High Court · 2024
Facts
wp-11077.191 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11077 OF 2019Vijaykumar S/o Sonyabapu Salunke,Age-30 years, Occu:Service as“Assistant Teacher”,R/o-Sailu, Taluka-Sailu,District-Parbhani ...PETITIONER VERSUS 1) The State of Maharashtra, Through Principal Secretary, Department of School Education, Mantralaya, Mumbai-32,2) Education Officer (Primary), Zilla Parishad, Parbhani,3) Head Master, Marathwada Shikshan Prasarak Mandal’s Primary School at Sailu, Taluka-Sailu, District-Parbhani,4) Secretary, Marathwada Shikshan Prasarak Mandal, Deogiri College Campus, Station Road, Aurangabad, Taluka and District-Aurangabad. ...RESPONDENTS ... Mr. P.P. More Advocate h/f. Mr. A.B. Tele Advocate for Petitioner. Mr. V.M. Jaware, A.G.P. for Respondent No.1. Mr. M.P. Kale Advocate h/f. Mr. B.A. Shinde Advocate for Respondent No.2. Mr. A.G. Choudahri Advocate for Respondent Nos. 3 and 4. ...
Legal Reasoning
wp-11077.195permission was sought by respondent No.4 institution to fill upthe post which was to become vacant from 16th October 2012.Thereafter an advertisement was published in the newspaperand the petitioner came to be appointed by order dated 23rdOctober 2012. Learned Advocate for the petitioner is also relyingupon the staff sanction orders for the academic year 2014-2015to 2016-2017 to show that the post held by the petitioner isadmissible and eligible for payment of grants. He further submitsthat this Court in Public Interest Litigation No.197 of 2013(Ramnath Dada Mote vs. the State of Maharashtra and others),at Principal Seat, by order dated 22nd January 2014 gavedirections to the State Government to issue necessaryinstructions to commence the recruitment process for filling invacant posts of teachers in Secondary schools, Higher Secondaryschools and Junior colleges in the State of Maharashtra. Furtherin Writ Petition No.837 of 2018 (Shubhangi D/o Bhagwat Chateand others vs. the State of Maharashtra and others), decided bythis Court on 13th April 2018, it was held that in earlier decisionsalso this Court has come to the conclusion that the ban onrecruitment in Government Resolution dated 2nd May 2012 doesnot apply to fill up the posts from reserved category candidates.Learned Advocate also relies on subsequent Government wp-11077.196Resolutions dated 13th March 2018 and 7th February 2019,wherein the exemption from the ban on recruitment wasconsidered. So also the learned Advocate for the petitioner relieson the decision in Writ Petition No.1935 of 2017 (Dnyaneshwars/o Dattrao More vs. the State of Maharashtra and others),dated 10th July 2019, wherein it was held that for about 18months there was no reply by the Education Officer to thecommunication seeking permission to appoint teachers given bythe institution and in that circumstance when the petitionerstherein came to be appointed, it was not considered as withoutfollowing due procedure. Learned Advocate for the petitioner,therefore, submitted that when the Government itself ischanging its policy, the objection to the approval ought not tohave been taken. 6.An affidavit of Umesh Kisanrao Raut, who was the In-charge Deputy Education Officer (Primary) has been filed onbehalf of respondent No.2, wherein he has also reiterated thefacts but he has submitted that after the order was passed bythis Court in the earlier Writ Petition bearing No.3710 of 2017filed by the present petitioner himself, the proposal wassubmitted by the institution on 11th July 2018 and thereafter the wp-11077.197impugned order has been passed. It was found that theappointment of the petitioner was not legal as there was ban onthe recruitment in view of the Government Resolution dated 2ndMay 2012. Though the Government has relaxed the said ban inrespect of the appointments in reserved category, so also inrespect of the teachers teaching the special subjects likeMathematics, Science and English, the case of the petitionerdoes not fall within the said category. The petitioner is from theopen category and his appointment is for teaching all thesubjects and therefore, approval to his appointment cannot begranted. 