Bombay High Court
Shilabai Sugriv Lahane vs The State Of Maharashtra And ... on 8 November, 2023
Bench: Mangesh S. Patil, Shailesh P. Brahme
2023:BHC-AUG:24398-DB
63.WP.2590.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2590 OF 2019
Smt. Shilabai w/o. Sugriv Lahane ... PETITIONERS
VERSUS
1. The State of Maharashtra
through its Secretary Education
Department Mantralaya,
Mumbai - 32
2. Education Officer (Secondary)
Zilla Parishad, Beed
3. Kamdhenu Shikshan Prasarak Mandal
Makegaon Tq. Renapur, Dist. Latur
through it's Secretary
4. Shri Sant Madhav Mama
Vidyalaya Nirpana,
Tq. Ambejogai, Dist. Beed.
through it's Headmaster ... RESPONDENTS
...
Advocate for petitioner : Mr. V.S. Panpatte
Addl. G.P. for respondent Nos.1 and 2: Mrs. M.A. Deshpnade
Advocate for respondent Nos.3 and 4 : Mr. S.B. Solanke
...
AND
WRIT PETITION NO.4216 OF 2019
1. Ankush s/o Vishwambhar Jadhav
2. Madhav s/o Limbaji Phad ... PETITIONERS
VERSUS
1. The State of Maharashtra
through its Secretary
School Education Department
Mantralaya, Mumbai
2. The Deputy Director of Education
Aurangabad Division, Aurangabad
3. The Education Officer (Secondary)
Zilla Parishad, Beed
4. Kamdhenu Shikshan Prasarak
Mandal, Makegaon, Taluka
Renapur, Dist. Latur
5. The Headmaster,
1/7
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63.WP.2590.19.odt
Sant Madhav Mama Vidyalaya,
Nirpana, Tq. Ambajogai, Dist. Beed. ... RESPONDENTS
...
Advocate for petitioners : Mr. S.R. Barlinge
Addl. G.P. for respondent Nos.1 to 3 : Mrs. M.A. Deshpnade
Advocate for respondent Nos.4 and 5 : Mr. S.B. Solanke
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 24.07.2023
PRONOUNCED ON: 08.11.2023
ORDER (MANGESH S. PATIL, J.) :
Heard. Rule in both the petitions. It is made returnable
forthwith. Learned AGP Mrs. M.A. Deshpande and learned advocate Mr.
S.B. Solanke for the respondent - Management waive service. At the
joint request of the parties, the matters are heard finally at the stage of
admission.
2. By way of these separate writ petitions the petitioners who
were appointed on the same day pursuant to the advertisement dated
29.08.2009 published by the respondent - Management as Assistant
Teachers are challenging the selfsame common order of the respondent
No.3 - Education Officer (Secondary) refusing to grant approval to their
appointments. Hence both the petitions are being disposed of by this
common judgment.
3. The sum and substance regarding which there is no dispute
on facts is to the effect that the respondent - Management published the
advertisement on 29.08.2009 for filling up of 5 posts of Assistant
63.WP.2590.19.odt
Teachers (Shikshan Sevak). Out of these 5 posts 3 were reserved for ST
and SBC category candidates. Pursuant to such advertisement the
Management undertook recruitment process and appointed the
petitioners against 3 out of those 5 posts.
4. By the impugned order the Education Officer has refused to
grant approval on the ground that petitioner Jadhav was an open
category candidate, whereas, the other two petitioners Shri Phad and
Smt. Lahane were from N.T.(D) category. It is observed that petitioners'
appointments were not in accordance with advertisement and law.
5. Learned advocates for the petitioners would submit that
admittedly, in the year 2009 when the petitioners were recruited, there
was no approved roster. They were appointed by following due process
as prescribed under Section 5 of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (the Act) read with
Rule 9 of the Maharashtra Employees Private Schools (Conditions of
Service) Rules, 1981 (the Rule). The advertisement was published,
interviews were held and the petitioners were appointed against the three
posts of Assistant Teachers. In tune with the averments in the petition,
according to them, no reserved category candidates were available and to
meet the exigencies the petitioners were given appointments. There is no
illegality. They have already put in three years as Assistant Teachers on a
stipend of Rs.4000/- from 01.09.2009 to 31.08.2012 and the Education
Officer ought to have approved their appointments.
