Bombay High Court
Pornima Rajesh Bhole vs The State Of Maharashtra And Others on 19 September, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:22435-DB
1 WP / 11069 / 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11069 OF 2018
Sow. Pornima W/o. Rajesh Bhole
Age : 36 years, Occu. Service / Assistant Teacher,
R/o. Hanumannagar, Varangaon,
Tq. Bhusawal, Dist. Jalgaon .. Petitioner
Versus
1] The State of Maharashtra
Through its Secretary, Education Department,
Mantralaya, Mumbai - 32.
2] The Education Officer (Secondary)
Zilla Parishad, Jalgaon
3] The Dy. Director of Education,
Nasik Region, Nasik
4] Mahatma Gandhi Vidyalaya, Varangaonm
Tq. Bhusawal, Dist. Jalgaon,
Through its Headmaster &
Secretary School Committee,
Ramrao Ragho Nikumbh,
Age : 57 years, Occu. Service,
R/o. Ganpati Nagar, Varangaon,
Tq. Bhusawal, Dist. Jalgaon
5] The Varangaon Education Society,
Through its Secretary,
R/o. Mahatma Gandhi Vidyalaya,
Varangaon, Tq. Bhusawal,
Dist. Jalgaon .. Respondents
WITH
CIVIL APPLICATION NO. 8249/2023 IN WP/11069/2018
(Mannohar Nilkanth Choudhari and another
Versus
The State of Maharashtra through its Secretary and others)
...
Advocate for petitioner : Mr. Vinod P. Patil
AGP for the respondent - State : Mr. B.M. Dhanure
Advocate for respondents no. 4 and 5 : Mr. Vijay B. Patil
None present for applicants in CA/8249/2023
...
2 WP / 11069 / 2018
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
DATE : 19 SEPTEMBER 2024
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. It is made returnable forthwith. AGP
Mr. Dhanure waives service for respondent nos. 1 to 3 and Mr. V.B.
Patil waives service for respondent nos. 4 and 5.
2. None is present for the applicant / intervenor.
3. The petitioner who was stated to have been appointed as
a Shikshan Sevak in respondent no. 4 - school, run by respondent
no. 5 - management, is challenging the communication of the
respondent no. 2 who is the Education Officer (Secondary), Zilla
Parishad, Jalgaon, dated 26-12-2014 (Exhibit - I) whereby he had
informed the headmaster of respondent no. 4 - school that the
advertisement for undertaking recruitment to the post of Shikshan
Sevak published on 25-12-2014 could not have been published without
prior permission and in the light of the ban on the recruitment imposed
vide government resolution dated 02-05-2012, unless all the surplus
teachers from the district were absorbed and directing him to cancel
the advertisement and the recruitment and expressly directing not to
forward any proposal for grant of approval to the appointments.
3 WP / 11069 / 2018
The petitioner is also seeking a writ of mandamus directing respondent
nos. 4 and 5 to forward appropriate proposal to the Education Officer,
for grant of approval to her appointment and is also soliciting a writ
against the Education Officer, to decide the proposal and to direct
payment of salary to her. She is also seeking a direction to the effect
that since she had also put in three years of service as a Shikshan
Sevak with effect from 23-02-2015, she may be directed to be
appointed in the regular cadre of Assistant Teacher with effect from
24-02-2018, and to pay salary of the post.
4. The learned advocate for the petitioner would take us
through the papers and would submit that the petitioner was appointed
by following due process in light of section 5(1) of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (MEPS Act) and Rule 9 of the Rules framed thereunder.
A permission was solicited and was granted by the Deputy Director of
Education and the Education Officer, advertisement was published and
she was appointed.
5. He would, therefore, submit that the Education Officer -
respondent no. 2 even without there being any proposal, could not
have legally issued the impugned communication which was clearly
done at the instance of an individual. It was a different matter had he
taken appropriate decision pursuant to the proposal to be submitted by
4 WP / 11069 / 2018
the management and the headmaster for grant of approval. However,
due to change in the managing committee of respondent no. 5 -
society / trust, the matter was kept lingering, no suitable proposal was
ever forwarded for granting approval to the petitioner's appointment.
In fact, respondent nos. 4 and 5 had sought to challenge the very same
communication dated 26-12-2014 (Exhibit - I) by filing writ petition no.
