Position Cannot Remain Vacant For Indefinite Period If Govt Fails To Nominate Any Candidate Out Of Surplus Candidates: Bombay HC Reiterates

The Bombay High Court has set aside the rejection letter/order passed by the Deputy Director of Education, Kolhapur region which had refused to approve the appointment of the petitioner as ‘Shikshan Sevak’ in a junior college. 

The High Court relied upon the recent decision of the Bombay High Court in the case of Gramvikas Shikshan Mandal v. State of Maharashtra wherein it was held that “if the Government has failed to nominate any candidate out of the surplus candidates for filling up a vacancy and has also failed to communicate with the Management, the post cannot be allowed to remain vacant for an undetermined period”.

Deprecating the lackadaisical attitude adopted by the Education Department of the Kolhapur region, the Division Bench of Justice G.S. Patel and Justice Neela Gokhale noted that despite the earlier order, the Education Department of the same region had persisted in continuing its inflexible approach and had repeated itself over again, which is unacceptable.

While condemning the actions of the officers of the Government in ignoring the decisions of the Court, which resulted in multiple litigations on the same issue, the Bench reprimanded for the last time and abstained from imposing costs, and lashed out stating that they will start imposing costs personally on the officers concerned if they continue to brazenly ignore judicial orders.

Advocate Narendra Bandiwadekar appeared for the Petitioner, whereas AGP VM Mali appeared for the Respondent.

Facts leading to the challenge are that upon the superannuation of one permanent teacher Ramchandra Ramakant Khanolkar, a vacancy arose in the sanctioned post of a Full-Time teacher for the subjects of Marathi and Political Science. In pursuance of the mandate of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act), the school enquired about the availability of surplus candidates from the second Respondent. Receiving neither a reply nor a surplus candidate nominee for appointment, the school commenced the procedure to fill up the vacancy.

Later, an advertisement was issued, interviews were held, an examination was conducted and finally, the first Petitioner, having secured the highest marks amongst other candidates, was appointed to the post, according to a resolution passed by the Management. The first petitioner thus, joined service as ‘Shikshan Sevak’ and commenced the probation period on June 18, 2019. The school then submitted the required proposal to the second respondent for approval of the Petitioner’s appointment as ‘Shikshan Sevak’ on Jan 10, 2020. The second respondent, however, rejected the proposal on the ground that the procedure of obtaining prior approval was not followed. Hence, the present petition had been preferred challenging this refusal order.

After considering the submission, the Bench reiterated that time and again it was held that when the school Management informs the Education Department about a vacancy in its school seeking the latter’s permission for appointment, the Education Officer was expected to either forward names of suitable persons from the list of surplus teachers maintained by the Department or if no surplus teacher was available for absorption, permit the Management to appoint the teacher following regular appointment procedure.

“When the Education Officer does neither, the School Management is not expected to carry on with the vacancy awaiting a response from the Department indefinitely. This Court has thus directed the Education Department to grant approval to appointments made by the Management in such cases and disburse the honorarium as per Rules”, added the Bench.

The Bench said that unfortunately, the Department omits to act in aid of its obligations detailed in the very same Government Resolutions (GRs) when it specifically casts a duty on the Department to nominate a surplus candidate to fill up a vacant post as soon as the Management informs the Department of a vacancy required to be filled.

The Bench observed that the Management had been prompt in processing the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (MEPS Act) made thereunder, and it was only when no surplus candidate was nominated by the Department that the Management proceeded to appoint the first petitioner after following the selection process.

Despite the settled legal position, consistent decisions of this Court on this issue and directions in a recent matter to the Education Officer of the very same Kolhapur region, the Department had failed to respond with alacrity to act in conformation with the provisions of the MEPS Act and the decisions of this Court, added the Bench.

In view thereof, the High Court quashed the rejection letter and directed the second respondent to grant the requisite approval to the appointment of the first petitioner as ‘Shikshan Sevak’ from the date of his appointment and include his name in the Shalarth ID within two weeks from the date of the order.

Cause Title: Rajan Sahadeo Ratul and Anr. v. State of Maharashtra and Anr.

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