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Judgment
(PER: ABASAHEB D. SHINDE, J.) :
Rule. Rule made returnable forthwith. With the consent of the parties, the writ petition is heard finally at the stage of admission.
By this writ petition, filed under Article 226 of the Constitution of India, the petitioner has put forth the following prayers:
“A) To hold and declare that, the impugned order dated 02.02.2022 passed by the Respondent No. 3 Education Officer, thereby rejecting the proposal submitted by Respondent Nos. 4 and 5 seeking approval to the appointment of petitioner as Shikshan Sevak in Respondent No. 5 School is illegal, arbitrary and violative to Article 14 and 19(1)(g) of the Constitution of India and same is liable to be quashed and set aside and for that purpose issue necessary orders;
B) To issue writ of Mandamus or any other appropriate writ or directions in the like nature of writ of Mandamus directing the Respondent Authorities, more particularly the Respondent No. 3 Education Officer to grant approval to the appointment of petitioner as Shikshan Sevak in Respondent No. 5 School as per the appointment order dated 05.02.2013 and for that purpose issue necessary orders;”
It is the case of the petitioner that, he possesses the qualification of SSC and HSC with Diploma in Education (for short D.Ed). He belongs to a nomadic tribe and to that effect a validity certificate has also been issued by the Caste Verification Scrutiny Committee. Respondent No.4, Educational Trust registered under the provisions of the Maharashtra Public Trusts Act, 1950, runs respondent No. 5 -School. Since one of the Assistant Teachers superannuated on 31.10.2012, respondent Nos.4 and 5 on 07.12.2012, made application to respondent No.3 - the Education Officer, seeking permission to fill up the said vacancy and issue an advertisement. On 03.01.2013, respondent Nos.4 and 5 issued an advertisement for filling up the post of Shikshan Sevak. Pursuant to the said advertisement, he participated in the selection process and after having found eligible he was appointed as Shikshan Sevak by respondent Nos. 4 and 5 on 05.02.2013.
It is further case of the petitioner that, on 27.02.2013, respondent No. 5 submitted a proposal seeking approval to his appointment as a Shikshan Sevak. While the proposal seeking approval to his appointment was pending, due to a mistake in the staffing pattern, he was declared surplus. The Chief Executive Officer, Zilla Parishad, Nanded, by order dated 14.08.2014, directed him to be absorbed in a Primary School situated at village Gorlegaon, Tq. Hadgaon, Dist. Nanded. Under the orders of the Block Development Officer, Panchayat Samiti, Hadgaon, dated 25.08.2014, he was again repatriated to respondent No. 5 – School.
Since proposal seeking approval to his appointment submitted by respondent Nos.4 and 5 was not decided by respondent No. 3, the petitioner filed Writ Petition No.9952/2021, seeking direction for expeditious disposal of his proposal. This Court by order dated 07.09.2021 directed Respondent No. 3 to decide the pending proposal within six months from the date of passing of order. The respondent No.3 passed the impugned order dated 02.02.2022, thereby rejecting the proposal seeking approval to the appointment of the petitioner on the following grounds:
The petitioner was appointed during a ban period imposed by Government Resolution dated 02.05.2012.
The petitioner's appointment is contrary to the provisions of Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter called as ‘MEPS Rules’), and Government Resolution dated 06.02.2012.
The petitioner was appointed on fourth post, when as per the staffing pattern for the academic year 2012–13, only three posts were sanctioned.
At the relevant time, 39 surplus teachers were available for being absorbed in Nanded District, the number of which has now increased to 112.
The petitioner, therefore, has approached this Court challenging the impugned order.
Learned counsel for the petitioner submits that, the petitioner has been appointed after following the due procedure of law. Respondent Nos.4 and 5, sought permission to issue advertisement so as to fill up the post of Shikshan Sevak, however, the respondent No.3 kept the said application undecided. The respondent Nos.4 and 5 therefore proceeded to issue an advertisement pursuant to which the petitioner is appointed. The staffing pattern of the year 2013 in which the petitioner is appointed, shows four sanctioned posts of the teachers. The respondent No.3 has erroneously relied on the staffing pattern of 2012-2013. He further submits that had the post not been available, the petitioner would not have been declared surplus and again repatriated to the respondent No.5 – School. He therefore urged that the impugned order deserves to be quashed and set aside.
