Bombay High Court
Kini Shikshan Prasarak Mandal And Ors vs The State Of Maharashtra Through The ... on 2 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:2052-DB
Kini Shikshan Prasarak Mandal F.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10201 OF 2022
1. Kini Shikshan Prasarak Mandal,
Kini, Tal. Hatkanangale, Dist.
Kolhapur, Through its President/Secretary.
2. Kini High School, Kini, Tal. Hatkanangale,
Dist. Kolhapur, Through its Head Master.
3. Shri. Deepak Jaysing Chalake, Age:39 Years,
Occupation: Service, R/o. A/P. Kini,
Tal. Hatkanangale, District: Kolhapur. ... Petitioners
Versus
NIKITA
KAILAS
DARADE
Digitally signed by
NIKITA KAILAS
DARADE
Date: 2025.01.16
17:00:45 +0530
1. The State of Maharashtra, Through
the Secretary, School Education and Sports
Department, Mantralaya, Mumbai - 400032.
2. The Commissioner of Education,
School Education Department, Maharashtra
State,Pune.
3. The Director of Education, (Secondary
and Higher Secondary), Maharashtra State,
Pune-1.
4. The Deputy Director of Education,
Kolhapur Region, Kolhapur, Having
office at, Hatti Mahal, Ganji Galli,
Somwar Peth, Kolhapur.
5. The Education Officer (Secondary),
Zilla Parishad, Kolhapur, Having Office
at, Zilla Parishad Building, Nagala Park,
Kolhapur. ... Respondents
...
Mr Prashant Bhavake for the Petitioners.
Mr A C Bhadang, AGP for the State / Respondents.
Nikita 1
::: Uploaded on - 16/01/2025 ::: Downloaded on - 18/01/2025 03:24:42 :::
Kini Shikshan Prasarak Mandal F.odt
CORAM : BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATED : 2nd JANUARY, 2025
JUDGMENT (PER ASHWIN D. BHOBE,J) :
-
1. Rule. By consent of the counsel, Rule is made returnable
forthwith.
2. Present petition is instituted at the instance of the
Petitioner No.1 an (Educational Institution), the Petitioner No.2
(fully aided Secondary School) and the Petitioner No.3 (the
employee), assailing the order dated 06.04.2022, passed by the
Respondent No.5 (Education Officer), rejecting the proposal dated
31.03.2022, approval of Petitioner No.2, to the appointment on
the post of Peon, in the Petitioner No.2-School("Impugned order").
3. Petitioner No.1 is an Education Institution registered under
the Maharashtra Public Trust Act, 1950 and Societies
Registration Act 1860. Vacancy for the post of Peon arose on
31.07.2011 on the establishment of Petitioner No. 2, a School run
by the Petitioner No.1, upon superannuation of Mr Akaram
Rangappa Samudre.
In compliance with the requirements of Section 5(1) of the
Maharashtra Employees of Private Schools (Condition of
Services) Regulation Act, 1977 (MEPS Act), Petitioner No.1 by
application dated 18.01.2014 applied to Respondent No. 5, to
Kini Shikshan Prasarak Mandal F.odt
ascertain whether any suitable candidate was available for the
said post. Respondent No.5 took no cognizance of the said
application 18.01.2014 nor made any information available
regards any surplus person on the establishment.
Petitioner No.1, therefore, initiated the process for
recruitment to the said post, which commenced by publishing
advertisement, conduct of interview of the candidates on
10.05.2014 by the School Co-ordination Committee. The School
Committee selected the Petitioner No.3 for the said post and
Petitioner No. 1 after complying with the required formalities,
appointed the Petitioner No.3 as a Peon under "Shikshan Sevak
Scheme" w.e.f. 18.06.2014. Proposal was submitted to the
Respondent No.5 on 31.07.2014 seeking approval to the said post,
but Respondent No.5 failed to take any decision on the said
proposal.
Petitioner No.2, once again submitted proposal on
31.03.2022 seeking approval for appointment of the Petitioner
No.3 as a Peon.
4. Respondent No.3 by the Impugned order, rejected the said
proposal dated 31.03.2022, essentially on the ground of the
appointment of Petitioner No.3 was during the period of ban on
recruitment.
Kini Shikshan Prasarak Mandal F.odt
Reliance was placed on Government Resolutions dated
10.06.2010, 12.02.2015, 23.10.2013, 28.01.2019 and Government
Resolution dated 11.12.2020.
5. Respondent Nos.1 to 5 filed Affidavit-in-Reply dated
19.11.2022, opposing the petition where it reiterated the reasons
in the Impugned order for rejection of the proposal dated
31.03.2022.
6. Heard Mr. Prashant Bhavake for the Petitioner and Mr. A. C.
Bhadang AGP for the Respondents.
7. Mr. Bhavake learned Advocate appearing for the Petitioners
submits that reliance placed by the Respondent No.5 on the
Government Resolutions as referred to in the Impugned order are
totally misplaced. He submits that as on 18.06.2014 i.e. the date
of appointment of Petitioner No.3 on the post of Peon, there was
neither any ban nor any restriction imposed on appointment of
the non-teaching staff. He further submits that the Petitioner
No.3 was eligible and qualified to be appointed to the post of Peon
and the Government Resolutions, in any way cannot be
retrospectively applied to the case of the Petitioners. According to
Mr. Bhavake, the proposal dated 31.03.2022, was in compliant of
the requirements in law, thus warranting its approval.
8. Per contra, Mr. Bhadang the learned AGP support the
Kini Shikshan Prasarak Mandal F.odt
Impugned order and submits that the reasons given by the
Respondent No.5 are based on Government Resolutions, which
are applicable to the case in hand. He, therefore, submits that the
petition be dismissed.
