Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16128 OF 2024
1) Smt. Pooja Yogesh Singh
Aged 34 Yrs, Occ. Service, R/o. Room No. 12, F/15, Deonar Municipal Colony, Govandi(W), Shivaji Nagar, Mumbai – 400 043.
2) Shanti Shikshan Prachar Mandal, Kalyan, Dist. Thane, Through its Chairman/Secretary. … Petitioners
2) The Deputy Director of
Education, Mumbai Region, Mumbai.
3) The Education Officer
(Secondary), Zilla Parishad, Thane. … Respondents.
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Mr. Narendra V. Bandiwadekar a/w. Mr. Vinayak R. Kumbhar, Mr. Rajendra B. Khaire, Mr. Aniket Phapale i/b. Ashwini N.
Bandiwadekar, for the Petitioners.
Ms. S.S. Bhende, AGP for Respondent/State.
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JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
2. The present petition is at the instance of the Petitioner NO. 1 a Shikshan Sevak and the Petitioner No.2 Management. By the present petition, Petitioners challenge the impugned order dated 25/11/2022 passed by Respondent No. 3 (at Exh. H), refusing to grant approval, to the appointment of Petitioner No. 1, as Shikshan Sevak in the aided school of Petitioner No. 2 (“impugned order”). Petitioners seek the following substantive reliefs: “a] Rule Nisi be issued and records and proceedings be called for. b] By a suitable writ, order or direction, this Hon'ble Court may be pleased to quash and set aside the impugned order dated 25.11.2022 issued by the Respondent No. 3, and accordingly the Respondent No. 3 may be directed to grant approval to the appointment of the Petitioner No. 1 as a Shikshan Sevak in the aided Secondary School of the Petitioner No. 2 Management w.e.f. 1.7.2022 for a period of 3 years, and to release the grant-in-aid for payment of monthly honorarium to the Petitioner No. 1 for the said period of 3 years. c] By a suitable writ, order or direction, this Hon'ble Court may be pleased to direct the Respondent No. 2 to grant permission to enter the name of the Petitioner No. 1 in Shalartha Pranali and to allot the Shalartha I.D. to the Petitioner No. 1 as a Shikshan Sevak in the aided secondary school of the Petitioner No. 2 Management, with all consequential benefits” Case of the Petitioners:
3. The case of the Petitioners as set out in the Petition, interalia, is that:- Petitioner No. 1 belongs to open category; Petitioner No. 1 completed education in the stream Bachelor of Arts (English) and B.Ed. (Eng/History); Petitioner No. 2 is a linguistic (Hindi) Minority Educational Institute and is registered under the Maharashtra Public Trust Act 1950 and Societies Registration Act, 1860, thus Petitioner No. 2 has the status of minority educational institution within the meaning of Section 2(g) of the National Commission for Minority Educational Institution Act 2004; Petitioner No. 2 has 3 schools, out of which two are primary schools and one is secondary school; all the said three schools are receiving 100% grant in aid from the State Government; the appointment of Petitioner No. 1 is made in the secondary school by name Shanti Hindi High School at Shivaji Nagar, Valdhuni Kalyan, Thane having classes of standard 8 to 10 (said school); the service conditions of the teaching and non-teaching employees working in the said school are governed by the provisions of Maharashtra Employees of Private Schools (Conditions of Rules) Regulation Act 1977 (MEPS Act) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (MEPS Rules); one permanent and approved teacher working in the said school by name Smt. Sadhana Raman Hushe, was to retire on attaining the age of superannuation with effect from 28/02/2022 and therefore, sanctioned post of the teacher was to fall vacant in the said school.
