Bombay High Court
Sk Nabil Sk Maula And Others vs The State Of Maharashtra And Others on 23 April, 2021
Bench: S. V. Gangapurwala, Shrikant D. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5520 OF 2020
Sk. Nabil s/o Sk. Maula & Ors. ..PETITIONERS
VERSUS
The State of Maharashtra & Ors. ..RESPONDENTS
...
Mr. V. D. Sapkal, Senior Advocate i/by Mr. V. B.
Dhage, Advocate for the Petitioners.
Mr. A. R. Kale, AGP for Respondent Nos.1 to 5.
Mr. P. R. Nangare, Advocate for Respondent No.6.
Mr. S. B. Pulkundwar, Advocate for Respondent No.9.
...
CORAM : S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
Closed for Orders on : 26.02.2021.
Order Pronounced on : 23.04.2021.
FINAL ORDER (Per S. V. Gangapurwala, J.) :-
1. The petitioners assail the communication relieving them from the post of Subject Assistant.
2. Mr. Sapkal, learned senior counsel submits that the petitioners possess the qualification of D.ed and B.ed and appointed at the establishment of respondent nos.6 to 8 in the primary or secondary school as Assistant Teachers. They are permanent employees. The respondent no.2 introduced scheme under the Government Resolution dated 22.06.2015 namely Maharashtra State Develop Educational Program 2015-2016. The main purpose of such scheme is to provide assistance to the teachers, so also to test the children whether they have achieved the expected grasping capacity to develop and create ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (2) wp-5520-2020 healthy atmosphere in educational activities of the children. The teachers were to be recruited for the implementation of the said scheme on deputation. The subject wise posts were created under Government Resolution dated 17.10.2016. As per the said Government Resolution the petitioners are selected for deputation at the District Level Establishment (DIET) of the concerned district by following the guidelines. The selection on the deputed posts was for a period of five years and on completion of their term for further selection the candidates like petitioners will be eligible to apply afresh for their continuation on deputed posts. It was further clarified under the Government Resolution dated 17.10.2016 that the deputed posts on the establishment of the DIET shall continue till the regularly selected candidates through MPSC are appointed.
3. The petitioners after being selected for deputation had undergone training programme conducted by the State and the deputation orders are issued accordingly. The petitioners are also issued with the extension orders from time to time.
4. The learned senior counsel further submits that respondent no.2 under communication dated 18.05.2018 directed all the Chief Executive Officers of Zilla Parishads of the entire State that the re-selection process at all levels will be time consuming and will badly affect the implementation of Educational programme and ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (3) wp-5520-2020 directed the services of the deputed teachers like petitioners to be continued. On the same regime the Additional Secretary of respondent no.1 also issued communication to all the Chief Executive Officers on 12.10.2018. The Respondent no.5 also issued similar communication to all the Education Officers primary and secondary of all Zilla Parishads in the State of Maharashtra. Though respondent no.2 had issued the directions to continue the candidates like petitioners on deputation, the Deputy Secretary of respondent no.2 in defiance of the order of his superior, issued the impugned order dated 07.07.2020. Under the said communication the directions are given to issue relieving orders to petitioners.
5. The learned senior counsel submits that the impugned communication is not in consonance with the Government Resolutions dated 22.06.2015 and 17.10.2016. The Government Resolutions specifically states that once the appointment of Subject Assistant is made, it will be for a period of five years and the same shall be continued till the recruitment process is undertaken by the MPSC. The petitioners have not completed five years nor the candidates are selected and appointed through MPSC. The learned senior counsel further submits that if petitioners are relieved and new teachers are appointed on their posts of DIET centres, the same will increase the economic burden on the State Government for giving training to the newly appointed teachers and the same will also consume ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (4) wp-5520-2020 time. The petitioners are as such challenging the relieving orders. The learned senior counsel submits that the impugned relieving orders are arbitrary, irrational, unreasonable and deserve to be set aside.