9. On the basis of the rival contentions, the question for
determination that falls for consideration is, whether the
recruitment ban would be attracted to the appointment of the
Petitioner No.3 and whether the Respondent No.5 was justified in
denying approval of the proposal dated 31.03.2022?
The records of the case bear out that appointment of
Petitioner No.3 was made to the post of Peon, by following due
procedure by publishing advertisement and conducting selection
process for a post which was sanctioned on the establishment of
the Petitioner No. 2-School, as vacancy arose on account of
retirement of the incumbent. The appointment order of the
Petitioner No.3 is dated 18.06.2014.
Respondent No.5 does not dispute the qualifications and/or
eligibility of the Petitioner No.3 for the post of Peon. Similarly, the
Impugned order does not question the selection process adopted
by the Petitioner Nos. 1 and 2 for the appointment of the
Petitioner No.3 to the post of Peon.
10. Centripetal question is, whether the appointment of the
Kini Shikshan Prasarak Mandal F.odt
Petitioner No.3 made on 18.06.2014 would be affected by the
Government Resolution dated 10.06.2010, Government
Resolution dated 12.02.2015, Government Resolution 28.01.2019
and/or the Government Resolution dated 11.12.2020, as held by
the Respondent No. 5 in the Impugned order.
11. For the limited purpose of testing the contentions of the
Respondents, in the context of the ban on recruitment on
non- teaching staff, we have perused the Government Resolutions
forming a part of the petition and we could infer as below:-
A. Government Resolution dated 10.06.2010, imposed a ban on
recruitment of non-teaching staff. Period of the said ban was
effective from 05.06.2010 up to 04.06.2011.
B. Ban imposed vide Government Resolution dated 10.06.2010
was extended by a further period of one year vide
Government Resolution dated 16.07.2011. Period would
thus extend up to 04.06.2012.
C. Government Resolution dated 12.02.2015, directed
maintaining of status quo in respect of Master Plan
(Akrutibandh) of non-teaching staff approved by
Government Resolution dated 23.10.2013 till the receipt of
the report of the Committee appointed for modifying the
Master Plan.
Kini Shikshan Prasarak Mandal F.odt
D. Government Resolution dated 28.01.2019 introduces new
norms for staffing pattern of non-teaching posts.
E. Government Resolution dated 11.12.2020 prescribed norms
in respect of admissibility of posts of Peon. In terms of the
said Resolution, posts of Peon would lapse upon retirement
and instead thereof peons working on posts admissible as
per norms would be entitled for fixed honorarium.
12. From the facts and documents as referred to hereinabove,
we do not find any restriction or ban on recruitment of the
non- teaching staff as on 18.06.2014. Apparently, the recruitment
ban was not in force when the appointment of the Petitioner No.3
to the post of peon was made.
The learned AGP appearing for the Respondents is unable to
point out from the records or from any Government Resolution,
existence of any restriction or ban on recruitment of non teaching
staff during the said period or atleast as on 18.06.2014.
Reliance placed by the Respondent No.5 on the Government
Resolutions dated 12.02.2015 and 11.12.2020, in our view is
misplaced, reason being, appointment of the Petitioner No.3 is
effected on 18.06.2014 and Government Resolution dated
12.02.2015 stipulated status quo to be maintained, with respect
to appointment on new posts w.e.f. 12.02.2015. Government
Kini Shikshan Prasarak Mandal F.odt
Resolution dated 11.12.2020 and the staffing pattern referred by
the Respondent No.5 would not retrospectively apply to
appointments made prior to its issuances. Respondent No.5
cannot give retrospective effect to the Government Resolution
dated 11.12.2020 to deny approval to the appointment of the
Petitioner No.3, made on 18.06.2014 and hence we concluded that
Respondent No.5 was not justified in denying approval to the
proposal dated 31.03.2022 submitted by the Petitioner No. 1.
13. This Court in the case of Suman Shriram Kakad v/s State of
Maharashtra & Anr.1, while dealing with a question whether the
Government Resolution dated 05.08.2010 would apply with
retrospective, held that the said Government Resolution had
prospective effect and it did not affect any future appointment.
Paragraph No.15 of the judgment reads as follows:
"15. It is necessary to note that it is a cardinal principle of
construction of statute that every statute is prima facie
prospective unless it is expressly or by necessary implication
made to have retrospective operation. Unless there are words
in the statute sufficient to show the intention of the
Legislature to effect existing rights, it is deemed to be
prospective. As a logical corollary of general rule, that
retrospective operation is not taken to be intended unless
that intention was menifested by express words or necessary
implication. Another principle flowing from presumption
against retrospectively is that one does not expect rights
conferred by the statute to be destroyed by events which took
place before it was passed"
1 2011(supp.) Bom.C.R. 943
Kini Shikshan Prasarak Mandal F.odt
14. For the reasons recorded herein above, we deem it
appropriate to quash and set aside the Impugned order dated
06.04.2022 passed by the Respondent No.5.
Consequently, the Respondent No.5 is hereby directed to
grant approval to the appointment of the Petitioner No.3 as a
peon in the establishment of the Petitioner No.1., w.e.f. 18.06.2014
under Shikshan Sevak Scheme and further approval as Assistant
Teacher on permanent basis w.e.f. 16.06.2017. Such approval
shall be granted within a period of six weeks from today.
15. In addition to the above, the Respondent No.4 is hereby
directed to enter the name of the Petitioners in the Shalarth
Pranali and issue a Shalarth Identity to the Petitioners, by
strictly complying with law.
Petitioner No.3 is held entitled for the salary/honorarium
payable against his post with arrears, which shall be paid to the
Petitioner No.3 within a period of six weeks from the date of
allotment of Shalarth I. D.
16. The Writ Petition is disposed off in above said terms. No
orders as to cost.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
