988.2016WP.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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WRIT PETITION NO.988 OF 2016

Khan Abdul Lateef Abdul Rab Khan

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Age: 45 years, Occu. Service
R/o. Municipal Colony, Darga Road,
Parbhani PETITIONER

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VERSUS

1.
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The State of Maharashtra,
Through Deputy Director of Education
Aurangabad Division Aurangabad
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2. Parbhani Education Society,
Parbhani through its President,
Mohammad Abdul Rasheed Engineer,
Age: 82 Years, Occu: Social Worker &
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President,
R/o. Mominpura, Gujari Bazar,
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Parbhani, Dist. Parbhani

3. Dr. Zakir Hussain Junior College

of Science, Arts & Commerce
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Parbhani
Through its Principal RESPONDENTS

...
Mr.A.B.Tele, Advocate for the petitioner
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Mr.S.D.Kaldate, AGP for respondent no.1/State

Mr.A.S.Shelke, Advocate for Respondent nos.2
and 3
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.

Reserved on : 04.07.2016
Pronounced on : 01.08.2016

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JUDGMENT: (Per S.S.Shinde, J.):

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Heard.

2. Rule. Rule made returnable

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forthwith, and heard finally with the consent

of the parties.

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3. It
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is the case of the petitioner

that the petitioner is having qualification

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as M.Com, B.Ed. and Ph.D. After following

due procedure, he was appointed as a full­

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time Instructor in M.C.V.C. course for the

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subject “Accounting and Auditing” on

21.01.1994 on probation. The petitioner was

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appointed on sanctioned and clear vacant

post. Accordingly, his proposal was sent for

approval to the Authority concerned. The said

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Authority was pleased to grant approval vide

order dated 10.08.1994 to his post and the

same was continued by the Authority

concerned.

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4. It is further the case of the

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petitioner that after completion of probation

period, his services were confirmed on the

said post. As the post of teacher in Junior

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College in Commerce Faculty became vacant,

the institution advertised the said post on

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05.08.2014. The petitioner applied for the
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said post and requested respondent no.3 to
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recommend his name for the appointment on the

said post. The School Committee gave no

objection for such appointment.

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5. Pursuant to the advertisement, the

interviews were conducted on 16.08.2014. The

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petitioner, with permission of the

Institution, appeared for the interview. He

came to be selected and appointed as Junior

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College teacher in respondent no.3 College,

by appointment order dated 19.08.2014. He

was relieved from his earlier post so as to

join the services as teacher in Junior

College on 20.08.2014. Respondent no.3

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College sought no objection from the

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approving Authority to relieve the petitioner

from the post which was occupied by him prior

to joining as teacher in the Junior College.

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The concerned Authority, by letter dated

19.12.2014, has given no objection to the

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appointment of the petitioner as a teacher in
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the Junior College.
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6. It is further the case of the

petitioner that the proposal for grant of

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approval to the appointment of the petitioner

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as teacher in the Junior College was

submitted to respondent no.1 authority on

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23.03.2015. On receipt of the said proposal,

respondent no.1 asked the respondent

institution to cure deficiencies / lacunae in

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the said proposal. Accordingly, respondent

no.3 College removed the said deficiencies /

lacunae. Respondent no.3 made constant

endeavour by sending reminders to respondent

no.1 for giving approval to the appointment

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of the petitioner as teacher in the Junior

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College.

7. Respondent no.1 by his letter dated

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26.10.2015, intimated respondent no.3 that

the approval cannot be granted as the

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management has not taken permission before

appointing
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the petitioner to the post of

teacher in the Junior College and also the

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petitioner was working as full­time

Instructor in Vocational Education and

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Training Institute, Aurangabad. The said

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Department is altogether different and the

petitioner should not have been appointed as

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teacher in the Junior College rather he

should have been appointed as Shikshan Sevak.

