Sharvari Shailesh Jadhav & Anr. vs The State Of Maharashtra & Ors.

ORAL JUDGMENT : (Per – Sharmila U. Deshmukh, J.)

Rule. With consent, rule made returnable forthwith and taken up for inal hearing.

By the present petition, the challenge is to the order dated 31^st October 2018 passed by the Respondent No.3 refusing to grant approval to the appointment of the Petitioner No.1 to the post of ‘Assistant Teacher’, which was conirmed in appeal by the Respondent No.2 on 29^th December 2020.

The facts in brief as set out in the present petition is that the Petitioner No.1 is qualiied as ‘B.Com (Economics), B.A. (Hindi) and B. Ed. (Maths/Hindi). An application was made by the Petitioner No.2-Institution which runs a Secondary School for permission to ill up the vacant posts on un-aided basis on 21^st July 2013. On 31^st October 2013, the Respondent No.3 granted permission to ill up the posts and accordingly, an advertisement was issued on 14^th May 2014. On 22^nd May 2014, one Amogh Prakash Ponkshe was selected amongst the candidates present for the process, however, he expressed unwillingness as the post was unaided and the Petitioner No.1 being the next meritorious candidate, having completed B.Sc in mathematics, the Management decided to appoint the Petitioner No.1 on the said post. On 9^th June 2014, the appointment order was issued to the Petitioner No.1. The Head Master submitted the proposal for approval of the appointment of the Petitioner No.1 on 26^th September 2018, which was rejected on 31^st October 2018. The appeal came to be rejected on 29^th December 2020.

Mr. Mane, learned counsel appearing for the Petitioners would submit that the rejection by the Respondent No.2 was on the ground that the qualiication of the Petitioner No.1 was ‘B.Com, B.Ed.’, whereas Annexure-63 of the Secondary School Code requires the person to be qualiied in the subject to be taught. He would further point out that the other ground on which the approval came to be rejected was that there was a ban on recruitment. He would submit that the ground of ban on recruitment would not survive as the post in question was an unaided post. He would further point out that Schedule ‘B’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (‘the MEPS Rules’) prescribes the qualiication for ‘Trained Teacher’ in secondary school as ‘the bachelor’s degree in teaching or education’. He submits that Annexure-63 of the Secondary School Code is on the basis of a Government Resolution dated 7^th February 1972, which forms part of Annexure-63 and would submit that considering the provisions of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 (‘the MEPS Act’) and Rules, the Government Circular cannot override the statutory provisions drawing support from the decision of this Court in the case of Anjuman Khairul Islam & Ors. v. Zulekha Mazhar Hussain & Ors.^{11.2001 (2) Mh. L. J. 245.} and Pragnya Vasant Acharya v. The State of Maharashtra & Ors.^{22.W.P.No.767 of 2007 (Original Side), Dtd. 12 December 2012.} He submits that none of the grounds on which the approval has been rejected is sustainable in law.

Per contra, the learned AGP would submit that Section 5 of the MEPS Act prescribed the procedure, which is required to be followed while illing in every permanent vacancy in a private school. She would further submit that under Section 16 of the MEPS Act, the State Government is empowered to make rules providing for the minimum qualiication for recruitment of an employee of the private school including its procedure and, therefore, the Government’s Circular provides for the minimum qualiication. She would submit that the advertisement, which was issued, prescribes the qualiication necessary for the subject was to be taught for Standard 8^th to Standard 10^th and as the Petitioner No.1 does not qualify according to the advertisement, the approval was rightly rejected.

We have considered the submissions and perused the record.

The undisputed fact is that the advertisement of 14^th May 2014 inviting applications for the post of ‘Assistant Teacher’ stipulates the educational qualiication referable to the subject, which was to be taught for Standard 8^th to Standard 10^th. For the subjects of ‘Maths’ the advertisement prescribes the qualiication as ‘B.Sc., B.Ed.’, for ‘Science’, it was B.Sc. B.Ed, for ‘Social Science’, it was ‘B.A., B.Ed.’, for ‘Social Science and Marathi’, it was ‘B.A., B.Ed.’ and for ‘English & Physical Education’, it was ‘B.A., B.P.Ed.’ The provisions of Section 5 of the MEPS Act imposes an obligation on the Management to ill in every permanent vacancy in a private school in the manner prescribed by the Act and Rules. The approval was granted to the advertisement, which has been issued, pursuant to which the applications were invited by the Petitioner No.2. The approval was granted not only to the advertisement, but also to the academic qualiications, which were required to be fulilled by the candidates for the purpose of appointment to the post of ‘Assistant Teacher’. It is not disputed that the Petitioner No.1 passed ‘B.A.’ in ‘Hindi and History’ in the year 2019, whereas the appointment order was issued on 9^th June 2014. Even ignoring for the moment that the ban on recruitment would not apply to the unaided post, ground-1 of the order dated 31^st October 2018, while referring to the educational qualiication of ‘B.Com., B.A.’ states that it was necessary for the Petitioner No.1 to have acquired graduation in the subject, which is to be taught at school level. The circular, which forms part of Annexure-63, is not contrary to Schedule ‘B’ Clause-II, which prescribes the qualiication for ‘Trained Teachers’ in Secondary Schools and Junior Colleges of education. The Circular was, in fact, followed by the Petitioner No.2, when it prescribed the necessary academic qualiication in the advertisement. There is also no material, which has been placed on record in order to demonstrate that the Petitioner No.1 was on the wait list and upon the unwillingness of the selected candidates to accept the appointment, the Petitioner No.1 was entitled to be selected. In any event, as the advertisement did not prescribe the educational qualiication as ‘B.Com.’, the appointment of the Petitioner No.1 to the said post would not be in consonance with Section 5 of the MEPS Act, which requires the vacancy to be illed in as per the prescribed procedure.

The combined proposal sent by the Head Master was rejected by the Respondent No.3 on 31^st December 2015 and insofar as the present Petitioner is concerned, the rejection is speciic on the ground that the appointment of the Petitioner No.1, who was qualiied as ‘B.Com, B.Ed.’ is not in accordance with the advertisement.

In light of the above discussion, there is no error committed by the Respondent No.3 in declining to grant approval to the appointment of the Petitioner No.1 by the impugned order dated 31^st October 2018. It also needs to be noted that as the advertisement did not prescribe the qualiication of ‘B.Com.’, there may be other meritorious candidates, who may not have applied and, therefore, the appointment of Petitioner No.1, though not fulilling the required criteria cannot be accepted. The Respondent No.2 has rightly conirmed the order passed by the Respondent No.3.

Resultantly, there is no merit in the petition. The petition fails and stands dismissed.