7.We have considered all the documents carefully. Thoughthere is an application by respondent No.4 institution to theEducation Officer on 24th September 2012 seeking permission tofill up the post, details of the said post are not stated in the saidapplication. No doubt, it is stated that a post is going to becomevacant since 16th October 2012, which should be allowed to befilled up and therefore, latitude is required to be given to thesaid letter by inferring that it is in respect of the post held by thepetitioner. The petitioner has not produced on record the staffsanction order for the academic year 2012-2013. It has been wp-11077.198produced for the academic year 2014-2015 on-wards. It is to benoted that in the present case, respondent Nos.3 and 4 have notfiled affidavit in reply and have not produced on record thedocuments which they had forwarded along with the proposal.The petitioner is not the natural custodian or supposed to bepossessing those documents and therefore, it is not expectedthat he should produce each and every document. The copy ofthe entire bunch of the documents which was received byrespondent No.2 has not been produced by the petitioner andthe rejection of the proposal for approval is not on the groundthat there was no post available. Rejection is on the basis of banon the recruitment as per Government Resolution dated 2nd May2012, especially Condition No.1.8, which reads thus:- ^^ ¼1-8½ vfrfjDr Bjysys f’k{kd 100% lek;ksftr >kY;kf’kok;[kktxh fdaok LFkkfud LojkT; laLFkkaP;k ‘kkGkae/;s ufou f’k{kd of’k{kdsrj deZpk&;kaph Hkjrh d: u;s- ^^8.It is to be noted that when the proposal was sent for thefirst time in respect of the petitioner’s appointment on 30thOctober 2012, the Education Officer, by his letter dated 5th March2013, had returned the said proposal to respondent No.4institution. It was not rejected. Respondent Nos. 1 and 2 have wp-11077.199not come with the case that when it was communicated by letterdated 24th September 2012 to the Education Officer that a postis going to become vacant, then the Education Officer has takenthe steps to supply the surplus teacher. The contention of thepetitioner that till 17th September 2016 and then after 22ndAugust 2017 there was no attempt by the Education Officer tosend the surplus teacher on the post held by the petitioner.Education institution is not supposed to keep the posts ofteachers vacant for long time. Ultimately the teachers would berequired to teach the students and with the scarcity of theteachers, it would be difficult for the institution to manage theschool and it would be burden for the other teachers to conductthe classes. The Government is also duty bound to give sanctionto the requisite posts as per the policy and it would be the equalduty of the appropriate authorities to decide the applicationssubmitted by the educational institutions for filling up the posts.The concerned officers are not supposed to sit over the files formonths or years together. 9.The present petitioner came to be appointed from opencategory and he was not appointed to teach a particular subject.No doubt, this Court, in other matters, has taken a view that the wp-11077.1910said ban as per the Government Resolution dated 2nd May 2012is not applicable to the teachers appointed from the reservedcategory, so also to the teachers appointed to teach specialsubjects like Mathematics, Science and English. But the presentcase is different. Here it can be reiterated that respondent Nos. 3and 4 appears to have followed the due procedure beforeappointing the petitioner. A due application was given on 24thSeptember 2012 informing the proposed vacancy but it was notresponded by the Education Officer, whose duty it was, to see asto whether there are surplus teachers and to absorb them in thevacant posts. If the concerned officer has not acted swiftly thenrespondent Nos. 3 and 4 cannot be said to be held responsible.Petitioner being the outsider i.e. the person who was notconcerned with the procedure, cannot be blamed for any reasonas he was not at fault. The petitioner submitted to the procedureafter he noticed the advertisement and through the properrecruitment process he has been appointed. There wasabsolutely no suppression by respondent Nos. 3 and 4 as well asby the petitioner in respect of the recruitment of the petitioner.In his affidavit, respondent No.2 has not clarified, as to whythere was no response to the letter dated 24th September 2012by his office. The observations from the decision in Writ Petition
Arguments
