High Court · 2024
Legal Reasoning
(1) wp-14420-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.14420 OF 2021Lalit s/o Sureshrao ShindeAge: 29 years, Occu: Service as Assistant Teacher, r/o: Samode, Tq.: Sakri, Dist.: Dhule...PetitionerVersus1.The State of MaharashtraThrough its Principal Secretary, School Education Department, Mantralaya, Mumbai-32.2.The Education Officer (Secondary),Zilla Parishad, Dhule.3.Karmavir Anandrao Manikrao PatilSecondary & Higher Secondary School, Pimpalner, Tq.: Sakri, Dist.: Dhule, Through its Head Master...Respondents …Mr. V. S. Panpatte, Advocate for the Petitioner.Mr. S. K. Shirse, AGP for Respondent Nos.1 and 2.Mr. B. P. Gonare, Advocate for Respondent No.3. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 20th FEBRUARY 2024.JUDGMENT PRONOUNCED ON :- 16th APRIL 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consentof the parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 226 ofthe Constitution of India with following prayers:“B. By a writ of certiorari or any other appropriate writ ordirection in the like nature, the order dated 12.10.2021
Legal Reasoning
(2) wp-14420-2021.odtissued by the respondent no.2-Education Officer at Exhibit'K' may kindly be quashed and set aside;C. By a writ of mandamus or any other appropriate writ ordirection in the like nature, the respondent no.2-EducationOfficer may kindly be directed to grant approval to theappointment of the petitioner as Shikshan Sevak in therespondent no.3-School w.e.f. 01.01.2018 to 31.12.2020 andfurther to grant permanent approval to the services of thepetitioner as Assistant Teacher in regular pay-scale from01.01.2021 onwards and release arrears of salary of thepetitioner within stipulated period;”3.Mr. Panpatte, learned Advocate appearing for thepetitioner submits that the petitioner is qualified as B.Sc., B.Ed.,so also passed TET and TAIT, as such, he was eligible to beappointed as an Assistant Teacher / Shikshan Sevak. Onretirement of one Mr. B. D. Pawar, who was working as anAssistant Teacher in respondent no.3-School, vacancy of one post ofShikshan Sevak in Science subject arose in the school.Consequently, respondent no.3-School submitted an applicationdated 19.06.2017 with respondent no.2-Education Officer(Secondary), Zilla Parishad, Dhule informing that in all threeteachers working on the establishment of the school have beenretired during the Academic Year 2016-2017 and school needs tofill up those vacancies in the interest of students. Consequently,permission was sought to advertise the posts and fill up thevacancies. Similarly, one more communication was made on01.11.2017. In absence of the response from the office ofrespondent no.2-Education Officer, respondent no.3 advertised thepost in Science subject in “Daily Khandesh Khabhar” dated10.11.2017. The petitioner responded to the said advertisement.Thereafter, the petitioner was interviewed, selected and appointedvide order dated 01.01.2018 in respondent no.3-School as ShikshanSevak. The petitioner joined the services in pursuance of theappointment order. The proposal seeking approval to the (3) wp-14420-2021.odtpetitioner’s appointment was forwarded. However, respondentno.2 declined to approve the proposal vide order dated 01.04.2019giving reason that the petitioner’s appointment is not madethrough Pavitra Portal in terms of the Government Resolutiondated 23.06.2017.4.The petitioner had assailed the said order before thisCourt in Writ Petition No.10270/2019. This Court afterconsidering the submissions advanced and after recording fact thatthe Pavitra Portal was not activated till the date of petitioner’sappointment i.e. June 2018, set aside the order passed byrespondent no.2 and directed him to reconsider the proposal afresh,with specific rider that same shall not be rejected on the ground onwhich the impugned order is passed. However, respondent no.2again rejected the proposal for grant of approval to the petitioner’sappointment giving reasons that there are surplus teachers inDhule district, permission was not obtained before advertising thepost, proposal was forwarded belatedly, recruitment is madewithout intimation to the office of respondent no.2 and thatadvertisement was not published in widely circulated newspaper. 5.Mr. Panpatte, learned Advocate would submit that theEducation Officer has passed the impugned order contrary to thedirections issued by this Court in earlier round of litigation bydigging out the reasons which were not available in the facts of thepresent case. In support of his contentions he placed reliance onthe judgment of this Court in case of Rajan Sahadeo Ratul andOthers Vs. State of Maharashtra and Others1. 