4. That by application dated 13/01/2022 (at Exh. B) the Head Master of the school made a request to the Respondent No. 3 to issue no objection certificate permitting the Management to initiate selection process to fill up the said vacancy; as the school did not receive any response from the Respondent No. 3 indicating either the NOC was refused or surplus teacher from another minority school was being sent for absorption in the said vacancy, the Petitioner No. 2 published advertisement in a newspaper by name “Bharatiya Nagrik” on 05/06/2022 (at Exh. C), inviting applications for the said post from qualified candidates. The applications were to be accepted till 20/06/2022; in response to the said advertisement published in the newspaper “Bharatiya Nagrik”, four applications were received. All the said four candidates were called for interview, which was held on 27/06/2022. The Selection Committee awarded marks to the candidates on the basis of their performance. The Petitioner No.1 secured highest marks and therefore, came to be selected and recommended for appointment.
5. That the School Committee in its meeting held on 28/06/2022 resolved to appoint Petitioner No. 1, as Shikshan Sevak with effect from 01/07/2022. Petitioner No.1 came to be appointed as Shikshan Sevak vide appointment order dated 28/06/2022 (at Exh. F); appointment of Petitioner No. 1 as a Shikshan Sevak was from 07/01/2022 to 30/06/2025, on a monthly honorarium of Rs. 6000/-. That on 31/10/2022, Head Master of the School, by its letter dated 28/10/2022, submitted proposal to Respondent No. 3 and requested for approval to the said appointment of Petitioner No.1 as Shikshan Sevak.
6. The Respondent No. 3 vide impugned order rejected the said proposal for the following reasons: (a) That Petitioner No. 2 has not annexed the Teacher Eligibility Test (TET) passing certificate of the candidates. (b) That advertisement issued by the Petitioner No. 2 is not annexed.
(c) That certain documents like seniority list as mentioned in Serial Nos. 3 and 4 are not annexed.
(d) There was ban on new recruitment imposed by
Government Resolution(G.R.) dated 04/05/2020 issued by the Finance Department of the State of Maharashtra. (e) There is no compliance with regards to the G.R. dated 10/06/2022, with reference to the advertisement not being published in the newspaper/daily as referred to in Schedule “B” annexed to the said G.R. Dated 10/06/2022.
7. Marathi version of the impugned order dated 25th November 2022 is as follows: “iMrkGk lqphuqlkj vki.k lknj dsysY;k oS;fDrd ekU;rk izLrkokph iMrkG.kh dsyh vlrk [kkyhy izek.ks dkxni=s izLrkoklkscr tksM.;kr vkysyh ulY;kus vki.k lknj dsysyk Jherh iwtk;ksxs’k flag] ch, ch,M;kapk vuqnkfur rRokoj fu;qDrhl ekU;rk feG.ksckcrpk izLrko vekU; dj.;kr;sr vkgsv-dz- izLrkoklkscr lknj djko;kph lk{kkafdr dkxni=s izLrkoklkscr tksMys vkgs@ukgh 1- f’k{kd ik=rk ijh{kk mrh.kZ izek.ki= ¼b- 1 rs 8 lkBh½ ¼‘kkfu- 13@02@2013 o 24@08@2018 vUo;s½ ukgh 2- fu;qDrhosGh inHkjrhlkBh ikfgjkr dk=.k ewG tkfgjkr ukgh 3- Ikn HkjrhlkBh f’k{k.kkf/kdkjh;kaps ukgjdr i= ukgh 4- laLFksP;k ‘kkGkrhy f’k{kdkaph,df=r lsokts”Brk;knh ukgh 5- LakpekU;rsuqlkj eatqj d;Zjr inkapk xVfugk; rDrk ukgh 6- foRr foHkkx ‘kklu u.kZ; fnukad 04@05@2020 uqlkj uohu in Hkjrh canh vlrkuk fu;qDrh dj.;kr vkysyh vkgs- 7- lnjgq fjDr in Hkj.;kdfjrk ‘kklu fu.kZ; fnukad 10@06@2022 e/khy lkscr tksMysY;k fooj.ki= ^c*;sFks ueqn lacaf/kr foHkkxkrhy lokZf/kd [kikP;k nksu orZekui=ke/;s;k dk;kZy;kph ijokuxh ?ksoqu tkfgjkr ns.;kr vkyh ukghofjyizek.ks v- dz- 1 rs 7 eqn~;kuqlkj vkiyk lanfHkZ; fu;qDrhl ekU;rk feG.;kckcrpk izLrko vekU; d:u;k dk;kZy;hu Lrjko#u fudkyh dk<.;kr;sr vkgsojhyizek.ks vekU; dj.;kr vkysyh fu;qDrh iq<s pkyw BsoY;kl osrukph tckcnkjh laLFksph jkghy- R;kpizek.ks U;k;ky;hu izdj.k mHnoY;kl R;kph loZLoh tckcnkjh laLFkk@’kkGk izeq[kkph jkghy;kph uksan ?;koh-”
