Bombay High Court
Miss. Seema Shitalaprasad Mishra vs The Principal, Hindi Junior ... on 23 March, 2017
Bench: Shantanu S. Kemkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6833 OF 2015
Miss. Seema Shitalaprasad Mishra
Age -44 years, Occ. - Service,
Add : Ramkripa Bldg.,
Rambaug Lane No.1, Kalyan (W)
District - Thane .. Petitioner
Versus
1 The Principal,
Hindi Junior College of Arts,
Science, Commerce & Vocational,
Managed by a Registered Minority
Trust known Hindi Prachar
Mandal, having its Trust Address
Situated at Joshi Baug,
Kalyan, District - Thane.
2 The District Vocational
Education Officer having its
Office situated at Vocational
Educational Institute (Girls)
Kopri Colony, Thane (E).
3 The Director (Vocational Education),
Having its office situated at
Directorate Vocational Educational
::: Uploaded on - 06/04/2017 ::: Downloaded on - 27/08/2017 20:43:36 :::
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and Training, Govt. of Maharashtra,
Mumbai - 400 001.
4 The Joint Director,
Vocational Education & Training,
Regional Office, Bandra (E),
Mumbai - 400 001.
5 Shri. Amarjeet Ramchandra Upadhyay
Age - 46 years, Occ.:- Service,
R/at. S-10, Tribhuvan Society,
Karnik Road, Kalyan (W).
6 The State of Maharashtra .. Respondents
......
Mr. A.A. Garge, Advocate for the Petitioner.
Mr. V.N.. Sagare AGP for Respondent Nos. 2 to 4 and 6.
......
CORAM : SHANTANU S. KEMKAR AND
PRAKASH D. NAIK, JJ.
DELIVERED ON : MARCH 23, 2017
JUDGMENT (Per PRAKASH D. NAIK, J.) :
Rule. Rule is made returnable forthwith.
2 By consent of respective parties, matter is taken up
for final disposal forthwith. None appears for respondent no.5,
though served.
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3 Petitioner has preferred this petition under Article
226 of the Constitution of India with a view to challenge the order
dated 22nd February, 2013, passed by respondent no.4 rejecting
the proposal of approval of the petitioner for the post of FTI
(MLT) in the respondent no.1 college.
4 The petitioner was appointed as Full Time Instructor
(Medical Lab Technician) in Vocational department with
respondent no.1 college on 13th June, 2005. She was appointed in
the place of respondent no.5 whose appointment was cancelled
vide communication dated 14th September, 2004 with
retrospective effect from 1995-96. It was also directed that the
salary paid to the respondent no.5 be recovered along with
interest.
5 Respondent no.5 filed an Appeal before the School
Tribunal challenging the termination order. The said Appeal was
dismissed. However, the School Tribunal has observed that the
respondent no.5 is not liable for refund of salary at the rate of 9%
p.a. and at the most institution may be liable as they had obtained
the service of respondent no.5. In pursuant to the aforesaid order,
the respondent no.5 preferred writ petition no.1758 of 2005
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before this Court challenging the adverse part of the order
passed by the School Tribunal. The management of the
respondent no.1 college also preferred writ petition no.3319 of
2005 challenging the order of the School Tribunal with regard to
refund of salary. Both the petitions are pending in this Court.
6 The petitioner executed an undertaking on 18th
October, 2006 stating that she had been appointed in place of
respondent no.5 and she would be bound by the decision of this
Court in writ petition no.1758 of 2005 which is preferred by the
respondent no.5.
7 Respondent no.1 forwarded a proposal for approval of
the petitioner for the aforesaid post to respondent no.4 on 27 th
November, 2006. The petitioner was called for verification of
proposal and hearing on 17th December, 2012 vide
communication dated 4th December, 2012. The petitioner and the
management of respondent no.1 attended the hearing on 17 th
December, 2012.
8 The management of respondent no.1 by letter dated
25th March, 2014 intimated respondent no.4 that the petitioner
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has not been granted approval although the hearing was
conducted on 17th December, 2012 and hence approval of the
petitioner is deemed to be approved as per the decision of High
Court in the case of Shailaja Ashokrao Walse Vs. The State of
Maharashtra & Ors. decided on 7th December, 1998. The
management also forwarded pay bills of the petitioner.