63.WP.2590.19.odt
6. The learned advocate for the respondent - Management in
tune with the stand in its affidavits-in-reply would support the
petitioners' cause. He submitted that the advertisement expressly
mentioned that if the candidates from the respective reserved categories
were not available the posts would be filled in from other reserved
category candidates. Since no candidate from the ST and SBC were
available the petitioners were given appointments. The petitioners
possess the requisite educational qualification.
7. Per contra, the learned AGP would submit that the impugned
order is unassailable. Admittedly, 3 out of the 5 posts of Assistant
Teachers which were advertised were reserved for ST and SBC categories
and once having so declared Management could not have appointed the
petitioners.
8. We have considered the rival submissions and perused the
papers. It is not the stand of the respondent - State and even the
impugned order does not say that except the fact that the petitioners
were not belonging to the reserved categories were given appointment
there was any error or irregularity in issuing the appointments.
9. Admittedly, on the date of the advertisement the roster was
not got approved and still the advertisement mentioned that out of 5
posts of Assistant Teachers, 3 were reserved for ST and SBC category.
Consequently one will have to proceed on the premise that there was
such a backlog of reserved category in the cadre of Assistant Teachers
63.WP.2590.19.odt
with the respondent - Management. There is also no dispute about the
stand of the Management and the petitioners that no candidate from
those two categories was available.
10. If such is the state of affairs, when admittedly, at least two
posts were left for open category, impugned order as well as the affidavit-
in-reply is absolutely silent as to why at least two of these three
petitioners could not have been considered to have been appointed
against those two open category posts. True it is that one of the 5 posts
that was to be filled pursuant to the advertisement was for the Assistant
Teacher holding B.A., B.P.Ed qualification. None of the petitioners is
holding B.P.Ed and was not eligible for being appointed against that one
post. However, the advertisement is silent as to against which of these 5
vacancies including one of Physical Instructor the 3 seats were reserved, 2
for S.T. and one for S.B.C. So it would be a matter of merely considering
the entitlement of the petitioners to seek approval to their appointments
against 2 seats which were left for open category.
11. None of the sides have made it clear as to how this
reservation can be worked out and how one post of Physical Instructor
has been filled in. It was for the Education Officer to have inquired into
and considered this aspect. Though it is a fact that out of 5 seats
including 1 of Physical Instructor 3 were reserved for the specific
categories to which the petitioners do not belong. He could have
considered the issue regarding grant of approval to the petitioners'
63.WP.2590.19.odt
appointments according to the posts which were available for open
category. If someone has been appointed against the single post of
Physical Instructor it would be imperative for the Education Officer to
inquire into as to how that post was filled in and the Management would
be under obligation to demonstrate it. Since there are 3 petitioners
seeking approval against 5 seats of which 2 were available to be filled
from open category, the Education Officer should have considered the
issue from this angle and examined as to if approval could be granted to
any of the petitioners against the two open category posts.
12. Since no other candidate is coming forward to claim the
posts on which the petitioners were appointed, in our considered view it
would be appropriate that the Education Officer considers a proposal
afresh soliciting information from the Management as to how many of
these 5 posts were filled and can reconsider grant of approval to the
appointment of the petitioners against the posts that were available for
the open category and on merit.
13. The impugned order does not reflect about the Education
Officer having examined the aspect as to if approval could have been
granted to the appointment of any of the petitioners against the posts
which were available for the open category.
14. The petitioners have been heavily relying upon the decisions
of the coordinate benches of this Court in the matter of Smt. Munoli
Rajashri Karabasappa Vs. State of Maharashtra through Secretary and
63.WP.2590.19.odt
Ors.; (Writ Petition No.8587/2016) and Shivkant Venkatrao Losare Vs.
The State of Maharashtra and Ors.; (Writ Petition No.11787/2017).
However, a careful look at these decisions would indicate that the orders
therein refusing to grant approval passed by the Education Officers were
on the count that the petitioners therein were appointed as Assistant
Teachers in breach of the Government Resolution dated 02.05.2012,
whereby, there was ban on the recruitment. Ex facie, the fact situation in
the matter in hand is entirely different. The impugned order refusing to
grant approval is not on the ground of any ban on the recruitment.
Therefore, the petitioners are not entitled to derive any benefit from
these decisions.
15. The writ petitions are partly allowed. The impugned order is
quashed and set aside. The Education Officer shall undertake a fresh
scrutiny and examine the aspect as to if appointment of any of the
petitioners could be treated against the seats available for the open
category by taking into consideration the appointment, if any, made
against the post of Physical Instructor having B.A., B.P.Ed degree, and also
after considering the merit of each of the petitioner and other candidates
who had participated in the recruitment process.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
