollowing due process of law. There was no impediment in approvingher appointment. As such, she prays for allowing writ petition.4.The respondent no.2-Education Officer (Secondary), ZillaParishad, Osmanabad filed his affidavit-in-reply and justifies theimpugned communication giving reasons that no appointment madeafter 23.06.2017 without following the procedure of Pavitra Portal can