Anjumane Ishate Taleem And ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 4844 Bom

                                                                                WP 5910/15  
      
                                                   - 1 -

                         




                                                                                   
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD               




                                                           
                                                  
                               WRIT PETITION NO.5910/2015

                              1]        Anjumane Ishate Taleem,




                                                          
                                        through President
                                        Galli No.1, Near Congress Bhavan,
                                        Dhule Tq. & Dist.Dhule.

                              2]
                      A.I.T. Urdu Primary School,




                                               
                      Dhule, Tq. & Dist.Dhule.
                      Through Head Master.
                                    ig        
                                        ...Petitioners..
                             Versus
                                  
                              1]        The State of Maharashtra,
                                        through Secretary,
                                        School Education Department,
                                        Mantralaya, Mumbai-32.
      


                              2]        Deputy Director of Education,
                                        Nashik Region, Nashik.
   



                              3]
                      Education Officer (Primary),
                      Zilla Parishad, Dhule.
                      Tq. & Dist.Dhule. 





                                          ...Respondents... 
                                                           
                              .....
    Shri S.P. Brahme, Advocate for petitioners.
    Shri V.S. Badak, AGP for respondent nos.1 & 2.





    Shri R.S. Pawar, Advocate for respondent no.3. 
                              .....
      
                                CORAM: S.V. GANGAPURWALA &
                                        K.L. WADANE, JJ. 

DATE: 24.08.2016

ORAL JUDGMENT (Per Gangapurwala, J.):

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1] Heard learned counsel for the parties. Rule.

Rule made returnable forthwith and with the consent of

learned counsel for the parties, the petition is taken

for final disposal at this stage.

2] The petitioner no.1 - institution is running an

aided primary school i.e. the petitioner no.2. According

to the petitioners, due to the retirement of one

Assistant Teacher on 31.1.2013, one post became vacant.

On 12.3.2013, the petitioner no.2 submitted an

application to send the surplus teacher and sought

guidance. According to the petitioners, the said

application was never replied. Thereafter, the

advertisement was issued and on 1.6.2014, one teacher

namely Miss.Syed Afrin was appointed on the said post.

On or about 22.12.2014, the Education Officer referred

one surplus candidate for absorption in the petitioner

no.2 - school. The same was not absorbed. As such, vide

order dated 2.5.2015, one post of the petitioner no.2 -

school was abolished. The said order is assailed in the

present petition.

3] Learned counsel for the petitioners states that

the petitioner no.1 is a minority institution. Though at

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the relevant time, the petitioner no.1 was not possessing

the certificate of minority institution, the said

certificate is granted to it on 5.8.2016. The learned

counsel submits that as soon as the post of Assistant

Teacher having become vacant, promptly the petitioners

intimated the respondent no.3 - Education Officer to send

the surplus candidate and also sought guidance. The

respondent no.3 - Education Officer did not communicate

to the petitioners for a long period and after lapse of

one year, advertised the said post and on 1.6.2014

appointed one Miss.Syed Afrin as an Assistant Teacher.

The learned counsel submits that even proposal seeking

approval to the said appointment was forwarded to the

respondent no.3 - Education Officer. The learned counsel

further states that on 22.12.2014, for the first time,

the Education Officer directed the petitioners to absorb

the surplus candidate. The petitioners had already

appointed the Assistant Teacher to the said post and as

such could not have accommodated the said surplus teacher

and the Education Officer thereafter on 2.5.2015

abolished one post of Assistant Teacher solely on the

ground that the surplus candidate was not absorbed. The

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learned counsel submits that the petitioners had

approached the Education Officer well in advance, but as

the Education Officer did not respond to the application

of the petitioners, the petitioners could not have kept

the said post vacant for a long period. Even otherwise,

the petitioner no.1 being minority institution, the

respondents could not have directed the petitioners to

absorb a surplus candidate.

4] Learned counsel for the respondent no.3 -

Education Officer states that at the relevant time, when

directions were issued to the petitioners to absorb the

surplus candidate, the petitioner no.1 was not a minority

institution. Even there was a ban for recruitment of new

teachers. The petitioners flouted the Government

resolution and the ban, and appointed a fresh teacher.

The same was impermissible. There were many surplus

teachers, who are required to be accommodated. For the

said default on the part of the petitioners, the

respondent no.3 has taken appropriate stand by abolishing

one post.

5] Learned counsel for the petitioners submits that

the said surplus candidate, who was directed to be

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absorbed in the petitioner no.2 - school has now been

absorbed in the school run by the Municipal Corporation.

6] The facts, as narrated above, are not

controverted i.e. [i] the post of Assistant Teacher

becoming vacant with the petitioner no.2 - school in

January, 2013; [ii] the petitioners applying with the

respondent no.3 - Education Officer in March, 2013,

seeking directions with regard to the surplus teacher;

and [iii] no reply was given to the said letter and after

lapse of one year, the petitioner no.2 appointed an

Assistant Teacher on the post, which had become vacant.

It is also now a matter of record that the petitioner

no.1 has been accorded the status of a minority

institution. A certificate to that effect appears to

have been issued on 5.8.2016.

7] It would appear that the petitioner no.2 had not

recklessly appointed an Assistant Teacher on the post

that had become vacant, but had approached the Education

Officer and only after a lapse of one year, as no

instructions were received by the petitioners from the

Education Officer, the petitioners proceeded to appoint

an Assistant Teacher after following due procedure and by

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an advertisement. The act of the petitioners appears to

be bona-fide one. The petitioners certainly could not

have kept that post vacant for a long time as it was

vacant for almost one and half year.

8] Considering the bona-fide act of the petitioner

no.2 and also the fact that now the petitioner no.2 is

accorded the status of a minority institution, the

impugned order is quashed and set aside.

9] In case the said post is admissible even today

as per the staffing pattern, then the proposal seeking

approval for the appointment of the Assistant Teacher on

the said post shall be considered and shall not be

rejected only on the ground that the petitioners have

failed to absorb the surplus candidate.

10] The writ petition accordingly stands disposed

of. Rule is made absolute accordingly. There shall be

no order as to costs.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)

ndk/c2481630.doc