Bombay High Court
Mrs. Rachana Tushar Patil vs The State Of Maharashtra Thru ... on 3 April, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:9991 Rachana T Patil v The State of Maharashtra & Ors
7.aswp-1841-2019-J.doc
Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1841 OF 2019
Rachana Tushar Patil,
Aged 39 yrs, Occ: Service, R/at 20,
Churchgate Mansion, A Road, Churchgate,
Mumbai 400 020. ...Petitioner
~ versus ~
1. The State Maharashtra,
Through the Secretary,
School Education Department,
Mantralaya, Mumbai 400 032.
2. The Education Inspector,
Greater Mumbai, Western Region,
Having Office at Jogeshwari (E),
Mumbai 400 060.
3. Ratnagiri Maratha Dnyati
Samaj,
Mumbai, Jogeshwari (E),
Mumbai 400 060,
Through its Chairman/Secretary.
4. Bal Vikas Vidyamandir,
Sanghwadi, Jogeshwari (E),
Mumbai 400 060,
Through its Head Master. ...Respondents
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A PPEARANCES
for the Petitioner Mr NV Bandiwadekar, Senior
Advocate, with Vinayak
Kumbhar, i/b AN
Bandiwadekar.
for the Ms PN Diwan, AGP.
Respondents No. 1 &
2-State
for Respondents Mr Sagar Ghogre, with Anita Patil,
No. 3 & 4. i/b Sandeep Ghogare.
CORAM : G.S.Patel &
Neela Gokhale, JJ.
RESERVED ON : 24th March 2023
PRONOUNCED ON : 3rd April 2023
JUDGMENT (Per Neela Gokhale, J):-
1. Rule. The Respondents have filed their Affidavits in Reply. By
consent, Rule made returnable forthwith.
2. The 1st Respondent is the Education Department of the State
of Maharashtra and the 2nd Respondent is the Education Officer of
the Western Region. The 3rd Respondent is the Institution that runs
the 4th Respondent school.
3. The Petitioner assails an order dated 17th July 2018 issued by
the 2nd Respondent, the Education Inspector, Greater Mumbai,
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Western Region, refusing approval to the appointment of the
Petitioner as 'Shikshan Sevak' in the 4th Respondent school. She
has also sought a direction to the 2nd Respondent to grant further
approval as Full Time Assistant Teacher in the related pay scale
with effect from 16th June 2017 and to release grant-in-aid for
monthly honorarium for three years and thereafter monthly salary in
pay scale, together with arrears.
4. Respondents No. 1 and 2 have contested the Petitioner's
claim primarily on the ground that the post has been filled without
there being a vacancy in the OBC category. Additionally, the State
has also pointed out various deficiencies in the proposal submitted
by the Management for approval of her post. Respondents No. 3 and
4 have supported the Petitioner.
5. FACTUAL MATRIX
i. The Petitioner belongs to the Hindu Kunbi Caste
(OBC category). According to the Petitioner, she has
completed her M.A (English) and B.Ed. (English).
ii. Responding to an advertisement dated 22nd March
2014 issued by the 3rd Respondent in the daily
newspaper 'Maharashtra Times' inviting applications
having qualifications of B.A and B.Ed. with
reservations for SBC, NT(D) and OBC, the Petitioner
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applied for the post of an English Teacher. The
selection committee interviewed her and other
candidates and recommended her name for
appointment to the said post. Accordingly, the
Petitioner was appointed as 'Shikshan Sevak' for three
years i.e. from 16th June 2014 to 15th June 2017. The
school committee approved her appointment in its
meeting and the Petitioner submitted her joining
report.
iii. Despite various communications made by the
Management with the Education Inspector for grant of
approval to the appointment of the Petitioner, there
was no approval forthcoming and eventually, by letter
dated 17th July 2018, the Education Inspector
conveyed his refusal to grant approval to the
Petitioner's appointment as 'Shikshan Sevak' citing
various deficiencies in the proposal submitted by the
Management in that regard. It is this communication
which has been impugned by the Petitioner by way of
the present Petition.
