Bombay High Court
Santosh Laxmansa Gathadi vs The State Of Maharashtra Through ... on 8 December, 2022
Bench: V. V. Kankanwadi, Y. G. Khobragade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14064 OF 2021
Santosh Laxmansa Gathadi ... Petitioner
Age 52 years, Occu: Service,
R/o Plot No.42, Shivshakti Nagar, Near
Chalani Colony, Manwat Dist. Parbhani
VERSUS
1. The State of Maharashtra,
Through its secretary,
School Educaton Department,
Mantralaya, Mumbai 400 032
2. The Deputy Director of Education,
Aurangabad Division, Aurangabad
Near Deogiri College, Station Road,
Aurangabad
3. The Education Officer (Secondary), ... Respondents
Zilla Parishad, Parbhani
4. Netaji Subhash Shikshan Sanstha,
Manwat, Tq. Manwat, Dist. Parbhani
5. The Headmaster,
Netaji Subhash Vidyalaya,
Manwat, District Parbhani
Mr. C. K. Shinde Advocate for the petitioner,
Mr. S. B. Yawalkar, AGP for respondent Nos.1 to 3,
Mr. K. J. Suryawanshi, Advocate for respondent Nos. 4 and 5
CORAM : SMT. VIBHA KANKANWADI &
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 10th NOVEMBER, 2022
PRONOUNCED ON 8th DECEMBER, 2022
Page 1 of 11
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JUDGMENT ( Per Y. G. Khobragade, J.):
1. Rule. Rule made returnable forthwith. With the consent of
both the sides, the matter is heard finally at the stage of admission.
2. By the present petition under Article 226 of the Constitution
of India, the petitioner seeks directions against respondent No.2 Deputy
Director of Education, Aurangabad for inclusion of his name in Shalarth
ID System in pursuance of Government Resolution dated 07.11.2012.
The petitioner also prays for quash and set aside of the order dated
29.10.2021 passed by respondent No.2 rejecting his proposal for
inclusion of his name in Shalarth ID System.
3. In nutshell, it is the case of the petitioner that, vide
appointment order dated 24.04.2012, he was appointed as Class-IV
employee(Peon) with respondent No.5 School after following prescribed
procedure on clear vacant post. Initially, he was appointed on probation
for a period of two years in pay-scale of Rs.1700/- and respondent No
3. Education officer accorded approval to his appointment on
06.10.2014. However, there were some complaints received by
respondent No.3 Education Officer against respondent No.5
Headmaster for not allowing some employees to discharge their duties.
Therefore, respondent No.2-Education Officer appointed Deputy
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Education Officer (Secondary) Z.P. Parbhani to make enquiry in respect
of teaching and non teaching staff members of the respondent No.5
school. Accordingly the Deputy Education Officer visited the
respondent no.5 school and made detail enquiry in respect of employees
who were not being allowed to sign muster rolls. The Deputy
Education Officer submitted it's report on 12.04.2014 and observed
that the appointment of the present petitioner is under signature of
Shri Marotroa Sorerkar, Secretary of respondent No.4, vide outward
No. 173/2012 dated 24.04.2012. Appointment of the petitioner shown
against the OBC category and signature of the petitioner appearing
w.e.f. 27.04.2012. The enquiry officer (Deputy Education Officer) also
made enquiry with Headmaster of respondent No.5 school and had
called for production of muster roll but it was not produced. On
enquiry it has been revealed that, names of employees whose
appointments have been approved by the Education officer were
included in the muster roll and appointment of the present petitioner
not been approved.
4. Learned counsel appearing for the petitioner submitted that
on 06.10.2014, respondent No.3 Education officer (Secondary) granted
approval to the appointment of the petitioner as per Shikshan Sevak
Scheme for the period from 27.04.2012 to 26.04.2015. As such, the
petitioner successfully competed probation period, hence, he acquired
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the status of permanent employee. Thereafter, on 16.05.2018,
respondent No.3 granted continuity in service to the petitioner on
successful completion of probation period with effect from 27.04.2015.
Therefore, the school management submitted proposal to respondent
no.2 for inclusion of name of the petitioner in Shalarth I.D. system as
per GR dated 07.11.2012 but after enquiry, the respondent no.2 Deputy
Director of Education passed order dated 29.10.2021 (Exh.E) and
rejected claim of the petitioner for inclusion of his name in the Shalarth
I.D system.