6.Mr. Panpatte, learned Advocate would further submitthat the petitioner is appointed against the clear vacancy as per12023 (6) Mh.L.J. 234. (4) wp-14420-2021.odtreservations roster. He holds requisite qualification including TETand TAIT and discharging his duties as Science Teacher since 2018i.e. for more than six years. He would, therefore, urge to set asidethe impugned order and direct respondent no.2-Education Officerto grant approval to the petitioner’s appointment and releaseconsequential benefits.7.Mr. Shirse, learned Advocate appearing for respondentnos.1 and 2, relying upon the contents of the affidavit-in-replydated 28.03.2022 filed by Mr. Mahendra Shridhar Joshi, DeputyEducation Officer (Secondary) would submit that the appointmentof the petitioner is made after promulgation of the GovernmentResolution dated 23.06.2017, which mandates the recruitmentprocedure through Pavitra Portal, which is made operative. Hewould submit that the petitioner’s appointment is against thevacancy occurred on 31.12.2017 due to retirement of Mr. B. D.Pawar on attaining age of superannuation. However, theadvertisement was issued much before the retirement of the saidemployee without adhering to the procedure of the Pavitra Portal.Therefore, entire procedure adopted by the Management is invalid.He would further point out that there were 65 surplus teachers inthe Academic year 2017-2018. The Management failed to intimatevacancies or seek prior permission to fill up the post. As such, thepetitioner’s appointment cannot be approved.8.We have considered the submissions advanced onbehalf of the learned Advocates appearing for the respectiveparties. Admittedly, the petitioner holds the qualification as B.Sc.,B.Ed. with TET and TAIT and he has been recruited against thevacancy that occured on retirement of Mr. B. D. Pawar, anAssistant Teacher with respondent no.3-School. The documents (5) wp-14420-2021.odtannexed to petition shows that on 19.06.2017 a communication wasaddressed to the Education Officer on behalf of respondent no.3-School, informing that on account of retirement of teachers duringthe Academic year 2016-2017, there are three vacancies on schoolestablishment and the permission was sought to advertise thosepost. The said communication bears the signed acknowledgment ofthe same day, however, there is no stamp of the office ofrespondent no.2-Education Officer. In reply filed by Managementone more document dated 18.08.2016 addressed by the office of thePresident of the Educational Institution can be seen whereinintimation is given regarding vacancies occurred till 31.12.2017. Itbears the stamp and signature of the office of respondent no.3.Similarly, there are some more documents that depictscommunications made to the office of respondent no.2 pertaining tothe retirement of the teachers. It is, therefore, evident that officeof respondent no.2 was well informed of the vacancies of theteachers with respondent no.3-School. Consequently, in absence ofEducation officers response, an advertisement dated 10.11.2017appears to have been issued in “Daily Khandesh Khabar”newspaper and the petitioner is appointed as against the saidadvertised vacancy.9.Pertinently, the Education Officer vide his order dated11.04.2019 rejected the proposal for grant of approval to thepetitioner’s appointment, giving reason that such appointment ismade de-hors procedure of Pavitra Portal introduced underGovernment Resolution dated 23.06.2017. This Court while settingaside the earlier order in Writ Petition No.10270/2019, hadspecifically directed the Education Officer to reconsider thepetitioner’s proposal seeking approval to the appointment withspecific rider that it shall not be rejected on the grounds stated in (6) wp-14420-2021.odtthe impugned order. Apparently, the Education Officer could nothave rejected the proposal giving reason of non-observance of thePavitra Portal or any such ground. Similarly, the affidavit-in-replyis silent as regards to the communication made by respondent no.3intimating vacancies and permission for advertisement. If theEducation Officer or his office failed to respond the communicationmade by the School, the Management cannot be blamed. It is notthe case of respondent no.3 that any surplus teacher was deputedfor absorption to respondent no.3-School and ignoring suchdirection, the advertisement was issued. In this background, nowthe Education Officer cannot raise the same objection. So far asother objections raised in the impugned order those does notconstitute sufficient ground to threshold rejection of approval to thepetitioners appointment. We find that the petitioner is wellqualified person and rendering his services for more than six yearsby this time. His claim for grant of approval could not have beenfrustrated giving technical reasons, when office of respondent no.3failed to discharge its own obligation. Resultantly, the impugnedorder cannot be sustained under law. Hence, we proceed to passfollowing order:ORDERa.Writ Petition is allowed.b.The impugned order dated 12.10.2021 passed by therespondent no.2-Education Officer (Secondary), Zilla Parishad,Dhule is hereby quashed and set aside.c.The respondent no.2-Education Officer shall grantapproval to the petitioner’s appointment as Shikshan Sevak inrespondent no.3-School for the period from 01.01.2018 to31.12.2020 and further grant permanent approval to his services as (7) wp-14420-2021.odtan Assistant Teacher w.e.f. 01.01.2021 and release consequentialbenefits.d.Writ Petition is disposed of.e.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/April-2024