Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.988 OF 2018
Shri. Charudatta Ramchandra Bagadi, Age: 39 Years, Occupation : Nil, Residing at Post Mangaon, Tal.: Chandgad, District : Kolhapur. … Petitioner
JUDGMENT
1. The Secretary, Shetkari Shikshan Mandal, Dholgarwadi, Taluka Chandgad, District: Kolhapur.
2. The Head Master, Bramhaling Vidyalaya Hajgoli, Taluka: Chandgad, District: Kolhapur.
3. The Education Officer (Secondary), Zilla Parishad, Kolhapur at Kolhapur, District: Kolhapur. …Respondents Mr. Prashant Bhavake, for the Petitioner in WP/988/2018. Mr. Satyajeet A. Rajeshirke a/w Mr. Rahul B. Vijaymane for Respondent Nos.[1] and 2. Smt. V.S. Nimbalkar, AGP for Respondent-State. Mr. Utkarsha Desai i/b. Umesh M. Pawar for the Applicant in IA/358/2022. CORAM: MADHAV J. JAMDAR, J. DATE: 2nd DECEMBER, 2022 P.C.:
1. By the present Petition filed under Article 227 of the Constitution of India, the Petitioner – original Appellant is challenging the legality and validity of judgment and order dated 7th MAHENDRA WARGAONKAR April 2017 passed by the learned Presiding Officer, School Tribunal, Kolhapur in Appeal No.99 of 2016. In said Appeal No.99 of 2016 filed under section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short “the M.E.P.S. Act”/“said Act”), the order of termination dated 18th October 2016 passed by the Respondent No.2 was challenged. Respondent No.1 is the Educational institution registered under the Bombay Public Trust Act, 1950 and Society Registration Act, 1860. Respondent No.1 established Respondent No.2 aided school viz. Bramhaling Vidyalaya Hajgoli, Tal. Chandgad, District Kolhapur. Respondent No.3 is the Educational Officer, (Secondary), Zilla Parishad, Kolhapur who is the sanctioning authority and has the control over the secondary schools in the District.
2. By the impugned order dated 7th April 2017 passed by the learned Presiding Officer, School Tribunal, Kolhapur the said Appeal No.99 of 2016 was partly allowed. The prayer for setting aside order of termination dated 18th October 2016 and for reinstatement with back-wages was rejected. However, the Respondent No.1 was directed as per section 11(2)(e) of M.E.P.S. Act to pay as compensation to the Petitioner full salary of six months which was lastly paid to him. It was further directed that the Petitioner shall have preferential right for the post when there will be clear permanent vacancy for selection post.
3. I have heard extensively Mr.Bhavake, learned counsel appearing for the Petitioner, Mr. Rajeshirke, learned counsel appearing for the Respondent Nos.[1] and 2, Ms. Nimbalkar, learned AGP for the Respondent No.3 and Mr. Umesh Pawar, learned counsel for the Applicant in IA No.358 of 2022.
4. Mr. Bhavake submitted that the learned Tribunal failed to take into consideration the provisions of M.E.P.S. Act and Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short “M.E.P.S. Rules”/“said Rules”). He submitted that the Petitioner was appointed by following the due process of selection w.e.f. 15th June 2012 as Shikshan Sevak (Assistant Teacher Probationary). He successfully completed his probationary period of three years and became deemed permanent in his service as per Section 5(2A) of the said Act. The Petitioner completed his probationary period on 14th June 2015 and is confirmed in service as Assistant Teacher in regular pay-scale w.e.f. 15th June 2015 and the proposal to that effect is also submitted to the Education Officer. However, by the said termination order dated 18th October 2016, his services were terminated on the ground that there is possibility that the department would send surplus teacher in the school. He submitted that in the appeal before the Tribunal the same was proceeded against the Respondent No.3 ex-parte and in the present Petition, Respondent No.3 has filed affidavit. However, it is not stated that surplus teacher was available for absorption on the date of appointment of the Petitioner. He submitted that the Petitioner has become deemed permanent in view of section 5(2A) of M.E.P.S. Act and therefore, his services cannot be terminated without following due procedure as provided under Rules 28, 33, 36 and 37 of the M.E.P. S. Rules. He also relied on section 4(6) of the M.E.P.S. Act. His main contention is that services of the Petitioner were terminated without following due process of law as provided under the M.E.P.S. Act and M.E.P.S. Rules and therefore, the said termination order is illegal. According to him, the Petitioner has been selected by conducting regular selection process and learned School Tribunal has recorded finding confirming the same. He submitted that once the learned Tribunal records the finding that the Petitioner was appointed by following regular selection process, his services cannot be terminated without following the due procedure of law.
5. He submitted that the learned Tribunal while relying on the Government Resolution dated 2nd May 2012 failed to appreciate that the said GR has not imposed blanket ban on recruitment. The said GR only says that no fresh Teachers and non-teaching staff shall be appointed unless surplus teachers are absorbed 100%. He pointed out G.R. dated 13th April 2011 by which the State Government granted permission to fill up backlog of all reserved category posts and thereafter, vide further GRs dated 2nd August, 2011, 10th April, 2012 and 21st October, 2013 from time to time extension was granted for the recruitment of the reserved posts. He submitted that this Court, by taking into consideration the aforesaid Government Resolutions observed that the ban/restrictions imposed vide G.R. dated 2nd May, 2012 are not at all applicable to the appointments made on the reserved category posts. He relied on three judgments of this Court to substantiate this contention:-
(i) Ashok Nilkanth Dhale V/s. The State of
(ii) Sou. Revati Kusha Wagh and Anr. Vs.
(iii) Smt. Munoli Rajashri Karabasappa Vs.
