Nita Pandurang Chavan vs The State Of Maharashtra Thru ...
2021 Latest Caselaw 12941 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION


                               WRIT PETITION NO.5320 OF 2019


           Nita Pandurang Chavan
           Age : Adult, Occupation : Service,
           Resident of Kasba Walva,
           Taluka Radhanagari, District Kolhapur.              ...Petitioner

                       V/s.

      1.      State of Maharashtra,
              Through Department of Education
              Having office at Mantralaya, Mumbai.

      2.      Deputy Director of Education,
              Kolhapur, District Kolhapur.

      3.      Walwa Education Society,
              Walwa Budruk, Taluka
              Radhanagari, District Kolhapur.

      4.      Raghunath New English School And
              Junior College, District Kolhapur.               ...Respondents

                                           WITH
                               WRIT PETITION NO.3496 OF 2021


           Ajay Rangrao Patil                                  ...Petitioner

                       V/s.

      1.      State of Maharashtra,
              Through Department of Education
              Having office at Mantralaya, Mumbai.

      2.      Deputy Director of Education,
              Kolhapur, District Kolhapur.

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3.        Walwa Education Society,
          Walwa Budruk, Taluka
          Radhanagari, District Kolhapur.

4.        Raghunath New English School And
          Junior College, District Kolhapur.                   ...Respondents


     Mr.Chetan G. Patil for the Petitioners in both the Writ Petitions.

     Ms.Kavita N. Solunke, AGP for the State - Respondent Nos.1 and 2.
     in Writ Petition No.5320 of 2019.

     Mr.N.K. Rajpurohit, AGP for the State - Respondent Nos.1 and 2 in
     Writ Petition No.3496 of 2021.

                                       CORAM : R.D. DHANUKA &
                                               ABHAY AHUJA, JJ.

DATE : 9TH SEPTEMBER, 2021.

ORAL JUDGMENT ( Per R.D. Dhanuka, J.) :-

1. By an order dated 30th July, 2021, this Court had made it

clear that Court will make an endeavour to dispose of the writ

petitions finally at the admission stage, subject to time constrain and

no further adjournment would be granted. None appeared for the

respondent nos.3 and 4 when these writ petitions were called out. No

affidavit in reply has been filed by them.

2. We have accordingly heard the learned counsel for the

petitioners and the learned AGP for the respondent nos.1 and 2.

Leaned counsel for the parties jointly state that the facts in both the

writ petitions and the issue of law involved are identical and can be

disposed of by a common order. Both the writ petitions were

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accordingly heard together and are disposed of by a common order.

3. The petitioner in Writ Petition No.5320 of 2019 was

appointed on the post of Shikshan Sevak on 15 th June, 2016 with the

respondent no.4 school after following due procedure. On 15 th June,

2016, the management submitted a proposal for seeking approval to

the appointment of the petitioner to the respondent no.2. It is the

case of the petitioner that all the queries raised by the respondent

no.2 on the said proposal were satisfied. The respondent no.2

however, vide letter dated 4th September, 2019 rejected the said

proposal on four grounds i.e. (i) advertisement is not published in

two newspapers, cutting of two newspapers is not submitted, (ii) no

permission of advertisement was obtained, (iii) there is no caste

certificate and caste validity certificate and (iv) there is dispute in the

management.

4. The petitioner in Writ Petition No.3496 of 2021 was

appointed on 1st August, 2014 as Shikshan Sevak in the respondent

no.4 school. The management thereafter submitted a proposal for

seeking approval to the said appointment on 15 th June, 2016. It is

the case of the petitioner that all queries raised by the respondent

no.2 were satisfied. The respondent no.2 however, passed an order

on 4th September, 2019 rejecting the said proposal for approval to the

appointment of the petitioner to the post of Shikshan Sevak on three

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grounds. (i) No permission was obtained by the petitioner before

issuing any advertisement. The advertisement was not published in

two newspapers and (iii) No caste certificate and caste validity

certificate were issued.

5. Mr.Patil, learned counsel appearing for the petitioners

states that the petitioner was appointed against the reserved

category of OBC. The petitioner had already submitted a caste

certificate issued by the competent authority. The caste certificate

was subsequently issued by the Caste Scrutiny Committee which

was issued after rejection of proposal of the petitioner by the

respondent no.2. He has produced a copy of the said caste validity

certificate annexed to the additional affidavit filed on 18 th March,

2021. He submits that the petitioner was not responsible for the delay

on the part of the Caste Scrutiny Committee in issuing the said caste

validity certificate.

6. It is submitted that the respondent no.2 thus could not

have rejected the approval on the ground that the petitioner had not

submitted the caste certificate or caste validity certificate. Insofar as

the ground raised in the impugned order that there being a dispute in

the management and thus no approval could be granted is

concerned, learned counsel invited our attention to the letter annexed

at page 26 of the writ petition addressed by the management to the

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Deputy Director of Education stating that two of the complaints filed

by the two persons had been already withdrawn and there was no

dispute. He submitted that in any event on such ground, the

Education Officer could not have refused to grant permission. He

invited our attention to the judgment of this Court delivered on 16 th

December, 2016 in case of Narsinha Shikshan Prasarak Mandal &

Ors. vs. Education Officer (Secondary) Zilla Parishad, Kolhapur

& Ors. in Writ Petition No.1847 of 2012.

7. Insofar as the ground that the advertisement was not

published in the paper having wide circulation is concerned, learned

counsel would submit that the management had issued an

advertisement in the leading newspaper Maharashtra Times having

wide circulation. He placed reliance on Rule 9(8) of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981

and would submit that the management having issued the

advertisement before appointing the petitioner to the post of

Shikshan Sevak and having published in the newspapers having

wide circulation, there was compliance of Rule 9(8) of the said MEPS

Rules.

