Bombay High Court
Khan Abdul Lateef Abdul Rab Khan vs The State Of Maharashtra And ... on 1 August, 2016
Bench: S.S. Shinde
988.2016WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.988 OF 2016
Khan Abdul Lateef Abdul Rab Khan
Age: 45 years, Occu. Service
R/o. Municipal Colony, Darga Road,
Parbhani PETITIONER
VERSUS
1.
The State of Maharashtra,
Through Deputy Director of Education
Aurangabad Division Aurangabad
2. Parbhani Education Society,
Parbhani through its President,
Mohammad Abdul Rasheed Engineer,
Age: 82 Years, Occu: Social Worker &
President,
R/o. Mominpura, Gujari Bazar,
Parbhani, Dist. Parbhani
3. Dr. Zakir Hussain Junior College
of Science, Arts & Commerce
Parbhani
Through its Principal RESPONDENTS
...
Mr.A.B.Tele, Advocate for the petitioner
Mr.S.D.Kaldate, AGP for respondent no.1/State
Mr.A.S.Shelke, Advocate for Respondent nos.2
and 3
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 04.07.2016
Pronounced on : 01.08.2016
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JUDGMENT: (Per S.S.Shinde, J.):
Heard.
2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3.
It is the case of the petitioner
that the petitioner is having qualification
as M.Com, B.Ed. and Ph.D. After following
due procedure, he was appointed as a full-
time Instructor in M.C.V.C. course for the
subject "Accounting and Auditing" on
21.01.1994 on probation. The petitioner was
appointed on sanctioned and clear vacant
post. Accordingly, his proposal was sent for
approval to the Authority concerned. The said
Authority was pleased to grant approval vide
order dated 10.08.1994 to his post and the
same was continued by the Authority
concerned.
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4. It is further the case of the
petitioner that after completion of probation
period, his services were confirmed on the
said post. As the post of teacher in Junior
College in Commerce Faculty became vacant,
the institution advertised the said post on
05.08.2014. The petitioner applied for the
said post and requested respondent no.3 to
recommend his name for the appointment on the
said post. The School Committee gave no
objection for such appointment.
5. Pursuant to the advertisement, the
interviews were conducted on 16.08.2014. The
petitioner, with permission of the
Institution, appeared for the interview. He
came to be selected and appointed as Junior
College teacher in respondent no.3 College,
by appointment order dated 19.08.2014. He
was relieved from his earlier post so as to
join the services as teacher in Junior
College on 20.08.2014. Respondent no.3
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College sought no objection from the
approving Authority to relieve the petitioner
from the post which was occupied by him prior
to joining as teacher in the Junior College.
The concerned Authority, by letter dated
19.12.2014, has given no objection to the
appointment of the petitioner as a teacher in
the Junior College.
6. It is further the case of the
petitioner that the proposal for grant of
approval to the appointment of the petitioner
as teacher in the Junior College was
submitted to respondent no.1 authority on
23.03.2015. On receipt of the said proposal,
respondent no.1 asked the respondent
institution to cure deficiencies / lacunae in
the said proposal. Accordingly, respondent
no.3 College removed the said deficiencies /
lacunae. Respondent no.3 made constant
endeavour by sending reminders to respondent
no.1 for giving approval to the appointment
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of the petitioner as teacher in the Junior
College.
7. Respondent no.1 by his letter dated
26.10.2015, intimated respondent no.3 that
the approval cannot be granted as the
management has not taken permission before
appointing the petitioner to the post of
teacher in the Junior College and also the
petitioner was working as full-time
Instructor in Vocational Education and
Training Institute, Aurangabad. The said
Department is altogether different and the
petitioner should not have been appointed as
teacher in the Junior College rather he
should have been appointed as Shikshan Sevak.
