High Court · 2024
Facts
(1) wp-539-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.539 OF 2021Smt. Neeta D/o Vasantrao Aeripelwar Age: 40 years, Occup: Service as Assistant Teacher, R/o: Kinwat, Tq.: Kinwat, Dist.: Nanded...PetitionerVersus1.The State of Maharashtra,Through its Secretary, School Education Department, Mantralaya, Mumbai-32.2.The Education Officer (Secondary),Zilla Parishad, Nanded.3.Cosmopolitan Education Society,Kinwat, Tq.: Kinwat, Dist.: Nanded, Through its President/Secretary.4.Cosrnopolitan Vidyalaya,Kinwat, Tq.: Kinwat, Dist.: Nanded, through its Head Master...Respondents …Mr. V. S. Panpatte, Advocate for the Petitioner.Mrs. M. N. Ghanekar, AGP for Respondent Nos.1 and 2.Mr. A. B. Tele, Advocate for Respondent Nos.3 and 4. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 04th APRIL 2024.JUDGMENT PRONOUNCED ON :- 15th APRIL 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consentof the parties, matter is taken up for final hearing at the stage ofadmission.
Legal Reasoning
(5) wp-539-2021.odtconsidering the proposal. The impugned order dated 25.06.2020passed by the Education Officer simply records that there are 9surplus teachers in the School owing to reduction in posts of theapproved teachers. As such, there is no vacancy to accommodatethe petitioner and grant approval to her appointment. Apparently,the reasons adopted by the Education Officer in the impugnedorder are in conflict with the directions given by this Court in theearlier round of litigation. The issue as regards to the surplusteachers could not have been again raised while considering theproposal of the petitioner in light of the specific directions given bythis Court in the order dated 25.09.2019 passed in Writ PetitionNo.4207/2017.9.Even otherwise if we look to the factual aspects of thematter, the petitioner’s appointment is dated 23.09.2014. The staffapproval for the year 2013-2014 would show that 11 posts ofteacher were sanctioned for 9th and 10th standards. Theappointment of the petitioner fits within the sanctioned number ofteachers as per staffing pattern. The availability of the surplusteachers in the primary section i.e. 1st to 5th or secondary section i.e.6th to 8th could not have been considered as impediment for grant ofapproval to the appointment of the petitioner. The petitioner isdischarging her duties for almost 10 years from the date of herappointment. She belongs to OBC category. The ban on therecruitment under the Government Resolution dated 02.05.2012would not apply, when the recruitment is made against reservedpost. The ground of availability of surplus teachers was notavailable in view of the previous directions given by this Court oreven on proper appreciation of the factual position, such groundcould have been employed. Unfortunately petitioner is made to runfrom pillar to post and approach this Court seeking correction of (6) wp-539-2021.odtrepeated wrongs done by the Education Officer. Inspite of cleardirections given by this Court, the proposal for approval to theappointment of the petitioner is rejected for selfsame reasons. Wefind that the Education Officer has not only ignored the cleardirections given by this Court in earlier round of litigation, but alsothe settled legal position and consequently, the petitioner wasrequired to fight out rounds of litigation before this Court.Resultantly, we proceed to pass following order:ORDERa.Writ Petition is allowed.b.The impugned order dated 25.06.2020 passed byrespondent no.2-Education Officer (Secondary), Zilla Parishad,Nanded is hereby quashed and set aside.c.The respondent no.2-Education Officer shall forthwithgrant approval to the appointment of the petitioner, initially asShikshan Sevak and then continuation as an Assistant Teacherand grant consequential benefits as permissible in law .d.Writ Petition is disposed of.e.Rule is made absolute in above terms. (S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/April-2024
Arguments
