High Court
Legal Reasoning
wp-7871-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.7871 OF 20221.Ganeshkumar s/o Abasaheb More,Age: 34 years, Occu.: Service,R/o. Khuntefal, Tq. Shevgaon,Dist. Ahmednagar.2.Shashikant s/o Prakash SuryawanshiAge: 32 years, Occu.: Service,R/o. Shekate Bk., Tq. Shevgaon,Dist. Ahmednagar.3.Akshay s/o Sunil Purnale,Age: 30 years, Occu.: Service,R/o. Bhagur, Tq. Shevgaon,Dist. Ahmednagar.4.Harshad s/o Balasaheb Kachare,Age: 31 years, Occu.: Service,R/o. Padali, Tq. Pathardi,Dist. Ahmednagar.5.Deepak s/o Jagannath Bodakhe,Age: 33 years, Occu.: Service,R/o. Khandobanagar, Shevgaon,Tq. Shevgaon, Dist. Ahmednagar.6.Swati Sukhadev Wahurwagh,Age: 30 years, Occu.: Service,R/o. At : Burhanpur, Post : Avhane Bk.,Tq. Shevgaon, District Ahmednagar... PETITIONERSVERSUS1.The State of Maharashtra,Through its Principal Secretary,School Education Department,Mantralaya, Fort, Mumbai-32.2.The Commissioner of Education,Educational Commissionerate Office,Balbharti, Senapati Bapat Marg, Pune.[1]
Legal Reasoning
wp-7871-2022.odt3.The Director of Education (Secondary),Maharashtra State, Central AdministrativeBuilding, Shivajinagar, Pune.4.The Deputy Director of Education,Pune Region, Pune,17, Dr. Ambedkar Marg, Opp. Lal Deul,Pune-411001.5.The Education Officer (Secondary),Zilla Parishad, Ahmednagar,Taluka and District Ahmednagar... RESPONDENTS…Mr. S. B. Ghatol Patil, Advocate for the petitioners.Mr. A. M. Phule, AGP for respondent Nos.1 to 5 – State.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : 12th MARCH, 2024.ORDER [Per Smt. Vibha Kankanwadi, J.] :- .Present petition has been filed to challenge the order dated04.04.2022 passed by respondent No.4, thereby rejecting the proposalfor inclusion of the name of the petitioners in Shalarth Pranali.Consequential prayer for inclusion of their names and release ofarrears of salary has also been made.2.Heard learned Advocate Mr. S. B. Ghatol Patil for the petitionerand learned AGP Mr. A. M. Phule for respondent Nos.1 to 5 – State. Inorder to cut short, it can be said that all of them have madesubmissions in support of their respective contentions.[2] wp-7871-2022.odt3.It is not in dispute that the petitioners came to be appointed byrespondent No.6 on the respondent Nos.7 to 9 Schools. Those schoolsare run by respondent No.6. The petitioners have been appointed onthe post of assistant teachers by order dated 16.07.2013. Theirservices came to be approved by respondent No.5 vide order dated09.10.2015.4.The petitioners have come with the case that they wereappointed as per the due procedure of law and after their approval,respondent No.6 Management by order dated 30.12.2016 transferredthem from unaided to aided posts of assistant teachers in variousschools run by respondent No.6. The proposal for approval of the saidtransfer/appointment from unaided to aided posts was given torespondent No.5 and accordingly, as per order dated 10.12.2019 and30.03.2020, their appointment on aided posts on regular pay scalewas also approved by respondent No.5. Thereafter, the proposal wassent for inclusion of their names to the Shalarth Pranali. It wasrecommended by respondent No.5 to respondent No.4, however, thesaid proposal came to be rejected by the impugned order. Hence, thispetition.5.Affidavit-in-reply has been filed by one Mr. Dhanaji Ananta Bute,the Deputy Education Inspector attached to Deputy Director ofEducation, Pune region, Pune on behalf of respondent No.2. He has[3] wp-7871-2022.odtnot disputed the orders of approval issued by respondent No.5,however, according to him as per the Government Resolution dated13.02.2013, it is mandatory for the teachers to pass Teacher’sEligibility Test (for short “TET”) exam before 30.03.2019. When theappointment of the petitioners was on 09.10.2015 and when it wasmandatory for them to clear TET exam, they could not have beenappointed and their proposal for inclusion of their names in ShalarthPranali cannot be allowed and, therefore, impugned order is just andproper. 6.The rejoinder has been filed by one Ganeshkumar AbasahebMore on behalf of the petitioners stating that in the impugned orderdated 04.04.2022, the said ground regarding TET exam was notcommunicated and, therefore, reason to reject cannot be added byway of affidavit. It was then pointed out that by the decision of theHon’ble Supreme Court, status quo has been maintained and,therefore, the teachers are protected. One more affidavit on behalf ofpetitioners has been produced and along with the same, evidenceabout they being in service has been produced. 