State.Mr v. S. Panpatte
Facts
WP-4344-2022 (Corrected).odtCorrected copy : Corrections have been carried out in view of the speaking to theminutes of the order dated 20.06.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.4344 OF 2022Monali Vinodrao Bhuyar,Age: 38 years, Occu.: Service asShikshan Sevak, R/o. No-5,Gulmohar Colony, Cidco,Aurangabad. .. PETITIONERVERSUS1.The State of MaharashtraThrough its Secretary,School Education Department,Mantralaya, Mumbai – 32.2.The Deputy Director of Education,Aurangabad Division, Aurangabad.3.The Education Officer (Secondary),Zilla Parishad, Aurangabad.4.The Superintendent,Pay and Provident Fund Unit,(Secondary), Aurangabad.5.Gram Shikshan Samiti,N-5, Cidco, Aurangabad,Through its President/Secretary.6.Jijamata Girls High School,N-5, Cidco, Jijamata Colony,Aurangabad.Through its Head Master. .. RESPONDENTS…Mr. Uttam B. Bondar, Advocate for the petitioner.Mr. K. S. Patil, AGP for respondent Nos.1 to 4 – State.Mr. V. S. Panpatte, Advocate for respondent No.5.… CORAM : MANGESH S. PATIL AND SHAILESH P BRAHME, JJ.DATE : 11 JUNE 2024.[1] WP-4344-2022 (Corrected).odtJUDGMENT [Per Shailesh P. Brahme, J.] :- .Rule. Rule is made returnable forthwith. Heard this matter finallywith the consent of all the parties, at the admission stage.2.Petitioner is Shikshan Sevak, who is aggrieved by rejection ofher proposal for approval to her appointment on the ground that herappointment was not made through Pavitra Portal.3.It is the case of the petitioner that she belongs to ScheduledTribe Thakur and possessing requisite qualification for the appointmentas a Shikshan Sevak. A permanent vacant post was created becauseof the superannuation of one of the teachers in the respondent No.6School. Respondent – Management sought permission of the EducationOfficer vide application dated 02.08.2021. As there was no response,the Management proceeded to recruit the post by issuingadvertisement on 05.09.2021. She was appointed on 11.09.2021 as aShikshan Sevak for the period of three years. The proposal seekingapproval came to be rejected by respondent No.3 by order dated18.02.2022, which is under challenge. 4.Learned Counsel for the petitioner submits that petitioner wasappointed after following due procedure of law and entitled to receiveapproval. He would submit that though Government Resolutions dated23.07.2017 and 07.02.2019 were issued, Pavitra Portal has not been[2]
Legal Reasoning
WP-4344-2022 (Corrected).odtseveral writ petitions, the recruitment process could notbe undertaken through Pavitra Portal in a timely mannerresulting in there being shortage of eligible teachers toimpart education. Permission was granted to makeappointments on contractual and temporary basis onpayment of some honorarium. This is clearly indicativeof the fact that even the State has been aware that thePavitra Portal could not be put to desired use irrespectiveof the objective with which it was issued.6.Additionally, the petitioner has annexed severalapproval orders granted to individual teachers who havebeen appointed after Government Resolution dated23.06.2017 was passed.” 12.In the wake of above situation, we have to record that EducationOfficer in the impugned order has not considered all the relevantaspect of the matter. Considering the above judicial pronouncements,there is reason to believe that Pavitra Portal has not been put todesired use. We do not propose to lay down that the directions issuedby the coordinate bench in the matter of Pravin Bodhu Kasbe (Supra)cannot be adhered to. Education Officer is expected to examineimplementation of Rule 9(2A) and (2B) of the Maharashtra Employeesof Private Schools (Conditions of Service) Regulation Rules, 1981 inevery case, because that is the amended statutory provision. Underthese circumstances, we find that ends of justice would be met, if thematter is relegated to the Education Officer to take the decision. [7] WP-4344-2022 (Corrected).odt13.The writ petition is partly allowed.14.The impugned order dated 18.02.2022 passed by respondentNo.3 – Education Officer is quashed and set aside.15.Respondent No.3 – Education Officer shall consider proposalafresh on its own merits as well as on the basis of law laid down in thisregard, but shall not reject the proposal on the ground that theappointment was not through Pavitra Portal. The decision shall betaken within a period of six weeks.16.Rule is made absolute in the above terms. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEscm[8]
Arguments
