Bombay High Court
Ku. Omika D/O Wasudeo Shahare vs State Of Maha., Thr. Secretary, School ... on 5 February, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:1628-DB
-- 1 -- Judgment WP 7976.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7976 OF 2022
Ku.Omika d/o Wasudeo Shahare,
Aged about 35 years,
Occupation - Service,
.. Petitioner
R/o. Sadak Arjuni, Tah. Sadak Arjuni,
District - Gondia
Versus
1. State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai - 32
2. Education Officer (Secondary),
Zilla Parishad, Gondia,
Tah. and District - Gondia
3. Mahatma Jyotiba Fule Shikshan Sanstha, .. Respondents
Saundad (Railway),
Through its President,
R/o. Sadak Arjuni, Tah. Sadak, Arjuni,
District - Gondia
4. Balasaheb Tirpude High School,
Shenda (Koylari),
Through its Head Master,
R/o. Sadak Arjuni, Tah. Sadak Arjuni,
District - Gondia
Mr. I.N.Chaudhari, Advocate for petitioner.
Mr. A.M.Ghogre, Assistant Government Pleader for
respondent Nos.1 & 2.
Mr. R.M.Wasnik, Advocate for respondent No.3 and 4.
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-- 2 -- Judgment WP 7976.2022.odt
CORAM : NITIN W. SAMBRE AND
ABHAY J. MANTRI, JJ.
DATED : 05/02/2024
ORAL JUDGMENT (Per Court : Nitin W. Sambre, J.)
Rule. Rule is made returnable forthwith. Heard
finally by the consent of the learned counsel appearing for the parties.
(2) The petitioner, a person belonging to reserve
category i.e. Schedule Caste, possesses qualification of M.A. (English),
B.Ed., D.Ed. She is also claiming to be cleared MSCIT exam.
(3) Based on the aforesaid qualification, the respondent
No.3 and 4 appointed the petitioner as "Assistant Teacher" in an
unaided School on 27/06/2011. The said appointment of the petitioner
was since after following due process of law, the respondent No.2 -
Education Officer granted approval to such appointment.
(4) The respondent No.4 - School has two vacancies,
because of superannuation of two teachers on 31/12/2017. The
petitioner claiming to be qualified to be accommodated on such
vacancies, as such she has applied for transfer on these vacant posts.
The respondent trust passed a Resolution on 26/11/2021, thereby,
transferring the petitioner from unaided section to aided section of
respondent No.4 - School and after the petitioner joining the duties on
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-- 3 -- Judgment WP 7976.2022.odt
29/11/2021, a proposal was submitted for grant of approval to the
appointment of the petitioner. The said proposal was returned by the
respondent No.2 - Education Officer, in view of having certain
deficiencies. The respondent Management as such submitted a fresh
proposal, the said proposal came to be rejected by the respondent No.2
vide impugned order dated 26/09/2022 on the ground that there was
ban on the fresh recruitment.
(5) The contentions of the learned counsel for the
petitioner are - the issue about ban on the fresh recruitment, is already
dealt with and decided by the Division Bench of this Court in Writ
Petition No.8215 of 2022 (Friends Social Circle and others vs.
State of Maharashtra and others) along with connected petitions,
decided on 21/07/2023. According to him, para 7 of the said judgment
is squarely covered the said issue, which is sought to be canvassed.
That being so, the reasons furnished in the order impugned are not
sustainable.
(6) Apart from above, his contentions are - the other
reasons that the petitioner's appointment was fresh one cannot be
gone into, as orally submitted by the learned counsel for the petitioner
in view of the settled position of law that the respondent Authorities
cannot substitute the reasons by way of notings on record unless such
reasons are part of the impugned order. A support is drawn from the
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-- 4 -- Judgment WP 7976.2022.odt
judgment of the Apex Court in the matter of Mohinder Singh Gill and
another vs. The Chief Election Commissioner, New Delhi and
others, reported in AIR 1978 SC 851.
