Bombay High Court
Mohmmadiya Education Societys Maulana ... vs The State Of Maharashtra Through Its ... on 5 February, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:2449-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9943 OF 2023
1. Mohammadiya Education Society's ... Petitioners
Maulana Azad Urdu Girls High School,
Mukund Nagar, Ahmednagar,
Through its Secretary
shaikh Abdus Salam Abdul Aziz
Age 68 years, Occu: Retired, R/o 25,
Bagroza, Delhi Gate, Ahmednagar
2. Shaikh Tausif Ahmad Abdul Samim,
Age 38 years, Occu: Service,
R/o Winscentpura, Near Rangbhavan,
Ahmednagar.
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education and Sports Department,
Mantralaya, Mumbai 400 032
2. The Education Officer (Secondary) ... Respondents
Zilla Parishad, Ahmednagar,
Dist. Ahmednagar
Mr. A. D. Shinde, for the Petitioners
Mr. S. K. Tambe, AGP, for the Respondent-State
CORAM : RAVINDRA V. GHUGE, &
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 19.01.2024
PRONOUNCED ON : 05.02.2024
JUDGMENT ( Per: Y. G. Khobragade, J.)
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1. Rule. Rule made returnable forthwith and heard finally
with the consent of the parties.
2. By the present Petition under Article 226 of the
Constitution of India, the Petitioners have put forth prayer clauses (B)
and (C) as under:
"(B) Issue a writ of certiorari or any other appropriate writ, order
of direction in the nature of writ of certiorari to quash and
set aside the impugned order dated 13/21.03.2023 passed
by the respondent No. 2/Education Officer (Secondary),
Zilla Parishad, Ahmednagar rejecting the proposal submitted
by the petitioner No.1 for grant of approval to the services of
the petitioner No.2 for the post of Lab Attendant.
(C) Issue a writ of mandamus or any other appropriate writ,
order of direction in the nature of writ of mandamus thereby
direct the respondent No.2 to grant approval to the
appointment of the petitioner No.2 as Lab Attendant from
his initial appointment dated 31.08.2012 with all
consequential benefits."
3. Both the parties have filed their written notes of
arguments, so also, argued the matter orally for a considerable period.
4. Mr. Shinde, learned Advocate for the Petitioners canvassed
that, Petitioner No.1 is a minority education society and running a
secondary school in the name and style of 'Maulana Azad Urdu Girls
High School' at Mukund Nagar, Ahmednagar. Respondent No.2
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Education Officer (Secondary) approved the staffing pattern of the
School, wherein, one post of Lab Attendant has been sanctioned. On
25.08.2012, the post of Lab Attendant has fallen vacant on account of
superannuation of Mr. Shaikh Abdul Latif Abdul Aziz on attaining age
of superannuation. Therefore, Petitioner No.1, Education society
published an advertisement for filling up the post of Lab Attendant, in
two Newspapers namely 'Nava Maratha' and 'Urdu' Newspaper. The
minimum qualification for the post of Lab Attendant prescribed is SSC
pass (10th Standard) with Physics and Chemistry or General Science
subjects. After following selection process, Petitioner No.1 Education
Society, selected Petitioner No.2 for the post of Lab Attendant on
31.08.2012 as he was having HSC Certificate (12 standard) and
additional qualification of MS-CIT. Accordingly, Petitioner No.1
submitted a proposal to Respondent No. 2 Education Officer on
08.03.2016 for approval to the appointment of Petitioner No.2.
However, on 06.04.2016, Respondent No.2 pointed out certain
deficiencies, which have been subsequently removed by Petitioner No.1.
vide communication dated 15.12.2017. Despite of this, Respondent
No.2 failed to decide the said proposal. Being aggrieved by the said
inaction, the Petitioners had filed Writ Petition No. 357 of 2018 thereby
prayed for issuance of directions to Respondent No.2 to decide the
proposal for approval. Accordingly, on 10.01.2018, the Co-ordinate
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Bench of this Court (Coram: S.S. Shinde And S.M. Gavhane JJ.) passed
an order directing Respondent No.2 to decide the said proposal for
approval within a period of eight weeks.
