High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3755 OF 20231Ekta Education SocietyThrough it’s SecretarySameer s/o Noor Mohammad Pathan,Age 43 yrs., Occ. Service,R/o Govindpura, Ahmednagar,Tq. & Dist. Ahmednagar. 2Shaikh Sahihabano Iliyas,Age 26 yrs., Occ. Service,R/o Tapowan Road, Ahmednagar,Tq. & Dist. Ahmednagar. 3Saniya Sajed Shaikh,Age 23 yrs., Occ. Service,R/o Mukundnagar, Ahmednagar,Tq. & Dist. Ahmednagar. … Petitioners… Versus …1The State of Maharashtra,Through the Secretary forEducation and Sports Department,Mantralaya, Mumbai. 2The Education Officer (Primary),Zilla Parishad, Ahmednagar,Tq. & Dist. Ahmednagar. … Respondents...Mr. A.D. Shinde, Advocate for petitionersMr. S.K. Shirse, AGP for respondent No.1Mr. A.D. Aghav, Advocate for respondent No.2 2WP_3755_2023_Jd...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.RESERVED ON :23rd FEBRUARY, 2024PRONOUNCED ON :12th MARCH, 2024JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2Petitioner Nos.2 and 3 are the employees of petitioner No.1.Petitioner No.1 is a minority institution to whom certificate has been issuedon 03.10.2001 by the competent authority. The petitioners came to beappointed on 01.02.2023 and 01.01.2023 respectively after due procedure.Proposal was sent for grant of approval to their appointment, however, it hasbeen rejected by order dated 13.03.2023. Their proposal has been rejectedon two counts; first is that they do not have the TET qualification andsecondly no permission was sought to advertise for the recruitment prior totheir appointment by petitioner No.1. Hence, the writ petition has been filed.3Affidavit-in-reply has been filed by respondent No.2 throughBhaskar Jagannath Patil, Education Officer (Primary), Zilla Parishad
Legal Reasoning
3WP_3755_2023_JdAhmednagar, wherein he has stated that the Management has not obtainedprior permission from respondent No.2 to publish the advertisement for theposts. The institutions which are exempted from Pavitra Pranali are governedby Government Resolution dated 06.02.2012 in respect ofrecruitment/appointments, even the draft of the advertisement is made partof Government Resolution dated 06.02.2012. Further, as per Clause No.2.2of Government Resolution dated 10.06.2022 there was ban on therecruitment. The petitioner Nos.2 and 3 have not qualified in TETexamination and, therefore, the proposal in respect of their appointmentcannot be granted. 4The petitioners have filed re-joinder and reiterated almost thesame facts. According to the petitioners, TET is not compulsory for them. 5Heard learned Advocate Mr. A.D. Shinde for petitioners, learnedAGP Mr. S.K. Shirse for respondent No.1 and learned Advocate Mr. A.D.Aghav for respondent No.2. 6As regards not qualifying TET examination the learned Advocatefor the petitioners submits that the matter is now subjudice before Hon’bleApex Court and in many matters this Court has issued directions to theEducation Officer to grant proposal subject to decision of the Hon’ble Apex 4WP_3755_2023_JdCourt in respect of TET qualification. As regards prior permission isconcerned, he relies on the decision in Parbhani Education Society vs. Stateof Maharashtra in Writ Petition No.3707 of 2013, wherein it has been statedthat various rules and Government Resolutions are not applicable to theminority institutions. 6.1Similar view has been taken in Canossa Society and another vs.Commissioner and others [2014(3) Bom.C.R. 556], wherein order directingto absorb an employee who has been rendered surplus in the minorityinstitution was held to be illegal. 6.2Further reliance has been placed on the decision in SadafImamoddin Masood vs. State of Maharashtra and others in Writ PetitionNo.6894 of 2023 with companion matter decided at Principal Seat byDivision Bench of this Court on 02.11.2023, wherein after taking variousdecisions it is held that in view of the fact that the matter is before Hon’bleApex Court as regards TET examination and in view of Pramati Educationaland Cultural Trust and others vs. Union of India and others [2014 AIR SCW2859] it is not open to the Education Officer to foist any condition of TET onthe teachers employed in minority institution.7Learned AGP submits that though petitioner No.1 is a minority 5WP_3755_2023_Jdinstitution, yet prior approval from the State before making any newappointment is expected. He relies on the decision in Kolawana Gram VikasKendra vs. State of Gujarat and others [2009 DGLS (SC) 1372], wherein ithas been observed that -“The minority institutions are free to select their teaching and nonteaching staff. No Government Officer or the representative of theBoard was appointed in the selection committee of the minorityinstitution. There is no interference by the Government in theadministration of the schools. However, N.O.C. is required to beobtained to verity whether there is a vacancy of a teacher of aparticular subject as per the workload fixed by the Gujarat Secondaryand Higher Secondary Education Board specially when thegovernment is providing grant-in-aid and that he possesses minimumrequired qualification for the post he is appointed.” 