Rajeshree Hanumantrao Rokade vs The State Of Maharashtra And ...
2018 Latest Caselaw 1121 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                         WRIT PETITION NO.7963 OF 2016 

          Rajeshree Hanumantrao Rokade,  
          Age 27 years, Occu. Service,  
          R/o. Narayan Nagar,  
          Near Maniyar Building, Latur,  
          Taluka and District Latur.       PETITIONER 

                     VERSUS 

          1.       The State of Maharashtra,  
                   Through its Secretary,  
                   Department of School Education 
                   & Sports, Mantralaya,  
                   Mumbai.  

          2.       The Education Officer [Primary],  
                   Zilla Parishad, Latur,  
                   Taluka and District Latur.  

          3.       Dnyandan Shikshan Prasarak Mandal,  
                   Vaibhav Nagar, Latur,  
                   Taluka and District Latur,  
                   Through its Secretary.  

          4.       Primary School,  
                   Vaibhav Nagar, Latur, 
                   Through its Headmaster.     RESPONDENTS

                                 ...
          Mr.S.S.Jadhavar, Advocate for the petitioner 
          Mr.S.Y.Mahajan,   Addl.G.P.for   respondent   no.1 
          - State. 
          Mr.P.R.Tandale, Advocate for respondent no.2 
          Mr.D.D.Sarwade, Advocate for respondent nos.3 
          and 4. 
                                 ...




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                          CORAM : S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.

Reserved on : 22.01.2018 Pronounced on : 30.01.2018

JUDGMENT: (Per S.S.Shinde, J.):

1] This Petition is filed with the

following prayers:

B] By issuing writ of certiorari or any other appropriate writ, order or direction, the order dated 19.03.2016 issued by respondent no.2, refusing approval to the appointment of the petitioner, may kindly be quashed and set aside;

C] By issuing writ of mandamus or any other appropriate writ, order or direction, the respondent no.2 may kindly be directed to accord approval to the appointment of the petitioner as a permanent Assistant Teacher in respondent no.4 school;

D] By issuing writ of mandamus or any other appropriate writ, order or direction, respondents may kindly be

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directed to pay unpaid salary to the petitioner as per the pay scale applicable to the post occupied by her;

2] It is the case of the petitioner

that the petitioner was appointed as a

Shikshan Sevak in respondent no.4 School with

effect from 22.12.2009. The appointment of

the petitioner as a Shikshan Sevak in

respondent no.4 School was approved by the

office of respondent no.2 on 17.08.2010. The

petitioner has completed period of Shikshan

Sevak [i.e.three years] on 21.12.2012. In

view of the provision of Section 5 of the

Maharashtra Employees of Private Schools

[Conditions of Service] Regulation Act, 1977

[for short 'Act of 1977'], the petitioner has

acquired deemed permanency in service. After

completion of period of Shikshan Sevak,

proposal was submitted in the office of

respondent no.2, seeking approval to the

appointment of petitioner on permanent basis.

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3] It is further the case of the

petitioner that on 17.12.2014, respondent

no.2 was pleased to reject the said proposal

on the ground that there were surplus

teachers in the school, and there was no

vacancy. Thereafter, the petitioner had

approached this Court in Writ Petition

No.11340/2015 [Rajashri Hanmant Rokde Vs. The

State of Maharashtra & others], challenging

order dated 17.12.2014, with further prayer

to direct the Education Officer to grant

approval to the appointment of the

petitioner. This Court was pleased to dispose

off the aforesaid Writ Petition, vide order

dated 18.01.2016, directing respondent no.2

to take final decision on the proposal dated

21.01.2015 submitted by the school.

