Bombay High Court
Vaishali Laxman Kharat vs The State Of Maharashtra And Ors on 15 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:4546-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8780 OF 2021
Vaishali Laxman Kharat, Age:
Digitally
signed by
NIKITA
NIKITA KAILAS
KAILAS DARADE
DARADE Date:
2025.01.30
42 years, Presently residing at
Plot No.50, Koyana Sanmitra
19:15:01
+0530
Housing Society, Golibar Maidan,
Vilaspur, Satara 415002 .... Petitioner.
Versus
1. The State of Maharashtra,
Department of School Education
and Sports, Mantralaya, Mumbai -32.
2. The Director of Education,
Pune.
3. The Deputy Director of Education
(Kolhapur Division), Kolhapur.
4. Rayat Shikshan Sanstha Through
its Chairman/Secretary, Satara. ....Respondents
...
Mr. Saurabh Pakale, a/w Mr. Nilesh Desai for the Petitioner.
Mr. Milind Deshmukh a/w Shailesh Chavan a/w Onkar Wable for
the Respondent No.4
Mr. K. S. Thorat, 'B' Panel Council for the State/Respondent Nos. 1
to 3.
...
CORAM: BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATED : 15th JANUARY, 2025
1
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JUDGMENT (PER ASHWIN D. BHOBE J.)
1. Rule. By consent of the counsel, Rule is made returnable
forthwith.
2. Petitioner has assailed the order dated 15.06.2021 passed
by the Respondent No.3 rejecting the Petitioner's proposal for
appointment to a full time post in the aided Schools managed by
Respondent No.4 institution.
3 .Factual Matrix:-
a) Petitioner was appointed on a sanctioned post i.e.
part time Shikshan Sevak since 2009, which appointment
was continued since then from time to time by way of
multiple orders.
b) Department of School Education issued Government
Resolutions dated 31.01.2001 and the Respondent State
issued Government Resolution dated 10.06.2005 specifying
the criteria for upgradation of part time teachers to full
time teachers, subject to applications being made in
prescribed manner.
c) Petitioner being eligible for upgradation as full time
teachers applied in terms of the said policy of the
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Respondent State.
d) Petitioner approached this Court by filing Writ
Petition (st.) No.3579 of 2020 seeking a direction to the
Respondent Authorities for facilitating Petitioner's
absorption in accordance with the above referred State
policy. This Court by order dated 29.10.2020 disposed of
Writ Petition (st.) No.3579 of 2020 by recording that the
Petitioner is eligible under the said policy for absorption,
and directions was issued to the Respondent State to
consider the case of the Petitioner in terms of the said
policy.
e) The Respondent No.3 by the Impugned order dated
15.06.2021 has rejected the Petitioner's claim for full time
post by recording that the Court had directed the
Respondent No.2 to decide on the eligibility of the Petitioner
for the purpose of absorption and on such premise, by
referring to the Government Resolution dated 06.02.2012
the Petitioner's proposal for appointment to a full time post
was rejected.
4. Respondent Nos. 1 to 3 have filed their reply dated
11.03.2022 opposing the petition.
5. Mr. Saurabh Pakale, learned Advocate for the Petitioner
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submits that the Petitioner being appointed as a part time
Shikshan Sevak in the Education Institution of the Respondent
No.4 and such appointment having the approval of the
Respondent No.3 is not in dispute. He further submits that the
eligibility of the Petitioner to be considered for upgradation as a
full time teacher in terms of the Government Resolution dated
31.01.2001 issued by the Education and the Sports Department
and Government Resolution dated 10.06.2005 is also not in
dispute. Mr. Pakale points out order dated 29.10.2020 passed by
this Court in Writ Petition (st.) No.3579 of 2020 to contend that
the Petitioner's eligibility for upgradation as a full time teacher is
already concluded. He submits that Petitioner's appointment
being of the year 2009, the Respondent No.3 was required to
issue necessary directions/instructions of facilitating absorption
of the Petitioner in accordance with the policy of the Respondent
State. Further he submits that reliance placed by the Respondent
No.3 on the Government Resolution dated 06.02.2012 is totally
misplaced and at any rate the said Government Resolution is not
applicable to the case of the Petitioner. He, therefore, prays that
the Petition be allowed.
