Bombay High Court
Manoharbhai Shikshan Prasarak ... vs State Of Maharashtra, Through ... on 15 November, 2016
Bench: V.A. Naik
WP 5913/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5913/2016
1. Manoharbhai Shikshan Prasarak Mandal,
Armori, district Gadchiroli.
Through its President.
2. Mahatma Gandhi kanya Vidyalaya,
Through its Head Master, Armori,
District Gadchiroli.
3. Gaurao s/o Ishwar Narnaware,
Aged about 25 years, Resident of
Waghala-Bardi, Armori,
district Gadchiroli.
ig PETITIONERS
.....VERSUS.....
1. State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Nagpur Division, Nagpur.
3. The Education Officer (Secondary),
Zilla Parishad, Gadchiroli. RESPONDENTS
Shri Anand Parchure, counsel for the petitioners.
Ms T. Khan, Assistant Government Pleader for the respondent nos.1 to 3.
CORAM :SMT. VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
TH NOVEMBER, 2016.
DATE : 15
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
RULE. Rule made returnable forthwith. The petition is heard
finally at the stage of admission with the consent of the learned counsel
for the parties.
WP 5913/16 2 Judgment
2. By this writ petition, the petitioners challenge the
order of the Education Officer (Secondary), Zilla Parishad,
Gadchiroli, dated 30.08.2016 rejecting the proposal for grant of
approval to the appointment of the petitioner no.3 on the post of
Assistant Teacher.
3. The petitioner nos.1 and 2 sought the permission of the
Education Officer vide communication, dated 22.03.2012 to fill the post
of Assistant Teacher. The Education Officer granted permission to the
petitioner nos.1 and 2 to appoint an Assistant Teacher by the order
dated 19.06.2012. It is the case of the petitioners that the petitioner
nos.1 and 2 followed the due procedure for selection and appointed the
petitioner no.3 on the post of Assistant Teacher on 19.07.2012. Since the
proposal for grant of approval to the appointment of the petitioner no.3
was not decided by the Education Officer, the petitioners had filed Writ
Petition No.4682 of 2016. This Court had directed the Education Officer
to decide the proposal of the petitioners within a time frame. By the
impugned order dated 30.08.2016, the Education Officer has rejected the
proposal of the petitioners.
4. Shri Parchure, the learned counsel for the petitioners,
submitted that the appointment of the petitioner no.3 on the post of
WP 5913/16 3 Judgment
Assistant Teacher was made long back in July-2012 after seeking the
necessary permission from the Education Officer on 19.06.2012. It is
stated that the due procedure for selection was followed by the petitioner
nos.1 and 2, and the petitioner no.3 was appointed on the post of
Assistant Teacher. It is stated that since the education authorities had
permitted the petitioner nos.1 and 2 to make the appointment of an
Assistant Teacher by the order dated 19.06.2012, it would not be
permissible for the Education Officer to reject the proposal of the
petitioner no.3 on the ground that at the relevant time there was a ban on
appointments. It is stated that a similar issue came up for consideration
before this Court in several writ petitions and this Court has allowed the
writ petitions and has set aside the order of the Education Officer refusing
to grant approval solely on the ground of imposition of the ban. It is
stated that merely because some teachers are declared excess in view of
the staff justification for the year 2015-16, the Education Officer could
not have rejected the proposal of the petitioners for approval to the
appointment of the petitioner no.3 on the post of Assistant Teacher.
5. Ms T. Khan, the learned Assistant Government Pleader
appearing for the Education Officer does not dispute that permission was
granted to the petitioners by the education authorities to fill the post of
Assistant Teacher by the order dated 19.06.2012. It is stated that there
WP 5913/16 4 Judgment
was a ban on making appointments with effect from 02.05.2012 and,
hence, the Education Officer has rightly refused to grant approval to the
appointment of the petitioner no.3 on the post of Assistant Teacher. It is
stated that the proposal of the petitioner nos.1 and 2 is not decided on
merits and the same is rejected because of the existence of the ban at the
relevant time and because of the declaration of some surplus teachers as
per the staff justification for the year 2015-16. It is fairly admitted that
the Education Officer has not considered whether the petitioner no.3 was
qualified to hold the post and whether the appointment of the petitioner
no.3 was made by following the due procedure for selection.
6. On hearing the learned counsel for the parties, it appears that
the Education Officer was not justified in rejecting the proposal of the
petitioner nos.1 and 2 for grant of approval to the appointment of
the petitioner no.3 on the post of Assistant Teacher. The petitioner nos.1
and 2 had applied for permission to fill the post of Assistant Teacher on
22.03.2012, before the imposition of the ban. The ban for making
appointments appears to have been imposed by the State Government
with effect from 02.05.2012. It further appears that being oblivious of
the government decision imposing ban, dated 02.05.2012, the Education
Officer granted permission to the petitioner nos.1 and 2 to fill the post of
Assistant Teacher by the order dated 19.06.2012. After the permission
WP 5913/16 5 Judgment
was secured, it is the case of the petitioner nos.1 and 2 that they followed
the due process of selection and appointed the petitioner no.3 on the post
of Assistant Teacher. We do not find any illegality in the action on the
part of the petitioner nos.1 and 2 in appointing the petitioner no.3 on the
post of Assistant Teacher after securing the requisite permission from the
Education Officer on 19.06.2012. This Court has time and again held, as
submitted on behalf of the petitioners, that the approval to the
appointment of an employee in a private school cannot be rejected solely
due to the imposition of the ban on appointments if there is a permission
by the Education Officer to fill the concerned post. In the instant case,
the post of Assistant Teacher was filled after securing the permission from
the Education officer on 19.06.2012. In the aforesaid set of facts, it
cannot be said that the Education Officer was justified in rejecting the
proposal of the petitioner nos.1 and 2 on the ground of ban or on the
ground that some teachers have been rendered surplus in view of the staff
justification for the year 2015-16. It was necessary for the Education
Officer to have considered the case of the petitioner no.3, on merits and
granted approval to the appointment of the petitioner no.3 if the
petitioner no.3 was qualified for being appointed on the post of Assistant
Teacher on the relevant date and if the petitioner nos.1 and 2 had
followed the due procedure for selection.
WP 5913/16 6 Judgment
7. Hence, for the reasons aforesaid, the writ petition is partly
allowed. The impugned order dated 30.08.2016 is quashed and set aside.
The Education Officer is directed to decide the proposal of the petitioner
nos.1 and 2 for grant of approval to the appointment of the petitioner
no.3 on the post of Assistant Teacher on merits in accordance with law,
within three months.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
