Jaibharat Mahila Sewa Sanstha, Nagpur Thr. Joint Secretary and Ors. Vs State of Maharashtra, through Its Secretary, School Education and Sports Dept., Mumbai and Others

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16-J-WP-182-19.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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WRIT PETITION NO. 182 OF 2019

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PETITIONERS: 1. Jaibharat Mahila Sewa Sanstha, through Joint Secretary, Om Nagar, Nagpur-24. 2. Ujjawal Uccha Prathamik Shala, through its Head Master, Om Nagar, Nagpur-24. 3. Ku. Sangita Ramchandra Kalamkar, Aged about : 39 years, Occupation : Service, R/o. 534, Nehru Nagar, Nagpur.

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V E R S U S

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RESPONDENTS : 1. State of Maharashtra, Through its Secretary, School Education and Sports Department, Mantralaya, Extension, Mumbai - 32. 2. Deputy Director of Education, Nagpur Division, Nagpur. 3. Education Officer (Primary), Zilla Parishad, Nagpur.

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Shri A. D. Mohgaonkar, Advocate for petitioners.

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Shri S. D. Sirpurkar, Assistant Government Pleaderfor respondent
Nos.1 and 2.

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Shri G. G. Mishra, Advocate for respondent No.3.

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CORAM: SANDEEP K. SHINDE AND MRS. VRUSHALI V. JOSHI, JJ.

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JUDGMENT RESERVED ON : 21/11/2022 JUDGMENT PRONOUNCED ON : 29/11/2022

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16-J-WP-182-19.odt

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JUDGMENT : (PER SANDEEP K. SHINDE, J.)

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1. Rule . Rule made returnable forthwith.

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2.Heard finally with the consent of learned counsel
appearing for the parties.

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3.This petition under Articles 226 and 227 of the
Constitution of India takes exception to the order dated
18/09/2018 by which the Deputy Director of Education, reviewed
and revoked the order dated 12/08/2014 granting permission to
the appointment of the petitioner No.3 on non-teaching post in the
school run and managed by petitioner No.1 - Jaibharat Mahila
Sewa Sanstha, Nagpur.

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In brief, facts of the case are as under :-

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4.In terms of proviso to sub-section (1) of Section 5 of
the Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 (for short, "MEPS Act"), the
petitioner - Jaibharat Sanstha vide communication dated
12/11/2013 followed by reminder dated 03/01/2014 sought to
ascertain from the Education Officer (Primary), Zilla Parishad,

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Nagpur, whether there was any suitable person available on the
list of surplus persons maintained by him for the post of Peon.
Indisputably, the Education Officer did not respond to it.
Consequently, petitioner - Sanstha, after following the procedure,
contemplated under Rule 9 of the MEPS Rules, vide order dated
30/03/2014 appointed petitioner No.3 on non-teaching post -
Peon in petitioner No.2 - school. Whereafter in terms of provisions
of Rule 8(2) of Rules, particulars of his appointment were
forwarded to Education Officer. After which on 12/08/2014,
Education Officer (Primary) granted permission to appoint
petitioner No.3 on non-teaching post, on probation, for two years.
Upon completing probation period of two years, when approval
was sought for his permanent appointment on non-teaching post,
the Education Officer vide communication dated 30/05/2018,
declined the approval, on the ground that before appointing
petitioner No.3 on non-teaching post, "NOC" in terms of proviso to
sub-section (1) of Section 5 of the MEPS Act was not sought. As
such, Education Officer proposed to revoke / cancel permission
dated 12/08/2014, and accordingly, recommended to Deputy
Director to cancel it. Whereafter, the Deputy Director of
Education, taking recourse to Government Resolution dated

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02/05/2012 accepted the recommendations of the Education
Officer, and held that unless the surplus non-teaching employees /
persons available on the list of surplus persons are absorbed to the
extent of 100%, the petitioner No.3 could not have been
appointed, and accordingly, permission dated 12/08/2014 was
cancelled. Thus, this petition.