6. He submitted that M.E.P.S. Act and M.E.P.S. Rules do not 1 2016 (5) Mh.L.J.742 2 Civil Writ Petition No.10580 of 2015 3 Civil Writ Petition No.8587 of 2016 contemplate taking prior permission for issuing advertisement. He submitted that the Petitioner was appointed on clear, vacant and permanent post which became vacant due to retirement of the Assistant teacher Shri. Balkrishna Ramchandra Desai and therefore, the services of the Petitioner which were terminated without following the due process, is ex-facie, wrong and illegal.
7. He submitted that the learned School Tribunal failed to take into consideration that the legality of the appointment order and approval to such appointment are totally different aspects. The order of approval to the appointment of employee covered under the M.E.P.S. Act only confers right on the Management to claim salary of such approved employee from the grant-in-aid provided by the Government and therefore, requirements to be fulfilled to get approval are not at all applicable for deciding legality of the appointment. He relied on Full Bench Judgment of this Court reported in the case of St. Ulai High School & Anr. V/s..
8. He submitted that it is the principal responsibility of the Management to pay salary to their employees and grant-in-aid in the form of salary is the only facility provided by the Government to the Management and the School. He thus, submitted that the procedure of approval has nothing to do with the legality of the appointment and the employee who has attained deemed permanency as per section 5(2A) of the M.E.P.S. Act cannot be terminated without following the due procedure under the said Act. He submitted that it is the duty of the Management to see that the post is filled by getting the roster approved by the B.C.Cell. He submitted that the advertisement was issued and pursuant to the advertisement, he has
4. 2007(1) Mh.L.J. 597 applied for being appointed to the post of Assistant Teacher and he was selected after conducting interviews. Therefore, the learned Tribunal erred in holding that as the advertisement and roster was not approved from B.C. Cell, the Petitioner will not get benefit of reinstatement. He submitted that at the time of deciding the approval, the Education Officer should verify roster and the category of the concerned employee. He submitted that the Petitioner came to be appointed from OBC category and it is not the case of the Respondent that surplus teacher of OBC category was available. He submitted that as per section 5(1) of the M.E.P.S. Act, duty has been cast on the Management to ascertain the availability of surplus Teachers for absorption. He submitted that non-compliance with the said requirement by the management will not affect the right of the Petitioner who has been appointed as Teacher after conducting the regular appointment process. He submitted that it is not the case of the Respondents that suitable surplus teacher of Hindi subject belonging to OBC category was available on the date of the public advertisement and in spite of the same, the Petitioner was appointed. He submitted that this Court by order dated 26th September 2018 directed the Respondents not to fill up the vacancies, if any and if the vacancies are filled then the same would be subject to the result of this Writ Petition and therefore, even as of today, the Petitioner’s post is vacant. He therefore, submitted that the Writ Petition be allowed.
9. On the other hand, it is the submission of Mr. Rajeshirke, learned counsel appearing for the Respondent Nos. 1 and 2 that as per various provisions of M.E.P.S. Act and M.E.P.S. Rules, it is necessary that prior permission of the Education Officer should be taken before issuing an advertisement for filing any post. It is mandatory to ascertain from the Education Officer about the position of surplus Teachers available, the post of such particular categories and permission from the Education Officer for public advertisement. He submitted that this Court in the judgment in the matter of Tanaji Madhukar Barbade Vs. State of Maharashtra[5] has held that Management is not only obliged to issue advertisement in at least one newspaper, but has also to notify the vacancies to various Agencies (viz. Employment Exchange or the District Social Welfare Officer etc.).
10. He also relied on the following decisions of this Court:- Priyadarshani Education Trust and Ors. Vs. Ratis (Rafia) Bano Abdul Rasheed & Ors.[6] Siddheshwar Shikshan Sanstha Dongarsoni & Anr. Vs. State of Maharashtra[7] and particularly, paragraph 111 to 115 of the same. Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal[8] Harlal Harchand Pardeshi Vs. State of Maharashtra[9]
11. He also relied on the judgment of the Supreme Court in the matter of Ramesh Gajendra Jadhav Vs. Secretary, S.G.S.P. Mandal and Ors.10
12. He also relied on the Government Resolution dated 6th February 2012 and circular dated 19th June 1995. His main contention is that the entire appointment process shown to be conducted by the Respondent Nos. 1 and 2 is fraudulent.
13. Mr. Umesh Pawar, learned Advocate appearing for the applicant submitted that the applicant is an intervenor and he be 5 2010 (6) Mh.L.J.901 6 2007 (6) Mh.L.J. 667 7 (2016) 4 Bom. C.R. 29 8 1997 (3) Mh.L.J. 697 9 2001 (1) Mh.L.J. 859 impleaded as party Respondent No.4 in the above Petition and he be heard. He submitted that the applicant is supporting the case of the Petitioner.