Respondent no.4 forwarded the letter dated 11th April, 2014 to
the respondent no.1 stating that the approval proposal of the
petitioner has been rejected on 22nd February, 2013. Respondent
no.4 also sent the order dated 22 nd February, 2013 rejecting the
approval of the petitioner.
9 The said proposal was rejected on the following
grounds:
(a) That, at the time of filling the post, the
advertisement is required to be issued at State
level. The advertisement is defective;
(b) No list of candidates was sought from the
employment exchange;
(c) Dispute regarding the subject post is
pending in the High Court;
(d) Candidates are not appointed as per directions
given in Government Resolution dated 6th February,
2012.
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10 Learned counsel appearing for the petitioner
submitted that there is apparent error in the impugned order
passed by respondent no.4. He submitted that the proposal was
forwarded in the year 2006 which was rejected on 22nd February,
2013 by placing reliance upon G.R. dated 6 th February, 2012. The
said G.R. cannot be applied retrospectively and that the same is
not applicable to the linguistic minority institutions under Article
30(1) and (2) of the Constitution of India. He further submitted
that pendency of the petitions preferred by the management and
respondent no.5 was no ground to reject the approval of the
petitioner for the said post. He submitted that at the most, the
approval could have been granted to the proposal of the
petitioner subject to outcome of writ petition no.1758 of 2005
which is pending in this Court. He submitted that the other
reasons mentioned in the impugned order are not indicated to the
petitioner's approval and, therefore, there is total non application
of mind on the part of respondent no.4 while passing the
impugned order. The learned counsel relied upon the decision of
this Court in Writ Petition No.5715 of 2014 delivered in the cae of
Hindi Prachar Mandal and Anr. Vs. The Joint Director (Vocational
Education) & Ors. dated 14th March, 2017. He submitted that the
issue involved in the present petition is covered by the said
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decision and this petition may be disposed of in accordance with
the said decision. Learned AGP did not controvert the submission
of the petitioner.
11 We have perused the documents on record. It is
pertinent to note that the proposal of approval of the petitioner
was forwarded to respondent no.4, on 27 th November, 2006. The
petitioner continued to discharge her duties with respondent
no.1. Respondent no.4 had belatedly taken a decision to reject the
said approval vide order dated 22nd February, 2013. The reliance
upon G.R. dated 6th February, 2012 is misplaced. Apart from the
fact that the said G.R. is not applicable to minority institutions,
the said G.R. cannot be made applicable retrospectively. Merely
because the petitions preferred by respondent no.5 and
respondent no.1 with regard to the appointment of the petitioner
and the order passed by the School Tribunal are pending before
this Court, the impugned order was not warranted. The petitioner
has been appointed on 13th June, 2005 and has continued to work
with respondent no.1. Although the Writ Petitions stated above
are pending in this Court, there are no interim order granting
stay to the impugned orders therein. The reasons assigned by
the respondent no.4 while rejecting the approval are uncalled for
and are misplaced.
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12 In the aforesaid decision in Writ Petition No.5715 of
2014, it was observed that Government Resolution dated 10 th
April, 1991 is not applicable to the minority institution and that
petitioner therein was qualified to be appointed for the subject
post. In the said decision the proposal for grant of approval to the
appointment of the petitioner therein for the post of full time
teacher for the course of Medical Laboratory Technician was
rejected. The said petitioner preferred Writ Petition No.3594 of
2009 challenging the rejection of approval by relying upon the
G.R. dated 10th April, 1991. The petition was disposed of by order
dated 21st January, 2010 by remitting the matter back to the
Deputy Director (Vocational Education), directing him to
reconsider the said petitions claim on its own merits in
accordance with law. It was observed that rejection of approval
on the basis of said G.R. Is not correct, as it is not applicable to
minority institution. The Deputy Director again rejected said
proposal. The petitioner therein challenged the said rejection by
preferring Writ Petition No.5044 of 2010. The order was set aside
on 23rd February, 2011 and once again the Deputy Director was
directed to give hearing to the said petitioner. Surprisingly, the
approval was again rejected by stating that there was defective
advertisement for the said post. Hence, the said petitioner once
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again preferred Writ Petition No.5982 of 2011. While disposing
of the said petition, this Court observed as follows:
"5 This very issue came up for consideration before
the same authority on the earlier occasion, but
vide his orders dated 7th June 2008 and
19thJune 2008, Respondent No.2 rejected the
proposal forwarded by Petitioner No.1 for grant
of approval to Petitioner No.2 as medical
laboratory technician. That view was taken
relying on the Government Resolution dated 10 th
April 1991. The Petitioners had challenged the
said decision of Respondents 1 and 2 by way of
Writ Petition 3594 of 2009. That Petition was
allowed in terms of order dated 21st January
2010 in which it has been plainly held that
paragraph 5 of the Government Resolution dated
10th April 1991 itself makes it amply clear that
the said Government Resolution has no
application to minority institution. This Court,
therefore, remitted the matter back to the
authority for reconsideration of the matter in
issue.
6 After remand, the Deputy Joint Director vide
impugned order dated 17th May 2011 has non-
suited the Petitioner and found that the
advertisement issued by the Petitioner was
defective, rendering the selection process as
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nontransparent and vitiated. For that, the Deputy
Director placed reliance on the circular dated
19th November 2003. What has been glossed over
by the authority is that the circular dated 19 th
November 2003 is founded on Government
Resolution dated 10th April 1991. On the earlier
occasion this Court has held that the restriction
specified in the said Government Resolution have
no application to minority institution. For that
very reason, the circular dated 19 th November
2003 will have no application to the Petitioner
institution which has been held to be minority
institution by the competent authority. So long as
the status of the Petitioner institution continues
to be minority institution and until the State
Government evolves a policy regarding minority
institution pertaining to matters in employment,
the question of answering the controversy on the
basis of Government Resolution dated 10th April
1991 or circular dated 19th November, 2003
does not arise. To that extent the decision of the
Deputy Joint Director will have to be set aside.
7 The other reason stated in the impugned
decision is that the management has not taken
any certificate from the Employment Exchange
regarding nonavailability of candidates or no
objection certificate in that regard. As aforesaid,
if the concerned Government Resolution
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necessitating obtaining of such certificate itself
has no application, the question of default
committed by the Petitioner in not obtaining such
certificate does not arise. In any event, the
Petitioner has asserted that even this condition
has been complied with without prejudice to the
rights and contentions of the Petitioners. It is not
necessary for us to examine this matter any
further.
8 Suffice it to observe that the basis on which the
Deputy Joint Director proceeded to answer the
controversy is completely untenable. For that
reason the impugned decision deserves to be set
aside and the Petitioners will have to be
relegated before the Deputy Joint Director of
Vocational Education and Training, Regional
Office for consideration of the proposal on its
own merits in accordance with law.
9 The learned AGP did submit that instead of
sending back the matter, this Court itself should
decide the matter in issue. We do not propose to
do that. As considering grant or non-grant of
proposal, is a matter within the discretion of the
appropriate authority to be answered on the
basis of extant regulation. The authority will
have to be satisfied that all reasonable
requirements applicable to minority institutions
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have been fulfilled by the Petitioner institution
before accepting the proposal of the Petitioner.
10 Accordingly, we dispose of this Petition with the
observation that the said authority will decide
the proposal expeditiously, preferably within
three months from today".
However, the approval was again rejected and hence
Writ Petition No.5715 of 2014 was preferred before this Court.
The Court allowed the said petition by order dated 14 th March,
2017. It was observed that the reasons stipulated by authority
are not applicable to minority institutions. There was no need to
issue advertisement and the petitioner therein had requisite
qualification for the post in question. The defective
advertisement is no ground for rejection of approval. Hence,
Court directed that approval for appointment of the said
petitioner may be granted.
13 It is not the case of the respondent no.4 that the
petitioner was not qualified to be appointed for the said post.
However, the approval was refused on the grounds enumerated in
the impugned order which are not tenable in law. In view of the
aforesaid circumstance, we are inclined to allow this petition and
grant the reliefs sought for by the petitioner.
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14 Hence, we pass the following order:
:: O R D E R ::
i The impugned order dated 22nd February, 2013,
passed by respondent no.4 rejecting the proposal of
approval of the petitioner for the post of FTI (MLT)
with respondent no.1 college is quashed and set
aside;
ii Respondent no.4 is directed to grant approval to
the appointment of the petitioner for the post of FTI
(MLT) with respondent no.1 with all consequential
benefits thereof;
iii The directions issued in clause (ii) of this
operative order are subject to outcome of Writ
Petition Nos.1758 of 2005 and 3319 of 2005 which
are pending in this Court;
iv The Writ petition stands disposed of.
(PRAKASH D. NAIK, J.) (SHANTANU S. KEMKAR, J.)
