Santosh Machindra Kamble vs The Education Officer (Primary), ...
2016 Latest Caselaw 3822 Bom

                                        1                   WP No.9613/2014

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                      
                       BENCH AT AURANGABAD




                                              
                          WRIT PETITION NO.9613 OF 2014


      Santosh s/o Machindar Kamble




                                             
      Age: 27 Yrs., occu. Nil
      R/o In front of Rukmini Garden,
      Bhiku Seth's Wada, Jalna,
      District Jalna.                          =        PETITIONER




                                     
               VERSUS

      1)
                             
               The Education Officer (Primary)
               Zilla Parishad, Jalna.

      2)       The President,
                            
               Shri Jalna Gujrati Samaj Society
               Jalna.

      3)       The Secretary,
               Shri Jalna Gujrati Samaj Society
      


               Jalna.
   



      4)       The Head Master,
               C.T.M.K. Gujrati Vidyalaya,
               Jalna.

      5)       Dipak s/o Govindrao Kayande,





               Age: 30 yrs., occu. Service,
               R/o C/o Headmaster, C.T.M.K.
               Gujrati Vidyalaya, Jalna.    =           RESPONDENTS 
                                   -----
      Mr. Kiran M.Nagarkar, Advocate for Petitioner;





      Mr. UH Bhogle, AGP for State;
      Mr.Sunil B.Kakde, Adv. For Resp.Nos. 2 to 4;
      Shri P.B.Patil, Adv. For Resp.No.1 (Absent)
      Shri Pradeep B.Salunke, Adv. For Resp.No.5 (Absent)


                                      -----




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                                            2                    WP No.9613/2014

                                   CORAM :  P.R.BORA, J.




                                                                          
       
      DATE OF RESERVING JUDGMENT : 21
                                      st
                                          June,2016.
                                                    
       
      DATE OF PRONOUNCING JUDGMENT:14
                                        
                                      th
                                          July,2016.
                                                    




                                                  
                                                         
      JUDGMENT:

1) Heard finally with the consent of the

learned Counsel appearing for the respective

parties.

2)

The present petition is filed against

the Judgment and Order dated 30th August, 2014

passed by the School Tribunal, Aurangabad in

Appeal No.1/2014. The petitioner had filed the

aforesaid appeal challenging the legality and

validity of appointment order dated 1.9.2011

issued in favour of Respondent No.5 with further

relief of issuance of appointment in his favour

in place of Respondent No.5. The School Tribunal

has dismissed the aforesaid appeal filed by the

petitioner.

3) In CTMK Gujrathi Vidyalaya, Jalna

(Respondent No.4), one post of Shikshan Sevak was

to be filled in. An advertisement was,

therefore, published on 27.7.2011 in Daily Lokmat

inviting qualified eligible candidates to attend

the interview with original educational

qualification certificates on 6th August, 2011.

Along with the other candidates, the present

petitioner had also attended the said interview.

In the process of recruitment so conducted,

Respondent No.5 was selected by the school

management and was accordingly appointed on the

post of Shikshan Sevak, vide appointment order

dated 1.9.2011 for the period of three years i.e.

from 2.9.2011 to 1.9.2014.

4) It is the grievance of the present

petitioner that no proper recruitment procedure

was followed by the respondent management while

making appointment of Respondent No.5 on the post

of Shikshan Sewak. It was his contention that

the selection of Respondent No.5 was determined

by the management and only a farce of taking

interview was created on 6.8.2011 by taking

interviews for a minute or two for every

candidate and the recruitment process was shown

to have been completed. According to the

petitioner, since he had secured 69.05% marks in

D.Ed. examination comparing to 46.50% marks

obtained by Respondent No.5, the petitioner must

have been selected in place of Respondent No.5.

It was the further contention of the petitioner

that he belongs to backward class and also falls

in the category of disabled persons and as such,

preference must have been given to him while

making the appointment by the respondent

management.

5) The petitioner had, therefore,

approached the Grievance Committee, which was

existing at the relevant time, making the

grievance about appointment of Respondent No.5 in

disregard of the procedure and without

considering the merit of the candidate. In the

meanwhile, the Grievance Committees were

abolished and the matters pending with the

Grievance Committees were directed to be referred

to the School Tribunal for adjudication.

Accordingly, the grievance raised by the

petitioner was also referred to the School

Tribunal at Aurangabad and was converted into an

appeal bearing Appeal No. 526/2011.