6. The learned senior counsel further submits that the petitioners are selected after undergoing the selection process and conduct of interview from 9000 candidates. The petitioners are trained by the international experts through different workshops and therefore the benefits of the Subject Assistant will be helpful for the entire educational system. The learned senior counsel submits that the purpose mentioned for relieving petitioners is to accommodated the surplus teachers. The surplus teachers can be accommodated at the petitioners original establishment. It is further submitted by the learned senior counsel that the posts of Subject Assistant cannot be filled in from surplus teachers. If such procedure is resorted to it will be against the Government Resolution dated 17.10.2016, wherein it is clearly mentioned that the recruitment on the posts of Subject Assistant would be through MPSC alone. The petitioners' right is created on the posts till the recruitment process is initiated by the MPSC or there is change in the policy of the Government.
7. The learned A.G.P. and Mr. Pulkundwar, learned counsel for respondent submit that under Resolution dated 22.06.2015 the State has ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (5) wp-5520-2020 introduced the scheme in consonance with the Right of Children to Free and Compulsory Education Act, 2009. The object of the said Scheme is to test the children that they have achieved the expected educational activities, so also to provide assistance to the teachers. The petitioners were sent on deputation and time to time extensions were granted and the last extension was upto 30 th April 2020. The petitioners were sent on deputation. No right vest in the petitioners on the posts they are sent on deputation. As per the extension order dated 30.10.2018 the first condition mentioned is that after expiry of the period of deputation there will be no right accrued on such post. They are rightly directed to be repatriated to their original posts. There are sanctioned and vacant posts where the petitioners were initially appointed. The petitioners are duty bound to join at their original posts. The teachers are required at their parent institution. They are rightly relieved.
8. We have considered the submissions canvassed by the learned counsel for the respective parties.
9. The petitioners are appointed either as primary or secondary teachers in the Zilla Parishad schools. In the year 2015, under the Government Resolution dated 22.06.2015 the State of Maharashtra introduced Pragat Shaikshanik Maharashtra Karyakram 2015-2016. The said scheme ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (6) wp-5520-2020 was introduced in tune with the provisions of the Right to Children to Free and Compulsory Education Act, 2009. The primary object of the said scheme was to provide assistance to the teachers and to test the children of their achievements in the expected educational activities.
10. It is not disputed that after inviting the applications and conducting the interviews, the petitioners were selected as Subject Assistant under the Pragat Shaikshanik Maharashtra Karyakram 2015-2016. The petitioners were granted extension upto 30th April 2020. It is a matter of record that the petitioners are sent on deputation. Now the petitioners are relieved and repatriated to their original posts.
11. The report was submitted from various Zilla Parishads. The Zilla Parishads took following decisions:
a) In which school only one post is sanctioned and only one teacher is working in that case such teacher be relieved.
b) In which school two or more than two posts are vacant, in that cases considering the prospects of the students, the teachers who are on deputation, be relieved and to that extent list be prepared. In that case there are 36 teachers are found.
c) In the school where only one post or zero post is vacant in that case, the subject assistant those who were on deputation are granted extension till 31.03.2021 those teachers as
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12. The Government Resolution dated 17.10.2016 prescribes that the posts shall be initially filled in for five years and as per the requirement Rules would be prepared. The said posts were to be filled in by sending the existing teachers on deputation till the candidates selected through MPSC are appointed. Under communication dated 16.03.2017 by the Commissioner (Education Maharashtra State) it was communicated that a persons appointed under the said scheme shall be continued upto 31.03.2017 and there salaries are to be paid from their parent institutions. It appears that, petitioners were continued from time to time upto April 2020. Under communication dated 18.05.2018 the Principal Secretary communicated to the Chief Officer that if the teachers deputed as Subject Assistant are relieved, then fresh selection would take time and it will difficult to again resort to the selection process for deputation and such teachers already on deputation shall be continued. Similarly, communication was again made by the Secretary, State of Maharashtra under communication dated 12.10.2018 and the extensions were granted. Under the impugned communication the directions are given to relieve the teachers like petitioners.