7.The first and the foremost fact to be noted from the impugnedorder dated 04.04.2022 is that the proposal for inclusion of the nameof the petitioners in Shalarth Pranali came to be rejected on fivecounts, which are as follows :-[4] wp-7871-2022.odt“i)Evidence of vacancy of post on account of retirement,promotion, transfer, etc. is not submitted with proposal.ii)No objection certificate for filling the post obtained fromEducation Officer (Secondary), Zilla Parishad, Ahmednagar isnot produced.iii)The advertisement is in respect of 13 vacant posts onnon-grant basis. However, how many posts are vacant is notreflected.iv)The order of Hon’ble High Court is submitted however, thecandidate in the file and the name of petitioner in the order isnot tallied.v)The documents from the file of appointment on non-grantbasis are not submitted.”8.There is absolutely no mention of objection in respect of nonpassing of TET exam. Respondent No.2 cannot add any reason at alater point of time. As regards the five reasons those are quoted inthe impugned order, it can be said that respondent No.4 wasexercising his powers to the limited extent. When the initial approvalas well as on transfer approval was granted by the competentauthority i.e. respondent No.5; respondent No.4 could not have goneinto the merits on which the petitioners came to be appointed. Only invery exceptional circumstances, he can be allowed, but those powersto be used in exceptional circumstances, will have to be usedsparingly. All those five points were already considered by respondentNo.5 while considering the proposal at the initial stage i.e. for the[5] wp-7871-2022.odtappointment and secondly, at the time of grant of approval to thetransfer of petitioners from unaided to aided. Respondent No.4 cannotsit as an appellate Court in respect of the subject matter overrespondent No.5. Another fact to be noted is that from the contents ofthe petition and the documents attached thereto, it can be certainlygathered that there are documents to show that the appointment ofthe petitioners was as per the procedure and, therefore, they shouldget the Shalarth ID. The next question would be in respect ofqualification of clearance in TET exam. This Court after taking note ofthe said proceedings before Hon’ble Supreme Court which have stayedthe impugned orders before it would be dealing with the point as towhether the said test is compulsory for the appointment of teachers.As the matter is subjudiced before the Hon’ble Supreme Court,respondent No.4 cannot justify his action to keep the proposal onbehalf of petitioners for years together. 9.Reliance can be placed on the decision in Dattatray DevidasSonwale and another Vs. The State of Maharashtra Through itsPrincipal Secretary and others, [Writ Petition No.11121 of 2021] andAnkush Kautik Gonge Vs. The State of Maharashtra Through itsPrincipal Secretary and another, [Writ Petition No.9944 of 2023] inwhich reference has been made to the decision of this Bench in SagarGopichand Bahire Vs. State of Maharashtra dna others, [Writ Petition[6] wp-7871-2022.odtNo.4904 of 2020 decided on 11.06.2021], wherein it has been heldthat if a candidate has not acquired TET qualification prior to31.03.2019, then such candidate cannot be retained in service and theGovernment will not be liable to pay the salaries. The said matter isnow pending before the Hon’ble Supreme Court in SLP (Civil) No.8300of 2021 and the Hon’ble Supreme Court has directed status quo to bemaintained.10.In the case of similarly situated person, this Court has taken astand in view of the aforesaid situation that when the petitioner isworking, then he should get his salary and for that purpose his nameshould be included in the Shalarth Pranali. We adopt the same viewand, therefore, we partly allow the petition, thereby quashing theimpugned order dated 04.04.2022, with following directions :-[a]The petitioners would tender an undertaking that, theywould abide by the conclusions that would be drawn by theHon’ble Supreme Court, and if the verdict is adverse to thoseteachers who do not have the TET qualification or have clearedthe TET after 31.03.2019, or as the case may be, they wouldabide by the same without raising any cause of action.[b]Let such affidavit/undertaking be filed in this Court within15 days from today and a copy be tendered to the concernedEducation Officer within the same timeline.[c]Considering the above, the proposals of the Petitionerswould be considered for entering their names in the ‘Shalarth-ID’[7] wp-7871-2022.odton their own merits, save and except, the reason that they arenot TET qualified. Needless to state, the proposals would bedecided within 30 days after the submissions of theundertakings.[d]If an adverse order is passed by the Hon’ble SupremeCourt by which the teachers are covered by clause (a), the StateGovernment would not recover the salaries already paid tothem, since they have worked for those tenures and they haveearned their salaries for performing their duties.[e]In the event, the candidates like the Petitioners areprotected by the Hon’ble Supreme Court’s conslusions and theyare held to be qualified to continue in employment, they wouldbe entitled for all service benefits like promotions, increments,etc.11.Writ Petition stands disposed of.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[8]