Bombay High Court
Kavita Daleshwar Chormele And ... vs State Of Maharashtra School ... on 10 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2703 OF 2016
PETITIONER:- 1. Kavita Daleshwar Chormele, Aged about 27
years, Occ.: Service, R/o. Near J.M.High
School School Kanhar Toly, Gondia, Tah.and
Ditrict - Gondia.
2. Archana Rajendra Ukey, aged about 31
years, R/o. C/o. Rajesh Dongre, Shreenagar,
ig Ward Near Buddha Vihar Gondia, Tah.and
District - Nagpur.
3. Pragati Sakharam Hatwar, Aged about 32
years, Occ.: Service, R/o. C/o. Rudrakar
Bhawan, Sai Mandir Road, Civil Lines,
Gondia, Tah. And District - Gondia.
4. Harsha Parasram Thaware, Aged about 28
years, Occ.: Service, R/o. Opp. Rambharose
Iron Stores, Ganesh Nagar, Gondia, Tah. And
District - Gondia.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, School Education and
Sports Department, Through its Secretary,
Madam Cama Road, Hutatma Rajguru
Chowk, Mantralaya, Extension Mumbai.
2. Education Officer (Primary), Zilla Parishad,
Gondia, Tah. and District - Gondia.
3. Shri Mahavir Marwadi School Sciety, Vitthal
Nagar, Tahsil Road, Gondia, Tah. And
District - Gondia, through its President.
4. Shri Mahavir Marwadi Varishtha Prathmik
School, Gondia, Through its Head Master.
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Mr. M. R. Pillai, counsel for the petitioners.
Mr.Ambarish Joshi, Asstt.Govt.Pleader for the respondent No.1.
Mr. A.Y.Kapgate, counsel for the respondent No.2.
Mr. Amol Deshpande, counsel for the respondent Nos.3 and 4.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI, JJ.
DATED : 10.08.2016
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally with the consent of the learned counsel for the parties.
2. By this petition, the petitioners challenge the order of the
Education Officer (Primary), Zilla Parishad, Gondia, dated 30.11.2015
refusing to grant approval to the appointment of the petitioners on the
post of Shikshan Sevak.
3. The respondent No.3 is the Society registered under the
Societies Registration Act and minority status is granted to it, by the
Notification issued by the State Government. The respondent No.3-
Society runs the respondent No.4-School, which receives 100% grant-in-
aid. As per the staffing pattern, four posts of teachers were vacant in
the respondent No.4-School in the Academic Session 2013-14. The
respondent Nos.3 and 4 made an application to the Education Officer
(Primary), Zilla Parishad, Gondia for grant of permission to fill the
vacant posts on 03.02.2015. By the order, dated 09.02.2015, the
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respondent Nos.3 and 4 were permitted to fill the vacant posts of
Shikshan Sevaks. After inviting applications and publishing an
advertisement in the daily newspaper, the respondent Nos.3 and 4
appointed the petitioners on the posts of Shikshan Sevaks. The
respondent Nos.3 and 4 forwarded the proposal for grant of approval to
the appointment of the petitioners. By the impugned communication,
dated 30.11.2015, the respondent-Education Officer (Primary) refused
to grant approval to the appointment of the petitioners on the ground
that the respondent Nos.3 and 4 had failed to secure the approval from
the District Level Committee, as is required in view of the Government
Resolution, dated 20.06.2014. The petitioners have impugned the order
of the rejection of their proposal in the instant petition.
4. Shri M.R.Pillai, the learned counsel for the petitioners,
submitted that the respondent-Education Officer (Primary) was not
justified in rejecting the proposal of the petitioners. It is stated that the
Education Officer (Primary) had, by an order dated 09.02.2015,
permitted the respondent Nos.3 and 4 to appoint four Shikshan Sevaks.
It is stated that once having permitted the respondent Nos.3 and 4 to
appoint the Shikshan Sevaks, the respondent-Education Officer
(Primary) cannot turn around and refuse to grant approval to the
appointment of the Shikshan Sevaks on the ground that as per the
Government Resolution, the surplus teachers ought to have been
absorbed in the respondent No.4-School. It is submitted that it is laid
down by this Court in the judgment, reported in 2015 (3) ALL MR 575
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(Canossa Society v. Commissioner, Social Welfare) that a minority
institution would not be required to absorb the surplus teachers and it
would be within their domain to employ the teachers of their choice
after following the due procedure prescribed by law. It is stated that the
said judgment is followed by this Court in several writ petitions. It is
stated that even otherwise, the Education Officer (Primary) could not
have refused to grant approval to the appointment of the petitioners,
after the Education Officer (Primary) granted permission to fill up the
posts of Shikshan Sevaks by the order, dated 09.02.2015.
5. Shri A. Y. Kapgate, the learned counsel for the respondent-
Education Officer (Primary), supported the order of the Education
Officer (Primary). It is submitted that since the respondent Nos.3 and 4
had not absorbed the surplus teachers and had also not sought the
permission of the District Level Committee as per the Government
Resolution, dated 20.06.2014 the proposals were rightly rejected.
6. Shri Ambarish Joshi, the learned Assistant Government
Pleader appearing on behalf of the respondent No.1, does not dispute
the position of law as laid down by this Court in the judgment, reported
in 2015 (3) ALL MR 575. It is stated that in the circumstances of the
case, an appropriate order may be passed.
7. On hearing the learned counsel for the parties and on a
perusal of the judgment, reported in 2015 (3) ALL MR 575 and the
orders passed by this Court from time to time, it appears that the
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Education Officer (Primary) was not justified in rejecting the proposals
of the petitioners. The Education Officer (Primary) ought to have
granted approval to the appointment of the petitioners, if the
petitioners were otherwise qualified for holding the posts of Shikshan
Sevaks. The Education Officer (Primary), had by the communication,
dated 09.02.2015, granted permission to the respondent Nos.3 and 4 to
fill the posts of Shikshan Sevaks. After having granted the permission,
the respondent-Education Officer (Primary) was not justified in
refusing the approval solely on the ground that the permission of the
District Level Committee was not sought. In a case where the
Education Officer (Primary) had granted permission to fill up the posts
and the posts were filled up after following the due procedure
prescribed by law, this Court had held that approval could not have
been rejected on the ground that a ban was imposed by the State
Government on the appointments of Shikshan Sevaks. It would be
necessary to refer to the judgment, dated 15.12.2015 in Writ Petition
No.4127 of 2015 (Sonu Dinesh Bhusum v. The State of Maharashtra and
others) in this regard. It was held in the said case that once a
permission was granted to fill the posts, the Education Officer cannot
reject the proposal solely on the ground of imposition of ban by the
State Government. Similar is the case here. The Education Officer
(Primary) had granted permission to the respondent Nos.3 and 4 to fill
the posts of Shikshan Sevaks. Also, as rightly submitted on behalf of
the petitioners, in view of the judgment of this Court, it is not necessary
for a minority institution to first absorb the surplus teachers from the
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other schools in their school before making the appointments. In the
circumstances of the case, we find that the rejection of the proposals of
the petitioners on the ground that the respondent Nos.3 and 4 had not
absorbed the surplus teachers from other schools is unjust and illegal.
8. Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order is quashed and set aside. The respondent-
Education Officer (Primary) is directed to grant approval to the
appointment of the petitioners, if the petitioners are otherwise qualified
to hold the post of Shikshan Sevaks, within one month. Rule is made
absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 12/08/2016
P.A.to Hon'ble Judge
