2013 Supreme(Bom) 1693

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. S. SHINDE, J.
Gopal s/o. Siddheshwar Akhade & Ors.
Vs.
The State of Maharashtra & Ors.
Writ Petition No.2590 of 2013
Decided On: 28th August, 2013

Headnote:Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 - Section 5 - Refusal to grant appointment. - Refusal to grant appointment of staff on ground that prior permission was not attained by management for appointment, unjustified. - Upon careful perusal of sub-section (1) of Section 5 of the said Act, there is nothing in the said Section which supports the stand taken by respondent/authorities that the management has to seek prior permission for the appointments of the staff. It is only in cases of 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.

       The contents of the letter, dated 16.7.2007 written by the President of the petitioner/ institution make it abundantly clear that the Special Social Welfare Officer, Nanded was clearly informed the strength of students, vacancies which were available for appointment and even permission was sought for such appointments. If the respondent/authorities were convinced that no permission is to be granted or no approval is to be accorded to petitioner Nos. 2 and 3, in that case, the respondents with prompt attitude should have communicated to the petitioners. However, the material placed on record by the petitioner s, in unequivocal terms, indicates that, not only that the approvals are granted to the appointments by petitioner Nos. 2 and 3 in pursuant to the advertisement, but the Special Social Welfare Officer, Nanded had written to the higher authorities to accord approval to the posts which are already filled in by the petitioner/management in pursuant to the advertisement issued in the year 2007.

       The ground given in the affidavit in reply by the respondents to reject the prayer of the petitioners that, in Writ Petition No. 824 of 2012 directions were given to the Officer, and accordingly, the Regional Deputy Commissioner, Social Welfare Division, Latur has taken the action, cannot be accepted, rather it deserves to be rejected in the light of order passed by the Division Bench of this Court in Writ Petition No. 824 of 2012.

       Upon perusal of sub-section (2) of Section 5 of the said Act, the counsel appearing for the petitioners is right in inviting the attention of this Court and submitting that every person appointed to fill a permanent vacancy [except Shikshan Sevak] shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed.

       The provisions of sub-sections (3) and (4) of Section 5 of the said Act are not applicable in the facts of the present case, in as much as the petitioner No. 1 has satisfactorily completed his probationary period of two years from the date of his appointment.

       Upon careful perusal of appointment letter, which is placed on record by the petitioners, it is abundantly clear that the petitioner No. 1 was appointed on probation and once he was appointed on probation, necessarily it follows that the probation is of two years, as contemplated under Section 5 of the said Act.

       In the light of the discussion herein above, this Court is of the opinion that the impugned order deserves to be set aside with the observation that, if in future any vacancy arises in petitioner Nos. 2 and 3 institution, petitioner Nos. 2 and 3 will abide by the relevant Rules and accede to the directions of the respondents to accommodate the surplus employees, if any.