WP-4344-2022 (Corrected).odtput to the desired use. He would submit that impugned order isdiscriminatory because number of teachers have been given approvalfor their appointment, though their appointments were not throughPavitra Portal.5.Respondent Nos.5 and 6 support the petitioners. LearnedCounsel Mr. V. S. Panpatte for respondent Nos.5 and 6 would adopt thesubmissions of the Advocate of the petitioner. He has placed on recorddocuments to show that Pavitra Portal has not been in operation. Hewould rely on couple of judgments, which are annexed to his reply. Hewould further vehemently submit that from the year 2019 till January2023, no advertisement was issued by the Maharashtra StateExamination Council for recruiting the post of teachers through PavitraPortal. On 31.03.2023, an advertisement was issued, meaning therebythe managements of the private schools could not have waited forsuch a long spell for recruiting the teachers.6.Per contra, learned AGP defends impugned order on the basis ofaffidavit-in-reply. He would submit that there has been insistence onrecruitment of the teachers in the private schools through PavitraPortal only, which is reiterated by Government Resolution dated07.02.2019. Learned AGP relies on the judgment of the co-ordinateBenches rendered in the matter of Pravin Bodhu Kasbe Vs. State ofMaharashtra and others, [Writ Petition No.3142 of 2020 decided on[3] WP-4344-2022 (Corrected).odt03.08.2021] and Late Annasaheb Tandale Shikshan Prasarak Mandaland others Vs. The State of Maharashtra and another, [Writ PetitionNo.9924 of 2021 decided on 20.10.2022]7.We have considered the rival submissions of the parties.Petitioner belongs to Scheduled Tribe and she claims to have beenappointed against a vacancy of Scheduled Tribe. This fact is supportedby extracts of the roster produced on record. Application seekingpermission to recruit a backlog of Scheduled Tribe category wassubmitted on 02.08.2021 by the Management to the Education Officer.It bears the acknowledgment of the Education Department of ZillaParishad. There is no reason to disbelieve the document. We do notfind that any response was given by the Education Officer to this.Thereafter advertisement appears to have been issued on 05.09.2021.Then the petitioner was appointed by letter dated 15.09.2021 againstvacancy of backlog of Scheduled Tribe. 8.We have gone through the impugned order passed by therespondent – Education Officer. Only reason cited for rejectingproposal was that the appointment of the petitioner was not made byfollowing procedure contemplated by Pavitra Portal or as perGovernment Resolution dated 07.02.2019. Impugned order does notreflect that the Education Officer has taken into considerationendeavour of the Management seeking permission, issuance of the[4] WP-4344-2022 (Corrected).odtadvertisement, availability of the sanctioned post or backlog of a postreserved for Scheduled Tribe. It is not enough for the Education Officerto simply reject the proposal for not following Government Resolutiondated 07.02.2019.9.We have noticed that the recruitment through Pavitra Portal wassought to be introduced by Government Resolutions dated 23.06.2017and 20.06.2018. Superseding these, Government Resolution dated07.02.2019 was issued. Thereafter, there are various judgments andorders pronounced by the High Court. Out of them, learned AGP hasreferred to the judgment rendered in the matter of Pravin BodhuKasbe (Supra) and Late Annasaheb Tandale Shikshan Prasarak Mandal(Supra). A co-ordinate bench rendered judgment in Pravin BodhuKasbe (Supra) on 03.08.2021 rejecting the petition filed by anemployee challenging refusal of proposal for approval on similargrounds. In paragraph No.10, certain directions were issued to theEducation Officer and adherence to Government Resolution dated23.06.2017 was insisted. Strict implementation of newly amendedRule 9(2A) and (2B) of the Maharashtra Employees of Private Schools(Conditions of Service) Regulation Rules, 1981, was also emphasized.Facts of the present case are distinguishable from the facts of thatcase.10.In the matter of Late Annasaheb Tandale Shikshan Prasarak[5] WP-4344-2022 (Corrected).odtMandal (Supra), judgment of Pravin Bodhu Kasbe (Supra) wasfollowed. It was a petition filed by the Management challenging orderof Education Officer, which came to be dismissed by judgment dated20.10.2022.11.We have considered similar challenge in the matter of ShaikhJaweria Khadarsab Vs. The State of Maharashtra Through its Secretaryand Others [Writ Petition No.13150 of 2022 decided on 10.6.2024]. Itwas vehemently argued that the recruitment through Pavitra Portalhas not been enforced. Noticing number of judicial orders and ordersof Education Department granting approval despite non adherence tothe procedure of recruitment through Pavitra Portal, we recordedfollowing findings :-“4.We are pointing out the aforementioned state ofaffairs in juxtaposition to the various orders passed bythis Court, whereby in view of the fact that in spite ofGovernment Resolution dated 23.06.2017, at no point oftime recruitment process was undertaken through PavitraPortal and the directions were issued to consider theindividual cases for grant of approval, ignoring the factthat the recruitment was undertaken de hors the PavitraPortal.5.Pertinently, it is also being pointed out that by acircular dated 07.07.2023, the Ministry of SchoolEducation had instructed all the DivisionalCommissioners, Chief Officers and the Commissioner ofEducation, inter alia pointing out that due to pendency of[6]