Bombay High Court
Syed Asad Syed Yusuf vs The State Of Maharashtra And ... on 19 July, 2016
Bench: S.S. Shinde
7136.2015WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7136 OF 2015
Syed Asad s/o. Syed Yusuf
Age: 30 Years, Occup. Peon
(in Class-IV category),
Resident of Peerburanagar,
Galli No.9, Nanded,
Tq. & Dist. Nanded. PETITIONER
VERSUS
1. The State of Maharashtra
through Secretary
Education Department
Mantralaya, Mumbai-32.
2. The District Collector
Nanded, District Nanded
3. The Director of Higher Education,
M.S., Pune
4. The Joint Director
Higher Secondary Education
Nanded, District Nanded
5. The Education Officer (Primary)
Zilla Parishad, Nanded, Dist.Nanded
6. Pratibha Niketan Primary School
run by Pratibha Niketan Education
Society, Shrinagar, Nanded,
Dist. Nanded.
Through its Head Master
7. Pratibha Niketan Education Society
Vazirabad, Nanded-431604
Through its President/General Secretary
Purushottam Jethmalji Maheshwari
::: Uploaded on - 19/07/2016 ::: Downloaded on - 19/07/2016 23:59:26 :::
7136.2015WP.odt
2
8. Pratibha Niketan Mahavidyalaya
Banda Ghat Road, Vazirabad
Nanded, Dist. Nanded RESPONDENTS
...
Mr. Rahul P. Dhase, Advocate for the
petitioner
Mr.S.D.Kaldate, AGP for Respondent Nos.1 to 4
Mr.S.V.Deshmukh, Advocate for Respondent No.5
Mr.S.M.Kulkarni, Advocate for Respondent Nos.
6 to 8.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 08.07.2016
Pronounced on : 19.07.2016
JUDGMENT: (Per S.S.Shinde, J.):
Heard.
2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. The background facts leading for
filing the Writ Petition are as under:
It is the case of the petitioner
that the petitioner filed Writ Petition
No.6236/2013 (Syed Asad s/o. Syed Yusuf Vs.
The State of Maharashtra & others), seeking
7136.2015WP.odt
directions to the respondent herein to
appoint him on compassionate ground in the
place of his father, who died during the
course of employment with respondent no.8
College. The said Writ Petition was disposed
of by the High Court, thereby giving
directions to the respondent management to
appoint the petitioner in class-IV category
on compassionate ground in the light of the
scheme of the Department of Education dated
31.12.2002 and also in view of the directives
issued by the Joint Director. Accordingly,
the petitioner was appointed in Class-IV
category on compassionate ground on
18.02.2014. The petitioner's proposal seeking
approval to his appointment on class-IV post
was forwarded to the Education Officer by the
respondent management. However, the said
proposal was not decided by the Education
Officer. Therefore, the petitioner filed Writ
Petition No.10524/2014 (Syed Asad Syed Yusuf
7136.2015WP.odt
Vs. The State of Maharashtra) and in the said
Writ Petition the High Court directed
Education Officer to consider and decide the
proposal on merits. Accordingly, on
26.05.2015 the Education Officer rejected the
proposal on the ground that there are 90
surplus teachers and 82 Peons on the role of
the Education Officer and in view of the
Government Resolution dated 02.05.2012 unless
total surplus employees are absorbed, no
approval can be granted to the fresh
appointment as per the directions given by
the State Government. The another ground is
given in the impugned communication is that
no prior permission of the Education Officer
was taken for advertising the post and also
for the appointment of the petitioner.
4. The learned counsel appearing for
the petitioner submits that in fact the
management should have appointed the
petitioner in respondent no.8 College,
7136.2015WP.odt
however, they have appointed the petitioner
in another school run by the same management.
5. The learned AGP appearing for the
respondent - State relying upon the averments
made in the affidavit-in-reply submits that
the respondent management does not want to
absorb surplus employees, and therefore,
instead of appointing the petitioner in
respondent no.8 College, the management chose
to appoint him in some other school run by
the management.
