High Court
Legal Reasoning
1 wp_11311.2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11311 OF 20191.Jayshree d/o Anil Kadam,age 31 years, Occ. Service as Shikshan Sevak,R/o Shahu Nagar, Latur.Tq. & Dist. Latur.2.Rahul s/o Babruwan Mane,age 38 years, Occ. Service as Shikshan Sevak,R/o Shahu Nagar, Latur,Tq. & Dist. Latur.3.Kasar Imran Khan Maheboob Khan,age 29 years, Occ. Service as Shikshan Sevak,R/o Labour Colony, Latur,Tq. & Dist. Latur.Petitioners.Versus1.The State of Maharashtra,Through it’s Secretary,Education Department,Mantralaya, Mumbai – 32.2.The Deputy Director of Education,Latur Division, Latur.3.The Education Officer (Secondary),Zilla Parishad, Latur.4.Samata Shikshan Prasarak Mandal,Shahu Nagar, Nanded Road, Latur.Tq. & Dist. Latur.Through it’s President/Secretary,5.Milind Secondary and Higher SecondaryVidyalaya, Labour Colony, Latur,Tq. & Dist. Latur,Through it’s Headmaster.Respondents.
Legal Reasoning
2 wp_11311.2019.odt…Mr. V. S. Panpatte, advocate for petitioners.Mr. P. S. Patil, AGP for Respondent Nos.1 to 3.Mr. S. S. Deshmukh, Advocate for Respondent 4 & 5....CORAM : SMT. VIBHA KANKANWADI & S. G. CHAPALGAONKAR, JJ. Dated : 28th February, 2024.…JUDGMENT :- (Per S.G.Chapalgaonkar, J.)1.Rule. Rule made returnable forthwith. Heardfinally with consent of the parties at admission stage.2.The Petitioners have approached this Court underArticle 226 of the Constitution of India, impugning the orderdated 7.3.2019 passed by the Respondent No.3 EducationOfficer (Secondary), Zilla Parishad, Latur and further seeksissuance of writ of mandamus against him to grant approval tothe their appointment as ‘Shikshan Sevak’ for the period ofthree years, thereafter as ‘Assistant Teacher’ and release thesalary with consequential benefits.3.Mr. V.S. Panpatte, learned advocate appearing forthe petitioners submit that the respondent no.4 Managementruns respondent no.5 School. In the year 2016, respondentno.4 advertised the vacant post of teachers as per the StaffingPattern and reservation roster. Before issuance of suchadvertisement, correspondence was made with respondentno.3, seeking permission to fill up the vacancies, however,there was no response from the Education Officer. Petitioners, 3 wp_11311.2019.odtwho were holding necessary qualification responded to theadvertisement issued by the Management. The petitionerswere subjected to selection process, consequently, they havebeen appointed with respondent no.5 School. However,proposals for approval to such appointments have beenturned down by education officer giving reason that theappointments were made, when appointments were banned soas to absorb surplus teachers. The Petitioners had assailed thesaid order before this Court in Writ Petition no.372 of 2018.This Court quashed had set aside the order of the EducationOfficer and directions were issued to re-consider the approvalswithout impeded by the reasons of the rejection as stated inthe subject order.4.Mr. Panpatte would further submit that ignoringthe observations of this Court in earlier round of litigation,respondent no.3 passed impugned order dated 7.3.2019 andagain rejected the approvals by giving the reason that thepetitioners do not possess TET certificate. He would submitthat none of the reasons mentioned in the impugned order aresustainable in law being contrary to directions given by thisCourt in various pronouncements. He would therefore urge toquash and set aside the impugned order and allow the writpetition in terms of the prayer clauses.5.Mr. P.S. Patil, the learned AGP appearing forrespondent nos.1 to 3 supports the impugned order by placingreliance on averments in the affidavit-in-reply dated 15.1.2020and additional affidavit-in-reply dated 4.4.2022 and submits 4 wp_11311.2019.odtthat petitioner no.1 is appointed from open category. Further,she was not holding TET qualification. Her appointment is forsubject of Marathi. Therefore, her appointment cannot beregulated in terms of the Government Resolution dated24.8.2018. He would submit that the petitioner no.2 and 3 arenot compliant with TET qualification. Therefore, EducationOfficer is justified in rejecting the approval. 6. Mr. S.S. Deshmukh, learned advocate appearingfor respondent nos.4 and 5 supports petitioners.7.We have considered the submissions advanced bythe learned advocates appearing for the respective parties. Wehave perused the record. The details of the petitioners whichare necessary for deciding the issue in question aresummarized hereunder in tabular form, which reads thus :-Sr.No.CategoryEducationPermissionAdvertisementAppointmentP-1OpenB.A. B.Ed(Marathi)25.01.201607.08.201601.09.2016P-2SCHsc. D.Ed25.01.201607.08.201601.09.2016P-3OBCB.Sc. B.Ed.