Bombay High Court
Amol Pramod Patil vs The State Of Maharashtra And Others on 14 January, 2025
2025:BHC-AUG:940-DB
931-WP-698-2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 698 Of 2022
Shri. Amol Pramod Patil
Age: 34 years, Occu.: Service,
R/o. Plot no. 4, R.L. Colony,
Pimprala, Tq. and Dist. Jalgaon. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary
Education Department,
Mantralaya, Mumbai-32.
2. Deputy Director,
Of Vocational Education and Training
Divisional Office, Nashik.
3. The District Vocational Education and Training
Officer, Jalgaon.
4. Yashwantrao Chavan Shikshan Prasarak
Mandal,Erandol, Tq. Erandol, Dist Jalgaon,
Through it's President
5. Dadasaheb Digambar Shankar Patil
Arts, Commerce and Science College
Erandol, Tq. Erandol, Dist. Jalgaon,
Through it's Manager/ President, .. Respondents
_______________________________________________________
Mr. V.S. Panpatte, Advocate for the petitioner.
Mr. P.S. Patil, Additional Government Pleader for respondent Nos. 1
to 3.
The respondent Nos. 4 and 5 are served.
_______________________________________________________
[1]
931-WP-698-2022
CORAM : S. G. MEHARE AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : 7th JANUARY, 2025
PRONOUNCED ON : 14th JANUARY, 2025
J U D G M E N T [Per Shailesh P. Brahme, J.] :-
. Rule. Rule is made returnable forthwith. With the consent of
the parties, heard both sides finally, at the admission stage.
2. This petition is directed against order dated 07.12.2021 passed
by the respondent No.3/In-charge District Vocational Education and
Training Officer, rejecting the proposal of the petitioner seeking
approval to his appointment as a full-time instructor. While rejecting
the proposal, two grounds are cited namely (i) no prior permission
was solicited for appointing the petitioner and (ii) appointment is in
violation of the rules.
3. The petitioner is an employee of respondent No.5/Dadasaheb
Digambar Shankar Patil Arts, Commerce and Science College (for short
'College') of which Minimum Competency Vocational Course ('MCVC'
for short) is a part. The vacancy was created due to the death of one
Dilip Madhavrao More. The management submitted application on
07.04.2015 seeking prior permission for the recruitment. The
management published advertisement in a newspaper dated
05.05.2015. In pursuance of the advertisement, the petitioner faced the
recruitment process and appointed vide order dated 16.06.2015 as
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full-time instructor for 'Auto Engineering Technician' trade. By the
impugned communication the proposal was rejected.
4. Learned counsel Mr. V.S. Panpatte, for the petitioner submits
that the appointment of the petitioner was by following due procedure
of law as contemplated by Section 5 of the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act of 1977
(for short 'M.E.P.S. Act') and under Rule 9 of Rule of 1981. The
sanctioned post was available. A prior permission to advertise the post
was tried to be solicited, but there was no response. Learned counsel
would submit that only reason for turning down the proposal is not
seeking prior permission, which is perverse in view of application
dated 07.04.2015. He would submit that another ground for rejecting
the proposal is absurd. The respondents are trying to supply the
additional reasons for rejecting the proposal which were not
incorporated in the impugned communication.
5. Learned Counsel for the petitioner further submits that there
was no response to the application of the management seeking prior
permission. No surplus candidate was ever sent for the accommodation
in the respondent No.5/College. By way of rejoinder, it is submitted
that Government Resolution dated 06.02.2012 was superseded. The
appointment is against vacancy for OBC. It is further submitted that
the advertisement was published in newspaper 'Dainik Bajirao'. He
tenders on record the documents including the newspaper, short points
of judgments and citations.
931-WP-698-2022
6. Respondent Nos. 1 to 3 have filed affidavit-in-reply to oppose
the claim of the petitioner. Learned Addl. G.P. Mr. P.S. Patil submits
that application dated 07.04.2015 was duly replied on 10.04.2015. The
management did not take steps to submit the proposal as per circular
dated 30.04.2014. It is vehemently submitted that the appointment of
the petitioner is in flagrant abuse of clause Nos. 1, 3, 5 and 8 of
Government Resolution dated 06.02.2012. The plea of the petitioner
that advertisement was published in 'Dainik Bajirao' is afterthought.
The proposal was submitted on 18.11.2021, after period of 6 years. It
is submitted that appointment is a backdoor entry and it is fraud
played by petitioner and the management. It is submitted that an
in-depth inquiry is required to be conducted in respect of the
documents created by the management and so called procedure
undertaken for the appointment of the petitioner.
7. Having considered the rival submissions of the parties, it reveals
that vacancy was created due to death of one of the employees of the
respondent No.4/Management. Though application was submitted on
07.04.2015 seeking prior permission, the management did not respond
to the letter dated 10.04.2015 addressed by respondent No.4.
No proposal was submitted as per circular dated 30.04.2014. The
advertisement dated 05.05.2015, originally annexed to the petition
does not disclose the name of the newspaper. The pleading to that
effect is also silent. Pertinently, after lapse of 6 years, the proposal
was submitted seeking approval to the appointment of the petitioner
on 18.11.2021.