5. It is further canvassed that on 15.03.2018, Respondent No.
2 passed an order and rejected the approval on the grounds viz., (i)
There is an embargo on recruitment of non teaching staff under
Government Resolutions dated 12.02.2015 and 18.05.2015; (ii) Revised
staffing pattern of non teaching staff not approved at the Government
level, hence, there is no vacant post for appointment of Petitioner
No.2; (iii) no prior permission sought from respondent No. 2 for
recruitment to the post; and (iv) no approval can be granted as per
Circular dated 08.08.2017.
6. The learned counsel for the Petitioners submits that,
Government Resolutions dated 12.02.2015 and 18.05.2015 are
applicable to the general Schools and the said Government Resolutions
are not applicable to the Minority Schools. Petitioner No. 1 society,
running the School, is already declared a minority institution. The
Respondent No. 2 had sought guidance from the Deputy Director of
Education for grant of approval as per decision of this Court and vide
communication dated 3rd April, 2018, the Deputy Director of
Education, Pune Division informed Respondent No. 2 Education Officer
to take decision with regard to the approval of Petitioner No. 2 at his
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level in pursuance of the order dated 10.01.2018 passed in Writ
Petition No. 357/2018 so that there shall be no defiance of the order.
However, Respondent No. 2 again passed an order and rejected the
proposal for approval of appointment of Petitioner No. 2 to the post of
Laboratory Attendant on ground that no prior permission was sought to
fill up the said post and no staffing pattern was approved.
7. Being aggrieved by the said order, the Petitioners again
approached this Court by filing Writ Petition No. 15387 of 2019. On
26.02.2020, the Co-ordinate Bench of this Court [Coram: S. V.
Gangapurwala (as His Lordship then was) and Shrikant D. Kulkarni, JJ]
directed Respondent No.2 to decide the proposal for approval to the
appointment of Petitioner No.2, afresh within a period four months.
But, again on 18.06.2020, Respondent No.2 passed an order and
rejected approval for the appointment of Petitioner No. 2, because as
per staffing pattern approved on 28.01.2019, post of Lab Attendant
was not sanctioned. Therefore, the Petitioners again approached this
Court by filing Writ Petition No. 4980 of 2021 and challenged the order
dated 18.06.2020. On 21st July, 2022, the Co-ordinate Bench of this
Court (Coram: C.V. Bhadang and Sandipkumar C. More, JJ.) passed an
order and set aside the order dated 18.06.2020 passed by Respondent
No.2 and directed Respondent No.2 to decide the proposal for grant of
approval to the appointment, afresh, in the light of the observation
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made in said order. The Co-ordinate bench of this Court observed in
Paragraph No. 6 as under:-
"6. We have considered he submissions made. In our
view, it is for the Education Officer to examine the
approved staffing pattern as in August, 2012 when the
petitioner came to be appointed as a Lab Attendant and
then decide the proposal in accordance with law."
8. Thereafter, Respondent No. 2 passed the impugned order
dated 13/21.03.2023 and refused to grant approval to the appointment
of Petitioner No. 2 because of (i) failure to produce renewal copy of
Minority certificate, (ii) no advertisement was published in the
newspapers, (iii) no prior permission of the Department taken as
contemplated as per Section 5 of the MEPS Act, and (iv) no merit list of
candidates is annexed to the proposal.
9. The learned Advocate appearing for the Petitioners submits
that, once any religious or linguistic minority institution is issued a
certificate declaring the Minority Institution, said certificate does not
restrict for the particular period and there is no need of renewal of said
certificate. So also, prior to the appointment of Petitioner No.2,
Petitioner No.1 Society had published an advertisement for recruitment
of Laboratory Assistant in two leading newspapers, though it is not
mandatory for the Minority Institution under Rule 9 (2-A) of the MEPS
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Rule, 1981. It is further canvassed that, as per the said provision,
issuance of advertisement is in respect of appointment of teaching, non
teaching staff and the petitioner society already advertised in two
leading news papers. So far as, 3rd and 4th grounds are concerned
i.e. no permission was obtained prior to recruitment and non
production documents related to interview and merit list etc. of the
candidates, the learned Advocate for the Petitioners submits that, no
prior permission is required to be obtained form Respondent No.2 for
recruitment of teaching or non teaching staff for the minority
institution. Petitioner No.1 already submitted merit list of the
candidates whose interviews were conducted during selection process of
Lab Attendant. Therefore, grounds for rejection of approval is not
substantial. Therefore, impugned order is illegal and bad in law.
