OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.12311 OF 2016 Smt. Jayashri v. The State of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.12311 OF 2016Smt. Jayashri D/o Nilkanthrao Bindu, Age: 36 Years, Occ.: Service,R/o. At Post Nilanga, Tq. Nilanga, Naik Galli, Near Vitthal Mandir, Tq. Nilanga, Dist. Latur..PetitionerVersus1.The State of Maharashtra, Through the Secretary, School Education and Sports. Department Manatralaya, Fort, Mumbai-322.The Education Officer (Primary),Zilla Parishad, Latur District: Latur,3.Shri Shivaji Shikshan Prasarak Mandal, Nilanga, District: Latur, Through its Secretary,4.Shri Shivaji Prathamik Vidya Mandir, Nilanga, District: Latur, Through its Head Master...Respondents …Mr. A. R. Nikam, Advocate for the Petitioner.Mr. P. S. Patil, AGP for Respondent Nos.1 and 3.Mr. U. B. Bondar, Advocate for Respondent No.2.Mr. V. S. Panpatte, Advocate for Respondent No.4. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 18th MARCH 2024.JUDGMENT PRONOUNCED ON :- 28th MARCH 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With theconsent of the parties, matter is taken up for final hearing at thestage of admission. (2) wp-12311-2016.odt2.The petitioner approaches this Court under Article 226of the Constitution of India thereby assailing order dated12.12.2014 passed by respondent no.2-Education Officer (P), ZillaParishad, Latur thereby declining to grant proposal to theappointment of the petitioner as an Assistant Teacher. Thepetitioner further seeks directions against respondent no.2-Education Officer to grant approval to his appointment as aShikshan Sevak w.e.f. 02.01.2017 and consequential release of thesalary dues. 3.The petitioner contends that he holds requisitequalification for the appointment as an Assistant Teacher i.e. B.A.,D.Ed. The respondent no.4-School is receiving grant-in-aid fromthe State. One of the senior teacher namely Smt. KewalbaiDigambarrao Jadhav retired on 31.03.2013 on attaining the age ofsuperannuation. The respondent nos.3 and 4 informed theEducation Officer regarding retirement of Smt. Kewalbai Jadhavand sought permission to fill up the vacant post by issuing anadvertisement. The said communication is duly acknowledged on09.07.2013 by the office of the Education Officer. However, noresponse is given. Finally respondent no.3-Management issued anadvertisement inviting applications from the eligible candidates. The petitioner responded to the said advertisement. She wasinterviewed by the School Committee. She being meritorious andeligible candidate, came to be appointed vide order dated02.01.2014. The petitioner joined on the post w.e.f. 06.01.2014.The respondent no.4 forwarded proposal dated 13.02.2014 to theoffice of respondent no.2 seeking approval to the appointment. However, vide impugned communication, respondent no.2 declinedto grant approval giving reasons that there was ban on recruitmentin view of the Government Resolution dated 02.05.2012 and there (3) wp-12311-2016.odtare surplus teachers in Latur district. Unless the surplus teachersare absorbed, the proposal for fresh appointment cannot beentertained. According to the petitioner, impugned order is unjust, arbitrary and contrary to the facts and law.4.The respondent no.2-Education Officer filed affidavit-in-reply justifying the rejection of the proposal seeking approval tothe appointment of the petitioner stating that the Managementfailed to obtain the permission from his office to fill up the post. The advertisement was issued without following due procedure. The ban imposed to the appointments was in operation andnumber of surplus teachers are yet to be absorbed. The teachersnamely Smt. Sindhu Govindrao Deshmukh was sent for absorptionwith respondent no.4-School, but she was not allowed to join andproposal for approval of the fresh appointment has been forwarded.5.We have considered the submissions advanced onbehalf of the respective parties and we have perused the record. Apparently, the rejection of the proposal for grant of approval tothe petitioner’s appointment is twofold. Firstly, the permissionwas not sought before filling up the post and secondly, there wasban on the recruitment. The affidavit-in-reply filed on behalf ofrespondent no.4 shows that the communication dated 09.07.2013was addressed to the office of respondent no.2 on behalf of theSchool intimating that on 31.03.2013 Smt. Kiwalbai Jadhav, Assistant Teacher has been retired and there is vacancy in theSchool. The permission was sought to publish an advertisement tofill up the vacancy. The said communication is duly acknowledgedby the office of respondent no.2 on 09.07.2013. It bears the stampand signature. It is not controverted on behalf of respondent no.2.Admittedly, there was no response from the office of respondent (4) wp-12311-2016.odtno.2 to the aforesaid communication. Consequently, theManagement issued an advertisement in the newspaper namely‘Ternatir’. The petitioner responded to the said advertisement. She was interviewed by the School Committee. She beingmeritorious and eligible candidate, the order of appointment hasbeen issued to her. She joined her services immediately on06.01.2014. Since then, she is discharging her duties. Theproposal seeking appointment has been rejected.6.It is not in dispute that the petitioner’s appointment isagainst the vacancy arose on retirement of one Assistant Teacherworking in the School. The Management had intimated suchvacancy and sought permission for the advertisement. If the officeof respondent no.2 has not responded or not recommended anysurplus teacher for the appointment against vacancy, no fault canbe found with the Management if they have issued anadvertisement. The petitioner has accordingly responded and hasbeen appointed being a qualified candidate.7.Although, the reliance is placed on the GovernmentResolution dated 02.05.2012, it was for the Education Officer torespond to the communication made by the Management and makeavailable surplus teacher. However, no such response was given bythe Education Officer. If the Education Officer do not respond tothe communication of the Management, then Management cannotbe put at fault in advertising post and proceed to fill up vacancy incompliance of its obligation under Statutory scheme under Section5 of the Act. 8.Pertinently, the appointment of the petitioner isagainst clear and vacant post, which was approved as per staffing (5) wp-12311-2016.odtpattern on the establishment of the School. The petitioner isworking since last 10 years, therefore, impugned order cannot besustained in law. Consequently, we proceed to pass followingorder:ORDERa.Writ Petition is partly allowed.b.The impugned order dated 12.12.2014 passed by respondentno.2-Education Officer (P), Zilla Parishad, Latur is hereby quashedand set aside.c.The respondent no.2-Education Officer shall reconsider theproposal seeking approval to the appointment of the petitionertaking into account the aforesaid observations and shall not rejecton the basis of the reasons given in the impugned order.d.Writ Petition is disposed of.e.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/March-2024