Bombay High Court
Shaikh Mainoddin Yousuf And Another vs The State Of Maharashtra And Others on 12 June, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:10897-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6368 OF 2018
1. Shaikh Mainoddin Yousuf,
Age : 26 Years, Occu. : Service
as Assistant Teacher in Gulshan
E-Atfal Urdu Primary School,
Udgir, R/o Sayyed Chand Dargah
Choubara Road, Nideben Ves,
C/o Abdul Razak Jagirdar,
Udgir, Tq. Udgir, Dist. Latur.
2. The Headmaster,
Gulshan-E-Atfal Urdu Primary
School, Udgir, Tq. Udgir,
Dist. Latur. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education and Sports
Department, Mantralaya,
Mumbai - 32.
2. The Deputy Director of Education,
Latur Region, Latur.
3. The Education Officer (Primary),
Zilla Parishad, Latur.
4. Jt. Secretary,
AL-Farooq Taleemi Society,
Udgir, C/o Gulshan-E-Atfal
Urdu Primary School, Udgir,
Tq. Udgir, Dist. Latur. .. Respondents
Shri Syed Masood Chand, Advocate for the Petitioners.
Shri S. P. Joshi, A.G.P. for the Respondent Nos. 1 and 2.
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Shri V. C. Patil Ashtekar Advocate h/f Shri U. B. Bondar,
Advocate for the Respondent No. 3.
Shri G. R. Syed, Advocate for the Respondent No. 4.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
DATE : 12 JUNE 2024.
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. With the consent
of parties heard both sides finally.
2. Petitioners are challenging order dated 05.02.2018 passed
by the respondent No. 3/Education Officer (Primary), Zilla
Parishad, Latur refusing to grant approval to the appointment of
petitioner No. 1 on the ground that no previous permission was
solicited for the appointment and surplus teachers were not
being accommodated.
3. Petitioner No. 2 school is being run by the respondent No.
4/ AL-Farooq Taleemi Society, Udgir. According to the
petitioners, respondent No. 4 is declared to be a minority
institution by the competent authority and certificate dated
20.06.1990 was issued. A copy of the certificate is produced on
record. Before proceeding for the recruitment, management
solicited permission of the respondent No. 3/Education Officer
vide application dated 13.11.2017. The petitioner No. 1 was
appointed as an assistant teacher by order dated 21.12.2017 by
following due procedure of law. The proposal was forwarded to
the respondent No. 3/Education Officer seeking approval to the
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appointment of the petitioner No. 1, which was rejected by the
impugned letter.
4. Learned counsel for the petitioners submits that being a
minority institution it was not mandatory to accommodate
surplus teachers in view of law laid down by the Division Bench
of this Court in the matter of The Canossa Society, Canossa
Convent and The Canossa special School Canossa Annexe Vs. The
commissioner Social Welfare reported in 2014 CJ(Bom) 656. It is
further submitted that the respondent No. 3/Education Officer
did not respond to the application dated 13.11.2017. It has been
duly verified that minority status was conferred upon the
educational institution of the respondent No. 4. It is being
suppressed by the respondents that G. R. dated 17.07.2022 would
endorse the sanctity of minority certificate dated 20.06.1990.
5. Per contra, learned Assistant Government Pleader would
support the impugned order on the basis of affidavit in reply. He
would submit that minority certificate is doubtful in view of
communication dated 08.04.2002. It stood cancelled. It is
further submitted that two teachers referred to the institution
were not being accommodated.
6. We have considered rival submissions of the parties. It
reveals from the earlier orders passed in this matter that a doubt
was expressed as regards genuineness of application dated
13.11.2017 soliciting prior permission of the Education Officer
and minority certificate dated 20.06.1990. In pursuance of order
dated 06.09.2021, petitioners placed on record few documents at
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Exhibit X- 1 collectively, comprising of letter dated 07.10.2021,
minority certificate, the correspondence and the order of
appointment. Letter dated 07.10.2021 addressed by the Deputy
Director of Education to the Head Master shows that minority
certificate was borne from the record of his office. Affidavit in
reply also does not dispute the existence of minority certificate.
Its format has been questioned.
7. Learned A. G. P. relies on letter dated 08.04.2002 to
contend that the minority certificate stood cancelled. Our
attention is invited to subsequent G. R. dated 17.07.2002 by the
learned counsel for petitioners. It has been clarified that those
education institutions who were conferred minority status prior
to 17.07.2002 need not have to apply for minority status afresh.
