Rajendra Bhimrao Jadhav vs President/ Secretary Agrani ...
2021 Latest Caselaw 11106 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                             WRIT PETITION NO.3707 OF 2018

       Rajendra Bhimrao Jadhav                                     ...Petitioner

               Versus

       President / Secretary                                  ...Respondents
       Agrani Shikshan Prasarak Mandal

                                        ----------
       Mr. Kishor Patil, i/b. Mrs. Aarti P. Bhide for the Petitioner.
       Mr. Vikas Mali, AGP for State - Respondent Nos.3, 4 and 7.
                                        ----------

                                        CORAM :       R.D. DHANUKA &
                                                      R.I. CHAGLA, JJ.

                                         DATE        : 17 AUGUST, 2021

       ORDER :

1. Rule. Learned AGP waives service on behalf of

Respondent Nos.2, 4 and 7. Respondent Nos.1, 2, 5 and 6

though served remained absent. No reliefs are sought against

those Respondents. Hence by consent of parties Petition is

heard fnally.

2. The Petitioner has fled this Petition under Article

226 of the Constitution of India inter alia praying for quashing

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and setting aside the order dated 4th April, 2019 passed by the

Respondent No.3 rejecting proposal for the approval of the

appointment of the Petitioner for the post of shikshan sevak.

The Petitioner has also prayed for a writ of mandamus against

Respondent Nos.1 to 4 to approve the proposal of the Petitioner

for the said post as Shikshan Sevak and appoint the Petitioner

as permanent Assistant Teacher on the clear and permanent

vacancy in the Respondent No.1 school.

3. The Petitioner is M.A., ATD (Arts Teacher Diploma),

Arts Master (A.M.) C.T.C. (Craft Teacher's Course) and 4th

exam of Music. The Petitioner has qualifcations as

contemplated under Schedule B of MEPS Act and for

appointment as Assistant Teacher and also Art Teacher.

4. On 5th July, 2012 the Petitioner was appointed as

Shikshak Sevak under the scheme introduced for appointment

of teacher in the secondary school in the State of Maharashtra.

Respondent No.5 is another teacher working in the Respondent

No.6 whose candidature has been approved by the Respondent

Nos.3 and 4, who according to the Petitioner is similarly

qualifed and similarly situated.

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5. The Petitioner is from OBC category. On 12th June,

2012, the Management issued advertisement in the local

newspaper inviting applications for B.A./M.A./B.Ed or HSC,

D.Ed / A.T.D. for one post each for OBC category respectively for

the post of Shikshan Sevak. The said advertisement was

published after seeking permission from Education Offcer.

Since, there was no response to the said request., the

Management proceeded with the issuance of advertisement

and process of appointment. The Petitioner was found suitable

and was appointed on the said post. The said post had fallen

vacant in view of the retirement of the earlier teacher on the

said post. The Petitioner fled this Writ Petition inter alia

praying for approval as Shikshan Sevak and for appointment of

the Petitioner. During the pendency of this Petition, the

Education Offcer rejected proposal for approval of the

Petitioner as Shikshan Sevak. Petitioner impugned the said

order also.

6. Mr. Patil, learned Counsel for the Petitioner invited

our attention to various annexures to the Writ Petition and

would submit that the Management had followed the requisite

procedure under the provisions of MEPS Rule, 1981 before

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flling up the said post. He submits that the Petitioner belongs

to OBC caste and was appointed on the post fallen vacant due to

the retirement of earlier employee. He invited our attention to

the impugned order dated 19th January, 2019 passed by the

Education Offcer rejecting the said proposal.

7. It is submitted by the learned Counsel that the

impugned order passed by the Education Offcer is totally

contrary to the principles of law laid down by various

judgments of this Court. He relied upon the (i) unreported

judgment of this Court in Writ Petition No.8587 of 2016 fled by

Smt. Munoli Rajashiri Karabasappa Vs. State of Maharashtra &

Ors. and other companion matters, (ii) on the judgment of

Division Bench of this Court in Writ Petition No. 10580 of 2015

along with companion Writ Petitions fled by Sou. Revati Kusha

Wagh & Ors. Vs. The State of Maharashtra decided on 9th

March, 2017 and (iii) on the judgment delivered by learned

Single Judge on 14th October, 2020 in Writ Petition No.6744 of

2018 fled by Shri Vikram V. Mane Vs. The State of

Maharashtra & Ors.

8. It is submitted by learned Counsel for the Petitioner

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that, the Respondent No.5 whose case was similarly situated

and who was employee of Respondent No.6 was approved by

the Education Offcer. However for the frivolous reasons,

approval for the appointment of the Petitioner was rejected.

9. Learned Counsel for the Petitioner has invited our

attention to the Affdavit in Reply fled by the Respondent No.3

and would submit that in paragraph 9 of the said Affdavit in

Reply, it is contended by Respondent No.3 that the

appointment of Assistant Teacher in a permanent cadre was

outside the provisions of RTE Act, 2009.

10. Mr. Mali, learned AGP for State invited our

attention to the averments made in some of the paragraphs in

Affdavit in Reply. He also fairly invited our attention to the

paragraph 6 of this Petition and would submit that,

appointment of Art teacher as a permanent cadre falls outside

the provisions of the R.T.E. Act of 2009.

11. We have heard the learned Counsel for parties and

also perused the documents annexed to the Petition. We have

also perused the Affdavit in Reply fled by the Management

notorised on 1st September, 2018. The Management in the said

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Affdavit states that, since the school was in need of drawing

teacher, the Management sought to fll up the vacancies on

urgent basis to avoid loss to the students. The Respondent No.3

did not reply to the letter dated 13th September, 2012 sent by

the Management. The management followed the requisite

procedure while appointing the Petitioner in the said post. It is

further stated in the Affdavit in Reply that the conditions

imposed in the letter dated 3rd July, 2017 and 12th July, 2017

of the Upper Secretary, State of Maharashtra and Education

Director, State of Maharashtra directing absorption of surplus

teacher are not applicable for the vacancies in Art subject and

the Art being specialised subject qualifed teacher is required to

teach the same.

12. A perusal of the record clearly indicates that the

post which was advertised by the Management was a post

fallen vacant due to the retirement of one of the employee. The

advertisement annexed to the Petition would clearly indicate

that, said post was reserved for OBC candidate. It is not in

dispute that the Petitioner belongs to OBC category.

13. The impugned order proceeds on the premise that

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as per Government Resolution dated 2nd May, 2012, there was

a ban for appointment of new teachers till the surplus teachers

are absorbed. The impugned order totally overlooked the

admitted position that, the said post on which the Petitioner

was appointed has fallen vacant due to retirement of the

erstwhile teacher. This issue has been dealt with by the

Division Bench of this Court in the Judgment in the case of

Smt. Munoli Rajashri Karabasappa (Supra). This Court after

adverting to various judgments delivered by this Court in

various judgments has held that, the said resolution is not

applicable to the categories, (i) where the recruitment process

has already commenced prior to the said GR dated 2nd May,

2012. (ii) In so far as the appointments made for the subjects

of English, Maths and Science are concerned and (iii) where

the recruitment is made to fulfll the backlog of reserved

category candidates. Similar view is taken by another Division

Bench of this Court in Sou. Revati Kusha Wagh & Anr. (Supra).

In the said judgment the Division Bench of this Court adverted

to the earlier judgment in the case of Ashok Nilkanth Dhale Vs.

State of Maharashtra & Ors. 2016 (5) Mh.L.J, 742.

14. In our view the said Government Resolution dated

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2nd May, 2012 will not apply in case of flling up of the

vacancies having fallen vacant due to the retirement of an

employee. Mr. Mali, learned AGP could not dispute that the

Petitioner was appointed to the said post falling vacant due to

retirement of the earlier employee. The judgments referred to

above delivered by this Court will squarely apply to the facts of

this case. We do not propose to take any different view in the

matter.

15. A perusal of the record indicates that the

Management has followed the requisite procedure before

issuing advertisement for the post of Shikshan Sevak. However

there was no response for the request. The State Government

did not dispute the fact that the Petitioner was otherwise

qualifed and belonged to OBC. The impugned order passed by

the Respondent No.3 on 4th April, 2019 is contrary to the

principles of law laid down by this Court in case of Smt. Munoli

Rajashir Karabasappa (Supra) and in case of Sou. Revati

Kusha Wagh & Anr. (Supra) and thus deserves to be quashed

and set aside. The appointment of Art teacher as a permanent

cadre falls outside the provisions of RTE Act, 2009.

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16. We accordingly pass the following order:-

(i) The impugned order dated 4th April, 2019 passed

by Respondent No.3 rejecting the proposal for

approval of the Petitioner as Shikshan Sevak is

quashed and set aside.

(ii) The Respondent Nos.2 to 4 are directed to

approve the proposal submitted by the Management

for the appointment of the Petitioner as Shikshan

Sevak from the date of appointment within six weeks

from today without fail and shall communicate said

order to the Petitioner and the management within

one week thereafter.

(iii) The Respondent Nos.1 to 3 are directed to

grant pay scale to the Petitioner as Shikshan Sevak for

initial period of three years and thereafter for the post

of Assistant Teacher. The arrears shall be paid by the

Respondent Nos.1 to 4 within 12 weeks from today

with interest at the rate of 8% from the due date till

payment.

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(iv) Writ Petition is disposed of accordingly in

aforesaid terms. There shall be no order as to costs.

(v) Rule is made absolute accordingly.

(vi) Parties to act on an authenticated copy of this

Order.

         [R.I. CHAGLA J.]                      [R.D. DHANUKA, J.]