8. This Court on 10th August, 2023 issued notice to the Respondents. Respondents have appeared through learned AGP, however, no reply is placed on record. Submissions:
9. Mr. N.V. Bandiwadekar, learned Senior Advocate appearing on behalf of the Petitioner submits that the G.R. dated 10/06/2022 on which the Respondent No. 3 has placed reliance to reject the proposal, is not applicable and/or would not be attracted to the case in hand as the publication of the advertisement was on 05/06/2022 i.e. prior to the issuance of G.R. dated 10/06/2022. It is the submission of Mr. Bandiwadekar that assuming the said G.R. dated 10/06/2022 can be said to be attracted, then also there is substantial compliance with the requirements of publishing of the advertisement in the newspaper. In support thereof Mr. Bandiwadekar placed reliance on the contents of the advertisement (Exh. C).
10. He further submits that the TET passing certificate would not be applicable to the case in hand as the appointment which is sought to be made by the Petitioner No. 2 is in a secondary school and not a primary school, as such, the candidate is not required to possess the TET eligibility. He further submits that the present appointment is to be made in a school run by the minority educational institution and in view of the Judgment passed by the Hon’ble Supreme Court in the case of Pramati Educational & Cultural Trust v/s. Union of India reported in 2014 Vol. 8 SCC 1, as also several judgments of this Court, TET eligibility for appointment in the minority school is not required.
11. He further submits that the issue with regards to TET eligibility is pending before the larger bench. Mr. Bandiwadekar placed reliance on the judgment of this Court in the case of Shital Kumar Patil v/s. State of Maharastra reported in 2022(1) Mh. L.J. 389 to contend that minority educational institutions are exempted from the applicability of section 5(1) of the MEPS Act
1977. With reference to the grounds of rejection at Serial No. 2, 4 and 5 in the impugned order, Mr. Bandiwadekar submits that the Respondent No. 3 had not given any opportunity to the Petitioner No. 2 to make good the said deficiencies and as such the reasons for rejection would be untenable, being in violation of principle of natural justice. On the basis of the said submissions Mr. Bandiwadekar prayed that the impugned order be set aside and the Respondent No. 3 be directed to grant approval to the appointment of Petitioner No. 1 as Shikshan Sevak.
12. Ms. S.S. Bhende, learned AGP appearing on behalf of the Respondents opposed the Petition. Nub of the objections on behalf of the Respondents are that the Petitioners have not obtained prior permission from the authorities for publication of the advertisement and that the publication of the advertisement in the Pakshik “Bharatiya Nagrik” is not in accordance with the requirement of law as also the provisions of MEPS Act and Rules, which mandate that the such publication should be in a widely circulated newspaper. Ms. Bhende submits that from the document (Exh. C ), it is apparent that the said advertisement was not made in local daily / widely circulated newspaper and the advertisement was issued in newspaper which had a fortnightly publication.