(2) wp-539-2021.odt2.The petitioner impugns the order dated 25.06.2020passed by respondent no.2-Education Officer (Secondary), ZillaParishad, Nanded declining to grant approval to her appointmentas Shikshan Sevak and release of consequential pay scale.3.Mr. Panpatte, learned Advocate appearing for thepetitioner submits that respondent no.3-Educational Institutionruns respondent no.4-School, which receives grant-in-aid from theState Government. On 31.08.2014, a permanent teacher namelyShri. N. G. Sonale retired on attaining the age of superannuationand the post of an Assistant Teacher from OBC category had fallenvacant with respondent no.4-School. The correspondence wasmade on behalf of the School to the Education Officer regardingvacancy and seeking permission to fill up the post by issuingadvertisement. Since, there was no response from the office ofrespondent no.2-Education Officer, an advertisement dated12.09.2014 was issued by the Management inviting applicationfrom the eligible candidates from OBC category. The petitionerbeing qualified and eligible, came to be appointed. She has beenselected against the post, consequently management issued anappointment order dated 23.09.2014 as Shikshan Sevak for theperiod of three years. Immediately, the petitioner reported onduty. 4.The proposal seeking approval to the petitionersappointment was forwarded to respondent no.2-Education Officer.However, the same was kept pending. Consequently, Writ PetitionNo.11197/2016 was filed before this Court, wherein directions wereissued to respondent no.2 to decide the pending proposal within aperiod of three months. On 28.02.2017, respondent no.2 passed anorder rejecting proposal giving reason that there was ban on the (3) wp-539-2021.odtrecruitment as per Government Resolution dated 02.05.2012 andsurplus teachers were available. The petitioner challenged the saidorder in Writ Petition No.4207/2017. This Court after consideringthe rival submissions, partly allowed the Writ Petition vide orderdated 25.09.2019 directing respondent no.2 to reconsider theproposal with rider that it shall not be rejected for the reasonsincorporated in the order dated 28.02.2017. The respondent no.2vide order dated 25.06.2020 again rejected the proposal on verysame grounds i.e. availability of 9 surplus teachers and non-availability of posts as per staffing pattern. Mr. Panpatte, learnedAdvocate would submit that in fact surplus teachers were alreadyabsorbed in some other schools. The petitioner is teaching to 9thand 10th standard students. The grounds incorporated in theimpugned order are not available in view of the specific directionsgiven by this Court in earlier round of litigation. He would,therefore, urge to set aside the impugned order and issue directionsto grant approval to the petitioner’s appointment, who is workingsince last ten years.5.Mrs. Ghanekar, learned AGP appearing for respondentnos.1 and 2, relying upon the contents of the affidavit-in-reply,vehemently submits that at the time of the petitioner’sappointment there was ban on the recruitment in terms of theGovernment Resolution dated 02.05.2012. The policy was invokedwith intention to absorb the surplus teachers. More than 12surplus teachers were available in the subject of Marathi andHistory in the Latur district. About 9 teachers are available in theschool to teach Marathi and History subject. Although,respondent-Management was having surplus teachers on theirestablishment in the year 2014-2015, still proceeded to appoint thepetitioner contrary to the Government policy and provisions of (4) wp-539-2021.odtMEPS, Rules, 1981. She would, therefore support the impugnedorder.6.Mr. Tele, learned Advocate appearing for respondentnos.3 and 4 points out that as per staff approval for 9th and 10thstandard the petitioner has been appointed. Although there weresurplus teachers for 6th to 8th and 1st to 5th divisions, no surplusteacher was available for 9th and 10th standards in the school. Hewould point out that in the year 2014-2015 there were 11sanctioned posts of teachers for 9th and 10th standards. One of theteacher Mr. N. G. Sonale retired on 31.08.2014. The petitioner hasbeen appointed against said vacancy. He would, therefore, submitthat no fault can be found with the appointment of the petitionerand there is no difficulty for granting approval.7.We have considered the submissions advanced onbehalf of the learned Advocates appearing for the respectiveparties. We have perused the orders passed by this Court in earlierround of litigation. In Writ Petition No.4207/2017 filed by thepetitioner assailing order dated 28.02.2017 passed by Educationofficer, this Court had specifically directed to reconsider theproposal without influenced by earlier rejection and proposal shallnot be rejected for the same reasons.8.Perusal of the order dated 28.02.2017 which was subjectmatter of challenge in earlier Writ Petition, shows that theproposal seeking approval to the petitioner’s appointment wasrejected giving reasons that the surplus teachers are available andthere was ban on recruitment under Government Resolution dated02.05.2012. As such, in light of the order dated 25.09.2017 passedby this Court in Writ Petition No.4207/2017, it was not open for theEducation Officer to again employ selfsame grounds while