(7) As against above, the learned Assistant Government
Pleader would oppose the prayer based on the contentions that the
appointment of the petitioner by way of transfer on the aided post is
contrary to the directions issued by State Government. As such he
would pray for dismissal of the present petition.
(8) We have considered the submissions. The
Management has justified the appointment/transfer of the petitioner
from unaided section to aided section in the respondent No.4 - School.
The learned counsel for respondent No.3 - Management has drawn
support from the Resolution to that effect.
(9) In the aforesaid background, if we consider the
impugned communication dated 26/09/2022, what can be noticed is,
the proposal forwarded by the respondent No.4 - School seeking
approval to the appointment/transfer of the petitioner from unaided
post to aided post, which was complete in all respect was rejected only
on the ground that there was ban on fresh recruitment. The ban on
the fresh recruitment has been imposed by the State Government, so
as to overcome the financial hardship and also to accommodate the
surplus teachers.
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-- 5 -- Judgment WP 7976.2022.odt
(10) The legality of such ban is tested by this Court in the
Writ Petition No.8215 of 2022. Para 7 of the said Judgment reads
thus :-
"7. We have heard the learned counsel for the parties and
we have perused the documents on record. It is not in dispute that the
provisions of Rule 41A of the Rules of 1981 came to be inserted vide
Notification dated 08/06/2020. The manner in which a Rule is required
to be made has been prescribed by Section 16 of the Act of 1977.
Under sub-section (3) of Section 16, the Rules made under the Act of
1977 are subject to condition of previous publication. The Notification
dated 08/06/2020 has been published in the official Gazette. It is thus
clear that Rule 41A is duly inserted in the Rules of 1981 by virtue of
Notification dated 08/06/2020. Once Rule 41A is validly enacted and is
placed in the Rules of 1981, the same would operate till such time it is
subsequently amended or deleted as the case may be. However as
long as Rule 41A continues on the statute book its operation cannot be
stayed by issuing a Circular as has been done on 01/12/2022. We have
not been shown any power by virtue of which the operation of a validly
made Rule could be stayed by issuing a Circular by the Department of
School Education and Sports. The Honourable Supreme Court in Dr
Rajinder Singh (supra) has held that it is a settled position of law that
no government order or notification or circular can be a substitute of
statutory rules framed with the authority of law. It may also be stated
that while it is open for the Rule making Authority to supplement an
existing Rule by issuing administrative instructions, it is not permissible
to supplant a validly enacted Rule through administrative instructions.
The same analogy would apply when the operation of a validly framed
Rule is sought to be suspended by issuing a Circular. On this count we
find that the Department of School Education and Sports was not
empowered to stay the operation of Rule 41A of the Rules of 1981 by
issuing Circular dated 01/12/2022."
(11) The Division Bench of this Court as such has held
that the ban imposed by executive fiat cannot override the statutory
provisions and such ban cannot be considered as an impediment in the
matter of consideration of the prayer of the petitioner which is also
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-- 6 -- Judgment WP 7976.2022.odt
supported by the respondent Management for grant of approval. As
such the reasons on which the proposal of the petitioner for grant of
approval is rejected, cannot be said to be germane to the cause.
(12) As the issue in our opinion is squarely covered by
the aforesaid judgment in Writ Petition No.8215 of 2022 in the matter
of Friends Social Circle (supra). In view of above, we deem it
appropriate to quash and set aside the impugned communication with a
direction to the respondent No.2 - Education Officer to decide the
proposal afresh and communicate the decision to the petitioner within a
period of four weeks from today.
(13) It is clarified that the respondent No.2 cannot reject
the proposal of the petitioner on the ground that there was a ban on
the fresh recruitment.
(14) The petition as such stands allowed in the above
terms. Rule is made absolute accordingly. No costs.
[ ABHAY J. MANTRI, J. ] [ NITIN W. SAMBRE, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 6 OF 6
Designation: PA To Honourable Judge
Date: 09/02/2024 17:14:20
