Shri. Sandeep Manikrao Chawat And ... vs State Of Maha., The. Sect., Dept. ...
2016 Latest Caselaw 833 Bom

     WP 939.16 [J].odt                             1




                                                                               
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR




                                                       
                               WRIT PETITION NO.939 OF 2016




                                                      
     1]     Shri Sandeep Manikrao Chawat,
            Aged about 51 years,
            Occupation-Service,
            R/o. Borgaon Hatla, Tahsil - Arvi,




                                              
            District - Wardha.

     2]
                             
            Saraswati Mata Vidya Prasarak Mandal,
            Thanegaon, through its President
            Shri Bhagwant Bapurao Kadve,
                            
            Aged about 65 years,
            R/o. Thanegaon, Tahsil - Karanja,
            District - Wardha.                  ..                     Petitioners
      


                                    .. Versus ..
   



     1]     State of Maharashtra,
            Through its Secretary,
            Department of Education,
            Mantralaya, Mumbai-32.





     2]     The Education Officer (Secondary),
            Zilla Parishad, Wardha,
            District - Wardha.                          ..             Respondents





                           ..........
     Shri C.B. Dharmadhikari, counsel for the petitioners,
     Shri P.V. Bhoyar, A.G.P. for the respondents.
                           ..........

                                    CORAM :  SMT. VASANTI  A. NAIK  AND
                                             V.M. DESHPANDE, JJ.

DATED : MARCH 22, 2016.

ORAL JUDGMENT : (Per : SMT. VASANTI A. NAIK, J.)

Rule. Rule made returnable forthwith. The petition is heard

finally with the consent of the learned counsel for the parties.

By this petition, the petitioners impugn the order of the

Education Officer, dated 25.11.2014, rejecting the proposal of the

petitioners for grant of approval to the appointment of the petitioner

no.1 on the post of Headmaster. The petitioners seek a direction to the

Education Officer to grant approval to the promotion/appointment of

the petitioner no.1 on the post of Headmaster.

The petitioner no.2-Management runs and administers four

schools. As per the reservation policy, an Assistant Teacher Shri A.U.

Basakhetre, belonging to the Scheduled Castes, was appointed on the

post of Headmaster in one of the four schools. Shri A.U. Basakhetre

retired on attaining the age of superannuation on 30.9.2013. Since

there are four schools run and administered by the Management, it is the

case of the petitioners that as per the provisions of Rule 9 of the

Maharashtra Employees of Private Schools (Conditions of Service) Rules,

1981, the petitioner no.1 was appointed as a Headmaster in Bharat Mata

Vidyalaya, Borgaon Hatla, one of the four schools run by the

Management. The proposal for grant of approval to the appointment of

the petitioner no.1 was sent by the petitioner no.2 to the Education

Officer. The Education Officer, however, by the impugned order, dated

25.11.2014, held that the promotion of the petitioner no.1 on the post of

Headmaster was not proper and the proposal of the senior-most teacher

in the institution should be sent to the Education Officer for grant of

approval.

Shri Dharmadhikari, the learned counsel for the petitioners,

submitted that after Shri A.U. Basakhetre, the Headmaster belonging to

the Scheduled Castes retired on attaining the age of superannuation in

September, 2013, the petitioner no.2-Management rightly appointed the

petitioner no.1 on the post of Headmaster. It is submitted that since the

reservation for the Scheduled Castes was exhausted, after the

appointment of Shri A.U. Basakhetre, the Management was entitled to

appoint a person belonging to the Scheduled Tribes and if no Assistant

Teacher from the said category was available from the Nomadic Tribes

(A), Nomadic Tribes (B) and Nomadic Tribes (C), in the said order. It is

submitted that since no eligible Assistant Teacher belonging to the

Scheduled Tribes and Nomadic Tribes (A) & (B) was available, the

petitioner no.1, who belongs to Nomadic Tribes (C) category was

appointed. It is submitted that this aspect of the matter was not

considered by the Education Officer, while rejecting the proposal of the

petitioners. It is stated that the issue involved in this case stands

answered in favour of the petitioners by the judgment dated 23.12.2015

in Writ Petition No.3323/2014. It is stated that after the impugned

order was passed, the Management has submitted the seniority list and

the list of existing teachers to the Education Officer. It is stated that if

need be, the petitioner no.2 would resubmit the seniority list and the list

of exhausting teachers to the Education Officer. It is stated that a

direction be issued to the Education Officer (Secondary) to re-decide the

proposal in the circumstances of the case.

Shri Bhoyar, the learned Assistant Government Pleader

appearing on behalf of the respondents, supported the order and

submitted that since two important documents i.e. the seniority list and

the list of teachers working with the Management was not submitted,

the proposal was returned to the Management. It is stated that since

the facts, as stated on behalf of the petitioners, were not stated in the

proposal, the Education Officer has not considered all the aspects of the

matter. It is stated that an appropriate order may be passed in the

circumstances of the case.

On hearing the learned counsel for the parties, it appears that

the Education Officer could not have held that the petitioner no.1 was

not entitled to be promoted on the post of Headmaster without

considering the circumstances of the case. It would be necessary for the

Education Officer to consider the factual position, as narrated

hereinabove, before deciding the proposal submitted by the petitioner

no.2. It would be necessary for the Education Officer to consider the

provisions of Rule 9 of the Rules, 1981, as also the seniority list while

deciding the proposal for grant of approval to the appointment of the

petitioner no.1 on the post of Headmaster. The Education Officer would

be required to consider that one of the four posts of Headmasters in the

four schools is liable to be reserved and in that background, the

Education Officer would be required to decide the proposal. We find

that the proposal of the petitioners has been rejected without taking into

consideration the aforesaid aspects. As submitted on behalf of the

petitioners, the petitioners may resubmit the seniority list as well as the

list of existing teachers to the Education Officer, within a period of ten

days. The Education Officer should, thereafter, decide the proposal of

the petitioners within a time frame.

Hence, for the reasons aforesaid, the writ petition is partly

allowed. The impugned order is quashed and set aside. The

respondent-Education Officer is directed to decide the proposal of the

petitioners within a period of six weeks from the date of receipt of the

seniority list and the list of teachers working with the Management.

Rule is made absolute in the aforesaid terms with no order as

to costs.

                              JUDGE                                        JUDGE

     Gulande