Bombay High Court
Gangadhar Baburao Shere vs The State Of Maharashtra And ... on 4 March, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11613 OF 2015
Gangadhar Baburao Shere,
Age: 32 Years, Occu. Service,
R/o. Nagalgaon, Tq.Udgir,
Dist. Latur PETITIONER
VERSUS
1] The State of Maharashtra,
Through its Secretary,
School Education & Sports Department,
Mantralaya, Mumbai-32.
2] The Education Officer [Secondary],
Zilla Parishad, Latur,
Tq. Dist. Latur
3] The headmistress,
Smt. Rukminimath Sure Girl's Vidyalaya,
Nagalgaon, Tq. Udgir, Dist. Latur
[Copy to be served on the
Govt. Pleader, High Court of
Bombay, Bench at Aurangabad] RESPONDENTS
...
Mr. V.D.Gunale, Advocate for the Petitioner
Mr. D.R.Kale, AGP for the Respondent Nos.1 and 2 / State
Mr. V.G.Kodale, Advocate for Respondent No.3.
...
CORAM: S.S.SHINDE &
P.R.BORA, JJ.
Reserved on : 01.03.2016
Pronounced on: 04.03.2016
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JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard with the consent of the parties.
3] This Petition takes exception to the impugned
order dated 08.09.2015 issued by respondent no. 2
Education Officer, thereby refusing approval to the
appointment of petitioner, and further seeking direction to
the Education Officer to grant approval to the appointment
of petitioner and release the salary grants.
4] It is the case of the petitioner that, the
petitioner is possessing the educational qualification of
B.Sc. B.Ed., therefore, he is trained candidate within the
meaning of Rule 2 [k] of the MEPS Rules, for the
appointment on the post of teacher. It is further the case of
the petitioner that, due to retirement of teachers, two posts
in the respondent no. 3 school became vacant. One Shri
G.P.Kulkarni, Assistant Teacher, retired on 31.12.2010, who
was teaching the science subject. Due to his retirement,
there was no teacher in the school for teaching science,
possessing the qualification of B.Sc. B.Ed.
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5] It is further the case of the petitioner that, there
was dispute in the management and different change
reports of the elections by rival groups of the Managing
Committee were pending in the office of Assistant Charity
Commissioner. However, due to the said dispute, there
were no appointments of teachers, ultimately, the students
were suffering because of not having requisite number of
teachers for teaching the subjects. Therefore, respondent
no. 3, vide its application dated 6th January, 2011, sought
permission from the Education Officer to fill in two vacant
posts of Assistant Teachers, in order to avoid an
inconvenience to the students, as there was no teacher for
science subject in the said school. On receipt of the
application from the Headmistress i.e. respondent no. 3,
Education Officer, vide its communication dated
07.01.2011, granted permission to fill in two posts to avoid
educational loss of the students keeping in view that, there
is dispute in the management, and no management duly
approved by the competent authorities is in the office. In
the said communication, the Education Officer stated that,
there is one post from S.T. category to be filled in out of two
posts available as per roaster, and on condition to fill up
one post from the said category, the permission was
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granted to fill up those two posts. The school authority was
directed to get the roster of reservation verified from the
Competent Authority. However, to avoid the inconvenience
of the students, the permission was granted to fill those
posts by appointing the qualified candidates. The learned
counsel appearing for the petitioner invited our attention to
the contents of the letter dated 7th January, 2011, written
by the respondent no. 2 to the concerned Head Master.
6] It is further the case of the petitioner that, as
there was dispute in the management, therefore,
respondent no. 3 Headmistress issued an advertisement in
the news paper 'Deshbhakt', dated 8th January, 2011, and
invited applications from the eligible candidates to the post
of Shikshan Sevak; one post is for B.A.B.Ed. and one post
was for B.Sc. B.Ed. In pursuance of the said advertisement,
the petitioner applied to the said post. He was interviewed
by the local selection Committee along with other
candidates. Total five candidates including the present
petitioner were present to the interview on 16th January,
2011, those who were possessing the qualification of B.Sc.
B.Ed., all were from open category and no candidates from
reserved category remained present to the said interview.
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The learned counsel appearing for the petitioner invited our
attention to the advertisement, which is placed on record.
It is further the case of the petitioner that, the Local
Selection Committee conducted the interviews, and
accordingly selected the petitioner. Considering his
teaching performance to the post of Shikshan Sevak for
science subject, and accordingly respondent no. 3 issued an
appointment order in favour of the petitioner as Shikshan
Sevak on probation for a period of three years i.e. from
01.02.2011 to 31.01.2014. He invited our attention to the
copies of the appointment order dated 1st February, 2011
and joining report dated 1st February, 2011.