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8. The learned counsel appearing for

the petitioner submits that respondent no.3

is a minority institution and can appoint the

employee of its choice. The petitioner was

appointed on clear vacant, permanent and

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sanctioned post. Respondent no.1 has not kept

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in view the Government Resolution dated

15.09.2011 while considering the request for

approval to the appointment of the petitioner

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as teacher in Junior College. It is submitted

that the petitioner has rendered 20 years of

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satisfactory ig service, and therefore, the

approval ought to have been granted to his

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services. The learned counsel for the

petitioner invites our attention to the

Resolution dated 15.09.2011 issued by the

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School Education and Sports Department,

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Government of Maharashtra, wherein the

Government has laid down the policy of

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absorption of a teacher, appointment of

teacher in institution / school, who has

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worked earlier on regular basis. He submits

that the petitioner has earlier worked as

teacher, and therefore, his appointment as

teacher in the Junior College cannot be as

Shikshan Sevak as mentioned by respondent

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no.1 in the impugned communication. The

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learned counsel invites our attention to

Section 2 (24) of the Maharashtra Employees

of Private Schools (Condition of Service)

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Regulation Act, 1977 (for short ‘the Act of

1977’) and submits that “School” means a

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primary school,
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secondary school, junior college of education

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or any other institution by whatever name

called including technical, vocational or art

institution or part of any such school,

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college or institution, which imparts

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general, technical, vocational, art or, as

the case may be, special education or

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training in any faculty or discipline or

subject below the degree level. Therefore,

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he submits that though the petitioner has

rendered earlier service in vocational school

in view of the definition of the school even

Junior College of Education is included, and

therefore, the appointment of the petitioner

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from one school to another school cannot be

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said to be from different streams.

9. On the other hand, the learned AGP

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appearing for the respondent – State relying

upon the averments in the affidavit­in­reply

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filed on behalf of respondent no.1 submits
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that for the reasons set out in the impugned

communication/order, the Petition deserves to

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be rejected.

10. The learned counsel appearing for

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the respondent management submits that the

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petitioner is appointed in accordance with

the prescribed procedure, and therefore, the

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Petition deserves consideration.

11. We have considered the submissions

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of the learned counsel appearing for the

parties. With their able assistance, perused

the pleadings in the Petition, annexures

thereto, reply filed by respondent no.1 and

also the Government Resolution dated

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11.08.2003 issued by the School Education

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Department, Government of Maharashtra, the

order passed by the Division Bench of this

Court in Writ Petition No.3707/2013 (Parbhani

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Education Society Vs. The State of

Maharashtra and another) and also the

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Government Resolution dated 15.09.2011 issued
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by the School Education and Sports
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Department, Government of Maharashtra. By

the impugned communication, respondent no.1

has shown inability to grant approval to the

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appointment of the petitioner as teacher in

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the Junior College. Upon careful perusal of

the impugned communication, it appears that,

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the following reasons are assigned for not

granting approval; (i) prior permission to

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fill­up the post of teacher in respondent

no.3 College has not been taken from the

Competent Authority; (ii) the office of the

Deputy Director is empowered to grant

approval to the post on grant­in­aid basis;

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(iii) earlier School wherein the petitioner

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has rendered the services as Instructor comes

under the supervision and control of the

Deputy Director, Higher Secondary School,

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Vocational Education and Training, Regional

office Aurangabad, which comes under the

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control of Technical
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Government of Maharashtra. The School

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Education and Technical Education are

different Departments. Therefore, the

appointment of the petitioner is fresh. In

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case of the fresh appointment, the

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appointment has to be on the post of Shikshan

Sevak. Therefore, the appointment of the

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petitioner is not in accordance with the

procedure established.
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12. With the aforesaid reasons,

respondent no.1 refused to accord approval to

the appointment of the petitioner and showed

inability to forward the said proposal to the

Higher Authority.

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13. The contention of the learned

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counsel for the petitioner is that since the

respondent Institution is a minority

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institution, and therefore, prior permission

to fill­up the post of teacher in respondent

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no.3 College was not necessary. In support
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of his contention, the learned counsel for

the petitioner has placed reliance on the

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unreported judgment of the Bombay High Court

Bench at Aurangabad in the case of Parbhani

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Education Society (supra). However, the

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Supreme Court in the case of Kolawana Gram

Vikas Kendra Vs. State of Gujarat & others1,

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while considering the issue whether the

requirement of prior approval of the

Government Authority is necessitated before

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the selection process for the appointment is

initiated by the minority institution to

select the candidates, has taken a view that,

the requirement of prior permission is

1 2010(1)SCC 133

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necessitated because it is for the Government

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to see as to whether there was actually posts

available in the said institution as per the

strength of students and secondly; whether

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the candidates, who were sought to be

appointed, were having the requisite

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qualification igin terms of the rules and

regulations of the Education Department. Para

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6 of the said judgment reads thus :­

“6. In our considered view, we do

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not view this to be the interference

in the selection process. It would
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be perfectly all right for a

minority institution to select the
candidates without any interference
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from the Government. However, the

requirement of this prior approval
is necessitated because it is for
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the Government to see as to whether

there was actually post available in
the said institution as per the
strength of students and secondly;
whether the candidates, who were
sought to be appointed, were having

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the requisite qualification in terms
of the rules and regulations of the

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Education Department.”

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14. The second reason assigned by

respondent no.1 that the petitioner has

earlier served in the school imparting

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vocational education
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earlier services cannot be treated or

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considered, appears to be in ignorance of the

provisions of Section 2 (24) of the Act of

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1977. The section 2 (24) of the Act of 1977

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reads thus:
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2.(24) “School” means a primary

school, secondary school, higher
secondary school, junior college of
education or any other institution
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by whatever name called including

technical, vocational or art
institution or part of any such
school, college or institution,
which imparts general, technical,
vocational, art or, as the case may

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be, special education or training in
any faculty or discipline or subject

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below the degree level;

15. Therefore, upon perusal of the

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aforementioned provision, it is abundantly

clear that the “School” includes vocational

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institution which imparts vocational
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education / training. If that be so, it was

not necessary that the petitioner should have

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been appointed as Shikshan Sevak treating him

as a fresh appointee.
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16. The third reason raised by

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respondent no.1 that the School Education and

Technical Education are two separate

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Departments of the State Government, and

therefore, the petitioner’s appointment will

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have to be treated as fresh appointment for

the Education Department deserves to be

reconsidered by respondent no.1.

17. Upon perusal of the copies of the

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documents placed on record, it appears that

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the petitioner was appointed as Instructor in

M.C.V.C. course for the full­time subject

Accounting and Auditing. It further appears

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that the said subject has homogeneity with

the subjects audit in the Commerce College.

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It further appears from the pleadings in the
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Petition that the petitioner is possessing
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M.Com. B.Ed. and Ph.D. degrees. Therefore, he

is fully qualified for the appointment to

the post of teacher in the Junior College.

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Therefore, keeping in view the definition of

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the School reproduced herein above and the

appointment of the petitioner as Instructor

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in Accounting and Auditing and the

qualifications, he is eligible for the

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appointment to the post of teacher. In

schedule­B under the Maharashtra Employees of

Private Schools Rules, 1981 for the Commerce

Group, the qualification provided for

appointment as full­time teacher is (a)

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Master’s Degree in at least 2nd Class of a

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statutory University in the respective

subject / faculty or its equivalent

qualification recognised by the Government;

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and (b) Three years’ experience either in the

teaching or in the profession or both

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combined. ig
18. The Government Resolution dated
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15.09.2011 issued by the School Education and

Sports Department (Exhibit­K Page­35) reads

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thus:
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jkT;kr izkFkfed] ek/;fed o mPp ek/;fed ‘kkGk@dfu"B

egkfo|ky;s] v|kid fo|ky;s] ’kkldh; fo|kfudsrus o lSfudh
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‘kkGk ;ke/;s fofgr ekxkZus f’k{k.k lsod inkoj fu;qDrh gksowu]

rhu o"ksZ fu;fer f’k{k.k lsod inkojhy lek/kkudkjd lsok iw.kZ
d:u fu;fer f’k{kd inkoj fu;qDrh >kysY;k f’k{kdkauk
B

vkf.k ;k ‘kkGkae/khy 100 VDds ‘kklukdMwu @ LFkkfud LojkT;

laLFkkadMwu osru vuqnku izkIr gksr vlysY;k fu;fer f’k{kdkauk
¼vls f’k{kd f’k{k.k lsod ;kstusrwu vkysys vlksr vFkok ulksr ½
fofgr ekxkZus uO;kus f’k{kd inkoj fu;qDrh nsrkauk R;kauk f’k{k.k
lsod Eg.kwu fu;qDrh u nsrk fu;fer f’k{kd Eg.kwu fu;qDrh
ns.;kpk fu.kZ; ‘kklukus ?ksryk vkgs- v’kh fu;qDrh nsrkauk

