Bombay High Court
Shri. Palhe Nivrutti Balkrishna vs The State Of Maharashtra Thru The ... on 17 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:3574
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13666 OF 2018
Shri. Palhe Nivrutti Balkrishna .. Petitioner
Versus
The State of Maharashtra through the .. Respondents
Secretary, School Education Department
and ors
WITH
WRIT PETITION NO.13667 OF 2018
Shri. Rajesh Rarku Shinde .. Petitioner
Versus
The State of Maharashtra through the .. Respondents
Secretary, School Education Department
and ors
Mr.Narendra V. Bandiwadekar, Senior Advocate a/w Adv.Vinayak
Kumbhar, Rajendra Khaire, Aniket Phapale i/b Ashwini N
Bandiwadekar for the petitioner.
Mr.Kalpesh Turalkar i/b Jyotiram Yadav for respondent nos. 3 and 4.
Ms.D.S.Deshmukh, AGP for the State.
CORAM: BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATED : 17th JANUARY, 2025
ORAL JUDGMENT:-(PER BHARATI DANGRE J)
1. The petitioner has approached this Court, raising
challenge to the order dated 22/11/2018, Exhibit-P to the petition,
which has refused approval to his appointment as Shikshan Sevak on
nine grounds set out in the said order.
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2. We have heard learned counsel Mr. Bandiwadekar for
the petitioner, learned counsel Mr. Kalpesh Turalkar, representing the
Management and learned AGP, representing the State authorities.
By consent of respective parties, we issue 'Rule'.
Rule is made returnable forthwith.
3. The petitioner claims, belonging to open category, being
armed with qualification M.A. in History subject, along with B.Ed.
with methods in History and Marathi responded to an advertisement
issued by the Management inviting applications for the post of
'Shikshan Sevak' in its Secondary aided division, pursuant to an
advertisement issued in the academic sessions 2013-14.
The advertisement clearly mentioned that the
applications are invited from B.A., B.Ed. candidates for filling up 3
full time post in English, Geography and Social Science, along with
some other posts.
The petitioner found himself to be best suited for the
said post on possessing the qualification M.A.(History) along with
B.Ed.
He received a call letter pursuant to which he appeared
before the respondent and was issued an appointment order on
16/06/2013, and from the documents placed on record at Exhibit G, it
is evident that several candidates participated in the process and
since the petitioner met with the eligibility criteria and was found to
be suitable, was issued an order of appointment by the Management.
Pursuant to his appointment on 11/4/2017, the proposal
was submitted for seeking approval of the Education Department &
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since it was refused, the present petition is filed.
It is worth to note that, in the earlier round the petitioner
filed Writ Petition No.13830 of 2017, wherein on 15/12/2017, this
Court issued an direction restraining the respondent no.2, from
sending any surplus teacher in the post of the petitioner, but
ultimately on 1/08/2018, the Division Bench disposed off the Writ
Petition, with a direction to the respondent no.2, to decide the
proposal for petitioner's approval within a time bound manner.
4. We have turned our attention to the impugned order
passed by the Education Officer (Secondary), Raigad Zilla Parishad
and we have noted that the Education Officer has refused the
approval on several reasons and we have perused the said grounds
and also heard Mr. Bandiwadekar, as to how the rejection on these
grounds is unsustainable and particularly in the light of the affidavit
filed by the Education Officer, justifying its stand on the impugned
order.
5. The foremost ground in the conclusions derived by the
Education Officer in reporting the approval to the appointment of the
petitioner is, that when an advertisement was issued by the
Management on 26/04/2013, which was published in two daily
newspaper, the Management did not seek permission of the
Education Officer, and we find this stand reiterated in the affidavit
filed by the Education Officer, where it is stated that, the application
was preferred on 27/04/2013, but the advertisement was issued on
26/04/2013.
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We must take note of an important aspect being that,
neither the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977, nor the Rules thereunder necessarily
contemplate that the Management should obtain prior permission
before issuing any advertisement, but the practical purpose in seeking
approval is that, the Management shall not invite application for
posts for which the backlog exist or certain surplus teachers are to be
accommodated and in any case, the approval can also be granted
postfacto.
6. The second objection raised, is in respect of the non
mention of the qualification and we must outrightly reject this
ground, since on perusal of the advertisement, we have noted that for
the three permanent posts for which the advertisement was issued,
included the subject - Social Science and the qualification prescribed
was B.A. B.Ed., and undisputedly the petitioner was armed with the
said qualification on the date of his appointment.
