wp5201.16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 5201 of 2016
1. National Education Society,
Khamgaon,
through its President/Secretary,
Office at Khamgaon,
Tq. Khamgaon,
Distt. Buldana.
2. Sumit Shrikant Shah,
aged 37 years,
occupation - service,
resident of Rallies Plot,
Opp : Tata Salt Godown,
Tq. Khamgaon,
Distt. Buldana. ..... Petitioners.
Versus
1. The State of Maharashtra,
through its Secretary,
Vocational Education & Training
Directorate, 3, Mahapalika
Marg, Letter Box No.10036,
Mumbai.
2. Assistant Director of Vocational
Education & Training,
Regional Office at Morshi Road,
Amravati, Tq. & Distt.
Amravati.
3. District Vocational & Training
Officer, Buldana,
Tq. & Distt. Buldana. .... Respondents.
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wp5201.16
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Mr. P. S. Patil, Adv., for the petitioners.
Mr. Dhumale, Asstt. Govt. Pleader for respondent nos. 1 to 3.
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CORAM : B. R. GAVAI AND
A. S. CHANDURKAR, JJ.
Date : 17th April, 2017 ORAL JUDGMENT [Per A.S. Chandurkar, J.]:
01. Rule. Heard finally with consent of counsel for the parties.
02. The petitioners are aggrieved by the communication dated 22nd July, 2015, by which the respondent no.2 has refused to grant approval to the appointment of the petitioner no.2 on the ground that petitioner no.2 was appointed without obtaining prior permission of respondent no.3 for filling said post.
03. It is the case of the petitioner no.1 that it is running a Junior College which is recognized as a minority institute. On account of retirement of the earlier incumbent, the petitioner no.1 sought ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:47:33 ::: wp5201.16 3 permission to fill the said post of Junior Clerk from the respondent no.3. After waiting for some time, the petitioner no.1 issued an advertisement, pursuant to which, the petitioner no.2, who was duly qualified, came to be appointed. By the impugned order, the respondent no.2 has refused to approve the appointment of the petitioner no.2 on the ground that its prior permission was not taken.
04. Shri Patil, learned counsel for the petitioners, submitted that the petitioner no.1 is a minority institute. It had sought prior permission for filling the post of Junior Clerk; but as there was no response from the respondent no.3, it went ahead with the recruitment process. He submitted that the petitioner no.2 was otherwise duly qualified and the respondent no.2 could not have refused the approval only on the ground that prior permission was not obtained. He relied upon the decision of the Division Bench in Writ Petition No. 3707 of 2013 [Parbhani Education Society Vs. State of Mah. & another; decided on 2nd September, 2013] and submitted that necessary approval deserves to be granted.
05. Shri Dhumale, learned Asstt. Govt. Pleader for the respondents, supported the impugned order. He submitted that as per Govt. Resolution dated 6th February, 2012, it was necessary for the ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:47:33 ::: wp5201.16 4 petitioner no.1 to have obtained prior permission before filling the said post. As the appointment was made in contravention of said Govt. Resolution, the approval was not granted.
06. It is not in dispute that the petitioner no.1 is a minority institute. On that count, there would be no question of absorption of surplus employees from other schools. It is further evident from the record that an application for grant of permission was moved by the petitioner no.1. But, before any decision was taken thereon, the post was advertised and filled. A somewhat similar situation was considered by the Division Bench in Parbhani Education Society [supra]. In para 9 thereof, it was observed as under:-
"9. The petitioner submits that Shikshan Sevaks appointed by it possess all the qualifications and satisfy the eligibility criteria according to law and as such refusal to grant approval to their appointments pursuant to proposals submitted by the petitioner institution, for the reason that no prior permission was sought for the advertisement, tantamounts to infraction of its rights and privileges to appoint teachers of its choice. It is further submitted that the petitioner has a right to appoint persons, who in its opinion, are better suited culturally and linguistically compatible with the objects and aims of their institution."
07. We find that the petitioner no.2 is otherwise duly qualified to hold the post of Junior Clerk. Considering the facts of the present case ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:47:33 ::: wp5201.16 5 that an application seeking permission to fill the said post was made on 26th February, 2014, after which the advertisement came to be issued on 6th August, 2014 which is almost after six months, by following the observations made in the decision referred to herein above, we are inclined to hold in favour of petitioners.
08. In view of aforesaid, the communication dated 22nd July, 2015 is quashed and set aside. As the petitioner no.2 is duly qualified to hold the post of Junior Clerk, the respondent no.3 is directed to grant approval to his appointment from 22nd August, 2014. Necessary orders be issued within a period of four weeks from today.
09. Rule is made absolute in aforesaid terms. No order as to costs.
Judge Judge
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