Bombay High Court
Qasim Khan Mahemud Khan And Others vs The State Of Maharashtra Through Its ... on 19 April, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:9765-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14984 OF 2023
1. Qasim Khan s/o Mahemud Khan,
age 31 years, Occ. Service,
R/o 297, Dhanora Mohalla,
Tq. Chopda, Adawad Khardi, Dist. Jalgaon.
2. Mohammad Shoeb s/o Shaikh Nooruddin,
age 32 yrs, Occ. Service,
R/o House No.337, Near National Hall,
Shani Peth, Jalgaon.
3. Umer Ahemad s/o Abdul Saeed,
age 29 yrs, Occ. Service,
R/o Babujipura, Yawal, Tq. Yawal,
Dist. Jalgaon.
4. Smt. Rafiya d/o Kaleem Khan,
age 26 yrs, Occ. Service,
R/o Hazaar Kholi, 253, Malegaon,
Dist. Nashik.
Presently R/o near Noorani Masjid,
Shahu Nagar, Jalgaon.
5. Altamash s/o Fareed Ali,
age 32 yrs, Occ Service,
R/o 308, Shani Peth, Jalgaon.
6. Smt. Ayesha Bi Shaikh d/o Ab. Gani Pinjari,
age 33 yrs, Occ. Service,
R/o Plot No.144, gat no.418,
Near Nazim Malik Urdu School,
Usmaniya Park, Shivaji Nagar, Jalgaon.
7. Naveed Ahemad s/o Abdul Gaffar Shaikh,
age 32 yrs, Occ. Service,
R/o. 290, Shani Peth, Jalgaon. Petitioners
VERSUS
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1. The State Of Maharashtra
Through It's Secretary
School Education and Sports Department,
Mantralaya, Mumbai - 400032
2. The Deputy Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Primary),
Zilla Parishad, Jalgaon.
4. Anjuman Taleem Muslimeen, Jalgaon
Through it's President,
Pratap Nagar, Jalgaon Respondents.
.....
Advocate for the Petitioners : Mr. Moin Shaikh h/f Mr. S.S. Kazi
AGP for Respondents no.1 & 2 : Mr. S.K. Shirse
Advocate for Respondents no.3: Mr. V. V. Gujar
Respondent no.4- Served
.....
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
DATED : April 19, 2024
...
FINAL ORDER :- (Per S.G. Chapalgaonkar, J.)
1. The Petitioners have approached this Court under
Article 226 of the Constitution of India impugning the order
dated 5.10.2023 passed by the Education Officer (Primary),
Zilla Parishad, Jalgaon declining claim of the petitioners to
release of 20% grant-in-aid w.e.f 1.1.2023.
2. The petitioners no.2 to 4 contend that respondent
no.4-is a Minority Institution, which runs a primary school at
Jalgaon. Petitioners have been appointed by the Respondent-
Management by following the due process of law as Assistant
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Teachers. Education Officer has granted approvals to their
appointments and even granted continuation after completion
of the period of service as 'Shikshan Sevak.' The State of
Maharashtra sanctioned 20% grant-in-aid in favour of
respondent no.4-School vide Government Resolution dated
6.2.2023. The post held by the petitioners is entitled to receive
20% grants w.e.f. 1.1.2023. The Respondent School forwarded
the proposals for inclusion of the petitioners names in the
'Shalartha Pranali' and release admissible salary grants to
them. However, the Education Officer rejected the proposal
giving the reason that petitioners were non-compliant with the
TET qualification in terms of the Government Resolution dated
13.2.2013.
3. Mr. Moin Shaikh h/f Mr. S.S. Kazi, learned
advocate appearing for the petitioners invites our attention to
the approvals granted by the Education Officer to the
appointments of the petitioners and subsequent orders of
continuation on non-grant basis. He would submit that the
issue as regards to the applicability of TET qualification to the
appointments of the teachers in the minority Institution is
subjudiced before the Supreme Court of India.
4. He further relies upon the order of this Court in
case of Mohini Mohan Bhandwale Vs. State of Maharashtra
and others reported in 2021 SCC online Bom 5709 to contend
that in similar circumstances conditional approvals have been
granted by this Court with further directions to release salary
to the teachers, who were not complied with TET qualification.
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5. Mr. Shirse, learned AGP appearing for respondent
nos.1 and 2 supports the impugned order and submits that this
Court has already held that TET qualification is mandatory for
appointments of teachers. Since petitioners are non-compliant
of such requirement, the Education Officer has refused to enter
their names in 'Shalartha System' or release grant-in-aid.
6. We have considered the submissions advanced by
learned advocates appearing for the respective parties. We
have perused the documents annexed alongwith the petition.