7] It is further the case of the petitioner that, his
appointment was on clear sanctioned vacant post. The
authorities of respondent no. 2 has carried out the
inspection of the said school for every year and on the basis
of strength of the students, sanctioned the staff. The
appointment of petitioner is within the sanctioned staff
which reveals from the staff approval for the year
2010-2011. The learned counsel invited our attention to
the copies of the staff approval for the year 2010-11,
2012-13 and 2013-14. It is further the case of the
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petitioner that, as the provisions of Rule 12 of the MEPS
Rules, the respondent no. 3 school has prepared a seniority
list of teaching and non-teaching staff of the said school for
the year 2011-12 and 2014-15 and in the said seniority list,
the name of the petitioner is appearing at serial No.6. The
petitioner has placed on record copies of seniority list at
Exhibit-F.
8]
It is further the case of the petitioner that, since
from his appointment, he is discharging his duties as
Shikshan Sevak sincerely and honestly and to the
satisfaction of the respondents, there is no single complaint
against him about his teaching performance either from the
students or from the school authorities. He has not
received single memo or show cause notice from the school
authorities. He is the only teacher of science subject in the
said school. He has successfully completed his probation
period of three years as Shikshan Sevak in the year 2014
itself. Therefore, as per the provisions of sub-rule 2 [a] of
the MEPS Rules, after completion of his probation period of
three years as Shikshan Sevak, he is deemed confirmed
employee of the said school. It is further the case of the
petitioner that, respondent no. 3 submitted the proposal
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along with all requisite documents in the office of
respondent no. 2 for approval to the appointment of
petitioner every year. However, those proposals were kept
pending undecided by the respondent no. 2, and therefore,
the petitioner was required to approach this Court against
inaction on the part of the Education Officer, by filing Writ
Petition No.5846/2015. The said Writ Petition was heard by
this Court and disposed of the same with directions to the
respondent no.2 to decide the proposal for approval to the
appointment of the petitioner, submitted by the respondent
no.3, on its own merits in accordance with law expeditiously
and preferably within a period of six months from the date
of order.
9] It is further the case of the petitioner that, there
is dispute in the management between two groups,
therefore, the Headmistress was required to fill in those
posts in the year 2011 with the permission of the Education
Officer. However, one of the group posing themselves as
office bearers have filed Writ Petition No.3616/2014, before
this Court making allegations to cancel the appointment of
the petitioner and two others, which was made in the year
2011. The said Writ Petition was heard by this Court on
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03.02.2015, and this Court declined to entertain the said
Writ Petition, therefore, the petitioner has withdrawn the
said Writ Petition and accordingly the said Writ Petition
came to be disposed of as withdrawn. It is further the case
of the petitioner that, after the order of this High Court
dated 15.06.2015 passed in Writ Petition No.5846/2015, the
respondent no. 2 vide his communication dated
16.07.2015, called upon the Headmistress as well as the
petitioner for hearing in his office on 21.07.2015 along with
record. The petitioner as well as respondent no. 3
Headmistress remained present in the office of respondent
no. 2 on 21.07.2015. Respondent no. 3 produced the
record of staff approval from the year 2011-12 till 2013-14,
so also seniority list of teaching and non teaching
employee. The Headmistress submitted in writing before
the Education Officer on 21.07.2015, during the course of
hearing and pointed out that, there was no teacher for
mathematics and science subjects in the school, and
therefore, the said post is filled in by appointing the
petitioner. However, there is backlog of one post of S.T.
category in the school. No candidates possessing B.Sc.
B.Ed. qualification from the said category had applied. It is
submitted that, there is no any other teacher, and
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petitioner is the only teacher for teaching science and
mathematics subject in the school. He is discharging his
duty continuously since 2011, therefore, considering his
four years service and also to avoid the educational loss of
the students, approval be granted to the appointment of
petitioner.
10] It is further the case of the petitioner that, the
Education Officer vide its communication dated 8th
September, 2015, refused to grant approval to the
appointment of the petitioner on the ground that, as per the
staffing pattern there are total 8 sanctioned posts in the
respondent no. 3 school, however, the Assistant
Commissioner verified the roster of said school on
10.02.2014 and found that, as per the roster of reservation,
7 posts are filled in and one post is vacant and there is
backlog of one post for S.T. category in the school and the
appointment of the petitioner made in the year 2011 is
from open category, therefore, no approval can be granted
to his appointment. Hence this Petition.