In view of G. R. dated 17.07.2002, we are of the considered view
that the minority certificate dated 20.06.1990 issued prior to G.
R. dated 17.07.2002 cannot be doubted and it would enure to the
benefit of the petitioner.
8. The doubt regarding application dated 13.11.2017 stands
removed by order passed on 16.11.2021. On that day original
inward register was placed before the Court and it was recorded
that it bears inward entry No. 9462. Thus, it is clear that an
endeavour was made to intimate Education Department by the
management before appointing petitioner No. 1.
9. Minority certificate and the application dated 13.11.2017
are the clinching documents, which support the claim of the
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petitioners. We prefer to rely upon those documents in view of
above discussion.
10. The legal position is no more res-integra in view of law laid
down by the Division Bench of this Court in the matter of The
Canossa Society, Canossa Convent and The Canossa special School
Canossa Annexe Vs. The commissioner Social Welfare (supra).
Following para No. 22 is relevant :
"22. There is merit in the submissions of the learned counsel
for the petitioners. In the present case by the impugned directive
dated 17.6.2011 the respondent nos. 1 to 3 have foisted upon the
petitioners the appointment of the respondent no.4 who is
rendered a surplus employee in view of the closure of a school
situate in Nanded District. Admittedly, there is no consultation
with petitioner no.2-school before such appointment is thrusted
upon the petitioner no.2-school. The respondent-authorities have
also failed to take into consideration the fact that there is no
vacancy as urged by the petitioners before the authorities, in
view of the appointment of Mrs.Jyotsna Thorat who came to be
appointed on 30.9.2006 and whose appointment was approved
on 18.8.2007. Consequence of the impugned order issued by the
respondent no.1 is that the approved appointment of Mrs.Jyotsna
Thorat as validly done by the petitioner No.2-institution in
exercise of its right to administer a minority educational
institution is being interfered, coupled with a consequence that
such valid appointment would be required to be cancelled. In our
considered opinion it is impermissible for respondent nos. 1 to 3
to resort to such an action of foisting appointment of respondent
no.4 on the petitioner no.1-institution as it directly infringes the
fundamental right guaranteed under Article 30 (1) of the
Constitution of India conferred on the petitioner no.2 institution
to administer and establish petitioner no.2 school. The State
authorities cannot indirectly do an act which cannot directly be
done. In other words, when the State has no authority to make
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appointment of teaching and non-teaching staff in respect of a
minority institution,even if aid has been granted, such action of
making an appointment cannot be taken by directing absorption
of a surplus employee. This is nothing but, making appointment
of a staff member in a minority institution. The law confers no
such authority and power with the State Government to thrust an
employee rendered surplus in other schools to be absorbed by a
minority institution. Rule 25 A of the Maharashtra Employees of
Private Schools (Conditions of Services) Rules cannot be made
applicable to appoint surplus staff in a minority institution unless
the minority institution is consulted and concurs for such an
appointment. We, therefore have no hesitation to conclude that
the impugned order dated 17.6.2011 issued bay respondent no.1
is wholly arbitrary and illegal as the same infringes on the
petitioner's right guaranteed under Article 30 (1) of the
Constitution of India."
11. As the petitioners enjoy privilege under Article 30(1) of the
Constitution of India, the management was not under obligation
to accommodate surplus teachers referred to it. The respondent
No. 3/Education Officer failed to respond to application dated
13.11.2017. It would not be open for the respondents to reject the
proposal on the ground that prior permission was not solicited
before recruitment. The reason cited in the impugned order is
thoroughly unsustainable.
12. For the reasons stated above, we quash and set aside the
impugned order dated 05.02.2018 passed by the respondent No.
3/Education Officer (Primary), Zilla Parishad, Latur. The
respondent No. 3 shall reconsider the proposal for grant of
approval to the appointment of the petitioner No. 1 afresh.
However, he shall not reject the proposal on the ground, which we
have disapproved in this order. The respondent No. 3 shall take
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the decision over the proposal within a period of four (04) weeks
from the date of receipt of copy of this order and communicate the
decision to the petitioners. Writ petition is disposed of. Rule is
made absolute in above terms. There shall be no order as to
costs.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/June 24
