Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 207 (BOM)

BHUSHAN, ARVIND SONAWANE v. STATE OF MAHARASHTRA

2005-02-16

M.G.GAIKWAD, V.C.DAGA

body2005
Judgment M. G. GAIKWAD, J. ( 1 ) RULE returnable forthwith. By consent of parties, petitions are heard and decided finally. ( 2 ) THE petitioners in all these petitions are the employees of Ashram school run by respondent No. 4 Dnyan Vikas Mandal, Indave, Tq. Sakri, Dist. Dhule. The proposal for approval of their appointments has been rejected by common order dated 31/3/2004 by respondent No. 2. The said order is challenged by them by preferring separate writ petitions. The validity of order of rejection of approval being the common question in all these four petitions, these petitions are decided by this common judgment. ( 3 ) RESPONDENT No. 4 Society runs aided Ashram School at Indave, Tq. Sakri, Dist. Dhule. The petitioner Yogesh Deore has been appointed as Assistant teacher in the year 1999-2000. He belongs to open category. Petitioner Bhushan sonavane; who belongs to open category, is appointed as Assistant Teacher in the year 2000-01. Petitioner Jotising Bagul, who belongs to Scheduled Tribe category, is appointed in the year 2001-02. Petitioner Pravin Sonavane who belongs to Other Backward Category is appointed in the year 1999-2000. Their appointments were made after following necessary procedure i. e. by calling applications by publishing advertisement in the local newspaper. Respondent nos. 2 and 3 granted approval to their appointments in the respective years. However, respondent No. 2 by his order dated 31-3-2004 rejected approval of 7 employees including these petitioners, for the year 2003-04, on the ground that their appointments have not been made following the procedure prescribed for appointments. Being aggrieved by the said order of rejection of approval, petitioners preferred present petitions. ( 4 ) THE learned counsel appearing for the petitioners submitted that the appointments of these petitioners were made following the due procedure. Before appointments, applications were called by publishing advertisement in the local newspapers. There is also a compliance of reservation policy. So there were no reasons to reject the approval and the impugned order is not justified and needs to be quashed and set aside. ( 5 ) ON behalf of respondents 1 to 3 affidavit in reply has been filed on record. The contentions raised on behalf of respondents 1 to 3 are that the petitioners were appointed without following the procedure for the earlier academic years. ( 5 ) ON behalf of respondents 1 to 3 affidavit in reply has been filed on record. The contentions raised on behalf of respondents 1 to 3 are that the petitioners were appointed without following the procedure for the earlier academic years. Temporary approval was granted on condition that their services are temporary and directions were given to the management to follow the roaster in the school. Though such contention is raised, Mrs. Gondhalekar, Additional government Pleader appearing on behalf of respondents 1 to 3 fairly admitted that there is no breach of reservation policy and the management has followed the roaster. It is also admitted by her that the appointments were made by giving advertisement by following the procedure i. e. by calling applications by advertisement for the said posts. The main contention raised on behalf of respondents 1 to 3 is that these appointments are made in contravention of government Resolution dated 10-4-1991 that is to say the management has not called list of eligible candidates from Employment Exchange nor obtained certificate of non-availability of candidates from Employment Exchange. ( 6 ) THE facts are admitted that the school in question is a aided school. The learned A. G. P. submitted details about the sanctioned post of Assistant Teachers. In the year 2002-03 sanctioned posts of Assistant Teachers were five in number. Respondent No. 3 also submitted a chart which shows that while giving appointments to the petitioners and other employees, the management has strictly complied the reservation policy also. In the impugned order passed by respondent no. 2 refusing the approval, the reasons have been recorded that the procedure prescribed is not followed and also the reservation policy. In case of Pravin sonavane, the additional reason is recorded for rejection of approval that he is not possessing necessary qualification. Though such reasons are recorded in the order of rejection of approval, the respondents could not point out that any one of the petitioners is not possessing necessary qualifications. On the contrary, the management as well as petitioners produced on record the documents which show that all petitioners are possessing necessary qualifications. Though in the order, it is alleged that reservation policy is not followed, the chart submitted by respondent No. 3 shows compliance of reservation policy in the strict sense. On the contrary, the management as well as petitioners produced on record the documents which show that all petitioners are possessing necessary qualifications. Though in the order, it is alleged that reservation policy is not followed, the chart submitted by respondent No. 3 shows compliance of reservation policy in the strict sense. So the case needs to be considered whether there is breach of any procedure prescribed for appointment under the rules. ( 7 ) AS regards procedural defects, it is contended that advertisement was not forwarded with the proposal but the fact remains that before the appointments, advertisement was published, so there is compliance of that provision also. Not only this, but after the appointment of petitioners, the department has granted approval to the appointments and also released salaries for the year 1999-2000, 2000-01, 2001-02 and 2002-03. It has also been pointed out that respondent No. 3 also participated in the selection process and at the time of selection, he did not object the selection process or appointments on the ground of non-observance of any procedural aspects. ( 8 ) THE last contention to be considered is about the breach of conditions in government Resolution dated 10-4-1991. By the said Government Resolution, directions were issued that the institution shall call lists from Employment exchange as well as from Social Welfare Department and in case the candidates are not available with those departments, then applications shall be called by giving advertisements. Admittedly in the present case, such lists were not called from the Employment Exchange but the department did not take this objection when first time the appointments of these petitioners were made in the respective years and granted approval to their appointments for about three years. So, non- observance of that conditions cannot be a ground to reject approval after 3 to 4 years. From this conduct it can be inferred that said condition has been waived by respondents 1 to 3. After 4 years, they cannot reject the approval on the ground which they have already condoned or waived. Apart from this fact, this compliance is required under sub-rule (8) of Rule 9 of Maharashtra Employees of private Schools (Conditions of Service) Rules 1981. Sub-rule (11) of Rule 9 is clear that the requirements of sub-rules (7) and (8) shall not apply to a school having 10 or less than 10 posts. Apart from this fact, this compliance is required under sub-rule (8) of Rule 9 of Maharashtra Employees of private Schools (Conditions of Service) Rules 1981. Sub-rule (11) of Rule 9 is clear that the requirements of sub-rules (7) and (8) shall not apply to a school having 10 or less than 10 posts. It is admitted fact that in the present case, in the respective years, total sanctioned strength was less than 10. So in view of sub- rule (11) of Rule 9 also there is exemption of the procedure prescribed under rule 8. So on this count also the order of rejection of approval passed by respondent No. 2 is not sustainable and needs to be set aside. ( 9 ) IN view of the above facts, in our considered opinion, the order of rejection of approval dated 31-3-2004 passed by respondent No. 2 is not justified and needs to be set aside by allowing these petitions and to give direction to respondents 1 to 3 to grant approval to the appointments of petitioners. ( 10 ) IN the result Writ Petition Nos. 6616, 6624, 6630 and 6637 of 2004 are allowed. The order of rejection of approval dated 31-3-2004 passed by respondent No. 2 is quashed and set aside. The respondents are directed to grant approval to the appointments of these petitioners. ( 11 ) RULE made absolute in above terms with no order as to costs. Petitions allowed.