Bombay High Court
Digambar Kamaji Kolhe And Others vs The State Of Maharashtra And ... on 15 July, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.34 OF 2015
1. Digambar s/o Kamaji Kolhe
Age: 40 Years, Occu.:Service
2. Sayyed Saber s/o Sayyed Kasim
Age: 38 Years, Occu.:Service
3. The Kamala Nehru Kanya School,
Raigadnagar, Nanded
Through its Head Master,
Madhuri d/o Sakharam Bhachchewar
Age: 43 Years, Occu.: Service.
4. The Jawaharlal Nehru Institute
of Education Science and Technology
Research Trust, Nanded,
Through Secretary,
Suryakant s/o. Sheshadri Hadoltikar,
Age: 80 Years, Occu.: Service,
All R/o. : Kamala Nehru Kanya School,
Raigadnagar, Nanded,
Tq. & Dist. Nanded. PETITIONERS
VERSUS
1. The State of Maharashtra
Through the Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Education Officer [Secondary]
Zilla Parishad, Nanded.
3. The Director of Education,
Directorate of Secondary & Higher
Secondary, Maharashtra State,
Pune-1. RESPONDENTS
::: Uploaded on - 15/07/2016 ::: Downloaded on - 17/07/2016 00:03:26 :::
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...
Mr.M.V.Ghatge, Advocate for Petitioners
Mr.V.H.Dighe, AGP for Respondent Nos.1 to 3.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 14.06.2016
Pronounced on : 15.07.2016
JUDGMENT: (Per S.S.Shinde, J.):
This Petition takes exception to the
order dated 27th April, 2012, passed by
Education Officer [Secondary], Zilla Paishad,
Nanded, and also seeks direction to
respondent no.2 to grant approval to the
appointment of petitioner nos.1 and 2 and
release the benefits of grant-in-aid in their
favour from 1st December, 2003, with all the
consequential benefits.
2. The learned counsel appearing for
the petitioners submits that though
petitioner no.1 is appointed after following
due process of law by the School Committee on
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clear vacant and sanctioned post, respondent
no.2 has wrongly observed that the
appointment of petitioner n.1 was without
prior permission and he was not appointed by
the properly constituted School Committee. He
submits that the impugned order is passed
totally on unsustainable reasons, ignoring
the fact that the petitioner is appointed on
the sanctioned post. He submits that there is
no provision which mandates to seek prior
permission of the Education Officer before
appointment to the post of Peon is made when
there is sanctioned post. The learned counsel
also invites our attention to the contents of
the additional affidavit so as to contend
that four posts of peons are sanctioned and
only four persons are appointed, two for the
Secondary Section and two for Primary
Section. He also invites our attention to
the contents of the rejoinder-affidavit and
submits that the respondents may be directed
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to give approval to the appointment and
services rendered by petitioner no.1, on
grant-in-aid basis.
3. So far as petitioner no.2 is
concerned, the learned counsel for the
petitioners submits that, though the
Education Officer has observed in the
impugned order that the approval is granted
to his services at the relevant time by the
Education Officer, but wrongly observed that
the post on which he is appointed has not
been included in the basic post sanctioned.
Therefore, he submits that the directions may
be issued to the respondents to grant
approval to the services of the petitioners
treating the said posts to be admissible for
the grant-in-aid.
4. The learned AGP appearing for the
respondent - State relying upon the averments
in the affidavit-in-reply submits that the
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reasons assigned in the impugned order are
keeping in view the relevant Government
policy and also the procedure for appointment
as contemplated under the provisions of the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977
and Rules framed thereunder. Therefore, he
submits that the Petition may not be
entertained.
5. We have given careful consideration
to the submissions of the learned counsel
appearing for the petitioners and the learned
AGP appearing for the respondent - State.
With their able assistance, perused the
pleadings in the Petition, grounds taken
therein, annexures thereto, additional
affidavit, rejoinder-affidavit filed by the
petitioners, and also affidavit-in-reply
filed by respondent no.2. Admittedly, the
appointment of petitioner no.1 i.e. Digambar
Kamaji Kolhe is after issuance of the
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Government Resolution dated 26th March, 2002,
by the School Education Department,
Government of Maharashtra and therefore
adherence to the provisions of the said
Government Resolution would be necessary.
6. The contention of the learned
counsel for the petitioners that it was not
necessary to seek prior permission of the
Education Officer before appointing
petitioner no.1 to the post of Peon, deserves
no consideration. If the respondent - State
has to release grant-in-aid, in that case the
management is bound to inform the Education
Officer about available vacancies and posts
and its intention to advertise the said
posts, so that the Education Officer can find
out, whether such post / posts is / are
sanctioned or otherwise and if admissible for
grant-in-aid, and also there are surplus
employees, if any, on his role so as to give
direction to the management to absorb such
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surplus employees from other educational
institutions. If the post/posts are/is vacant
and sanctioned, it is necessary to follow the
procedure, including advertising the said
post/posts and then invite applications from
the qualified desirous candidates, and after
following such procedure, the School
Committee should appoint the meritorious
candidates selected through proper selection
process. Therefore, the contentions of the
counsel for the petitioners that it is not
necessary to seek permission / inform the
Education Officer before petitioner no.1 was
appointed on the post of Peon, cannot be
accepted.
7. In the light of discussion in the
foregoing paragraphs, we do not find any
reason to interfere in the impugned order in
relation to petitioner no.1. If petitioner
nos.3 and 4 have appointed the petitioner
without following the procedure and without
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advertising the post, the management has to
pay the salary and all other benefits
available for the post of Peon to petitioner
no.1. The Education Officer is right in
observing that petitioner nos. 3 and 4 are
responsible for the payment of salary to
petitioner no.1.
8. So far as petitioner no.2 is
concerned, the policy prevailing then
mandates that if the post is sanctioned clear
and vacant and if it was available prior to
issuance of the afore-mentioned Government
Resolution dated 26th March, 2002, the said
post has to be counted in basic post.
Therefore, the Education Officer has already
directed petitioner nos.3 and 4 to submit
proposal to the concerned Officer to that
effect in respect of petitioner no.2. It
appears that since petitioner no.2 was
appointed on 2nd January, 1999 and approval
was granted to his services by the Education
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Officer at the relevant time, and he is
approved teacher as on 31.12.2000, in case
the proposal is already submitted by
respondent nos.3 and 4 and if not already
submitted, then if it is submitted within
four weeks from today, respondent no.2 is
directed to consider the same on the basis of
policy prevailing at the time of appointment
of petitioner no.2 and keeping in view the
fact that approval to his services is granted
long back. In case it is not necessary to
send the proposal as per the policy
prevailing then to the State Government, and
if respondent no.2 is competent to grant
approval, respondent no. 2 shall take
decision at his level in the light of the
policy prevailing at the time of appointment
within 8 weeks from today.
9. In the light of the discussion in
the foregoing paragraphs, the Petition is
partly allowed to the extent of petitioner
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no.2. So far petitioner no.1 is concerned,
the Petition stands rejected. No costs.
Sd/- Sd/-
(SANGITRAO S.PATIL) (S.S.SHINDE)
JUDGE JUDGE
DDC