13. The learned AGP Ms. Bhende has placed on record a compilation of G.R.s which are referred to in the G.R. dated 10/06/2022. According to Ms. Bhende, the said G.R.s would demonstrate that the publication of any advertisement for appointment of teachers requires wide publication. That the State Government has approved the newspapers for publication of such advertisement. By placing reliance on appointment letter dated 28/06/2022 (Exh. “F”), Ms. Bhende submitted that the said document also creates a doubt, in as much as, according to her, pay scale for the appointment of the nature indicated in advertisement, would be in the pay scale of Rs. 8,000/-, whereas the order of appointment dated 28/06/2022 (at Exh. “F”), indicates that the pay scale to be Rs. 6,000/-. According to the Ms. Bhende, the aforesaid defects and more particularly, the defect as pointed out by the Respondent No. 3 at Serial No. 2 read with Serial No. 7 in the impugned order are fatal to the case of the Petitioners and therefore, no indulgence be shown to the Petitioners in the extra ordinary jurisdiction of this Court. Ms. Bhende supported the impugned order and prayed for dismissal of the Petition.
14. After considering the submissions of the learned Senior Advocate for the Petitioners and learned AGP for the Respondent- State, we have noticed that the advertisement has been published in fortnightly newspaper known as “Bharatiya Nagrik” and that the said advertisement does not contain any details with regards to the requisite qualifications, etc. that would be expected while inviting applications.
15. From the facts, circumstances and contentions raised in the present Petition, the question for determination before us is whether the advertisement (at Exh. C) complies with the requirement of the MEPS Act and MEPS Rules. Further question that arises for determination in the present Petition is whether the impugned order suffers from perversity requiring interference by this Court.
16. The advertisement dated 05/06/2022 relied upon by the Petitioner is at Exh. C of the petition. The same is referred to herein under: Analysis
17. Employment of teachers in aided private schools in the State of Maharashtra are governed by the State Legislation i.e. MEPS Act, 1977 and MEPS Rules, 1981. Burden of payment of salary of such teachers is borne by the State Exchequer. Accordingly, such employment lies in the realm of the public employment. This Court, has time and again held that the recruitment/selection/appointment of such teachers in private aided school has to be necessarily in conformity with the fundamental rights enshrined under Article 16 of the Constitution of India.
18. Pursuant to the directions of this Court at its Nagpur Bench in Public Interest Litigation No. 8 of 2015 on 24/06/2015 the Pavitra Portal was introduced by the School Education and Sports Department, State of Maharashtra through its Government Resolution dated 23/06/2017. The Pavitra Portal is introduced with the avowed object of element of transparency in recruitment of teachers in private schools. G.R. dated 23/06/2017 which introduced Pavitra Portal was assailed by the Managements of Private School in Writ Petition No. 5059/2017. Vide Judgment dated 21/11/2018 this Court though upheld the eligibility criteria prescribed, however, held that the procedure of appointments described in the G.R. dated 23/06/2017 was arbitrary. It would be apposite to extract the operative part of the Judgment dated 21/11/2018 passed in Writ Petition No. 5059/2017.
19. In view of the Judgment dated 21/11/2018, the State Government, came up with G.R. dated 07/02/2019 prescribing revised or modified procedure for selection and appointment in schools/junior colleges through the Pavitra Portal. For the issues, as involved in the present matter it would not be necessary to consider the provisions of the said G.R. elaborately.
20. Rule 9(2-A) of the MEPS Rules, 1981 reads as follows:
21. The records of the present case bears out that one of the objection raised by the Respondent No. 3 to the proposal submitted by the Petitioner No. 2, is to the publication of the advertisement by the Petitioner No. 2. A perusal of the advertisement dated 05/06/2022 (at Exh. C) indicates that the same is in the nature of walk-in-interview, wherein the candidates were called upon for interview between 8 a.m to 12.30 p.m. on 20/06/2022. There are no conditions set out in the advertisement with regards to the eligibility criteria, etc.
22. Further, the said advertisement dated 05/06/2022, has been published in a fortnightly newspaper known as “Bharatiya Nagrik”. It would not be out of context to mention here that the Petitioners have not produced the entire newspaper i.e. Pakshik “Bharatiya Nagrik” so as to consider the nature of the said publication. The advertisement at Exhibit C page 25, as produced by the Petitioners is referred to herein above. Be that as it may, the said newspaper appears to be a fortnightly publication going by the reference “Pakshik”, as made on the document at Exhibit C page 25 of the paper book.
