Quashed

Jayshri Ashok Mate v. the State of Mah and and Ors.

Bombay HC5 Apr 2018WP/8207/2012

Case brief

AI extract

What is this about?

This judgment deals with writ petitions challenging the rejection of permanent appointment proposals for Assistant Teachers. The High Court held that petitioners acquired permanent status under Section 5(2) of the MEPS Act after completing probation, regardless of reserved category backlogs. The impugned orders were quashed, and the Education Officer was directed to reconsider within six weeks.

What did the court decide?

Impugned orders quashed and set aside. Education Officer directed to reconsider approval of appointments within six weeks.

Jayshri Ashok Mate Vs the State of Mah and and Ors. — Education and Admissions | Bombay HC (2018)

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8207.12WP+

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 8207 OF 2012

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JAYSHRI ASHOK MATE

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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WITH

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WRIT PETITION NO. 8485 OF 2012

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ROHINI NAMDEO MATE

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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WITH

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WRIT PETITION NO. 8486 OF 2012

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THAKARAM BHAUSAHEB KADAM

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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...

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Advocate for Petitioners:Mr.A.M. Gaikwad
AGP for Respondent/State:Mr.S.M. Ganachari
Advocate for Respondent No.5 : Mr.D.R. Markad

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...

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CORAM : S.S. SHINDE & S.M. GAVHANE, JJ. Dated: April 05, 2018

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PER COURT :-

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At the outset, learned counsel
appearing for the petitioners seeks leave to
delete the name of Respondent No.6 from the
array of the Respondents in Writ Petition
Nos.8485/2012 and 8486/2012. Leave granted to
delete the name of respondent No.6 from the
array of the respondents at the risk of the
petitioners. Amendment to be carried out

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forthwith.

2.Heard learned counsel appearing for
the petitioners and learned A.G.P. appearing
for the State and its officials. Though
learned counsel appearing for Respondent No.5
is present, he submits that, he has no
further instructions to put-forth the
contentions on behalf of Respondent No.5.

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3.In all these three Petitions, the
petitioners have challenged/have taken
exception to the order passed by the
EducationOfficer(Secondary),Zilla
Parishad, Ahmednagar on 19th November, 2011
(Exhibit “H”to the Petitions), by which the
proposals of the petitioners for approval of
their services as assistant teachers, have
been turned down/rejected on the ground that,
the Respondent – Management has not appointed
one candidate from S.C. category and one
candidate from S.T. category, and therefore,
in view of the said backlog, no approval can
be granted to the appointment/services of the
petitioners as Assistant Teachers.

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4.Learned counsel appearing for the
petitioners submits that, the petitioners

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have been appointed in the year 2003 and have
rendered continuous service, and thereby on
completion of two years period, they have
acquired the status of permanent employees in
view of the provisions of Section 5(2) of the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulations Act, 1977
(Hereinafter referred to as “the M.E.P.S.
Act”). He invites our attention to the letter
written by the Deputy Director of Education,
Pune Region, Pune to the Education Officer
(Secondary), Zilla Parishad, Ahmednagar,
thereby instructing the Education Officer to
grant approval to the services of the
petitioners by obtaining an undertaking from
the Respondent – Management that, the
Management will appoint one candidate from
S.C. category and one candidate from S.T.
category on the post of Assistant Teacher and
will complete the backlog. It is his
submission that, inspite of such instructions
issued by the Deputy Director of Education to
the Education Officer (Secondary), the
Education Officer (Secondary) has not paid
any heed to such instructions. Therefore,
learned counsel appearing for the petitioners
submits that, the Petitions deserve to be
allowed.

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5.On the other hand, learned A.G.P.
appearing for the Respondent/State invites
our attention to the averments in the
affidavit in reply filed by the Education
Officer, and submits that since the
Management did not appoint one candidate from
S.C. category and one candidate from S.T.
category on the post of Assistant Teacher,
the approval to the appointment/services of
the petitioners has rightly been rejected.

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6.We have considered the submissions
of learned counsel appearing for the
petitioners and learned A.G.P. appearing for
the Respondent/State and the Education
Officer. We have carefully perused the
contents of the impugned orders. As it is
stated in the affidavit in reply filed by the
Education Officer that, there exists backlog
of appointment of one teacher from the S.C.
and S.T. category, however, the Education
Officer has not taken into consideration the
fact that, the petitioners have been
appointed in the year 2003 and rendered
services continuously to the satisfaction of
the Management and there is no contra
material brought on record by the Respondents

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that, the petitioners have not rendered the
continuous and satisfactory services. In view
of the mandate of Section 5(2) of the
M.E.P.S. Act, the petitioners have acquired
status of permanency, since they have
rendered more than two years services
satisfactorily. Therefore, in view of the
aforesaid deeming provisions, the petitioners
have acquired the status of permanent
employees. The Section 5 of the M.E.P.S. Act,
reads thus :-

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“5. Certain obligations of
Management of private schools.

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(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:

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[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

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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 absorption in other schools and in the event of such person being available, the Management shall appoint that person in such vacancy.]

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(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:

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[Provided that, every person appointed as [Assistant Teacher

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(Probationary)] shall be on probation for a period of three years.]

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[(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.]

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(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].

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(4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in

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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).

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[(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).]

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(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.”

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7. The Full Bench of the Bombay High
Court in the case of Ram Avadh Mahel Pal V/s

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Shivdutta Educational Trust and ors.1 has
held that, every candidate appointed as
Shikshan Sevak shall on completion of the
probation period of three years be deemed to
have been appointed and confirmed as a
teacher. The Division Bench of Bombay High
Court in the case of Lalitha Thutpi V/s C.B.
Karkhanis, Presiding officer, School Tribunal
Bombay and others2, in the facts of that case
took a view that, if the qualifications are
possessed by the candidates and two years
probation period is completed, in that case,
such appointment deserves to be protected, by
directing the Respondent – Management to
carry forward the post for the reserved
category.

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8.Keeping in view the ratios laid down
in the above-stated two judgments and in view
of the provisions of Section 5(2) of the
M.E.P.S. Act, we are of the opinion that, the
Education Officer is not right in rejecting
the proposal seeking approval to the
appointment/services of the petitioners as
Assistant Teachers. In that view of the
matter, the impugned orders are quashed and
set aside. We direct Respondent No.5 –

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1 2007(6) Mh.L.J. 659

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2 1998(1) Mah. L.R. 235

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Education Officer to reconsider the issue of
approval to the appointment/services of the
petitioners, keeping in view the letter
written by the Deputy Director of Education,
Pune Region, Pune (Exhibit I to the

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Petitions) dated 13th January, 2012 and take
appropriate decision, as expeditiously as
possible, and preferably within six weeks
from today. Needless to mention that, while
taking such decision, the Education Officer
shall not assign the reasons, which are
alreadyassignedintheimpugned
letters/orders dated 19th November, 2011. We
make it clear that, if the Education Officer
needs any further record or assistance, he
can issue directions to Respondent No.5 to
make available necessary record for perusal
and necessary reference.

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9.With the above observations, the
Writ Petitions stand disposed of.

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10.Parties shall act upon authenticated
copy of this order.

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(S.M. GAVHANE, J.)
SGA

Jayshri Ashok Mate v. the State of Mah and and Ors.

Case brief

What is this about?

What did the court decide?

Jayshri Ashok Mate v. the State of Mah and and Ors.

Case brief

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