10. In support of his submissions, the learned Advocate for the
Petitioners has placed reliance on the following case law:
(1) Priyanka Santosh Hegishte & anr. Vs. State of Maharashtra &
others, reported in 2023 (4) MH.L.J. 581
(2) Order in Momin Education Society and another Vs. Education
Officer (Primary) and others, in Writ Petition No.116 of 2012
dated 16.07.2022.
(3) Order in Parbhani Education Society Vs. The State of
Maharashtra and another in Writ Petition No. 3707 of 2013 dated
02.09.2013.
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(4) Pramati Educational & Cultural Trust ® & Ors. Vs. Union of India
and others, reported AIR 2014 SC 2114.
11. Per contra, Mr. Tambe, the learned AGP vehemently
canvassed that, Petitioner No. 2 was appointed by the Petitioner
Management as Lab Attendant vide order dated 31.08.2012 and
submitted proposal for approval first time in the year 2016. After
scrutiny of proposal, Respondent No. 2 found various deficiencies,
hence, said proposal was rejected on 06.04.2016. Thereafter, again on
15.12.2027, a fresh proposal was submitted for approval to the
appointment of Petitioner No.2, but proposal was rejected due to
pendency of Writ Petition No. 357 of 2018. On 10.01.2018, this Court
passed an order in W. P. No. 357 of 2018 and directed the Respondent
No.2 to decide said proposal within 8 weeks. Accordingly, Respondent
No.2 passed the order and rejected the said proposal on the ground
that, as per G. R. dated 12.02.2015, recruitment of teaching and non
teaching staff was banned. Thereafter, again Petitioner No. 1 submitted
a proposal on 05.04.2018 by rectifying queries, but again proposal was
rejected because of staffing pattern for academic years 2012-13, 2013-
14, the Post of Lab Attendant/Assistance was not admissible due to less
number of students. Therefore, considering the Government Policy
framed under G. R. dated 23rd October, 2013, strength of students is
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prescribed as 500 for one post of Lab Attendant and number of students
in the school was less than 500. Accordingly, Respondent No.2
rejected the proposal for non compliance of various deficiencies, on
21.03.2023 as per order dated 21.07.2022 passed in Writ Petition No.
4980 of 2021.
12. The learned AGP further submits that, under G. R. dated
11.12.2020, the Government framed new staffing pattern regarding
Class IV employees in partially aided and fully aided Private Secondary
and Higher Secondary School. Under said G. R., Post of Lab attendant,
Peon, Sweeper and all other Class IV posts were abolished after
retirement of respective employees. Therefore, post of Lab Attendant
does not exist with the school run by Petitioner No.1. Under these
circumstance, no approval can be granted to the appointment of
Petitioner No. 2.
13. In support of these submissions, the learned AGP has
placed reliance on State of U.P. Vs. Principal Abhay Nandan Inter
College & Ors., AIR 2021, SC 4968.
14. Having regard to the rival submissions, we have gone
through the record. It is not in dispute that, the Petitioner No. 1
Education Society is running a school in the name of Maulana Azad
Urdu Girls High School, Mukund Nagar, Ahmednagar, which is declared
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as a Minority Institution on 26.06.2003. The Respondents have not
denied status of Minority Institution. It is an admitted fact that, earlier
Mr. Shaikh Abdul Latif Abdul Aziz was working as a full time Lab
Attendant with Petitioner No.1 and the said Post fell vacant on
25.08.2012 due to his retirement. It is a matter of record that, Petitioner
No.1 Education society published advertisement in two Newspapers
namely 'Nava Maratha' and Urdu Newspaper for filling the post of Lab
Attendant. Petitioner No.2 has been selected as Lab Attendant after
holding due selection process. The Petitioners have produced Merit List
of the candidates at Page No. 34, which shows that, present Petitioner
No.2 having qualification B.A. D.Ed., MS-CIT, whereas other two
candidates were B.A. only. Therefore, Petitioner No.2 was selected and
appointed vide order dated 31.08.2012.