6. SUBMISSIONS OF THE PETITIONER
i. Mr Bandiwadekar, learned Senior Counsel appearing
for the Petitioner, contends that vacancies were created
in the 4th Respondent school due to retirement of
teachers namely, Mrs. Madhuri Lahane (B.A., B.Ed.),
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Mrs Sunanda Raut (B.A., B.Ed.) and thereafter Smt.
Janhavi Tawade (M.A., B. Ed.). The Management had
sought NOC from the 2nd Respondent to fill up the
available vacancies for NT(D), SBC and Open
category, by letters dated 21st February 2013, 25th
October 2013 and 4th January 2014 respectively. The
2nd Respondent has granted the required 'no
objections' by letter dated 20th October 2013 to fill up
three vacancies out of which two were for English
subject. According to the Petitioner, her appointment
has been made in the vacancy which became available
due to the retirement of another teacher namely Smt
Janhavi Tawade.
ii. The Petitioner contends that she applied for the post
from the OBC category, was interviewed by the
Selection Committee and pursuant to its
recommendation was appointed on the post of English
Teacher as 'Shikshan Sevak'. She gave her joining
report and the Management approved her
appointment.
iii. Mr Bandiwadekar contends that despite several
requests and communications by the Management
seeking approval for the Petitioner's appointment,
there was no response from the 2nd Respondent.
Copies of various such communications have been
placed on record to support his contention. Copies of
communications between the Deputy Director of
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Education and the Education Inspector inter se have
also been placed on record indicating his assent to grant
approval subject to NOC and necessary compliance by
the Management.
iv. Ultimately, by a letter dated 17th July 2018, the 2nd
Respondent refused to grant approval citing various
deficiencies in the proposal submitted by the
Management. The Headmistress of the 4th
Respondent provided an explanation to the deficiencies
raised and also brought to the attention of the
Education Inspector, a Government Resolution
("GR") dated 24th August 2018, which directed that
whenever a proposal for approval in a private school
was rejected on the ground of no NOC, such proposal
should be reconsidered.
v. Following the above explanation, the 2nd Respondent
directed the Respondents No. 3 and 4 to remain
present for a personal hearing scheduled on 5th
October 2018 at 3:30 pm. The hearing was adjourned
to 31st October 2018 and on that date, the Management
explained the entire situation to the Education
Inspector. They were told that the decision shall be
communicated to them in due course. However, as per
the Petitioner, till date no decision has been
communicated either to the Management or to her with
regard to the approval.
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vi. The Petitioner contends that the deficiencies marked in
the impugned letter were curable and the 2nd
Respondent ought to have given opportunity to the
Management to cure the same. The deficiencies
pointed out are firstly, there is difference in the
category of the posts in the NOC, advertisement and
the posts actually filled; secondly, the Roster Register
has not been verified by the Assistant Commissioner;
thirdly, there are various surplus teachers in Marathi
Medium and they needed to be absorbed; fourthly, the
mark sheet of the candidates present for interview were
not submitted and lastly there was no document
produced regarding change in name of the Petitioner.
vii. The Petitioner insists that the deficiencies pointed out
are incorrect, the appointment was made on posts
created on account of retirement of some teachers,
selection process was duly followed, there were no
discrepancies in the NOC, category of posts or the
advertisement, the chart of marks allotted to each
candidate was a curable defect and she had submitted
the Gazette showing change of her name. She also
contends that the Management ought to have been
called upon to give explanation and cure the
deficiencies.
viii. The Petitioner also relied upon various precedents of
this Court including the common judgment and order
dated 10th July 2017 passed in a bunch of Writ
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Petitions, the lead Petition being Writ Petition No.
