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Judgment
This Petition is filed with the
following prayers:
B) To issue writ of mandamus or any other appropriate writ, order or directions in the like nature, the Respondent No.1 to 4 may kindly be directed to take action against the Respondent No.5 to 9 under the provisions of Maharashtra Reservation Act 2004 and action provided under different G.R''s for illegal appointment made by the Respondent No.5 to 9 appointing 7 employees from open category violating roster where all the 7 posts are reserved specifically directing to lodge criminal cases and take further action for non compliance of reservation policy under the Act, Rules and G.R''s.
C) To issue writ of mandamus or any other appropriate writ, order or directions in the like nature, the
Respondent No.1 may kindly be directed to take appropriate and suitable action against the Respondent No.2 to 4 for ignoring the complaints made by the petitioner as per Exhibit ''F'' and for failure on their duties for not taking any action against the Respondent No.5 to 9 for violation of reservation policy under the Act, Rules and G.R''s issued time to time.
It is the case of the petitioner
that, the petitioner is life member of
respondent no.7 - Yoganand Shikshan Prasarak
Mandal, Partur, Taluka Partur, District Jalna
i.e. the Educational Trust registered under
the provisions of Bombay Public Trusts Act,
1950. The petitioner is a founder member of
the said trust, and always interested in the
development of the trust by adhering to the
legal provisions. Respondent no.7 runs two
schools, one at Partur and another at Mantha;
those schools are reputed schools since long
having established in the rural area to
impart education to needy students by one
well known social worker in Partur City,
namely, Shri Kashinathrao Ambure. It is
further the case of the petitioner that, on
3rd October, 2011, Department has taken Pat
Padtalani of the school run in the state
whereas it was found that, there are excess
teachers appointed in both the schools run by
respondent no.7. The Government Resolution
dated 06.02.2012 provides that the schools
have to fill up the posts of teachers by
following provisions of said Government
Resolution, wherein the guidelines are
provided for appointments of teachers. The
Government Resolution dated 20.06.2014
provides appointment of teachers for subject
of Mathematics, English and Science.
It is further the case of the
petitioner that, roster in the schools run by
respondent no.5 is approved by respondent
no.3 on 05.06.2012, which shows that, all the
posts meant for appointment of persons from
reservation category have been filled up by
the persons, who belong to Open category. The
Government Resolution dated 05.09.2009
provides for penal action if roster is not
followed. In para 11 of the said Government
Resolution, it is categorically provided to
take action, as per the Maharashtra
Reservation Act, in case roster is not
followed. Respondent nos.5 to 9 along with
management passed a resolution to appoint
daughter of respondent no.8 and others on
24.03.2013. Accordingly, all 7 persons are
appointed in violation of roster dated
05.06.2012. An approved roster shows that,
all the 7 posts go to the reserved category
according to the backlog. However, respondent
nos.3 to 9 appointed all 7 persons from open
category. All such appointments are contrary
to the roster dated 05.06.2012. Having full
knowledge about backlog of reserved category
as per roster, respondent nos.5 to 9
intentionally and deliberately appointed
daughter of the Headmaster and other persons
in relation, who are from the open category.
The complaints dated 19.09.2014, 27.12.2014,
19.08.2015, 02.09.2015, 28.09.2015 and
10.05.2016 were made before respondent no.2.
However, no action / decision has been taken
by respondent no.2 on the above-mentioned
complaints.
In view of the above facts and
circumstances of the case and having full
knowledge of the provisions of the
Maharashtra Employees of Private Schools
[Conditions of Service] Regulation Act, 1977
[for short ''Act of 1977''] read with the
Maharashtra Reservation Act, 2004 and all
above Government Resolutions issued time to
time, respondent nos.5 to 9 ought to have
adhered to the provisions of the Act of 1977
and guidelines issued by the Government by
following it scrupulously. However, in spite
of the roster showing that, all 7 posts goes
to reserved categories in view of the
backlog, candidates from the open category
are appointed by the management and
Headmaster. The intention behind it is to
appoint relative of the members of the
management committee and the staff members,
as it is evident that daughter of Headmaster
is appointed.
Learned counsel appearing for the
petitioner submits that, the appointments are
against roster approved by the Assistant
Commissioner working in the office of the
Divisional Commissioner, Aurangabad, on
05.06.2012. However, respondent nos.1 to 4
have avoided to decide representations made
by the present petitioners. Being a diligent
member of the society, the petitioner moved
application before the competent authority
i.e. respondent no.2, however, in spite of
several representations and consistent follow
up time to time, respondent authorities have
continued to cover illegalities committed by
respondent nos.5 to 9. Inaction on the part
of respondent nos.2 to 4, is failure in their
duties, and therefore, respondent nos.2 to 4
are also liable for appropriate disciplinary
action, for not taking any action against
respondent nos.5 to 9, who have committed
grave illegality in the appointments.
