Bombay High Court
Burhani National Education ... vs The State Of Maharashtra And ... on 3 May, 2016
Bench: S.S. Shinde
(1) W.P. No. 3771 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 3771 of 2016
District : Aurangabad
1. Burhani National Education Society,
Through its Secretary,
Farazdaq Shakir,
Age : 69 years,
Occupation : Service,
R/o. C/o. Burhani School Campus,
Burhani Street, Devadi Bazar,
City Chowk, Aurangabad.
2. Shaikh Nisar s/o. Shaikh Sattar,
Age : 30 years,
Occupation : Service,
R/o. Chikalthana, Pushpak Garden,
Aurangabad. .. Petitioners.
versus
1. The State of Maharashtra,
Through Secretary,
School Education Department,
Mantralaya, Mumbai - 100 032.
2. The Education Officer (Secondary),
Zilla Parishad, Aurangabad. .. Respondents.
............
Mr. Shamim R. Shaikh, advocate, holding for
Mr. S.S. Kazi, Advocate, for the petitioners.
Mr. S.B. Yawalkar, Addl. Government Pleader,
for respondent nos.1 and 2.
............
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(2) W.P. No. 3771 of 2016
CORAM : S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
DATE : 3RD MAY 2016
ORAL JUDGMENT (Per S.S. Shinde, J.) :
The learned Counsel for the petitioners
undertake to deposit the deficit court-fees within a
period of two weeks from today.
2. Heard the learned Counsel appearing for the
petitioner and the learned Addl. Government Pleader
appearing for the respondents.
3. Rule. Rule made returnable forthwith. By
consent of the learned Counsel for the parties, heard
finally.
4. It appears that by the impugned
communication dated 3rd March 2016, respondent no.2
informed the petitioner - Institution that approval
to the appointment of petitioner no.2 as a Shikshan
Sevak cannot be granted for two reasons, firstly, no
prior permission to the said post was taken and
secondly, in view of the Government Resolution dated
2nd May 2012, there was ban for recruitment.
5. The learned Counsel appearing for the
petitioners invited our attention to the
(3) W.P. No. 3771 of 2016
communication dated 7th September 30.08.1990 (Exhibit
"B", page 15 of the compilation with the petition)
and submits that the petitioner has placed on record
the said communication showing that the petitioner is
a minority institution. He further invited our
attention to the letter dated 1st October 2015,
written by the Head Master of the petitioner -
Management, to respondent no.3 and submits that by
the said letter, permission from the said authority
was sought for advertising the post of Shikshan Sevak
and thereafter by advertisement dated 2nd November
2015, published in 'Aurangabad Bhaskar', 'Aurangabad
Times Urdu Daily' and 'Dainik Asia Express', the post
was advertised and after adhering to the procedure
for selection, appointment of petitioner no.2 has
been made.
6. The learned Counsel appearing for the
petitioners also invited our attention to the
unreported judgment of Division Bench of this Court,
in the case of Anjuman Ishaat-E-Taleem Trust, Aurangabad
Vs. The State of Maharashtra & another (Writ Petition
No. 5633 of 2013), decided on 7th October 2013, and
submits that in the said judgment, view is taken by
this Court, that the appointments by minority
institutions are not liable to be withheld resorting
to the Government Resolution dated 2nd May 2012.
Therefore, the learned Counsel for the petitioners
urged that the petition may be allowed.
(4) W.P. No. 3771 of 2016
7. On the other hand, the learned Addl.
Government Pleader appearing for the respondents,
submit that the petitioner has not placed on record
the certificate showing that the petitioner is a
minority institution. He further submits that the
reasons assigned in the impugned communication need
no interference and, therefore, the petition may be
rejected.
8. We have considered the submissions of the
Addl. Government Pleader.
learned Counsel for the petitioners and the learned
With their able
assistance, perused the pleadings in the petition,
grounds taken therein and annexures thereto.
9. So far first ground to reject the approval
is that prior permission of the Education Officer to
advertise the post has not been taken by the
petitioner. In that respect, the petitioner has
placed on record, copy of letter dated 1st October
2015, addressed to respondent no.3 by the petitioner
seeking permission to appoint Teacher for teaching
Marathi and History subjects. However, it appears
that the petitioner waited for more than four weeks
and then proceeded to advertise the post. Therefore,
upon perusal of the copy of the said letter at
Exhibit "C" (page 16 of the compilation with the
petition), it prima facie appears that the petitioner
(5) W.P. No. 3771 of 2016
- Management applied for permission to advertise the
post of Teacher. As no reply was received by the
petitioner - Management for a considerable period,
the petitioner - Management issued the advertisement
in the newspaper and after advertising the post,
appointments is made.
10. The second ground to deny the approval
cannot be sustained in view of the judgment of
Division Bench of this court in the case of Anjuman
Ishaat-E-Taleem Trust, Aurangabad (supra) and in
particular, para 9 thereof. Therefore, the impugned
order cannot be sustained.
11. In the result, the Writ Petition is partly
allowed.
(a) The impugned communication dated 3rd March 2016
(Exhibit "F", page 28 of the compilation with the
petition) is quashed and set aside.
(b) Respondent no.2 i.e. Education Officer
(Secondary) is directed to consider the proposal for
approval to the appointment of petitioner no.2
afresh. Respondent no.2 shall be entitled to verify
the minority status of petitioner no.1. However,
respondent no.2 shall not raise the same grounds
which are raised in the impugned communication while
considering the case of petitioner no.2 for approval
(6) W.P. No. 3771 of 2016
of his appointment. Respondent no.2 shall take
decision on the aforesaid proposal as expeditiously
as possible, however, on before 15th June 2016 and
communicate the decision so taken to the petitioners.
12. Rule is made absolute in the above terms.
There shall be no order as to costs.
13. Parties to act upon an authenticated /
certified copy of this judgment.
(SANGITRAO S. PATIL) (S.S. SHINDE)
JUDGE JUDGE
..........
puranik / WP3771.16