15. No doubt, on 18-03-2016, Petitioner No. 1 submitted the
proposal with Respondent No.2 for grant of approval to the
appointment of Petitioner No.2 as Lab Attendant, but the said proposal
was remained undecided for a considerable period. It is a matter of
record that initially, the petitioners were required to approach this Court
in W. P. No. 357 of 2018 as the Education Officer had not decided the
proposal for approval dated 18.03.2016. By an order dated 10.01.2018
the Education Officer was directed to decide the proposal in a time
bound manner. The Education Officer, by an order dated 19.07.2019,
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refused to grant the approval inter alia on the ground that, the
permission was not sought to fill up the post and the staffing pattern
was not yet sanctioned. The Petitioners challenged the same in Writ
Petition No.15387/2019 which was decided on 26.02.2020. This Court
found that, the staffing pattern for the non-teaching class-III employees
has been sanctioned by the Government on 28.01.2019 which was not
taken into consideration by the Education Officer. In view of that
matter, the order passed by the Education Officer on 19.07.2019 was set
aside and the Respondent-Education Officer was directed to decide the
proposal on its own merits indicating that, the same shall not be
rejected on the ground mentioned in the order dated 19.07.2019. After
this, the Education Officer by impugned order dated 18.06.2020 has
again refused to grant approval for the reasons as indicated earlier
mainly that, the staffing pattern approved on 28.01.2019 for the school
does not show the sanctioned post of 'Lab Attendant'. Therefore, the
Petitioners again approached this court by filing Writ Petition No. 4980
of 2021 challenging order dated 18.06.2020. By order dated 21st July,
2022, the Co-ordinate Bench of this Court (Coram: C.V. Bhadang and
Sandipkumar C. More, JJ.) have set aside order dated 18.06.2020
passed by Respondent No. 2 and directed Respondent No.2 to decide
proposal for grant of approval to the appointment afresh in the light of
the observation made in the said order.
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16. However, again Respondent No.2, passed impugned order
dated 13/21.03.2023 and rejected the proposal of the Petitioners for
approval to the appointment of Petitioner No.2 on the following
grounds:
(A) The renewal copy of Minority certificate was not annexed.
(B) Advertisement was not given in to newspapers which are
widely circulated.
(C) For appointment, prior permission of the Department is not
taken as contemplated as per Section 5 of the MEPS Act.
(D) Documents relating to interview of the candidate, i.e. merit
list, selection list are not annexed to the proposal.
17. On perusal of the orders of Respondent No. 2, it appears
that Respondent No. 2 assigned different reasons in different orders
while rejecting the proposal for approval to the appointment of
Petitioner No.2 to the post of Lab Attendant.
18. In the case of Principal Abhay Nandan Inter College
(Supra), in Paragraph Nos. 41 to 45, the Hon'ble Supreme Court has
observed as under:
"41. Section 9(4) of the Act is to be read in conjunction with
Section 16G, as the provisions will have to be read keeping in
view all the objects of the enactment. In this connection, we
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need to point out that if the practice of recruitment, prior to the
amendment of the impugned regulation, was done by tracing the
power under it, then it is not open to the respondents to contend
to the contrary.
42. Regulation 101, prior to the amendment, imposes strict
compliance of getting prior approval. We find that except in Civil
Appeal No.2753 of 2021, no such approval has been granted.
Obviously, it only indicates the real intention of the respondents/
management which is to have their own recruitment other than
anything else.