14. Before considering the rival contentions, it is necessary to set out factual position:i. It is admitted position that the Petitioner is B.A., B.Ed. and belongs to Hindu Bengali Caste which is recognised as OBC. ii. Initially, the Petitioner was appointed on leave vacancy at the Respondent No.2 - School for the period w.e.f. 2nd December 2011 to 30th April 2012. The said appointment on leave vacancy was approved by the Respondent No.3 – Education Officer, vide order dated 21st June 2012. iii. One Assistant Teacher viz. Shri Balkrishna R. Desai retired on 31st May 2012 by way of superannuation and therefore, there was vacancy of Shikshan Sevak (Assistant Teacher- Probationary) in the Respondent No.2-Secondary School. iv. Respondent No.1 issued an advertisement in daily newspaper ‘Tarun Bharat’ dated 13th June 2012 to fill up the said vacancy. As per the said advertisement, said post was required to be filled up from SC/OBC/ST/NT category for Hindi subject from the candidates having the qualification as B.A., B.Ed. As per the said advertisement, interviews were scheduled on 14th
2012. v. The Petitioner applied for the said post and remained present for interview on 14th June, 2012. The Petitioner secured highest marks in the interview and accordingly, the Petitioner came to be selected. vi. On 14th June 2012, the Petitioner was selected for the said post of ‘Shikshan Sevak’ and thereafter, appointment order in favour of Petitioner was issued on 15th June 2012 by the Respondent No.1 thereby appointing the Petitioner w.e.f. 15th June 2012 on probation period of three years. vii.The Petitioner thereafter worked continuously for more than 4 years and the services of the Petitioner came to be terminated suddenly on 18th October 2016.
15. It is the main contention of Mr. Rajeshirke, learned counsel of the Respondent Nos. 1 and 2 that this entire process of appointment is farce and the same has been conducted in such a manner to make show that the Petitioner has been duly appointed in a regular selection process. It is his contention that it was first decided that the Petitioner would be appointed in the post of said Shikshan Sevak and thereafter, farce of issuing public advertisement, conducting interviews etc. was made. To substantiate this contention, he has relied on the Resolution of the School Committee of the Respondent No.2 – School dated 1st June 2012. The said Resolution reads as under:- ”kkys; Ldwy dfeVh Bjko czEgfyax fo|ky; gktxksGh rk- panxM;k “kkys; Ldwy dfeVhph feVhax fnukad 01-06-2012 jksth “kkysP;k dk;kZy;kr ?ks.;kr vkyh;k lHksph Bjkokph uDdy [kkyhyizek.ks % fo’k; ua 2 f”k{kd use.kwd dj.ksckcr Bjko ua 2 vkeP;k czEgfyax fo|ky; gktxksGh rk- panxM;k gk;- e/khy lgk f”k{kd Jh- nslkbZ ckGd`’.k jkepanz ch- dkWe- ch- ih-,M- fo’k; fganh gs fnukad 31-05-2012 jksth lsokfuo`Rr >kys vkgsr rs in fjDr >kys vlwu R;k inklkBh Jh- ckxMh pk#nRr jkepanz fo’k; fganh;kaph fnukad 15-06-2012 iklwu lgkf”k{kd Eg.kwu use.kwd dj.;kr;koh lwpd & Jh- ikVhy ek#rh jkek vuqeksnd & Jh- ejek.kk xkoMq ikVhy Bjko lokZuqers ikl
16. The said resolution records that Assistant Teacher Balkrishna R. Desai, B.Com. B.Ed. subject Hindi has retired on 31st May 2012 and therefore, the said post has become vacant and the present Petitioner would be appointed as Assistant Teacher in the said vacant post w.e.f. 15th June 2012.
17. Mr. Rajeshirke further submitted that although as per circular dated 19th June 1995 issued by the Director of Education of State of Maharashtra, extensive guidelines are framed, the same are not followed.
18. In view of above submissions and factual position on record, before proceeding further it will have to be decided whether the Petitioner was appointed in the said post of Assistant Teacher after following the due process of law or otherwise. With respect to this aspect, it is the submission of Mr. Bhavake that the Petitioner was appointed after following due process of selection w.e.f. 15th
2012. To substantiate this contention, he has inter- alia, relied on the findings recorded by the learned School Tribunal. The learned School Tribunal has recorded the following findings in paragraph 30:- “30) As already found that there was no fault of Appellant in getting the appointment and he actually worked on the post given to him for about 4 years. The selection process was also correctly held. In fact Respondent No.1 & 2 was duty bound to take appropriate actions at the appropriate stage before recruitment. There was no prior note for advertisement obtained for recruitment in the case. The roster approved by the B.C. Cell Pune was also not produced. The Respondent Management was legally bound to consider due procedure for recruitment as per G.R. Certainly for inaction of Respondent No.1 & 2 Appellant has to suffer.”
19. It is to be noted that the learned Tribunal has also recorded the following findings: “26) Even if it is held that there was vacancy as per above staff approval 2012-13, appointment is not legal unless due procedure as above G.R. and case law is followed. In present case prior permission or note is not produced and it doesn’t appear to have obtained. As per the case law when there is prior approval publish advertisement by Department then certainly Education Department cannot deny existence of vacancies and raise issue of absorption of surplus teachers. Secondly to prove the backlog from the reserved category, the roster approved by the B.C. Cell Pune should have been filed. Hence though there was vacancy, and appointment was through selection process, still directing reinstatement is not proper in such cases. However considering G.R.s which are for completing backlog of reserved category posts, I hold some conditional order should be passed.”
20. At this stage, it is to be noted that the Division Bench of this Court in the decision in the matter of Anna Manikrao Pethe Vs. Presiding Officer, School Tribunal (supra), has held that in an application under section 9 of the M.E.P.S. Act filed before the School Tribunal by the Teachers challenging any act of termination on the part of the management, it will be necessary for the Tribunal to frame and decide following three preliminary issues:i. Whether the school was a recognised school as defined under the M.E.P.S. Act, ii. Whether the appointment of the concerned teacher was made as per section 5 of the M.E.P.S. Act and the Rules thereunder; and iii. Whether such an appointment has been approved by the Education Officer in pursuance of the provisions of the Act as well as the Rules framed thereunder including the Government Resolutions issued from time to time regarding reservations etc. It is further held that the above-referred preliminary points are required to be framed and decided before the appeal proceeds on merits. It has been held that in case the findings on any preliminary issues are in the negative, the appeal must fail, so far as the relief of reinstatement/ continuation in service is concerned.