Per contra, learned counsel appearing for respondent No. 3 submits that, as against three sanctioned posts, the respondent Nos.4 and 5 have appointed the petitioner on fourth post which is in excess of the sanctioned staffing pattern. She further submits that, though number of surplus teachers were available for being absorbed in respondent No. 5 school, respondent Nos.4 and 5 without obtaining prior permission from respondent No.3 appointed the petitioner. She therefore submits that the appointment of the petitioner itself is erroneous and therefore respondent No.3 has not committed any illegality or irregularity in passing the impugned order.
Learned counsel appearing for respondent Nos.4 and 5 supported the case of the petitioner.
We have heard learned counsel for the petitioner, learned AGP learned counsel appearing for respondent No. 3, learned counsel appearing for respondent Nos.4 and 5 at length and perused the record.
It is a matter of record that, upon retirement of the Headmaster of respondent No.5 – School, respondent Nos.4 and 5 submitted an application to respondent No.3 on 07.12.2012, and sought permission to fill up the vacant post of Shikshan Sevak by issuing advertisement. The record further reveals that, the said application was received by respondent No. 3 on 18.12.2012. There is no dispute about receipt of the said application by Respondent No. 3, however, neither the same is decided nor the respondent No.3 informed respondent Nos.4 and 5 about the number of surplus teachers available for being absorbed nor deputed any surplus teacher for absorption in respondent No. 5 -School. In these circumstances, respondent Nos.4 and 5 were constrained to issue an advertisement and appoint the petitioner.
This Court has taken a consistent view that, once it is found that the Education Officer failed to inform the Management about the number of surplus teachers awaiting appointment at the time when the petitioner was appointed and the impugned order nowhere indicate that the Management was informed at any point of time about the availability of any surplus teacher, it cannot be said that the Management has committed any error in issuing an advertisement and filling up the post. The said view has been reiterated in the judgment of this Court in the case of Baliram s/o Pandurang Hange v. State of Maharashtra and Others; 2026 (2) Mh.L.J. 167, to which one of us (Justice Abasaheb D. Shinde) was a member. Relevant observations read thus :
“15.Recently, this Court in similar set of facts in the matters of Sumedha Sushil Sawal and Ors. Vs. State of Maharashtra reported in 2024 SCC Online Bom. 975, Vaishali Balkrushna Pawar Vs. State of Maharashtra reported in 2025 SCC Online Bom 1502, Nitin Bhanudas Waghmare Vs. State of Maharashtra & Ors. reported in 2023 3 MhLJ 556 has taken a view that once it is found that the management sought permission to fill up the post and the Education Officer do not communicate either granting or rejecting the said permission within reasonable time, the management cannot be faulted with. This Court has also held that once it is found that the Education Officer failed to inform the Management about the number of surplus teachers waiting for appointments when the petitioner is appointed and the impugned order do not depict that the management was informed about availability of any surplus teacher, in that case it cannot be said that the management have committed any error in issuing an advertisement and filling up the posts.”
So far as the issue regarding the staffing pattern for the academic year 2012–13 is concerned, the fact that the petitioner was declared surplus and was subsequently repatriated to respondent No. 5 - school itself indicates that the post of Shikshan Sevak was available.
In view of the above factual position and the observations of this Court in the case of Baliram s/o Pandurang Hange (supra), this Court has no reason to take a different view than the one taken in the aforesaid decision. In that view of the matter, we find that none of the reasons assigned in the impugned order are sustainable.
In the result, the writ petition deserves to be allowed. Hence, the following order is passed:
O R D E R
The writ petition is allowed in terms of prayer clauses (A) and (B).
Respondent No. 3 shall take necessary steps to grant approval to the appointment of the petitioner within twelve (12) weeks from the date of receipt of a copy of this order.
Rule is made absolute in the above terms.