High Court
Facts
1 wp 8852.2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8852 OF 20191.Yasmeen Begum Abdul Khaleel Qureshi,age major, Occ. Service,R/o Madarse Qureshia Urdu Prathmik Shala,Maniyar Galli, Nanded, Tq. Dist. Nanded. Deleted.2.Quazi Umara Parveen Quazi Azeemuddin,age 25 yrs, Occ. Service,R/o. As above.3.Shaikh Sumayya Firdous Shaikh Ahmed,age major, Occ. Service, R/o. As above...Deleted..4.Aneesa Kausar Mohammed Younus,age major, occ. Service, r/o as above...Deleted.. … Petitioners…Versus1.The State of Maharashtra,through the Secretary,Department of School Education and Sports,Mantralaya, Mumbai.2.The Education Officer, (Primary)Zilla Parishad Nanded,Tq. & Dist. Nanded.3.The Head Master,Madarse Qureshia Urdu Prathmik Shala,Maniyar Galli,Nanded – 431 604.4.The Secretary,Qureshi Education Society,Maniyar Galli,Nanded – 431 604.Respondents…
Legal Reasoning
5 wp 8852.2019.odtv]As per the clause -B of the GovernmentResolution dated 24.8.2018 the recruitment isnot as per the roaster filed up by the backlog.vi]As per clause C of GovernmentResolution dated 24.8.2018 the recruitment ofteachers is decided to be done by the PavitraPranali and the appointment of the petitioner isnot done as per the Pavitra Pranali.vii]Lastly, the approval is rejected on theground that as per the clause -D of theGovernment Resolution dated 24.8.2018 thepoints referred in Government Resolution dated24.8.2018 is also applicable for pendingproposal.”8.It is not in dispute that respondent no.4 is aMinority Education Institution, who runs Respondent no.3School. The Management of the minority institution would notbe required to follow the reservation policy of the State nor itis under obligation to absorb the teachers on the list of surplus,maintained by the Education Officer. 9.This Court in case of The Canossa Society, CanossaConvent and others Vs. the Commissioner, Social Welfare andothers decided on 7.5.2014 (WP 1049 of 2012) held thatminority education institute is not obliged to absorb thesurplus teachers. Further, in case of Pramati Educational andCultural Trust ® and others Vs. Union of India and othersreported in AIR 2014 SC 2114 the Supreme Court of India heldthat Right of Children to Free and Compulsory Education Act,2009 does not apply to minority schools. Even, the State ofMaharashtra vide its Government Resolution dated 13.7.2016 6 wp 8852.2019.odtdispensed with application of reservation of seats intorecruitment within minority institutions.10.So far as Government Resolution dated 23.6.2017by which the common recruitment procedure is prescribed forAssistant Teachers, exemption is given to the minorityinstitutions. Therefore procedure of appointments through‘Pavitra Portal’ wouldn't bind minority institutes.11.So far as ground regarding applicability of TETqualification for appointments of teachers in the minorityinstitution is concerned, this Court in the group of matteralongwith Writ Petition No.13770 of 2018 in case of BurhaniNational Education Society through its Secretary and anotherVs. State of Maharashtra and others referred the question to bedecided by Larger Bench, which reads thus :-“Whether the Teachers Eligibility Test (TET)qualification is necessary for the appointmentso also for continuation of the teachers inminority aided or unaided institutions ?”12.In pursuance to Reference, the Full Bench isconstituted, however, Supreme Court of India in SLP (Special)Diary No.17702 of 2021 filed by the Director of SchoolEducation, Chennai and another Vs. B. Annie Packiarani Baiand Special Leave to appeal (Civil) No.29014 of 2018 betweenAzad Education Society, Miraj through its President Vs. TheState of Maharashtra, framed the similar issue forconsideration, hence pending issue before the Supreme Court 7 wp 8852.2019.odtof India hearing before full bench of this court has beendeferred.13.It is not disputed that even the issue as regards toapplicability of the TET is pending before the Supreme Court.In this backdrop, this Court in many cased issued directions bybalancing equities subject to final decision by the SupremeCourt of India and issued directions to grant conditionalapproval or continue services of the candidates, who does notposses TET qualifications. The similar course can be adoptedin present case. Consequently we proceed to pass thefollowing order.O R D E R i.Writ Petition is partly allowed.ii.The impugned order dated 8.4.2019 passed bythe Respondent No.2 - Education Officer(Primary), Zilla Parishad, Nanded is herebyquashed and set aside.iii.Matter is relegated back to the Respondent No.2- Education Officer, who shall re-consider theproposal for grant of approval in favour of thepetitioner, in light of the aforesaid observations,and shall pass the appropriate orders within aperiod of eight (8) weeks from the date of thisorder.iv.Further, the petitioner’s approval shall not berejected on the ground that she does not hold 8 wp 8852.2019.odtTET qualification, if she files an undertakingthat she would abide the conclusion that wouldbe drawn by the Hon’ble Supreme Court and ifthe verdict is adverse, on requirement of TETqualification, w.e.f. 31.3.2019, she would abideby the same and she would not claim equity.v.Such an undertaking to be filed before theEducation Officer within a period of Fifteen(15) days. If petitioner found otherwiseeligible, conditional approval shall be issued toher appointment.vi.Writ Petition is accordingly disposed off. Nocosts. ( S. G. CHAPALGAONKAR ) ( SMT. VIBHA KANKANWADI ) JUDGE JUDGE…aaa/- [F]