8At the outset, we would like to say that the impugned orderpassed by respondent No.2 gives only two reasons; first is that petitionerNos.2 and 3 have not qualified TET examination and second is that the priorpermission for the advertisement was not obtained. Respondent No.2 wasunjustified in digging out reasons while filing the affidavit-in-reply. He/shecannot add any other reason at the time of filing the affidavit-in-reply to thewrit petition challenging the impugned order. The purpose of affidavit-in-reply to support the stand taken by him to support the impugned order orunder which circumstances the impugned order came to be passed is the only 6WP_3755_2023_Jdexpected exercise. Therefore, taking into consideration the impugned orderdated 13.03.2023 which gives only two reasons we would be dealing withthe same primarily. 9The issue – as to whether the TET qualification would bemandatory to the teachers teaching in the minority institution, is before theHon’ble Supreme Court. In many matters this Court has considered the saidfacts and passed further orders as unless the approval is granted and theirnames are taken in Shalarth Pranali, they will not be able to get the salary.We cannot keep such persons without salary till the decision of the Hon’bleApex Court. Therefore, conditional order deserves to be passed in thatrespect. 10As regards the second ground is concerned, it is stated that nopermission was taken prior to the appointment or the issuing advertisementfor the recruitment. Meaning thereby, it is accepted that there is no problemas regards the advertisement is concerned. Certainly as per the decision inKolawana Gram Vikas Kendra (supra) it is held that it would be perfectlyalright for a minority institution to select the candidates without anyinterference from the Government. It is then observed that No ObjectionCertificate should be insisted to verify whether there is vacancy of a Teacher 7WP_3755_2023_Jdetc. It appears that there is another Government Resolution dated13.07.2016 which had laid down the procedure of obtaining prior permissionof the Government. The said Government Resolution was the subject matterin Shital Kumar Patil (supra), but in that case the appointment of thepetitioners were prior to the Government Resolution dated 13.07.2016 and,therefore, it was held that it is not applicable. In this case it is stated that theadvertisement was made on 27.12.2022 and the impugned order dated13.03.2023 makes a mention that by communication dated 09.01.2023 thepermission to advertise for the posts has been rejected. Perusal of the saidletter dated 09.01.2023 would show that the said permission came to berejected on the ground that by Government Resolution dated 05.05.2020there was ban on the recruitment. When this Court has time and again heldthat the minority institutions have right to appoint Teachers and non teachingstaff as per its choice, the rejection appears to be misconceived. The relianceby the petitioners on the decision in Parbhani Education Society (supra),Canossa (supra) is reiterated. That could not have been a reason to reject theproposal. 11As regards the ban to the recruitment is concerned, again it canbe seen that petitioner No.1 is a minority institution and in the above saidauthorities including the decision by the Hon’ble Apex Court in Kolawana
Decision
8WP_3755_2023_JdGram Vikas Kendra (supra) it has been observed that the minority institutionsare free to select their teaching and non teaching staff. The rejection is noton the count that there was no post available in Zakir Husain MarathiPrimary School, Mukund Nagar, Through Rehman Shafi Kazi vs. The State ofMaharashtra and others in Writ Petition No.8891 of 2018 decided by thisCourt on 16.12.2019 also this Court had dealt with similar issue and in thatcase a conditional approval was granted by the Education Officer. Similarstand could have been definitely taken in the present matter also byrespondent No.2, but then rejection was uncalled for. 12For the above said reasons, the petition, therefore, deserves to bepartly allowed. In view of the decision in The Head Master KhawajaNasiruddin Marathi Primary School and others vs. The State of Maharashtraand others in Writ Petition No.15228 of 2023 decided by this Court on13.12.2023 it appears that the petitioners have already filedaffidavit/undertaking and note thereof is therefore taken and following orderis passed. ORDER1The Writ Petition stands partly allowed. 9WP_3755_2023_Jd2The communication dated 13.03.2023 is hereby quashed and setaside. 3We direct the Education Officer (Primary), Zilla Parishad,Ahmednagar to consider the proposal of the petitioner Nos.2 and 3 withoutinsisting on TET qualification and the rejection of the application foradvertisement for the recruitment dated 09.01.2023. 4Copy of the undertaking/affidavit of petitioner Nos.2 and 3 orfresh affidavit containing similar contents be given to the Education Officerand the Management stating therein that if the Hon’ble Supreme Courtconcludes that the TET qualification is mandatory even to the minorityinstitutions and the petitioners appointment would be deemed to be illegal,petitioner Nos.2 and 3 would be willing to suffer the consequences. 5Such affidavit / copies of affidavit / undertaking or freshaffidavit / undertaking be filed before the Education Officer and theManagement, within a period of one week from today, thereupon respondentNo.2 to consider and grant the approval to the appointments of petitionerNos.2 and 3 as Assistant Teacher by specifically mentioning the contents ofthe undertaking regarding TET. 10WP_3755_2023_Jd6The entire exercise be done within a period of one month afterthe undertaking is submitted. 7Rule is made absolute in the above terms. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd