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IN THE HIGH COURT OF BOMBAY
Rohit B. Deo, V.V. Joshi, JJ.
Arun Thute Lokvikas Pratishtan - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 1648/2022
Decided On : 10-03-2023
RECRUITMENT - EDUCATION - GOVERNMENT RESOLUTION DATED 05-06-2010, GOVERNMENT RESOLUTION DATED 16-07-2011, GOVERNMENT RESOLUTION DATED 06-02-2012 - The court examined the legality of the rejection of the appointment of a Peon based on a recruitment ban. It highlighted that the appointment process was initiated before the ban was imposed and that the ban should not apply retrospectively. The court emphasized the importance of prior permissions granted and the need for the authority to revoke permissions if necessary. The court concluded that the rejection was arbitrary and ordered the approval of the appointment.
Fact of the Case:
The petitioners challenged the rejection of approval for the appointment of petitioner 3 as Peon by the Deputy Director of Education, citing that the appointment was made during a recruitment ban. The petitioners argued that the recruitment process had commenced before the ban was imposed and that the appointment was in a clear and permanent vacancy.
Finding of the Court:
The court found that the refusal to approve the appointment was arbitrary, as the permission to fill the post was granted before the ban was imposed. The court noted that the petitioners had acted in good faith and that the authority had not revoked the permission to recruit.
Issues: Whether the appointment of petitioner 3 as Peon was valid despite the recruitment ban, and whether the rejection of approval was arbitrary.
Ratio Decidendi: The court held that the ban on recruitment did not apply retrospectively to appointments made after prior permissions were granted. The court referenced previous judgments that supported the notion that recruitment processes initiated before a ban should not be hindered by subsequent restrictions.
Final Decision: The court allowed the petition, quashed the impugned order, directed the approval of the appointment of petitioner 3, and ordered the release of salary from the date of joining.
JUDGMENT/ORDER
VRUSHALI V.JOSHI, J. - Heard. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.
2. The challenge is to the order dtd. 15/2/2020 rendered by respondent 3-Deputy Director of Education, Nagpur Region, Nagpur whereby the approval to the appointment of petitioner 3 is rejected. Petitioner 1-institution manages petitioner 2-school. Petitioners 1 and 2 sought permission to fill in the post of Peon which was granted by the Deputy Director of Education vide communication dtd. 20/5/2010 (Annexure-1).
3. Petitioners 1 and 2 published advertisement in daily newspaper "Sakal" of 27/6/2010, candidates were interviewed, and petitioner 3 was selected as Peon vide Resolution dtd. 11/7/2010 of the Managing Committee, and the appointment order was issued on 13/7/2010.
4. Petitioner 3 joined duty on 15/7/2010. Proposal seeking approval to the appointment of petitioner 3 was submitted to the Deputy Director of Education. The proposal was kept pending and is ultimately rejected. The petitioners approached the High Court in Writ Petition 6924/2019 which was disposed of vide order dtd. 3/3/2021 noting the statement that the Deputy Director of Education has considered and rejected the proposal.
5. The rejection of the proposal is on the ground that the appointment of petitioner 3 is made during the period the ban on recruitment to Class-C and Class-D posts, was in force. The order impugned refers to the Government Resolution dated 05-6- 2010 which imposed the ban for one year and then refers to the Government Resolution dtd. 16/7/2011 which extended the ban for further one year. The order impugned notes that since the advertisement dtd. 27/6/2010 is issued after 5/6/2010, the appointment of petitioner 3 cannot be approved.
6. The submission of the learned Senior Counsel Mr. R.L. Khapre is that the appointment of petitioner 3 was made after following due procedure. Permission was obtained, advertisement was issued and petitioner 3 was selected. It is emphasized that the appointment was in clear and permanent vacancy and that petitioner 3 belongs to the Other Backward Category.
7. It is submitted that the recruitment process have already commenced before the issuance of Government Resolution dtd. 5/6/2010 inasmuch as the permission to fill in the post was sought by the management vide application dtd. 8/3/2010, and was granted prior to the issuance of the Government Resolution dtd. 5/6/2010. Another important aspect which is highlighted that the Government by issuing Government Resolution dtd. 6/2/2012 directed that the ban on recruitment shall not apply for clearing the backlog.
8. The stand of respondent 3-Deputy Director of Education is that although the permission was accorded by the then Deputy Director of Education prior to the Government Resolution dtd. 5/6/2010, and the permission was not cancelled or revoked, it was the responsibility of petitioner 1-institution to stop the process of recruitment. It is further submitted that the then Deputy Director granted permission without verifying whether there is any surplus employee available or not. In so far as the latter submission is concerned, we do not delve deeper inasmuch as the rejection of the approval of petitioner 3 as Peon is only on the ground that the appointment is made during the period the ban was in force. In so far as lifting of the ban in certain situations contemplated by Government Resolution dtd. 6/2/2012, the stand of respondent 3 is that since the appointment of petitioner 3 is made in the year 2010, the Government Resolution dtd. 6/2/2012 has no applicability.
9. We have considered the submissions of the learned Senior Counsel Mr. R.L. Khapre and the learned Assistant Government Pleader Mr. M.K. Pathan, which are on the lines of the submissions in the memo of petition and the affidavit-inresponse.
10. Mr. R.L. Khapre has invited our attention to the decision dtd. 10/7/2017 of the Coordinate Bench in Writ Petition 8587/2016
The court established that a recruitment ban does not negate prior permissions granted for filling vacancies, and that arbitrary rejection of appointments made in compliance with such permissions is ....
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 court established that educational authorities must respond timely to requests for teacher appointments, and that failure to do so cannot be used as a basis to deny approval for appointments made....
The main legal point established in the judgment is that the ban on recruitment process is not absolute, and once lifted, should be taken to have been lifted absolutely, with no justification for any....
The main legal point established in the judgment is that the management must adhere to the rules and regulations for the appointment of staff in private schools, including the obligation to ascertain....
The main legal point established is that vacancies in the open category should be filled from the open category, and the ban on recruitment may not apply in certain circumstances.
The main legal point established in the judgment is that Government Resolutions imposing a ban on fresh recruitment do not apply to appointments made on compassionate basis, as they are kept outside ....
The management of private schools must adhere to the mandatory provisions of the M.E.P.S. Act and Rules, including obtaining prior permission from the Education Officer before recruitment, to ensure ....
Compliance with mandatory provisions of the MEPS Act and Rules is essential for the validity of appointments in private schools.
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