High Court
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.15092 OF 2023Vidya Pratishthan (Maharashtra)College of Education, P & GCollege & Research Centre,Ahmednagar. Through its Joint SecretaryMurlidhar Dattatraya Pawar,Age 46 yrs., Occ. Legal Practitioner,R/o Gulmohar Residency,Gulmohar Road, Savedi,Ahmednagar. … Petitioner… Versus …1The State of MaharashtraThrough its Secretary,Higher and Technical Education,Mantralaya, Mumbai. 2The Divisional Joint Director,Higher Education,Pune Division, Pune. 3The Joint Director,Higher Education,Pune Division, Pune. … Respondents...Mr. A.N. Kakade, Advocate for PetitionerMr. N.S. Tekale, AGP for respondent Nos.1 to 3... 2WP_15092_2023_JdCORAM :SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE :03rd JANUARY, 2024JUDGMENT : ( PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2The petitioner is a registered Trust running B.Ed. College since1965 at Ahmednagar. Earlier the petitioner had filed Writ Petition No.5292of 2022 before this Court challenging letter dated 06.04.2022 issued byrespondent No.3, thereby refusing to grant NOC/permission for filling ofvacant teaching and non teaching posts in the petitioner college. The saidwrit petition came to be partly allowed. The impugned communication wasquashed and set aside and the respondents were directed to consider therequest of the petitioner on its own merits. It is contended that the Trust isrunning the said college with the sanctioned strength of 50 sheets each forthe first and second year. University of Pune by order dated 09.06.1965granted affiliation to the said college. The details of the vacant posts hasbeen given. Of course, this is against the sanctioned strength. RespondentNo.1 informed vide communication dated 22.11.2023 stating that the
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3WP_15092_2023_Jdproposal for determining the revised work load of the teachers working inaided education/physical education colleges at the State level in terms ofnotification issued by National Teachers Education Council, New Delhi dated28.11.2023 has been submitted to the Government and it is before theFinance Department as per the prevailing policy. It is then stated that thecreation of new posts of teachers/or grant of no objection for filling the postof teaching category in the petitioner’s college cannot be accepted unless theFinance Department gives its approval for filling the post of teaching categoryin all aided education/physical education colleges at State level. It was theninformed that the petitioner may appoint clock hour basis teachers on vacantpost against full time teacher. The said communication travelled through thehierarchy and respondent No.3 has given the similar letter to the petitionerwhich is the impugned letter. 3Heard learned Advocate Mr. A.N. Kakade for the petitioner andlearned AGP Mr. N.S. Tekale for respondent Nos.1 to 3. 4It is submitted on behalf of the petitioner that the respondentshave not considered the proposal of the petitioner in its true spirit. Thecollege which is run by the petitioner is recognized by the Government andprovides 100% grant in aid towards staff salary of teaching and non teaching.The Joint Director, Higher Education, Pune Division, Pune by its letter dated 4WP_15092_2023_Jd02.04.2012 has already granted staff sanction/approved the post and as perthe said letter there are ten sanctioned teaching posts as per the work loadand nine non teaching posts. There are five vacancies of teaching staff.Several representations have been made in the past but those have not beenconsidered at all. Since the petitioner is running the professional educationcollege it requires only duly qualified staff as per the norms of NCTE. Theguidelines issued by NCTE specifies for appointment of full time qualifiedteachers and, therefore, the respondents should confine with those guidelinesand should not issue such guidelines which are contrary to NCTE and,therefore, once again the petitioner was required to come to this Court. 5Affidavit-in-reply has been filed on behalf of respondent Nos.1 to3 by Dr. Keshav Parbat Tupe, Joint Director of Higher Education, PuneRegion, Pune. Almost all the facts are admitted by him in the affidavit-in-reply, however, he has reiterated the contents of the impugned letter. It issaid that the proposal for finalization of the revised staffing pattern in respectof teaching and non teaching posts in aided Education/Physical Educationcolleges in the State is based on NCTE rules and the revised notificationdated 28.11.2014 is under consideration. NCTE regulations have beenadopted by the Government vide its resolution dated 03.12.2018. It has beencategorically stated that the said proposal for revised staffing pattern in 5WP_15092_2023_Jdrespect of all the colleges at the State level is under process for considerationand decision. 6The first and the foremost fact that is required to be consideredis that the petitioner has adopted legal procedure. By order under earlierWrit Petition No.5292 of 2022 the communication by the respondents wasquashed and set aside and then they were directed to consider thepetitioner’s request on its merits. It is not disputed that No Objection isrequired before taking up the action of filling up of the posts. The chartgiven by the petitioner would show that one post is vacant since 1999 andthereafter at a regular interval. It would be totally unjust to ask thepetitioner to run the educational institution without sufficient trained staff.When the respondents are not disputing that the petitioner’s college isrecognized affiliated, is receiving grant in aid, then for some reason whichappears to be pending for consideration with the Government since 2018 anexcuse has been put forward. In the affidavit it is absolutely not mentionedas to when the Government would take the final call. 7Another important point to be considered is that the vacancy isin respect of sanctioned posts. It cannot be asked that it should be fulfilledwith some other mode i.e. clock hour basis. The same rules and regulationswhich were applicable for the post which later on became vacant would be 6WP_15092_2023_Jdapplicable to that post. Government cannot in such a way change the natureof the post. Even if for the sake of argument it is accepted that the staffingpattern gets changed, it should be prospective in nature and cannot be madeapplicable retrospectively, unless for the reasons the Government decides tomake it retrospectively. Still it would be a debatable question. We are of theopinion that unnecessarily the respondents are dragging the matter. By thistime, the No Objection Certificate ought to have been issued by therespondents. Therefore, the case is made out for exercise of theconstitutional powers of this Court by issuing writ of mandamus. Hence,following order. ORDER1The writ petition stands allowed in terms of prayer clause ‘B’. 2Such NOC be issued within a period of two months from today. 3Rule is made absolute in the aforesaid terms. ( S.G. CHAPALGAONKAR, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd