Minority educational institutions have the autonomy to appoint staff without being restricted by surplus teacher policies, as affirmed by the court.

JUDGMENT :

1. Rule. Rule made returnable forthwith by consent of the parties.

2. By the present petition, the Petitioner assails the order dated 26.05.2017, passed by the Respondent No.3, refusing to grant approval to the proposal dated 17.05.2017, submitted by the Respondent No.5 seeking approval to the appointment of the Petitioner as a Shikshan Sevak (“Impugned order”)

Factual Matrix:-

(a) Respondent No.4 is a Minority Educational Institution managing and running the Respondent No.5 School, which receives 100% aid from the State of Maharashtra. Reliance is placed on Section 3(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act).

(b) Petitioner has completed HSC in the year 2004 and completed D.Ed. in the year 2008. Petitioner has also completed the course of MS-CIT.

(c) Public advertisement was issued by the Respondent No.4 inviting applications from eligible candidates to fill up a vacant, sanctioned and permanent posts of Shikshan Sevak Respondent No.5 School.

The said vacancy arose upon retirement of Mr. Naushad M. Hussen Imadar w.e.f. 31.01.2013.

(d) Various candidates applied for the said post. Petitioner applied for the said post. Petitioner was found qualified and eligible in the selection process and was appointed as Shikshan Sevak w.e.f. 17.06.2013.

(e) Proposal dated 17.05.2017 was submitted by the Respondent No.5 to the Respondent No.3 (Education Officer) seeking approval of the Petitioner’s appointment as a Shikshan Sevak.

(f) The Respondent No.2 (Deputy Director) vide letter dated 14.11.2014, forwarded the said proposal to the Director of Education for consideration.

(g) The Director of Education in turn forwarded the said letter 14.11.2014 to the Principal Secretary, Education and Sports Department, State of Maharashtra for consideration. By letter dated 03.11.2015, the Education and Sports Department, Mumbai informed the Respondent No.3 about the Government rejecting the said proposal.

(h) The Respondent No.5 once again submitted the proposal dated 17.05.2017 to the Respondent No.3 seeking approval of the Petitioner’s appointment as a Shikshan Sevak.

(i) By the Impugned order, the Respondent No.3 has rejected the proposal dated 17.05.2017. Ground for rejection for the proposal is that surplus teachers/non teaching staff are available for absorption and until and unless the said surplus teachers are fully absorbed the proposal submitted by the Respondent No.4 cannot be considered, as such rejected. Reference is made to the Government Decision dated 02.05.2012, imposing a ban on recruitment until the surplus teachers are adjusted.

3. Though the Respondents are served, they have chosen not to file any replies.

Submissions:-

4. Mr. Ajay Joshi, learned Advocate for the Petitioner has raised the following arguments:-

(a) The Respondent No.4 is a Minority Educational Institution and, therefore, it is the prerogative of the Respondent No.4 to fill up the said post.

(b) That the ban on recruitment as per Government Resolution dated 02.05.2012 is in relation to surplus teachers and ban imposed on recruitment of teachers till 100% absorption of surplus teachers, would not be applicable to the Respondent Nos. 4 and 5.

(c) By relying on the document at Exhibit-E i.e. a chart, it is submitted that vacancies were available in the Respondent No.5 School. Similarly, reliance is placed on a chart at Exhibit-L to contend that the Respondent No.5 has absorbed a total number of 6 teachers who were declared as surplus and send by Respondent No.3 by absorption.

(d) Petitioner has been appointed on a post which was vacant, a permanent post and a post sanctioned as per the staffing pattern. Vacancy in t