High Court
Legal Reasoning
(1) wp-11648-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 11648 OF 2021Nagesh s/o Shivajirao Kale, Age: 32 years, Occu: Service as Assistant Teacher, R/o. At Kautha, Tq. & Dist. Nanded..PetitionerVersus1.The State of Maharashtra,Through its Secretary, School Education Department Mantralaya, Mumbai – 322.Deputy Director of EducationLatur, Division Latur.3.The Education Officer (Secondary)Zilla Parishad, Nanded.4.The Superintendent (Secondary)Pay Unit, Zilla Parishad, Nanded.5.Late Bhausaheb Bhosale ShikshanPrasarak Mandal, Nanded, Tq. & Dist. Nanded Through its President/Secretary.6.Shri. Dnyaneshwar Vidyalaya, Talni,Tq. & Dist. NandedThrough its Head Master...Respondents...Mr. V. S. Panpatte, Advocate for the Petitioner.Mr. S. K. Shirse, AGP for Respondent Nos.1 to 3.Mr. T. S. Lodhe, Advocate for Respondent Nos.5 and 6.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 02nd MAY, 2024.JUDGMENT PRONOUNCED ON :- 09th MAY, 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission. (2) wp-11648-2021.odt2.The petitioners-Educational Institution approach this Courtunder Article 226 of the Constitution of India with followingprayers:-“B.To hold and declare that, the appointment of thepetitioner w.e.f. 29.07.2013 as Shikshan Sevak in theRespondent No.6-School is legal and valid one;C.By issue of Writ of Certiorari and or any otherappropriate Writ, Order or Direction in the like nature, theorder dated 23.07.2021 issued by the Respondent No.2-Deputy Director of Education, Latur at Exhibit “Q” maykindly be quash and set aside.D.By issue of Writ of Mandamus and or any otherappropriate Writ, Order of Direction in the like nature, theRespondent No.2-Deputy Director of Education, Latur maykindly be directed to restore the approval order dated13.09.2019 issued by the Respondent No.3-Education Officer(Secondary) and to include the name of the petitioner in the“Shalarth Pranali” and release the arrears of the salary ofthe petitioner w.e.f. 29.07.2013 till today within a period ofsix weeks;”3.The petitioner contends that respondent no.5 runsrespondent no.6-School at village Talni, Taluka and DistrictNanded. It receives 100% grant-in-aid for 5th to 10th Standard. On18.07.2013, respondent nos.5 and 6 issued an advertisementinviting applications from eligible candidates for the unreservedpost of Shikshan Sevak. The petitioner being qualified andeligible, responded to the advertisement and after following dueprocess of law, he came to be appointed w.e.f. 29.07.2013. On13.09.2019, respondent no.6 submitted the proposal to respondentno.3 for grant of approval to the appointment of petitioner on thepost of Shikshan Sevak. The respondent no.3 accorded suchapproval vide order dated 13.09.2019. Thereafter, the proposal forinclusion of the petitioner’s name in the Shalarth Pranali wasmoved. The respondent no.3 recommended the proposal vide hisorder dated 21.11.2019. However, respondent no.2 raised certain (3) wp-11648-2021.odtdeficiencies vide his communication dated 13.10.2020, therefore,the fresh proposal was submitted after removing deficiencies withnecessary clarification, as regards to the staffing pattern as on thedate of the advertisement. The supporting documents were madepart of proposal. The respondent no.2 directed respondent nos.5and 6 to remain present for hearing on 13.07.2021, later on, passedimpugned order dated 23.07.2021 canceling approval granted to thepetitioner’s appointment, so also rejected the proposal for inclusionof petitioner’s name in the Shalarth Pranali. 4.Mr. Panpatte, learned Advocate appearing for the petitionersubmits that the petitioner’s appointment is made in accordancewith staffing pattern, which shows that 14 posts of teachers,including Headmaster were available. He invites attention of thisCourt to the strength of students admitted in the school to contendthat 14 posts of the teacher were admissible right from 2008onwards. The respondent no.2 raised technical objection, although14 posts were admissible and shown in the staffing pattern. Evenit is assumed that 14 posts of teacher were not sanctionedtechnically, in terms of Government Resolution dated 13.09.1995,looking to the number of students, that many posts would beavailable. The petitioner has sincerely rendered services from thedate of his appointment. The Education Officer had approved hisappointment after considering the relevant aspects. Thereafter,proposal was moved for inclusion of the petitioner’s name inShalarth Pranali. At that stage, respondent no.2 exceeded hisjurisdiction and canceled the approval granted by the EducationOfficer, so also rejected the proposal for entering the petitioner’sname in the Shalarth Pranali. To buttress his submissions, heplaces reliance on the observations of the Division Bench of thisCourt in case of Amol Baban Sangar Vs. The State ofMaharashtra and Ors. in Writ Petition No.8966/2021 dated (4) wp-11648-2021.odt21.02.2022 to contend that in absence of fraud ormisrepresentation, the Deputy Director of Education cannotconsider the issue of grant of approval, while entering the name ofthe school employees in the Shalarth Pranali. The Circular dated29.03.2019 would not have force of law.5.Mr. Shirse, learned A.G.P. appearing for respondent nos.1 to3 supports the impugned order. He would submit that the staffingpattern of respondent no.6-School clearly puts note that norecruitment is permissible, unless additional