High Court
Legal Reasoning
{5} wp 6656.18 R.odtRecord indicates that the post reserved for VJ-A category had fallenvacant on retirement of the teacher and petitioner has been appointedagainst such vacancy. It is true that there was backlog of scheduled castecategory as per the roster and management had not cleared same.Therefore, question that posed for consideration before us is, as towhether approval to appointment made against other vacancies couldhave been rejected.7.It is not in dispute that the petitioner has been appointedagainst vacant post. This Court in catena of judgments observed thatmerely because backlog of a particular reserved category is unfilled,approval can not be refused to the appointment of a candidate, madefrom other reserved category, unless it is shown that appointment of sucha candidate is overlapped against the vacancy of another reservedcategory. Reference can be given to the judgment of this court in thematter of “Shubhada Prabhakar Patil and others. Vs. State ofMaharashtra and others” reported in 2009(4) Mh. L.J. 788. In presentcase appointment of petitioner is independently made without affectingreservation earmarked for any other category, particularly SC category.The appointment petitioner never overlapped against post earmarked forSchedule category. Secondly respondent authorities were noticed ofupcoming vacancy before advertising post. They failed to respond orobject management from proceeding further. Even no surplus teacherwas deputed for absorption in response to communication ofmanagement. However, when proposal for appointment is moved, allobjections are put at service. {6} wp 6656.18 R.odt8.In that view of the matter, the impugned order isunsustainable in law and is liable to be quashed and set aside.9.However we would make it record that Management ofschool shall be under obligation to clear reservation backlog while fillingup next vacancy as per reservation roster. The Education officer shall takean undertaking from management for that purpose. Hence, we pass thefollowing order :-O R D E R[A]The writ petition is allowed;[b]The impugned order dated 31.05.2018 passed by the respondentNo.3 - Education Officer (Primary), Zilla Parishad, Nanded is herebyquashed and set aside;[c]The Education Officer is directed to grant approval to theappointment of the petitioner w.e.f. 07.01.2016 to 06.01.2019 and takesteps to release arrears of salary as per rules, subject to condition thatmanagement files undertaking to fill up backlog as per reservation rosterapproved by competent authority.[d]Rule made absolute in above terms. [S.G. CHAPALGAONKAR][ SMT. VIBHA KANKANWADI]JUDGE. JUDGE grt/-
Arguments
{1} wp 6656.18 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6656 OF 2018Balaji S/o. Bajirao Jadhav,Age 26 years, Occ. Serviceas Shikshan Sevak,R/o. Shivnagar, Nanded... Petitionerversus1.The State of Maharashtrathrough Secretary,Department of School Education,Mantralaya, Mumbai – 32.2.Dy. Director of EducationNanded Region, Nanded.3.Education Officer (Primary)Zilla Parishad, Nanded.4.Vasant Shikshan Sanstha,Nanded, Tq. & Dist. NandedThrough its President/Secretary5.The Head Master,Gurunanak Vidya Mandir,Shivnagar, Nanded.. Respondents.Mr. V.S. Panpatte, Advocate for the petitionersMr. S.K. Shirse, AGP for respondent Nos. 1 and 2,Mr. N.S. Kadam, Advocate for respondent No.3.Mr. P.P. More, Advocate h/f. Mr. Harish S. Bali, Advocate for respondent Nos. 4 and 5. CORAM : SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. {2} wp 6656.18 R.odtRESERVED ON : 22nd APRIL , 2024PRONOUNCED ON : 9th MAY, 2024. JUDGMENT [ PER S.G. CHAPALGAONKAR, J.] :-1.Rule. Rule made returnable forthwith. Heard finally withconsent of learned advocates appearing for the respective parties.The petitioner has approached this Court under Article 226of the Constitution of India, impugning the order dated 31.5.2018,passed by the respondent No.3 – Education Officer (Primary), decliningto grant approval to the appointment of petitioner as Shikshan Sevak.The petitioner further seeks direction to release arrears of salary.2.Mr. V.S. Panpatte, learned counsel for the petitioner submitsthat respondent No.4 is a registered Trust, who runs respondent No.5school. On retirement of a senior employee at respondent No.5 school,management made correspondence with respondent Nos. 2 and 3,seeking permission to issue advertisement to fill vacancy of AssistantTeacher on establishment of school. Since there was no response fromrespondent Nos. 2 and 3 authorities, management published anadvertisement dated 2.1.2016, inviting applications from qualifiedcandidates, belonging to V.J. category. The petitioner being eligible forappointment as Assistant Teacher, responded to the advertisement andafter going through selection process, came to be appointed vide orderdated 7.1.2016. The respondent No.5 submitted proposal dated12.1.2016 seeking approval to the appointment of petitioner. However,respondent No.3, vide impugned order dated 31st May, 2018, rejectedsaid proposal without assigning justifiable reasons.3.Mr. Panpatte, would submit that the impugned order depict {3} wp 6656.18 R.odttotal non application of mind. The petitioner possess requisitequalification and has been appointed against a clear vacancy as perreservation roster, hence approval ought to have been accorded to hisappointment. He would, therefore urge, to quash and set asideimpugned order and direct the respondent No.3 to grant approval so alsorelease consequential benefits.4.Mr. S.K. Shirse, learned AGP for respondent Nos. 1 and 2,relying upon the affidavit in reply filed by Mr. Prakash Digraskar, submitsthat appointment of petitioner is made without following due process oflaw. The advertisement has been issued without prior permission of theauthorities, in a newspaper having no circulation. There were surplusteachers waiting for appointment. The reservation roster is not followed.The respondent Nos. 4 and 5 were directed to absorb the surplus teachersvide communication dated 8.11.2017. However they have not compliedsuch directions.5.We have considered the submissions advanced by thelearned advocates appearing for respective parties. It is not in disputethat respondent school communicated office of the Education Officer on26.8.2015, that Mr. Balaji Warje, Assistant Teacher, is due for retirementon 31.10.2015, he belongs to V.J. category, accordingly, permission wassought to advertise the post and fill up the vacancy. Similarly, on31.5.2015, separate communication was made to the Deputy Director ofEducation, Latur seeking permission to advertise the post. As both theauthorities failed to respond representation made by school, therespondent Nos. 4 and 5 issued an advertisement dated 2.1.2016,inviting applications for filing up the post of Assistant Teacher from VJ-A {4} wp 6656.18 R.odtcategory. The selection of the petitioner is made in pursuance to saidadvertisement. Consequently, appointment order dated 7.1.2016 came tobe issued. The proposal seeking approval to the said appointment wasforwarded to the office of the Education Officer. However, vide impugnedorder dated 31.5.2018, the proposal came to be rejected, giving thefollowing reasons.[I]That the permission for advertising the post of Assistant Teacher was not obtained in terms of MEPS Rules. [ii]The advertisement was not published in a widely circulated newspaper, that reduced the competition.[iii]The advertisement is vague and published in the local newspaper.[iv]The appointment is made without absorption of surplus teaches, which is a condition in the staffing pattern;[v]The Government Resolution dated 2.5.2012 issued by the School Education and Sports Department prohibits appointments till absorption of surplus teachers.[vi]Large number of surplus teachers are available in the District. The appointment of the petitioner is made without ascertaining availability of surplus teachers;[vii]As per the reservation roster, the backlog of Scheduled Caste is available. However, appointment of the petitioner is made from VJ-A category.6.Apparently, respondent Nos.4 and 5 had communicatedauthorities as regards to the upcoming vacancy in the school andrequested for permission to advertise the post. However, suchcommunications were not responded. Eventually, the schoolmanagement proceeded to advertise the post and filled up the vacancy.