Bombay High Court
Savita Somnath Gunjal vs The State Of Maharashtra And ... on 3 October, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 WP / 12528 / 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12528 OF 2017
Smt. Savita Somnath Gunjal,
Age : 37 years, Occ. Service,
R/o. Gunjalwadi, Post. Rajapur
Tq. Sangamner, Dist. Ahmednagar .. Petitioner
Versus
1] The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Bombay - 32.
2] The Director of Education,
Pune Division, Pune - 1,
Dist. Pune
3] The Deputy Director of Education,
Pune Division, Pune - 1,
Dist. Pune
4] The Education Officer (Secondary),
Zill Parishad, Ahmednagar,
Dist. Ahmednagar
5] Netaji Subhashchandra Bose
Gramin Vikas Mandal,
At. Post. Dongargaon, Tq. Akole,
Dist. Ahmednagar,
Through its Secretary
6] Netaji Subhaschandra Bose
Madhyamik Vidhyalaya, Dongargaon,
Tq. Akole, Dist. Ahmednagar,
Through its Head Master
7] Rajesh Santu Sahane,
Age : 40 years, Occu. Service,
C/o. Netaji Subhashchandra Bose
Madhyamik Vidhyalaya Dongargaon
Tq. Akole, Dist. Ahmednagar .. Respondents
::: Uploaded on - 04/10/2022 ::: Downloaded on - 04/10/2022 18:57:05 :::
2 WP / 12528 / 2017
...
Advocate for petitioner : Mr. S.K. Shinde
AGP for respondents nos. 1 to 4 - State : Mr. K.N. Lokhande
Advocate for the respondent no. 5 and 6 : Mr. Shivaji T. Shelke
Advocate for respondent no. 7 : Mr. P.B. Shirsath h/f. Mr. S.S. Wagh
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 27 SEPTEMBER 2022
PRONOUNCED ON : 03 OCTOBER 2022
JUDGMENT (MANGESH S. PATIL, J. ) :
Heard.
2. Rule. Rule is made returnable forthwith. Mr. Lokhande,
AGP waives service for respondents nos. 1 to 4, Mr. S.T. Shelke
waives service for respondents nos. 5 and 6 and Mr. Shirsath
h/f. Mr. Wagh waives service for respondent no. 7. At the joint request
of the parties, the matter is heard finally at the stage of admission.
3. The petitioner was appointed as a Graduate Trained
Teacher by respondent no. 5 - management on 13-07-2005. She is
aggrieved by the approval granted by the respondent - Education
Officer to the appointment of the respondent no. 7 in preference to her
and is seeking approval to her own appointment.
4. The learned advocate Mr. Shinde would submit that the
petitioner was duly appointed by following all the necessary procedure
prescribed under the Maharashtra Employees of Private Schools
3 WP / 12528 / 2017
(Conditions of Service) Act (MEPS Act) and the rules framed
thereunder. She was duly qualified and the management ought to
have forwarded her proposal. She had to file a writ petition in this
Court and pursuant to the directions of this Court, the respondent -
Education Officer was called upon to decide her case for grant of
approval. In the meantime, the respondent no. 7 was appointed by the
respondent no. 5 - management even when there was no vacancy and
the proposal for grant of her approval was rejected by the Education
Officer on 31-12-2014. The respondent no. 7 had filed writ petition in
this Court and the petition was disposed of by directing the respondent
no. 5 - management to respond to the queries being raised and to
submit a fresh proposal. However, while that petition was being
decided, the respondent - management had not pointed out the order
passed by this Court in the petitioner's petition. Ultimately, the
proposal regarding petitioner's appointment was forwarded.
Resultantly, instead of considering and granting approval to the
appointment of the petitioner, the respondent - management managed
to forward the respondent nos. 7's proposal even when there was no
vacancy and which has resulted in granting approval to the latter's
appointment, thereby closing all the doors for the petitioner.
4 WP / 12528 / 2017
5. The learned AGP would support the orders and
submitsthat only one post was vacant and the management could have
filled it but the appointment of the petitioner was never made by
following necessary procedure as prescribed by section 5 of the MEPS
Act read with rule 9 and, therefore, there is no question of grant of
approval to her appointment.
6. The learned advocate for the management would submit
that though the petitioner was appointed on 13-07-2005, the proposal
was sent for approval to her appointment on 25-06-2010. The
respondent - Education Officer sought certain clarifications which could
not be complied and consequently she was terminated from service on
06-10-2015 since the Education Officer had not granted approval to her
appointment. However, considering the valuable services rendered by
her for more than 10 years, the management subsequently withdrew
the termination as indicated in the affidavit in reply.
7. The learned advocate for the respondent no. 7 would
submit that pursuant to the directions of this Court in writ petition no.
11576 of 2015 in her petition, the Education Officer by the order dated
04-10-2016 has granted approval to her appointment strictly in
accordance with law. The appointment of the petitioner was illegal and
the Education Officer rightly refused to grant approval for variety of
reasons mentioned in the impugned communication dated 29-03-2017.
5 WP / 12528 / 2017
8. We have carefully considered the rival submissions and
perused the papers.
9. It does appear that the petitioner was appointed first in
point of time and respondent no. 7 was appointed thereafter. This Court
in the writ petition filed by the petitioner had directed the management
to forward the proposal for grant of approval to her appointment and
had called upon the Education Officer to consider it. It is also a matter
of record that after such order was passed in favour of the petitioner,
the respondent no. 7 had approached this Court and a direction was
issued to the management and the Education Officer to consider
approval to her appointment. It is pursuant thereto, the approval has
been granted to the appointment of the respondent no. 7 and
subsequently by the impugned communication, petitioner's
appointment has not been approved.
10. A careful perusal of the order of the Education Officer in
respect of the petitioner clearly reveals that he has quoted as many as
14 reasons for refusing to grant the approval. Apart from some
technical compliances, it was specifically pointed out that no record
was furnished to him to demonstrate availability of a sanctioned post.
A copy of the permission / intimation to his office was not produced.
There was no record to demonstrate about the management having
ascertained the backlog of reserved category candidates. There was
6 WP / 12528 / 2017
no evidence regarding publication of a notice and regarding call letters
having been issued to the candidates responding to the advertisement
and even the roaster was not got approved.
11. In view of such specific and precise grounds, when we
asked the learned advocate for the petitioner as also the learned
advocate for the respondent - management to point out to us the
record to refute the aforementioned grounds, they have been unable to
do so. The importance of intimating the Education Officer before
undertaking a recruitment process, as is required by section 5 of the
MEPS Act and rule 9 of the rules framed thereunder need not be
over-emphasized. The procedure is mandatory and has to be followed
by the management before undertaking a recruitment process. The
whole process of providing for such a procedure is, firstly, to obviate
any undesired recruitment even without sanction of the post, fair
opportunity to the persons eligible to apply for appointment and to see
to it that reservation policy is followed in letter and spirit.
12. In view of absence of concrete material either before the
Education Officer or before us regarding compliance with these
provisions, we are afraid, we cannot issue any mandamus directing the
Education Officer to reconsider the petitioner's case. We see no
apparent illegality or perversity in the decision taken by the Education
Officer refusing to grant approval to the petitioner's appointment.
7 WP / 12528 / 2017
13. In view of the aforementioned facts and circumstances,
we deem it inappropriate to enter into the controversy as regards the
appointment of the respondent no. 7. The petition is dismissed.
14. Rule is discharged.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