post is sanctioned bythe Government. At the time of the petitioner’s appointment only13 posts were sanctioned and there was no vacancy for issuingadvertisement and carry forward recruitment on the post ofteacher. He submits that there is nothing on record to show thatthe permission was obtained from the Competent Authority beforeissuance of advertisement. He points out that although theappointment of the petitioner is made in the year 2013, theproposal for grant of approval was moved in the year 2019. Thereis no explanation for such a delay. The Education Officer had alsogranted approval, overlooking availability of sanctioned posts as onthe date of the advertisement. Even, reservation roster was notapproved prior to the issuance of the advertisement. He would,therefore, submit that no fault can be found in impugned order.The petitioner’s appointment is de-hors statutory provisions andregulations governing the recruitment of the teachers in theprivate schools.6.We have considered the submissions advanced on behalf ofthe learned Advocates appearing for the respective parties. Wehave gone through the record tendered into service for ourconsideration. It cannot be disputed that the petitioner respondedto the advertisement issued by respondent nos.5 and 6. He holds
Decision
(5) wp-11648-2021.odtrequisite qualification for appointment on the post of ShikshanSevak. Consequently, after going through the selection process, hehas been appointed vide order dated 29.07.2013. Unfortunately,the proposal for approval was moved after 6 years and EducationOfficer accorded the same vide his order dated 13.09.2019. Thedifficultly arose when the proposal for inclusion of the petitioner’sname in the Shalarth Pranali was recommended for considerationof respondent no.2-Deputy Director of Education. The impugnedorder dated 23.07.2021 shows that it has been passed after givingopportunity of hearing to the petitioner, the school managementand also the Education Officer. The crux of the impugned order isbased on availability of sanctioned posts on school establishment atthe time of advertisement. Apparently, for Academic Year 2009-10to 2012-13 only 13 posts were sanctioned and additional work loadfor one post was available, but there was no technical sanction for14th post. The staffing pattern for 2013-14 shows 14 posts, butthere is nothing to show that such post was approved/sanctioned bythe Government. Apparently, at the time of the petitioner’sappointment, although post is shown in the staffing pattern, it hadnot received sanction from the Government. Therefore, primafacie, the observations made by respondent no.2 in the impugnedorder appears to be in tune with the record. 7.The correspondence made by respondent nos.3, 5 and 6 withrespondent no.2 shows that right from the year 2009 onward, therewas sufficient strength of the students in the school, by which 6posts of graduate teacher for 9th to 10th Standard and 6 posts ofgraduate teacher for 6th to 8th Standard can be sanctioned, inaddition to the post of Headmaster and a post of undergraduateteacher. However, impugned order is silent about strength ofstudents as on the date of advertisement and consequential workload as per guidelines in the Government Resolution dated (6) wp-11648-2021.odt13.09.1995 and 19.06.1995. If the post is admissible on the basis ofthe impeccable record and if the petitioner has rendered servicesfor last 10 years from the date of his appointment, respondent no.2could have considered to cure technical defect by sanctioningadditional post in tune with admissible work load. However, forsuch a technical reason the approval granted to the appointment ofthe petitioner could not have been canceled after 10 years ofservice. We have noted some defects in the process of appointmentundertaken by respondent nos.5 and 6 and also noted unexplaineddelay of more than 6 years for forwarding proposal seekingapproval to the appointment of the petitioner. We deem itappropriate to relegate the matter for re-consideration byrespondent no.2 in light of the aforesaid observations withexpectation that in case, the petitioner’s appointment is found intune with the MEPS Rules and other procedural aspects and if thepost of graduate teacher is found admissible on schoolestablishment on the basis of work load, respondent no.2 wouldtake pragmatic view of the matter and pass fresh order inaccordance with law. 8.Resultantly, we proceed to pass following order:ORDERa.Writ Petition is partly allowed.b.The impugned order dated 23.07.2021 passed by respondentno.2-Deputy Director of Education, Latur is hereby quashed andset aside.c.The respondent no.2-Deputy Director of Education, Laurshall re-examine the aspect of work load as on the date of theadvertisement and consequential appointment of the petitionerwith respondent no.6-School and if the post is admissible, take (7) wp-11648-2021.odtsteps to sanction the same. In case the post is sanctioned based onwork load, respondent no.2 shall examine other relevant aspects ofthe matter and pass consequential orders to enter the petitioner’sname in the Shalarth Pranali and release salary.d.The respondent no.2 shall undertake the aforesaid exercisewithin a period of eight (08) weeks from the date of order andcommunicate his decision to the concerned parties within a periodof two weeks thereafter.e.Writ Petition is disposed of.f.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/May-2024