Bombay High Court
Shivkumar Prakash Patil And Another vs The State Of Maharashtra Through Its ... on 17 April, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:11108-DB
(1)
W.P. No. 12002-2022Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12002 OF 2022
1. Shivkumar S/o Prakash Patil,
Age : 29 Years, Occ. Service
R/o. Beli (Kh.) Tq. Mukhed,
Dist. Nanded.
2. Dattatraya S/o Madhavrao Ghate,
Age : 42 Years, Occ. Service
R/o. As Above. .. Petitioners
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Deputy Director of Education,
Latur Division, Latur.
3. The Education Officer ( Primary),
Zilla Parishad, Nanded.
4. The Superintendent,
Pay & Provident Fund Unit,
( Primary), Nanded.
5. Sant Ramrao Maharaj Shikshan
Prasarak Mandal, Mauje Junna
Society Tanda, Tq. Mukhed,
District Nanded, Through its President/
Secretary.
6. Rajiv Gandhi Primary School,
Mukhed Tq. Mukhed, Dist. Nanded,
Through its Head Master. .. Respondents
.....
Advocate for the Petitioners : Mr. V. S. Panpatte
AGP for Respondent Nos. 1 and 2 :Mr. P. S.Patil
Advocate for Respondent No.3 : Ms. Yogita S. Thorat
Advocate for Respondent No.5 : Mr. P. P. More
...
(2)
W.P. No. 12002-2022Judgment.odt
CORAM : R. G. AVACHAT AND
SANDIPUKUMAR C. MORE, JJ.
DATE OF RESERVING JUDGMENT : 02.04.2025
DATE OF PRONOUNCING JUDGMENT : 17.04.2025
JUDGMENT (PER SANDIPKUMAR C. MORE, J):
-
1. Rule. Rule made returnable forthwith. With the consent
of the parties, matter is taken up for final hearing at the admission
stage.
2. The petitioners have challenged the order dated 13.09.2022
passed by the Education Officer, (Primary), Zilla Parishad, Nanded i.e.
the present Respondent No.3, whereby approval to their appointments
as 'Shikshan-Sevaks' and further approval as ' Assistant Teachers' has
been refused by respondent No.3. The petitioners have also sought
direction to respondent No.2 i.e. the Deputy Director of Education,
Latur Division, Latur for including their names in Shalarth Pranali -
system and direction to respondent Nos. 3 and 4 to release arrears of
their salary.
3. The learned counsel for the petitioners submits that the
petitioners are having requisite qualifications and their appointments
are made from the reserved category i.e. Other Backward Class
category and Scheduled Caste category. According to him, permission
for issuing advertisement in the local newspaper was also sought and
the roster mentioning vacancy was also available at the relevant time.
W.P. No. 12002-2022Judgment.odt
He submitted that respondent No.3 did not furnish any information
when the permission to fill up the aforesaid posts was sought by filing
appropriate applications. He further submitted that, due to Covid-19
Pandemic Period, the management could not forward the proposal of
the petitioners, and for that reason the petitioners cannot be blamed.
He also claimed that the Government Resolution dated 23.06.2017
regarding filling up the post only by ' Pavitra Portal' would not come
in the way, since it was subsequently issued.
4. On the contrary, the learned counsel for Respondent No.3 i.e.
Education Officer (Primary), Zilla Parishad, Nanded justified the
impugned order dated 13.09.2022 on the ground that there was no
permission granted for issuance of advertisement and that availability
of surplus teachers/employees was not ascertained. According to her,
there was delay of almost four years in sending the proposals of the
petitioners, which ought to have been submitted within 15 days as per
Rule 8 (2) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for short, 'M.E.P.S. Rules').
Further, according to her, the petitioners have cleared 'Maharashtra
Teachers Eligibility Test' (for short, 'TET') and ' Central Teachers
Eligibility Test' (for short 'CTET') belatedly, which means that, on the
date of appointments of the petitioners, they were not having requisite
qualifications to that effect.
5. On the other hand, the learned A.G.P., also resisted the petition
W.P. No. 12002-2022Judgment.odt
by contending that, the management committed fraud by sending
back-dated proposals and appointments.