6. The learned counsel appearing for
respondent nos.6 to 8 submits that already
the proposal is submitted by the management
to the Education Officer. The Education
Officer has rejected the said proposal on
unsustainable grounds. It is submitted that
since there was vacancy in another school run
by the same management, the petitioner is
appointed in another school on the clear
7136.2015WP.odt
vacant post. It is submitted that the
appointment of the petitioner is in pursuance
of the directions issued by the High Court in
Writ Petition Nos.6236/2013, and therefore,
the appointment of the petitioner, which is
made on clear vacant post in the school run
by the respondent management is proper.
7. We have heard the learned counsel
appearing for the petitioner, learned AGP
appearing for respondent nos.1 to 4, learned
counsel appearing for respondent no.5 and the
learned counsel appearing for respondent nos.
6 to 8. With their able assistance, perused
the pleadings in the Petition, grounds taken
therein, replies filed by respective
respondents. There are two grounds raised by
the Education Officer for not according
approval to the appointment of the petitioner
on class-IV post in the school run by the
respondent management. Firstly, no prior
permission was taken for advertising the post
7136.2015WP.odt
on which the petitioner is appointed. In that
respect, as it is clear that the Division
Bench of the Bombay High Court Bench at
Aurangabad in Writ Petition No.6236/2013
(supra) directed the respondent management to
give appointment to the petitioner in class-
IV category on compassionate ground in the
light of the scheme of the Department of
Education dated 31.12.2002 and the directives
issued by the Joint Director within period of
four weeks from disposal of the said Writ
Petition. The Writ Petition was disposed of
on 29.01.2014 and the petitioner was
appointed on 18.02.2014. Therefore, the
ground that no prior permission was taken by
the management or advertisement cannot hold
good. Secondly, an appointment on the
compassionate ground is given so as to give
immediate financial aid / assistance to the
family of the deceased employee, who is
facing financial crunch / crisis. Therefore,
7136.2015WP.odt
in the facts of the present case, as already
observed, the High Court after considering
the hardship faced by the petitioner and
keeping in view the relevant scheme laid down
in the Government Resolution dated 31.12.2002
and the directives issued by the Joint
Director, directed the respondent management
to appoint the petitioner on class-IV post.
Therefore, in the peculiar facts of this
case, the ban imposed by the State Government
on fresh recruitment on the ground that there
are surplus employees on the role of the
State Government, cannot be applied.
8. However, we find considerable force
in the arguments of the learned AGP that the
petitioner ought to have been appointed on
the vacancy available in respondent no.8
College since the petitioner's father was
working in the said college, and he died
during the course of employment. However,
now the petitioner is already appointed on
7136.2015WP.odt
class-IV post in some other school run by the
same management. Therefore, the respondent
State Government and the Education Officer
can strictly apply the said Government
Resolution and also the provisions of Section
5 of the Maharashtra Employees of Private
Schools (Condition of Service) Regulation Act
and Rules, in case the respondent management
wishes to fill up the teaching or non-
teaching vacant post henceforth.
9. In the light of discussion in the
foregoing paragraphs, the impugned
communication dated 26.05.2015 is quashed and
set aside. The respondents and in particular
respondent no.5 is directed to reconsider the
proposal for approval to the appointment of
the petitioner as Class-IV employee afresh
without raising the grounds, which are raised
in the impugned communication and take
decision on the said proposal, as
expeditiously as possible, however, within
7136.2015WP.odt
four weeks from receiving copy of the order
passed by this Court. However, we make it
clear that we have not entered into the
exercise of finding out whether the School
where the petitioner has been appointed is
being run on the grant-in-aid basis or
unaided basis. It is needless to observe
that in case the post is on unaided basis,
once the approval is granted by the Education
Officer, the respondent management will be
obliged to pay salary and all other benefits
available for the said post, in view of the
provisions of the Maharashtra Employees of
Private Schools [Service of Condition]
Regulation Act and the Rules.
9. The Petition is partly allowed.
Rule is made absolute partly in the above
terms. No costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
