Bombay High Court
Vaishali Ramling Todkari vs The State Of Maharashtra And ... on 2 February, 2021
Bench: S.P. Deshmukh, Abhay Ahuja
1 j 936 wp 5417-18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
936 WRIT PETITION NO.5417 OF 2018
Vaishali Ramling Todkari,
Age : Major, Occu.: Servioce as
Shikshan Sevak
R/o/: Narayan Nagar, Latur,
Tq. & Dist.: Latur ... Petitioner
Versus
1. The State of Maharashtra
Through Secretary,
Department of School Education,
Mantralya, Mumbai-32.
2. The Deputy Director of Education,
latur Division, Latur,
Tq. & Dist,: Latur.
3. The Education Ofcer, (Secondary),
Zilla Parishad, Latur.
4. Shri Mahatma Basweshwar
Shikshan Sanstha, Latur,
Tq. & Dist.: Latur,
Through : Its Administer :
Smt. Nivedita S. Pawar.
5. Shri Nilkanteshwar Secondary
and Higher Secondary School,
Barsi Road, Latur, Tq. & Dist. Latur,
Through its Head Master. ... Respondents.
...
Advocate for Petitioner : Mr. V. S. Panpatte
AGP for Respondent-State: Mr. S. P. Sonpawale
...
CORAM: SUNIL P. DESHMUKH &
ABHAY AHUJA, JJ.
DATED: 2nd FEBRUARY, 2021.
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ORAL JUDGMENT : (Per Sunil P. Deshmukh, J.)
Rule. Rule made returnable forthwith. Heard learned
counsel for the parties fnally, with consent.
2. The petitioner is before us in present writ petition aggrieved
by order dated 27.04.2018 passed by Education Ofcer,
Secondary, Zilla Parishad, Latur whereunder proposal for
approval to his appointment dated 18.12.2012 has been rejected.
3. After hearing learned advocates it transpires that relevant
factual aspects are not in dispute. While one Mr. B. S. Swami was
to retire after attaining age of superannuation on 13.11.2012,
permission had been sought for recruitment on said post falling
vacant under a communication dated 29.10.2012 on behalf of
the management by headmaster. There had been no response to
the same. The post being existing and sanctioned, and being
necessary to be flled up, an advertisement had been issued for
recruitment on 02.12.2012.
4. After being selected under due selection process, the
petitioner had been issued appointment order dated 18.12.2013
as Shikshan Sevak for a period of three years from 19.12.2012 to
18.12.2015.
5. The management had sent a proposal on 27 th August, 2013
for approval to said appointment to the Education Ofcer.
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However, no decision had been taken on said proposal for over
three years and suddenly impugned order has been issued. The
impugned order refers to that petitioner's appointment had been
in breach of and is during the ban on appointments under
Government Resolution dated 02.05.2012 and without following
Section 5(1) of Maharashtra Employees of Private Schools
(Condition of Service) Regulation Act, 1977 (MEPS Act)
particularly proviso thereunder quoting certain observations from
a decision of this court.
6. Learned counsel for the petitioner Mr. Panpatte submits
that there is absolutely no substance in the contention on behalf
of respondents about that Section 5(1) had not been followed at
all. He submits that it cannot be denied that permission had in
fact been solicited for flling up the post and that there had been
no response to the same. He further submits that the process
under the proviso has been substantially followed. He
particularly emphasizes that despite the communication, for over
5 years not a single person had been sent for absorption from
surplus teachers which are stated to be available during this
period, whereas certain surplus teachers have indeed been sent
to other schools run by the same management and have
accordingly been absorbed. However, so far as petitioner's case
is concerned on his post there has not been a single person sent
by the Education Ofcer.
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7. Mr. Panpatte in support of his submission, places reliance
on a clutch of decisions and particularly puts emphasis on the
decision in the case of Shailaja Ashokrao Walse vs. State of
Maharashtra and others, reported in 1999(1) Mh.L.J.291 .
He submits that in paragraph No.26, similar situation as
appearing in the present matter has been dealt with and
observations thereunder have been relied on in the decision in
Writ Petition No. 837 of 2018 by a Division Bench of this Court
under order dated 13.04.2018. He further refers to an order
dated 14th July, 2015 in Writ Petition No. 7878 of 2014. He
submits that therein the court has observed that management
had sought permission from Education Ofcer under application
dated 17.05.2013 to fll up the posts by issuing advertisement
and after waiting for more than 15 days thereafter, on
09.06.2013, advertisement was given. Pursuant to said
advertisement, selection process was conducted and petitioner
therein had been appointed. In the circumstances, the court had
found that it was inappropriate to reject the proposal on the
ground that there is no prior permission sought and further the
court had quashed impugned order and had specifcally directed
to consider proposal submitted by Headmaster seeking approval
to appointment of petitioner and further that it shall not be
rejected on the ground that prior permission was not obtained or
surplus candidates were required to be absorbed. He, therefore,
urges that the petition be allowed in terms as prayed for.
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8. Learned AGP purports to resist the petition contending that
there had been ban on recruitment vide Government Resolution
dated 02.05.2012 and that it would not be said that there was
due compliance of the proviso under Section 5(1).
9. It emerges that management had sought permission from
the Education Ofcer for flling up the post falling vacant and that
the request was not responded to by Education Ofcer. So is the
case in respect of the proposal for approval to appointment of the
petitioner which was preceded by selection procedure. The same
as well had not been decided until the impugned order had been
passed in 2018. It is not the case of the respondent that at any
point of time any surplus teachers which were stated to be
available, had ever been sent to the school wherein the petitioner
had been appointed, until the impugned order had been passed.
Veracity of the claim on behalf of the petitioner about there being
surplus teachers sent to others school run by the same
management and being absorbed has also not been disputed.
Equally, there is no case on behalf of the respondent about any
surplus teacher ever been sent to, for absorption in the school
where the petitioner is working.
10. It appears that the respondents had sat tight over the
proposal for over fve years without any action and in the
meanwhile, the petitioner appears to have acquired status and
character as would accrue to him with the passage of time.
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11. Having regard to the observations and the directions in Writ
Petition No.9709 of 2016 decided on 23.11.2017, while
permission was sought for flling up the post, it would not be case
that there is absolute non-compliance of requirements under
Section 5(1) of MEPS Act.
12. As such, having regard to aforesaid and position emerging
from the decisions, impugned order has been rendered
unsustainable and would be required to be set aside, and the
same is set aside. Appropriate order be passed by Education
Ofcer with regard to proposal for approval to appointment of the
petitioner which shall not be rejected for the reasons given in the
impugned order. The exercise would be completed as
expeditiously as possible, preferably within a period of eight (08)
weeks from the date of receipt of writ of this order.
13. Rule is made absolute in aforesaid terms.
14. Writ petition is disposed of.
(ABHAY AHUJA, J.) ( SUNIL P. DESHMUKH, J. )
vsm/
