OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6712 OF 2020 Archana v. The State of Maharashtra

(1) wp-6712-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6712 OF 2020Archana d/o Pandurang Kore,Age: 37 years, Occu. Service as Assistant Teacher,R/o. Shiradhon, Tq. Kandhar, District Nanded...PetitionerVersus1.The State of Maharashtra,Through its Secretary,School Education and Sports Department,Mantralaya, Mumbai-32.2.Deputy Director of Education,Latur, Division Latur.3.The Education Officer (Secondary),Zilla Parishad, Nanded.4.Bhimashankar Shikshan Society,Shiradhon, Taluka Kandhar,District Nanded.Through Secretary.5.Shri Bhimashankar Secondary andHigher Secondary School, Shiradhon,Taluka Kandhar, District Nanded.Through Headmaster. ..Respondents...Mr. V. D. Gunale, Advocate for the Petitioner.Mr. N. S. Tekale, AGP for Respondent Nos.1 to 3.Mrs. S. L. Pansambal, Advocate for Respondent Nos.4 and 5.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 21st FEBRUARY 2024.JUDGMENT PRONOUNCED ON :- 21st MARCH 2024. (2) wp-6712-2020.odtJUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With theconsent of the parties, matter is taken up for final hearing at thestage of admission.2.The petitioner approaches this Court under Article 226of the Constitution of India impugning the orders dated 10.11.2020and 09.09.2022 passed by 2nd Respondent-Deputy Director ofEducation thereby refusing to include her name in ShalarthPranali and canceling the approval to the appointment of thepetitioner as a Shikshan Sevak, granted by the Education Officer(Secondary), Zilla Parishad, Nanded.3.The petitioner contends that she is qualified as B.A.,B.Ed.. She belongs to reserved category i.e. Nomadic Tribe. The4th Respondent runs 5th Respondent-School. On retirement of Shri.G. M. Kanakdande, Assistant Teacher a vacancy was caused at 5thRespondent-School. The 4th Respondent made communication tothe Education Officer regarding vacancy in the School. However,there was no response. The 4th Respondent issued anadvertisement in ‘Daily Prajawani’ dated 21.06.2018 invitingcandidature for the appointment as an Assistant Teacher. Thepetitioner responded to the advertisement and she was interviewedby the School Committee. She being meritorious and eligiblecandidate, 4th Respondent issued an appointment order in herfavour as Shikshan Sevak from NT-C category. The proposal forapproval to the petitioner’s appointment was forwarded to 3rdRespondent i.e. Education Officer, who approved proposal videorder dated 03.02.2019. Consequently, the proposal was moved forinclusion of her name in the Shalarth Pranali. The 2nd Respondent (3) wp-6712-2020.odtvide his communication dated 10.11.2020 refused to accord theapproval. 4.The petitioner approached this Court by filing presentwrit petition. During the pendency of this petition, acommunication dated 10.11.2020 issued by 2nd Respondent-DeputyDirector of Education is placed on record. It is stated thatpetitioner’s appointment is not in tune with the GovernmentResolution dated 23.07.2017, hence approval cannot be granted toher appointment. Further during the pendency of the petition, 2ndRespondent on his own motion arranged the hearing of all theconcerned on 06.09.2022 and passed second impugned order dated09.09.2022 thereby canceling approval to the petitioner’sappointment granted by 3rd Respondent-Education Officer vide hisorder dated 03.02.2019.5.Mr. Gunale, learned Advocate appearing for thepetitioner submits that the appointment of the petitioner was madeafter following due procedure. The Education Officer had approvedher appointment. However, when proposal for inclusion of hername in the Shalarth Pranali was moved to 2nd Respondent, theimpugned orders have been passed. He would submit that themanagement had made communication to the Education Officerbefore advertising the vacancy. However, no response was given.In the interest of the students, the management took steps to fillup the post. The petitioner possesses the requisite qualificationand eligibility. She has been appointed by following due process oflaw. The Pavitra Portal was not in operation at the relevant time.The Education Officer did not recommend appointment of anysurplus teacher against vacancy. The reservation roster wasfollowed. Considering all such aspects, the Education Officer was (4) wp-6712-2020.odtpleased to grant approval to the petitioner’s appointment. Thenproposal was moved for entering petitioner’s name in the ShalarthPranali in pursuance of the approval granted by the EducationOfficer. However, same has been turned down and finally theapproval itself is cancelled by 2nd Respondent, who do not possessthe authority to cancel such approval granted by the CompetentAuthority i.e. Education Officer. He would