wp-11077.192 CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 20th FEBRUARY 2024DATE OF PRONOUNCING JUDGMENT : 26th FEBRUARY 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent.2.The petitioner challenges impugned order dated 19thOctober 2018 passed by respondent No.2 rejecting the approvalfor his appointment as ‘Shikshan Sevak’ and prays that he begranted approval in the said cadre for the period from 23rdOctober 2012 to 22nd October 2015 and as assistant teacherfrom 23rd October 2015 on-wards with consequential reliefs. 3.The petitioner came to be appointed on the post ofShikshan Sevak by respondent No.4 institution in respondentNo.3 school. The petitioner’s educational qualification is H.S.C.D.Ed. His appointment was as per the procedure and after thecompletion of the period of three years, he states that he is wp-11077.193eligible to be appointed on the post of assistant teacher. Theproposal for grant of approval to his appointment was submittedon 30th October 2012 to respondent No.2, however it wasreturned to respondent No.4 institution, stating that there wasban on the recruitment. Thereafter till 17th September 2016neither the said proposal for grant of approval to hisappointment was considered nor surplus candidate was sent onthe post held by the petitioner. For the first time on 17thSeptember 2016, one surplus candidate by name, GulabchandSattoji Rajbhoj was sent by respondent No.2 for absorption, butrespondent No.4 institution took a stand that as large number ofteachers were rendered surplus on the establishment of variousschools run by respondent No.4 itself, absorption of othercandidate was not possible. As the request of the petitioner forgrant of approval to the appointment was not considered andabsorption of surplus candidate was insisted on the post held bythe petitioner, he approached this Court by filing Writ Petition No.3710 of 2017. The said Writ Petition came to be decided on 5thJuly 2018 with directions to the Education Officer to decide theproposal for grant of approval to the appointment of thepetitioner afresh within four months from the date of the order.The decision was not taken by the Education Officer within four wp-11077.194months and therefore the petitioner filed Contempt PetitionNo.187 of 2019. Thereafter his claim for approval to theappointment came to be rejected by the Education Officer on19th October 2018, which is the impugned communication. Hisproposal has been turned down on the ground that there wasban on the recruitment in view of the Government Resolutiondated 2nd May 2012. It is the contention of the petitioner that thesaid Government Resolution itself has been modified by theGovernment in subsequent Resolutions. Under the saidcircumstance, since the petitioner is in service since 23rd October2012, his service needs to be approved and he should be paidsalary accordingly. 4.Heard learned Advocate Mr. More holding for Advocate Mr.Tele for the petitioner, learned AGP Mr. Jaware for respondentNo.1, learned Advocate Mr. Kale holding for Advocate Mr. Shindefor respondent No.2 and learned Advocate Mr. Choudhari forrespondent Nos. 3 and 4. 5.Learned Advocate Mr. More appearing for the petitionertook us through the documents annexed to the Petition. He haspointed out that by communication dated 24th September 2012
Decision
wp-11077.1911No.1935 of 2017 (supra) would be applicable to the petitioner.We, therefore, hold that since the procedure has been properlyfollowed and complied with, it cannot be said the petitioner’sappointment was illegal in view of the ban on recruitment. Theimpugned order dated 19th October 2018 passed by respondentNo.2 is required to be quashed and set aside by allowing thePetition. Hence the following order:- O R D E R(I)The Writ Petition is hereby allowed.(II)The impugned order dated 19th October 2018passed by respondent No.2 rejecting the approval forthe appointment of the petitioner as Shikshan Sevak, ishereby quashed and set aside.(III)The petitioner is entitled for the grant of approvalto his appointment initially as Shikshan Sevak andthereafter as Assistant Teacher, as per the rules, withina period of one month from today. Respondent No.2 isdirected to grant approval to such appointment of thepetitioner. wp-11077.1912(IV)The arrears of salary of the petitioner be paid tohim within a period of six months from today and theregular salary be paid to him as and when it becomesdue.(V)Rule is made absolute in above terms. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/FEB24