13. It appears that the original posts on which the petitioners are appointed are also sanctioned and vacant and the teachers are also required to teach students. The report was called ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (8) wp-5520-2020 for by the State to assess whether any loss is caused to the students because of the deputation of the teachers like petitioners and whether there are posts vacant. The teachers on deputation are directed to be relieved, as the students should not be at loss.
14. The action of respondents does not appear to be malafide nor it is against the policy. The petitioners are sent on deputation. A person appointed to a particular post on deputation or sent on deputation does not get vested right. The deputationist would not get a right much less vested right on the post he is deputed. The said person on deputation can be repatriated. The petitioners will not have right to make grievance if they are repatriated to their parent institution/posts. The petitioners had accepted the extension orders without any demur. The extension orders specifically clarified that their selection is on deputation and upon culmination of the deputation period they will not possess any right to that post. These petitioners were paid salaries and allowances from their parent establishment, as the post on which the petitioners are deputed were yet to be sanctioned. The petitioners certainly are required to join at their parent establishment. The petitioners at the time of employment and also grant of extension were made aware that upon completion of extended period of their deputation they will have to join post on ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (9) wp-5520-2020 original establishment. They will not be entitled for any deputation allowance and their salaries are to be paid from their parent establishment though on deputation. The Clauses in regional language are as under:
1) lnjph fuoM gh izfrfu;qDrhoj vlwu izfrfu;qDrhpk dkyko/kh laiY;kuarj R;k inkoj iq<hy lsosP;k dkyko/khe/;s dks.krkgh gDd vl.kkj ukgh-
2) izfrfu;qDrh dkyko/khe/;s dks.krkgh izdkjpk izfrfu;qDrh HkRrk vuqKs; jkg.kkj ukgh-
3) izfrfu;qDrh dkyko/khe/;s osru o HkRrs ewG vkLFkkiuso#u dk<.;kr ;srhy- njE;kuP;k dkGkr izfrfu;qDrhP;k vkLFkkiusoj in fuekZ.k >kY;kl lnj inko#u osru vkgfjr dj.;kckcr Lora=i.ks vkns'k fuxZfer dj.;kr ;srhy-
4) izfrfu;qDrh dkyko/khe/;s lacaf/kr deZpk&;kps dkedkt lek/kkudkjd ulY;kl rlsp laLFksP;k fgrkl ck/kk iksgpsy vls xSjorZu vk<Gwu vkY;kl vkiyh izfrfu;qDrh rkRdkG jnn d#u vki.kkal ewG vkLFkkiusoj #tw Ogkos ykxsy-
5) lacaf/kr fo"k; lgk;;kdkl ewG vkLFkkiusP;k lsok fu;e] vVh o 'krhZ ykxw jkgrhy-
15. It is also a matter of fact that the surplus candidates exists and the work is to be allotted to them. These surplus candidates can be accommodated as Subject Assistant after giving them necessary training. It would not be appropriate to ask the surplus candidates to join at the petitioner's parent establish, as the post on which petitioners are deputed and working as Subject Assistant are not yet sanctioned.
16. If the surplus candidates are asked to join on the petitioners' posts in original/parent establishment and tomorrow the posts of Subject ::: Uploaded on - 27/04/2021 ::: Downloaded on - 08/09/2021 11:08:24 ::: (10) wp-5520-2020 Assistant are not sanctioned or Scheme is closed, it would be difficult to repatriate the petitioners to their parent establishment as the said posts would be occupied by surplus teachers. An anomalous situation would be created. The decision to relieve the petitioners from deputation or to repatriate them to their parent establishment does not seem to be unreasonable and does not suffer from irrationality nor is arbitrary requiring interference of this Court.
17. In light of that, no reason to interfere in the matter. Writ Petition as such stands disposed of. No costs.
(SHRIKANT D. KULKARNI) (S. V. GANGAPURWALA)
JUDGE JUDGE
18. At this stage learned counsel for
petitioners seeks continuation of the interim
relief. We are not inclined to consider the said
request in light of the view we have taken.
(SHRIKANT D. KULKARNI) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/April-2021
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