21. Mr. Prashant Bhavake, learned counsel appearing for the Petitioner has pointed out that the third criteria as set out in said Anna Manikrao Pethe’s case is no more the requirement as in Full Bench Judgment of this Court in the matter of St. Ulai High School & Anr. (supra), it has been held that the observations contained in the judgment of the Division Bench in the case of Anna Manikrao Pethe (supra), that the Appeal would not be maintainable at the behest of the Teacher whose appointment has not been approved does not reflect correct position of law. It has been held that neither the Act nor the Rules mandate approval of the Education Department as a condition precedent to a valid order of appointment. The question of approval relates to the disbursal of grant in aid and therefore, denial of approval cannot therefore, invalidate the order of appointment. For this purpose two conclusions recorded in said St. Ulai High School (supra), in paragraph 13(iii) and (iv) are relevant. The same are reproduced herein-below:
(iii) Neither the MEPS Act, 1977, nor the Rules framed thereunder mandate the grant of approval by the Education Officer as a condition precedent to a valid order of appointment. The requirement of approval which relates to the disbursal of grant in aid is a matter between the management and the State and want of approval will not invalidate an order of appointment;
(iv) The judgments of the Division Benches of this Court in
Anna Manikrao Pethe vs. Presiding Officer, and Shailaja Ashokrao Walse vs. State of Maharashtra (supra) to the extent that they hold that an appeal is not maintainable before the Tribunal at the behest of an employee whose appointment has not been approved do not reflect the correct position in law and are overruled;
22. Thus, all the learned counsel appearing for the parties are adidem that the Tribunal has to decide two aspects that whether the school was a recognised school as defined under the M.E.P.S. Act and the Rules thereunder and whether the appointment of the Petitioner was made as per Section 5 of the M.E.P.S. Act and the Rules thereunder. In this particular case, it is admitted position that the concerned school is a recognised school as defined under the M.E.P.S. Act. Therefore, the only question which requires consideration of this Court is whether the appointment of the Petitioner was made as per section 5 of the M.E.P.S. Act and the M.E.P. S. Rules thereunder.
23. For deciding whether the appointment of Petitioner was made as per section 5 of the M.E.P.S. Act and the relevant Rules of M.E.P.S. Rules, it is relevant to see section 5 of the M.E.P.S. Act, which reads as under: “5. Certain obligations of Management of private schools: (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill such vacancy: 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 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. (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 subsections (4) and (5), he shall, on completion of this probation period of two years, be deemed to have been conformed: Provided that, every person appointed as Assistant Teacher (probationary) shall be on probation for a period of three years. (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. (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.] (4) If the services of any probationer are terminated under sub-section (3) and he is reappointed by the Management in 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). (4A) Nothing in sub-sections (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). (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.” (Emphasis added)
24. Section 4 of M.E.P.S. Act lays down the terms and conditions of service of employees of private schools and therefore, the same is also relevant which reads as under: “4. Terms and conditions of service of employees of private schools: (1) Subject to the provisions of this section, the State Government may make rules providing for the minimum qualifications for recruitment (including its procedure), duties, pay, allowances, post-retirement and other benefits, and other conditions of service of employees of private schools and for reservation of adequate number of posts for members of the backward classes: Provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and post-retirement benefits and other monetary benefits of any employee in the employment of an existing private school on the appointed date shall be varied to the disadvantage of such employee by any such rules. (2) Every employee of a private school shall be governed by such code of conduct as may be prescribed. On the violation of any provision of such code of conduct, the employee shall be liable to disciplinary action after conducting an enquiry in such manner as may be prescribed. (3) If the scales of pay and allowances, post-retirement and other benefits of the employees of any private school are less favourable than those provided by the rules made under subsection (1), the Director shall direct in writing the Management of such school to bring the same upto the level provided by the said rules, within such period or extended period as may be specified by him. (4) Failure to comply with any direction given by the Director in pursuance of sub-section (3) may result in the recognition of the school concerned being withdrawn, provided that the recognition shall not be withdrawn, provided that the recognition shall not be withdrawn unless the Management of the school concerned has been given a reasonable opportunity of being heard. (5) No employee working in a private school shall work in any coaching class. If any employee, in contravention of this provision, works in any coaching class, his services shall be liable to be terminated by the Management, provided that no such order of termination shall be issued unless the employee concerned has been given a reasonable opportunity of being heard. (6) No employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the Management, except in accordance with the provisions of this Act and the rules made in that behalf.”
25. Rule 9 of the M.E.P.S. Rules is also relevant. However, the Petitioner has been appointed on 15th June 2012 and the said Rule 9 has been extensively amended in 2017 and 2020. We are concerned with unamended Rule and therefore, the relevant portion of unamended Rule 9 is set out herein-below:- “9. Appointment of staff: (1) The teaching staff of the school shall be adequate having regard to the number of classes in the school and the curriculum including alternative courses provided and the optional subjects taught therein. (2) Appointments of teaching staff (other than the Head and Assistant Head) and those of non-teaching staff in a school shall be made by the School Committee; Provided that, appointments in leave vacancies of a short duration not exceeding three months, may be made by the Head, if so authorised by the School Committee. (3) Unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or nonteaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub-rule (7) to state their castes in their applications. (4) The age limit for appointment to any post in a school shall be as follows, namely: (a) for an appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than 25 years of age, and in the case of candidate belonging to Backward Classes he shall not be more than 30 years of age: Provided that, upper age-limit may be relaxed in case of women, ex-servicemen and persons having previous experience with the previous permission of the Deputy Director. (b) for an appointment to be made to any post in any school other than primary school, a candidate shall not be below age age of 18 years. (5) A letter of appointment order in the Form in Schedule “D” shall be issued to a candidate appointed to the post. A receipt in token of having received the appointment order shall be obtained from the candidate appointed. (6) Every employee shall within three months of his appointment, undergo medical examination by a registered medical practitioner named, if any, by the Management or otherwise by any registered medical practitioner named, if any, by the Management or otherwise by any registered medical practitioner. The expenses of medical examination shall be borne by the Management. The appointment shall be conditional pending certificate that he is free from any communicable disease and that he is physically fit to be so appointed. (7) The Management shall reserve 34 per cent of the total number of posts of the teaching as well as non-teaching staff for the members of the Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes, Nomadic Tribes and other Backward Classes as follows, namely:- (a) Scheduled Castes and Scheduled Castes converts to 13 per cent Buddhism. (b) Scheduled Tribes including those living outside the 7 per cent specified areas.