On the other hand, learned AGP
appearing for the respondent-State relying
upon the averments in the affidavit in reply
filed on behalf of respondent no.4 submits
that, the appointments of the persons,
namely, [i] Suresh Parasram Shelke, Sevak
[ST], [ii] Shyam Baliram Narwade, Sevak [SC],
[iii] Murlidhar Datta Kayande, Assistant
Teacher [NT-D], [iv] Ku.Varsha Vishwambhar
Khose, Assistant Teacher [Open], [v] Smt.
Amrapali Shamrao Lone, Assistant Teacher
[SC], [vi] Smt.Varsha Rajebhau Pawar,
Assistant Teahcer [Open], [vii] Anil Umaji
Chavan, Assistant Teacher [VJ-A], [viii]
Dharmendra Prakash Lakhkar, Assistant Teacher
[OBC], [ix] Vikas Shivaji Khandagale,
Assistant Teacher [Open], [x] Ranjeet
Tulshiram Kanade, Assistant Teacher [NT-C],
and [xi] Vishnu Achutrao Kharat, Assistant
Teacher [Open], were made by the management
and their individual approvals were granted
by the then Education Officer [Secondary],
Zilla Parishad, Jalna. After going through
the above-mentioned appointments, it reveals
that, the then Education Officer [Secondary],
Zilla Parishad, Jalna has tried to follow the
roster by appointing two persons from the
backward classes on non-teaching staff, and
out of these 9 teaching staff, five
appointments were made from the backward
classes and four were made from the open
category. As per the allegations made by the
petitioner, seven persons from open category
are appointed, whereas the record shows that
only four teachers from open category are
appointed. It is submitted that, after going
through the roster verified by B.C. Cell
dated 11.03.2015 and staffing pattern of both
the schools run by the respondent -
management, it is noticed by respondent no.4
that, the backlog is still left to be
fulfilled by the management as per the roster
and the reservation policy. The Government
Resolution dated 11.09.2016, makes mention
about the action to be taken against the
schools which do not follow the reservation
policy. In clause 6 of the Government
Resolution dated 19.09.2016, it is mentioned
that, even though school is eligible to
receive grants as per the conditions laid
down in the Government Resolution dated
15.11.2011, no grants shall be released if
the reservation policy for filling up the the
teaching and non-teaching staff is not
followed. According to the said Government
Resolution, action has been taken by the
office of respondent no.4 against the
respondent-management by not granting grant-
in-aid to the added three divisions on which
the above mentioned six teachers are working.
No salary has been paid to those teachers
from the public exchequer.
Learned AGP relying upon the
averments in the affidavit in reply of
respondent no.3 submits that, the Headmaster
of the school run by respondent no.7
institution submitted the proposal on
11.03.2015 to verify the roster. Respondent
no.3, taking into account the proposal
submitted by the respondent-institution,
verified the roster of the school and on
11.03.2015 issued roster which is annexed to
the Writ Petition at Page 59. At the time of
verification of roster, it is found that,
there is backlog of one post for SC, two
posts for ST, one post of VJ [A], two posts
for NT [B] and three posts for OBC category.
After verification of roster, the copy of the
same was forwarded to the institution and the
Education Officer [Secondary], Zilla
Parishad, Jalna. As far as the role of
respondent no.3 is concerned, it is just to
the extent of verifying and certifying roster
as per Reservation Act, 2004 and Government
Resolution in General Administration
Department dated 29.03.1997 and 18.10.1997.
Learned counsel appearing for
respondent nos.5 to 7 relying upon the
averments in the affidavit-in-reply submits
that, the baseless allegations are made in
the Petition. As per the present available
statics, 70 posts are sanctioned, and out of
which, 65 posts are filled in. As per the
roster, 9 posts are excess. As per Government
Resolution dated 29th March, 1997, 34 posts
from open category, and 36 posts from
reservation are required to be filled in, and
as such, shortfall of 9 posts from reserved
category is noticed. Already action is taken
by respondent no.4, thereby deducting salary
grants to the extent of 20%. The statement
made in the affidavit of respondent no.4
that, there is backlog of 9 posts, is not
correct factual position. In fact, 5 posts
from reserved category are vacant; two
persons have resigned, and two posts are re-
scheduled by Zilla Parishad in order to
accommodate surplus teachers in other
institutions, run by the Zilla Parishad. The
appointments made by respondent nos.5 to 7,
have been duly approved by the Education
Officer, and therefore, once such approval
has been granted, the question of initiating
action against respondent nos.5 to 7 would
not arise. Learned counsel relying upon the
averments in the further affidavit filed on
18.12.2017, pursuant to the order dated 22nd
November, 2017, submits that, as far as
school at Partur is concerned, additional
division has been granted on 28.02.2014 for
9th and 10th standards on the basis of non-
grant for the year 2012-13. In pursuance of
which a Resolution was passed on 04.03.2014
and Mr.Ghandagale, Mr.Kanade and Mr.Kharat
have been appointed on 04.03.2014, and their
appointments have been approved by order
dated 19.06.2014, by following due procedure
of law. It is submitted that, as regards the
school at Jaipur is concerned, additional
division has been sanctioned vide order dated
07.03.2013 for 6th standard. The said
additional division was on grant in aid
basis, as such a Resolution was passed on
24.03.2013, and Miss Khose and Mr.Kayande
have been given appointment by following due
procedure of law. On account of promotion of
Mr.Patil, appointment has been given to
Mr.Kayande. As per the roaster, since one
post was created, Miss Khose was appointed.
