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Judgment
This Petition is filed with the
following prayers:
B) That by issuing writ of mandamus or any other appropriate writ, order or directions in like nature, the letter/order dated 10.9.2013 issued by the respondent no.3 Education Officer (Secondary) Zilla Parishad, Ahmednagar, may kindly be quashed and set aside, with further letter dated 6.1.2016 issued by Respondent no.2 may kindly be quashed and set aside, with further directions to respondent no.3 to grant approval to the services of the petitioner as Shikshan Sevak w.e.f. 31.12.2011.
C) That by issuing writ of mandamus or any other appropriate writ, order or directions in like nature, the
respondent nos 4 and 5 may kindly be directed to submit the fresh proposal of the petitioner for grant of approval to her services and respondent no. 3 may kindly be directed to grant approval to the services of petitioner as Shikshan Sevak w.e.f. 31.12.2011 and other consequential benefits.
Brief facts leading for filing the
present Petition as disclosed in the memo of
Petition are as under:
It is the case of the petitioner
that she possessed the qualification of B.A.
B.P.Ed. The petitioner has passed her B.A.
examination in the year 2009, and has
obtained the degree of Bachelor in Physical
Education in the year 2010 from Rajiv Gandhi
College of Physical Education, Aurangabad.
She has passed her Bachelor''s Degree in
Physical Education in first division.
Respondent no.4 society has issued an
Advertisement in daily news paper ''Gaokari'',
which is widely circulated in Ahmednagar
District, wherein the applications were
called for the post of Shikshan Sevak, which
was meant for Lady Teacher, possessing
requisite qualification of B.A./M.A.,
B.Ed./B.P.Ed.
It is the case of the petitioner
that, petitioner appeared before the
Selection Committee and came to be selected
by duly constituted Selection Committee. The
petitioner came to be appointed as Shikshan
Sevak vide appointment order dated
31.12.2011. She served from 02.01.2012 to
31.12.2014 in respondent no.4 school. Since
the date of appointment, she is continuously
in service till the filing of the present
Petition. Respondent no.5 school runs
classes from 5th to 10th standard. The
petitioner is only Lady candidate in the
teaching staff of the school run by
respondent nos.4 and 5. It is further the
case of the petitioner that as per the
staffing pattern for the year 2011-12, 8.5
posts were available for the teachers
teaching to the classes 8th to 10th Standard.
One post of teacher was available for the
classes 5th to 7th [graduate trained teacher]
and 3 posts of teacher were available for the
classes 5th to 7th [non graduate teacher]. One
post of the Head Master was also notified in
the said roster. As per the roster for the
year 2011-12, 13.5 posts were available and
at that time only 11 teachers were working.
Since there was vacancy of a teacher, and
hence the management has issued an
advertisement for filling of the said vacant
post. In the year 2012-13, 13 posts were
available. In the year, 2009, the roster was
verified through Assistant Commissioner,
Nashik Division, Nashik and as per said
roster, 11 posts were sanctioned and actually
10 teaching staff was working. There was
vacancy of one teacher, and the present
petitioner came to be appointed after
following due procedure on the said post.
Since respondent no.3 refused to grant
approval, hence this Petition.
Learned counsel appearing for the
petitioner submits that in the year 2009,
roster was verified and out of 11 posts, 2
posts were reserved for S.C. category.
Already two teachers were working belonging
to S.C. category. One teacher from S.T.
category was working, and two posts from N.T.
category were also filled in. Five persons
from open category were working. In the year
2009, as per the roster there was no backlog,
as 50% teachers from reserved category were
already working along with five persons from
open category. Learned counsel appearing for
the petitioner invites our attention to the
roster verified by the Assistant
Commissioner, Nashik Division, Nashik on 23rd
March, 2009, and submits that the Petition
deserves to be allowed.
Learned AGP appearing for
respondent-State relying upon the averments
in the affidavit in reply of respondent no.3
submits that, respondent no.3 has assigned
sufficient and cogent reasons while rejecting
the proposal of the petitioner for approval
to her services as Shikshan Sevak. It is
submitted that, respondent nos. 4 and 5 did
not take prior permission of respondent no.3
to fill up the post of Shikshan Sevak, and
recruitment procedure mentioned in the
Maharashtra Employees of Private Schools
[Conditions of Service] Rules, 1981 has not
been followed. There is backlog of S.T.
category in Kankuri Gram Vikas Kendra, Taluka
Rahata, District Ahmednagar. The petitioner
is belonging to Open Category.
