Bombay High Court
Savita Lakshmanrao Tayde vs The State Of Maharashtra And ... on 19 December, 2016
Bench: S.V. Gangapurwala
1 wp 10178.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10178 OF 2015
Savita D/o Lakshmanrao Tayde,
Age : 39 Years, Occu. : Teacher,
Residing presently at N - 7,
C - 1 / 21 CIDCO,
Aurangabad - 431 003. .. Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary to the
Government, School Education
and Sports Department,
Mantralaya, Mumbai.
2. The Director of Education,
Maharashtra State, Pune.
3. The Deputy Director of Education,
Marathwada Region, Aurangabad.
4. The Education Officer,
Primary Education,
Zilla Parishad, Aurangabad.
5. Mukul Mandir Primary School,
N - 7, CIDCO, Aurangabad,
Through its Head Mistress. .. Respondents
Shri Hemant Surve, Advocate for the Petitioner.
Ms. Vaishali N. Patil, A.G.P. for Respondent Nos. 1 and 3.
The Respondent No. 2 is served.
Shir D. K. Rajput, Advocate for the Respondent No. 4
Shri S. B. Kadu, Advocate for the Respondent No. 5.
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CORAM : S. V. GANGAPURWALA AND
K. L. WADANE, JJ.
DATE : 19TH DECEMBER, 2016.
ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule made returnable forthwith. With the consent of
parties taken up for final hearing.
2. Mr. Surve, the learned counsel for the petitioner states
that, the petitioner is working with the respondent No. 5/school
since the year 2001-2002. Each year the petitioner was given
appointment orders upto the year 2009-2010. In the year 2010
the petitioner was given appointment as Shikshan Sevak. The
learned counsel submits that, it is because of the fault of the
management the proposal was not submitted earlier in the year
2010. The learned counsel submits that, in the year 2010 the
petitioner was over age by 03 months 26 days. The earlier
service rendered by the petitioner of more than seven years ought
to have been counted. The learned counsel relies on the
judgment of the learned Single Judge of this Court in a case of
Sau. Rekha Damodar Joshi Vs. State of Maharashtra
and others reported in 2011(2) Mh.L.J. 786.
3. The learned counsel for the respondent No. 5 submits that,
the petitioner is appointed by following due process of law. An
advertisement was issued and thereafter vacancy has been filled
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in. The school has forwarded the proposal on 08.08.2011 to the
Education Officer. Some deficiencies were pointed. Said
deficiencies were also cleared. The learned counsel submits that,
the respondent No. 5 does not have any objection, if the over age
is condoned.
4. The learned Assistant Government Pleader submits that,
Rule 9(4)(a) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules is abundantly clear, which lays
down the age limit for the appointment to the post of teacher.
Proviso to said Rule 9(4)(a) further states that, the upper age
may be relaxed in case of woman, ex-serviceman and persons
having previous experience with the previous permission of the
Deputy Director. In the present case, previous permission of the
Deputy Director was not obtained. As such, the Deputy Director
of Education has rightly passed the order.
5. We have considered the submissions canvassed by the
learned counsel for respective parties.
6. The head master of the school has issued certificate, clearly
accepting the fact that, the petitioner is working with the
respondent No. 5 school since the year 2003-2004 consistently till
2009-2010. It further states that, the work of the petitioner is
satisfactory. An appointment order as Shikshan Sevak has been
4 wp 10178.15
given in the year 2010. The petitioner has an experience at least
of seven years of working with the respondent No. 5, prior to
appointment order as Shikshan Sevak in the year 2010. The
previous experience is also required to be considered along with
the fact that, the petitioner is a woman. Proviso to Rule 9(4)(a) of
the M.E.P.S. Rules would squarely apply in the present case.
7. Considering the long service rendered by the petitioner
that is almost since 2003-2004 till date, we are inclined to
exercise out discretion and equitable jurisdiction.
8. It is also further submitted by the petitioner that, the
petitioner is appointed from reserved category. Considering all
these factors that the petitioner is consistently working since
2003-2004, the petitioner is a woman, the petitioner is from
backward class category and that in the year 2010 the petitioner
was over age only by 03 months 26 days, considering the totality
of all these facts, we are exercising our discretion.
9. In the light of the above, the impugned order dated
31.03.2015 is quashed and set aside. The Deputy Director of
Education, Aurangabad Division, Aurangabad shall condone the
over age of the petitioner. Thereafter, the Education Officer shall
consider the proposal of the petitioner for approval to the
appointment on its own merits, in accordance with law.
5 wp 10178.15
Rule accordingly is made absolute in above terms. No
costs.
Sd/- Sd/-
[ K. L. WADANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Dec. 16