6) The contentions raised by the petitioner

in the appeal were strongly resisted by the

Respondent management as well as Respondent No.5,

whose appointment was challenged by the

petitioner. According to the school management,

proper procedure was followed in making

appointment of Respondent No.5 The allegations

made by the petitioner were denied by the school

management. The school management had contended

that in the interviews conducted of the

candidates, who appeared in pursuance of

advertisement published by the school management

in Daily Lokmat, Respondent No.5 secured highest

marks and hence was selected and accordingly

appointed on the post of Shikshan Sevak. The

allegation made by the petitioner that in a

minute or two the interviews were held of the

willing candidates was denied by the school

management. The learned School Tribunal on its

assessment of the oral and documentary evidence

brought before it, did not find any substance in

the objections raised by the petitioner and hence

dismissed the appeal vide the impugned order.

7) Shri Nagarkar,Learned Counsel appearing

for the petitioner criticized the impugned

judgment on various grounds. The learned Counsel

submitted that the finding recorded in the

impugned judgment that the appeal so filed by the

present petitioner under Section 9 of MEPS Act,

1977 was not maintainable, is erroneous. The

learned Counsel further submitted that after the

Grievance Committees were abolished, the cases

pending before the Grievance Committees were

directed to be transferred to the School Tribunal

having jurisdiction for further adjudication. In

support of the said contention, the learned

Counsel relied upon the judgment of the Hon'ble

Apex Court in the case of Secretary, Sh. A.P.D

Jain Pathshala and Ors. Vs. Shivaji Bhagwat

Moreand Ors. - 2011 (0) BCI 225. The learned

Counsel further submitted that the School

Tribunal has failed in appreciating the objection

raised by the present petitioner that the

interviews conducted by the school management

were not in accordance with the prescribed

procedure and that the entire recruitment process

was faulty and hence liable to be quashed and set

aside. The learned Counsel further submitted that

the School Tribunal had also failed in

appreciating that the interviews of around 40

candidates could not have been completed within a

span of one day and it was thus evident that

conducting of the interviews was a camouflage and

the management had already take a decision to

select and appoint Respondent no.5, despite the

fact that he has secured only 46% marks in D.Ed.

examination. The learned Counsel, therefore,

prayed for setting aside the impugned judgment

and order and consequently prayed for quashment

of appointment order issued in favour of

Respondent No.5 with further relief that the

petitioner be appointed on the said post in place

of Respondent No.5.

8) Shri Kakade, learned Counsel appearing

for respondent school management opposed the

submissions advanced on behalf of the petitioner.

The learned Counsel supported the impugned order.

The learned Counsel, referring to the documents

filed on record, submitted that the recruitment

process conducted by the respondent management

was transparent and impartial. The learned

Counsel submitted that there were several

candidates, who have secured more marks in D.Ed.

examination than the the petitioner; however,

they were not selected since the performance of

Respondent No.5 in the interview was better and

satisfactory than the said candidates. The

learned Counsel submitted that the marks secured

in D.Ed. examination, was not the only factor to

be considered in making appointment on the post

of Shikshan Sevak. The overall performance of

the candidates was judged in the interviews and

since the performance of Respondent no.5 was more

satisfactory and better amongst all the

candidates, he was selected and appointed. The

learned Counsel, therefore, prayed for dismissal

of the petition.

9) After having considered the submissions

made on behalf of the respective parties and on

perusal of the impugned judgment as well as the

documents placed on record by the parties, it

does not appear to me that any case is made out

by the petitioner so as to cause interference in

the impugned Judgment and Order.

10) As stated above, it is the main

grievance of the petitioner that no proper

procedure has been followed in giving appointment

to Respondent no.5. It was argued by the

Learned Counsel appearing for the petitioner that

the procedure laid down under Section 5 of the

MEPS Act, was not followed and as such, the

appointment of Respondent No.5 made in violation

of the said provision is per se illegal. The

Learned Counsel appearing for the petitioner

however could not bring to my notice as to which

is the prescribed procedure and how it was

violated. Section 5 of the MEPS Act provides

that the management shall, as soon as possible,

fill in the manner prescribed every permanent

vacancy in a private school by appointment of a

person duly qualified to fill such vacancy or

that Respondent No.5 is not qualified to be

appointed on the said post. It is not the case

of the petitioner that there was no vacancy. It

was sought to be canvassed by learned Counsel

that the selection could not have been made only

on the basis of interview, but a written test was

also required to be conducted and the marks

obtained in D.Ed. examination must have been

given weightage while making the appointment.