(c) Denotified Tribes and Nomadic Tribes 4 per cent
(d) Other Backward Classes 10 per cent
(8) For the purpose of filing up the vacancies reserved under sub-rule(7) the management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the Employment Exchange of the District and to the District Social Welfare Officer requisitioning the names of qualified personnel, if any, registered with them. If it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the advertisement or whose names are recommended by the Employment Exchange or the District Social Welfare Officer or if no such names are recommended by the Employment Exchange or the District Social Welfare Officer within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9). (9) (a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule (7) and if no person from any of the categories is available, the post may be filed in temporarily on an year-to-year basis by a candidate not belonging to the Backward Classes. (b) In the case of a non-teaching post, if a person from the particular category of Backward Classes is not available, the Management shall make efforts with regular intervals to fill up the post within the period of five years and the post shall not be filled up during that period by appointing any other person who does not belong to the resepctive category of Backward Class. (10) (a) The management shall reserve 24 per cent of the total number of posts (or vacancies) of Heads and Assistant Heads for the members of Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomidic Tribes as follows, namely:-
(i) Scheduled Castes and Schduled Castes convert to 13
(ii) Scheduled Tribes including those living outside the 7
(iii) Denotified Tribes and Nomadic Tribes 4 per cent.
(b) In case it is not possible to fill in the post of a Head or Assistant Head for which a vacancy is reserved for a person belonging to the Castes and Tribes specified in clause (a), the post may be filled in by promoting a candidate from the other remaining categories in the order specified in clause (a), so however that the percentage of filling up such vacancies does not exceed the limit laid down for each such category. If candidates belonging to any of these categories are not available, then the vacancy or vacancies-
(i) of the Head may be filled in ny promoting any other teacher on the basis of seniority-cum-merit after obtaining previous approval of the Education Officer;
(ii) of the Assistant Head shall be kept unfilled for a period of three years unless such vacancy or vacancies could be filled in by promotion of any teachers belonging to such Castes or Tribes becoming available during that period. (11) The provisions of sub-rules (7), (8) and (10) shall not apply to a school having 10 or less than 10 posts (inclusive of both teaching and non-teaching on its establishment.
26. Mr. Rajeshirke, learned counsel appearing for the Respondent No.1 submitted that apart from section 4 and 5 of the said Act and Rule 9 of the said Rules, direction dated 19th June 1995 issued by Director of Education is also relevant as the said letter prescribes procedure for approval of staff and appointment of teaching and nonteaching employees. He submitted that the said letter prescribes procedure to be followed while making appointment of teaching and non-teaching employment and therefore, the said letter dated 19th June 1995 is also relevant. Mr. Bhavake, learned counsel appearing for the Petitioner submitted that the said letter is just administrative instructions issued by the Director of Education and it has no force of law.
27. The relevant portion of said letter dated 19th June 1995 reads as under:- “1.[2] Reserved post - While granting approval to appointments made on posts reserved as per 100/200 roaster, the entire above said requirement are mandatory.”
28. The said clause no.1.[2] states that the clauses mentioned in 1.[1] are also relevant. According to Mr. Rajeshirke, learned counsel apart from clause no. 1.[2] which is quoted hereinabove what is important is sub-clauses (7) and (8) of clause no. 1.[1] of the said letter dated 19th June 1995. The same reads as under:- “1.[1] Clear vacancy (General category) (7) For general category proper advertisement is given or not is to be verified from the advertisement paper For that following things are to be verified (a) Whether advertisement is published for the post which is to be filled (b) Whether advertisement provides sufficient time for making application (8) While calling candidates for interview it is expected that at least 15 days prior notice to be given.”