Learned counsel appearing for
respondent nos.4 and 5 relying upon the
affidavit in reply filed by those respondents
made following submission:
The petitioner possessed the
qualification of B.A. B.P.Ed. The
advertisement was issued by respondent no.4
society in daily news paper ''Gaokari'' whereby
applications were called for the post of Lady
teacher possessing the qualification of
B.A. / M.A., B.Ed./ B.P.Ed. The petitioner
along with other candidates had appeared
before the Selection Committee and were found
to be meritorious candidates. It is submitted
that respondent no.3 society was pleased to
appoint the petitioner as Shikshan Sevak vide
appointment order dated 31.12.2011 for a
period from 02.01.2012 to 31.12.2014. As per
the staffing pattern for the year 2011-12,
85 posts were available for the teachers, as
per the roster 13.5 posts were available and
only 11 teachers were working and considering
the vacancy, the management has issued an
advertisement.
It is further submitted that
respondent, thereafter, has filed detail
proposal with respondent no.2, seeking
approval to the services of the petitioner.
The Education Officer has rejected the said
proposal, which is subject matter of
challenge in the present Writ Petition. The
petitioner is appointed in the year 2011-12
by following due procedure of law. As per
roster of the year 2009, admittedly, 5
candidates from reserved category were
already appointed, and 5 candidates from open
category were working, the respondent
authorities have not at all taken into
consideration the availability of posts. The
Education Officer has not at all taken into
consideration availability of post as well as
roster. The respondent authority has also
failed to consider the representation made by
the management dated 23.11.2015. The
petitioner is appointed by following due
procedure of law and is in service till the
filing of the present Writ Petition. The work
of the petitioner is satisfactory and there
are no adverse remarks against her. The
respondent management is ready to fill up the
post from reserved category as per roster,
the respondent authorities may kindly be
directed to grant permission to fill up the
post/posts if there is any backlog.
We have heard the learned counsel
appearing for the petitioner, learned AGP
appearing for the respondent-State, and
learned counsel appearing for respondent
nos.4 and 5. At the outset it would be apt to
make reference to the judgment of the Full
Bench of the Bombay High Court at Principal
Seat in the case of Ram Avadh Mahel Pal Vs. Shivdutta Education Trust & ors., 2007 [6] Bom.C.R. 23 in para 4
and 5 of the said judge, it is held thus:
By the Amending Act, Clause 24- A has been inserted in section 2 of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977. Under this provision the expression Shikshan Sevak is defined as follows:
(24-A) shikshan sevak means a member of base teaching cadre appointed on honorarium and subject to such terms and conditions as specified in the Government Resolution published in the Maharashtra Government Gazette, Extraordinary No.12, Part I Central sub-section, dated the 15th February, 2007, for eventual appointment as a teacher.
Section 5 [2] of the Act prior to its amendment read as follows:
Every person appointed to fill a permanent vacancy shall be on
probation for a period of two years. Subject to the provisions of sub- sections [3] and [4], he shall, on completion of this probation period of two years, be deemed to have been confirmed.
As a result of the Amending Act, sub-section [2] of section 5 has been amended to insert the words except Shikshan Sevak after the words permanent vacancy. The following proviso has been inserted after sub-section [2] of section 5 :
Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.
Moreover, sub-section [2-A] has been inserted in section 5 which is to the following effect:
[2-A] Subject to the provisions of sub-section [3] and [4], shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.
Section 12 provides for the regularization of appointments of Shikshan Sevaks in the following terms:
12 [1] Notwithstanding anything contained in the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, all shikshan sevaks appointed in accordance with the provisions of the Government Resolution published in the Maharashtra Government Gazette, Extraordinary, No.12, Part I Central sub-section, dated the 15th February 2007, shall be deemed to have been appointed as base cadre shikshan sevak under the said Act, for appointment as teachers on completion of three years service as such shikshan sevak rendered here to before or heretoafter, as the case may be.
[2] The terms and conditions prescribed by Government for appointment of shikshan sevak, by issuing Government Resolutions, from
time to time, before the date of commencement of the Bombay Primary Education and the Maharashtra Employees of Private Schools [Conditions of Service] Regulation [Amendment] Act, 2007, shall continue to be in force unless modified or revoked.