submit that from theimpugned order it can be gathered that no fraud ormisrepresentation has been alleged against the petitioner ormanagement in securing approval to the appointment. In absenceof such exigencies, 2nd Respondent does not get jurisdiction todisturb approval orders in terms of the Clause 3.2 of theGovernment Resolution dated 10.06.2022. He would, therefore,urge to quash and set aside the impugned orders and restore theapproval granted in favour of the petitioner with further directionto include her name in the Shalarth Pranali.6.The learned A.G.P. supports the impugned orders. Hewould point out that the impugned irregularities have been notedwhile examining the proposal for inclusion of the petitioner’s namein the Shalarth Pranali. He would point out that theadvertisement was published without permission from theEducation Officer. The reservation of SC and OBC was shown inthe advertisement. However, the petitioner who belongs to NTcategory has been appointed, which is contrary to the reservationroster. Already there are two teachers for Marathi subject. Thepetitioner is appointed for the same subject in absence of anyvacancy. The 2nd Respondent after granting sufficient opportunityto the concerned, passed the impugned order dated 09.09.2022 andfor the reasons so recorded cancelled the illegal approval grantedby the Education Officer. (5) wp-6712-2020.odt7.We have heard the learned Advocate for the respectiveparties. We have perused the record tendered into service. Itappears that on 02.01.2018 the Headmaster i.e. 5th Respondentcommunicated the Education Officer regarding retirement of Mr.Sakdande w.e.f. 31.12.2017 and sought permission to advertise thevacancy. The document at Page No.20-B, Exhibit-E shows theacknowledgment dated 18.01.2018 by the Inward Clerk from theoffice of 3rd Respondent. The vacancy was advertised in ‘DailyPrajawani’ which is approved as widely circulated newspaper asper Government Resolution dated 10.06.2022 for District Nanded.The reservation roster depicts vacancy of backlog for NT-Ccategory. The petitioner in response to the said advertisement,subjected her candidature and after going through the selectionprocess she has been appointed w.e.f. 29.06.2018. The EducationOfficer approved the petitioner’s appointment as Shikshan Sevakw.e.f. 29.06.2018. Thereafter, the proposal was forwarded to theoffice of 2nd Respondent for entering her name in the ShalarthPranali, which has been introduced for release of salary. 8.The 2nd Respondent had initially communicated to 3rdRespondent that since the petitioner’s appointment is after23.07.2017 without following procedure under Pavitra Portal, hername cannot be entered in the Shalarth Pranali. It appears that,during the pendency of this petition, 2nd Respondent called all thestakeholders for hearing and not only rejected the proposal to entername in Shalarth Portal, but also cancelled approval under theimpugned order dated 09.09.2022. It is well settled that theEducation Officer is competent authority to grant approval of theappointment. The 2nd Respondent is not Appellate Authority andeven by considering the scope of his jurisdiction prescribed byGovernment Resolution dated 10.06.2022, he can interfere in the (6) wp-6712-2020.odtorder granting approval only when fraud, misrepresentation orsuppression of facts are surfaced. Looking to the reasons recordedin the impugned order, there is nothing to depict that thepetitioner or respondent-management exercised fraud ormisrepresented Education Officer while obtaining approval topetitioner’s appointment. This Court in the matters of Datta S/oGovind Pawar Vs. The State of Maharashtra and Ors1 andPadmin D/o Sonerao Hande Vs. the State of Maharashtraand Ors.2 observed that the Deputy Director of Education isneither Appellate Authority nor he has jurisdiction to cancel theapproval granted by the Competent Authority. 9.Taking into consideration the aforesaid observations ofthis Court, it is apparent that 2nd Respondent has exceeded hisjurisdiction. Consequently, the impugned order is not sustainablein law and liable to the quash and set aside. Hence, the followingorder:ORDER a.Writ Petition is allowed.b.The impugned order dated 09.09.2022 passed by 2ndRespondent-Deputy Director of Education is hereby quashed andset aside.c.The approval dated 03.02.2019 granted by 3rd Respondent-Education Officer (Secondary), Zilla Parishad, Nanded to theappointment of the petitioner is restored. 12022 (4) AIR Bom R 131.22022 DGLS (Bom.) 636. (7) wp-6712-2020.odtd.The 2nd Respondent is directed to include the name of thepetitioner in the Shalarth Pranali and take necessary steps torelease of the salary.e.Writ Petition is disposed of.f.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/March-2024