4] Learned counsel appearing for the

petitioner submits that it is undisputed that

the petitioner was appointed as a Shikshan

Sevak w.e.f. 22.12.2009, and she has

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completed period of Shikshan Sevak of three

years. It is also undisputed that her

appointment as Shikshan Sevak was approved by

respondent no.2. In the light of completion

of period of Shikshan Sevak, the petitioner

was entitled for deemed permanency in

service, in view of the provisions of Section

5 of the Act of 1977. All these aspects of

the matter were mentioned in Writ Petition

No.11340/2015. Ignoring entitlement of

petitioner to get approval to her appointment

as an Assistant Teacher on permanent basis

after completion of period of Shikshan Sevak

[probation period], respondent no.2, vide

order dated 19.03.2016, has refused to grant

approval to the appointment of the petitioner

on the ground that sanctioned posts in the

said school were reduced. The reduction in

the number of sanctioned posts cannot be a

valid ground for refusal/denial of approval

to a permanent employee. Even in the case of

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reduction in the sanctioned posts, a

permanent employee can be declared as

surplus, and he/she should be accommodated on

another vacancy in view of Rule 26 and 27 of

the Maharashtra Employees of Private Schools

[Conditions of Service] Rules, 1981 [for

short 'Rules of 1981']. It is further

submitted that the Education Officer has lost

a sight of the provisions of Section 5 of the

Act of 1977, so also the provisions of Rules

26 and 27 of the Rules of 1981, and has

erroneously refused/denied the approval to

the appointment of the petitioner, vide

impugned order dated 19.03.2016. Therefore,

he submits that, the Petition deserves to be

allowed.

5] Learned counsel appearing for

respondent no.2 relying upon the averments in

the affidavit-in-reply of respondent no.2

submits that the petitioner has completed her

tenure as Shikshan Sevak on 21.12.2012, as

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per the staffing pattern of the said school

for the academic year 2012-13, the post of

Assistant Teacher is not vacant, and

therefore, the personal approval for the post

of the petitioner, cannot be granted. The

said order has been communicated to the

petitioner and the said school. There is no

arbitrariness and illegality on the part of

the respondent authority. It is submitted

that the order impugned in this Petition is

self-speaking, and cogent reasons are

assigned while refusing the approval to the

appointment of the petitioner.

6] We have heard the learned counsel

appearing for the petitioner, learned AGP

appearing for the respondent-State and its

Officials, and learned counsel appearing for

respondent no.2. We have also carefully

perused the pleadings in the Petition,

grounds taken therein, and the reply and

additional affidavit filed by respondent no.

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2, and all other documents placed on record

by the respective parties. Upon careful

perusal of the contents of the impugned

communication by the Education Officer

[Primary], Zilla Parishad, Latur i.e.

respondent no.2 to the petitioner, it appears

that, the approval to the appointment of the

petitioner was rejected on the ground that

the post of Assistant Teacher for the

academic year 2012-13 is not available in the

school, wherein the petitioner is serving.

The petitioner has placed on record copy of

the judgment and order passed by the

Presiding Officer, School Tribunal, Latur

Region, Latur in Appeal No.38/2013 [Rajashri

Hanmant Rokde Vs. The Secretary, Dnyandan

Shikshan Prasarak Mandal & others]. Upon

careful perusal of the said judgment, it

appears that the petitioner produced on

record roster maintained by the management on

23rd July, 2010 below Exh.4/7, whereby the

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petitioner came to be appointed on vacant

post. The appointment letter was also

produced on record before the Tribunal. The

caste certificate was also produced on

record. The extract of roster at serial

No.4/9, which was produced on record before

the School Tribunal, mentions vacancy of one

post of Scheduled Caste. The Tribunal has

observed that the aforesaid documents, which

were placed on record by the petitioner

herein, remained unchallenged. On the

contrary, it appears that the management

admitted the appointment of the petitioner on

clear, permanent and vacant post. It further

appears that there was termination of the

services of the petitioner by the management;

the stand taken by the management before the

Tribunal was that there is no permanent

approval to the services of the petitioner,

and therefore, her services were terminated.

The entire discussion in the judgment of the

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Tribunal revolves around the contentions

raised by the petitioner, and also reply

filed by the management. It appears that

though the Education Officer was made party;

neither his reply is on record, nor the

contentions are recorded by the School

Tribunal. In ultimate conclusion, the School

Tribunal held that the order of termination

dated 16th August, 2013 is quashed and set

aside. The Tribunal directed the respondent

management to reinstate the petitioner on

same post with continuity of service and back

wages. The management is directed to make

payment of back wages from their own funds.

7] Respondent nos.3 and 4 are served,

however, no reply has been filed on their

behalf. Respondent nos.3 and 4 have also not

placed on record any document / information

showing that they have challenged the

judgment and order passed by the School

Tribunal in Appeal No.38/2013 [Rajashri

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Hanmant Rokde Vs. The Secretary, Dnyandan

Shikshan Prasarak Mandal & others].

Admittedly, when respondent no.2 had granted

approval to the appointment of the petitioner

on honorarium of Rs.3,000/-, it appears that,

approval given by the Education Officer is

only for three years i.e. period of probation

with effect from 22.12.2009. In view of the

mandate of Section 5 of the Maharashtra

Employees of Private Schools [Conditions of

Service] Regulation Act, 1977, respondent

nos.3 and 4 were obliged to inform about

position of vacancy in the school to

respondent no.2. Thereafter, after receiving

the instructions from respondent no.2, the

advertisement ought to have been issued

advertising the post / posts. Upon perusal of

the documents placed on the record along with

Petition, a copy of the advertisement, if

any, has not been placed on record by the

petitioner or respondent nos.3 and 4. Even in

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the judgment of the Tribunal, it is not

mentioned that before appointing the

petitioner, as a matter of fact, the

Education Officer was informed about such

vacancy, and after receiving necessary

instructions from respondent no.2, the post

was advertised by respondent nos.3 and 4, and

after following proper procedure the

petitioner came to be appointed on the post

of Shikshan Sevak. It appears that the

management passed a Resolution and appointed

the petitioner. It further transpires from

the discussion in the judgment of the School

Tribunal that there was Resolution by the

respondent management on 23rd July, 2010,

whereby the petitioner came to be appointed

on the vacant post. It further appears that

the petitioner belongs to 'Chambhar' caste.

According to the petitioner, the said caste

is recognized as Scheduled Caste.

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8] The Full Bench of the Bombay High

Court at Principal Seat in the case of Ram

Avadh Mahel Pal Vs. Shivdutta Education Trust

& ors.1 in para 4 and 5 held thus:

4. By the Amending Act, Clause 24- A has been inserted in section 2 of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977. Under this provision the expression Shikshan Sevak is defined as follows:

(24-A) shikshan sevak means a member of base teaching cadre appointed on honorarium and subject to such terms and conditions as specified in the Government Resolution published in the Maharashtra Government Gazette, Extraordinary No.12, Part I Central sub-section, dated the 15th February, 2007, for eventual appointment as a teacher.

Section 5 [2] of the Act prior to its amendment read as follows:

1 2007 [6] Bom.C.R. 23

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Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub- sections [3] and [4], he shall, on completion of this probation period of two years, be deemed to have been confirmed.

As a result of the Amending Act, sub-section [2] of section 5 has been amended to insert the words except Shikshan Sevak after the words permanent vacancy. The following proviso has been inserted after sub-section [2] of section 5 :

Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.

Moreover, sub-section [2-A] has been inserted in section 5 which is to the following effect:

[2-A] Subject to the provisions of sub-section [3] and [4], shikshan sevak shall, on completion of the

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probation period of three years, be deemed to have been appointed and confirmed as a teacher.

5. Section 12 provides for the regularization of appointments of Shikshan Sevaks in the following terms:

12 [1] Notwithstanding anything contained in the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, all shikshan sevaks appointed in accordance with the provisions of the Government Resolution published in the Maharashtra Government Gazette, Extraordinary, No.12, Part I Central sub-section, dated the 15th February 2007, shall be deemed to have been appointed as base cadre shikshan sevak under the said Act, for appointment as teachers on completion of three years service as such shikshan sevak rendered here to before or heretoafter, as the case may be.

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[2] The terms and conditions prescribed by Government for appointment of shikshan sevak, by issuing Government Resolutions, from time to time, before the date of commencement of the Bombay Primary Education and the Maharashtra Employees of Private Schools [Conditions of Service] Regulation [Amendment] Act, 2007, shall continue to be in force unless modified or revoked.

9] The provisions of Section 5 of the

Maharashtra Employees of Private Schools

[Conditions of Service] Regulation Act, 1977

reads thus:

5. Certain obligations of Management of private schools.

(1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy:

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[Provided that, unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, [the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absoration in other schools and in the event of such person being available, the Management shall appoint that person in such vacancy.]

(2) Every person appointed to fill a permanent vacancy [except [Assistant Teacher (Probationary)] shall be on probation for a period of two years. Subject to the provisions

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of sub sections (3) and ( 4), he shall, on completion of this probation period of two years, be deemed to have been confirmed:

[Provided that, every person appointed as [Assistant Teacher (Probationary)] shall be on probation for a period of three years.]

[(2A) Subject to the provisions of sub-sections (3) and (4), [Assistant Teacher (Probationary)] shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.]

(3) If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice [or

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salary [or honorarium] of one month in lieu of notice].

(4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2).

[(4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1).]

(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy.

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The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.

10] On conjoint reading of the afore-

mentioned provisions, the proviso to Section

5 [1] of the Act of 1977 mandates that, if

there is vacancy in the school, before

proceeding to fill such vacancy, the

management of the School is obliged to

ascertain from the Education Officer whether

there is any suitable person available on the

list of the surplus person maintained by the

Education Officer, and if such person being

available, the Management shall appoint that

person in such vacancy.

In the facts of the present case, as

already observed, there is no material placed

on record to show that the afore-mentioned

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provision was followed before appointing the

petitioner. It is true that on completion of

period of probation i.e. three years

satisfactorily in the case of Shikshan Sevak,

by virtue of the provisions of sub-section

[2-A] of Section 5 of the Act of 1977, the

appointee, on completion of the probation

period of three years, be deemed to have been

appointed and confirmed as a teacher. In the

present case, issue involved is about refusal

of granting approval by the Education Officer

on completion of three years probationary

period by the petitioner.

11] As already observed, prima facie it

appears that there is non-adherence to the

proviso of sub-section [1] of Section 5 of

the Act of 1977. In the impugned order, the

Education Officer has given reason that there

is no vacancy available in respondent no.4

school. The approval is necessary for

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receiving salary grants, and in absence of

it, the concerned appointee, who has

completed three years of probation, would not

be entitled to receive salary grants from the

State Government / Zilla Parishad in absence

of such approval. As already observed, the

School Tribunal has ruled in favour of the

petitioner, and issued directions to

respondent nos.3 and 4 to pay salary to the

petitioner.

12] In the light of discussion herein

above and keeping in view the directions

issued by the School Tribunal to respondent

nos.3 and 4, in our opinion, direction sought

to respondent no.2, to accord approval to the

appointment of the petitioner as permanent

Assistant Teacher or to pay unpaid salary,

cannot be granted. However, in the light of

discussion in the foregoing paragraphs, we

are of the view that it is necessary to issue

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directions to respondent no.2 to reconsider

the case of the petitioner. In the result,

the impugned order dated 19.03.2016 is

quashed and set aside. Respondent no.2 is

directed to reconsider the case of the

petitioner for approval in accordance with

law and keeping in view the discussion herein

above.

13] It is needless to observe that, as

directed by the School Tribunal, respondent

nos.3 and 4 are under obligation to comply

with the directions issued by the School

Tribunal. We direct respondent no.2 to

reconsider the case of the petitioner for

approval, as expeditiously as possible,

however, within 8 weeks from today and to

communicate the said decision to the

petitioner, and also to respondent nos.3 and

4. Needless to observe that it is up to

respondent no.2 to offer reasonable

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opportunity of hearing to respondent nos.3

and 4 and also to the petitioner.

14] With the above observations, Writ

Petition stands disposed of.

              [K.K.SONAWANE]             [S.S.SHINDE]
                  JUDGE                      JUDGE  
          DDC