Elizabeth Benjamin Joseph v. The State of Maharashtra

2. The Petitioner has assailed the order dated 04/07/2019 whereby Respondent No.2 - Education Officer, Zilla Parishad, Thane has rejected the proposal for grant of approval to the appointment of the Petitioner No.1 as a Peon in the School run by the Petitioner No.2 – Institution. The approval has been rejected in view of the ban on recruitment imposed vide Government Resolution dated 12th February, 2015 and further on the ground that the appointment was not made on a sanctioned post.

3. Mr. Bandiwadekar, learned counsel for the Petitioner submits that the Petitioner No.2 is a Minority Institution running various schools. He submits that Petitioner No.1 was appointed on a sanctioned post which had fallen vacant due to retirement of Neerabai Patil. He submits that Petitioner No.1. was appointed through prescribed selection process, which had commenced before the ban imposed by the Government Resolution dated 12/02/2015. He has relied upon the decision of the Division Bench of this Court in Munoli Rajashri Karabasappa v/s. State of Maharashtra thru Secretary and ors. in Writ Petition No.8587 of 2016 with connected Writ Petitions, to contend that the ban would not be applicable once the recruitment process had already commenced. He has placed reliance on the decision of this Court in Mahadev Rama Kaikadi v/s. The State of Maharashtra and ors. in Writ Petition No.12448 of 2019 in support of his contention that ban does not apply to a Minority Institution.

4. Mrs. M.S. Bane, learned AGP submits that Petitioner No.2 – Educational Institution had not obtained NOC before commencement of selection process. She submits that the recruitment was not permissible in view of the ban imposed by Government Resolution dated 12/02/2015 which is still in force. She has further submitted that the decisions relied upon by learned counsel for the Petitioner are distinguishable and not applicable to the facts of the present case. She submits that since the appointment is not on a sanctioned post, Respondent No.2 - Education Officer was justified in declining the proposal.

5. I have perused the records and considered the submissions advanced by the learned counsels for the respective parties.

6. It is not in dispute that the Petitioner No.2 is a Minority Educational Institution registered under the Bombay Public Trusts Act, 1950 and the Societies Registration Act, 1860. The Petitioner No.2 runs the Government recognized aided Secondary School by name ‘Holy Cross Convent School’ at Kalyan, Thane. Respondent No.2 – Education Officer had sanctioned four posts of peon of Class IV cadre in the said Holy Cross Convent School. It is on record that one of the peons by name Neerabai Bhima Patil, who was appointed on permanent basis, had retired from service on 31/08/2014. The Petitioner No.2 commenced recruitment process by issuing advertisements both dated 04/02/2015 to fill up the said vacant post. In response, Petitioner No.1 applied for the post of Peon. He was selected and pursuant to the resolution passed in a meeting dated 13/02/2015, appointed as a Peon initially for a period of 36 months w.e.f. 14/02/2015 in a pay scale of Rs.1700/- per month. The Petitioner No.1 having been appointed through a prescribed recruitment process on a sanctioned post, joined the said post on 14/02/2015.

7. The Principal of the School submitted a proposal to Respondent No.2 – Education Officer for approval of the appointment of the Petitioner No.1. Respondent No.2 has declined to grant approval mainly on the ground of the ban on recruitment in view of Government Resolution dated 12/02/2015. It is pertinent to note that by the Government Resolution dated 23/10/2013, revised staffing pattern was made applicable to the recognized private/partly added secondary and higher secondary and Sainik Schools in the State. In view of the said Government Resolution, some posts of non-teaching employees had become surplus and several associations of teaching and non-teaching staff had demanded to reconsider the said Government Resolution. Accordingly, under the Government Resolution dated 12/02/2015, a Committee came to be constituted and status quo was ordered to be maintained till receipt of the report of the Committee regarding revised staffing pattern and a decision by the State Government in that regard.

8. It is to be noted that the post of Peon in the school run by the Petitioner No.2 – Institution had fallen vacant in the year 2014 upon retirement of Neerabai Patil. Till 04/07/2019 i.e., the date of the impugned order, no decision had been taken in respect of staffing pattern of non-teaching staff. Hence, the ban on recruitment continued to remain in operation for a period of over four years. In this context, it is important to recognize that the efficacy of an Educational Institution depends on the efficient functioning of the Management, teaching and non-teaching staff. Each one of these categories is indispensable and absence of any one of them adversely affects the smooth functioning of the Institution. Hence, such prolonged and indefinite ban on appointment of non-teaching staff would hamper day-to-day administration of the Petitioner No.2.

9. It is also pertinent to note that the Petitioner No.2, which is undisputedly a Minority Education Institution, has a fundamental right to appoint teaching and non-teaching staff of its choice and it cannot be compelled to appoint or absorb an employees not of its choice. Its autonomy in regard to day-to-day administration cannot be restricted by imposing ban on recruitment of teaching and non-teaching staff. Any such restriction would infringe the Constitutional guarantee conferred on Minority Institutions by Article 30 of the Constitution of India. The Education Officer has overlooked this aspect while rejecting the approval.

10. It is also pertinent to note that in Munoli Rajashri Karabasappa (supra), the approval was rejected in view of the ban on recruitment of Teachers vide Government Resolution dated 02/05/2012. The Division Bench of this Court has reiterated that the ban would not apply when the recruitment process had already commenced prior to issuance of Government Resolution. In the instant case, it is not in dispute that there were four sanctioned posts in the School of the Petitioner No.2 – Institution. There was no abolition/discontinuation of the posts or reduction in the sanctioned strength of the post. One of the sanctioned posts had fallen vacant prior to the issuance of Government Resolution dated 12/02/2015. The recruitment process to fill in the said post had commenced with publication of advertisement dated 04/02/2015, which was also prior to issuance of Government Resolution dated 12/02/2015. Hence, in the light of the ratio laid down in Munoli Rajashri Karabasappa (supra), the ban imposed by the Government Resolution dated 12/02/2015, was not applicable. The Respondent No.2 – Education Officer was therefore not justified in rejecting the proposal for approval on the ground of the ban imposed by Government Resolution dated 12/02/2015 and/or on a ground that the appointment was not to a sanctioned post. Additional reason for rejection viz., not obtaining NOC for issuing advertisement given by the Education Officer - Mr. Sheshra Bade in his affidavit-in-reply cannot be considered, as it is well settled that affidavit cannot supplement or supplant the reasoning in the order.

11. For the reasons stated above, the impugned order cannot be sustained. Hence, the following order:- (a) Writ Petition is allowed. (b) The impugned order dated 04/07/2019 issued by the Respondent No.2 – Education Officer, refusing to grant approval to the appointment of the Petitioner No.1 as a Peon – Shikshan Sevak in the aided Secondary School of the Petitioner No.2 w.e.f. 14/02/2015, is quashed and set-aside.

(c) The Respondent No.2 – Education Officer is directed to grant approval to the Petitioner No.1 as a Peon in the School run by Respondent No.2 – Institution w.e.f. 14/02/2015 and sanction payment of monthly honorarium applicable to his post from the date of his appointment for three years.

(d) The Respondent No.2 – Education Officer shall pass appropriate order of approval within a period of six weeks from the date of uploading of this order. (e) The Management is at liberty to submit fresh proposal for grant of further approval after completion of three years as Shikshan Sevak in pay scale w.e.f. 14/02/2015.

12. Rule made absolute in above terms. There shall be no order as to costs.

13. This order shall be Personal Assistant of this Court. All concerned will act on production (SMT.

ANUJA PRABHUDESSAI, J.) Preeti