12011 of 2014, however, due to the change in the management, the
writ petition was sought to be withdrawn. Since the petitioner had filed
an application for intervention in that writ petition made a request to
transpose her as a petitioner, this Court permitted the petition to be
withdrawn and even permitted the petitioner to prosecute the cause by
way of an independent writ petition. This is how, the present petition
has been filed.
6. The learned advocate would also endeavour to
demonstrate that even there are circumstances indicating that the
petitioner has been actually working in the school and has been
assigned with various duties from time to time.
7. The learned advocate for respondent nos. 4 and 5 would
strongly oppose the petition. He would submit that no due process of
law was followed, there was no permission for undertaking the
recruitment. Petitioner was being sought to be recruited by way of a
backdoor entry, being the daughter of the erstwhile president of
5 WP / 11069 / 2018
respondent no. 5 - society. He was holding the post illegally and could
manage to publish the advertisement on 25-12-2014 and on the very
next day, by the impugned communication, the Education Officer had
rightly intervened and directed not to go ahead with the process. She
had never been working with respondent no. 4 - school and the
petition be dismissed.
8. The learned AGP would submit that since the Education
Officer had received the information about illegal recruitment being
undertaken, he had sought to intervene by issuing the impugned
communication. No fault can be found with the right exercised by him.
9. We have considered the rival submissions and perused
the papers including the affidavit in reply filed by respondent nos. 4 and
5, affidavit in rejoinder filed by the petitioner and even the additional
affidavit filed by respondent nos.4 and 5 pursuant to the amendment of
the petition.
10. At the outset, it is necessary to note that since it is a matter
of employment in respondent no. 5 - society, the role of the Education
Officer and the Department of Education, in light of the provisions of
the MEPS Act, would be only to grant or refuse approval to the
appointment of a teaching or a non-teaching staff recruited by it. The
right to recruit would be inherent. The role of the Education
6 WP / 11069 / 2018
Department could only be restricted to the manner in which the
recruitment takes place and that too only because the government
grants would be made available to the extent the staff is sanctioned
and approved. If a management undertakes recruitment beyond the
staffing pattern approved by the state government, the consequence
would be that the government would be under no legal and moral
obligation to make available grants for payment of salaries to such
additional staff. It is wholly a matter between the society and the
individual employee recruited by it. In other words, even if the
recruitment takes place de hors the MEPS Act and the Rules, it would
not be illegal.
11. True it is that by virtue of section 5 of the MEPS Act and
Rule 9 of the MEPS Rules, the modalities have been prescribed for
undertaking a recruitment process by the management running an
educational institution. It is pursuant to these provisions that the
proposals are forwarded to the Education department for grant of
approval to the appointments made. Obviously, the Education Officer
and the Deputy Director of Education would be within their rights to
scrutinize such proposals in light of the afore-mentioned provisions and
the government policies.
7 WP / 11069 / 2018
12. We are pointing out this precisely for the reason that the
impugned communication dated 26-12-2014 issued by respondent
no. 2 - Education Officer travels much beyond the circumscribing limits
on his powers, as an Education Officer for granting or refusing to grant
approvals to the appointment of teaching and non-teaching staff. What
the impugned communication demonstrates is that even without there
being any proposal soliciting approval to any appointment, he has over-
enthusiastically exceeded the powers and sought to prevent the
recruitment process being undertaken. The impugned communication
refers to some ban on the recruitment pursuant to the government
resolution dated 02-05-2012 and availability of surplus staff in the
district. However, all such exercise has been done by him sans any
proposal and at the instance of an individual who was apparently
objecting to the recruitment process being undertaken. Be that as it
may, the fact remains that the impugned communication directing
respondent no. 4 - headmaster not to undertake the recruitment
process is in the form of an injunction clamped by the Education Officer
at the instance of some individual and is clearly beyond the purview of
his powers under the MEPS Act and is liable to be struck down.
13. Whether the petitioner has been appointed by following
due process as is contemplated under section 5 of the MEPS Act and
8 WP / 11069 / 2018
the MEPS Rules, 1981 framed thereunder, would be relevant and can
be decided objectively only pursuant to the proposal to be forwarded by
respondent no. 5 - society to the Education Officer. It cannot happen
beforehand. Obviously, neither the petitioner is seeking nor can even
we, in exercise of powers under Article 226 of the Constitution of India,
bind respondent no. 2 - Education Officer in taking appropriate
decision. He will have to do so on the merits and in accordance with
law. It is not that there is nothing on the record to demonstrate that no
process as is contemplated under section 5 and rule 9 was ever
undertaken. In fact, the copies of permissions granted by the then
Education Officer and Deputy Director of Education have been placed
on record. A copy of advertisement is also there. If such is the state-
of-affairs, it would be incumbent on the part of respondent nos. 4 and 5
to forward appropriate proposal for grant of approval to the
appointment of the petitioner.