11] The learned counsel appearing for the
petitioner submits that, the selection of the petitioner is in
pursuant to the adherence to the relevant provision. The
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petitioner is fully qualified. He is appointed against a
vacant and clear post. He joined the said post on 1st
February, 2011. It is further submitted that, the petitioner
has completed more than 4 years continuous service, and
therefore, as per the provisions of sub section 2 [a] of
Section 5 of MEPS Act, he is deemed confirmed employee
and after completion of his probation period of three years,
he has continued in service and still he is in service. It is
submitted that, it is true that, there is backlog of one post
for S.T. category in the school. However, candidate from
said category was not available even after advertising the
post, the same is filled in by appointing the petitioner
keeping in view the interest of the students. It is submitted
that, the management has filed an undertaking that, as and
when next vacancy would arise, the management will
appoint the candidate from S.T. category. He further
submits that, the petitioner is the only teacher of science
and mathematics subject in the school. He is discharging
his duty sincerely and honestly. He is from poor family and
he has no any other source of income for his livelihood. It is
submitted that, because of refusal of the approval by the
management, it is likely that, his services may be
terminated by the respondent management.
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12] The learned counsel appearing for the
petitioner pressed into service exposition of the Full Bench
of the Bombay High Court in the case of Ram Avadh Mahel
Pal Vs. Shivdutta Educational Trust and others1 and submits
that, the Full Bench in the said Judgment has ruled that,
every person appointed as Shikshan Sevak shall be on
probation for a period of three years. Moreover, subject to
the provisions of Sub-sections (3) and (4) of Section 5 a
Shikshan Sevak shall on completion of the probation period
of three years be deemed to have been appointed and
confirmed as a teacher. Therefore, he submits that, since
the petitioner has completed three years period without
any break and discharging the duties sincerely, honestly
and without any complaints, and therefore, in view of the
exposition of the Full Bench in the case of Ram Avadh
Mahel Pal Vs. Shivdutta Educational Trust and others [cited
supra], he is deemed to have been appointed and
confirmed as a teacher.
The learned counsel appearing for the
petitioner further invited out attention to the Judgment of
the Division Bench of the Bombay High Court at Principal
seat in the case of Lalitha Thutpi Vs. C.B.Karkhanis,
1 2007 [6] Mh.L.J. 659
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Presiding Officer, School Tribunal Bombay & others
reported in MEC 1532 and submits that, in that case, on
interpretation of section 5 [1] and 5 [2] of the Maharashtra
Employees of Private Schools [Conditions of Service]
Regulation Act, 1977, the Court has ruled that, candidate
from reserved category was not available, and if other
person is appointed on the said vacancy, two conditions for
claiming a permanency are (1) a candidate should be
qualified for holding such post and (ii) he/she should have
put in more than two years of continuous service.
Therefore, the learned counsel appearing for the petitioner
submits that, in the facts of that case, the Court has ruled
that, the petitioner therein has become permanent.
Therefore, he submits that, the Petition deserves to be
allowed.
13] The learned counsel appearing for the
respondent no. 3 invited our attention to the averments in
the affidavit-in-reply and submits that, as no candidate
from S.T. category was made available possessing the
qualification of B.Sc. B.Ed. and to avoid educational loss of
the students, respondent no. 3 appointed the petitioner on
the said post from open category and since his
appointment, he is working in the respondent no. 3 school.
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He has completed his probation period of three years as
Shikshan Sevak and he is in continuous service in the
respondent no. 3 school. He further invited our attention to
the para 7 of the affidavit in reply filed by the respondent
no.3 and submits that, the management has filed
undertaking stating therein that, steps will be taken to fill in
the backlog of S.T. category, on the post which will become
vacant in the school henceforth, and said post will not be
filled in from another category, except the candidate from
S.T. category, in the respondent no. 3 school. The learned
counsel also invited our attention to the fact that, though
the advertisement was given and the post was reserved for
S.T. category candidate, no candidate from the said
category was available and even for other reserved
category candidates have also not applied to the post.
Considering the urgency and need of the teacher to teach
science subject, the Local Selection Committee selected the
petitioner to the said post of Shikshan Sevak. The learned
counsel invited our attention to the advertisement, which is
placed on record. Therefore, relying upon the averments in
the affidavit in reply, he submits that, the Petition deserves
to be allowed.
14] The respondent no. 2 has filed affidavit-in-
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reply . The learned AGP appearing for the respondent no.2
submits that, the Education Officer, after following
procedure and after giving an opportunity of hearing to the
petitioner and the concerned parties, has passed the
impugned order. He submits that, the post, on which the
petitioner is appointed, is reserved for S.T. category as per
the roster. He further submits that, the Education Officer
though given permission to fill in the said post, in the said
letter, it was made clear that, the management should
appoint the candidate from the S.T. category, however, in
breach of the said written directions to the Headmaster, he
appointed the petitioner, who is not from any reserved
category. It is further submitted that, in case the candidate
from the reserved category is not available, the respondent
management has to follow the provisions of Rule 9 of the
Maharashtra Employees of Private Schools [Conditions of
Service] Regulation Rules, 1981. It is submitted that, in
case the candidate from the particular category is not
available, the management has to follow the mandate of
Rule 9A and the procedure stated in the said Rule.
