Mr.Ravikumar v. Badgire working as Assistant Teacher
Legal Reasoning
{1} wp 7662.21 (1).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7662 OF 2021Geetanjali d/o. Pandurang Mule,Age 32 years, Occ. Service,at present acting as Assistant Teachersin Zakir Hussain Marathi Primary School,Kolhenagar, Latur... Petitioner.VERSUS1.The State of Maharashtrathrough the Secretary,Department of School Education and Sports,Mantralaya, Mumbai.2.The Director of Education,Education Department ( Secretary )Maharashtra State, Pune.3.The Deputy Director of Education,Latur Division, Latur..4.The Education Officer (Primary),Zilla Parishad, Latur,Tq. And Dist. Latur.5.The Head Master,Dr. Zakir Hussain Marathi Primary School,Gauspura, Kolhe Nagar, Latur 431 512.6.The Secretary /President,Rashtrajagrati Bahuuddeshiya Vikas Sanstha, Latur,Latur... Respondents.M. V.S. Panpatte, and Mrs. P.S. Gondhalekar, Advocate for petitionerMr. S.K. Shirse, AGP for respondent Nos. 1 to 3.
Legal Reasoning
{2} wp 7662.21 (1).odtMr. V.C. Patil, Advocate h/f. Mr. U.B. Bondar, Advocate for respondent No.4Mr. C.V. Dharurkar, Advocate for respondent Nos. 5 and 6. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. RESERVED ON : 28.3.2024. PRONOUNCED ON : 10.4.2024. JUDGMENT [PER S.G. CHAPALGAONKAR, J] :-1.The petitioners impugns the order dated 5.3. 2021 passed bythe Education Officer (Primary) Zilla Parishad, Latur, thereby declining togrant approval to the appointment of the petitioner as Assistant Teacherwith respondent No.5 school.2.Mr. V.S. Panpatte, the learned advocate for the petitionersubmits that the respondent No.6 runs the respondent No.5 school whichis receiving grant in aid from the State Government. On 26.10.2013, Mr.Ravikumar V. Badgire working as Assistant Teacher with respondent No.5school died in an unfortunate incident. The respondent No.6management issued advertisement to fill up the vacancy. The petitionerresponded to the said advertisement, she being qualified and meritoriouscandidate, came to be appointed as Assistant Teacher against the clearvacancy in respondent No.5 school. The proposal for grant of approval tothe petitioner’s appointment was forwarded to the Education Officer.However, the Education Officer vide order dated 9.3.2017, declined togrant approval giving reason that the surplus teachers are available forfilling up the vacancies in Latur District. Hence, approval can not be
Decision
{3} wp 7662.21 (1).odtgranted to the appointment of the petitioner. The petitioner had assailedthe order of Education Officer before this Court in W.P. No. 14901 of2017. This Court, after considering the rival submissions observed thatthe institution being a minority institution, it cannot be compelled toabsorb surplus candidates. Therefore, the rejection of the proposal onsuch ground is improper. This Court disposed of the writ petition, withdirection to the Education Officer to re-consider the proposal seekingapproval to the appointment of the petitioner afresh with rider that itshall not rejected on the ground that surplus candidates were available.3.In spite of specific direction of this Court, the EducationOfficer, vide his order dated 13.9.2018, again rejected the proposal bygiving reason of availability of surplus teaches in Latur District. Thepetitioner again approached this Court by filing W.P. No. 7606 of 2019,which came to be allowed vide order dated 11.12.2019. This courtquashed and set aside the impugned order dated 13.9.2018 and disposedpetition directing education officer to deside the petitioner’s proposalafter granting opportunity of hearing to all concerned. Lastly, theEducation Officer rejected the proposal vide impugned order dated5.3.2021 on the ground that no vacancy of Assistant Teacher is availableand the petitioner has not cleared TET qualification, which is brought invogue since 2.6.2013.4.Mr. Panpatte, the learned advocate for petitioner wouldsubmit that the Education Officer was required to consider the positionas on the date of the petitioner’s appointment. Further, the issue asregards the applicability of TET qualification for appointment of teachersin minority aided or un-aided institutions is subject matter before the {4} wp 7662.21 (1).odtSupreme Court of India. In that view of the matter, conditional approvalcould have been granted to the petitioner.5.Mr. S.K. Shirse, learned AGP appearing for respondent Nos. 1to 3 and Mr. V.C. Patil, with Mr. U.B. Bondar, learned advocate appearingfor respondent No.4 submit that the Government Resolution dated13.2.2013 speaks about the requirement of TET qualification forappointment of Assistant Teachers. The petitioner’s appointment is madede-hors the condition of TET qualification. The management had notobtained prior permission from the Education Department to advertisethe vacancy. At the relevant time, there were 3 excess teachers. Insteadof absorbing those teachers, the management appointed the petitioner byflouting the prescribed procedure. Although the institution is a minorityinstitution, it is bound by the prescribed rules. The appointment madede-hors the procedure prescribed can not be