8. The learned counsel appearing for
the petitioner submits that respondent no.3
is a minority institution and can appoint the
employee of its choice. The petitioner was
appointed on clear vacant, permanent and
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sanctioned post. Respondent no.1 has not kept
in view the Government Resolution dated
15.09.2011 while considering the request for
approval to the appointment of the petitioner
as teacher in Junior College. It is submitted
that the petitioner has rendered 20 years of
satisfactory service, and therefore, the
approval ought to have been granted to his
services. The learned counsel for the
petitioner invites our attention to the
Resolution dated 15.09.2011 issued by the
School Education and Sports Department,
Government of Maharashtra, wherein the
Government has laid down the policy of
absorption of a teacher, appointment of
teacher in institution / school, who has
worked earlier on regular basis. He submits
that the petitioner has earlier worked as
teacher, and therefore, his appointment as
teacher in the Junior College cannot be as
Shikshan Sevak as mentioned by respondent
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no.1 in the impugned communication. The
learned counsel invites our attention to
Section 2 (24) of the Maharashtra Employees
of Private Schools (Condition of Service)
Regulation Act, 1977 (for short 'the Act of
1977') and submits that "School" means a
primary school, secondary school, higher
secondary school, junior college of education
or any other institution by whatever name
called including technical, vocational or art
institution or part of any such school,
college or institution, which imparts
general, technical, vocational, art or, as
the case may be, special education or
training in any faculty or discipline or
subject below the degree level. Therefore,
he submits that though the petitioner has
rendered earlier service in vocational school
in view of the definition of the school even
Junior College of Education is included, and
therefore, the appointment of the petitioner
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from one school to another school cannot be
said to be from different streams.
9. On the other hand, the learned AGP
appearing for the respondent - State relying
upon the averments in the affidavit-in-reply
filed on behalf of respondent no.1 submits
that for the reasons set out in the impugned
communication/order, the Petition deserves to
be rejected.
10. The learned counsel appearing for
the respondent management submits that the
petitioner is appointed in accordance with
the prescribed procedure, and therefore, the
Petition deserves consideration.
11. We have considered the submissions
of the learned counsel appearing for the
parties. With their able assistance, perused
the pleadings in the Petition, annexures
thereto, reply filed by respondent no.1 and
also the Government Resolution dated
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11.08.2003 issued by the School Education
Department, Government of Maharashtra, the
order passed by the Division Bench of this
Court in Writ Petition No.3707/2013 (Parbhani
Education Society Vs. The State of
Maharashtra and another) and also the
Government Resolution dated 15.09.2011 issued
by the School Education and Sports
Department, Government of Maharashtra. By
the impugned communication, respondent no.1
has shown inability to grant approval to the
appointment of the petitioner as teacher in
the Junior College. Upon careful perusal of
the impugned communication, it appears that,
the following reasons are assigned for not
granting approval; (i) prior permission to
fill-up the post of teacher in respondent
no.3 College has not been taken from the
Competent Authority; (ii) the office of the
Deputy Director is empowered to grant
approval to the post on grant-in-aid basis;
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(iii) earlier School wherein the petitioner
has rendered the services as Instructor comes
under the supervision and control of the
Deputy Director, Higher Secondary School,
Vocational Education and Training, Regional
office Aurangabad, which comes under the
control of Technical Education Department,
Government of Maharashtra. The School
Education and Technical Education are
different Departments. Therefore, the
appointment of the petitioner is fresh. In
case of the fresh appointment, the
appointment has to be on the post of Shikshan
Sevak. Therefore, the appointment of the
petitioner is not in accordance with the
procedure established.
12. With the aforesaid reasons,
respondent no.1 refused to accord approval to
the appointment of the petitioner and showed
inability to forward the said proposal to the
Higher Authority.
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13. The contention of the learned
counsel for the petitioner is that since the
respondent Institution is a minority
institution, and therefore, prior permission
to fill-up the post of teacher in respondent
no.3 College was not necessary. In support
of his contention, the learned counsel for
the petitioner has placed reliance on the
unreported judgment of the Bombay High Court
Bench at Aurangabad in the case of Parbhani
Education Society (supra). However, the
Supreme Court in the case of Kolawana Gram
Vikas Kendra Vs. State of Gujarat & others1,
while considering the issue whether the
requirement of prior approval of the
Government Authority is necessitated before
the selection process for the appointment is
initiated by the minority institution to
select the candidates, has taken a view that,
the requirement of prior permission is
1 2010(1)SCC 133
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necessitated because it is for the Government
to see as to whether there was actually posts
available in the said institution as per the
strength of students and secondly; whether
the candidates, who were sought to be
appointed, were having the requisite
qualification in terms of the rules and
regulations of the Education Department. Para
6 of the said judgment reads thus :-
"6. In our considered view, we do
not view this to be the interference
in the selection process. It would
be perfectly all right for a
minority institution to select the
candidates without any interference
from the Government. However, the
requirement of this prior approval
is necessitated because it is for
the Government to see as to whether
there was actually post available in
the said institution as per the
strength of students and secondly;
whether the candidates, who were
sought to be appointed, were having
988.2016WP.odt
the requisite qualification in terms
of the rules and regulations of the
Education Department."
