Bombay High Court
Rakesh Subhash Sonawane And Anr vs The State Of Maharashtra And Ors on 21 July, 2022
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7128 OF 2022
Rakesh Subhash Sonawane & Anr. ...Petitioners
V/s.
The State of Maharashtra & Ors. ...Respondents
Mr. Jayendra Khairnar for Petitioners.
Mr. A.P. Vanarase, AGP for Respondent Nos. 1 and 2 -State.
Mr. Ashwin Kapadnis a/w Mr. Vivek Rane for Respondent No. 3.
CORAM : MADHAV J. JAMDAR, J.
DATED : 21st JULY, 2022
P.C. :
1. Heard Mr. Jayendra Khairnar, learned counsel appearing for the
Petitioners, Mr. Ashwin Kapadnis along with Mr. Vivek Rane, learned
counsel appearing for Respondent No. 3 and Mr. A.P. Vanarase, learned
AGP for Respondent Nos. 1 and 2.
2. By the present petition, the Petitioners are challenging order
dated 22nd September 2020 passed by Respondent No.3- Education
Officer (Primary), Zilla Parishad, Nashik. By the said order,
Respondent No. 3 refused to grant approval to the appointment of
Petitioner No.1 in the Petitioner No. 2-School on the post of 'Peon'.
The impugned order has been passed on the ground that there was no
approved staffing pattern at the relevant time.
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3. Mr. Jayendra Khairnar, learned counsel for the Petitioners
submitted that the Petitioner has been appointed on the post of Peon
after following due process of law. He submitted that the School has
issued an advertisement on 13th December 2011. He submitted that
about 9 (nine) candidates applied and they were interviewed and the
Petitioner was appointed by appointment letter dated 31st January 2012
as Peon w.e.f. 1st February 2012. He submitted that the approval
proposal was submitted to Respondent No. 3 on 30th October 2013,
which clearly specifies that the appointment is in the clear vacancy in
view of superannuation of the earlier employee. He submitted that the
said proposal dated 30th October 2013 was not decided for more than 7
years and therefore, the Petitioner was constrained to file Writ Petition
No. LD-VC-AS-SJ-WP No. 85 of 2020 and this Court by order dated
11th August 2020 directed Respondent No. 3 to decide said proposal
within a period of six weeks. Thereafter the impugned order was
passed on 22nd September 2020 on the ground that the roaster/ staffing
pattern was not finalised and therefore no appointment could be made.
4. He relied on following judgments of this Court :
(i) Vikram Vilas Mane V. State of Maharashtra & Ors.
2021 (1) Maharashtra Law Journal, 552
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(ii) Shri. Gajanan Shahu Keripale V. The State of
Maharashtra & Ors.
2020 (4) ALL MR 501.
(iii) Miraj Vidya Samiti & Anr. Vs. State of Maharashtra
& Anr.
2021 (1) Maharashtra Law Journal, 293.
(iv) Vidarbha Youth Welfare Society V. State of Maharashtra
& Ors, 2022 (4) Maharashtra Law Journal, 69
(v) Smt. Munoli Rajashri Karabasappa V. State of
Maharashtra through Secretary & Ors., reported in (2017)
SCC Online Bom 10130.
5. On the other hand, Mr. Kapadnis, learned counsel appearing for
Respondent No.3 submitted that there was ban for recruitment and
appointment of Class-III and Class-IV employees by Government
Resolution dated 5th June 2010. The said ban was in operation till 31st
December 2011. He submitted that thereafter again the ban was
extended for one more year i.e. academic year 2011-2012 and therefore
the approval could not be granted as the Petitioner's appointment is
during the said period of ban. He submitted that the School authorities
have not got approved the roaster and therefore it cannot be said that
the appointment is on clear vacancy. He submitted that the School
authorities have not taken prior permission of competent authority to
publish an advertisement for filling up post of Peon in the School. He
therefore submitted that no interference is required in the impugned
order.
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6. The factual position on record clearly shows that the Petitioner
No. 2- School initiated the recruitment process for appointing Peon, in
view of clear vacancy, as the earlier employee has retired. The
Petitioners have produced on pages 28 and 29 the approval to the
staffing pattern for the academic years 2011-2012 and 2012-2013. The
same clearly shows that one post of Peon is approved. It appears that
the said advertisement was issued in view of clear vacancy on 13th
December 2011 and the said advertisement is produced at page 48.
7. Pursuant to the said advertisement, nine candidates have applied
and their interviews were held on 29th December 2011. The marks
given to the individual candidates out of 50 were produced in tabular
form on pages 52 and 53 and accordingly the Selection Committee of
the School selected the Petitioner to the post of Peon. The said minutes
of meeting dated 31st December 2011 are found at page 54. In the said
minutes, it is specifically mentioned that the earlier employee working
as Peon namely Shri Manohar Chindhu Shimpi has superannuated and
therefore, it was necessary to appoint the Peon in his place. Thus, it is
clear that the appointment was made on a clear vacancy. The School
submitted the proposal on 30th October 2013 for approval to the post
of the Petitioner No. 1 as Peon. As set out hereinabove, said proposal
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was not decided for more than seven years and therefore the Petitioners
were constrained to file Writ Petition and this Court directed
Respondent No. 3 to decide the said proposal within time bound
manner.
8. Thus, it is clear that the impugned order passed on the ground
that the Petitioner's appointment cannot be approved as at that time the
staffing pattern was not approved, is not correct. In fact, the staffing
pattern was approved and the same has been produced at pages 28 and
29 of the Petition.
