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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D.Dhanuka, S.G.Mehare, JJ.
Gajanan – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No. 7736 of 2018 with Writ Petition No. 10204 of 2019
Decided On : 06-05-2022
APPOINTMENTS - Social Welfare Department - Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977, Sec. 5(1), Rules 1981 - The court discussed the provisions of the Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977, and the Rules 1981, and their interpretations. The court highlighted the mandatory nature of the provisions, the requirement to follow prescribed procedures for appointments, and the obligation to ascertain surplus persons before filling vacancies. The court emphasized that the management must adhere to the rules and regulations for the appointment of staff in private schools and cannot deviate from the prescribed procedures. The court also discussed exceptions to the ban on recruitment and the importance of equal opportunities for candidates. The judgment granted approval to certain appointments based on exceptions in Government Resolutions, while directing the continuation of services for other petitioners with liability to pay arrears and future salaries.
Fact of the Case:
The petitioners challenged the communications rejecting their approvals to appointments by the Assistant Commissioner, Social Welfare Department, citing reasons such as lack of permission to recruit, failure to obtain permission to advertise vacancies, and illegal appointments against a government resolution banning recruitment. The petitioners argued that they were entitled to approval as they were appointed against sanctioned vacant posts and possessed the required qualifications. The court heard arguments and reviewed the impugned communications.
Finding of the Court:
The court found that the appointments made by the management deviated from the prescribed procedures and rules for the appointment of staff in private schools. It noted the obligation to ascertain surplus persons before filling vacancies and emphasized the mandatory nature of the provisions. The court also discussed exceptions to the ban on recruitment and the importance of equal opportunities for candidates. The judgment granted approval to certain appointments based on exceptions in Government Resolutions, while directing the continuation of services for other petitioners with liability to pay arrears and future salaries.
Issues: The issues involved in the case included the legality of the appointments made by the management, compliance with the Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977, and the Rules 1981, and the entitlement of the petitioners to approval for their appointments.
Ratio Decidendi: The court held that the management must adhere to the rules and regulations for the appointment of staff in private schools and cannot deviate from the prescribed procedures. It emphasized the mandatory nature of the provisions and the obligation to ascertain surplus persons before filling vacancies. The court also discussed exceptions to the ban on recruitment and the importance of equal opportunities for candidates. The judgment granted approval to certain appointments based on exceptions in Government Resolutions, while directing the continuation of services for other petitioners with liability to pay arrears and future salaries.
Final Decision: The court partly quashed and set aside the impugned communications, granted approval to certain appointments, directed the continuation of services for other petitioners with liability to pay arrears and future salaries, and ordered the payment of arrears of salaries to all the petitioners within one month from the date of the order. The costs were to be borne by respondent no.4.
JUDGMENT
1. Rule. The learned A.G.P. waives notice for respondents nos. 1 to 3. Rule made returnable forthwith. By consent of the parties, heard finally.
2. The petitioners have impugned the communications rejecting their approvals to the appointments by respondent no. 3 / The Assistant Commissioner, Social Welfare Department. The issues involved in these petitions are common, and hence these petitions are taken up for disposal by a common judgment.
3. Respondent no. 2 has rejected the petitioners' proposal for approval for the following reasons.
(1) Respondent no. 3 has not taken permission to recruit the petitioners, either from respondent no.2 or his senior Office.
(2) No permission to advertise the vacancies was obtained by the management either from respondent no.2 or his Senior Officer.
(3) When the recruitment of the Staff was banned as per the Government Resolution of Social Justice and Special Assistance Department Mantralaya, Mumbai, dtd. 16/10/2012, the management appointed the petitioners against the mandate of the said G.R.
4. The following chart is for the ready reference on factual aspects regarding the date of advertisements, applications for permission to advertise the post, date of interview, and date of appointments of the petitioners.
5. It is the case of the petitioners that after the post falls vacant, respondents nos. 4 and 5 had made applications in advance to respondent no. 3, requesting him either to send the surplus teacher or grant permission to publish an advertisement inviting the applications from aspirants. The schools run by respondent no. 4 trust/society are of 100% grant-in-aid. After the advertisements were published by respondent no. 4 in the local newspaper, petitioners faced the interview and joined their duties as per appointment orders. They have been in service since the day of their joining. They were appointed against the sanctioned vacant posts. They possess the required qualifications for the appointment to the respective posts. However, though the due procedure is followed by respondent no.4, respondent no. 3 has erroneously declined the approvals to their appointments, and the reasons assigned in the impugned orders are against the Law. Petitioners are entitled to the approval of their appointments. Hence they have prayed to allow the petitions.
6. In W.P. No. 7736/2018, and W.P. No. 7768/2018, and 7789/2018, the similar affidavits in reply of respondents nos.1 to 3 is that initially, the petitioners were appointed as Shikshan Sevak and thereafter as Assistant teachers on a regular basis. However, the appointments of petitioners are against the ban on recruitments imposed by G.R. dtd. 16/10/2012. The guidelines issued in the said G.R. have not been followed by the management/ respondent no.4. There were several surplus employees of private schools. Respondents nos. 4 and 5 were bound to absorb the surplus teachers. Hence the petitioners' appointments are illegal. They have not disputed that respondents nos. 4 and 5 applied to their Office on 11/8/2016, 17/8/2016, and 9/10/2017 for permission to advertise the vacancies. The Office of these respondents never granted permission to respondents no. 4 and 5 to advertise the vacant posts. Hence their appointments are illegal. Though the selection procedure appears to be followed, the appointments cannot be approved as the appointments are without obtaining prior permission to advertise the vacancies from these respondents. The appointments are not binding on them.
7. In Writ petitions Nos.10204/2019, 10234/2019, and 10324, the respondent nos. 1 to 3, in addition to the similar affidavits in reply to the above writ petitions, have come with the case that since the surplus teacher was already absorbed on the vacant post available with respondents Nos. 4 and 5, the issuance of advertisement and appointment of the petitioner is per se illegal as no such vacancy existed on the date of appointment of petitioners.
8. The rejoinder affidavit in
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