29. The Full Bench of this Court in the matter of Tanaji Madhukar Barbade (supra), had an occasion to consider sub-rule (3) of Rule 9. The relevant discussion is in paragraphs 16 and 17 read as under: “16. The State Government, as observed above, has framed Rules. In our opinion, sub-Rule 3 of Rule 9, is crucial. It reads as under: 9(3) Unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or a non-teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub-rule (7) to state their castes in their
17. Perusal of the above Rule shows that this Rule give a right to every eligible candidate to apply for any vacancy either for teaching or a non-teaching post in a private school. In order to make this right meaningful and effective, a corresponding duty will have to be read in the Management to give wide publicity to the fact that there is a vacancy in that school, so that every candidate who is eligible to apply can come to know of the existence of the vacancy and apply for the post. Without the Management making the existence of vacancy known, the right given by sub-Rule 3 of Rule 9 to every eligible candidate to apply will be meaningless. It is further to be seen that many private schools also receive grant-in-aid from the State Government and therefore salaries of the teaching and non-teaching staff in the Schools are paid from the public funds, and therefore considering the provisions of Article 14 of the Constitution as the salary of the teaching and non-teaching staff is to be paid from the public funds, there would be an obligation on the Management to advertise the vacancy. So far as the vacancies which are reserved for backward class are concerned, there is a specific provision made in sub- Rule 8 of Rule 9 reads as under: Sub-Rule(8) of Rule 9- For the purpose of filling up the vacancies reserved under sub-rule (7) the Management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the Employment Exchange of the District and to the District Social Welfare Officer (and to the associations or organisations of persons belonging to Backward Classes, by whatever names such associations or organisations are called, and which are recognised by Government for the purposes of this sub-rule) requisitioning the names of qualified personnel, if any, registered with them. If it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the advertisement or whose names are recommended by the Employment Exchange or the District Social Welfare Officer ( or such associations or organisations as aforesaid) or if no such names are recommended by the Employment Exchange or the District Social Welfare Officer (or such associations or organisation as aforesaid) within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9).” So far as reserved vacancies are concerned, thus, the Management is not only obliged to issue advertisement in at least one newspaper, but has also to notify vacancies to various agencies. In our opinion, therefore, permitting the Management to fill in the post without advertisement, though there is a clear provision made in the Act or the Rules, would be contrary to the scheme of the Act and the Rules. In the provision in Schedule "F", which we have quoted above, what is provided is preference. Preference does not mean exclusive right of consideration. It means right to be preferred, other thing being equal. The observations made by the Supreme Court in its judgment in the case of Sher Singh v/s. Union of India and ors, AIR 1984 SC 200 in relation to the provisions of Section 47 of the Motor Vehicles Act, in our opinion, are relevant.”
30. Mr. Rajeshirke has also relied on the judgment of this Court in the matter of Siddheshwar Shikshan Sanstha Dongarsoni & Anr. (supra). The learned Single Judge of this Court has held as follows:- “111. In my view, prior permission of the Education Officer before issuing an advertisement for making recruitment to any post either for open category or reserved category is mandatory and not directory. Such prior permission of the Education Officer before issuance of an advertisement is also required to be strictly followed in view of the Government Resolution dated 6th February 2012 which is in conformity with the provisions of Section 5(1) of MEPS Act. In my view obtaining prior permission of Education Officer before issuance of an advertisement made under Section 5(1) of the MEPS Act is not an empty formality. Admittedly, the respondent nos.11 and 12 had not acquired any prior permission from the Education Officer before issuing any advertisement in respect of various posts on which the respondent nos.[4] to 8 were appointed. In my view, the said appointments being in violation of Section 5(1) of the MEPS Act are thus illegal. The Education Officer could not have granted any approval to the appointments of the respondent nos.[4] to 8 made by the respondent nos.11 and 12 by overlooking the breach of the mandatory condition of obtaining prior permission from the Education Officer before issuance of any advertisement.
112. In so far as the submission of the learned senior counsel for the respondent nos.[4] to 8 and of the learned counsel for the respondent nos.11 and 12 that even if no prior permission of the Education Officer under Section 5(1) of the MEPS Act was obtained since there was no grievance made by the Education Officer even after five years of the appointments of the respondent nos.[4] to 8 made by the respondent nos.11 and 12 that though they were surplus employees, and were to be absorbed by the petitioner no.2 school were not absorbed is concerned, in my view, this submission of the learned counsel is contrary to Section 5(1) of the MEPS Act and the law laid down by the Full Bench of this Court in the case of Tanaji Madhukar Barbade (supra) and by the Division Bench of this Court in the case of Priyadarshini Education Trust (supra).
113. In my view, merely because the Education Officer did not raise any objection while granting approval to the appointments of the respondent nos.[4] to 8 on the ground that mandatory requirement of Section 5(1) of the MEPS Act was not followed and has overlooked the non-compliance of such mandatory provision, such approval granted by the Education Officer would not validate the illegal appointments made by the respondent nos.11 and 12. This Court in the case of Jaimala Bhaurao Ramteke (supra) has held that merely because an employee was continued in the employment by virtue of the interim order of the School Tribunal, she would not be entitled for compensation if her appointment is found illegal. It is held that the illegal appointment can not obtain the stature of legal appointment simply because it is challenged by the petitioner and not contested by the Education Officer. It is held that illegality has to be illegality for ever and it can, in no circumstances, be allowed to be converted into a legality even if some parties do not object, particularly, in the cases of appointments where prescribed procedure has to be followed because of some object and rationale behind it.
114. In my view, though the respondent no.3-Education Officer had granted approval to the appointments of the respondent nos.[4] to 8, the appointments of the respondent nos.[4] to 8 being illegal, such approval granted by the Education Officer will not validate such illegal appointment into a legal appointment for any purposes. The judgment of this Court in the case of Jaimala Bhaurao Ramteke (supra) squarely applies to the facts of this Case. I am respectfully bound by the said judgment.
115. In so far as the judgment of this Court in the case of Gopal & Others Vs. State of Maharashtra & Ors. (supra) relied upon by Mr. Desai, learned senior counsel for the respondent nos.[4] to 8 in support of his submission that the prior permission from the Education Officer was not mandatory before issuance of an advertisement is concerned, a perusal of the said judgment indicates that in the said judgment delivered by a Single Judge of this Court Section 5(1) of the MEPS Act is wrongly quoted. Be that as it may, the said judgment contrary to the judgment of the Full Bench of this Court in the case of Tanaji Madhukar Barbade and also is contrary to the judgment of the Division Bench of this Court in the case of Priyadarshini Education Trust (supra).”
31. Thus, to hold that the appointment of the concerned teacher is made as per section 5 of the M.E.P.S. Act and the Rules thereunder, the following requirements are mandatory:
(I) For the purpose of finding out the availability of a post of particular category, it is necessary that the School verifies the roster from Backward Class Cell in respect of the employees working in the institution.
(II) It should be verified from the Education Officer of Zilla
(III) As the post on which the Petitioner was working was a reserved category post, as held by the Full Bench of this Court in Tanaji Madhukar Barbade (supra), the management is not only obliged to issue advertisement in at least one newspaper but has also to notify vacancies to various agencies viz. Employment Exchange or the District Social Welfare Officer. The issuance of advertisement is held to be mandatory by the judgment in the case of Tanaji (supra), as it has been held that permitting the management to fill in post without advertisement, though there is a clear provision made in the Act or the Rules, would be contrary to the scheme of the Act and the Rules.
32. Mr. Rajeshirke, learned counsel appearing for the Respondent No.1 relied on the instructions dated 19th June 1995, the relevant portion of which is set out hereinabove. The said instructions also contemplate that the advertisement should give sufficient time for applying to the post and at least 15 days’ advance notice should be given to the candidates. Although, it is the contention of Mr. Bhavke that the said instructions are only administrative instructions and not having force of law, however the said instructions are in conformity with the relevant provisions of M.E.P.S. Act and M.E.P.S. Rules and they are in furtherance of said provisions. As set out hereinabove, Full Bench of this Court has held that sub-Rule 3 of Rule 9 gives a right to every eligible candidate to apply for any vacancy either for teaching or a non-teaching post in a private school. In order to make this right meaningful and effective, a corresponding duty will have to be read in the Management to give wide publicity to the fact that there is a vacancy in that school, so that every candidate who is eligible to apply can come to know of the existence of the vacancy and apply for the post. Without the Management making the existence of vacancy known, the right given by sub-Rule 3 of Rule 9 to every eligible candidate to apply will be meaningless. Thus, it is clear that issuance of advertisement is very important step in the recruitment procedure and the same is not empty formality. Thus, it is absolutely essential that sufficient time should be given to the prospective candidates to apply pursuant to the said advertisement and the advertisement should be given in local news paper having wide circulation. It is also important that sufficient notice should be given before conducting the interviews. Therefore, there is no substance in the contention raised by Mr. Bhavke.
33. Thus, it is important to see the factual position in the present case to verify whether appointment of Petitioner was made as per section 5 of the M.E.P.S. Act and the relevant Rules of M.E.P.S. Rules. The factual position on record in this case clearly show that the advertisement in the present case was issued on 13th June 2012 in the Ratnagiri Edition of newspaper ‘Tarun Bharat’. It is the contention of Mr. Rajeshirke that although the School is situated in Kolhapur District, the said advertisement was published in Ratnagiri Edition of ‘Tarun Bharat’. However, it is the contention of Mr. Bhavake that ‘Tarun Bharat’ is also available in Kolhapur and therefore, the said submission is not relevant. It has been already discussed that issuance of the advertisement is not empty formality and for the same to be meaningful, the same should be published in local newspaper having wide circulation and sufficient time should be given for submitting
34. However, it is required to be noted that as per the advertisement in public newspaper in ‘Tarun Bharat’ dated 13th 2012, the interviews were conducted on 14th June 2012. It is the contention of the Petitioner that about four persons have applied pursuant to the said public advertisement dated 13th June 2012 and all of them were interviewed on 14th June, 2012 and the Petitioner got highest marks and therefore, he was selected. It is further contention of the Petitioner that on 15th June, 2012 appointment order was issued in favour of the Petitioner. Although the appointment order is undated, in the appointment order, it is mentioned that the Petitioner is appointed as ‘Shikshan Sevak’ from 15th June, 2012 to 14th June, 2015. Accordingly, the Petitioner submitted his undertaking in the form of Annexure-C and joined the post on 15th June, 2012.
35. It is significant to note that the School Committee of the Respondent No.2 – School passed resolution on 1st June 2012 to appoint the Petitioner as Teacher of Hindi subject w.e.f. 15th
2012. Thus, the above factual position on record clearly supports the contention of Mr. Rajeshirke, learned counsel appearing for the Respondent No.1 that the entire appointment procedure is farce and only show is made of conducting a valid recruitment process and the said recruitment process is implemented only with the purpose of appointing Petitioner. There is substance in his submission that to make show on papers that valid appointment procedure is followed, advertisement was issued on 13th June 2012 in newspaper published in ‘Tarun Bharat’ at Ratnagiri although school is in the District Kolhapur. Although the advertisement is dated 13th June 2012, immediately on 14th June 2012 interviews were conducted. Thereafter, undated appointment order was issued w.e.f. 15th 2012 to 14th June 2015. The said actions of the Respondent No.1- Management and Respondent No.2-School are totally contrary to Section 5 of M.E.P.S. Act and Sub Rule 3 of Rule 9 of M.E.P.S. Rule as interpreted by the Full Bench of this Court in Tanaji Madhukar Barbade (supra). As held by this Court in Siddheshwar Shikshan Sanstha, Dongarsoni & Anr. (supra), prior permission of the Education Officer before issuing an advertisement for making recruitment to any post either for open category or reserved category is mandatory and not directory. Such prior permission of the Education Officer before issuance of an advertisement is also required to be strictly followed in view of the Government Resolution dated 6th February 2012 which is in conformity with the provisions of Section 5(1) of MEPS Act and Rule 9(3) of the M.E.P.S. Rules. Thus, it is clear that entire recruitment process by which the Petitioner was appointed is conducted without following the mandatory provisions of law and therefore, the same is totally illegal and it cannot be said that the appointment of the Petitioner is made as per Section 5 of the M.E.P.S. Act and the relevant M.E.P.S. Rules.