23. The circulation, nature of circulation of the said newspaper is questioned by Ms. Bhende, learned AGP, who submits that the said newspaper does not appear to be widely circulated and at any rate the said new paper apparently is a fortnightly circulation, which is far from short in compliance with the requirements of Rule 9(2-A) of the MEPS Rules.
24. We find that despite Rule 9(2-A) of the MEPS Rules mandating advertisement of vacancy for the post of teachers to be published in local newspapers having wide circulation in the region, the Petitioner No. 2 has not complied with the said requirement. Publication of the advertisement in the fortnightly newspaper i.e. “Bharatiya Nagrik” at Exh.C, would not be in compliance with the said mandate of Rule 9(2-A) of the MEPS Rules, 1981. For the said reasons, we find that the advertisement published by the Petitioner No. 2 in the present case in the fortnightly (Pakshik) newspaper “Bharatiya Nagrik” does not meet the requirements of the law and thus would be an eye wash.
25. This Court in the case of Prakash Daulat Patil v/s. The State of Maharashtra & Ors. (Writ Petition No. 12826 of 2023) after referring to a similar situation wherein the advertisement published by the Petitioner therein being found to be defective, in the context of the said advertisement being published in the weekly newspaper, concluded that the said advertisement did not meet with the mandatory requirement of Rule 9(2-A) of the MEPS Rules, 1981.
26. The Division Bench of this Court in the case of Pravin Bhodhu Kasbe v/s. State of Maharashtra & Ors. (WP No. 3142 of 2020), of which one of us was a member (Ravindra V. Ghuge, J) after having found that the advertisement for filling the post not being published in newspaper that would be required in the terms of law, thus defective, held the entire recruitment to be suspicious and an eye wash. In the said judgment delivered on 03/08/2021, this Court in paragraph-10, issued the following directions to the Principal Secretary, Department of School Education, State of Maharashtra: “10. In view of the above, this petition is dismissed. However, we find it appropriate to issue certain directions to the Principal Secretary, Department of School Education, State of Maharashtra as under:
(i) The Government Resolution dated 23.06.2017 shall be scrupulously followed without any exception.
(ii) Rule 9 (2A) and (2B) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981, by which amendment has been introduced pursuant to the judgment in P.I.L. dated 24.06.2015, mandating the publication of advertisement, besides the Pavitra Portal, in two widely circulated newspapers, out of which, one should be a local newspaper having wide circulation in the region, should be strictly implemented.
(iii) All Education Officers in the State of Maharashtra and all concerned authorities shall be directed by the department of School Education that they shall scrupulously follow the Government Resolution dated 23.06.2017 and Rule 9 (2A) and (2B) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 and no appointment in violation of any of these provisions shall be approved.
(iv) The State Government should also intimate the authorities that any person guilty of such violation would be subjected to strict disciplinary action. So also, action be initiated against such Managements, who flout these rules and the Government Resolution.
(v) The Chief Executive Officer, Zilla Parishad, Nanded is directed to initiate an inquiry by appointing a Senior Officer from the Education Department, to trace out as to who was the person who has signed on the three applications filed by the Management purportedly with the Education Officer's Office (Primary), Zilla Parishad, Nanded on 03.07.2017, 01.08.2017 and 01.09.2017 and initiate appropriate disciplinary action, if the person who has signed in acknowledgment turns out to be an employee of the Zilla Parishad.”
