Bombay High Court
Smt. Rachana Mahendrasingh ... vs State Of Mah. Thr. Its Secty., And ... on 14 July, 2017
Bench: V.A. Naik
1407WP672.11-Judgment 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 672 OF 2011
PETITIONER :- Smt.Rachana Mahendrasingh Chavan, aged
about 35 years, r/o Dhanwantari Colony,
Gurukunj, District Amravati.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through its Secretary,
Department of Education, Mantralaya,
Mumbai 32.
2. Director of Education (Secondary and
Higher Secondary Education), Maharashtra
State, Pune.
3. The Deputy Director of Education, Amravati
Division, Amravati.
4. The Education Officer (Secondary), Zilla
Parishad, Amravati.
5. Education Officer (Continuing Education)
(Audit Education), Zilla Parishad, Amravati.
6. Akhil Bhartiya Shri Gurudeo Seva Mandal,
Gurukunj Ashram, Mozari, Tq. Teosa,
District Amravati.
7. The Head Master, Shri Gurudeo Vidya
Mandir, Gurukunj Ashram Mozari, Taluka
Teosa, District Amravati.
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Mr.R.S.Parsodkar, counsel for the petitioner.
Mrs.Mrunal Naik, Asstt.Govt.Pleader for the respondent Nos.1 to 5.
None for the respondent Nos.6 and 7.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 14.07.2017
1407WP672.11-Judgment 2/7
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition the petitioner challenges the orders of
the Deputy Director of Education and the Director of Education
cancelling the approval to the appointment of the petitioner on the post
of assistant teacher. The petitioner has also sought a direction against
the respondents to grant upgradation to the petitioner in the 25%
graduates quota.
2 The husband of the petitioner was in the employment of the
respondent Nos.6 and 7 and he expired in 1996, while in service. The
petitioner, who had secured a higher secondary school certificate was
appointed on the post of assistant teacher on compassionate ground.
The management sent the proposal of the petitioner to the Education
Officer (Secondary) for grant of approval to her appointment. By an
order dated 18/06/1997, the Education Officer (Secondary) granted
approval to the appointment of the petitioner on the post of assistant
teacher on compassionate basis on the condition that the petitioner
would secure the training qualification within five years. The petitioner
secured a diploma in visharad in 2002-2003 which is equivalent to a
graduates degree and also secured D.Ed. in the year 2002 and B.Ed. in
the year 2009. Certain complaints were made against the appointment
1407WP672.11-Judgment 3/7
of the petitioner and after verifying the complaints, a report was made
in favour of the petitioner. A second enquiry was conducted and it was
found that the petitioner was not entitled to be appointed on the post of
assistant teacher as she did not possess the requisite qualification. Also,
according to the respondents, the post was earmarked for the reserved
category and the petitioner belonged to the open category. In view of
the second enquiry report, by the impugned orders, the approval to the
appointment of the petitioner was cancelled. The petitioner has
challenged the said orders in the instant petition and has also sought
her upgradation of the petitioner in the 25% graduates quota.
3. Shri Parsodkar, the learned counsel for the petitioner,
submitted that the respondents were not justified in cancelling the
approval to the appointment of the petitioner after a period of 13 years.
It is submitted that if the appointment was improper, it was necessary
for the Education Officer to have rejected the proposal for grant of
approval to the appointment of the petitioner at the relevant time. It is
stated that on the basis of the order of approval, the petitioner secured
D.Ed. in the year 2002, visharad certificate in Hindi in the year 2003
and B.Ed. in the year 2009. It is submitted that for more than 10 years
the respondents did not take any action against the petitioner and
cancelled the approval to the appointment of the petitioner after a
1407WP672.11-Judgment 4/7
period of 13 years on the ground that the appointment was not properly
made. It is submitted that there was a backlog, the school could have
cleared the backlog at a subsequent stage and that cannot be a ground
for cancelling the approval after 13 years. It is submitted that in the
circumstances of the case, by taking a lenient view in the matter, the
impugned orders are liable to be set aside. It is stated that since the
petitioner has secured the qualifications, she may be upgraded in the
25% graduates quota.
4. Mrs. Naik, the learned Assistant Government Pleader
appearing for the respondent Nos.1 to 5, has supported the orders of
the education authorities. It is submitted that the appointment of the
petitioner was wrongly made on the post of assistant teacher though
she was not qualified to hold the post and there was no vacancy for the
open category candidates. It is submitted that after the complaints were
received against the petitioner, an enquiry was conducted and the
approval to the petitioner's appointment was cancelled.
5. In the circumstances of the case, it would be necessary to
quash and set aside the impugned orders, so that the order granting
approval to the appointment of the petitioner would revive. The
husband of the petitioner was working with the respondent Nos.6 and 7
1407WP672.11-Judgment 5/7
and he expired while in service. The petitioner was appointed as an
assistant teacher on compassionate ground. We have doubt whether an
appointment to the post of assistant teacher could have been made on
compassionate basis. The petitioner was also not qualified to hold the
post of assistant teacher at the relevant time in the year 1996-97.
However, when the proposal of the petitioner was sent by the
management to the Education Officer for granting approval to her
appointment, the Education Officer granted approval to her
appointment vide order dated 18/06/1997. In the said approval order,
the petitioner was permitted to secure the requisite qualification within
five years. The petitioner has secured the training qualifications
immediately after the completion of the period of five years. No action
was taken against the petitioner for nearly 13 years when on the basis
of the complaints made by third parties, an enquiry was conducted and
the approval to the appointment of the petitioner was cancelled by the
impugned order dated 29/03/2010. Though the petitioner would not be
entitled to claim the upgradation in 25% graduates quota in the
circumstances of the case, the petitioner would be entitled to the other
relief claimed. It would be necessary to quash and set aside the
impugned orders as the approval was granted to the appointment of the
petitioner as early as in the year 1997. The petitioner continued to
work as an assistant teacher with the respondent Nos.6 and 7 for nearly
1407WP672.11-Judgment 6/7
13 years when her approval was cancelled by the impugned orders. In
pursuance of the conditional approval granted to the appointment of
the petitioner, the petitioner has secured the requisite qualifications. In
the circumstances of the case, since the respondent-education officer is
equally at fault in not considering the proposal of the petitioner in
accordance with law at the relevant time, he cannot be permitted to
cancel the approval of the petitioner after a period of 13 years, specially
when she is qualified to hold the post. If there was a backlog at the
relevant time, it was necessary for the education officer to have rejected
the proposal of the petitioner at the relevant time. The proposal could
have been rejected in 1996-97 as the appointment of a candidate
cannot be made on the post of assistant teacher on compassionate
ground, more so, when the candidate is not qualified to hold the post.
However, the education officer granted approval to the appointment of
the petitioner nearly 20 years back. The petitioner is working as an
assistant teacher for 20 years. Though the impugned orders of the
education authorities could be technically correct, due to the fact that
the approval is sought to be cancelled after a period of 13 years, when
there are no complaints against the services of the petitioner and the
petitioner is duly qualified to hold the post, the impugned orders are
liable to be quashed and set aside. In the peculiar facts of the case, the
impugned orders cannot be sustained. Though we have quashed the
1407WP672.11-Judgment 7/7
impugned orders, the petitioner would not be entitled to upgradation in
25% graduates quota, in the circumstances of the case.
6. Hence, for the reasons aforesaid, the writ petition is partly
allowed. The impugned orders are quashed and set aside. Rule is made
absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
