Sacred Heart Society Through Its ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 1824 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO. 5177 OF 2017

1.     Sacred Heart Society, Opposite
       L.I.C. Office, King's Road
       Ahmednagar's Sacred Heart 
       Convent High School, 
       through its Manager 
       Sister Clare K. Peter,
       Age : 51 years, Occu.: Social Work,
       R/o King's Road, 
       Opposite Ahmednagar Court, 
       Ahmednagar

2.     Bavighar Shobhana Freddy,
       Age : 38 years, Occu.: Service,
       R/o Sacred Heart Soceity, Opposite
       L.I.C. Office,
       King's Road Ahmednagar

3.     Makasare Snehal Uttam,
       Age : 34 years, Occu.: Service,
       R/o Shanti Nagar, Solapur Road,
       New Water Tank, Ahmednagar

4.     Sayyed Bashir Ameen,
       Age : 29 years, Occu.: Service,
       R/o Plot No.85, Tiranga Chowk,
       Heena General Store, Vaishanav
       Nagar, Kedgaon, Ahmednagar

5.     Thomas Joel Joy,
       Age : 26 years, Occu.: Service,
       R/o H.No.44, Vijay Nagar,
       Alamgir Road, Bhingar,
       Ahmednagar

6.     Pandit Archana John,
       Age : 28 years, Occu.: Service,
       R/o Plot No.03, New Mukundnagar,
       Near Aqsa Ice Cream Parlor,
       Dutt Mandir, Mukundnagar,
       Ahmednagar



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7.     Makasare Priyanka Siomn,
       Age : 26 years, Occu.: Service,
       R/o Plot No.219, Bishap Loyed Colony,
       T.V. Centre Road, Savedi,
       Ahmednagar

8.     Tamboli Zeba Munna,
       Age : 23 years, Occu.: Service,
       R/o H.No.1972, Bepari Mohalla,
       Tamboli Building, Ahmednagar                                      PETITIONERS

       VERSUS


1.     The State of Maharashtra,
       through its Secretary,
       School Education and Sports,
       Department, Mantralaya,
       Mumbai-400032

2.     The Director of Higher Education,
       Government of Maharashtra,
       Central Building, 17,
       Dr. Babasaheb Ambedkar Road,
       Pune - 01

3.     The Deputy Director of Education,
       Pune Region, 17,
       Dr. Babasaheb Ambedkar Road,
       Pune - 411 001

4.     The Education Officer (Secondary),
       Zilla Parishad, Ahmednagar,
       District Ahmednagar                                               RESPONDENTS

                          ----
Mr. Abasaheb D. Shinde, Advocate for the petitioners
Mrs. A.V. Gondhalekar, A.G.P. for the respondents/State

                                            ----

                                        CORAM :    S.V. GANGAPURWALA AND
                                                   SANGITRAO S. PATIL, JJ.

DATE : 18th APRIL, 2017

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ORAL JUDGMENT (PER : S.V. GANGAPURWALA, J.) :

Rule. Rule made returnable forthwith. The

learned A.G.P. waives notice of Rule on behalf of all

the respondents. With the consent of the learned

counsel for the petitioners and the learned A.G.P.,

heard finally.

2. The proposal seeking approval to the

appointment of petitioner nos.2 to 8 has been rejected

by the Education Officer on the ground that surplus

teacher are not absorbed and while appointing petitioner

nos.2 to 8, Government Resolution dated 13th July, 2016

is not adhered to.

3. Mr. A.D.Shinde, the learned counsel for the

petitioners submits that petitioner no.1 is a Minority

Institution. The aspect of ban on recruitment does not

apply to Minority Institution. So also, Government

Resolution dated 13th July, 2016, in fact, gives

privilege to the Minority Institution the learned

counsel relies on Clause (6) of the said Government

Resolution.

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4. Mrs. A.V. Gondhalekar, the learned A.G.P.

submits that there are large number of surplus

candidates even of Minority Institution, waiting for

absorption. Unless those candidates are absorbed, no

fresh appointments could have been made.

5. We have considered Government Resolution dated

13th July, 2016, more particularly, Clause (6) thereof,

which is in vernacular language, reads thus:

",sfPNd lek;kstukl lnj laLFkk r;kj ulY;kl v'kk loZ vYila[;kd laLFkkauh dsysY;k in Hkjrhl egkjk"Vª [kktxh 'kkGkarhy deZpkjh ¼lsosP;k 'krhZ½ vf/kfu;e 1977 dye 5 ¼1½ e/khy rjrwnhe/kwu oxG.;kr ;kos- lnj rjrwn ek- loksZPp U;k;ky; o dkgh jkT;kaP;k mPp U;k;ky;kaP;k U;k;fuokM;kuqlkj Hkkjrh; jkT;?kVuk dye 30 ¼1½ P;k rjrwnhPl ck/kk ;sr vlY;kus lnj vYila[;kd laLFkkauh dsysY;k in Hkjrhl oS;Drhd ekU;rk ns.;kckcr mfpr dk;Zokgh djkoh-"

6. Upon reading the aforesaid clause, it is

manifest that if the Minority Institution does not

accede to absorb the surplus candidate, then the

Minority Institution cannot be compelled to absorbed

such a candidate. Even as per Section 3 of the

Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977, the Minority Institution

has a right to appoint some teachers of their choice.

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The ban on recruitment would not apply to the Minority

Institution.

7. Considering the above, the impugned order is

quashed and set aside. Respondent No.4-Education Officer

shall decide the proposal seeking approval to the

appointment of petitioner nos.2 to 8 afresh on its own

merits, expeditiously and preferably within six months

and shall not reject it on the ground on which the

impugned order is passed.

8. The Writ Petition is disposed of. Rule is made

absolute in the above terms. No costs.

       [SANGITRAO S. PATIL]                     [S.V. GANGAPURWALA]
              JUDGE                                     JUDGE


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