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Judgment
(Per - Jitendra Jain, J.)
Rule. Rule made returnable forthwith. With consent of learned counsel for the parties, taken up for final hearing.
This petition filed under Article 226 of the Constitution of India challenges an order dated 8 March 2018 passed by respondent no.2-Education Officer rejecting the proposal of petitioner no.1 – Institution for approval of the appointment of petitioner no.3 as a teacher.
The main ground on which the proposal was rejected is that though as per the proposal, the appointment of petitioner no.3 as a teacher was made on 16 January 2012, the proposal was sent for approval after almost six years on 12 February 2018.
It is the case of the petitioners that the institution is a minority institution and, therefore, the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Act (MEPS Act) and Rules are not applicable. Furthermore, the petitioners submit that at the time when the appointment was made in 2012, the institution was not receiving any grant. The institution received grant only subsequently and, therefore, the approval was sought in 2018. Petitioner no. 3 further submitted, in the alternative, that if there is a procedural lapse on the part of the institution in obtaining the approval belatedly, then petitioner no. 3 should not suffer. The petitioners further submit that the letters of 2016 and 2017 seeking clarification from the institution were not received by them and, therefore, there was no compliance.
The petitioners, therefore, prayed that the petition be allowed in terms of the prayer clauses pleaded therein including the communication dated 08.03.2018 be quashed and the proposal be reconsidered.
We have heard learned counsel for the petitioners and the respondents and have also perused the documents annexed to the petition which were brought to our notice.
The case of the respondent-Education Officer and the State is that the proposal has been sent after more than six years from the date of appointment of petitioner no.3 as a teacher. The respondent further submitted that the period of 15 days between the date of publication of advertisement and the appointment has not been adhered to in this case. Petitioner no.3 passed the D.Ed. examination on 3 January 2012 and the advertisement was published by petitioner no.1 in a local Urdu newspaper on 6 January 2012 and petitioner no.3 came to be appointed as Shikshan Sevak on 16 January 2012.
It is the submission of the respondent that the advertisement was not published in a widely circulated newspaper and the time limit prescribed in the Act between the date of advertisement and the appointment was also not adhered to. No prior permission as required under Rule 9(2B) of the MEPS Rules, 1981 was obtained. The respondent relied upon the Government Resolution (GR) dated 6 February 2012 and the decision of the Principal Bench of this Court in the case of Smt. Manthana Ramdas Thakur and another Vs. The State of Maharashtra through the Secretary, School Education Department and another1 and submitted that if there is a violation of Rule 9(2B), then the appointment is illegal and cannot be approved.
The respondents, therefore, submitted that the petition deserves to be dismissed.
ANALYSIS AND CONCLUSION
Section 3(2) of the MEPS Act provides that the provisions of this Act shall not apply to the recruitment of the Head of a minority school and any other persons not exceeding three who are employed in such school and whose names are notified by the Management to the Director or the Deputy Director for this purpose. The petitioners have not shown to us that the name of petitioner no. 3 falls within the exception carved out by Section 3(2), namely, that petitioner No. 3 is the Head of a minority school or that she is one of the persons notified as required by the said provision. Therefore, the contention raised that Section 5 or any other provisions of the MEPS Act and Rules are not applicable to a minority institution cannot be accepted.
The respondent Education Officer is justified in relying upon the Government Resolution dated 06.02.2012, wherein, in paragraph no. 4, it is mentioned that the advertisement for recruitment has to be approved and, after such approval, the process of recruitment should be completed within two months. In the present case, we have not been shown any approval obtained by petitioner no. 1 - institution prior to the publication of the advertisement for recruitment. Therefore, there has been a violation of the Government Resolution, which is fatal to the appointment and cannot be treated as a mere irregularity.
The contention that petitioner no. 1 is a minority institution and was not receiving any grant at the time of the appointment of petitioner no. 3 and, therefore, the proposal for approval was not sent cannot be accepted. There is no reason given as to why approval was sought and was accorded to the other six teachers who were appointed when the institution was not receiving any grant. Therefore, this submission made by the petitioners cannot be accepted.
Rule 9(2B) of the MEPS Rules provides that the advertisement shall be kept open for at least 15 days before filling the concerned post. In the instant case, the advertisement was published on 06.01.2012 and petitioner no. 3 came to be appointed on 16.01.2012. The period of 15 days required under Rule 9(2B) was not followed and, therefore, there has been a violation of Rule 9(2B) of the MEPS Rules.
It is also important to note that the advertisement was published in a local Urdu newspaper and no material has been placed on record before us to show that the said newspaper has a wide circulation. petitioner no. 3 passed the D.Ed. examination on 03.01.2012, the advertisement was published on 06.01.2012 and petitioner no. 3 came to be appointed on 16.01.2012. These dates cast serious doubt on the appointment process followed by the institution.
The respondents are justified in relying upon the decision of this Court in the case of Amol Pramod Patil v. State of Maharashtra2, wherein, on similar facts, the rejection of approval was assailed and the petition challenging the same came to be dismissed. Similarly, the Principal Bench of this Court, in the case of Smt. Manthana Ramdas Thakur (supra), has dealt with a very similar situation concerning the consequences of non-compliance with Rule 9(2B). The Coordinate Bench, after referring to various decisions, has come to the conclusion that if the mandate of the MEPS Act and Rules is breached while making appointments, then the rejection of the proposal by the Education Officer cannot be said to be contrary to the mandate of law.
The reliance placed by the petitioners on the decision of the co-ordinate Bench of this Court in the case of Sandeep Chudaman Shinde and others V. The State of Maharashtra and others3 is not applicable to the facts of the present case. In that case, the appointment was in accordance with law but only there were irregularities on the part of the management which was considered by the Court. In the instant case, the pre-condition required for making the appointment itself, namely, approval of advertisement, giving advertisement and maintaining period of 15 days has not been complied with. Therefore, the said decision does not support the case of the petitioners.
In our view, both the aforesaid decisions support the action of the respondent in rejecting the proposal of petitioner no. 3 for approval.
In view of the above, the Writ Petition is dismissed.
Rule is discharged. No order as to costs.
Pending Civil Application stands disposed of.