6. Mr. K. S. Thorat, Learned 'B' Panel Advocate for the State
and Mr. Milind Deshmukh for the Respondent No.4 have relied on
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the Impugned order to contend that the Respondent No.3 has
rightly rejected the proposal of the Petitioner. They rely on
Government Resolution dated 06.02.2012 to support their
contentions.
Analysis:-
7. The question that falls for determination is whether the
Impugned order rejecting the Petitioner's proposal for
appointment to a full time post, by relying on the Government
Resolution dated 06.02.2012 is justified.
8. In the earlier round of litigation, i.e. Writ Petition (st.)
No.3579 of 2020, filed by the Petitioner, this Court in paragraph
No.2 of the order dated 29.10.2020 had made the following
observations:-
"2. It is not in dispute that the Petitioners were duly appointed
as part time Shikshan Sevaks in the concerned educational
institutions and their appointments were approved by
Respondent No.2 Deputy Director of Education. It is also not in
dispute that in accordance with circular issued by the
Education Department on 31 January 2001, and G. R. issued by
the Respondent State on 10 June 2005, the Petitioners are
eligible to be considered for upgradation as full time teachers on
proper applications submitted in that behalf to the education
authorities. In a number of similarly placed cases (Writ Petition
No.482 of 2002 and others), a Division Bench of this Court, by
its order dated 10 July 2019, whilst disposing of the petitions of
concerned teachers, granted liberty to the Petitioners to make
representations and directed the education authorities
(Education Officer of Deputy Director of Education, as the case
may be) to issue appropriate instructions/directions for
facilitating their absorption in accordance with the State policy
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in a time bound manner. Learned AGP does not dispute that the
facts of this case are no different from the facts of those cases."
9. On the basis of the above said conclusion this Court had
disposed off the petition giving liberty to the Petitioners to file
appropriate applications/representations for absorption as a full
time teacher in accordance with the State policy, with consequent
direction to the Respondent No.3 to dispose off the said
applications/representations.
10. Thus, the eligibility of the Petitioner to be absorbed as a full
time teacher in accordance with the State policy, was not disputed
by the Respondent State in the said petition and at any rate this
Court had held the Petitioner to be eligible. The Respondent No.3
on the spacious plea as recorded in the Impugned order could not
have gone into the issue of Petitioner's eligibility. The Respondent
No.3 has exceeded his jurisdiction by doing so.
11. The Respondent No.3 was expected to consider the
applications/representation filed by the Petitioner in the context
of the said policy and to issue appropriate directions to the
Respondent No.4 Institution to absorb the Petitioner as a full time
Shikshan Sevak/Assistant Teacher. The order dated 29.10.2020
passed in Writ Petition (st.) no.3579 of 2020 was unambiguous in
the context of the directions contained therein.
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12. The Respondent No.3 has thereafter, proceeded to consider
the case of the Petitioner in terms of the Government Resolution
dated 06.02.2012. The said exercise undertaken by the
Respondent No.3 discloses non-application of mind. Undisputably,
the appointment of the Petitioner as a part time Shikshan Sevak
is of the year 2009 but the Respondent No.3 in the Impugned
order has applied the Government Resolution dated 06.02.2012,
with retrospective effect, which is definitely erroneous. Even
otherwise perusal of the Government Resolution dated
06.02.2012 would indicate that the same is not applicable to the
case of the Petitioner.
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
retrospectively, held that the said Government Resolution had
prospective effect and it does not affect. 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 manifested by express
1 2011(supp.) Bom.C.R. 943
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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" .
14. For the reasons recorded herein above, the petition is partly
allowed. Impugned order dated 15.06.2021 passed by the
Respondent No.3 is quashed and set aside. Consequently, the
Respondent No.3 is directed to grant approval to the absorption of
the Petitioner to a full time teacher in any of the aided school
managed and run by the Respondent No.4 with all consequential
benefits of pay scale and seniority. Respondent No.3 to issue a
specific order to that effect directing the Respondent No.4 to
absorb the Petitioner. Such exercise be completed within a period
of four weeks from today.
15. The Writ Petition is disposed off as no orders to cost.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
