High Court

Legal Reasoning

{1} WP 10763.22.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10763 OF 2022Ajay s/o. Changdev Dhaktode,Age 31 years, Occ. Assistant Teacher,R/o. Saraswati Colony, Ward No. 07,Shrirampur, Tq. Shrirampur,Dist. Ahmednagar... PETITIONERVERSUS1. The State of MaharashtraThrough its Principal Secretary,Secondary School Education Department,Mantralaya, Mumbai – 32.2.The Deputy Director of Education,Pune Region, Pune – 411 001.3.The Education Officer(Secondary)Zilla Parishad, Ahmednagar.4.Maharashtra Seva Mandal, Shrirampur,Tq. Shrirampur, Dist. Ahmednagar,Through its Secretary... RESPONDENTS.Mr. S.T. Shelke, Advocate for the petitionerMr. S.K. Shirse, AGP for respondent Nos. 1 to 3.Mr. S.S. Wagh, Advocate for respondent No.4. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. RESERVED ON : 9TH MAY, 2024 PRONOUNCED ON : 10TH MAY, 2024. JUDGMENT : (PER S.G. CHAPALGAONKAR, J.] {2} WP 10763.22.odt1.Rule. Rule made returnable forthwith. Heard finally byconsent of learned advocates appearing for the parties.The petitioner impugns the order dated 27.9.2022 passed bythe Education Officer (Secondary) – Respondent No.3, thereby decliningapproval to the appointment of the petitioner on the post of AssistantTeacher on establishment of respondent No.4 School.2.Mr. S.T. Shelke, learned advocate appearing for thepetitioner submits that the post of Assistant Teacher was vacant on theestablishment of respondent No.4 school. The management of the schoolmade a request to Education Officer on 10.10.2016 to depute surplusteacher, if any, against the vacancy or permit the management to fill upthe post and issue advertisement for that purpose. The respondent No.3failed to respond to the request of the management. Therefore,management published an advertisement dated 11.1.2017 invitingapplications from eligible candidates. The petitioner, being eligible,responded to the advertisement and after going through the selectionprocess, came to be appointed w.e.f. 17.1.2017. The proposal seekingapproval to the petitioner’s appointment was forwarded to therespondent No.3. However, same is rejected vide impugned order dated27.9.2022.3.Mr. S.T. Shelke, learned advocate for the petitioner submitsthat the rejection of approval to the appointment of petitioner is forerroneous reasons. The appointment of the petitioner is against a clearvacancy. He holds the requisite qualification. The GovernmentResolution dated 6.2.2012, 23.6.2017 and circular dated 4.5.2020 issuedby the School Education Department cannot be retrospectively made {3} WP 10763.22.odtapplicable to the appointment of the petitioner. According to him, theorder is not sustainable in law. Therefore, he urges to quash and set asidethe impugned order and issue directions to grant approval to thepetitioner’s appointment.4.Mr. S.K. Shirse, learned AGP appearing for respondent Nos. 1to 3 refers to the affidavit in reply filed by Mr. Ashok Kadu, EducationOfficer and submits that although the petitioner has been appointed on17.1.2017, the proposal seeking approval has been submitted on9.6.2022. The deficiencies in the proposal were communicated to themanagement. However, they failed to comply the same. Mr. Shirsewould further submit that the advertisement was not published in awidely circulated newspaper. The record showing vacancy on theestablishment of the school was not submitted with proposal. Theprocedure prescribed under the Government Resolution dated 6.2.2012and 23.6.2017 was not followed. Consequently, the proposal has beenrightly rejected recording adequate reasons.5.We have considered the submissions advanced by thelearned advocates for the respective parties. We have gone through therecord tendered into service for our consideration. It appears that on16.12.2014, Mr. B.R. Andhale, a surplus Teacher, was temporarilyabsorbed on establishment of the school. However, on 1.9.2016, he wasabsorbed at Vidya Mandir Prashala at Rahuri. Consequently, the vacancyarose on the establishment of respondent No.4 school. On 13.10.2016,the management of the school addressed a communication dated10.10.2016 to respondent No.3 requesting to depute surplus teacher forabsorption against the vacancy or permit the management to advertise {4} WP 10763.22.odtthe post. The copy of the communication is placed on record of thiscourt. It shows that on 13.10.2016, the office of the respondent No.3received and acknowledge the same. After waiting for almost 3 months,management published an advertisement dated 11.1.2017, leading to theappointment of the petitioner w.e.f. 17.1.2017.6.Copies of muster roll and seniority list are made part of therecord with affidavit in reply filed by the management. The muster rollindicates that the petitioner has continuously discharged the duties fromthe date of appointment. The muster roll appears to have been certifiedby the Block Development Officer. Management attempted to submitproposal seeking approval to the petitioner’s appointment on 4.4.2018.Finally, the proposal reached to the office of respondent No.3 on9.6.2022. It is true that the delay in submitting the approval is notsatisfactorily explained, but fact remains that there is impeccable recordto establish that the petitioner has been appointed since January, 2017and discharged his duties as Assistant Teacher at the school.7.Turning back to the impugned order, it can be gathered thatthe rejection of approval is broadly for following reasons :-[i]Permission was not obtained for issuing advertisement;[ii]Copy of advertisement published in widely circulatednewspaper is not available;[iii]The details of the Assistant Teachers having B.Ed.Qualification, but working in D.Ed. Pay Scale are not made available;[iv]The work load on the establishment of the school cannot beascertained;[v]The recruitment process is not conducted in tune with {5} WP 10763.22.odtdirections issued under the Government Resolution dated 6.2.2012 and23.6.2017 and circular dated 4.5.2020.8.Pertinently, the record indicates that the petitioner’sappointment is made against vacant post that was previously occupied byMr. B.R. Andhale. The management of the school had communicatedavailable vacancy so also sought permission to advertise the post.However, in absence of response from office of respondent No.3, theprocess of recruitment of the vacant post has been conducted leading tothe appointment of the petitioner.9.In that view of the matter, it would not be open for therespondent No.3 – Education Officer to contend that the permission foradvertisement was not obtained or details of vacant posts were notknown to his office. So far as the other reasons incorporated inimpugned order relying upon the Govt. Resolutions referred above isconcerned, it has no application in the facts and circumstances of thecase. SARAL was introduced vide Government Resolution dated23.6.2017 i.e. after appointment of the petitioner. The GovernmentResolutions and circulars issued after petitioner’s appointment could nothave been made applicable retrospectively while considering the proposalseeking approval to appointment made in the month of January, 2017.10.The observations of the Education Officer are mechanicaland contrary to the record. We do not find any substantial defect in theprocedure followed by the management while appointing the petitioner.On the other hand, the Education Officer for defaults of his office hasfrustrated the proposal. Consequently, the impugned order can not be {6} WP 10763.22.odtsustained in law. Hence, we proceed to pass the following order :-O R D E R[a]The writ petition is allowed;[b]The impugned order dated 27.9.2022 passed by theEducation Officer (Secondary), Zilla Parishad, Ahmednagar is quashedand set aside;[c]The respondent No.3 – Education Officer (Secondary), ZillaParishad, Ahmednagar shall grant approval to the petitioner’sappointment and take further steps for release of his salary in accordancewith law and rules.[d]Rule made absolute in above terms. No costs.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-