Mohan Ramrao Rathod vs The State Of Maharashtra And ...
2021 Latest Caselaw 7379 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO. 10215 OF 2018

Mohan s/o Ramrao Rathod
age 36 years, occ. Service as
Assistant Teacher
R/o C/o Ghodke Sir Nivas
Sharda Nagar, Mukhed
Tq. Mukhed, Dist. Nanded.                                   Petitioner

       Versus

1.     State of Maharashtra
       Through Secretary
       Department of School Education
       Mantralaya, Mumbai 32.

2.     Regional Deputy Commissioner
       Social Welfare Department
       Dr. Babasaheb Ambedkar
       Social Justice Bhawan
       Near Market Yard, Latur

3.     Assistant Commissioner
       Social Welfare, Nanded.

4.     Jai Shivshankar Pratishthan
       Mukhed, Tq. Mukhed, Dist. Nanded
       Through its President / Secretary

5.     Secondary Ashram School
       Manjari, Tq. Mukhed,
       Dist. Nanded
       Thorough its Head Master                             Respondents


Mr. V.S. Panpatte, Advocate for the petitioner.
Mrs. V.S. Choudhary, AGP for respondent Nos. 1 to 3.




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                                 CORAM : UJJAL BHUYAN &
                                         M.G. SEWLIKAR, JJ.

RESERVED ON : 9th April, 2021.

PRONOUNCED ON : 7th May, 2021.

JUDGMENT : ( Per M.G. Sewlikar, J.)

1. Rule. Rule made returnable forthwith.

2. By consent, heard both the sides for fnal disposal at

admission stage.

3. This writ petition under Articles 226 and 227 of the

Constitution of India is fled being aggrieved by the order of the

Regional Deputy Commissioner dated 27th February, 2018 whereby

approval to the appointment of petitioner as Assistant Teacher has

been rejected.

4. Factual matrix in this writ petition is as under :-

Respondent No. 4 is running secondary school in the

name as 'Secondary Ashram School" at Manjari, Tq. Mukhed, Dist.

Nanded. This school is receiving 100% grant-in-aid from State

Government. This school imparts education from 8th to 10th

standards.

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5. It is further contended by petitioner that a senior teacher

by name N.B. Chavan was due to retire on superannuation on 31 st

December, 2012. The post which Mr. Chvan was holding was a

permanent post. In order to avoid loss in terms of education to the

students of the school, respondent No. 5-school sought permission

from respondent No. 3-Assistant Commissioner, Social Welfare,

Nanded for flling the post which was to become vacant on 31 st

December, 2012.

6. Respondent No. 3 did not respond to the communication

made by respondent No. 5. Therefore, respondent Nos. 4 and 5 i.e.

school management and the school decided to fll in the post to be

fallen vacant by following the procedure prescribed. Accordingly, an

advertisement came to be published in daily 'Punyanagari' dated 29 th

July, 2012 inviting applications for flling up said post of Shikshan

Sewak for Science subject from open category.

7. Pursuant to the said advertisement, petitioner made

application. After conducting interviews, select list of candidates was

published in which petitioner was declared successful and

accordingly, by order dated 2nd January, 2013, he was appointed as

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Shikshan Sewak for a period of three years commencing from 5 th

January, 2013. Accordingly, petitioner joined duties on 5th January,

2013 and since then he is rendering continuous service.

8. Respondent No. 5 - school forwarded a proposal dated

16th December, 2014, for grant of approval to the appointment of

petitioner as Shikshan Sewak. Respondent No. 3, by letter dated 20 th

March, 2015, forwarded the said proposal to respondent No. 2 for

grant of approval clarifying that the appointment of petitioner was

against sanctioned post and he was having requisite qualifcation and

recommended for grant of approval to the appointment of petitioner.

9. Respondent No. 2 did not decide the said proposal owing

to which, petitioner was required to approach this Court by fling Writ

Petition No. 9885/2017 in which, respondent Nos. 2 and 3 were

directed to take decision on the said proposal within a period of four

months. This order was passed on 29th September, 2017.

10. Respondent No. 4 made a detailed representation vide

communication dated 18th December, 2017 thereby making a request

to respondent No. 2 to render decision on the proposal. Respondent

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No. 2, vide order dated 27th February, 2018, refused to grant approval

to the appointment of petitioner as Shikshan Sewak on the ground

that no permission from the offce of respondent No. 2 was obtained

before flling in the said post. This order is impugned in this writ

petition.