8587/2016, in the matter of Munoli Rajeshri
Karabasappa vs State of Maharashtra & Ors1 in which
the Division Bench of BR Gavai J (as he then was) and
RI Chagla J has held that when the appointment is
made for English/Maths/Science subject, the ban on
recruitment in private schools imposed under the GR
dated 2nd May 2012 for the purpose of absorption of
surplus teacher before new recruitments are made
would not apply. This decision was followed in several
other Petitions by the Hon'ble Division Benches and
also by the Learned Single Judges of this Court were
relied upon by the Petitioner.
ix. The Management has also supported the contentions
of the Petitioner by way of their Affidavit in Reply and
has placed reliance on the same documents placed on
record by the Petitioner.
7. SUBMISSIONS OF THE RESPONDENT NO. 2:
i. Per contra, Ms Diwan, the learned AGP for the State,
contests the Petition on the ground that the Education
Inspector had issued NOC letter dated 20th October
2013 to appoint teachers in VJNT (D)-1, SBC-1 and
Open-1 category. She emphatically points out that
there was no vacancy in the OBC category. The State
1 2017 SCC OnLine Bom. 10130.
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Government had catered for filling up the vacant post
in the category of VJNT (D)-1, SBC-1 and Open-1 in
place of the retiring teachers in the school. In the
absence of vacancies, the Management had issued
advertisement in daily newspaper 'Maharashtra Times'
inviting applications to fill up the posts in the category
of SBC, NTD and OBC to which the Petitioner
responded and was eventually appointed.
ii. In addition, the 2nd Respondent claims to have
provided surplus teachers to the school and hence
there was no question of appointing the Petitioner. The
2nd Respondent reiterates that he had given proper
opportunity of hearing to the Management, but the
Management had failed to cure the deficiencies pointed
out by the 2nd Respondent. Ms Diwan further relies on
the deficiencies pointed out in the impugned rejection
letter dated 17th July 2018.
8. ANALYSIS:
i. A perusal of the documents placed on record by the
Petitioner and the Management indicates that the 2nd
Respondent had granted NOC to fill up vacancies
created by retirement of three teachers, pursuant to the
requests made by the Management. The NOC was
granted to fill up the three posts of teachers on aided
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and full time basis in the VJ-D, SBC and Open
category.
ii. The advertisement issued by the Management clearly
shows that applications were invited from interested
candidates from the SBC, NT(D) and OBC category to
fill up the posts of the teachers in the school. Thus, the
Management sought to fill up a post in the OBC
category despite the absence of any vacancy in that
category.
iii. The record further reveals that the Management
sought approval of the Petitioner's appointment for the
first time on 24th August 2017 i.e. after the tenure of
three years of the service of the Petitioner as 'Shikshan
Sevak' was over. Undoubtedly, they sent several other
letters seeking retrospective approval for the post, but
the exercise was too little and too late.
iv. The 2nd Respondent by his letter dated 17th July 2018
appears to have refused the approval as sought by the
Management on the following grounds:
"1. There is difference in the category of the
posts in the NOC, advertisement and the
posts actually filled.
2. The Management has not got the Roster
Register verified from Assistant
Commissioner, BC Cell, Konkan Bhavan.
3. As per the Sanch Manyata of A.Y. 2015-16
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there are several surplus Teachers in Marathi
Medium in this Division and they are not yet
absorbed.
4. The mark sheet of the candidates present
for interview is not submitted.
5. No evidence is produced regarding change
in name of Smt. Rachana Tushar Patil."
v. We have examined the deficiencies raised at Points
No.2 to 5 of the impugned letter. The objections are
untenable. The record shows that the Roster Register
has been verified by the Assistant Commissioner, BC
Cell, Konkan Bhavan. In so far as the objection in
respect of several surplus teachers in Marathi medium
is concerned, it is clear that the Petitioner has been
appointed as an English teacher and hence, this
objection is irrelevant. The objection relating to the
submission of mark sheets of the candidates present for
the interview is a curable deficiency and in fact the
same has been cured. Furthermore, the Gazette in
respect of change of name of the Petitioner was also
furnished and hence this deficiency was also cured.
vi. The most pertinent objection taken by the Government
and which is of consequence relates to the appointment
of the Petitioner in absence of a vacancy in the OBC
category. It is settled law that recruitment has to be
done in a regular manner and only against available
post. The Management does not have a blanket power
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to create new posts which were not sanctioned as to
make recruitment thereon. The Management have no
authority to throw the recruitment procedure to the
winds and to make the recruitment in an arbitrary
manner.
vii. In the matter of Ashwani Kumar v State of Bihar,2 the
Supreme Court held that it is axiomatic that unless
there is a vacancy there is no question of filling it up.
