Bombay High Court
Mohimata Shikshan Sanstha ... vs The State Of Maharashtra And ... on 1 February, 2021
Bench: S.P. Deshmukh, Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10035 OF 2019
1) Mohimata Shikshan Sanstha,
Through: Its Secretary -
Padmakar Marutirao Sarpate,
C/o-Mohimata Vidyalaya, Madal-mohi,
Tq-Georai, District-Beed,
2) Vitthal s/o Bhimrao Rathod,
Age-36 years, Occu:Service as
Shikshan Sevak, Zilla Parishad,
Beed, Dist-Beed.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through: Principal Secretary,
Education Department,
Mantralaya, Mumbai-32,
2) The Deputy Director, Education,
Aurangabad Region, Aurangabad,
District-Aurangabad,
3) The Education Officer (Secondary),
Zilla Parishad, Beed.
...RESPONDENTS
...
Ms.Anjali Bajpai-Dube Advocate for Petitioners.
Mr.S.B. Yawalkar, A.G.P. for Respondents No. 1 to 3.
...
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CORAM: SUNIL P. DESHMUKH AND
ABHAY AHUJA, JJ.
DATE : 1st FEBRUARY, 2021
ORAL JUDGMENT [PER SUNIL P. DESHMUKH, J.] :
1. Rule. Rule made returnable forthwith and heard
learned counsel for the parties finally, by consent.
2. Petitioner No. 1 - institution had moved education
officer under letter dated 4th June 2013, seeking permission to
issue advertisement, referring to that there has been backlog of
about four posts viz: Scheduled Tribe, Scheduled Caste, V.J. N.T.
(c) (d) and Physically Disabled Person. It was requested to
grant permission to fill up three posts viz: Scheduled
Caste/Disabled - one, Scheduled Tribe - one and V.J. N.T.
(c) (d) - one. Under communication dated 3rd February 2014,
the Education Officer had granted permission to issue
advertisement directing that the same shall comply with
conditions referred to thereunder.
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3. It appears that pursuant to the same, an
advertisement was issued on 7th February 2014 for two posts,
showing those to be reserved for V.J. N.T. ( c) (d), Scheduled
Caste and Scheduled Tribe and person from Disabled category.
4. It is the case of petitioners that pursuant to the
advertisement, applications were received and petitioner No. 2
has been appointed under order dated 3rd March 2014, as
Shikshan Sevak for a period of three years from 3rd March 2014
to 2nd March 2017, being disabled person simultaneously coming
from V.J. N.T. (v) category, being qualified and found suitable.
5. While the matter for approval to said appointment
was taken to Education officer, the same has been responded to,
referring to that pursuant to order dated 31 st July 2013, passed
by this court in writ petitions bearing No. 759 of 2012, 760 of
2012 and 260 of 2013, there had been an order of status-quo
and, as such, approval could not be granted. Reference has
further been made to that head master under his letter dated
24th August 2017, has requested to grant approval to
appointment of petitioner No. 2 having regard to this Court's
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order dated 12th February, 2014. It has further been observed
that having regard to government resolution dated 23 rd August,
2005, the appointment is to be made on a reserved post
considering the provisions for appointment of a disabled person
holding requisite qualification and the petitioner has been
appointed in breach of said resolution and, therefore, approval
cannot be accorded, and as such, present petitioners are before
the court.
6. Learned counsel for petitioners has taken us through the
correspondence between the institution - petitioner No. 1 and
the Education Officer and purports to point out that request had,
in fact, been made to permit to issue advertisement since there
was backlog of posts including that of a disabled person. In fact,
permission had been accorded to, as referred to above under
communication dated 3rd February 2014, pursuant to which,
petitioner No. 1 had appointed petitioner No. 2 after due process
of recruitment. From 2014 to 2017, approval could not be given
having regard to orders passed by this court and the same has
been purportedly declined for the reasons which are
unsustainable.
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7. Learned counsel for petitioners contends that
petitioner No. 2 being educationally qualified and otherwise
falling under the category referred to in government resolution
dated 23rd August 2005, and particularly, it is indisputable that
his candidature is covered under disabilities as referred to in the
resolution under the category while he suffers disability to the
extent of 41%.
8. On the other hand, learned AGP Mr. Yawalkar submits
that advertisement had been issued for disabled category from
vertical reservation viz. V.J. N.T. (c) (d), Scheduled Caste and
Scheduled Tribe. Petitioner No. 2 is not from any of these
categories but he is V.J. N.T. (v).
Learned AGP also refers to that, in government
resolution there is specific direction for recruitment of disabled
persons having requisite qualification. Since appointment of
petitioner No. 2 would not fit into roster policy and government
resolution dated 23rd August 2005, proposal had been turned
down.
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9. While such submissions on behalf of respondents are
put forth, respondents have not been able to show as to what is
the roster policy and as to how appointment of petitioner No. 2
could be termed as not in accordance with either roster policy or
for that matter government resolution dated 23 rd August 2005.
Perusal of the impugned communication dated 31 st May 2019
would show that it does not refer to any specific particular
ascertainable reason save that it is against government
resolution dated 23rd August 2005 and provisions of roster policy.
The impugned order appears to be, in the circumstances, non
speaking.
10. In the circumstances, impugned order dated 31 st May
2019 passed by respondent No. 3 - Education officer
(Secondary), Zilla Parishad, Beed is set aside. The proposal to
grant approval for appointment of petitioner No. 2 stands revived
for reconsideration and for passing appropriate orders, keeping
in view that there is a backlog of appointment for the post for
disabled person and regard may have to be had to the Persons
with Disabilities (Equal Opportunities Protection Of Rights and
Full Participation) Act, 1995 and that petitioner No. 2 being not
from V.J. N.T. (c) (d) category, shall not impede the approval, if
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the petitioner No.2 is otherwise eligible and qualified to be
appointed in the disabled category. We hope that proper decision
would be taken within a period of six weeks from the date of
receipt of writ of this order.
11. Rule is made absolute in above terms. Writ petition
accordingly stands disposed of.
[ABHAY AHUJA, J.] [SUNIL P. DESHMUKH, J.]
asb/FEB21