Apparently, the petitioners have been appointed as teachers in
the Minority institution. At the time of their appointments, the
School was not receiving any grant-in-aid, however,
subsequently held to be eligible for grant-in-aid in phased
manner. First installment of 20% grant-in-aid is approved to
the school. Petitioners are working since the date of their
appointment. The Education Officer has also approved
continuation of their services. As per Government Resolution
dated 6.2.2023 additional divisions for 1st to 4th standard in the
school is held eligible for 20% grant-in-aid, for which nine
posts are sanctioned. In pursuance of the aforesaid decision of
the Government, a proposal was forwarded to include name of
the teachers in 'Shalartha Pranali' for release of 20% grant-in-
aid. However, under the impugned order, Education Officer
declined to consider their claim for the reason that petitioners
are not complaint of the TET qualification in terms of the
Government Resolution dated 13.2.2013. It cannot be
disputed that under the Government Resolution dated
13.2.2013 the Teachers Eligibility Test (TET) is made
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compulsory for appointment of the teachers. The issue as
regards to the said Government Resolution is decided by this
Court. Special Leave Petition filed against such decision is
pending before the Supreme Court of India. So far as
applicability of the TET qualification for appointments of the
teachers in Minority Institution is concerned, the same is
subjudiced before the Supreme Court of India in the matter of
Director of School Education, Chennai and another Vs. B.
Annie Packiarani Bai and another in Special Leave Petition
(Civil) Diary No.17702 of 2021 wherein, while granting special
leave, specific issue has been framed in the order dated
14.2.2022 which states as under :-
Important question of law which is
raised in the present SLP is as under :-
"whether the Department can insist for
TET examination passed in case of a
teacher of a Minority Institution and
whether providing such a qualification
would effect any or rights of minority
institution guaranteed under the
Constitution of India ?"
7. In view of the aforesaid aspects, this Court passed
several orders protecting interest of the similarly situated
teachers and directed release of salary subject to condition that
the teachers shall be bound by final outcome of the decision
rendered by the Supreme Court as regards to applicability of
the TET qualification.
8. In the present case, there is no dispute that the
petitioners were appointed in the minority school and they
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hold requisite qualification prescribed for Assistant Teachers
except TET qualification as introduced under the Government
Resolution dated 13.2.2013. The Education Officer has already
granted approval to their appointments and even granted
continuation to services. The issue whether petitioners were
qualified to be appointed or not has been examined by the
Education Officer while granting approval. However, vide
impugned order, the petitioners are refused from consideration
for release of grant-in-aid as admissible to the post held by
them. Such an approach of the Respondent Education Officer
cannot be countenanced. However, pending the issue as
regards to the applicability of TET qualification for
appointments made prior to 30.3.2019, it would be
appropriate to direct respondent no.3- the Education Officer
(Primary) to take further steps to include petitioners name in
the 'Shalarth Pranali' and release grant-in-aid as admissible to
their post subject to condition that the petitioners would abide
by the decision rendered by the Supreme Court in the pending
Civil Appeals in case of Director of School Education, Chennai
and another Vs. B. Annie Packiarani Bai and another (supra).
Resultantly, we proceed to pass the following order.
ORDER
i. The Writ Petition is partly allowed.
ii. The impugned order dated 5.10.2023 passed by Respondent No.3 - the Education Officer (Primary), Zilla Parishad, Jalgaon is hereby quashed and set aside.
7 wp 14984.2023.odt iii. Respondent No.3 - The Education Officer (Primary), Zilla Parishad, Jalgaon is directed to take necessary steps to release 20% grant-in-aid against the post held by the petitioners and grant them 'Shalartha ID' subject to following conditions :-
a] The petitioners shall tender an undertaking that they would abide by the conclusions that would be drawn by the Supreme Court of India and, if verdict of the Supreme Court upholds applicability of TET qualifications, they would abide by the same without raising any objections or they shall not claim any equity.
b] Petitioners shall file an affidavit in the form of undertaking in this Court within a period of three (3) weeks from today and tender a copy of such an affidavit or undertaking to the concerned Education Officer within the same time.
c] If the adverse order is passed by the Supreme Court of India, the State Government would not recover the salaries already paid/released to the petitioners.
d] The petitioners would be entitled for service benefits like increments, promotion, etc only if the Supreme Court concludes that TET
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e] Respondent no.3 shall take necessary steps within a period of three (3) moths and forward the proposals to the office of Respondent no.2, who shall not reject 'Shalartha ID' to the petitioners on the ground that they are non compliant with TET qualification.
iv. Writ Petition is accordingly disposed off in above terms. No costs.
( S. G. CHAPALGAONKAR ) ( SMT. VIBHA KANKANWADI )
JUDGE JUDGE
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aaa/- (f)