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8. During the course of hearing, learned counsel for the petitioner
placed on record a photocopy of newspaper namely 'Dainik Bajirao'.
It is not made clear as to why the pleading is silent in respect of the
name of the newspaper. There is no explanation, as to why the
proposal seeking prior permission was not presented to the concerned
department in terms of circular dated 30.04.2014. There is no
explanation as to why the proposal was submitted on 18.11.2021
when petitioner was appointed on 16.06.2015, i.e. after about 6 years.
These circumstances raise doubt regarding the procedure adopted by
the management in appointing the petitioner.
9. The learned Addl. G.P. has relied on Government Resolution
dated 06.02.2012. The learned counsel for the petitioner submitted
that the said resolution is superseded subsequently. No material is
placed on record to support the contention. When the petitioner was
appointed in 2015, the Government Resolution dated 06.02.2012 was
in force and the management was bound to follow the same. We do
not find that there is compliance of clause Nos. 1, 3, 5 and 8 of the
Government Resolution dated 06.02.2012.
10. We do not find that there is any perversity or patent illegality
in rejecting the proposal seeking approval to the appointment of the
petitioner. The respondent No.4 is justified in holding that
appointment in question is without following due procedure of law
and in violation of Government Resolution dated 06.02.2012 and
Section 5 of the M.E.P.S. Act. Considering the documents placed on
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record by the petitioner to support his claim, the possibility of
back-dated appointment cannot be ruled out.
11. It is the contention of the petitioner that by way of
affidavit-in-reply additional grounds are supplied which is against law
laid down by the Supreme Court in the matter of Mohinder Singh Gill
Vs. The Chief Election Commissioner, New Delhi & Ors. reported in
AIR 1978 SC 851. The impugned communication discloses two grounds
namely (i) not soliciting prior permission and (ii) not following due
procedure. For not following due procedure by way of affidavit,
explanation has been tendered. It is not a case that for the first time
additional grounds are supplied in the High Court by way of reply.
The burden is upon the employee to demonstrate that the appointment
is made by following the due procedure of law. The judgments of the
Supreme Court would not assist the petitioner.
12. The reliance is placed by the petitioner on the judgment of the
Division Bench in the matter of Sou. Revati Kusha Wagh & Anr. Vs.
State of Maharashtra in Writ Petition No. 10580 of 2015 and the
companion matters. In that case, approval was rejected on the ground
that, unless surplus teacher was absorbed, appointment of newly
recruited petitioners could not be approved. In the case in hand, there
are multiple grounds for rejecting the proposal. Hence, this judgment
would not help the petitioner. He also relies on the judgment in the
matter of Mallinath s/o Melgiri Kante Vs. State of Maharashtra in
Writ Petition No. 7878 of 2014 with connected matters. In that case,
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permission was sought from the Education Officer to fill-up the post,
but there was no response from Education Officer for 15 days. Then,
the management proceeded to recruit the teacher. In the case in hand,
the respondent authority responded the application vide letter dated
10.04.2015. Thereafter, management did not comply with the
instruction. This judgment also is not helpful to the petitioner.
13. Petitioner refers to the judgment in the matter of Smt. Munoli
Rajashri Karabasappa Vs. State of Maharashtra and Ors. in Writ
Petition No. 8587 of 2016 and connected matters. In that group of
petitions the Education Officer refused to grant approval, as there was
ban imposed by Government Resolution dated 02.05.2012. It was held
that ban would not be attracted (a) if the recruitment was prior to
concerned resolution (b) appointments were for filling-up the vacancies
of English, Mathematics and Science teachers and (c) appointments
were to fill-up the backlog of reservation. In the case in hand
approval has not been rejected due to Government Resolution dated
02.05.2012. Though the petitioner was appointed against OBC
category, the statutory formalities cannot be dispensed with. The ratio
of the judgment is not helpful to the petitioner.
14. Next judgment cited by the petitioner is in the matter of Nitin
Bhatusingh Thakur Vs. State of Maharashtra in Writ Petition No.
5975 of 2017. In that case the proposal was rejected on number of
grounds. The predominant one was that the newspaper in which the
advertisement was published was weekly one instead of daily. Such is
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not the issue in the case at hand. We are not inclined to apply the
ratio to the present case.
15. Further reliance is placed on the judgment in the matter of
Dnyan Vikas Mandal Vs. Parashram s/o Laxman Lokhande and Others
in Writ Petition No. 398 of 1985. It was held that publication of the
advertisement only in one newspaper would not invalidate the
appointment order. In the case in hand, proposal for approval is
turned down on various counts. Hence, the ratio cannot be made
applicable.
16. Lastly, reliance is placed on the judgment in the matter of
Pandurang Narayan Kanekar Vs. State of Maharashtra and Others in
Writ Petition No. 219 of 2022. In that case, the approval was revoked
as the appointment was not according to the reservation and the post
in question was not sanctioned. In the case at hand, these are not the
grounds of rejection of the proposal. The facts are distinguishable.
Hence, the ratio is not helpful to the petitioner.
17. For the reasons assigned above, we do not find any merit in the
petition. The writ petition is dismissed. Rule is discharged.
[ SHAILESH P. BRAHME ] [ S. G. MEHARE ]
JUDGE JUDGE
Komal Kamble/