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[kkyhy vVh o ‘krhZ ykxw jkgrhy %&

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1½ lacaf/kr f’k{kdkph fofgr izfdz;sOnkjs fuoM gksÅu
R;kus rhu o”kkZpk f’k{k.k lsodkpk dkyko/kh iw.kZ d#u R;kph

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fu;fer f’k{kd inkoj fu;qDrh >kysyh vlsy vFkok rks
‘kklukdMwu @ LFkkfud LojkT; laLFkkadMwu 100 VDds osru
vuqnku izkIr fu;fer f’k{kd vlsy-

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2½ lacaf/kr f’k{kdkph fofgr ekxkZus uO;kus fuoM
gksÅu jkT;kr izkFkfed] ek/;fed o mPp ek/;fed
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‘kkGk@dfu"B egkfo|ky;s] v|kid fo|ky;s] ‘kkldh; fo|
kfudsrus o lSfudh ‘kkGk ;ke/;s lgk;~;d f’k{kd inh fu;qDrh
>kY;kl R;kph rRiqohZph lsok fuo`RrhosruklkBh xzkg; jkghy-
y
ba

3½ v’kk fu;fer f’k{kdkaph izkFkfed ‘kkGse/kwu

izkFkfed ‘kkGse/;s] ek/;fed ‘kkGse/kwu ek/;fed ‘kkGse/;s] mPp
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ek/;fed ‘kkGk@dfu"B egkfo|ky;krwu mPp ek/;fed

‘kkGk@dfu"B egkfo|ky;ke/;s] v|kid fo|ky;krwu v|kid
fo|ky;kr] lSfudh ‘kkGsrwu lSfudh ‘kkGse/;s uO;kus fu;qDrh
B

>kY;kl R;kP;k osrukl laj{k.k jkghy- v’kh fu;qDrh izkFkfed

e/kwu izkFkfed fdaok ek/;fed Eg.kwu ek/;fed v’kk izdkjP;k
leku inkoj >kysyh vlsy rjp osrukl laj{k.k vlsy- ek=
izkFkfed e/kwu] ek/;fed fdaok mPp ek/;fed vFkok ek/;fed
e/kwu mPp ek/;fed ‘kkGk@dfu"B egkfo|ky;kr v’kk osxG;k
inkoj fu;qDrh >kY;kl osrukl laj{k.k jkg.kkj ukgh-

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19. The conditions laid down in the said

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Government Resolution, show that it is always

not necessary that there should always be

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appointment firstly as Shikshan Sevak prior

to appointment as full­time teacher. It

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appears that respondent no.1 has not taken

into
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consideration the fact that the

petitioner has rendered considerable length

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of service on the post of Instructor.

Therefore, in the light of discussion in the

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foregoing paragraphs, it can be inferred that

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respondent no.1 has not properly considered

all the aspects of the matter and by giving

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cryptic reasons, without going to the root of

the matter, relevant provisions of the MEPS

Rules and the relevant Government Resolutions

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proceeded to issue the impugned communication

/ order.

20. In that view of the matter, the

impugned communication / order dated

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26.10.2015 stands quashed and set aside.

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Respondent no.1 is directed to re­consider

the issue of approval to the appointment of

the petitioner keeping in view the discussion

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in the foregoing paragraphs and also the

relevant Rules / procedure and the law laid

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down by the
ig High Court and the Hon’ble

Supreme Court. Respondent no.1 to afford an

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opportunity of hearing to the petitioner and

the respondent management and also allow the

petitioner to place on record the copies of

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the documents in respect of his case.

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Respondent no.1 shall also summon the record

from the office of respondent nos.2 and 3 and

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then take decision afresh. The petitioner and

the representatives of respondent nos. 2 and

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3 shall appear before respondent no.1 on

10.08.2016. Respondent no.1 may hear the

parties on the same date or may fix one more

date, however, complete the entire exercise

including taking decision afresh as

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expeditiously as possible, however, within 10

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weeks from today.

21. The rule is made absolute in the

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above terms. The Petition stands disposed of

accordingly. No costs.

h
Sd/­ Sd/­

[SANGITRAO S.PATIL]
JUDGE
ig [S.S.SHINDE]
JUDGE
H
DDC
y
ba
om
B

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