9. As far as the contention that there was ban during the relevant
period, Mr. Khairnar relied on the judgment in the case of Smt. Munoli
Rajashri Karabasappa (supra). The relevant paragraphs of the said
judgment i.e. paragraphs 4 to 7 are reproduced hereinbelow for ready
reference :
4" No doubt that, vide GR dated 2nd May 2012, the State
has imposed a ban on recruitment of Assistant Teacher
till there is 100% absorption of the surplus teachers.
However, it is to be noted that vide subsequent GR
dated 4th September 2013 itself, the ban has been
relaxed in so far as subjects of English, Maths and
Science are concerned.
5. The Division Bench of this Court in the cases of Sou.
Revati Kusha Wagh & Anr. Vs. The State of
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Maharashtra & Anr. has also taken a view that ban
would not be applicable wherein the appointments are
made so as to fulfil the backlog of backward class
candidates.
6. We find that if the Education Officers do not send the
surplus teachers within reasonable time, the schools
can not be expected to run without teachers for years
together. Undisputedly, finding it difficult to send
surplus teachers for the subjects of English, Maths and
Science, the State Government itself has relaxed the
rigour of government resolution dated 2nd May 2012
vide GR dated 4th September 2013. It could further be
seen that State Government also vide that GR relaxed
the ban where the selection process has already
commenced on 6th September 2012.
7. In that view of the matter, we find that in view of
subsequent GRs and in view of the view taken by
Division Bench of this Court, the ban would not be
applicable to three categories, one where the
recruitment process is already commenced prior to GR
dated 2nd May 2012, second, in so far as the
appointment made for the subjects of English, Maths
and Science are concerned and third, where the
recruitment is made to fulfil the backlog of reserved
category candidates."
In the said judgment, it has been clarified that although there is a ban
imposed by the State Government, where the recruitment process is
already commenced prior to GR dated 2nd May 2012, the ban would
not be applicable to such category of cases. In the present case, as
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advertisement was issued on 13th December 2011, the ban will not
apply. It is also significant to note that this is not the reason given in
the impugned order and therefore the same cannot be taken into
consideration.
10. Mr. Khairnar also relied on the judgment in the mater of
Gajanan Shahu Keripale (supra), wherein it has been held that if a
person is appointed after following due process of law and satisfactory
completed probation period, then the Education Officer should not
refuse the approval.
11. Mr. Khairnar also submits that in the impugned order only
reason given for rejection is that the staffing pattern was not finalised
and however, in the affidavit-in-reply, the contention is raised that
during the said period there was ban on appointment of Class-III and
Class-IV employees. He submitted that it is settled position of law that
legality and validity of an order impugned before this Court should be
considered on the basis of reasons assigned in the impugned order. He
therefore submitted that Respondent No.3 cannot go behind the reasons
given in the impugned order. To substantiate this contention, he relied
on para 15 of the judgment reported in Vikram Vilas Mane (supra). Mr.
Khairnar is right in contending that the reasons which are not
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mentioned in the impugned order cannot be taken into consideration at
this stage after the proposal of 2013 is rejected after 7 years in 2020.
12. Mr. Khairnar is also right in relying on paragraph 18 of the
judgment in the matter of Vidarbha Youth Welfare Society and Anr.
(supra). The said para 18 is reproduced hereinbelow for ready
reference:
"18. The reading of Section 5 of the MEPS Act, does not
indicate that the prior permission of the Education
Officer is necessary to fill in a vacancy. What the
proviso to Section 5(1) mandates is that in case of the
Management intending to fill in a vacancy by
appointment, before doing so, it shall ascertain from
the Education Officer, whether there is any suitable
person available on the list of surplus persons
maintained by the Education Officer, for absorption in
other schools and in case of such person being
available, to appoint such person in such vacancy. The
purpose behind this is obvious, to continue the
employment of a person, who was already appointed
by following the due process of law. This is an
obligation, obviously upon the management and not
upon the person who is appointed after due selection
in a clear vacant post, and thus such appointee
cannot be penalised due to the default on part of
the Management in this regard, more so, when
such appointee, has been permitted to continue in
employment for years together. That apart there is
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nothing on record to indicate that there was any
failure on part of the petitioner/Management in
regard to the requirement of the proviso to Section
5(1) of the MEPS Act and that the Education
Officer on this count had initiated any action
against the petitioner/Management. Had there been
any such a failure, the Education Department would
not have permitted the continuation of the respondent
no.3, in all the petitions for years together. Vasant
Shikshan Prasarak Mandal (supra) relied upon by Shri
Bhuibhar, learned Counsel for the petitioners,
therefore on facts would not be attracted.
Chandrashekhar Anandraoji Rewatkar (supra) has
been set aside by the Hon'ble Apex Court in SLP
No.842-843 of 2017 decided on 23/1/2017 and is of
no assistance to Shri Bhuibhar, learned Counsel for
the petitioners."
(Emphasis added)
The reasoning given in said paragraph 18 is also squarely applicable to
the present case.
13. In view of the above discussions, I pass the following order:
ORDER
(i) The impugned order dated 22nd September 2020 passed by Respondent No.3 is quashed and set aside.
(ii) Respondent No. 3 is directed to grant approval to the Petitioner
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No. 1's appointment as Peon w.e.f. 1st February 2012 and the
Respondents are directed to give all consequential and allied benefits thereof to Petitioner No.1 as applicable in accordance with law from the date of appointment i.e. 1st February 2012.
(iii) The Respondents to comply with this order within three months from today.
14. Writ Petition is disposed of in above terms with no order as to costs.
BHALCHANDRA GOPAL DUSANE (MADHAV J. JAMDAR, J.) Digitally signed by BHALCHANDRA GOPAL DUSANE Date: 2022.08.06 14:28:53 +0530