Arguments
2 wp 8852.2019.odtMr. R.C. Brahmankar, advocate for petitioner.Mr. N.S. Tekale, AGP for Respondent No.1.Mr. S.B. Pulkundwar, Advocate for respondent no.2.Mr. S.B. Ghatol Patil Advocate for respondent nos.3 & 4.…CORAM : SMT. VIBHA KANKANWADI & S. G. CHAPALGAONKAR, JJ. Dated: 21st February, 2024.…FINAL ORDER :- (Per S.G.Chapalgaonkar, J.)1.The petitioner has approached this Court underArticle 226 of the Constitution of India, impugning the orderdated 8.4.2019 passed by the Respondent no.2-EducationOfficer, thereby rejecting the proposal for grant of approval tothe petitioner’s appointment in pursuance of proposal dated18.9.2018 forwarded by respondent no.3 Head Master. Thepetitioner also seeks to issue a writ of mandamus to grant suchapproval.2.The petitioner contends that she is qualified to beappointed as an assistant teacher. In pursuance of theadvertisement published by respondent no.4-Management, shehad responded and after going through selection process, shehas been appointed with respondent no.3 School. As such, sheis discharging her duty as ‘Assistant Teacher’ with effect from24.7.2017.3.The respondent no.3 Head Master forwardedproposal dated 29.9.2017 to the Education Officer for grant ofapproval to the petitioner’s appointment. Again a revisedproposal was sent on 18.9.2018. The respondent no.2 3 wp 8852.2019.odtEducation Officer rejected the proposal vide impugned orderdated 8.4.2019. According to the petitioner, the impugnedorder is erroneous and contrary to well established legalposition, emerging from the various Government Resolutionsholding the field and pronouncements by this Court.4.Respondent No.2 filed the affidavit-in-reply andjustified rejection of the proposal for grant of approval to theappointment of the petitioner and others. It is stated that theRespondent/Management made appointment without solicitingpermission to advertise the post. Reservation Roster was notfollowed. There are surplus teachers available forappointment. Further recruitment is not routed through“Paviatra Portal” introduced by the Government. Thepetitioners do not fulfill requisite qualification of TET. As suchdoes not qualify for appointment as Assistant Teacher.5.Mr. R.C. Barmhankar, learned advocate appearingfor the petitioner would submit that the reasons indicated inthe impugned order are perverse. The petitioner is appointedin a minority institution. Having specific privileges underArticle 30 of the Constitution of India, the reservation rosterwould not apply to such Institution. Management has everyright to appoint candidates of it’s choice. The petitionerpossesses requisite qualification. She is appointed by followingdue process of law. Further, minority institution are notobliged to absorb surplus teachers. Provisions of Right toEducation Act would not override the autonomy of minorityInstitute. The ‘Pavitra Portal’ would not be applicable to theminority institution as per clause AA of the Government 4 wp 8852.2019.odtResolution dated 23.6.2017. He would therefore submit thatthe impugned order is liable to be quashed and set aside anddirections as prayed may be issued to grant approval in favourof the petitioner.6.Mr. S.B. Pulkundwar, learned advocate appearingfor respondent no.2, however, supports the impugned order.7.We have considered the submissions advanced bythe learned advocates appearing for the respective parties.Apparently, the Education Officer refused to accord approval toappointment of the petitioner giving following reasons :-“4.I say and submit that theapproval to the appointment of the petitioner isrejected by an order dated 18.4.2019 onfollowing grounds :-i]No permission is obtained to thepublication of advertisement in daily newspaperfor appointment of petitioners.ii]On the date of appointment ofpetitioner, the petitioner was no possession theTET qualification which is one of the mandatoryrequirement as per the provisions of RTE Act.iii]Management did not produce the copyof roaster with the respondent no.2 EducationOfficer (Primary), Zilla Parishad, Nanded.iv]As per the Government Resolution dated22.4.2018 the Management did not allow thesurplus teachers sent by the Education Officer toresume the duty therefore, the Education Officeras per the Government Resolution dated24.8.2018 should reject the approval toappointment of teachers therefore, the approvalis rejected.