5. Learned counsel appearing for the petitioner further
canvassed that, appointment of the petitioner was within the approved
strength of class-4 employees with respondent no.5 and petitioner
never been declared surplus. Respondent No.3 granted approval for
appointment of the petitioner. Therefore, name of the petitioner needs
to be included in Shalarth I.D. However, respondent No.2 passed
impugned order on 29.10.2021 and refused to include name of the
petitioner in Shalarth ID System. Therefore, impugned order is illegal,
bad in law and prayed for quash and set aside the same.
6. Per contra, Shri S. B. Yawalkar, learned AGP appearing for
respondent Nos. 1 to 3 submitted that, though the petitioner claimed
that on 27.04.2012 he was appointed to the post of peon in OBC
category and vide order dated 06.10.2014 respondent no.3 approved
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his appointment. However, on 10.01.2020 and 17.06.2021, a proposal
for inclusion of name of the petitioner in Shalarth ID was received from
respondent No.5 and in pursuance of directions issued by this Court in
Writ Petition Nos. 12857/2019, 3411/2019, 13248/2019, respondent
No.2 made detail enquiry and granted opportunity of hearing to the
petitioner. Roster was verified on 30.11.2012 and as per Roster, only
126 posts of Secondary teachers staff with respondent no.4 Education
society were sanctioned and out of those posts, total 110 posts were
already filled up by respondent no.4 Education Society and 16 posts
were shown vacant. There were 44 non teaching sanctioned posts out of
which 6 posts are vacant and there was backlog of 27 posts including 16
posts of secondary teachers, 5 posts of primary teachers, 4 posts of Jr.
Clerk/Lab. Assistant and 2 posts of peons and respondent no.4. There
were 24 posts of peon/Lab. Attendant and management filled up 25
posts. The appointment of the petitioner made against OBC quota
which is against reserved posts and it is illegal appointment, is itself
illegal. The Assistant Commissioner, B.C. Cell also informed to the
Education Officer, ZP vide letter dated 14.2.2014 that due to pendency
of change report roster cannot be verified. The petitioner's appointment
was made by respondent No.4 without publication of advertisement and
without prior sanction from the Education Officer.
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7. The learned AGP further canvassed that, though the petitioner
claimed about his appointment in the year 2012 but first time, proposal
for inclusion of name of the petitioner in Shalarth ID received by
respondent No.3 in the year 2020 and neither the petitioner nor
Respondent no.4 Education society satisfied about delay in submitting
proposal for inclusion of name of the petitioner in Shalarth ID. There
is dispute between two groups of management for change report
which is pending before the Assistant Charity Commissioner, Parbhani
and it has not been decided which body of management was in power
from 2006-2007 onward and appointment of the petitioner is illegal,
therefore respondent no.3 refused to include name of the petitioner in
Shalarth ID. So also, other 26 teaching and non teaching staff also
claimed for inclusion of their names in Shalarth ID, though their
appointments are made without considering vacancy. Therefore, the
impugned order does not suffer from illegality.
8. Mr. K.J. Suryawanshi, the learned advocate appearing for
respondent Nos. 4 and 5 vehemently submitted that the appointment of
the petitioner was not made against the sanctioned and vacant posts
and the petitioner himself stated that respondent no. 5 did not allow
him to sign muster roll. Therefore, the services of the petitioner deemed
to be terminated and the petitioner not worked with respondent no. 5
school. So also, no service record of the petitioner is available with
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respondent no.4 Education Society. Therefore, name of the petitioner
not been included in the Shalarth ID and respondent no.3 passed
impugned order and declined to include name of the petitioner in
Shalarth ID because the appointment of the petitioner is not made
against sanctioned and vacant posts as well as as per roster. Hence,
prayed for dismissal of the petition.
9. It appears that the respondent No. 4 Education society runs
respondent No.5 school on Government aid basis and the petitioner
allegedly been appointed under appointment order dated 24.12.2012 to
the post of peon, however, the petitioner has not brought any material
on record to show that prior to appointment of the petitioner, any
advertisement was issued by respondent no. 4 after getting sanction
from respondent no.3 to fill up the post of peon. The appointment of
the petitioner shown against OBC quota without verifying roster points.
In the appointment letter it was shown by respondent no.4 that
appointment of the petitioner was made on the post of peon initially
for the period of 2 years on probation on pay scale of Rs.1700/-. As per
section 5 of the Maharashtra Employees of Private Schools (Conditions
of Service) Act, 1977 prior permission of the Education Officer is
required to be obtained, however, nothing has been brought on record
to show that any prior permission was obtained from the Education
Officer under section 5 of the MEPS Act which is mandatory.