Therefore, the learned AGP submits that, the appointment
of the petitioner is not sustainable in law, and therefore, the
order passed by the Education Officer, refusing approval,
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deserves no interference in extra ordinary writ jurisdiction.
Therefore, he submits that, Writ Petition may be rejected.
15] We have heard the learned counsel appearing
for the petitioner, learned counsel appearing for the
respondent management, and the learned AGP appearing
for the respondent nos. 1 and 2. With their able assistance,
perused the pleadings in the petition, annexure thereto,
reply filed by the respondent no. 2, and the relevant
provisions of the MEPS Rules, 1981, and also the Judgments
of the Full Bench and the Division Bench cited across the
bar by the learned counsel appearing for the petitioner. It
is not in dispute that, the respondent no. 3 sought
permission from the Education Officer to fill in two vacant
posts of Assistant Teachers. Admittedly, out of two posts,
the permission was granted by the Education Officer to fill
in the said post was subject to fill in one post from S.T.
category. Admittedly, the advertisement was issued
advertising the posts, one for S.T. category. However,
according to the petitioner and the respondent no. 3,
suitable candidate from the said category, possessing B.Sc.
B.Ed. qualification had not applied for the said post, and
therefore, in order to avoid loss to the students, the
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management proceeded to appoint the petitioner, who is
teaching science and mathematics subjects. It is stated
that, the petitioner is the only teacher, who is teaching the
science and mathematics subject. Therefore, it is not in
dispute that, the advertisement was issued taking prior
permission of the respondent no. 2, and after following
procedure, the posts were filled in. However, as directed by
the respondent no. 2 to fill in one post from S.T. category,
the same has not been adhered to by the respondent no. 3.
There is no denial to the fact that, the candidate,
possessing B.Sc. B.Ed. qualification from S.T. category, did
not apply in pursuant to the advertisement issued by the
respondent no. 3.
16] It is not in dispute that, the petitioner has been
appointed as Shikshan Sevak on 1st February, 2011. He has
rendered three years satisfactory services. Admittedly,
the Respondent - management was supposed to fill in the
vacancy from the S.T. category, however, circumstances
are brought on record that, the candidate from the said
category was not available, therefore, the petitioner was
appointed. The learned counsel appearing for the petitioner
has invited our attention to the judgment of the Full Bench
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of Bombay High Court in the case of Ram Avadh Mahel
Pal V/s Shivdutta Educational Trust and ors.2 and
submits that, on completion of three years successful
period, the petitioner who was appointed as Shikshan
Sevak on regular basis, on completion of the said period,
deemed to have been appointed on regular basis. He also
invited our attention to the another judgment in the case of
Lalitha Thutpi V/s C.B. Karkhanis, Presiding officer,
School Tribunal Bombay and others3 and submits that,
in the facts of that case, the Division Bench took a view
that, if the qualifications are possessed by the candidates
and two years probation period is completed, in that case,
such appointment deserves to be protected, by directing
the Respondent - Management to carry forward the post for
the reserved category.
17] Upon perusal of those judgments, and if the
ratio laid down in those judgments, is applied in the present
case, we find that, in the present case also, the petitioner
has completed three years service as Shikshan Sevak, and
there is assurance by the Respondent - management that,
on immediate next vacancy, the Management will appoint
2 2007(6) All M.R. 716
3 1998(1) Mah. L.R. 235
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the candidate from S.T. category. Therefore, for the reasons
aforesaid and since the petitioner has completed more than
three years probation period and possess requisite
qualification, the petitioner is entitled for the relief claimed
in the Petition.
18] In the result, the impugned communication is
quashed and set aside. The Respondent No.2 - Education
Officer is directed to reconsider the proposal for granting
approval to the services of the petitioner and for
continuation of the petitioner, as an Assistant Teacher, as
expeditiously as possible, and preferably, within eight
weeks from today.
19] Needless to observe, the Education Officer shall
not raise the grounds raised in the impugned
communication while rejecting the approval to the services
of the petitioner, however, subject to fulfillment of usual
formalities grant approval to the services of the petitioner
by obtaining the specific undertaking from the Respondent
- management that, on immediate next vacancy, the
Respondent - Management will appoint the candidate from
S.T. category.
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20] The Petition is partly allowed and same stands
disposed of.
21] Rule made absolute in the above terms.
Sd/- Sd/-
[P.R.BORA] [S.S.SHINDE]
JUDGE JUDGE
DDC
