Bombay High Court
Shikshan Prasarak Mandal, ... vs The State Of Maharashtra Through The ... on 5 December, 2023
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2023:BHC-AS:36500-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12389 OF 2016
1. Shikshan Prasarak Mandal, Naneli-
Dhepgalu, Having officer at, Naneli-
Dhepgalu, Tal. Kudal, District: Sindhudurg
Through its President/Secretary
2. Khajagi Prathmik Shala, Naneli-
Dhepgalu, Tal. Kudal, Dist: Sindhudurg.
Through its Headmaster.
3. Shri. Vishal Pandharinath Dhuri,
Age:Adult, Occupation :Service,
R/o Naneli-Dhepgalu, Tal. Kudal,
Dist: Sindhudurg ... Petitioners
V/s.
1. The State of Maharashtra,
Through the Secretary,
School Education Department,
Mantralaya, Mumbai-400 032.
2. The Commissioner of Education
School Education Department,
Maharashtra State, Pune.
3. The Director of Education,
(Primary and Higher Primary),
Maharashtra State, Pune-1.
4. The Deputy Director of Education,
Kohapur Region, Kolhapur.
5. The Education Officer (Primary),
Zilla Parishad, Sindhudurg,
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Having Office at, Zilla Parishad Building,
Sindhudurg Nagari-Oros, Dist: Sindhudurg ... Respondents
-----
Mr. Prashant Bhavake for the Petitioner.
Mr.S. S. Kalel, AGP for Respondent Nos. 1 to 4.
Mr. Ramesh D. Rane for Respondent Nos. 5.
-----
Digitally
signed by
ASHVINI
ASHVINI BAPPASAHEB
BAPPASAHEB KAKDE CORAM : A. S. CHANDURKAR &
KAKDE Date:
2023.12.07
17:46:49
+0530
FIRDOSH P. POONIWALLA, JJ.
DATE : 5th DECEMBER 2023
Oral Judgment (Per A. S. Chandurkar J.):-
1. Rule. Rule made returnable forthwith. Heard the learned
Counsel for the parties.
2. A challenge raised in the present Writ Petition is to the
communication dated 04.07.2016 issued by the Education Officer (Primary)
Zilla Parishad, Sindhudurg refusing to approve the appointment of the
Petitioner No.3 as Shikshan Sevak.
3. The facts relevant for considering the challenge to the impugned
communication are that on 18.12.2012 the Petitioner Nos.1 and 2 sought
permission of the Education Officer for filling one post of Assistant Teacher
that was lying vacant. Prior to seeking such permission, an advertisement
came to be issued on 20.12.2012. The Petitioner No. 3 came to be appointed
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as Shikshan Sevak by the order dated 15.01.2013. The proposal seeking
approval to his appointment has been rejected by the impugned
communication dated 04.07.2016 by referring to the Government Resolution
dated 02.05.2012. By the said Government Resolution, a reference has been
made to the requirement of absorption of surplus teachers prior to permitting
recruitment to be undertaken.
4. This Court on 14.01.2021 had directed the learned Counsel
appearing for the Education Officer (Primary) to place on record an affidavit
indicating as to whether there were any surplus teachers who were to be
absorbed in the year 2012-13. Pursuant to this order, such affidavit has been
filed by the Deputy Education Officer(Primary), Zilla Prishad, Sindhudurg.
Along with the said affidavit, a communication dated 21.01.2021 issued by
the Deputy Director of Education, Kolhapur Division is placed on record
wherein it is stated that for the academic year 2012-13, there were no
surplus teachers who were yet to be absorbed. Similarly, the Petitioners have
also filed an additional affidavit indicating the position as prevailing within
the jurisdiction of the Education Officer (Primary), Zilla Parishad,
Sindhudurg in which it is stated that there were no surplus teachers in about
21 Schools.
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5. In the light of aforesaid factual position, the learned Counsel for
the Petitioners submits that since there were no surplus teachers who were
remaining to be absorbed, the Petitioner No.3's appointment ought to have
been approved. On the other hand the learned Counsel for Respondent No.5
submits that since the appointment of Petitioner No.3 has been made without
obtaining permission of the Education Officer (Primary), the impugned order
does not call for interference. He further submits that Clause 1.8 of the G. R.
dated 2.05.2012 continues to operate and it has not been set aside pursuant
to the judgment delivered in Writ Petition No. 4168 of 2012 in the matter of
Mahila Vikas Mandal, Aurangabad & Ors. Vs. The State of Maharashtra &
Ors.
6. We have heard the learned Counsel for the parties and we have
perused the documents on record. We find that the Government Resolution
dated 2.5.2012 seeks to ensure that without absorbing surplus teachers, fresh
recruitment should not be undertaken. It is with that object in mind that the
Education Officer (Primary) was directed to place on record the details with
regards to the availability of any surplus teachers within such jurisdiction.
The affidavit on record indicates that no surplus teachers remained to be
absorbed in the year 2012-13.
7. In that view of the matter we find that the purpose of issuing
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Government Resolution dated 02.05.2012 stands satisfied.
8. However, it is seen in the present case that the Petitioner No.3
has been recruited without seeking prior permission of the Authorities. It
was necessary for the Petitioner Nos.1 and 2 to have waited for some
reasonable time prior to issuing the advertisement. The said Petitioners
moved application dated 19.12.2012 seeking permission to fill in the post.
The Advertisement in question has been issued immediately on the next day
which is 20th December 2012. This aspect cannot be ignored in the case in
hand. Considering these facts, in our view, the following order would serve
the ends of justice:-
i. In the light of the affidavits filed by the Education Officer
(Primary) as well as the Deputy Director of Education, it is found
that in the academic year 2012-13 there were no surplus teachers
that remained to be absorbed. Hence, the reason indicated in the
impugned communication dated 04.07.2016 does not survive. The
provisions of Government Resolution dated 02.05.2012 have not
been breached.
ii. Subject to the Petitioner Nos. 1 and 2 paying cost of Rs.
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25,000/- to Zilla Parishad, Sindhudurg, within a period of four
weeks from today, the Education Officer (Primary) shall re-
consider the proposal dated 25.05.2016 seeking approval to the
appointment of Petitioner No.3. The approval shall not be rejected
by relying upon Government Resolution dated 02.05.2012.
Decision on the proposal be taken within a period of four weeks of
receiving the same. The decision taken be communicated to
Petitioners. If the appointment of Petitioner No.3 is approved, all
consequential benefits shall be made available.
9. Rule is disposed of in aforesaid terms with no order as to costs.
(FIRDOSH P. POONIWALLA, J.) (A. S. CHANDURKAR, J.)
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