6. It is significant to note that the learned counsel for the
management i.e, respondent Nos. 5 and 6 supported the claim of the
petitioners and contended that the delay in forwarding the proposals
was mainly because the petitioners were on probation and that there
was Covid-19 pandemic period. He pointed out that the
advertisement was given in the local newspaper " Bahurangi Varta'' and
the said newspaper was regularly circulated only for publishing
advertisement for recruitment and the persons in need of jobs,
regularly read the same. He pointed out that despite seeking
permission, respondent No.3 never intimated about existence of any
surplus teachers. He pointed out that there was no fraud played in
submitting the proposals in respect of appointments of petitioners,
which were, in fact, against the clear vacancy from the reserved
category. He also submitted that the grant of approval to the
appointments of the present petitioners, never prejudiced anybody
and therefore, in refusing the approval, respondent No.3 should not
have taken such hyper technical approach.
7. It is not in dispute that petitioner No.1 was appointed as
'Shikshan Sevak' initially for the period from 01.09.2016 to
31.08.2019, whereas petitioner No.2 was appointed from 25.09.2016
W.P. No. 12002-2022Judgment.odt
to 24.09.2019. Both of them have been subsequently appointed as
'Assistant Teacher' from the reserved categories, since two posts from
those categories had fallen vacant on retirement of earlier teachers of
the school on 22.07.2016 and 25.04.2016, respectively. It is to be
noted that respondent No.3 has rejected the proposals under the
impugned order dated 13th September 2022 since it was having
following deficiencies :-
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2- tkfgjkr isij tksMys ukghr-¼1- foHkkxh; Lrjh; isij 2- ftYgkLrjh;
isij½
3- tkfgjkrhP;k osGsl fcanq ukekoyh rikl.kh dsysyh ukgh-
4- fu;qDrhP;k osGsl lacaf/kr f'k{kd gs f'k{kd ik=rk ifj{kk
(TET/CTET) mRrh.kZ ukghr-
5- e-[kk-'kk-l-fu;e 1981 e/khy rjrqnhuqlkj fu;qDrh uarj 15 fnolkaP;k
vkr izLrko nk[ky dj.ks vko';d vlrkukgh Jh- ikVhy ;kaph fu;qDrh
fn- 01-09-2016 o Jh-?kkVs ;kaph fu;qDrh fn- 26-09-2016 yk dsyh
dsyh vlqu vkiys i= dza- fujad fn-21-07-2022 jksth vrh foyackus
lknj dsyk vkgs-
6- lanHkZ dza-03 uqlkj 'kklu fu.kZ; fnukad 23-06-2017 vUo;s loZ
O;oLFkkiukP;k vuqnkfur] va'kr% vuqnkfur o foukvuqnkfur in
Hkjrhps izdzh;k 'ifo= iksVZy' ;k lax.khdh; iz.kkyh}kjs dj.ksckcr funsZ'k
vkgsr- R;keqGs vki.k fu;qDr dsysys Jh- ikVhy f'kodqekj izdk'k
2½ Jh- ?kkVs nRrk=; ek/kojko ;kauk oS;Drhd ekU;rk nsrk ;sr ukgh-
8. So far as deficiencies at Sr. No. 1 and 2 are concerned, the
W.P. No. 12002-2022Judgment.odt
petitioners have produced on record the applications submitted to
respondent No.3 on 10.05.2016 and 02.08.2016, whereby permission
was sought to issue advertisement and for recruitment of the
petitioners. Those applications appear to have been received by the
office of respondent No.3, but despite receipt of those applications,
respondent No.3 did not respond to the same. Therefore, after
waiting for some time, the management issued requisite
advertisement, which is produced on record by the petitioners.
Further, the 'Bindunamavali' at the relevant time is also produced by
the petitioners which indicates that the posts, on which the petitioners
are appointed, were lying vacant from the respective categories. It is
important to note that despite receiving applications for permission to
appoint the petitioners and to issue advertisement to that effect,
respondent No.3 neither issued such permission nor intimated the
respondent Nos. 5 & 6- management about there being surplus
teachers available at the relevant time. Considering these aspects, no
substance is found in the deficiencies at Sr. No. 1 to 3, mentioned in
the impugned order.