approved.6.We have considered the submissions advanced by learnedadvocates for respective parties. Apparently, the appointment of thepetitioner is made against a vacancy occurred on death of Mr. RavikumarBadgire, who was working as Assistant Teacher with respondent No.5school. The proposal for approval to the appointment of the petitionerwas rejected by the Education Officer merely on the ground that theprocedure under Section 5(1) of MEPS Regulation Act, 1977 was notfollowed and there are number of surplus teachers waiting forabsorption. This Court in W.P. No. 14901 of 2017 quashed and set asidethe order of the Education Officer and directed him to reconsider theproposal, with a specific stipulation that the proposal shall not berejected on the ground of availability of surplus teachers for absorption. {5} wp 7662.21 (1).odtUnfortunately, giving a similar reason, the Education Officer rejected theapproval vide order dated 13.9.2018, which was again subjected tochallenge in W.P. No. 7606 of 2019. In that proceeding, Education Officerappeared in person and tendered unconditional apology and assured thisCourt that he shall reconsider the proposal in tune with the directionsgiven in earlier round. Unfortunately, vide the impugned order dated1.3.2021, the petitioner’s proposal is again rejected giving two reasons.Firstly, there is no vacancy at present and the petitioner does not complywith the TET qualification in terms of Government Resolution dated13.2.1993. It is not in dispute that respondent Nos. 5 and 6 are minorityinstitutions. The question, as to whether the TET qualification iscompulsory for the appointment of teachers in minority institutions, isnow subject matter of consideration before the Supreme Court of India,in the matter of Director of School Education, Chennai and another vs.B.Annie Packinarani Bai and another Special Leave Petition (Civil) DiaryNo. 17702 of 2021.7.In such contingency, this Court has issued directions to grantconditional approval to the teachers subject to the outcome of thepending issue before the Supreme court of India. The second groundemployed for rejection of the proposal for approval is non availability ofvacancy. We find that said ground is vague and ambiguous. TheEducation Officer ought to have dealt with the position of vacancy as onthe date of appointment of the petitioner. As observed above, thepetitioner is appointed against the vacancy occurred on account of deathof Mr. Ravikumar Badgire, Assistant Teacher working with respondentNo.6 school. Consequently, the appointment of the petitioner appears tohave been made against the vacancy that arose with the respondent No.5 {6} wp 7662.21 (1).odtschool. The reply filed by the Education Officer or the text of theimpugned order, nowhere depicts that at the time of petitioner’sappointment, no post was vacant with respondent No.5 school. On theother hand, the impugned order appears to have been passed consideringthe present position in the school. The petitioner is litigating since last 11years, seeking approval to her appointment and this is the third round oflitigation. We are, therefore, of the considered opinion that this is a fitcase to exercise our jurisdiction under Article 226 of the Constitution ofIndia and direct the Education Officer to grant conditional approval tothe appointment of the petitioner considering the position, as on the dateof her appointment, subject to condition that she furnishes anundertaking that in case the Supreme Court decides mandatingrequirement of TET qualification, the petitioner shall not claim anyequities and shall be bound by such decision in the matter of herappointment. We, therefore, proceed to pass the following order :-O R D E R[I]Writ petition is partly allowed;[ii]The Impugned order dated 5.3.2021 passed by the Respondent No.4 - Education Officer, Primary, Zilla Parishad,Latur, is hereby quashed and set aside. Respondent No.4 shall grant conditional approval to the appointment of the petitioner as Assistant Teacher subject to conditions as under:-[a]The petitioner shall tender an undertaking that, she wouldabide by the conclusions that would be drawn by the Hon’bleSupreme Court, and if the verdict is adverse to those teacherswho do not have the TET qualification or have cleared the TETafter 31.03.2019, or as the case may be, she would abide by thesame without raising any cause of action. {7} wp 7662.21 (1).odt[b]Let such affidavit undertaking be filed in this Courtwithin 15 days from today and a copy be tendered to theconcerned Education Officer within the same timeline.[c]If an adverse order is passed by the Hon’bleSupreme Court by which the teachers are covered by clause (a),the State Government would not recover the salaries alreadypaid/earned by performing duties.[d]In the event, the candidates like the Petitioner areprotected by the Hon’ble Supreme Court’s conclusions and she isheld to be qualified to continue in employment, then only shewould be entitled for all service benefits like promotions,increments, etc.[iii]Writ petition is disposed of in above terms.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-