Bombay High Court
Ms. Bhagyashri Vishnu Jadhav And ... vs The State Of Maharashtra Thru ... on 13 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2423 OF 2019
Ms. Bhagyashri Vishnu Jadhav & Anr. ..Petitioners
Versus
The State of Maharashtra Through
The Secretary, School Education Department
& Anr. ..Respondents
__________
Mr. Vinayak R. Kumbhar i/b. Ashwini N. Bandiwadekar for
Petitioners.
Mr. A. P. Vanarse, A.G.P. for Respondent Nos.1 and 2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 13 MARCH 2023
PC :
1. Heard the parties. The petition is decided finally with
consent of both learned counsel.
2. The Petitioner No.1 was appointed as a Shikshan Sevak
in the aided secondary school of the petitioner No.2. The present
petition challenges the impugned order dated 16/01/2019 passed
by the respondent No.2 i.e. the Education Officer (Secondary),
Zilla Parishad, Sangli refusing approval to the appointment of the
petitioner No.1 as 'Shikshan Sevak' in the aided Secondary School
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2023.03.14
11:39:46
+0530 Gokhale
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of the petitioner No.2. Further directions are sought that the
respondent No.2 be directed to grant approval to the petitioner
No.1 as 'Shikshan Sevak' for three years w.e.f. 01/07/2023.
3. Heard Shri. Vinayak Kumbhar, learned counsel for the
petitioner and Shri. Vanarse, learned A.G.P. for the Respondents.
4. A few dates are relevant for the decision of this petition.
One Sindhutai Patil who was working on the same post was due to
retire on 30/06/2013. On 03/06/2013, the petitioner No.2 made
an application before the Respondent No.2 for permission to
publish an advertisement for that post. There was absolutely no
response from the respondent No.2. Therefore, an advertisement
was published on 21/06/2013. The interviews were held on
26/06/2013. The petitioner No.1 was selected and an appointment
letter was issued on 30/06/2013 to take effect from 01/07/2013.
The petitioner No.1 joined the service on 01/07/2013. It is the
case of the petitioners that they sent an application for approval of
such appointment. The proposal for approval was accepted by the
respondent No.2 on 05/10/2018. The respondent No.2 pointed
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out certain irregularities. They were cured on 20/10/2018.
However, the respondent No.2 did not grant an approval and vide
impugned order dated 16/01/2019 refused to grant approval. The
refusal was based on six grounds, as follows:
i) The permission was not taken to publish an
advertisement.
ii) There were specific directions from the
Government not to make new appointments
unless the list of surplus teachers was exhausted.
iii) The G.R. dated 24/08/2018 was not adhered to.
iv) Without verifying whether surplus teacher was
available, this appointment was made.
v) The G.R. dated 23/06/2017 provided that the
appointments were to be made through "Pavitra
Portal".
vi) The extract of roster for three years was not
submitted with the proposal.
5. Learned counsel for the petitioners invited my attention
to the application dated 03/06/2013, wherein a specific prayer
was made for permission to publish an advertisement for filling up
the post which was to fall vacant because of retirement of
Ms. Sindhutai Patil. It was received by the office of the respondent
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No.2 on the same date i.e. on 03/06/2013; however, there was
absolutely no response.
6. Learned counsel for the petitioners relied on the ratio
laid down by a Single Judge of this Court vide order dated
16/07/2018 in Writ Petition No.13485 of 2016; wherein in a
similar circumstance it was held that, since there was no response
from the Education Officer, there was nothing wrong in publishing
the advertisement and ultimately an order of the Education Officer
refusing approval was set aside. He was directed to grant approval
to the petitioner's appointment (in that petition).
7. Learned counsel for the Respondent Nos.1 and 2 invited
my attention to the affidavit in reply filed on behalf of the
Respondent No.2. In that affidavit in reply, a reference was made
to the Rules and the provisions under the Maharashtra Employees
of Private Schools (Condition of Service) Regulation Act, 1977 (for
short 'M.E.P.S. Act'). He submitted that the impugned order does
not suffer from any illegality and, therefore, the relief cannot be
granted.
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8. I have considered these submissions. In the entire
affidavit in reply there is no reply to the contentions of the
petitioners that the respondent No.2 had not responded to the
application dated 03/06/2013. Therefore, the petitioners' case in
that behalf has remained unchallenged. The observations made in
the order passed by this Court in W. P. No.13485 of 2016 is
squarely applicable to the facts of this case.
9. In the said order dated 16/07/2018 passed in
W.P.No.13485 of 2016, a Single Judge of this Court had observed
that, the School Management's letter seeking permission for filling
vacant post was not responded by the Education Officer and
subsequently the Education Officer had declined to accord the
approval. It was observed that, there were number of Judgments
of this Court making it clear that the ban on recruitment of
teachers pending absorption of surplus teachers under Government
Resolution dated 02/05/2012 could not be invoked by the State,
when despite communication of a vacancy of a teacher's post by
the school management to the Education Officer and seeking of his
permission for filling the post, the Education officer does not reply
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or forward any name of a surplus teacher to be appointed in the
vacancy and as a result, the school management proceeds to select
and appoint a teacher in the vacant post. It was further observed
that the School Management is not expected to carry on with the
vacancy awaiting indefinitely the Education Officer's response.
Having observed thus, learned Single Judge of this Court had
directed the Education Officer to grant approval to the petitioner's
appointment (in that petition).
10. The ratio of that order is squarely applicable to the facts
of this case. The appointment of the petitioner was made in 2013.
The Government Resolution in the year 2017 and 2018 did not
have effect on the appointment made earlier. The petitioner has
made out a case for grant of relief in this petition.
11. Hence, the following order:
ORDER
i) The impugned order dated 16/01/2019 issued
by the Respondent No.2 refusing approval to the
appointment of the Petitioner No.1 as Shikshan
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Sevak in the aided Secondary School of the
petitioner No.2 is set aside.
ii) The Respondent No.2 is directed to grant
approval to the appointment of the petitioner
No.1 as Shikshan Sevak for three years w.e.f.
01/07/2013 and thereafter shall consider the
proposal submitted by the Management for
appointment of the Petitioner No.1 as Assistant
Teacher, in accordance with law.
iii) The Petition is disposed of in the aforesaid terms.
(SARANG V. KOTWAL, J.)
