Mrunal Mandar Joshi v. State of Maharashtra

1. Rule. Rule is made returnable forthwith. Heard finally with the consent of parties.

2. This is a second round of litigation. An Assistant Teacher is compelled to run from pillar to post to seek confirmation of her services as a full-time teacher and spend time in litigation, which time and effort would be better spent in the classroom with her students.

3. In the earlier proceedings, this Court had set aside the order passed by the Respondent-Education Department, rejecting approval to the appointment of the Petitioner as a full-time teacher from the time of her appointment as such and had directed the Department to decide the proposal de novo, allowing the Management to produce documents required by it. The Petitioner and the Management produced necessary documents substantiating their claims. Nevertheless, the Department maintained the order of refusal. It is this order which the Petitioner assails in the present proceedings.

4. The Petitioner is a teacher employed in the 5th Respondent- School run by the 4th Respondent-Management. The Respondents No. 2 and 3 are the Director and Deputy Director of Education of the 1st Respondent- State respectively.

5. A post of a full time Chemistry Teacher fell vacant on the promotion of one Mr Pardeshi to the post of Assistant Headmaster. A post of a part-time Shikshan Sevak was created to bear the workload of a Chemistry Teacher. The Petitioner was appointed on the post following the due selection procedure. Her services were approved by the Respondent, Department on 30th December 2014 after completion of her probation period.

6. Mr Pardeshi retired on 31st May 2016 and the seniormost teacher took over as Assistant Headmaster. A vacancy was thus created for the post of a full-time Chemistry Teacher. The Petitioner being eligible for the post was appointed as full-time Chemistry Teacher, a resolution was passed by the Management and the proposal was sent for approval to the Education Department. The Respondent Department rejected the approval on grounds that the resolution was passed by the Management two years after the Petitioner’s appointment on the full time post, the Management had not maintained the roster nor had it been verified, and in view of a backlog of reserved category namely, VJ-NT, no vacancy was available in the open category.

7. The Petitioner filed a Writ Petition No. 3231 of 2019 in this Court. The Respondent-Department filed its reply and by judgement dated 13th April 2022 the rejection order was set aside with directions to the Department to decide the proposal afresh after allowing the Petitioner and the Management to produce the verified roster for the relevant years and other documents.

8. The Management produced the relevant documents including the verified roster etc. Nonetheless, the Department was reluctant to grant approval and by order dated 24th November 2022, rejected the proposal on identical grounds relied upon in the earlier proceeding. This is the impugned order.

9. Mr Mihir Desai, Learned Senior Advocate appearing for the Petitioner, has drawn our attention to the observations in the judgement dated 13th April 2022. The judgment of a Division Bench comprising of S.B. Shukre, J. and G.A. Sanap, J. clearly records that there was no open category post available on 6th February 2019 when the roster was checked and there was a backlog of two posts. However, the Petitioner was appointed on the full-time post on 15th June 2016 and hence the roster for the previous years was required to be verified. The Management concedes that they had not produced the roster of the relevant years before the Department and hence the earlier proposal was rejected. The Management thus sought opportunity to produce the verified roster for relevant years which clearly indicated availability of a post in the open category.

10. Mr Desai further points out that for the year 2016, seven posts were vacant including one post in the open category. He says that the teacher who had superannuated was also from the open category and hence the Petitioner's appointment on that post is perfectly legal. He thus assails the rejection order as being arbitrary and passed without application of mind.

11. Mr Bandiwadekar, Learned Senior Advocate appearing for the Management, supports the submissions of the Petitioner. The documents relating to the roster of the relevant years are on record.

12. Mr Walimbe learned AGP appears for the State and makes a valiant attempt to justify the impugned order. His reasons for the same are firstly, the appointment was made without verifying the roster and secondly, the provisions of the MEPS Act regarding filling up backlog vacancies are contravened by the Management.

13. We have perused the judgment in the earlier round of litigation. It is quite clear that the grounds canvassed by the Respondent-Department in these proceedings are identical to those agitated by them in the first round of litigation between the parties. Pursuant to the earlier judgement of 13th April 2022, the Department was required to only verify the roster for the relevant period in which the Petitioner was appointed in the full time post, i.e., 2015–16, 2016–17 and 2017–18. The documents placed on record in the present proceedings separately by the Petitioner and the Management clearly indicate that the roster of the teaching cadre in the 5th Respondent School as on 19th July 2016 was inspected, verified and certified by the Education Officer, Zilla Parishad, Thane on 27th July 2016. The extract of the roster clearly shows that in the Academic Year 2016–17, there were 23 posts available in the open category, out of which only 16 posts were filled, leaving a deficit of seven posts in the open category. During the period 2016–17 and 2017–18, there does not appear to be any backlog of reserved posts.

14. Mr Desai also relies upon the Government Resolutions (“GR”) dated 31st January 2001 and 7th September 2017 which permit upgradation of a part-time teacher and provide for preference to be given for appointment on the full-time post for the same subject, once the said post fell vacant. The Petitioner is thus correctly upgraded to the full-time post. It is true that the resolution recording the decision of the Management confirming the appointment of the Petitioner on the full-time post was required to be passed immediately following the appointment but was not done. The appointment of the Petitioner is of 15th June 2016 and the resolution was passed on 31st March 2018, i.e., after a period of two years. The Department points out this delay to buttress their refusal in sanctioning the approval.

15. We have seen the resolution and find that the resolution itself records the appointment and in fact confirms the same with retrospective effect.