(Mathematics)06.04.201715.07.201701.08.20178.Proposal for grant of approval to the appointmentof the petitioners was previously rejected by the EducationOfficer vide order dated 18.9.2017, mainly, giving reason thatabsorption of the surplus teachers was in progress, therefore,in terms of proviso to section 5(1) of MEPS Act, 1977 theproposal for approval of the petitioners cannot be considered.Petitioners had assailed the order dated 18.9.2017 in WritPetition no.372 of 2018. The Respondent-Education Officer 5 wp_11311.2019.odtfiled his affidavit-in-reply and supplemented rejection ofapproval on various additional grounds. However, this Courtwhile allowing Writ Petition observed that since appointmentof the petitioner nos.1, 3 and 4 was from reserved categoryand appointment of petitioner no.2 was in the subject ofMarathi, ban on recruitment would not be applicable. It isfurther observed that ban under Government Resolution dated2.5.2012 was partially relaxed under various GovernmentResolutions. Therefore, the impugned order cannot besustained in law and accordingly it was quashed and set asidewith further directions to examine individual cases of thepetitioners in the light of the observations and to takenecessary steps to grant approval to the appointment of thepetitioners as ‘Shikshan Sevak’ from their respective dates ofappointment and also release salary/wages as admissible tothem.9.The impugned order in the present writ petitionwould depict that the proposal for grant of approval have beenrejected once again giving the reason that the petitioners doesnot qualify in terms of the Government Resolutions dated24.8.2018 and that they does not possess TET qualification. Atthis stage, reference can be given to the order passed by thisCourt in matter of Lalit Shinde Vs. The State of Maharashtraand others, [Writ Petition No.10270 of 2019], wherein thisCourt observed that Pavitra Portal has become operative since20.6.2018 and appointment made prior to such date cannot beobjected on the ground that such appointment is not throughPavitra Portal. In another matter, i.e. Writ Petition no.8886 of 6 wp_11311.2019.odt2019 in case of Kiran Kumar Metalwad Vs. The State ofMaharashtra and others, this Court observed that time toobtain qualification of TET was extended up to 30.3.2019 andas such, the appointment made prior to such date was directedto be approved. In view of the aforesaid pronouncement ofthis Court, the reason adopted by the Education Officer forrejecting the approval to the petitioner’s appointment made on1.9.2016 and 1.8.2017 cannot be countenanced. It can beobserved here that when the Management madecorrespondence with the Education Officer in the month ofJanuary, 2016 and April, 2017, seeking permission to advertisethe vacant posts, no surplus teachers were made available.Even, those correspondence were not replied. This Court inGopal Siddheshwar Akhade and ors Vs. State of Maharashtrareported in [MANU/MH/2590/2013] has taken a view thatwhen authorities had not responded to the application andproceeded to advertise and then appoint candidates, then suchappointments would be as per procedure. In this background,if the Management has moved ahead with requisite steps to fillup the vacancy, there was no reason to reject the approval toappointments, particularly, when the petitioners possessrequisite qualifications and posts were available as persanctioned staffing pattern as well as reservation roster. In thatview of the matter, we are inclined to allow the Writ Petitionand proceed to pass the following order.O R D E R i.The Writ Petition is partly allowed. 7 wp_11311.2019.odtii.The impugned order dated 7.3.2019 passed bythe Respondent no.3 Education Officer(Secondary), Zilla Parishad, Latur is herebyquashed and set aside.iii.The Respondent No.3-Education Officer(Secondary), Zilla Parishad, Latur is herebydirected to accord approval to the appointmentof the Petitioners as “Shikshan Sevak” for theperiod of three (3) years and thereafter as“Assistant teacher” from the dates of theirrespective appointments and also take necessarysteps for release of allowances/salary as per lawwithin a period of Three (3) Months from thedate of receipt of this order.iv.Writ Petition is accordingly disposed off. Rule ismade absolute in above terms. No costs.( S.G.CHAPALGAONKAR ) ( SMT. VIBHA KANKANWADI ) JUDGE JUDGE***aaa/- (f)