Back
2020 Supreme(Bom) 1068
IN THE HIGH COURT OF BOMBAY
ANUJA PRABHUDESSAI, J.
Elizabeth Benjamin Joseph and Another – Petitioners
Versus
The State of Maharashtra and Another – Respondents
Writ Petition No. 239 of 2020
Decided On : 11-12-2020
Advocate Appeared:
For the Petitioners: Narendra V. Bandiwadekar, Ashwini Navjyot Bandiwadekar
For the Respondent: M.S. Bane.
The central legal point established is the autonomy of Minority Educational Institutions in staff appointments as guaranteed by Article 30 of the Constitution of India.
Headnote:
Recruitment Ban - Minority Educational Institution - Bombay Public Trusts Act, 1950, Societies Registration Act, 1860 - Government Resolution dated 12.02.2015 - Government Resolution dated 23.10.2013 - Article 30 of the Constitution of India
Fact of the Case:
The Petitioner, a Minority Educational Institution, appointed a Peon on a sanctioned post, but the approval was rejected by the Education Officer citing a recruitment ban and lack of NOC.
Finding of the Court:
The Court found that the ban on recruitment of non-teaching staff for over four years was unjustified and infringed the autonomy of the Minority Institution. The rejection of approval was quashed, and the Education Officer was directed to grant approval and sanction payment to the Petitioner.
Issues: The main issues were the applicability of the recruitment ban, the requirement of NOC, and the autonomy of Minority Educational Institutions in staff appointments.
Ratio Decidendi: The Court held that the ban on recruitment did not apply when the recruitment process had commenced prior to the issuance of the Government Resolution. It also emphasized the autonomy of Minority Institutions in staff appointments as guaranteed by Article 30 of the Constitution of India.
Final Decision: The Writ Petition was allowed, the impugned order was quashed, and the Education Officer was directed to grant approval to the Petitioner. The Management was given the liberty to submit a fresh proposal for further approval after three years.
JUDGMENT :
ANUJA PRABHUDESSAI, J.
1. Rule. Rule is made returnable forthwith. With the consent of learned counsel for the respective parties, the Petition is heard finally at the stage of admission.
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 vs. State of Maharashtra through Secretary and Others 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 vs. State of Maharashtra and Others 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
