RAVINDRA v. GHUGE &Y. G. KHOBRAGADE, JJ.RESERVED ON

Legal Reasoning

( 1 ) wp 11085.17IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 11085 OF 20171) Khushal S/o Sadashiv MedheAge: 24 Years, Occ. Service, R/o. At post Ambedkar Nagar, Faizpur,Tq. Yawal, Dist. Jalgaon. 2)Shri. Aakash S/o Kailash SaliAge: 25 years, Occu: Service, R/o: Shriram Peth, at post Faizpur, Tq. Yawal, Dist. Jalgaon....PETITIONERSV/s.1)The State of MaharashtraThrough Its Secretary, School Education Department, Mantralaya, Mumbai- 322) The Deputy Directorof Education Nashik, Dist. Nashik.3) Education Officer, (Secondary)Zilla Parishad, Jalgaon.4) Municipal High School & Junior College,Faijapur, Tq. Yawal, Dist. Jalgaon. Through Its President School Committee.5) Municipal High School & Junior College,Faijapur, Tq. Yawal, Dist. Jalgaon. Through Its Head Master.... RESPONDENTS...Ms. Nayana Patil h/f. S.P. Mahajan, Advocate for the PetitionersMr. S.B. Narwade, AGP for Respondent-StateMr. S.P. Rathod, Advocate for Respondent Nos.4 & 5 … ( 2 ) wp 11085.17CORAM : RAVINDRA V. GHUGE &Y. G. KHOBRAGADE, JJ.RESERVED ON :7th February, 2024 PRONOUNCED ON :4th April, 2024JUDGMENT (Per: Y. G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties.2.By the present petition under Article 226 of the Constitution ofIndia the Petitioners have put-forth prayer clause-B as under:“B)Be pleaded to quash & set aside the letter dtd. 31.8.2017issued by respondent no. 3 and letter dtd. 5.9.2017 issued byrespondent no. 4 may kindly be quash and set aside and further therespondent no. 3 may kindly be directed to consider the claim of thepetitioners a fresh as earlier as possible within period of 3 weeksfrom today.”3.The learned advocate appearing for the Petitioners submits thatthe Petitioner No. 1 is HSC passed and the Petitioner No.2 is SSC passed. On04.09.2015 Respondent Nos. 4 and 5 published an advertisement in DailyNewspaper “Dainik Lokmat” for the post of Shipai Sevak and in pursuance ofsaid advertisement the Petitioners applied for the said post and have undergonethe selection process. Accordingly, the Petitioner No.1 appointed to the post ofShipai Sevak under the reserved category with the Respondent No. 4 and the ( 3 ) wp 11085.17Petitioner No. 2 was appointed for the post of Shipai Sevak under the opencategory. Thereafter, both the Petitioners joined on 21.09.2015 and whilejoining both of them have furnished an undertaking that they will be abide bythe terms and conditions described in appointment letter. On 14.09.2015 theManaging Committee of the Education Society passed the resolution forsubmitting the proposal for approval to the Education Officer – RespondentNo.3 and on 28.12.2015, in pursuance of the said resolution the proposal forapproval of both the Petitioners were submitted by the Respondent No.5.However, on 23.02.2016 the Respondent No.2 rejected the said proposal on theground that as per G. R. Dated 02.05.2012 unless 100% absorption of surplusteacher is done no recruitment of teaching and non-teaching employees wouldbe made and as per G. R. Dated 20.06.2014 the proposed committee shall takedecision in respect of grant of approval as well as grant of permission of thenew recruitment, but no such permission has been granted by the saidcommittee.4.The learned advocate appearing for the Petitioners submits that asper communication dated 23.02.2016 ban was imposed on new recruitment forfilling the posts of teaching and non-teaching staff unless 100% absorption ofsurplus employees is done, but as per GR dated 02.05.2012 ban was lifted,therefore, there was no ban for recruitment on teaching/non teaching staff, ( 4 ) wp 11085.17however, Respondent No. 3 refused to accord approval to the appointment ofPetitioners.5.Therefore, being aggrieved by the said refusal, the Petitioner Nos.1 and 2 had filed Writ Petition No. 3719/2016 before this Court. On15.03.2017, this Court passed an order observing that, the proposal ofRespondent No. 4 School for according approval to their appointment has notbeen considered mainly on ground that the appointments were made duringoperation of ban in respect of making appointments imposed by StateGovernment and that no prior permission was sought from Committee. Furtherit was observed that though communications were made w.e.f. 20.03.2015 toDecember 2015 by the President of the School Committee for permission beforemaking appointment, however, none of the communications have beenanswered by the Respondent Nos. 2 and 3, so also, it was not insistence foraccommodating surplus teachers by the Education Officer, hence, the SchoolManagement cannot be blamed for violating guidelines. Therefore, failure ofthe Education Officer to follow the procedure the Petitioners cannot be put toany disadvantageous situation. Therefore, directions were given to RespondentNo. 3 to consider the proposal for according approval to appointment of thePetitioners with further directions that the proposal shall not be rejected merely ( 5 ) wp 11085.17on ground that no prior permission was sought for making appointment or onground that appointments were made during period of operation of ban.6.However, on 31.08.2017 Respondent No.3 passed the impugnedorder and rejected proposal of Petitioners on following grounds : - I. As per GR Dated 21.08.2013 filing up of the backlog of reserved category was extended till 31.03.2014, however the appointments are of 21.09.2015.II. In view of view of status quo granted by GR Dated 14.02.2015 to the earlier GR Dated 23.10.2013 the formation of new committee has not yet formed, therefore, till the staff schedule of non teaching staff is sanctioned filing up of vacancies is not permitted.7. The learned advocate appearing for the Petitioners further submitsthat letters Dated 31.08.2017 and 05.09.2017 are not sustainable as theRespondent No. 3 is relying on G. R. dated 21.08.2013 which came to beextended till 31.03.2014 and further G. R. dated 23.10.2023 has been grantedstatus quo. Therefore, by this petition the Petitioners prayed for quashing andsetting aside letters dated 31.08.2017 and 05.09.2017.8.The Respondent Nos. 4 and 5 filed their reply contending that forthe academic year 2013-2014, total four posts of Class IV employees weresanctioned and staffing pattern in respect of non teaching staff was approvedfor the academic year 2014-2015, 2015-2016 and 2016-2017. Since four posts ( 6 ) wp 11085.17of Class IV employees were vacant, therefore the Managing Committee of theEducation Society issued advertisement in Daily newspaper “Lokmat”, howeverprior to that communication was issued to the Education Officer w.e.f.20.03.2015 to December 2015, but the Respondent No.3 did not take anydecision on the said proposal, therefore, the School Management Committeeissued advertisement on 04.09.2015 in Daily Lokmat newspaper and invitedapplications and after conducting the selection process the Petitioner Nos.1 and2 have been appointed to the post of Shipai Sevak. Thereafter, the proposalwas submitted with the Respondent No.3 for approval of appointment of thePetitioner, however, said proposal was declined by the Respondents. Therefore,the Petitioners have filed Writ Petition No.3719/2016 before this Court and inpursuance of order dated 15.03.2017 passed by this Court (Coram: R.M. Bordeand P.R. Bora, JJ.) the Respondent No.3 was directed to examine the proposaland to decide the same, however again on 31.08.2017 the Respondent No.3rejected the said proposal on the ground that appointment of the PetitionerNo.1 was made against reserved S. C. category and the appointment of thePetitioner No.2 was made from the open category without filling the backlog asper roster and GR dated 21.08.2013.9.Per contra, Mr. Siddharth S/o Madhav Netkar, Deputy EducationOfficer (Secondary), Zilla Parishad, Jalgaon filed affidavit in reply and strongly ( 7 ) wp 11085.17opposed the petition mainly on the ground that the appointment of thePetitioner Nos. 1 and 2 in pursuance of advertisement published in DailyLokmat on 04.09.2015, but prior to advertisement no prior permission wasobtained by the Management Committee of the Education Society which runsthe School and Junior College, so also the appointment of the Petitioner Nos. 1and 2 contrary to the GR dated 02.05.2012, wherein it has been provided thatunless 100% absorption of surplus teacher is made no recruitment of teachingand non-teaching employee shall be made, however the Managing Committeeof the Education Society made appointment of the Petitioner Nos. 1 and 2contrary to the G. R. and there were surplus teachers. So also, as per GR dated21.08.2013 the backlog of reserved category was extended till 31.03.2014appointments are being made on 21.09.2015. So also, as per GR dated12.02.2015 a committee constituted under the Chairmanship of CommissionerPune (Education Department) to fix the revise staffing pattern for non-teachingstaff and unless the said committee recommended the State Government, nofresh and vacant appointment of non-teaching staff can be made, however, theappointment of both the Petitioners have been made in contravention of GRdated 21.08.2013 and 12.02.2015. Therefore, the proposal was rightly rejectedhence, prayed for dismissal of the petition. ( 8 ) wp 11085.1710.It would be worthwhile to mention here that in earlier round oflitigation both these Petitioners approached this Court by filing Writ PetitionNo.3719/2016 thereby seeking directions against the Respondent No.3-Education Officer to consider their proposal for grant of approval to theirappointment for the post of Peon. It is a matter of record that on 15.03.2017the Co-ordinate Bench of this Court passed the judgment holding that thePresident of the School Committee had issued communications from20.03.2015 to December 2015, however the Respondent No.3-EducationOfficer has not answered the said communications. The Respondent No. 3-Education Officer also not issued any communication or list of surplus teacherswho were to be accommodated with the Respondent Nos. 4 and 5 – JuniorCollege / High School. Therefore, the School Management Committee cannotbe blamed for violating guidelines and the Education Officer required to followthe procedure, the Petitioners cannot be put to any disadvantageous situation.Under these circumstances, the Respondent No. 4-Education Officer wasdirected to consider the proposal for grant of approval of the Petitioners and topass appropriate orders as early as possible within a period of three monthsthere from. However, again on 23.02.2016, the Respondent No.3 passed theimpugned orders and again rejected proposal for grant of approval on theground that though the Committee has been constituted as per GR dated ( 9 ) wp 11085.1720.06.2014, but there was no recommendation for appointment of thePetitioners.11.In the case in hand, earlier approval to the appointment of thePetitioners was rejected only on the ground that no prior permission wassought by Managing Committee of the School Committee prior to recruitmentof the Petitioners, however said order was quashed and set aside by this Courtin Writ Petition No.3719/2016 with direction to the Education Officer toreconsider the proposal of the Petitioners, but again under impugned orderdated 23.10.2016, the Education Officer declined to grant proposal on theground that there are no recommendation of the committee constituted underthe Presidency of the Commissioner of Pune (Education Department) as per theGR dated 12.02.2015. However, it seems that the appointment of thePetitioners were made on 14.09.2015 in pursuance of advertisement dated04.09.2015 and though the President of the School Managing Committeesubmitted various communications with the Education Officer, but thosecommunications remained undecided. The Respondent No. 3 has not comewith the case that the list of surplus teachers which were recommended forabsorption with the Respondent Nos.4 and 5 School / Junior College. TheRespondent No.3 failed to give specific name of surplus teaching and non-teaching employees who were directed to be absorbed with the Respondent ( 10 ) wp 11085.17Nos. 4 and 5. Therefore, merely raising a ground that no teaching or non-teaching staff can be appointed by the Respondents 4 & 5 unless 100% surplusteachers are absorbed or unless the Committee constituted under theChairmanship of Commissioner of Pune (Education Department) haveapproved staffing pattern for non-teaching staff and unless said committeerecommends the Government for appointment, no fresh and vacantappointment of non-teaching staff can be made, does not appear to bejustifiable.12.Further, it is not the case of Respondent No. 3 that non-teachingstaff were not approved with the Respondent Nos. 4 and 5. Per contra, itappears that on 08.08.2015 the Managing Committee of the High School andJunior College issued a communication to the Education Department,Commissioner Education, Education Director, Deputy Director and EducationOfficer, Zilla Parishad, Jalgaon and sought permission for filling up the post ofteaching and non-teaching staff which were fallen vacant on account ofretirement of the employees. The Respondent No. 3-Education Officer has notcountered the said communication. Therefore, it cannot be held thatappointment of the Petitioners were made without seeking permission.However due to failure on part of the Education Officer to follow theprocedure, the Petitioners cannot be put to any disadvantageous situation. ( 11 ) wp 11085.17Since, the appointment of the Petitioners were made in 2015 and till dateapproximately nine years have been lapsed, therefore, considering strength ofthe students and vacancies with the Respondent Nos. 4 and 5, it would be justand appropriate to direct the Respondent No. 3 to examine the proposal ofapproval to the appointment of the Petitioners by considering the existingvacancies and requirement of the back log which has been fulfilled by theRespondent Nos. 4 and 5 - High School and Junior College.13.In view of the above, the Petition is partly allowed. The ImpugnedOrder dated 31.08.2017 issued by the Respondent No. 3 is quashed and setaside. 14.Rule is made partly absolute in above terms. [Y. G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub