Syed Asad Syed Yusuf vs The State Of Maharashtra And ...
2021 Latest Caselaw 11627 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                          WRIT PETITION NO.8933 OF 2018


 Syed Asad S/o Syed Yusuf,
 Age : 33 years, Occup: Service as
 Peon, r/o Peerburhannagar
 Galli No.9, Nanded,
 Tq. and Dist. Nanded                                       ..PETITIONER

          VERSUS

 1.       The State of Maharashtra
          Through its Secretary,
          Education Department,
          Mantralaya, Mumbai - 32

 2.       The District Collector,
          Nanded, District Nanded

 3.       The Director of Higher Education,
          Maharashtra State, Pune

 4.       The Joint Director of
          Higher Education,
          Nanded Region, Nanded

 5.       The Education Officer (Primary),
          Zilla Parishad, Nanded

 6.       Pratibha Niketan Primary School run by
          Pratibha Niketan Education Society,
          Shrinagar, Nanded, Dist. Nanded,
          Through its Headmaster

 7.       Pratibha Niketan Education Society
          Vazirabad, Nanded, Dist. Nanded
          Through its President/General Secretary

 8.    Pratibha Niketan Mahavidyalaya,
       Banda Ghat Road, Vazirabad,
       Nanded, Dist. Nanded, through its
       Principal                                      ..RESPONDENTS
                                     ....
 Mr V.S. Panpatte, Advocate for petitioner;
 Mr S.B. Yawalkar, A.G.P. for respondent nos.1 to 4;
 Mr S.M. Kulkarni, Advocate for respondent nos.6 to 8;
 Mr N.S. Kadam, Advocate for respondent no.5


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                                       CORAM : RAVINDRA V. GHUGE
                                                      AND
                                               S. G. MEHARE, JJ.

DATE : 24th August, 2021

ORAL JUDGMENT (Per Ravindra V. Ghuge, J.)

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner has put-forth prayer clauses (B), (C), (D) and (E) as

under :-

"(B) By a writ of certiorari or any other appropriate writ or direction in the like nature, the communications/orders dated 05.06.2017 and 20.01.2018 issued by the respondent no.5 - Education Officer (at Exhibit 'H' colly.) may please be quashed and set aside;

(C) By a writ of mandamus or any other appropriate writ or direction in the like nature, the respondent no.5-Education Officer may please be directed to forthwith grant approval to the appointment of the petitioner on compassionate ground as Peon in the respondent no.6-School w.e.f. 18.02.2014 and to release arrears of salary of the petitioner from 18.02.2014 till today;

(D) In the alternate, by a writ of mandamus or any other appropriate writ or direction in the like nature, the respondent nos.7 and 8 may please be directed to appointment the petitioner on Class-IV vacant post in the respondent no.8-

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College on compassionate ground and submit proposal to the respondent nos.3 and 4 for getting approval to such appointment of the petitioner;

(E) The respondent nos.3 and 4 may please be directed to consider the proposal that may be forwarded by the respondent nos.7 and 8 for grant of approval to the appointment of the petitioner to Class-IV post in the respondent no.8-College within further stipulated period and release the salary of the petitioner regularly."

3. The learned Advocate makes a statement that prayer clause (D)

and (E) are by way of an alternate relief and considering the judgment of

this Court dated 22.7.2021 in Writ Petition No.8115 of 2018, filed by

Renuka Munjaji Pondhe & anr. vs. The State of Maharashtra & ors.

and the judgment dated 11.8.2021 delivered in Writ Petition No.4219 of

2018, etc., filed by Smt. Yogita w/o Shivsing Nikam vs. The State of

Maharashtra & ors., these two prayers are not pressed and stand given

up.

4. We have considered the extensive submissions of the learned

Counsel for the respective sides. We have also perused the orders passed

by this Court reproduced at page 34 and 38 of the petition paper-book.

5. Considering the view taken in the two extensive judgments in the

matters of Renuka and Smt. Yogita (supra), we are not adverting to the

entire submissions of the litigating parties, who stand on identical footing.

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6. The following dates and events are relevant to this case:-

a) The father of the petitioner, namely, Syed Yusuf Syed Ali, was in the

permanent service of respondent no.8 college as a Library

Attendant. He unfortunately passed away on 1.8.2008.

b) The mother of the petitioner made an application to respondent no.7

on 3.1.2009 praying for compassionate appointment for her son

(present petitioner).

c) Respondent no.7 did not grant compassionate appointment and

published an advertisement on 9.7.2013 for filling up eight posts in

the Class III and IV categories.

d) The petitioner approached this Court in Writ Petition No.6236 of

2013 for questioning the advertisement and praying for appointment

on compassionate basis in the Class IV category.

e) By an order dated 29.1.2014, this Court allowed the writ petition and

directed the management to appoint the petitioner in the Class IV

category.

f) On 17.2.2014, respondent no.7 appointed the petitioner on

compassionate basis in the Class IV category in respondent no.6

school.

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g) Respondent no.6 forwarded the proposal for seeking approval to

such appointment, on 1.3.2014.

h) Since approval was not granted, the petitioner filed Writ Petition

No.10524 of 2014 praying for approval to his appointment in the

said school.

i) By order dated 19.1.2015, this Court directed the Education Officer

to decide the said proposal within four months.

j) Respondent no.5 Education Officer did not grant approval to the

petitioner on the ground that the Government Resolution dated

2.5.2012 bans recruitment. In addition, he took a stand that his

permission for recruitment was not obtained, though this Court had

ordered his appointment.

k) The petitioner again preferred Writ Petition No.7136 of 2015 and by

judgment dated 19.7.2016, respondent no.5 was again directed to

reconsider the proposal of the petitioner within four weeks.

l) Since no decision was taken for almost a year, the petitioner

preferred Contempt Petition No.72 of 2017.