14. The second reason assigned by
respondent no.1 that the petitioner has
earlier served in the school imparting
vocational education and therefore his
earlier services cannot be treated or
considered, appears to be in ignorance of the
provisions of Section 2 (24) of the Act of
1977. The section 2 (24) of the Act of 1977
reads thus:
2.(24) "School" means a primary
school, secondary school, higher
secondary school, junior college of
education or any other institution
by whatever name called including
technical, vocational or art
institution or part of any such
school, college or institution,
which imparts general, technical,
vocational, art or, as the case may
988.2016WP.odt
be, special education or training in
any faculty or discipline or subject
below the degree level;
15. Therefore, upon perusal of the
aforementioned provision, it is abundantly
clear that the "School" includes vocational
institution which imparts vocational
education / training. If that be so, it was
not necessary that the petitioner should have
been appointed as Shikshan Sevak treating him
as a fresh appointee.
16. The third reason raised by
respondent no.1 that the School Education and
Technical Education are two separate
Departments of the State Government, and
therefore, the petitioner's appointment will
have to be treated as fresh appointment for
the Education Department deserves to be
reconsidered by respondent no.1.
17. Upon perusal of the copies of the
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documents placed on record, it appears that
the petitioner was appointed as Instructor in
M.C.V.C. course for the full-time subject
Accounting and Auditing. It further appears
that the said subject has homogeneity with
the subjects audit in the Commerce College.
It further appears from the pleadings in the
Petition that the petitioner is possessing
M.Com. B.Ed. and Ph.D. degrees. Therefore, he
is fully qualified for the appointment to
the post of teacher in the Junior College.
Therefore, keeping in view the definition of
the School reproduced herein above and the
appointment of the petitioner as Instructor
in Accounting and Auditing and the
qualifications, he is eligible for the
appointment to the post of teacher. In
schedule-B under the Maharashtra Employees of
Private Schools Rules, 1981 for the Commerce
Group, the qualification provided for
appointment as full-time teacher is (a)
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Master's Degree in at least 2nd Class of a
statutory University in the respective
subject / faculty or its equivalent
qualification recognised by the Government;
and (b) Three years' experience either in the
teaching or in the profession or both
combined.
18. The Government Resolution dated
15.09.2011 issued by the School Education and
Sports Department (Exhibit-K Page-35) reads
thus:
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988.2016WP.odt
19. The conditions laid down in the said
Government Resolution, show that it is always
not necessary that there should always be
appointment firstly as Shikshan Sevak prior
to appointment as full-time teacher. It
appears that respondent no.1 has not taken
into consideration the fact that the
petitioner has rendered considerable length
of service on the post of Instructor.
Therefore, in the light of discussion in the
foregoing paragraphs, it can be inferred that
respondent no.1 has not properly considered
all the aspects of the matter and by giving
cryptic reasons, without going to the root of
the matter, relevant provisions of the MEPS
Rules and the relevant Government Resolutions
proceeded to issue the impugned communication
/ order.
20. In that view of the matter, the
impugned communication / order dated
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26.10.2015 stands quashed and set aside.
Respondent no.1 is directed to re-consider
the issue of approval to the appointment of
the petitioner keeping in view the discussion
in the foregoing paragraphs and also the
relevant Rules / procedure and the law laid
down by the High Court and the Hon'ble
Supreme Court. Respondent no.1 to afford an
opportunity of hearing to the petitioner and
the respondent management and also allow the
petitioner to place on record the copies of
the documents in respect of his case.
Respondent no.1 shall also summon the record
from the office of respondent nos.2 and 3 and
then take decision afresh. The petitioner and
the representatives of respondent nos. 2 and
3 shall appear before respondent no.1 on
10.08.2016. Respondent no.1 may hear the
parties on the same date or may fix one more
date, however, complete the entire exercise
including taking decision afresh as
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expeditiously as possible, however, within 10
weeks from today.
21. The rule is made absolute in the
above terms. The Petition stands disposed of
accordingly. No costs.
Sd/- Sd/-
JUDGE
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE
DDC