36. There is substance in the contention of Mr. Rajeshirke that the entire recruitment process is carried out for making show of appointing Petitioner in legal manner.
37. The School Committee of Respondent No.2 – School passed resolution on 1st June 2012 resolving to appoint the Petitioner w.e.f. 15th June 2012 as Teacher in Hindi subject and after resolution is passed on 1st June 2012, advertisement was issued on 13th June 2012 and interviews were conducted on 14th June 2012 and appointment order was issued on 15th June, 2012. It is the contention of Mr. Bhavake, learned counsel appearing for the Petitioner that for the mistakes committed by the Management, the Petitioner cannot be held responsible. However, as per the settled legal position, the Tribunal gets jurisdiction to grant the relief of reinstatement only after recording affirmative finding that appointment of the concerned Teacher is made as per section 5 of the M.E.P.S. Act and the M.E.P.S. Rules. The requirements of said M.E.P.S. Act and the said Rules as interpreted by various judgments of this Court clearly show that issuance of advertisement in local news paper having wide circulation and giving adequate time to apply and to conduct interviews is very important step in the recruitment process.
38. Apart from that, this Court, in the matter of Siddheshwar Shikshan Sanstha Dongarsoni & Anr. (supra), has held that prior permission of the Education Officer before issuing an advertisement for making recruitment to any post either for open category or reserved category is mandatory and not directory. It is further held that such prior permission of the Education Officer before issuance of an advertisement is also required to be strictly followed in view of the G.R. dated 6th February 2012 which is in conformity with the provisions of section 5(1) of the M.E.P.S. Act. It is further held that obtaining prior permission of the Education Officer before issuance of an advertisement made under section 5(1) of the M.E.P.S. Act is not an empty formality and the same is mandatory.
39. Mr. Bhavake, learned counsel appearing for the Petitioner has not pointed out any material to show that prior permission of Education Officer was obtained before issuance of such advertisement in daily newspaper ‘Tarun Bharat’ dated 13th
2012. Thus, in view of the above legal and factual position, it cannot be said that the appointment of Petitioner as Teacher of Hindi subject in Respondent No.2 – School is made as per section 5 of the M.E.P.S. Act and the relevant M.E.P.S. Rules.
40. It is the submission of Mr. Bhavake, learned counsel appearing for the Petitioner that restrictions imposed vide G.R. dated 2nd May 2012 by which blanket ban was imposed on recruitment is not applicable to the present case. To substantiate this contention, he has relied on three judgments viz.:
(i) Ashok Nilkanth Dhale (supra)
(ii) Sou. Revati Kusha Wagh (supra)
(iii) Smt. Munoli Rajashri Karabasappa (supra)
41. There cannot be any dispute about the said contention that the ban imposed vide G.R. dated 2nd May 2012 will not be applicable to the appointments made on the reserved category post. However, even to fill up the reserved category post above-referred mandatory requirements are required to be followed. As the factual position on record clearly shows that mandatory requirements as contemplated by said Act and said Rules are not followed, it cannot be said that the School Tribunal could have issued order of reinstatement of the Petitioner in service. The same is totally impermissible in view of the law laid down by this Court in the case of Anna Manikrao Pethe (supra) as approved by the Full Bench judgment in St. Ulai High School and Anr. (supra).
42. It is the contention of Mr. Bhavake, learned counsel appearing for the Petitioner that the learned School Tribunal had confused two separate and distinct issues viz. appointment and approval. Relying on the Full Bench judgment in the matter of St. Ulai High School (supra), it is the contention of Mr. Bhavake that if it is found that the appointment is made validly in accordance with section 5 of the M.E.P.S. Act and the relevant M.E.P.S. Rules, then the School Tribunal is duty bound to grant relief of reinstatement. However, in the present case, on the basis of the documents on record, it cannot be said that the appointment of the Petitioner is validly made in accordance with the section 5 of the M.E.P.S. Act and the relevant M.E.P.S. Rules.
43. The Hon’ble Supreme Court in the matter between Jai Singh and Ors. vs. Municipal Corporation of Delhi and Anr.11, has considered the scope of this Court’s power under Article 227 of the Constitution of India. The relevant paragraphs 15 and 16 are reproduced herein-below: “15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a `bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be
11. 2010(9) SCC 385 exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.”
44. On the touchstone of well recognised principles of writ jurisdiction of the High Court under Article 227 of the Constitution of India, it cannot be said that this is a case where any interference in the impugned order is warranted. Therefore, Writ Petition is dismissed. As Writ Petition is dismissed, Interim Application does not survive and the same is disposed of in above terms.
45. At this stage, Mr. Bhavake, learned counsel appearing for the Petitioner states that interim relief granted by this Court by order dated 26th September 2018 be continued. By the said order dated 26th September 2018, the Respondent Nos.[1] and 2 are directed not to fill up the vacancy, if any, and if filled, would be subject to the result of this Petition. It is the contention of Mr. Rajeshirke that there is no new appointment made from 2012 and there is no vacancy. Therefore, he states that he has no objection for continuation of said interim relief granted on 26th September 2018 directing the Respondent Nos.[1] and 2 not to fill up any vacancy for a period of four months from today. Thus, in view of said contention of Mr. Rajeshirke, the interim relief is continued for a period of four months from today.
46. Subject to above Writ Petition is dismissed with no order as to costs.
47. In view of the dismissal of the Writ Petition, nothing survives in the Interim Application and the same is disposed of as such. (MADHAV J. JAMDAR, J.)