14. True it is that in the additional affidavit filed by respondent
nos. 4 and 5, a factual dispute has been raised by saying that the
petitioner has not been actually working as a Shikshan Sevak.
Obviously, we cannot undertake any scrutiny in that respect being
purely a factual dispute. However, we cannot ignore the fact that in the
affidavit in rejoinder filed by the petitioner together with the annexures,
it has been specifically mentioned and demonstrated that she was
9 WP / 11069 / 2018
appointed by the Maharashtra State Board of Secondary and Higher
Secondary Education, Nashik Division Board, Nashik as a supervisor in
the S.S.C. examination that was to be conducted in February / March
2018, by the communication dated 28-02-2018. Even some other
record is produced to substantiate her stand that she has been actually
working with respondent nos. 4 and 5. A diary in respect of the
teaching exercise undertaken maintained by the petitioner and having
signatures of the Supervisor and the Deputy Headmaster are also
annexed to the rejoinder of the year 2018. Even she was assigned
answer papers for assessment under the signatures of the Supervisor
and class teacher in respect of unit tests in the year 2019.
15. Pertinently, though additional affidavit was filed on behalf
of respondent nos. 4 and 5 after the petitioner filed this rejoinder, there
is no specific denial of the stand being taken in the rejoinder and the
material produced along with it to demonstrate and substantiate her
stand of having actually been working with respondent nos. 4 and 5.
16. This apart, as is mentioned herein-above, apparently
permission was granted to undertake recruitment process, an
advertisement was published and the petitioner was given an
appointment order. Therefore, irrespective of the objection being
raised by respondent nos. 4 and 5, the afore-mentioned documents
and circumstances are sufficient to demonstrate that the petitioner is
10 WP / 11069 / 2018
not a stranger but was given an appointment by respondent no. 5 -
society. If that be so, it would be imperative for respondent nos. 4 and
5 to forward appropriate proposal to respondent no. 2 - Education
Officer for grant of approval to her appointment initially as a Shikshan
Sevak and subsequently as an Assistant Teacher.
17. It is also pertinent to note that even the then management
had sought to challenge the selfsame impugned communication by
filing writ petition no. 12011 of 2014. Even in that petition, memo of
which is available on the record, respondent nos. 4 and 5 had raised
objection to the selfsame impugned communication by demonstrating
as to how the recruitment process was undertaken in accordance with
law. Though, may be due to change in the management, the
incumbent managing committee of respondent no. 5 had decided to
withdraw the writ petition, the stand taken in the petition memo duly
supported by a verification cannot be resiled by the incumbent
management by taking some contrary stand. Even otherwise, while
granting leave to withdraw the writ petition, this petitioner was
permitted to seek the relief by filing separate writ petition as she had
sought to intervene and even had sought to be transposed.
18. Be that as it may, it would be now a matter to be decided
by respondent no. 2 - Education Officer whether to grant approval to
the petitioner's appointment or not. For that reason, it would be
11 WP / 11069 / 2018
appropriate that the petition is allowed and by setting aside the
impugned communication, respondent nos. 4 and 5 are directed to
forward appropriate proposal to respondent no. 2 - Education Officer
and he is directed to consider and decide it on its own merits.
Needless to state that depending upon the decision, the petitioner
would be entitled to the consequential reliefs.
19. The writ petition is partly allowed in following terms :
20. Impugned communication dated 26-12-2014 issued by
respondent no. 2 - Education Officer (Secondary), Zilla Parishad,
Jalgaon, is quashed and set aside.
21. Respondent nos. 4 and 5 shall forward appropriate
proposal for grant of approval to the petitioner's appointment together
with the necessary documents to respondent no. 2 - Education Officer
within four (4) weeks.
22. Respondent no. 2 shall take appropriate decision in
accordance with law and on its own merits on such proposal, within
four (4) weeks of receipt of the proposal.
23. If respondent no. 2 grants approval, all the respondents
shall take immediate steps to grant all the consequential monetary
benefits.
12 WP / 11069 / 2018
24. Rule is made absolute accordingly.
25. Pending civil application is disposed of.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
