Bombay High Court
Seema Lahu Kolhe vs The State Of Maharashtra And ... on 18 November, 2016
Bench: R.M. Borde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5967 of 2016
Smt. Seema Lahu Kolhe,
Age : 33 years, Occu. Service,
St. Mary's High School,
Wahegaon, Tq. Gangapur,
District Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra,
through its Secretary,
School Education Department,
Government of Maharashtra,
Mantralaya, Mumbai - 32
2. The Education Officer
(Secondary),
Zilla Parishad, Aurangabad
3. St. Mary's High School,
Wahegaon, Tq. Gangapur,
District Aurangabad,
through its Head Mistress RESPONDENTS
----
Mr. C.K. Shinde, Advocate for the petitioner
Mr. A.S. Shinde, A.G.P. for respondent nos.1 to 2
----
CORAM : R.M. BORDE AND
SANGITRAO S. PATIL, JJ.
DATE : 18th November, 2016
ORAL JUDGMENT (PER : R.M. BORDE, J.) :
Rule. Rule made returnable forthwith. With
the consent of the parties, the petition is heard
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finally at the admission stage.
2. The petitioner is objecting to the order dated
3rd May, 2016, passed by respondent No. 2 - Education
Officer (Secondary), Zilla Parishad, Aurangabad,
refusing to grant approval to the appointment of the
petitioner as Librarian in respondent No. 3 - School.
3. The petitioner came to be appointed as
Librarian in respondent No. 3 - Minority Institute in
the year 2014. A proposal was sent for grant of approval
to the appointment of the petitioner. However, the same
has been turned down on the ground referable to
Government Resolution dated 2nd May, 2012 and Government
Circular dated 12th February, 2015 as well as on the
ground that the approval cannot be accorded unless the
surplus employees from the cadre are absorbed. The
petitioner contends that the Government Resolution
referred in the impugned order does not apply to the
Minority Institution and further that the Minority
Institution cannot be compelled to accommodate the
surplus employees. The reliance is placed on the
judgment dated 16th July, 2012 delivered in Writ Petition
No. 116 of 2012, to which one of us (R.M. Borde, J.) is
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a member, in which it has been observed in paragraph
Nos. 13 and 14 as follows :
"13. Considering the law laid down by the Supreme
Court in the judgments cited supra, it is clear
that the law which interferes with a minority's
choice of qualified teachers or its disciplinary
control over teachers and other members of the
staff of the institution would be void as being
violative of Article 30(1). It is, of course,
permissible for the State and its educational
authorities to prescribe the qualifications of
teachers, but once the teachers possessing the
requisite qualifications are selected by the
minorities for their educational institutions,
the State would have no right to veto the
selection of those teachers. The right to have
the teaching conducted by teachers appointed by
the management after an overall assessment of
their outlook and philosophy is perhaps the most
important facet of the right to administer an
educational institution. So long as the
persons chosen have the qualifications
prescribed by the University, the choice must
be left to the management and this is facet of
fundamental right of the minorities to
administer the educational institutions
established by them. It is made clear by the
judgments of the Supreme Court, cited above, that
making appointment of teacher is a part of
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regular administration and management of the
educational institution and, therefore,
minority institutions have right to appoint a
teacher selected and chosen by them and nobody
can force upon the minority institutions to
appoint a particular person who is not selected
by it as a teacher.
14. The directions issued by the Grievance
Committee to the Education Officer in respect
of sending surplus teachers for being
accommodated by the minority institution and
mandate requiring the managements of minority
institutions to absorb such teachers and
prescription of consequences for breach of the
directives issued by the Grievance Committee, is
beyond the scope of interference in view of the
rights guaranteed to the minority institutions
under Article 30(1) of the Constitution."
4. In the instant petition, the undisputed fact is
that the institution of which the petitioner is an
employee, is a Minority Institution and as has been held
by this Court in its judgment in Writ Petition No.3707
of 2013, relying on the decision in Writ Petition No.
116 of 2012, decided on 16th July, 2012 that the
appointments by Minority Institution are not liable to
be withheld resorting to Government Resolution dated 2nd
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May, 2012, detention of proposal of the petitioner
seeking approval to his appointment, is incompatible
with the legal position, particularly having regard to
the decision of the Supreme Court and the High Court. In
this view of the matter, the order dated 3rd May, 2016,
impugned in this petition, is not maintainable and
deserves to be quashed and set aside and it is
accordingly quashed and set aside.
5.
Respondent no. 2 - Education Officer
(Secondary), Zilla Parishad, Aurangabad is directed to
reconsider the proposal for according approval to the
appointment of the petitioner on the post of Librarian
in accordance with law and without being detained by
Government Resolution dated 2nd May, 2012. The decision
on the said proposal shall be taken within a period of
eight weeks from today.
6. Rule is made absolute in the above terms with
no order as to costs.
[SANGITRAO S. PATIL] [R.M. BORDE]
JUDGE JUDGE
npj/wp5937-2016
