IN WP 4174 OF 2022 BOM HC - Neither the Management nor Education Department on their own accord could cancel the appointment and approval for continuity of service as Assistant Teacher after successful completion of probation period that the Education Officer galvanised into action: Bombay High Court while holding that there was no justifiable reason to oscillate in interpreting the Government Resolution selectively
Justice G.S. Patel and Justice Neela Gokhale [03-07-2023]

Read More: Dinesh Sudam Patil v. The State Of Maharashtra

Simran Singh

New Delhi, July 4, 2023: The Bombay High Court has allowed the petition assailing the order passed by the Education Officer of the State of Maharashtra which refused to grant approval for continuity of service of petitioner 1 as Assistant Teacher who was an employee of petitioner 2, the Management.

The Division Bench comprising of Justice G.S. Patel and Justice Neela Gokhale stated that Government Resolution (GR) dated 20-0102016 inter alia provided that if a candidate, at the time of initial appointment could not be appointed in Group-C post although he possessed the educational qualifications, for want of a vacancy and he was compelled to accept a Group-D post, upon availability of a vacancy of a Group-C post, his cadre could be changed provided he was willing to work in the post of Shikshan Sevak first.

It was stated that petitioner 1 was willing, and he was so appointed. The Education officer had admittedly granted approval and now petitioner 1 had successfully completed the probationary period and was eligible to be granted continuity in the teaching post. Having approved the appointment of the petitioner 1 on probationary basis on teaching post, after examining his records,  the Bench was of the view that the Education officer, misinterpreted the provisions of the GR which could not be permitted to renege from his earlier approval and refuse to grant continuity to petitioner 1’s appointment.

The Bench observed that “Strangely, documents on record also indicate that the Education Officer himself, by his letter dated 17th December 2019 expressed an opinion holding the 1st Petitioner eligible for continuity. In reply to this opinion, the Deputy Director of Education, Mumbai Region by letter dated 4th February 2020 also accepted the recommendation and confirmed eligibility of the 1st Petitioner. What happens next is unfathomable. For no justifiable reason the same Education Officer, overturns his own opinion and that of the Deputy Director and refuses approval. The sole ground of refusal is that his initial appointment was not made by following the procedure in Rule 9 of the MEPS Rules read with GR dated 31st December 2022. We have already held that the Education Officer has misinterpreted the GR and refusal of approval on this ground cannot be sustained.”

In the matter at hand, it was averred that petitioner 1, despite having successfully completed the mandated probationary period of three years as Shikshan Sevak (trained graduate teacher) in the school run by the Management, respondents had refused the approval of continuity of service. The petitioner 1’s father was permanently employed in the school of petitioner 2 as a Peon and upon his death, petitioner 1 was eligible to be appointed as trained under-graduate teacher and hence sought compassionate employment as such. There was no vacancy in the teaching cadre at the relevant time and hence, the petitioner 1 accepted the post of junior clerk which was available in the School. He completed three years as Shikshan Sevak followed by continuing as Junior Clerk on a regular basis upon grant of approval by the Education Officer.

In the meantime, petitioner 1 had acquired the qualification of B.A. (Marathi) and B.Ed. and became eligible for a teaching post. In consonance with Government Resolution (GR) dated 20-01-2016, the petitioner 1 was appointed as Shikshan Sevak for a further period of 3 years as a lateral appointment from non-teaching to teaching, upon vacancy being available. The Education Officer gave his approval to the said appointment and allotted a Shalartha ID to petitioner 1 who had successfully completed the probation period. The Management had applied for approval for continuity of his services as Assistant Teacher on a regular basis. The Education Officer, Zilla Parishad, Thane as well as the Deputy Director of Education, Mumbai Region also recommended the grant of approval and sought guidance from each other. Finally, the Education Officer communicated the rejection of approval by order dated 28-12-2020. Hence the present petition.

The Bench noted that petitioner 1 had served the school as Shikshan sevak in Group C post from 01-04-2010 to 31-03-2013. Upon completion of the probationary period, his services were confirmed by the Management upon approval of the education officer. He improved his educational qualifications and became eligible for appointment as graduate trained teacher.

The Court stated that Section 5 of The Maharashtra Employees Of Private Schools (Conditions of Service) Regulation Act, 1977 (the MEPS Act) provided for certain obligations casted upon the Management of private schools, relating to filling up every permanent vacancy by the appointment of a person duly qualified to fill up the vacancy. “The scheme of section 5 also broadly outlines the procedure to be followed prior to filling up such posts. It further provides that a person appointed to fill a permanent vacancy of an Assistant Teacher (Probationary) shall be on probation for a period of three years.”

The Bench thus sated that it was sufficiently clear that petitioner 1 would be deemed to have been appointed and confirmed as a teacher, having successfully completed the probation period. The only exception to the deemed appointment was if the Management found the work or performance of the employee to be unsatisfactory during the probation period. The Management itself had sought approval of the continuity of service of the petitioner 1 and hence it was fair to presume that his services were found to be satisfactory and without blemish.

Advocate N.C. Walimbe appearing on behalf of the respondent sought to rely on Clause 10 which provided that if an employee appointed on compassionate ground in a Group-D post acquired higher qualification, he would be eligible for his appointment to the next post as per rules. Thus, this clause did not provide any exception to the enabling provision in the GR dated 20-01-2016 nor did it indicate any restriction on a change in cadre at all. “In fact, Clause 10 itself is an enabling provision and cannot be interpreted to be restrictive. Once the Education officer has approved the appointment of the 1st Petitioner in the teaching post for a mandated probation period, upon successful completion of the same, the approval for continuity cannot be withheld by the Education Officer at this stage, on any other ground save and except that provided in the statute. GR dated 20th January 2016 and 31st December 2022 must be read in aid of each other and their interpretation must be given harmonious construction. The former permits change of cadre in case the employee appointed on compassionate ground is compelled to accept a Group-D post in the absence of Group-C vacancy, despite being qualified for Group-D and the latter permits promotion of the employee to the next post upon acquiring higher qualifications as per the rules. Successive Education officers cannot render selective interpretation to provisions of the GR to grant or refuse approval to deserving employees.”

The Court stated that once the Education Officer had examined the necessary record of petitioner  1 and approved his appointment in the teaching post for the probation period, save and except as provided by law, could not refuse approval of continuity in service.

The Bench after perusing a catena of decision stated that equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee was an exception to the said norm. It was true that compassionate appointment was a concession and not a right. But in the present case, petitioner 1 was granted compassionate appointment in the year 2010 itself. “He was regularized in the Group-D post. Acting in aid of the GR dated 20th January 2016, a change of his cadre to the teaching post was approved. His eligibility is not in dispute. Now having successfully completed his probation period, refusal to grant approval to continued service is a grave travesty of justice. The 1st Petitioner has served the institute for as many as 23 years. No purpose will be served by depriving him of means of livelihood.”

The Court sated that neither the Management nor the Education Department, on their own accord cancel petitioner 1’s appointment. It was only when petitioner 1 successfully completed his probation period that the Education Officer galvanised into action. Even then the Education Officer and the Deputy Director of Education, Mumbai Region opined in favour of granting approval and suddenly for no justifiable reason oscillated in interpreting the GR selectively, to the detriment of petitioner 1 which was wholly unacceptable.

In view thereof, the Court stated that the petition was allowed and the impugned order dated 28-12-2020 was set aside.The Education Officer concerned was directed to grant approval to the continuity of service of petitioner 1 in the post of Assistant Teacher on regular basis within a period of 4 weeks. The grant in aid for payment of monthly salary as applicable was also directed to be released.