Nivruti s/o. Ramkrushna Sahane vs The State of Maharashtra

Heard. Rule. Rule made returnable

forthwith with the consent of the parties.

The petitioner is aggrieved by impugned

communication dated 17.03.2016, issued by

respondent no.3 i.e. The Regional Deputy

Commissioner, Social Welfare Office, Aurangabad

Division, Aurangabad, thereby refusing proposal

dated 24.07.2015, seeking approval to appointment

of the petitioner as Shikshan Sevak on the ground

that the petitioner has not passed TET

Examination.

The learned Counsel appearing for the

petitioner submits that respondent no.5

institution is a `minority institution''. He

further submits that respondent no.3 turned down

the proposal mainly on the ground that the

petitioner has not cleared the Teachers

Eligibility Test. The aforesaid condition in

respect of passing Teachers Eligibility Test is

pursuant to the directives issued under the

provisions of the Right to Education Act. It is

submitted that the Hon''ble Supreme court in the

matter of Pramati Educational and Cultural Trust

(R)and Ors. Vs. Union of India and Ors. 2014 AIR

SCW 2859, after considering the provisions of

Article 30(1) of the Constitution of India vis-a-

vis provisions under the Right of Children to free

and Compulsory Education Act, 2009 [for short ''Act

of 2009''], has taken a view that that, Act of

2009, in so far as it applies to `minority

schools, aided or unaided, covered under clause

(1) of Article 30 of the Constitution of India is,

ultra vires the Constitution. The learned Counsel

appearing for the petitioner, therefore, submits

that the impugned communication deserves to be

quashed and set aside and directions may be issued

to Respondent No.3, to consider the case of the

petitioner, for grant of approval afresh.

The learned Counsel appearing for the

respondents fairly accepts the position, that in

view of the authoritative pronouncement of the

Supreme Court in the case of Pramati Educational

and Cultural Trust (cited supra), the provisions

of the Act of 2009 are not applicable to the case

of the petitioner.

We have given careful consideration to

the submissions of the learned Counsel for the

parties. With their able assistance, perused the

grounds taken in the petition, the contents of the

impugned communication and all other material

placed on record. The issue raised in this

Petition is no longer res integra. The Division

Bench of this Court (CORAM: S.S. SHINDE & P.R.

BORA, JJ.) in Writ Petition No.1164 of 2015

(Anjuman Ishaat E Taleem Trust, Aurangabad and

another vs. The State of Maharashtra and others),

in the similar fact situation where the Petitioner

No.2 therein has not passed TET examination, by

the Judgment and order dated 8th May, 2015, has

directed Respondent No.3 to reconsider the case

of the Petitioner No.2 therein, working as

Assistant Teacher for approval to his appointment.

In the light of the Judgment of the Supreme Court

in Pramati''s case (cited supra), it is not

necessary for us to elaborate any further on

facts, suffice it to say, the impugned

communication issued by Respondent No.3 is not

legally sustainable in view of the authoritative

pronouncement of the Supreme Court in the case of

Pramati Educational and Cultural Trust (cited

supra). In the said Judgment, in concluding

paragraph, the Supreme Court held that, "the 2009

Act insofar it is made applicable to minority

schools referred in clause (1) of Article 30 of

the constitution is ultra vires the Constitution."

In that view of the matter the Petition

succeeds. Accordingly, the impugned communication

dated 17.03.2016 issued by respondent No.3 is

quashed and set aside. Respondent No.3 is directed

to reconsider the case of the petitioner, who is

working as Shikshan Sevak with the respondent

management for approval to his appointment, as

expeditiously as possible and preferably within

six weeks from today.

We make it clear that the Regional Deputy

Commissioner, Social Welfare Office, Aurangabad

Division, Aurangabad shall not again raise an

objection that the petitioner has not passed

T.E.T. Examination.

Rule is made absolute in the aforesaid

terms with no order as to costs.