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10. On the face of record, it shows that due to some irregularities
in respect of appointment of teaching and non teaching, several
complaints were received by the Education officer, therefore, the
Education Officer directed enquiry in respect of the appointment of the
teaching and non teaching staff. The Deputy Education Officer
conducted enquiry by issuing notices to the employees including
respondent No.4 Education society. Thereafter the Deputy Education
Officer submitted its report on 12.04.2014 and opined that appointment
of the present petitioner was made under signature of Shri Marotroa
Sorekar, Secretary of respondent No.4 Education Society at outward
no. 173/2012 dated 24.04.2012. Since appointment of the petitioner
allegedly made against OBC category without verifying roster and
signature of the petitioner appearing on muster roll with effect from
27.04.2012, but it has not been specified till which date the petitioner
signed muster roll. The Deputy Education Officer called the respondent
No.5 for production of muster roll but it was never produced. The
record further reveals that the Education Officer verified the roster of
secondary teachers staff sanctioned with respondent no.4 and there
were 126 sanctioned posts of secondary teachers staff in the Institution
and out of those posts, total 110 posts were already filled up by
respondent No. 4 Society and 16 posts were shown vacant and there
are 44 posts of non-teaching staff out of which 6 posts were lying
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vacant and there was backlog of 27 posts which includes 16 posts of
secondary teachers, 5 posts of primary teachers, 2 posts of peon. But
the respondent Management filled up 25 posts. Total 26 teaching and
non teaching staff claiming including of their names in Shalarth ID.
Appointment of the petitioner is against OBC category which is against
the reserved posts, but there is no clarification about laying vacancy
under OBC category on the date of appointment of the petitioner.
Therefore, the appointment of the petitioner is illegal and the Assistant
Commissioner, BC Cell informed to the Education Officer that the
appointment of the petitioner was made by respondent No.4 without
publication of advertisement and without prior sanction. Thereafter, the
proposal for inclusion of name of the petitioner in Shalarth ID System
received by respondent No.3 in the year 2020 i.e. after eight years from
the appointment order of the petitioner, as per Government Resolution
dated 07.11.2012 by which the State Government decided to include
name of the teaching and non teaching staff in the Shalarth ID system.
Since the appointment of the petitioner is illegal and no proposal was
forwarded for eight years, the respondent No.4 refused to include name
of the petitioner in Shalarth ID system along-with other 26 teaching
and non teaching staff members of the respondent No.4 Education
Society, which does not appear illegal.
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11. Nonetheless, there is dispute between two groups of
management and change reports bearing Nos. 589/2006, 197/2006,
1267/2013, 1269/2013, 748/2013 and 1022/2010 are pending before
the Assistant Charity Commissioner, Parbhani and appointment of the
petitioner appears to be made on on 24.02.2012 under the signature of
Marotrao Sorekar, Secretary of respondent No.4 Society.
12. Since name of the petitioner having not been appeared in
the muster roll, respondent No.5 Headmaster did not allow the
petitioner to sign muster roll, therefore, respondent No.3 not included
name of the petitioner in Shalarth ID system. Though as per GR dated
07.11.2012 (Exh.F), it was mandatory to include names of teaching
and non teaching staff members in Shalarth ID system, but the
appointment of the petitioner and others are being made some time in
the years 2008, 2009, 2010, 2012, 2014 but there is no clear whether
the respondent No.5 Headmaster produced pay bills and there is no
demand of salary and such explanation not been given either by the
office bearers of the respondent No.4 Education society or the
Education officer as to why name of the petitioner and other employees
not been included in Shalarth ID system, though the appointment of
the petitioner allegedly been made prior to coming into force the
Government resolution dated 07.12.2012. So also there is no record
available with the office of Education officer, Zilla Parishad, Parbhani
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and with respondent No.4 Education Society and though only 24 posts
are available, respondent No.4 made appointment of 25 persons.
Therefore, respondent No.2 Deputy Director of Education refused to
include name of the petitioner and others in Shalarth ID which does
not appear illegal, bad in law. Therefore, to our conscious view, the
present petition deserves to be dismissed. Accordingly we proceed to
pass following order:
ORDER
1) Writ petition is dismissed.
2) Rule is accordingly discharged.
3) No order as to costs.
(Y. G. KHOBRAGADE, J.) (SMT. VIBHA KANKANWADI, J. )
JPChavan