27. Ms. Bhende learned AGP contends that the advertisement issued by the Petitioner No. 2 would be hit by the requirement of the G.R. dated 10/06/2022, though we may agree with Mr. Bandiwadekar, learned Senior Advocate for the Petitioners that the said G.R. dated 10/06/2022 would not apply to the case of the Petitioner as the advertisement is dated 05/06/2022, i.e. prior to the G.R. dated 10/06/2022, however, we find that the advertisement dated 05/06/2022 is bad in law for non-compliance of the mandatory requirements of Rule 9(2-A) of MEPS Rules. This is independent of the observations/directions as contained in paragraph 10(ii) of the Judgment of this Court in the case of Pravin Bodhu Kasbe (supra).
28. This Court in the case of Shreeya Nitin Sawant & Anr. V/s. State of Maharashtra (WP No. 11093 of 2023) after taking note of the submission made in the said Petition and upon perusing the Judgment dated 03/07/2023 delivered by this Court in Writ Petition No. 1423 of 2021 (Rajan Sahadeo Ratul & Anr. V/s. The State of Maharashtra) observed that the pattern followed by the Managements, as also the conduct of the Education Officer in such matters, is an attempt to bypass the requirements/provisions of the MEPS Act and Rules. This Court in the said order has referred to the pattern followed by the Management/Education Officer in the matters of selection / appointment of teachers, which for the sake of convenience is transcribed herein under: “2. This pattern is as follows:- (a) Management informs the Education Officer that there are vacancies and the vacancies have to be filled in. (b) The Education Officer is requested to grant permission to fill up such vacancies.
(c) The Education Officer conspicuously remains silent.
(d) When the Management sends a reminder to the
Education Officer, again the Education Officer conspicuously remains silent. (e) Thereafter, the Management writes to the Education Officer, informing the latter that the Management desires to proceed to fill up the posts by publishing an advertisement. Yet the Education Officer remains conspicuously silent. (f) Thereafter, the Management publishes the advertisement in such newspapers or weekly or a fortnightly, which hardly has any circulation, like for example, Dainik Deshodhadi, Dainik Pol Khol, Katraj Bhogdyatil Kahani, Pakshik Bhartiya Nagrik and, as like in the present case, Dainik Shri Rann Zungar. (g) None of these newspapers are approved by the State Government vide their various Government Resolutions, the latest being 10th June, 2022. (h) Thereafter, the Management appoints the candidate.
(i) The Education Officer then completes the formality of refusing the approval.
(j) As expected, the Management and the appointee approach the High Court as the Petitioners in a Writ Petition. (k) We have always considered the hardships in favour of such appointees and we have granted approvals.”
29. On the basis of the said observations in Writ Petition No. 11093/2023, this Court has directed the addition of the Director of Education, State of Maharashtra as Respondent in the said Writ Petition No. 11093/2023 and has called upon the said Respondent to file an affidavit. Facts of the present case, indicate a similar, if not identical pattern, followed by the Petitioner No. 2.
30. With reference to the submissions/contention of Mr. Narendra V. Bandiwadekar, learned Senior Counsel for the Petitioners with respect to the other grounds in the impugned order, relied by the Respondent No. 3 to reject the proposal dated 20/08/2022 of the Petitioner No. 2, we are of the opinion that the defect in the issuance of the advertisement as pointed out herein above goes to the root of the selection process. We find that, for want of mandatory compliance of Rule 9(2-A) of the MEPS Rules, the purpose i.e. to provide equal opportunity to all eligible candidates to participate for appointment in public employment, stood defeated. Thus, vacancy against which the Petitioner No. 1 is said to have been appointed not being widely advertised, that itself would be violative of Article 16 of the Constitution of India, which a fundamental right. The advertisement issued by the Petitioner No.2 is nothing but an eye wash. Once it is found that the issuance of the advertisement is not as per the mandatory requirement of Rule 9(2- A) of MEPS Rules, the other contentions as raised by the Petitioners would pale into insignificance.
31. The advertisement dated 05/06/2022 (at Exh C) is hereby held to be bad in law. For the reason recorded herein above we do not find any infirmity in the impugned order. The Writ Petition is without merits and as such is liable to be dismissed, which accordingly, is dismissed. Rule is discharged.
32. There shall be no order as to costs. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)