43. The Division Bench in considering the view has entered into
an arena which was not required to be done. Much labouring
was done in interpreting the word "Outsourcing", however, such
an exercise ought to have been avoided as it stands outside the
scope of judicial review. We have already noted the fact that
"Outsourcing" as a matter of policy is being introduced
throughout the State. It is one thing to say that it has to be given
effect to with caution as recommended by the Seventh Central
Pay Commission, and another to strike it down as
unconstitutional. "Outsourcing" per se is not prohibited in law. It
is clear that a recruitment by way of "Outsourcing" may have its
own deficiencies and pit falls, however, a decision to take
"Outsourcing" cannot be declared as ultra vires of the
constitution on the basis of mere presumption and assumption.
Obviously, we do not know the nature of the scheme and
safeguards attached to it.
44.Reliance is made on a decision of this court in the case of
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Catering Cleaners of Southern Railway (supra), wherein the
Petitioners were "catering cleaners" employed for cleaning in
various railway station, and they were not even paid
the minimum wages. Their grievance was that they had no
security of service, while being paid a paltry sum as wages. The
aforesaid decision has no application qua the present regulation,
which has got its own laudable object, introduced on the basis of
economic criteria apart from efficiency.
45.We are also not dealing with the scheme per se, and
therefore, are in dark on the conditions of service. The challenge
in the present case is not by the employee, recruited by way of
"Outsourcing", and hence, we hold the said decision on which
much reliance is sought to be made by the respondents will not
be of any help. One cannot simply presume that "Outsourcing"
as a method of recruitment would necessarily be adopting
contract labour and that there exists an element of unfair trade
practice, as sought to be contended by the respondents."
19. In the case of Priyanka Santosh Hegishte (Supra), the Co-
ordinate Bench of this Court at the Principal Seat held that, there is no
provision in the MEPS Rules for publication of Advertisement in two
newspapers. In any case, this is just an irregularity and not illegality.
20. In the case of Momin Education Society (supra), in
Paragraph No. 13, the Division Bench of this Court has observed as
under:
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"It is, of course, permissible for the State and its educational
authorities to prescribe the qualifications of teachers, but once the
teachers possessing the requisite qualifications are selected by the
minorities for their educational institutions, the State would have
no right to veto the selection of those teachers. The right to have
the teaching conducted by teachers appointed by the management
after an overall assessment of their outlook and philosophy is
perhaps the most important facet of the right to administer an
educational institution. So long as the persons chosen have the
qualifications prescribed by the University, the choice must be left
to the management and this is facet of fundamental right of the
minorities to administer the educational institutions established by
them. It is made clear by the judgments of the Supreme Court,
cited above, that making appointment of teacher is a part of
regular administration and management of the educational
institution and, therefore, minority institutions have right to
appoint a teacher selected and chosen by them and nobody can
force upon the minority institutions to appoint a particular person,
who is not selected by it as a teacher."
21. Though, the Respondents have heavily relied on the
Government Resolution dated 11.12.2020, whereby the State
Government abolished the posts of Class IV cadre i.e. Peon, Lab
Attendant, Sweeper, however, prior to the said G. R., staffing pattern of
Petitioner No.1 school was approved in the year 2012, wherein the
post of Lab Attendant is also approved and sanctioned. Since, the
Certificate in respect of declaration of Minority institution does not
stand for a specific period, unless it is revoked for some reasons, there is
no need for renewal of certificate of minority institution issued to the
religious, linguistic minority institution. Petitioner No.1 society
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disclosed about publication of advertisement for filling up the post of
Lab Attendant, in two Newspapers namely 'Nava Maratha' and one
'Urdu' Newspaper having wide circulation in Ahmednagar and produced
the merit list of candidates who have participated in the interviews.
The grounds set out in the impugned order for rejecting the approval
were not justifiable and sustainable. Therefore, the impugned order
dated 13/21.03.2023 passed by Respondent No. 2/Education Officer
(Secondary), Zilla Parishad, is liable to be quashed and set aside and it
is necessary to direct the Respondent No. 2 to grant approval to the
appointment of Petitioner No. 2 on the post of Lab Attendant from
01.09.2012 as per the proposal 18.03.2016 with all consequential
benefits.
22. In view of the above discussion, this Petition is allowed in
terms of prayer Clauses (B) and (C). Rule is made absolute accordingly.
No order as to cost.
( Y. G. KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J. )
JPChavan
