Bombay High Court
Kumar Hanumant Gosavi vs The State Of Maharashtra And Ors on 16 August, 2017
Bench: Anoop V. Mohta
wp-5328-17.doc
Ladda(PS).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
(1) WRIT PETITION No. 5328 of 2017
Ajit Shankar Ubale .. ..Petitioner.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(2) WRIT PETITION No. 1748 of 2017
Shri Uttam Gopal Bhoye .. ..Petitioner.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(3) WRIT PETITION No. 1760 of 2017
Shri Dilip Magan Desai .. ..Petitioner.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(4) WRIT PETITION No. 1761 of 2017
Shri Devaji Dawalya Vasave .. ..Petitioner.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(5) WRIT PETITION No. 1764 of 2017.
Shri Bhoye Maharu Tukaram & Anr .. ..Petitioners.
Vs
The State of Maharashtra & Ors .. ..Respondents.
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ALONG WITH
(6) WRIT PETITION No. 1763 of 2017.
Shri Vipul Dasubhai Gavit & Ors .. ..Petitioners.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(7) WRIT PETITION No. 2078 of 2017.
Shweta Vilas Pundpal .. ..Petitioner.
Vs
The State of Maharashtra & Ors ..Respondents.
ALONG WITH
(8) WRIT PETITION No. 5315 of 2017
Kumar Hanumant Gosavi .. ..Petitioner.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(9) WRIT PETITION No. 5307 of 2017
Trupti Girish Vasave .. ..Petitioner.
Vs
The State of Maharashtra & Ors .. ..Respondents.
ALONG WITH
(10) WRIT PETITION No. 5308 of 2017
Shri Yogendra Mahadu Bhoye .. Petitioner.
Vs
The State of Maharashtra & Ors .. Respondents.
Mr. Sachin B. Thorat, Advocate for the petitioners.
Mr. Dilip Bodkhe in W.P. No.5315 and 5328 /17 Advocate for the
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petitioners.
Mr. Chetan Patil, Advocate in W.P. No. 2078/2017.
Mrs. Rupali Shinde, A.G.P. for the State.
Mrs. Kavita Solanke, A.G.P. for the State.
CORAM : ANOOP V. MOHTA AND
SMT. BHARATI H.DANGRE, JJ.
DATE : 16th August, 2017
FINAL ORDER :-
1) Rule. Rule is made returnable forthwith. Heard finally by
consent of parties.
2) In the above group of petitions, the petitioners have
challenged the order/communication of the Education Officer,
thereby refusing approval to the appointment of the petitioner. The
grievance of the petitioners in all the writ petitions is that they were
appointed as Shikshan Sevaks after following due procedure and on
ascertainment of their qualifications and the appointments were for
a period of three years on monthly fixed salary. Thereafter, the
petitioners proposals were forwarded to the Education Officer for
grant of approval along with necessary documents. The proposals for
approval were pending for considerable time with the Education
Officer who ultimately rejected the approval in view of the
Government Resolution dated 2nd May, 2012 by which the State had
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imposed a ban on recruitment of teachers and as such appointment
made by the Management were termed as illegal. By the said
Government Resolution the State has imposed a ban on the post of
recruitment of assistant teachers until such time of hundred per cent
absorption of surplus teachers. However, subsequently on 4 th
September, 2013 the ban has been relaxed by the State Government
in relation to subject of English, Mathematics and Science.
3) The petitioners have challenged the rejection and/or refusal of
approval on the said ground contending that they were qualified for
the post of Shikshan Sevaks and the approval has been refused only
on the ground that the appointments have been made after issuance
of Government Resolution dated 2nd May, 2012. Similar issue was
raised before this Hon'ble Court in a bunch of connected writ
petitions were dealt with by a Division Bench of this Court (Coram:
B.R.Gavai & Riyaz I. Chagla, JJ) on 10th July, 2017 was pleased to
allow the writ petition and has quashed and set aside the impugned
order after referring the judgment and order passed in Writ Petition
No. 10580 of 2015 with W.P. No. 1145 of 2016 decided on 9 th March,
2017. The paragraphs 6, 7 and 8 of the said judgment are
reproduced below for ready reference :-
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6. We find that if the Education Officers do not send
the surplus teachers within reasonable time, the
schools can not be expected to run without teachers
for years together. Undisputedly, finding it difficult
to send surplus teachers for the subjects of English,
Maths and Science, the State Government itself has
relaxed the rigour of government resolution dated
2nd May 2012 vide GR dated 4th September 2013.
It could further be seen that State Government also
vide that GR relaxed the ban where the selection
process has already commenced on 6th September
2012.
7. In that view of the matter, we find that in
view of subsequent GRs and in view of the view
taken by Division Bench of this Court, the ban would
not be applicable to three Writ Petition No. 10580 of
2015 with 1145 of 2016 decided on 9th March
2017. categories, one where the recruitment process
is already commenced prior to GR dated 2nd May
2012, second, in so far as the appointment made for
the subjects of English, Maths and Science are
concerned and third, where the recruitment is made
to fulfill the backlog of reserved category
candidates.
8. We find that at the same time the State should
take into consideration, that such situations arise on
account of inaction of its own Education Officers. If
Education Officers act promptly and ensure that the
surplus teachers are absorbed in the schools
wherever there is a vacancy, such a situation would
not arise. However, as already observed hereinabove
on account of inaction on the part of Education
Officers, right which has become fundamental, in
view of amendment to the constitution by which
Article 21A brought in the Constitution, cannot be
permitted to be frustrated. The schools are not
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expected to run without teachers for years together.
The State would always be at liberty to take
appropriate action against its officers, on account of
who's inaction the State exchequer will be burdened.
4) In the result, the said Division Bench was pleased to
quash and set aside the impugned order and directed to the
Respondents - Education Officers to examine independent cases and
grant approval to each of the teachers who fall in the following three
categories:-
(a) Where the recruitment process is already
commenced prior to GR dated 2nd May 2012;
(b) where the appointments made for filling
up vacancies in English, Mathematics and
Science;
(c) where the recruitment is made to fulfil the
backlog of reserve categories candidates;
10. The necessary orders after hearing the
management and teachers be passed within a
period of six weeks from today.
5) The said Division Bench also observed that upon grant of
approval necessary steps would be taken for paying salary to such
teachers who are found eligible and salaries would be paid to them within
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a period of 12 weeks from the date of the order.
6) It was also directed that necessary orders after hearing the
management and teachers be passed within a period of six weeks from
today.
7) The issue involved in the present writ petitions is clearly
governed by the order passed by the Division Bench in Writ Petition
No. 8587 of 2016 and other connected matters decided on 10 th July,
2017. Hence, the following order:-
ORDER.
1) The Writ Petitions are allowed
and impugned orders are quashed and set
aside. The respondents-Education officers are
directed to decide the case of the petitioners
by affording opportunity of hearing to the
Management and the Petitioners within a
period of six weeks and the Education Officer
who will examine as to whether the
recruitment process is commenced prior to GR
dated 2nd May, 2012 and whether the
appointments were made for filling up
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vacancies in English, Mathematics and Science
and also whether the recruitment is made to
fulfill the backlog of reserved categories
candidates .
2) Upon grant of approval necessary
steps would be taken for payment of salary to
the petitioners who are found eligible and the
salary would be paid within a period of 12
weeks from the date of this order. All the
concerned to act on an authenticated copy of
this order.
(SMT. BHARATI H.DANGRE,J) (ANOOP V. MOHTA,J)
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