It is further submitted that, as far as the
school at Partur is concerned, all three
appointments were made on non-grant basis,
whereas school at Jaipur, Miss Khose and
Mr.Kayande were given appointments on grant
in aid basis for the facts stated herein
above. Two non-teaching staffs were also
given appointment at Jaipur i.e. Mr.Songde
and Mr.Shelke as Peons.
It is further submitted that, all
the posts filled in by respondent nos.5 to 7
have been filled in as per the prevalent
quota and the norms. As and when there was
availability, the posts were sanctioned by
the authority, and accordingly, those were
filled in by following due procedure of law.
As regards the objection of the petitioner in
respect of non observance of the reservation
posts, it is worthless to be considered for
the simple reason that, the institution has
made all the endeavour to meet with the
requisite requirement, however, for want of
availability of the candidates from the
reserved categories; those could not have
been filled in. The petition is based upon
roster pertaining to the year 2012-13; which
has, in fact, no nexus whatsoever with the
present situation. In the year 2012-13, out
of 47 sanctioned posts, 46 posts were filled
in whereas in 2015-16 out of 70 sanctioned
posts, 65 posts were filled in. It is, as
such, the number shown in the documents
annexed to the petition is incorrect. All the
allegations leveled and mentioned in the
petition are none the less than personal
vendetta to which the petition is bent upon
to meet with by hook or crook. The reason
for developing all this grudge by the
petitioner has been mentioned in the earlier
affidavit filed by respondent no.5 to 7. It
is further submitted that, after going
through the affidavit in reply filed on
behalf of respondent - State, respondent nos.
5 to 7 came to know that, there is an error
in the staffing pattern, and as such, vide
communication dated 07.01.2017 request has
been made to the Education Officer, Zilla
Parishad, Jalna for making requisite
corrections therein. The same is pending with
the respondent-State and Zilla Parishad. In
the meanwhile, the petitioner has not stopped
his ill-activities, and has deployed his
well-wisher to get the information allegedly
under the Right to Information Act . One
Mr.Santosh Akhade has filed an application on
16.11.2017, thereby sought information in
respect of 6-7 persons, who have been named
in the petition along with the copy of
Government Resolution and advertisement. The
said person is from Partur and virtually has
no concern with this issue. He neither
applied for appointment, nor he is eligible
for the same.
It is further submitted that, in the
back drop of filing of the petition, and the
attempt of the petitioner to collect the
information by using the forum of this Court,
it is evident that the said person Mr.Santosh
Akhade is a man deployed by the petitioner
for collecting information. Therefore,
learned counsel submits that, the Petition
may be rejected.
We have considered the submissions
of the learned counsel appearing for the
parties. With their able assistance, we have
perused the pleadings and ground taken in the
petition, annexures thereto, the replies
filed by the respective respondents. It
prima facie appears from the reply filed by
respondent no.4 that, action has been taken
by the office of respondent no.4 against the
respondent-management by not granting grant-
in-aid to the added three divisions on which
the above mentioned six teachers are working.
No salary has been paid to those teachers
from the public exchequer. We are of the
opinion that, various representations filed
by the petitioner with the respondent
authorities needs to be considered in the
light of record maintained by the
respondents, and in particular respondent
nos.5 to 7 in respect of the appointments of
the employees, and also the record maintained
by respondent no.4 by which approval is
granted time to time to the appointment made
by respondent nos.5 to 7.
In that view of the matter, we deem
it appropriate to direct respondent no.2 i.e.
The Commissioner of Education, Maharashtra
State, Pune, to issue notices to the
petitioners and respondent nos.5 to 7, and
allow the petitioner and also respondent
nos.5 to 7 to file documents in support of
their contentions, and also record maintained
by respondent nos.5 to 7, and thereafter,
take appropriate decision about grievance
raised by the petitioner in his various
representations. Once again it will be open
for the petitioner to make comprehensive
representation to respondent no.2.
Respondent no.2 shall summon record from the
office of respondent nos.3 and 4 in relation
to the approvals granted time to time to the
appointments made by respondent nos.5 to 7.
Respondent no.2 shall adhere to the
principles of natural justice, and after
hearing the parties and perusing the
documents, take appropriate decision in
accordance with law/rules/procedure in
respect of the grievance raised by the
petitioner in his representations. It will be
open for the petitioner to place on record
copy of this petition with annexures before
respondent no.2. The entire exercise shall be
done by respondent no.2, as expeditiously as
possible, however, within 6 months from
today.
We have not expressed any opinion on
merits of the contentions raised by the
parties, either in the petition or in the
replies filed by the respondents, and it is
for respondent no.2 to take decision on
merits, and if respondent no.2 finds
substance in the grievance raised by the
petitioner, take appropriate action against
respondent nos.5 to 7, however, as
permissible and in accordance with law. The
Petition stands disposed of accordingly, no
order as to costs.