Mr C. K. Shinde, Advocate for v. Lavte, A.G.P. for

Legal Reasoning

5088.21wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5088 OF 2021Smt. Vaishali Balkrushna Pawar,Age: 42 years, Occu: Service,R/o. Shivaji Road, Line No.3,Shrirampur, Tq. Shrirampur,Dist. Ahmednagar….PETITIONERVERSUS1.The State of Maharashtra,Through its Secretary,School Education Department,Mantralaya, Mumbai2.The Education Officer (Secondary),Zilla Parishad, Ahmednagar,Dist. Ahmednagar3.Khasdar Govindrao AdikGramin Shikshan Sanstha,Ashok Nagar, Tq. Shrirampur,Dist. AhmednagarThrough its Secretary ….RESPONDENTS ….Mr C. K. Shinde, Advocate for petitioners Mr A. V. Lavte, A.G.P. for respondent Nos.1 & 2Mr S. D. Kotkar, Advocate for respondent No.3 CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. DATE : 10th February, 2025 5088.21wp(2) JUDGMENT (PER : PRAFULLA S. KHUBALKAR, J.) 1.Heard. Rule. Rule is made returnable forthwith. Heardfinally by consent of the parties.2.By invoking Article 226 of the Constitution of India, thepetitioner has challenged the order dated 11/10/2017, passed byrespondent No.2/Education Officer (Secondary), Zilla Parishad,Ahmednagar, refusing approval to her appointment on the post of‘Shikshan Sevak’.3.The Education Officer has rejected the approval byobserving that the appointment of the petitioner was not made inaccordance with the guidelines as prescribed by the GovernmentResolution dated 06/02/2012 and that since other surplus teachers werenot absorbed, the petitioner’s appointment was not legal. It was alsoobserved in the impugned order that there was no compliance withCirculars dated 16/01/2017 and 31/03/2017 which imposed restrictionon grant of approval till the process of absorption of surplus teachersas per the staffing pattern 2016-17 was complete. Additionally, it wasobserved that since there was ban on recruitment of employees as perthe Circular dated 08/08/2017, no order of approval could be issued.The petitioner has raised challenge to this order on several grounds. 5088.21wp(3) 4.Mr C.K.Shinde, learned advocate for the petitionervehemently argues that the impugned decision is grossly arbitrary andillegal. He submits that the petitioner’s appointment as ‘ShikshanSevak’ from 01/08/2017 was made by following proper procedure andit was against a clear and sanctioned post. He submits that there wereno surplus teachers available in any school at the time of petitioner’sappointment and in view of the petitioner’s eligibility andqualification, she was duly appointed even by complying with thereservation criteria. He also submits that the ban on recruitment whichwas imposed by the Government Resolution dated 02/05/2012 wassubsequently relaxed by the Government Resolution dated 04/09/2013and as such, the reasons put forth for refusal of approval to theappointment of the petitioner are absolutely baseless. 5.Mr Amar Lavte, learned A.G.P. opposes the petition byrelying on the affidavit-in-reply dated 20/12/2021. He justifies theimpugned order by pointing out that precise reasons are mentioned inthe impugned order and in view of non-compliance with the circularsmentioned therein, the approval was rightly rejected. 6.Mr S. D. Kotkar, learned advocate for respondentNo.3/Management makes submissions supporting the case of the 5088.21wp(4) petitioner. By referring to its affidavit-in-reply dated 25/11/2022, hesubmits that the appointment of the petitioner was made by followingdue procedure. He submits that the Management ensured that nosurplus teacher was available for absorption at the time of petitioner’sappointment and in view of the backlog of Other Backward Classcategory and the need for appointment of a teacher for Science andMathematics subjects, the petitioner was duly appointed. By placingreliance on the judgment in the matter of Munoli RajashriKarabasappa Vs. State of Maharashtra and others, 2017 SCCOnLine Bom 10130, it is submitted that ban on recruitment would notapply since the appointment was made for subjects of Science andMaths.7.We have considered the rival contentions and perused thepapers.8.Perusal of the impugned order shows that the reasons forrejection of approval to the appointment of the petitioner are generaland vague. Although it is stated that proper procedure was notfollowed and that other surplus teachers were not absorbed, nothingwas specifically stated as to which kind of procedure was breachedwhile making appointment and how many surplus teachers were 5088.21wp(5) awaiting appointments at the time of petitioner’s appointment.Although it is stated that the process of absorbing the surplus teacherswas not complete, the impugned order does not demonstrate that theManagement was informed about availability of any surplus teacher.As regards ban on recruitment process, reliance is placed on Circulardated 08/08/2017, however, it has to be noted that the petitioner’sappointment was made on 01/08/2017 itself and the circular could nothave been applied to her.9.It is pertinent to note, the appointment of the petitionerwas made by following the due procedure and in view of theeligibility, the petitioner was appointed. The affidavit-in-replysubmitted by respondent No.3 reveals that, at the relevant time, inresponse to the request of the Management dated 20/06/2017 forpermission to advertise the posts which fell vacant on retirement ofShri. Ashok Ramchandra Jore, there was no response at all from theEducation Officer and the Management was compelled to go aheadwith the recruitment process. In view of the petitioner’s eligibility, theManagement decided to appoint her in view of the exigency of thesituation. It is pertinent to note that there is no material on record toshow that any surplus teacher was sent to the Management and the 5088.21wp(6) petitioner was appointed by ignoring the claim of a surplus teacher.Even as regards the ban on recruitment, it is clear that at the relevanttime, no ban was operating, neither the Management was informed inthat regard by the Education Officer. As such, no fault can be foundwith the appointment of the petitioner, to term it as illegal. 10.In the light of the above mentioned circumstances, we areof the considered view that the impugned order is unsustainable. Thedivision bench judgment in the matter of Munoli RajashriKarabasappa (supra) clarifies the position of law that ban onrecruitment was not applicable to the appointments for the subjects ofScience and Maths and where the recruitment was made to fulfill thebacklog of reserved category candidates. For all these reasons, nofault can be found with the appointment of the petitioner. There is nomaterial to demonstrate any kind of illegality or malpractice in theprocess of appointment of the petitioner. 11.We are, therefore, of the considered view that theimpugned order rejecting the approval to the petitioner’s appointmentas a ‘Shikshan Sevak’ is unsustainable and is liable to be quashed andset aside. Hence, we pass the following order :- 5088.21wp(7) (a)The writ petition is allowed.(b)The impugned order dated 11/10/2017 is quashed and setaside. (c)Respondent No.2/Education Officer (Secondary), ZillaParishad, Ahmednagar is directed to immediately grant approvalto the appointment of the petitioner as a ‘Shikshan Sevak’ and toconfer upon the petitioner the consequential benefits.12.Rule is made absolute in above terms. (PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk