Bombay High Court
Yogesh Dnyandev Pawar vs The Secretary Shivaji Shikshan ... on 12 August, 2021
Bench: R. G. Avachat
Writ Petition No.12811/2018 with
connected petitions
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12811 OF 2018
Zelam Jayram Tarawade
Age 36 years, Occu. Service,
presently nil, R/o Wambori,
Tq. Rahuri, Dist. Ahmednagar ... PETITIONER
VERSUS
1. The Secretary,
Shri Shivaji Shikshan Prasarak
Mandal, Shri Shivaji Nagar,
Tq. Rahuri, Dist. Ahmednagar
2. The Head Master,
Aadarsh Vidyalaya,
Brahmani, Post Umbare,
Tq. Rahuri, Dist. Ahmednagar
3. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar ... RESPONDENTS
.......
Shri V.S. Panpatte, Advocate for petitioner
Shri V.P. Patil, Advocate for respondents No.1 and 2
Shri Y.G. Gujarathi, A.G.P. for respondent No.3.
.......
WITH
WRIT PETITION NO.12812 OF 2018
Shri Ram Ashok Kavane
Age 32 years, Occu. Service,
presently nil, R/o Takali Miya
Tq. Rahuri, Dist. Ahmednagar ... PETITIONER
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VERSUS
1. The Secretary,
Shri Shivaji Shikshan Prasarak
Mandal, Shri Shivaji Nagar,
Tq. Rahuri, Dist. Ahmednagar
2. The Head Master,
Sant Tukaram Vidyalaya,
At Post Baragaon Nandur,
Tq. Rahuri, Dist. Ahmednagar
3. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar ... RESPONDENTS
.......
Shri V.S. Panpatte, Advocate for petitioner
Shri V.P. Patil, Advocate for respondents No.1 and 2
Shri Y.G. Gujarathi, A.G.P. for respondent No.3.
.......
WITH
WRIT PETITION NO.12815 OF 2018
Shri Yogesh Dnyandev Pawar
Age 36 years, occu. Service,
presently nil, R/o At Post Kesapur,
Tq. Rahuri, Dist. Ahmednagar ... PETITIONER
VERSUS
1. The Secretary,
Shri Shivaji Shikshan Prasarak
Mandal, Shri Shivaji Nagar,
Tq. Rahuri, Dist. Ahmednagar
2. The Head Master,
Keshav Govind Vidyalaya,
At Post Belapur Khurd,
Tq. Shrirampur, Dist. Ahmednagar
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3. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar ... RESPONDENTS
.......
Shri V.S. Panpatte, Advocate for petitioner
Shri V.P. Patil, Advocate for respondents No.1 and 2
Shri Y.G. Gujarathi, A.G.P. for respondent No.3.
.......
WITH
WRIT PETITION NO.12818 OF 2018
Shri Tushar Arun Dhus
Age 34 years, occu. Service,
presently nil, R/o At Post Devlali Pravara,
Tq. Rahuri, Dist. Ahmednagar ... PETITIONER
VERSUS
1. The Secretary,
Shri Shivaji Shikshan Prasarak
Mandal, Shri Shivaji Nagar,
Tq. Rahuri, Dist. Ahmednagar
2. The Head Master,
Sant Dnyaneshwar Madhyamik & Uccha
Madhyamik Vidyalaya, Taklimiya,
Tq. Rahuri, Dist. Ahmednagar
3. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar ... RESPONDENTS
.......
Shri V.S. Panpatte, Advocate for petitioner
Shri V.P. Patil, Advocate for respondents No.1 and 2
Shri Y.G. Gujarathi, A.G.P. for respondent No.3.
.......
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Writ Petition No.12811/2018 with
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CORAM : R. G. AVACHAT, J.
Date of reserving judgment : 12th February, 2021
Date of pronouncing judgment : 12th August, 2021
JUDGMENT:
Rule. Rule made returnable forthwith and taken
up for final disposal with the consent of learned counsel for
the parties.
2. This judgment governs disposal of these four Writ
Petitions since common question of facts and law arise
therein.
Respondent No.1 herein is an educational
institution (for short institution). Respondent No.2 is the
Head Master of one of the schools run by the institution.
Respondent No.3 is the Education Officer (Secondary), Zilla
Parishad, Ahmednagar.
The institution issued an advertisement in the
daily "Gavkari", dated 29/11/2014 for filling up posts of
Shikshan Sevak in its various schools, primary, secondary and
higher secondary as well. In response to the said
advertisement, the petitioners in these Writ Petitions made
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applications for the posts of Shikshan Sevak. The petitioners
including other applicants were interviewed on 7/12/2014.
The petitioners were selected and, therefore, issued with
appointment orders dated 8/12/2014. The petitioners joined
their respective posts the same day.
It is also the case of the petitioners that the
institution, before publishing the advertisement in the daily
dated 29/11/2014, had applied to the Education Officer -
respondent No.3 for permission to issue advertisement and fill
up vacant posts. The services of the petitioners all of a
sudden came to be terminated w.e.f. 8/10/2016 in spite of
the petitioners to have rendered their services satisfactorily.
The reason for termination of their services is, the Education
Officer not accorded approval to their appointments. The
petitioners, therefore, preferred appeals to the School
Tribunal, Pune Region, at Solapur. The Presiding Officer of the
School Tribunal, by her judgment and orders dated
27/4/2018, dismissed the appeals. The petitioners have
therefore, been before this Court in these Writ Petitions with
the following main prayers :
Prayer clauses (B) and (C) from Writ Petition
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No.12811/2018 are reproduced hereunder :
(B) The termination order dated 7/10/2016 issued by
the respondent No.1 at Exhibit 'H', so also the
judgment and order dated 27/4/2018 passed by the
Presiding Officer, School Tribunal, Pune Region,
Solapur in Appeal No.64/2016 at Exhibit 'J' may
please be quashed and set aside.
(C) The respondent Nos.1 and 2 may please be directed
to reinstate the petitioner in service in the
respondent no.2 - School with continuity of service
and back-wages and further the respondent No.3
may please be directed to grant approval to the
services of the petitioner and release arrears of
salary of the petitioner.
3. Heard. Shri V.S. Panpatte, learned counsel for the
petitioners would submit that, the petitioners had been
appointed by following due process. The institution had time
and again requested the Education Officer to grant it
permission to fill up the vacant posts. Due to many of the
posts of Shikshan Sevak having been vacant, it adversely
affected interest of the students. The institution, therefore,
issued public advertisement, interviewed the candidates and
since the petitioners were found to be meritorious, they came
to be selected. According to learned counsel, due to change
in the management of the school, the petitioners had to
suffer. The Executive Director, Dr. B.B. Tanpure Co-operative
Sugar Factory Ltd., without having any authority, issued
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orders terminating the services of the petitioners. According
to him, the Government Resolution dated 2/5/2012 imposing
ban on recruitment of teaching and non-teaching staff had no
application for filling up the posts in the subjects of Science,
Mathematics and English. The said ban has also no
application for filling up the posts reserved for SC, ST and
OBC categories etc. In support of his submission, the learned
counsel has relied on some authorities :
4. An extract from inward register maintained in the
office of Zilla Parishad, Ahmednagar has also been placed on
record to indicate the Zilla Parishad to have had received
request for filling up vacant posts. According to learned
counsel, the petitioners who have been duly recruited, shall
not suffer for the change in the management of the institution
and the stand taken by the Education Officer contrary to the
facts and circumstances of the case. According to learned
counsel, the Presiding Officer erred in dismissing the appeals.
He, therefore, urged for allowing the Writ Petitions.
5. Both the institution and the Education Officer
resisted the appeals before the Tribunal. It was their case
that the institution, without obtaining prior permission of the
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Education Officer, published the advertisement in the daily.
The institution represented in the advertisement that the
Education Officer granted it permission to fill up the vacant
posts. It was a misstatement. The Education Officer had
received a complaint. The institution was, therefore,
immediately informed not to go ahead with the recruitment
process. No proposal for grant of approval to the
appointment of petitioners was ever submitted. The said
proposal has been turned down for valid reason. Vide
Government Resolutions dated 2/5/2012 and 27/10/2016,
there was a ban on recruitment of teachers. The ban was
with a view to ensure absorption of surplus teachers. Since
the petitioners were appointed without following due
procedure and in violation of the Government Resolution
dated 2/5/2012, no approval could be granted to their
appointments.
6. The Tribunal found the petitioners to have been
appointed without following due procedure. It also found the
petitioners to have failed to make out their case. The
Tribunal, therefore, dismissed the appeals preferred by the
petitioners.
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7. Perused the impugned judgments. Gone through
the documents placed on record. Considered the rival
submissions. It appears that, there is again a change in the
management of the institution. The Secretary of the
institution has filed his affidavit-in-reply submitting therein
that the earlier management, in order to fill up the vacancies,
solicited permission of the Education Officer on 5/6/2013. A
copy of the communication under the signature of the
concerned Education Officer, acknowledging to have received
the communication has been placed on record. It has been
averred in the affidavit-in-reply that there was urgency to fill
up the posts for the subjects of English, Marathi, Science from
OBC category. The Deputy Director of Education had also
been requested to grant permission for filling up the posts.
The Education Department did not take cognizance of the
communications made by the institution. In response to the
complaint made by one Sandip Tanpure, the Education Officer
had issued the communication dated 9/9/2015, asking for the
explanation of the institution. From 12/1/2015, there was no
Board of Directors for the sugar factory which runs the
institution. The Chairman of the sugar factory and the
members of the Board of Directors are Ex-officio Chairman
and the Trustees of the institution. From 7/3/2015, the
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affairs of the sugar factory were being managed by three
member committee appointed as Administrators. The Board
of Directors was not in the know of the developments that
took place in the interregnum until a new elected body took
over the management. It has also been averred in the
affidavit-in-reply that the institution has kept the posts
vacant, in respect of which the proceedings are pending in
Courts of law. The institution has also informed the Education
Officer its inability to accommodate surplus teachers as it
may require to reinstate the teachers, like petitioners. As
such, the management of the institution now appears to have
been on the side of the petitioners.
8. A copy of the advertisement dated 29/11/2014
indicates the institution to have had published it, inviting
applications for filling up 7 posts of Shikshan Sevak for its
secondary school. The advertisement was issued interalia for
filling up posts of Shikshan Sevak for primary and higher
secondary school as well. It has been mentioned in the
advertisement that the Shikshan Sevaks were required for
teaching the subjects of Marathi, Hindi, English, History,
Geography, Science and Mathematics. The petitioners claim
to have necessary educational qualifications. True, there is a
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note at the bottom of the advertisement that it has been
published with prior approval of the Education Officer
(Secondary) and the Deputy Director of Education, Pune. The
same is a misstatement. Admittedly, the concerned
authorities had not granted the institution permission to go
ahead with the recruitment process. It, on the contrary,
appears that, no sooner the advertisement was published, the
Education Officer received a complaint and he, therefore, by
his communication dated 5/1/2015, i.e. within a month of the
petitioners were appointed, called upon the institution to
cancel the recruitment process. In my view, the petitioners
shall not suffer therefor.
9. Along with the affidavit-in-reply, the Secretary of
the institution has placed on record a copy of its
communication dated 5/6/2013, addressed to the Education
Officer, asking for permission to fill up the vacancies in the
interest of students. The said communication bears signature
of the Education Officer. True, the affidavit-in-reply has been
filed by Superintendent in the office of Education Officer
(Secondary), stating therein, that in the inward register there
is no entry indicating the same to have been received by the
office. There is, however, no specific denial of the
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communication to have been signed/ endorsed by the
Education Officer, acknowledging the receipt thereof.
Moreover, in the extract of the inward register placed on
record in these Writ Petitions, which are taken on record and
marked as "Z" for identification, there is an entry at
Sr.No.334, dated 28/5/2014, indicating the communication
dated 17/5/2014 made by the institution, seeking permission
for filling up the vacancies. It, therefore, cannot be said that
the institution did not ask for Education Officer's permission
for filling up the vacant posts.
10. The Division Bench of this Court, in case of Shirur
Shikshan Prasarak Mandal, Ghodnadi, Dist. Pune Vs. State of
Maharashtra & anr. [Writ Petition 2024/2017], has observed :
"3. The issue is no more res integra. The
Division Bench of this Court vide its judgment and
order dated 10th July, 2017 in Writ Petition
No.8587 of 2016, along with connected matters, in
paragraph No.9 has held thus :-
"9. In the result the Writ petitions are
allowed and impugned orders are quashed
and set aside. The respondents -
Education officers are directed to examine
independent cases and grant approval to
each of the teachers who fall in the
following three categories :-
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(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
fulfill the backlog of reserve
categories candidates."
11. The petitioners have placed on record a copy of
resolution dated 8/12/2014, passed by the Trustees of the
institution, approving the appointment of the petitioners. It
appears therefrom that the petitioners belong to OBC
category. It is stated that there is backlog of this category.
The resolution is, however, silent to indicate whether the
appointments of the petitioners have been made to clear the
backlog of OBC candidates. There is also nothing therein to
indicate the petitioner in Writ Petition No.12811/2018 has
been selected for teaching English subject. The petitioners
have also placed reliance on the judgment of this Court in
Public Interest Litigation No.197/2013, wherein the following
directions were issued :-
"6. Accordingly this PIL is disposed of in terms
of the following directions :-
(a) The State Government shall issue necessary
instructions to commence the recruitment process
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for filling in vacant posts of teachers in Secondary
schools, Higher Secondary schools and Junior
colleges in the State of Maharashtra, after taking
into consideration vacancies likely to arise in the
years 2014 and 2015 on account of retirement on
superannuation;
(b) The advertisements for the above purpose
shall be published by 31 May 2014 and the
recruitment shall be made by 31 May 2015;
(c) The State Government shall issue
appropriate instructions and guidelines for making
timely recruitment of teachers in Secondary
schools, Higher Secondary schools and Junior
colleges in the State of Maharashtra by directing
that the exercise for this purpose shall be
undertaken every year."
Moreover, the Division Bench of this Court, vide
judgment dated 10/7/2017, passed in Writ Petition
No.8587/2016 and connected matters, has observed in
paragraphs No.6, 7 and 8 as under :
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.
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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 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 fulfil 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 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.
12. The petitioners have, thus, made out a case that
the institution had twice requested the Education Officer to
permit it to fill up the vacant posts. The Education Officer
appears to have not responded to the communication dated
5/6/2013 and 27/5/2014. The institution was therefore
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justified in going ahead with the recruitment process
ostensibly in the interest of students. The petitioners shall
not suffer for inaction on the part of the Education Officer. It
is true that, vide communication dated 5/1/2015, the
Education Officer had asked the institution to cancel the
entire recruitment process. The record, however, indicates
that, in January 2015 itself a body of Administrator was
appointed for managing the affairs of the sugar factory and
necessarily the institution as well. The petitioners, thus,
continued to serve until their services, abruptly came to be
terminated for the reason of non-approval by the Education
Officer to their appointment. In my view, therefore their
services were not liable to be terminated merely on the
ground of want of approval to their appointments. The
petitioners are, therefore, required to be reinstated on the
posts of Shikshan Sevak until they complete their tenure as
Shikshan Sevak for a period of three years vide their
appointment orders dated 8/12/2014. Post completion of
their tenure as Shikshan Sevak, they may be absorbed, if
they are found to be fit and fulfilling all the mandatory
requirements for appointments. The Education Officer -
respondent No.3 or the concerned authority shall consider the
proposals for approval to the appointments of the petitioners
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within a period of six months from the date of receipt thereof.
The Education Officer shall not refuse to grant the approval
on the ground of want of prior permission for publication of
advertisement for filling up the vacant posts. The Education
Officer would decide such proposal on its own merits. The
petitioners were appointed on a fixed salary of Rs.8000/- per
month.
13. In view of the above, the Writ Petitions are partly
allowed. The orders terminating the services of the
petitioners are hereby set aside. The petitioners are
reinstated in service as Shikshan Sevaks, so as to complete
the remaining tenure of their respective posts.
14 On reinstatement of the petitioners, the
respondent - management shall forward within a period of
two months to the Education Officer, proposals for approval to
their appointments. The Education Officer, in turn, shall take
a decision on such proposal within a period of four months
thereafter, provided he shall not refuse to grant the approval
on the ground of the respondent - management to have not
obtained prior permission for publishing the advertisement
and/or filling up the vacancies on which the petitioners have
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been appointed.
15. The respondent - management shall pay the
petitioners arrears of their salary and continue to pay the
same until approval, if any, to their appointments is granted.
If the approval is granted to their appointments, then their
salary shall be reimbursed with arrears, by the Education
Department.
16. Rule made absolute in above terms.
( R. G. AVACHAT )
JUDGE
fmp/-