Another objection is about delay in forwarding the
proposal i.e. despite an appointment order being issued on
17/06/2013, the proposal for his appointment as forwarded only on
11/04/2017, that is after lapse of almost 4 years.
Our attention is invited by Mr. Bandiwadekar, to an
affidavit filed by the Deputy Education Officer, Secondary, Zilla
Parishad Sangli, in Writ Petition No.1354 of 2017, when on a similar
ground the approval was refused and while dealing with the said
challenge, in paragraph no.3, the deponent of the affidavit i.e. The
Deputy Education Officer, Shri Ligade Maruti Tukaram, had
categorically admitted that, as per the practice the proposal for
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approval of the appointment in recognized and aided schools are
accepted in approval camps and since there was a ban on recruitment
imposed by Government Resolution dated 2/05/2012, the annual
camps were not organized and therefore the proposal will have to be
decided, as and when the directions are issued by the higher
authorities in the camp, which have held for grant of approval.
We must take the judicial note of the fact that under the
guise of the ban imposed by the government, for a considerable
period of time, the proposals were kept pending or even if they were
considered, we have found that they came to be rejected by the
officials in the Education Department, on the ground that, there is a
ban on recruitment, and therefore, we do not find even this ground to
be an hindrance in granting approval to the appointment of the
petitioner. The other ground for rejection being that he did not submit
an undertaking with the signature of two of the employees at the most
could be described as an irregularity, but definitely not of such a
grievous nature that the approval of appointment in favour of the
petitioner is liable to be refused.
7. Another technical objection raised in form of point no.5,
is the sheet, which had recorded the presence of the candidates, who
had appeared for interview on 7/06/2013, there is no signature of one
Amruta Wirale, candidate placed at serial no.2 and Shalini S Patil,
candidate at serial no.9.
The counsel for the Management make a categorical
statement that as far as Wirale was concerned, she was absent and
therefore, there is no question of she signing the said sheet, and as far
as Ms. Shalini Patil is concerned, though a call for attending
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interview was given to her, the packet had returned back unserved.
8. Next significant objection for refusing the approval is
that the petitioner belongs to open category and the appointment is
not effected to fill in the backlog.
Our attention is invited to the roster point and no doubt
there exists backlog for certain categories, but at the same time the
posts were also available for open category and therefore, when the
petitioner, an open category candidate was appointed to fill in an
open vacancy, we fail to understand how it had defeated the policy of
the State Government to fill in the backlog, as he had not taken up the
post reserved for any category.
As far as his Educational qualification is concerned, the
objection raised in point no.7 is found to be as frivolous as the one
mentioned in point no.6, as the petitioner was armed with the
qualification M.A., B.E.d and he came to be appointed as Shikshan
Sevak to teach Social Science and he was fully qualified to teach the
said subject and therefore, the point no.7, that he was not appointed
as a teacher to teach Mathematics, Science or English, which was a
criteria, which was involved by the Division Bench of this Court,
when it was dealing with the issue of ban being imposed upon the
employment of teachers, vide the Government Resolution dated
2/05/2012, and since it is not the ground of the respondent that
because of the ban, the approval was not granted, we do not think that
this point carries any significance.
So is the connected point, at point no.8, that the
appointment of Palhe Nivrutti Balkrishna, is after the ban and in any
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case, this is not the ground for rejection of the approval of the
petitioner. Similarly, there is no question of calling for candidates for
absorption being surplus, as there existed a clear vacancy for a
Assistant Teacher for Social Science and according to the department,
the Management issued an advertisement, which included this post
and on due selection, with participation of other contenders, he was
duly considered, and thereafter issued an order of an appointment.
9. In light of the fact, that none of the 9 points, which are
set out in the impugned order would have created an hindrance in
granting approval to the appointment of the petitioner, by quashing
and setting aside the impugned order passed by the Education
Officer, we make the petition absolute in terms of prayer clause (b)
and (c).
Needless to state that the upon the petition being allowed
as above, the directions shall be complied with within a period of
four months from the date of receipt of the order and similarly, the
name of the petitioner shall be included in the Shalarth System by
allotting an ID and care should be taken that the service benefits
accruing to him shall be deposited in his account on regular basis.
(ASHWIN D. BHOBE, J) (BHARATI DANGRE, J)
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