The learned Counsel for petitioner however could

not bring to my notice any such provision

requiring to conduct a written test in making

such appointment. The learned Counsel also could

not bring to my notice any such provision or

guideline to the effect that selection of

Shikshan Sevak is to be made on the basis of

marks secured by the said candidate in D.Ed.

examination.

11) From the material on record, it is

evident that there was an open offer for the

willing and eligible candidates to appear for the

interview with necessary documents, showing their

qualifications and eligibility. The material on

record further shows that accordingly, the

candidates so appeared for interview were

interviewed by the school management and their

performance was assessed under three heads and

Respondent No.5, who secured highest marks in the

said interview, was ultimately selected and

consequently appointed on the post of Shikshan

Sevak. Though it is the allegation of the

petitioner that the candidates were interviewed

only for a minute or two, the said allegation is

denied by the respondent management. This Court

may not enter into the said controversy. The

material on record shows that the performance of

all the candidates was assessed in the interview

on about four aspects and accordingly, marks were

assigned. The assessment so made in the

interview evinces that the performance of the

petitioner in the interview was not satisfactory

and he could only secure 6 (six) marks out of 30

(thirty) marks; whereas the performance of

Respondent No.5 in the interview was found to be

best amongst all the candidates and he has

secured 26 marks out of 30. It was the right of

the management to have an objective assessment of

the candidates to be selected for appointment to

the post of Shikshan Sevak in their institution.

In such circumstances, it does not appear to me

that there is any substance in the allegation

made by the petitioner that no proper procedure

was followed while making appointment of

Respondent No.5.

12) It is further significant to note that

there were 28 candidates amongst 40 candidates so

appeared for the interview on 6.8.2011, who had

secured more marks than the petitioner in D.Ed.

examination. The material on record further

shows that in the interviews 38 candidates have

secured more marks than the petitioner. In the

circumstances, even otherwise no right can be

said to have accrued in favour of the petitioner

to challenge the appointment of respondent No.5

and to seek appointment in his place.

13) Further it was sought to be canvassed

that the petitioner belongs to backward class and

also belongs to the category of disabled persons

and hence was required to be given preference in

the questioned appointment. This contention must

also be rejected for the reason that nothing is

brought on record showing that the questioned

post was reserved for the persons belonging to

backward class or for the persons with

disability. The respondents have placed on

record the approval granted to the appointment of

Respondent No.5. The letter of approval does not

in any way indicate that the appointment of

Respondent No.5 was made against the reserved

vacancy and that the same is approved subject to

filling of the said vacancy by recruiting a

person belonging to backward class.

14) One more objection was raised by the

petitioner that Respondent No.4 school is not a

minority school. To buttress the said

contention, the petitioner has relied upon the

letter dated 14.10.2013 received to him by the

said School which contains an information that

the minority status has been awarded to the

respondent institution on 16.1.1995 and that

after 14th May, 2002, no orders have been passed

in this regard. However, merely on the basis of

the aforesaid document or on the basis of one

Circular dated 10.6.2002 filed on record, no such

conclusion can be arrived at that Respondent No.2

does not possess the minority status. Moreover,

it is not understood as to why the issue of

minority is raised by the petitioner since in the

appointment of Respondent No.5, there is no

relevance whether the respondent 4 - school

possesses the minority status or not.

15)

The judgment relied upon by the

petitioner in the case of Dayaram Dagdoba Mhaske

Vs. The State of Maharashtra and Ors. - 2012 (O)

BCI 177, may also not be of any help to take

cause of the petitioner further since the facts

involved in the said matter were altogether

different.

16) After having thoroughly considered the

material on record, it does not appear to me that

the School Tribunal has committed any error in

dismissing the appeal filed by the present

petitioner. However, it is to be noted that the

negative finding recorded by the Tribunal on the

point of maintainability of the appeal filed by

the petitioner, cannot be sustained in view of

the judgment of the Hon'ble Supreme Court in the

case of Secretary, Sh.A.P.D. Jain Pathshala and

Ors. (cited supra). The finding so recorded

hence deserves to be quashed and set aside and is

accordingly set aside. However, since on merits,

no case is made out by the petitioner, the

ultimate conclusion drawn by the School Tribunal

which has resulted in dismissal of the appeal do

not require any interference. The writ petition

being devoid of any merits stands dismissed.

However, in the circumstances of the case, no

order as to costs.

Sd/-

(P.R.BORA) JUDGE

bdv/

fldr 7.7.2016