The provisions of Section 5 of the
Maharashtra Employees of Private Schools
[Conditions of Service] Regulation Act, 1977
[for short ''Act of 1977''], reads thus:
Certain obligations of Management of private schools.
(1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy:
[Provided that, unless such vacancy is to be filled in by promotion, the Management shall,
before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, [the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absoration in other schools and in the event of such person being available, the Management shall appoint that person in such vacancy.]
(2) Every person appointed to fill a permanent vacancy [except [Assistant Teacher (Probationary)] shall be on probation for a period of two years. Subject to the provisions of sub sections (3) and ( 4), he shall, on completion of this probation period of two years, be
deemed to have been confirmed:
[Provided that, every person appointed as [Assistant Teacher (Probationary)] shall be on probation for a period of three years.]
[(2A) Subject to the provisions of sub-sections (3) and (4), [Assistant Teacher (Probationary)] shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.]
(3) If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month''s notice [or salary [or honorarium] of one month in lieu of notice].
(4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2).
[(4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1).]
(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed
in that behalf, and shall state the period of appointment of such person.
On reading of the afore-mentioned
provisions, the proviso to Section 5 [1] of
the Act of 1977 mandates that, if there is
vacancy in the school, before proceeding to
fill such vacancy, the management of the
School is obliged to ascertain from the
Education Officer whether there is any
suitable person available on the list of the
surplus person maintained by the Education
Officer, and if such person being available,
the Management shall appoint that person in
such vacancy.
In the facts of the present case, as
already observed, there are no documents /
material placed on record to show that the
afore-mentioned provision was followed before
appointing the petitioner. It is true that on
completion of period of probation i.e. three
years satisfactorily in the case of Shikshan
Sevak, by virtue of the provisions of sub-
section [2-A] of Section 5 of the Act of
1977, the appointee, on completion of the
probation period of three years, be deemed to
have been appointed and confirmed as a
teacher. In the present case, issue involved
is about refusal of granting approval by the
Education Officer on completion of three
years probationary period by the petitioner.
Upon careful perusal of the
documents placed on record, it is noticed
that nothing is placed on record either by
the petitioner or by respondent nos.4 and 5
to show that there was adherence to the
provisions of sub-section [1] of Section 5 of
the Act of 1977. There is no document showing
that, before issuing alleged advertisement
respondent nos.4 and 5 communicated
respondent no.3 about available vacancies in
the school. It is true that the petitioner
has placed on record copy of the
advertisement published in news paper
''Gaokari'' dated 29.12.2011. Upon careful
perusal of the said advertisement, there is
no mention of details including the post for
which advertisement was issued. It is also
written that only women candidates will be
entitled to apply. Whether such advertisement
is in accordance with procedure or not, is
also not clear. It appears from the reply
filed by respondent nos.4 and 5 that the
petitioner was appointed and has completed
three years service as Shikshan Sevak. If it
is so, in view of the afore-mentioned
provisions of sub-section [2-A] of Section 5
of the Act of 1977, she is deemed to have
been appointed and confirmed as teacher.
The approval is relevant only for
the purpose of receiving salary grants from
the State Government. In the present case,
the management has accepted that the
petitioner was appointed by them. Therefore,
respondent nos.4 and 5 are obliged to pay
salary to the petitioner. In the affidavit in
reply filed by respondent nos.4 and 5, they
have shown willingness to fill up the backlog
of one candidate of S.T. category. In our
opinion, no any mandatory direction can be
issued to the respondents.
In the light of discussion herein
above, we are of the opinion that respondent
no.3 shall consider the case of the
petitioner afresh. It will be open for
respondent nos.4 and 5 to place on record
documents before respondent no.3 in support
of their contention that the appointment of
the petitioner was after following mandate of
Section 5 [1. of the MEPS Act. It will be
open for respondent no.3 to look into all
aspects and to take appropriate decision. We
make it clear that the Education Officer
shall not get influenced by the reasons
assigned in the impugned letter [Exhibit-F
Page-28], and independently consider the case
of the petitioner. We make it clear that we
have not expressed any opinion on merits of
the contentions raised by the petitioner or
respondents in the present Petition, and it
is left open to the Education Officer once
again to re-consider the case of the
petitioner, in accordance with law, as
expeditiously as possible, however, within 12
weeks from today and communicate the said
decision to respondent nos.4 and 5 of which
copy of the said letter be sent to the
petitioner on his address. The Writ Petition
stands disposed of accordingly.