IMPORTANT POINT
The court established that the failure to obtain a No Objection Certificate does not invalidate an appointment made in accordance with due procedure, especially when prior permissions were sought and the ban on filling posts was relaxed for certain subjects.

JUDGMENT/ORDER

VIBHA KANKANWADI, J. - Rule. Rule made returnable forthwith. Heard learned Advocates for the parties finally, by consent.

2. The petitioner, who is the teacher, has invoked the Constitutional powers of this Court under Article 226 and 227 of the Constitution of India challenging the rejection of approval by order dtd. 26/3/2021 passed by the Education Officer (Secondary) Zilla Parishad, Latur. The approval has not been granted in view of Government Resolution dtd. 14/10/2010. Respondent Nos.4 and 5 are the Management and the School, in which the petitioner is working as Assistant Teacher since 2016.

3. The school has received the revision and has also received 100% grant-in-aid from the State. The petitioner is B.Sc. (Science and English subjects) B.Ed. and was eligible for appointment to the post of Assistant Teacher in Secondary School having 8th to 10th classes. He is a member of Scheduled Caste and has validity certificate. Respondent No.4 - Society running respondent No.5 - School issued advertisement on 7/12/2015 for filling up of the vacant and sanctioned post of teacher. After adopting due procedure, he was selected and respondent Nos.4 and 5 issued appointment order on 1/1/2016 appointing him as Shikshan Sevak w.e.f. 1/1/2016 to 31/12/2019. His appointment was against a clear vacant and sanctioned post and within the sanctioned staffing pattern. Respondent No.5 thereafter submitted proposal to respondent No.3 for getting approval of the appointment of the petitioner, however, it has been rejected on 26/3/2021 on the ground that no prior permission from the office of respondent No.3 was taken for filling up of the vacant post. In fact, respondent No.5 had already informed to the office of respondent No.3 by making application on 2/11/2015 and had sought permission to fill up the post. The roster was duly certified by the Commissioner of B.C. Cell, Aurangabad. The petitioner also contends that the ban which was imposed by Government Resolution dtd. 14/10/2010 was relaxed in respect of subject of English, Mathematics and Science vide Government Resolution dtd. 4/9/2013, communication dtd. 19/7/2014 and Government Resolution dtd. 24/8/2018. There was no question of surplus teachers and in fact, in the impugned order, respondent No.3 had not clarified as to how many surplus teachers in the subject of English were available. The impugned order passed by respondent No.3 is illegal. By way of amendment, the petitioner has also contended that when the proper procedure has been followed and even the Government had issued directions by holding meeting that approvals be granted to those teachers whose appointments have been made by obtaining no objection from the Education Department, the petitioner has, therefore, prayed for setting aside the impugned order passed by respondent No.3 and grant approval to him.

4. Affidavit-in-reply has been filed on behalf of respondent No.3 by Ankush Bhagwat Shingade, Superintendent - (Gr.B) Education Office, (Secondary), Zilla Parishad, Latur. According to him, the petitioner has not approached with clean hands and suppressed the material facts. It is then stated that respondent Nos.4 and 5 have not obtained prior permission for issuance of advertisement in respect of the vacant post and, therefore, the rejection was proper.

5. Heard learned Advocate Mr. V. S. Panpatte for the petitioner, learned AGP Mr. A. R. Kale for respondent Nos.1 to 3 - State and learned Advocate Mr. B. P. Gonare for respondent Nos.4 and 5.

6. It has been vehemently submitted on behalf of the petitioner by bringing various documents to the notice of this Court that the petitioner belongs to the Scheduled Caste and the advertisement that was published was for the reserved post i.e. from the category of Scheduled Caste. In order to show that there was a clear vacancy, the Teaching Staff Sanch has been produced from the year 2016-2017. Further, after the petition was amended, document has been produced, which is com