There cannot be an employee without a vacancy or
post available on which he can work or can be paid as
per the budgetary sanction. The Apex Court has
further held that if the initial entry is itself
unauthorized and the appointment is not against a
sanctioned vacancy, the question of regularizing of
services would never arise for consideration and even if
such purported regularization or confirmation is given,
it would be an exercise in futility. The Supreme Court
has reiterated this view in its recent judgment in the
matter of State of Bihar & Ors v Devendra Sharma.3
viii. The Petitioner has relied upon the judgment of the
Division Bench of this Court in the case of Munoli R.
Karabasappa and other judgments. It is evident from
the perusal of the said judgments that the same are
wholly inapplicable to the issues arising in the present
case. The said judgments are in respect of withholding
2 (1997) 2 SCC 1.
3 (2020) 15 SCC 466.
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approval for appointments by the State Government on
account of ban on recruitment of Assistant Teacher till
100% absorption of surplus teachers. This Court has
held that the ban has been relaxed in the cases of
appointment of teachers for the subjects of English,
Mathematics and Science and hence, directed the
Education Officers to examine the independent cases of
teachers and accordingly grant approval. The issue in
the present matter does not involve any serious
objection by the Respondents No.1 and 2 on account of
ban on recruitment. The reason for refusing approval in
the present case is on account of non availability of
vacancy in the OBC category.
ix. Another contention of the Petitioner relating to the
Management not having been given a proper
opportunity to cure the deficiencies is also not
sustainable. As mentioned, the approval to the
Petitioner's appointment was sought by the
Management for the very first time only three years
after the tenure of the Petitioner as Shikshan Sevak was
completed. Hence, it is the Management and not the
2nd Respondent which has been negligent in pursuing
the approval for the appointment of the Petitioner.
9. For the reasons stated herein above, prayer (b) of the Petition
seeking to quash and set aside the letter dated 17th July 2018 issued
by the 2nd Respondent No.2 refusing approval to her appointment
is rejected. Consequently, directions cannot be given to the
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Respondents No.1 and 2 to approve the further appointment of the
Petitioner as Full Time Assistant Teacher in related pay scale and
further to release the grant in aid for payment of monthly
honorarium for three years and thereafter monthly salary in pay
scale along with arrears.
10. It is unfortunate that the service rendered by the Petitioner
for the three year tenure as 'Shikshan Sevak' and six years thereafter
in pursuance of the interim order dated 12th February 2019 passed
by this Court in terms of prayer clause (d) cannot culminate in
permanent employment. But the initial entry of an employee must
be made against an available sanctioned vacancy by following the
Rules and Regulations governing such entry. There would never
arise an occasion for regularizing an appointment of an employee
whose initial entry itself is tainted, especially when there is no
vacancy in that particular category. Thus, this appointment cannot
create any right in her favour. The error and the negligence appear
to be completely on the part of the Management, i.e., the
Respondents No.3 and 4. Having regard to this, we hereby direct the
Respondents No.3 and 4 to pay the arrears of salary accrued to the
Petitioner by 12th April 2023 and continue to pay her monthly salary
on the applicable pay scale.
11. The Writ Petition is disposed of in these terms. All interim
orders stand vacated forthwith. No order as to costs.
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12. This order is executable against Respondents Nos. 3 and 4 for
the full amount of arrears of salary to be paid by the Management to
the Petitioner.
(Neela Gokhale, J) (G. S. Patel, J)
3rd April 2023