11. Respondent Nos. 2 and 3 fled their affdavit-in-reply in

which it is contended that roster was not attached with the proposal

which made it diffcult for respondent Nos. 2 and 3 to ascertain

whether the post was reserved or open. Respondent-management

has stated that there was one backlog of Scheduled Caste category

and in the absence of roster the appointment of petitioner cannot be

said to be against open category. It is further contended that there

were surplus teachers on the roll of respondent Nos. 2 and 3. No

fresh appointment can be permitted to be made as long as surplus

teachers are absorbed. Citing these reasons, it is contended in the

affdavit-in-reply that instant writ petition deserves to be dismissed.

12. Petitioner fled rejoinder to the affdavit-in-reply of

respondent Nos. 2 and 3.

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13. Heard Mr. Panpatte, learned counsel for petitioner and

Mrs. V.S. Choudhary, learned AGP for respondent Nos. 1 to 3.

Learned counsel for respondent Nos. 4 and 5 was absent when

called.

14. Learned counsel Mr. Panpatte submitted that to avoid

loss of students, management decided to fll in the post of Science

teacher which was due to be vacant on 31 st December, 2012.

Respondent No. 5, therefore, sought permission from respondent

Nos. 2 and 3 Said permission was sought on 8 th October, 2012 and

till the appointment was made, respondent Nos. 1 to 3 neither sent

any surplus teacher nor accorded permission to fll in the post. He

submitted that in terms of the judgment of Division Bench of this

Court in Shailaja Ashokrao Walse Vs. State of Maharashtra and

others reported in 1999(1) Mh.L.J. 291, permission is deemed to be

accorded. He further submitted that State Government has taken a

stand that the post was of reserved category. A candidate of reserved

category ought to have been appointed but a candidate from open

category was appointed. He produced a roster indicating that at the

time of appointment, post of open category was vacant. He

submitted that this was the position in the year 2012 and, therefore,

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it is not permissible for State Government to contend that post was

for reserved category. He submitted that Education Offcer rejected

approval on the ground that prior permission of respondent Nos. 2

and 3 was not obtained before fling the post. He submitted that in

terms of the decision of the Honourable Supreme Court in the case of

Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi,

reported in 1978 AIR (SC) 851, State Government cannot travel

beyond the orders passed by the authority. He submitted that the

post was reserved for open category and since approval was not

rejected on that ground but it was rejected on the ground that

permission was not sought, respondent Nos. 1 to 3 are precluded

from raising this issue subsequently.

15. Learned AGP submitted that in the impugned order it is

clearly observed that respondent No. 5 has tendered its explanation

in which it has been contended that the post was reserved for

reserved category and the post was flled from open category as

despite giving advertisement, reserve category candidate could not be

made available. Further, assurance was given that in future the said

post would be flled. She submitted that it is observed in the

impugned order that the roster was not produced and also, according

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to own showing of respondent No. 5, the post belonging to reserved

category was vacant. Therefore, since assurance was given, the

authority did not consider this point. She submitted that the writ

petition deserves to be rejected on this count alone.

16. It is not in dispute that Mr. Chavan was the teacher of

Science subject and was due to retire on 31 st December, 2012. On

29th July, 2012, respondent No. 5 published an advertisement for

flling the post of Science teacher. Obviously, this was done with a

view to prevent loss of students. Petitioner, while tendering rejoinder

affdavit, submitted application dated 8 th October, 2012 which

indicates that respondent No. 5 had sought permission to fll in the

post which was going to be vacant on account of retirement of Mr.

Chavan, Headmaster, on 31st December, 2012. It is pertinent to note

that respondent Nos. 2 and 3 neither accorded nor rejected

permission nor provided surplus teacher and therefore, respondent

No. 5 appointed petitioner by order dated 2 nd January, 2013.

Petitioner joined duties on 5th January, 2013. Having regard to the

chronology of these events, it is apparent that respondent No. 5 had

sought permission for appointment of petitioner well in advance.

Respondent Nos. 2 and 3 neither accorded permission nor rejected

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the same nor sent surplus teacher. Even now, no surplus teacher is

sent to respondent No. 5 - school. Therefore, in terms of the decision

of this Court in the case of Shailaja (supra), permission is deemed to

have been accorded. It is observed in paragraph No. 27 of the

judgment as under :-

27. In the result, the petitions are rejected. However, we direct the State Government through the Secretary, Ministry of Education, to issue the following specifc directions to the Education Offcers/Deputy Directors forthwith:

(a) The cases of approval of the appointment of school teachers shall be decided and the decision be communicated to the respective management/institution within a period of two months from the receipt of the said proposal, by the competent authority.