9. Admittedly, the proposals for approval of appointments of
petitioners were to be forwarded within 15 days, as per the Rules
under the M.E.P.S. Rules, and the proposals were in fact actually
forwarded after about four years. However, for this, the petitioners
cannot be blamed, as it was the duty of the respondent Nos. 5 and 6-
W.P. No. 12002-2022Judgment.odt
management to forward the said proposals. Admittedly, there was
period of Covid-19 pandemic and the petitioners were on probation.
It is to be noted that the petitioners have rendered their services to the
school since last eight years, and therefore, their appointments which
were otherwise done by following the due procedure of law and on
the reserved category, cannot be disapproved only on the ground of
such delay. Respondent No.3 under the deficiency at Sr. No. 6, has
raised an objection that under Government Resolution dated
23.06.2017, the recruitment procedure has to be done through 'Pavitra
Portal' and therefore, refused to approve the appointments. However,
the appointments of the present petitioners are prior to the issuance of
aforesaid Government Resolution and therefore, this cannot be made
retrospectively applicable for refusing the approvals.
10. Under deficiency at Sr. No.4, respondent No.3- Education
Officer has also raised the objection and contended that at the time of
appointments, the petitioners had not cleared TET/CTET examination,
which is mandatory for grant of approval. Admittedly, this Court in
the case of Gayatrai Pandurang Bhamre Vs. Gram Vikas Mandal and
others reported in 2025 SCC OnLine Bom. 371 had observed that for
the eligibility in respect of post of 'Assistant Teacher', the candidate
must possess TET/ CTET pass certificate. Further, the learned Division
Bench of this Court in a bunch of Writ Petitions, namely, Writ Petition
No. 4904 of 2020 (Sagar Gopichand Bahire Versus The State of
W.P. No. 12002-2022Judgment.odt
Maharashtra and others) has also taken a similar view by discussing
all the relevant Government Resolutions to that effect. It is ultimately
held in the order dated 11.06.2021 in the aforesaid bunch of Writ
Petitions that 'Assistant Teachers' are required to achieve the
qualification of TET/ CTET at the most by 31.03.2019. However, the
said judgment and order is impugned before the Hon'ble Apex Court,
and under order dated 05.07.2021, the Hon'ble Apex Court granted
status-quo in respect of appointments of the teachers therein. In the
instant case, there is no question in respect of achieving TET
qualification by petitioner No.1, since it has been achieved by him
prior to the cut off date, 31.03.2019 i.e. on 30.10.2017. However, the
petitioner No.2 achieved the said qualification after the aforesaid cut
off date, particularly on 26.02.2021. The matter in respect of the
achievement of qualification of TET/CTET is subjudicie before the
Hon'ble Apex Court. The approval which is to be granted to petitioner
No.2 can be made subject to the final outcome of the matter pending
before the Hon'ble Apex Court.
11. Considering all these aspects, it has been revealed that almost
all the deficiencies pointed out by respondent No.3, while rejecting the
approvals of the petitioners, are not sustainable. It is extremely
important to note that the appointments of the petitioners are on the
reserved posts and no one else is affected by the same. Further, the
appointments of the petitioners appear to have done by following the
W.P. No. 12002-2022Judgment.odt
due procedure and therefore, the rejection on the part of respondent
No.3- Education officer for the approvals of the appointments of the
petitioners, cannot be justified. In view of the same, we proceed to
pass the following order :
ORDER
(a) The Writ Petition is hereby allowed and the impugned order
dated 13.09.2022 passed by respondent No.3- Education Officer
( Primary), Zilla Parishad, Nanded, is hereby quashed and set-aside.
(b) Respondent No.3-Education Officer, (Primary), Zilla Parishad,
Nanded is hereby directed to accord approvals to the appointments of
the petitioners as 'Shikshan Sevaks' and thereafter as 'Assistant
Teachers' from the date of their respective appointments and also take
necessary steps to release their allowances/salary as per law, within a
period of three months from the date of receipt of copy of this order.
However, it is made clear that approval granted to petitioner No.2
would be subject to the final outcome of the matter pending before
the Hon'ble Supreme Court in respect of achieving qualification of
TET/CTET.
(C) Rule is accordingly made absolute. There shall be no order as to
costs.
(SANDIPKUMAR C. MORE) (R. G. AVACHAT )
JUDGE JUDGE
Y.S. Kulkarni
