Bombay High Court
Gramvikas Shikshan Mandal ... vs The State Of Maharashtra Thr The ... on 26 April, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:12583-DB Gramvikas Shikshan Mandal & Ors v The State of
Maharashtra & Ors
6-aswpst-4493-2022-J.doc
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 4493 OF 2022
1. Gramvikas Shikshan
Mandal,
Ainwadi, Taluka: Khanapur,
District: Sangli,
Through its President/Secretary.
2. Agasti Vidyalaya Ainwadi,
Taluka: Khanapur, District: Sangli,
Through its Head Master.
3. Nayaj Balekhan Tamboli,
Age: 34 Years, Occupation: Service,
Address: A/P Khanapur,
Taluka: Khanapur, District: Sangli. ...Petitioners
~ versus ~
1. The State of Maharashtra,
Through the Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai-400 032.
2. The Commissioner of
Education,
School Education Department,
Maharashtra State, Pune.
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Gramvikas Shikshan Mandal & Ors v The State of
Maharashtra & Ors
6-aswpst-4493-2022-J.doc
3. The Director of Education,
(Secondary and Higher Secondary),
Maharashtra State, Pune-1.
4. The Deputy Director of
Education,
Kolhapur Region, Kolhapur,
Having office at, Hatti Mahal, Ganji
Galli, Somwar Peth, Kolhapur.
5. The Education Officer
(Secondary),
Zilla Parishad, Sangli,
Having Office at, Zilla Parishad
Building, Sangli ...Respondents
A PPEARANCES
for the Petitioners Mr Prashant Bhavake.
for Respondents- Ms PN Diwan, AGP.
STATE
CORAM : G.S.Patel &
Neela Gokhale, JJ.
RESERVED ON : 18th April 2023
PRONOUNCED ON : 26th April 2023
ORAL JUDGMENT (Per Neela Gokhale, J):-
1. Rule. The contesting 5th Respondent has filed a Reply
affidavit. All parties are represented. By consent, Rule made
returnable forthwith.
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Gramvikas Shikshan Mandal & Ors v The State of
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2. The 1st Petitioner is an Educational Institution registered
under the Maharashtra Public Trusts Act, 1950 running the 2nd
Petitioner recognised and fully aided school. The 3rd Petitioner is a
junior clerk appointed in the school. The Respondents No. 2 to 5 are
the officers in the Education Department of the 1st Respondent
State of Maharashtra. The 5th Respondent is the contesting
Respondent whose order is under challenge in the present Petition.
3. Facts leading to the challenge are that one Shri. Shinde, junior
clerk in the school took voluntary retirement on 31st December
2021. In pursuance of the mandate of the Maharashtra Employees
of Private Schools (Conditions of Service) Regulations Act, 1977,
("MEPS Act") the school enquired about availability of surplus
candidate from the 5th Respondent. Receiving neither a reply nor
available surplus candidate for appointment, the school commenced
the procedure to fill up the vacancy as per due procedure. An
advertisement was issued, interviews were held and the 3rd
Petitioner, recommended and selected for appointment was issued
an appointment letter dated 1st January 2022, pursuant to a
resolution duly passed by the school committee. The 3rd Petitioner
joined service in the 'Shikshan Sevak' scheme on probation. The
school Management then submitted the proposal to the 5th
Respondent for approval along with all required documents. The
proposal was rejected by letter dated 17th January 2022 on the
ground that firstly, the school had not taken permission prior to
issuance of advertisement and secondly, Government Resolution
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Gramvikas Shikshan Mandal & Ors v The State of
Maharashtra & Ors
6-aswpst-4493-2022-J.doc
("GR") dated 4th May 2020 barred fresh appointment of
employees. It is this rejection order which is assailed in the present
Petition.
4. Mr. Prashant Bhavake learned counsel for the Petitioner
contested the reasons for rejection contending that Section 5(1) of
the MEPS Act casts certain obligations on the Management of
private schools, one of them being filling up of vacancies at the
earliest and the Government cannot ban this statutory power
conferred on the 1st Respondent. He further submitted that none of
the provisions of the Act require the Management to seek prior
permission before issuance of advertisement and that the 3rd
Petitioner was appointed on the vacancy of the retiring employee.
He also pointed out that despite the Management requesting the 5th
Respondent to nominate any available surplus candidate for filling
up the vacancy, no such candidate was ever made available. It was in
these circumstances that the school was compelled to fill up the
vacancy and hence, there was no illegality committed by the school
and the impugned rejection order was unsustainable.