(b) In case the approval proposal could not be decided within a period of two months, the next higher authority on a specifc request with reasons, may grant an extension of one month to decide the same.

(c) In case the approval proposal is not decided within a period of two months or three months, as the case may be, the concerned appointment or appointments may be deemed to have been approved, if such appointment or appointments is or are in accordance with the provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government Resolutions issued from time to time.

(d) No primary school shall appoint any untrained teacher or any teacher contrary to the provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government

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Resolutions issued from time to time and if such appointments are made or continued, the recognition of the concerned school(s) shall stand withdrawn/cancelled by the Competent authority, as provided for in the Code or in the Bombay Primary Education Act, 1947.

(e) The offcers who fail to comply with the above mentioned schedule for deciding the approval case(s) or grant approval to appointment or appointments contrary to the provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government Resolutions issued from time to time, shall be liable for disciplinary action on account of dereliction in duty as per the Service Rules applicable in that regard.

The State Government to submit a compliance report to the Additional Registrar of this Court, within two months.

16.1 Paragraph No. 27(c) clearly stipulates that if proposal is

not decided within a period of two or three months, the concerned

appointment or appointments may be deemed to have been approved,

if such appointment or appointments is or are in accordance with the

provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government

Resolutions issued from time to time. Therefore, it was

impermissible for State Government to reject approval on the ground

that permission was not sought.

17. So far as the other aspect of the matter is concerned, the

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impugned order states that respondent No. 5 had contended in its

say that sanctioned posts for respondent No. 5-School are fve, out of

them, one post is of Headmaster and four posts are of Assistant

Teacher. Out of those four posts, respondent No. 5 has flled in the

post of Scheduled Caste. However, despite giving advertisement,

candidate from Scheduled Tribe could not be made available and,

therefore, candidate from open category came to be appointed and

assurance was given to the effect that in future appointment from

Scheduled Tribe would be made. It seems that the roster which has

been produced by petitioner in this Court was not produced before

respondent No. 3-Assistant Commissioner, Social Welfare, Nanded.

This roster shows that posts sanctioned are four whereas as per the

contention of respondent No. 5 before respondent No. 3, fve posts

were sanctioned and out of them, four posts are of Assistant Teacher

and one post is of Headmaster. Therefore, the position is not clear.

Respondent No. 5 has itself contended before respondent No. 3 that

the post of Scheduled Tribe was vacant and since the candidate from

Scheduled Tribe was not available, the post was flled in and, on

availability of candidate in future, the backlog would be cleared. The

roster produced before this Court seems to have been approved on 2 nd

March, 2015. Neither petitioner nor State Government has produced

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the roster before this Court. From the roster produced by petitioner

approved on 2nd March, 2015, it cannot be ascertained as to whether

the post of Scheduled Tribe category was vacant in the year 2012.

Therefore, we deem it appropriate to remand the matter to

respondent No. 3 for fresh decision.

18. Petitioner is directed to produce this roster i.e. the roster

approved on 2nd March, 2015, before respondent No. 3. Respondent

No. 5 shall also produce its roster before respondent No. 3.

Respondent No. 3 accordingly to take decision afresh on the proposal

sent by respondent No. 5 for approval of appointment of petitioner. In

this view of the matter, we pass the following order :-

ORDER

i) Petition is partly allowed.

ii) Order dated 27th February, 2018, passed by respondent No. 3 is set aside.

iii) Respondent No. 3 is directed to reconsider the proposal of respondent No. 5 dated 16 th December, 2014, for approval of appointment of petitioner within 6 (six) weeks from the date of receipt of a copy of this order.

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iv) The roster which was produced by petitioner in this Court shall be produced by him before respondent No. 3.

v) Respondent No. 5 shall also produce the roster to clarify whether the post of reserved category or from open category was vacant in the year 2012 i.e. when appointment of petitioner was made.

vi) Respondent No. 3, while considering the proposal afresh, shall not reject the proposal on

was not sought before making appointment of petitioner.

            vii)     Rule made absolute on these terms.




( M. G. SEWLIKAR )                                        ( UJJAL BHUYAN )
       Judge                                                   Judge

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