8. It is submitted by the learned counsel that even otherwise

the Deputy Director of Education vide communication letter dated 7th

April, 2019 addressed by the Director of Education (Secondary) to all

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the Deputy Directors has directed that after 2nd May, 2012 if the

appointments were not made without obtaining prior permission of

the Education Officer to issue advertisement, approval shall not be

rejected.

9. It is submitted by the learned counsel that even otherwise

the purpose of issuing such advertisement for the knowledge of

surplus teachers has been served. He submits that it is not the case

of the respondent nos.1 and 2 in the affidavit in reply that there was

any surplus teacher who had made complaint for the alleged non-

compliance of the requirement of prior consent of the Education

Officer or that such surplus teacher was not appointed on the said

post.

10. Learned counsel for the petitioner invited our attention on

the judgment of this Court delivered on 10 th July, 2017 in Writ Petition

No.5587 of 2016 with connected writ petitions filed by Smt.Munoli

Rajashri Karabasappa vs. State of Maharashtra, through

Secretary & Ors. and would submit that this Court in the said

judgment had issued three directions which are required to be

complied with by the Education Officer while examining an individual

approval. He submits that the reasons recorded by the Education

Officer in the impugned order are beyond the directions issued by

this Court in the said judgment.

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11. Mr.Rajpurohit, learned AGP for the respondent nos.1 and

2 in Writ Petition No.3496 of 2021 and Ms.Solunke, AGP for the

respondent nos.1 and 2 in Writ Petition No.5320 of 2019 invited our

attention to the affidavits in reply filed by the respondent nos.1 and 2

and would submit that for the grounds raised in the affidavit in reply,

the petitioner has not made out any case for setting aside the

impugned order passed by the Education Officer. It is submitted by

the learned counsel that under Rule 9(8) of the MEPS Rules duly

substituted with effect from 22nd June, 2017, the petitioner ought to

have notified the vacancy to the Employment Exchange of the

District and to the District Associate Welfare Officer and to the

Association or Organization of persons belonging to the backward

classes. The petitioner has allegedly not complied with the said

requirement under Rule 9(8).

12. Mr.Patil, learned counsel for the petitioner submits that the

approval to the appointment of the petitioner has not been rejected

on such ground and the said ground cannot thus be allowed to be

urged across the bar.

13. Insofar as the ground that there was dispute in the

management in the impugned order is concerned, the management

had brought to the notice of the respondent no.2 by a letter dated 28th

February, 2019 that the complaint filed by two of the persons were

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already withdrawn. Be that as it may, this Court in the judgment in

case of Narsinha Shikshan Prasarak Mandal & Ors. (supra) after

adverting to the earlier judgment in case of Dr.Ishrat Ullah Khan&

Ors. vs. The State of Maharashtra & Ors. in Writ Petition No.4474

of 2012 held that the Education Officer is not required to go into the

inter-se dispute between the management. He is required to see as

to whether the teacher was entitled for grant of approval or not. By

the said judgment, this Court was pleased to set aside the impugned

order and to remand the matter back to the Education Officer with a

direction to decide the matter of approval of the appointment of the

petitioner employee afresh.

14. In our view, the said judgment of this Court in case of

Dr.Ishrat Ullah Khan& Ors. vs. The State of Maharashtra & Ors.

applies to the facts of this case. Even if there is any dispute between

the management inter-se, that cannot be a ground for rejection of the

approval to the appointment of the teaching or non-teaching staff by

the Education Officer. In our view, the reasons recorded by the

respondent no.2 in the impugned order rejecting the approval on the

ground that there was internal dispute between the management is

contrary to law laid down by this Court.

15. A perusal of the record further indicates that the petitioner

had already submitted the caste certificate issued by the competent

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authority. The said caste certificate was referred to the Caste

Scrutiny Committee which was validated on 8 th May, 2019. The

respondent no.2 thus could not have rejected the approval on that

ground. The petitioner was not responsible for the delay on the part

of the Caste Scrutiny Committee in issuing caste validity certificate

which remained pending for quite some time. In our view, the

advertisement issued by the management in the newspaper

Maharashtra Times is in compliance with Rule 9(8) of MEPS Rules.

The newspaper Maharashtra Times has wide publication in the State

of Maharashtra. There is thus no substance in this reason recorded

by the respondent no.2 in the impugned order.

16. In our view, the impugned order is totally erroneous on all

grounds and thus deserves to be set aside. We accordingly pass the

following order :-

a). The impugned orders dated 15th May, 2017 and 4th

September, 2018 are quashed and set aside in both the Writ Petition

Nos.5320 of 2019 and 3496 of 2021. The respondent no.2 - Deputy

Director of Education is directed to grant approval to the appointment

of the petitioner in both the writ petitions on the post of Shikshan

Sevak with effect from the date of initial appointment i.e. 15 th June,

2016 in Writ Petition No.5320 of 2019 and with effect from 1 st August,

2014 in Writ Petition No.3496 of 2021 within four weeks from the

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date of communication of this order.

b). The respondent no.2 shall also release grant-in-aid in

respect of such appointment in favour of the management within six

weeks from the date of grant of such approval, without fail. The

respondent no.2 shall include the name of the petitioner in both the

writ petitions in Salarth ID within four weeks from the date of grant of

approval.

c). Both the writ petitions are allowed in aforesaid terms. Rule

is made absolute accordingly. There shall be no order as to costs.

The parties to act on the authenticated copy of this order.

(ABHAY AHUJA, J.)                                 (R.D. DHANUKA, J.)