5. Per contra, Ms. P. N. Diwan learned AGP for the State
rebutted the arguments advanced by the Petitioner. She relies upon
the two GRs dated 6th February 2012 and 4th May 2020
respectively to buttress her contention that the Management had
not sought prior approval for issuance of advertisement for filling up
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the vacancy and that there was a ban of fresh recruitment. The
above are the only two grounds based on which the approval for the
appointment has been rejected.
6. Having heard both sides and perused the documents on
record, it is evident that 1st Petitioner has undoubtedly sought
availability of surplus candidate to fill up the vacancy created by a
retiring employee. No surplus candidate was nominated by the State
for the vacancy as required. Hence, the Management was left with
no alternative but to advertise for suitable candidate to fill up the
vacancy. The documents placed on record indicate that due
procedure commencing from seeking availability of surplus
candidate from the State, issuance of proper advertisement,
interview, selection committee recommendation leading to a
resolution of appointment of the 3rd Petitioner on the post etc., has
been followed. It is true that the GR dated 6th February 2012
provides for prior permission for issuance of advertisement. The
intent is to ensure that surplus candidates, if any are placed first
before appointing new candidates. In the present case, the 5th
Respondent has never communicated any input on availability or
otherwise of any surplus candidates. In these circumstances, the
Management cannot be expected to leave the post vacant for such
time that the State decides to take cognisance of the request of the
Management. It is logical on the part of the Petitioner Management
to presume unavailability of surplus candidates in view of failure of
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Gramvikas Shikshan Mandal & Ors v The State of
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the 5th Respondent to nominate as such. Hence no blame can be
foisted on the Management for proceeding with the process of filling
up the vacant post and we find no infirmity with the said action.
7. Turning to the GR dated 4th May 2020, we can appreciate
the plight of the Respondent State during the period of COVID
pandemic, especially during academic year 2020-2021 during which
there was a financial crunch in the Departments on account of
unforeseen expenditure, as mentioned in the GR. It was in this
context that fresh appointments were barred and the government
had further declared its intention to withhold some portions of the
salaries of employees in various Departments to balance the
expenditure.
8. The 3rd Petitioner, however, was appointed on 1st January
2022 to fill up a vacancy created by a retiring employee. Thus, no
additional demand was thrust on the Finance Department of the
government, as was the apprehension mentioned in the GR dated
4th May 2020, which put the ban on appointment sought to resolve.
It is true that the GR still holds the field and has not been withdrawn
till date. But then, the Respondent State ought to have been prompt
in nominating surplus candidate for the vacancy. By no means can
the post be allowed to remain vacant. It is seen from the record that
the Management has been very prompt in processing the provisions
of the Act and the Rules made thereunder. It is only when no
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surplus candidate was given by the Government that the
Management proceeded to appoint the 3rd Petitioner after following
the due procedure. The time has now come when the State must
respond with reciprocal alacrity to act in aid of the provisions of the
Act, Rules and various GRs issued from time to time to bring about
a desired result and ensure that all stake holders in the appointment
mechanism work in tandem with each other.
9. The 3rd Petitioner is working in the school regularly since his
appointment on 1st January 2022. There is no blemish on his
performance. The 5th Respondent has not timely responded to the
Management. The post cannot be allowed to remain vacant for an
undetermined period. No lapse has been pointed out by the
Respondents in respect of due procedure to be followed in the
appointment process.
10. In view of the above, the rejection order dated 17th January
2022 impugned herein, is quashed and set aside. The 5th
Respondent is directed to grant the requisite approval to the
appointment of the 3rd Petitioner in the 'Shikshan Sevak' scheme,
on the relevant terms of service and further include his name in the
Shalarth Pranali within a period of two weeks from the date of this
order.
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Gramvikas Shikshan Mandal & Ors v The State of
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6-aswpst-4493-2022-J.doc
11. Needless to say that in case the Respondents are continuing
with the temporary withholding of salaries etc., as mentioned in the
GR dated 4th May 2020 to balance and reconcile expenditure
during the Covid lockdown period, in respect of similar placed
employees, the Respondents may apply same conditions of service
to the 3rd Petitioner.
12. Rule is made absolute in terms of prayer clause (b) and (c).
There will be no order as to costs.
(Neela Gokhale, J) (G. S. Patel, J)
26th April 2023