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5.Heard Shri A. D. Mohgaonkar, learned counsel for the
petitioners, Shri S.D. Sirpurkar, learned Assistant Government
Pleader for respondent Nos.1 and 2 and Shri G. G. Mishra, learned
counsel for respondent No.3.

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6.The impugned order is not sustainable in view of the
fact, that before appointing the petitioner No.3 on non-teaching
post of peon on probation, the petitioner No.1 had complied with
proviso to sub-section (1) of Section 5 of the MEPS Act, which is
evident from communication dated 12/11/2013 followed by next
communication dated 03/01/2014. As such, the contention of the
respondents that there was no compliance of provisions of sub-
section (1) of Section 5 by the petitioner No.1 stands rejected. Yet,
another reason for refusing the approval was that while granting
permission on 12/08/2014, Government Resolution dated

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02/05/2012 was ignored by the Education Officer. We find this
contention and or ground for refusing the approval is equally
untenable. Reason being, while granting permission on
12/08/2014, Government Resolution dated 02/05/2012 was in
force. However, having had, ignored the said Government
Resolution at the material time, it was not open to the Education
Officer to decline approval on that ground. For all that, Education
Officer could not have recommended to revoke or cancel
permission dated 12/08/2014, nor could have refused approval to
the appointment of petitioner No.3 on non-teaching post in the
school run and managed by petitioner No.1.

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7.Learned AGP would contend that, in view of the
decision to reconstitute the staffing pattern of the Aided
Secondary and Higher Secondary School, vide Government
Resolution dated 12/02/2015, management of the private schools
was directed not to make new appointment and warned
management and the concerned Education Officer, of prosecution
in case they breach of mandate of the Government Resolution.
Thus, learned AGP would contend that, in view of mandate of
Government Resolution dated 12/02/2015, the Education Officer
could not have granted approval to the appointment of petitioner

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No.3 on non-teaching post. On these grounds, learned AGP would
justify the impugned order.

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8.We do not agree with the submissions of learned AGP
for the reason that, initial appointment of the petitioner No.3 on
sanctioned post of peon was made on 30/03/2014. That was
followed by permission dated 12/08/2014 granted by the
Education Officer (Primary). Whereafter, petitioner No.3
successfully completed her probation period in August, 2016. The
Government Resolution dated 12/02/2015 sought to be relied on,
by the AGP has no retrospective application, inasmuch as
petitioner No.3's initial appointment was made in March, 2014.
Therefore, the order declining approval to the appointment of
petitioner No.3 by taking recourse to Government Resolution
dated 12/02/2015 is not sustainable. In so far as the Government
Resolution dated 23/10/2013 and the Government Resolution
dated 02/05/2012 are concerned, both the Resolutions were in
place and in force on 12/08/2014, while the Education Officer
granted permission to appoint the petitioner No.3 on non-teaching
post. For all these reasons, the impugned order dated 18/09/2018
is quashed and set aside. In consequence, the respondent No.2
shall grant approval to the appointment of petitioner No.3 on non-

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teaching post - Peon in the school of petitioner No.2 and
accordingly, issue order within six weeks from today. Needless to
say that petitioner No.3 is eligible to claim all consequential
benefits upon the Deputy Director of Education / Education
Officer granting approval to her appointment.

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9. Rule is made absolute in the above terms. The petition

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is disposed of with no order as to costs.

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[MRS. VRUSHALI V. JOSHI, J.] [SANDEEP K. SHINDE, J.]

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Choulwar

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VITHAL Digitally signed byVITHAL MAROTRAO MAROTRAO CHOULWAR CHOULWAR Date: 2022.11.2910:53:11 +0530

Jaibharat Mahila Sewa Sanstha, Nagpur Thr. Joint Secretary and Ors. v. State of Maharashtra, through Its Secretary, School Education and Sports Dept., Mumbai and Others

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Jaibharat Mahila Sewa Sanstha, Nagpur Thr. Joint Secretary and Ors. v. State of Maharashtra, through Its Secretary, School Education and Sports Dept., Mumbai and Others

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