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m) By the impugned order dated 20.1.2018, respondent no.5 Education

Officer refused to accord approval to the petitioner on the ground

that the Right of Children to Free and Compulsory Education Act,

2009 (for short, "RTE Act, 2009"), does not prescribe non-teaching

employees in any school and Section 25 of the said Act does not

give power to the Education Officer to grant approval to a

compassionate appointment in the Class IV category.

n) Hence, this fifth writ petition.

7. The sequence of events recorded above speak for themselves. We

have come across several cases in which we have noticed such

employees being deprived and made to suffer mental agonies. The

present case in hand, however, is one such extreme example which

indicates the vindictiveness shown by the Education Officer.

8. Initially while refusing approval, the stand was taken that there is

ban on recruitment. Thereafter a stand is taken that there is no staffing

pattern. Then a stand is taken that the permission of the Education Officer

was not taken while appointing the petitioner. Now a stand is taken that

the RTE Act, 2009 does not provide for non-teaching posts and, therefore,

no candidate appointed in the non-teaching category can be granted

approval by the Education Officer. To say the least, we are shocked by the

conduct of the Education Officer, namely, Shri S.S. Sontakke.

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9. This Court has laid down the law in Smt. Samita Sameer Desai &

anr. vs. The State of Maharashtra & anr., Writ Petition No.7507 of

2016, decided at the principal seat on 11.12.2018. So also, this Court at

Aurangabad has delivered a judgment on 10.3.2021 in Writ Petition

No.15018 of 2019, filed by Bharati Bhausaheb Thakare vs. The State

of Maharashtra & ors.. Yet again, this Court has taken a view vide

judgment dated 22.7.2021 in Writ Petition No.8115 of 2018 filed by

Renuka Munjaji Pondhe and anr. vs. The State of Maharashtra & ors..

In Suraj Uttam Kamble vs. The State of Maharashtra, 2019 (4) Mh.L.J.

332, this Court has considered the ban imposed on recruitment vide Govt.

Resolution dated 12.2.2015 and has concluded that such ban on

recruitment would not apply to appointments on compassionate ground

made in terms of the Government Circular dated 13.12.2002. This Court

has also interpreted the Govt. Resolution dated 12.2.2015 in Mohammad

Ashraf Shaikh Aslam vs. State of Maharashtra, Writ Petition No.3095

of 2019, decided on 11.2.2020 and has held that the appointment on

compassionate basis is beyond such ban.

10. In a recent judgment delivered on 11th August, 2021, in Writ Petition

No.4219 of 2018, Smt. Yogita (supra), this Court has observed in the

concluding paragraph nos.31 to 33 as under:-

"31. The Education Officer (Secondary), Zilla Parishad, Jalgaon and the Education Officer (Secondary), Zilla Parishad, Nanded shall deposit an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) each, as costs, from their salary bank account in this Court, on or before 30.09.2021 and these two petitioners namely Smt. Yogita and Mr. Sachin, shall be entitled to withdraw the said amount

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subject to proper identification, without conditions. In the event, any of these two Education Officers has retired, the said amount shall be recovered from his pension. Compliance of this order shall be reported to this Court upto 15.10.2021, by the respective Chief Executive Officer, Zilla Parishad.

32. We direct the learned Registrar (Judicial) of this Court to place this order before the Secretary, School Education Department, Mantralaya to be circulated to all concerned. The concerned Secretary shall pass appropriate instructions to all concerned officers in the State of Maharashtra.

33. We need to clarify that, in cases relating to a candidate not being eligible to occupy the post of the deceased father/parent and, therefore, has to be accommodated on some other inferior post in another class, the authority empowered to make compassionate appointment, shall verify whether such post is available or not and shall list the candidate in the wait list of eligible candidates."

11. The learned Counsel representing the Education officer respondent

no.5 submits that as the RTE Act, 2009 does not prescribe staffing pattern

for the non-teaching employees, no school can be permitted to recruit such

employees and there is no question of granting approval by the Education

Officer. We are astonished by such abstruse submission. We need not

spend much energy with such submission lest it would amount to wastage

of our time. It is most unfortunate that we have come across several

Education Officers who are not able to interpret a Govt. Resolution and

probably are not inclined to take legal advice if they don't understand the

intent and object of such Govt. Resolutions. However, the end result is

that litigants like the present petitioner feel tortured by such mental agony

and the cost of litigation. This petitioner was compelled to file five petitions

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solely on account of the Education Officer not being able to understand the

concept of compassionate appointment. In this backdrop, we do not intend

to remit this matter to the Education officer. We have, therefore, decided to

grant approval to the petitioner under the orders of this Court.

12. In view of the above, this petition is allowed in terms of prayer

clauses (B) and (C), reproduced above.

13. Since the learned Advocate for the management and the Education

Officer submit that the post occupied by the petitioner is 100% grant-in-aid,

that respondent nos.6 and 7 would calculate the arrears of salary of the

petitioner from 18.2.2014 as per the approved rates and submit necessary

bills to respondent no.5 on or before 30.9.2021. Respondent no.5 shall

thereafter sanction the said bills and release the funds for making the

payment to the petitioner on or before 30.10.2021.

14. Considering the conduct of the Education Officer (Primary), namely,

Shri S.S. Sontakke, who is presently posted at Hingoli, we are imposing

costs of Rs.50,000/- and this Education Officer shall issue an account

payee cheque from his salary bank account and directly pay it to the

petitioner on or before 30.9.2021. In the event of non compliance, the

petitioner would be at liberty to initiate appropriate proceedings before this

Court for disobedience of our directions.

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15. Rule is made absolute in the above terms.

  (S. G. MEHARE, J.)                        (RAVINDRA V. GHUGE, J.)

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