Bombay High Court
Maharashtra Ratri Pathashala ... vs The State Of Maharashtra And ... on 29 August, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4552 OF 2016
1. Maharashtra Ratri Pathashala
Shiksha Samiti, Jalna
Tq. & Dist. Jalna through its
Secretary.
2. Shri Venkatesh Vyankayya Gorantyal
Primary School, Jalna
Tq. & Dist. Jalna, through its
Head Master
3.
Uddhav S/o Dnyandev Shinde,
Age: 26 years, occu: service as
Shikshan Sevak
R/o At Post Pirkalyan
Tq. And Dist. Jalna
4. Kailas S/o Babasaheb Ingole,
Age: 24 years, occu: service as
Shikshan Sevak, R/o Dharkalyan
Tq. And Dist. Jalna
5. Kundlik S/o Bhanudas Rathod,
Age: 25 years, occu: service as
Shikshan Sevak, R/o Wadgaon,
Tq. And dist. Jalna
6. Bhushan S/o Govindsingh Rajput,
Age: 29 years, occu: Service as
Shikshan Sevak, R/o Kanchan Nagar,
Jalna, Tq. & Dist. Jalna Petitioners
Versus
1. The State of Maharashtra,
Through Its Secretary,
School Education Department,
Mantralaya, Mumbai 32
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2 The Education Officer (Primary)
Zilla Parishad, Jalna
Dist. Jalna Respondents
Mr. V.S. Panpatte advocate for the petitioners
Mr. S.B. Pulkundwar Assistant Govt. Pleader for Respondent No.1
Mr. S.S. Tope, advocate for respondent No.2
_______________
CORAM : R.M. BORDE &
K.K. SONAWANE, JJ
ig (Date : 29th August, 2016.)
ORAL JUDGMENT
(Per: R.M. Borde, J)
1 Heard.
2 Rule. With the consent of the parties, petition is taken up
for final decision at admission stage.
3 The petitioners are praying for quashment of the order
passed by respondent No.2, refusing to accord approval to the
appointments of petitioners Nos.3 to 6 as Shikshan Sevak in the
petitioner No.2 school. The impugned orders have been issued by
respondent No.2 on 13.4.2016.
4 The petitioners contend that the petitioners No.3 to 6
possess requisite qualification for being appointed as Shikshan
Sevek and were in fact appointed by the Management, in
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observance of the procedure prescribed for making appointment,
on 13.1.2016. Proposals were forwarded for granting approval of
their appointments to the Education Officer. However, the
Education Officer turned down the proposals by order dated
13.4.2016, mainly on the ground that, the teachers have not
cleared the Teachers Eligibility Test. The aforesaid condition in
respect of passing Teachers Eligibility Test is prescribed pursuant
to the directives issued under the provisions of Right to Education
Act. Another ground for denial of approval is that, the institution,
before making appointment has not secured approval from the
Zilha Parishad and has failed to absorb three surplus teachers.
Since the management has failed to abide by the directives in
respect of absorption of surplus teachers, the Education Officer
deemed it proper to refuse to grant approval to the appointments.
5 Counsel appearing for the petitioners, relying upon the
Judgment delivered by the Supreme Court in the matter of
Pramati Educational & Cultural Trust & others Versus Union of
India and others (2014 AIR SCW 2859) contends that, the
provisions of Right to Education Act vis-a-vis a minority
institutions have been held to be ultra virus the provisions of
Article 30(1) of the Constitution of India. In nutshell, it is
contended that the minority institutions are not governed by the
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provisions of Right to Education Act, since the provisions of the
said Act are held to be ultra virus the provisions of Article 30(1) of
the Constitution of India by the Supreme Court, in the afore said
matter. It is not permissible for the said authority to impose any
restriction by taking recourse to provisions of Right to Education
Act.
6 The Division Bench of this Court, in Writ Petition No.116 of
2012 adopted the said analogy, relying upon the Judgment of the
Supreme Court. So far as the second ground raised by Zilha
Parishad is concerned, reliance can be placed on the Judgment
delivered by the single Judge of this Court (R.M. Borde) in Writ
Petition No.116/2012 decided on 16.7.2012, wherein, it has been
held that, the directions issued by the grievance committee to the
Education Officer in respect of sending surplus teachers for being
accommodated by the minority institution and mandate requiring
the managements of minority institutions to absorb such teachers
and prescription of consequences for breach of the directives
issued by the Grievance Committee, is beyond the scope of
interference in view of the rights guaranteed to the minority
institutions under Article 30 (1) of the Constitution. The single
Judge has relied upon the Judgment of the Supreme Court in the
matter of T.M.A. Pai Foundation & others Vs. State of Karnataka &
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others (reported in 2002 (8) SCC 481).
7 In view of the decision by this Court, on the basis of the
Judgment delivered by the Supreme Court, it is not open for the
Zilha Parishad to compel the minority institution to accept the
surplus teachers for making appointment to the vacant posts. The
order passed by the Education Officer dated 13.4.2016, refusing
to accord approval is devoid of substance and as such it is
quashed and set aside. The Education Officer is directed to
consider the proposal tendered by the Management for granting
approval to the appointment of the Teachers in accordance with
law, as expeditiously as possible and preferably within a period of
four weeks from today.
8 Rule is accordingly made absolute.
9 There shall be no order as to costs.
(K.K. SONAWANE, J) (R.M.BORDE, J)
vbd
