2017 (0) AIJ-MH 176614

BOMBAY HIGH COURT

Hon'ble Judges:B.P.Dharmadhikari and Swapna Joshi JJ.

Women's Education Society Versus State Of Maharashtra

with

Lady Amrita Daga College For women Of Arts Versus State Of Maharashtra


WRIT PETITION No. 6419 of 2017 ; *J.Date :- OCTOBER 5, 2017


Equivalent Citation(s):
2017 AIJEL_MH 176614 : 2017 JX(Mah) 1015


JUDGEMENT :-

B.P.DHARMADHUIKARI, J.

1 Rule. Rule, made returnable forthwith. Heard finally.

2 This Court has, on 29th September 2017, issued notice after taking note of the fact that Principal of the petitioner no.2-College superannuates on 31.10.2017 and hence the petitioners needed permission to proceed further to fill in that vacancy as per law.

3 While issuing notice on 29th September 2017, this Court also directed respondent no.2-Joint Director, to consider the proposal seeking such permission submitted by petitioner no.1 and annexed to Writ Petition as Annexure 'J' &'L' therein.

4 Learned A.G.P. appearing for respondents 1, 1A, 2 and 4 has produced before this Court the order dated 3.10.2017 passed by respondent no.2-Joint Director along with copy of Government Resolution (G.R.) dated 15th March 2012 issued by respondent no.1A. Copies of these documents are also handed over to counsel for petitioners in Court. In view of 'no objection' given by counsel for petitioners, these documents are taken on record and marked as Exh.'X' collectively, for identification's sake.

5 On the basis of order dated 3.10.2017 passed by respondent no.2, learned AGP submits that earlier policy decision dated 25th May 2017 or Circular dated 10th July 2017 need to be construed harmoniously in the backdrop of original G.R. dated 11th February, 2016 issued by Finance Department (respondent no.1). She points out that anxiety of respondent nos. 1 and 1A was/is to reduce financial burden and, therefore, to reduce number of posts. According to her, therefore, not only creation of new posts but the exercise of filling in existing sanctioned posts after they fall vacant, is also prohibited. She submits that all employers governed by the said earlier decision, are expected to evaluate workload available with them because of advance in technology and redetermine the complement i.e number of teaching and non-teaching staff required. Unless and until such staff justification is worked out and it is sanctioned by competent authority, even an existing vacancy cannot be filled in.

6 She invited our attention to Exh,."X", to urge that therein because of this position and inability on part of respondent no.2 to permit the petitioners to fill in vacancy, via media prescribed in G.R. dated 15th March 2012 has been pointed out. She submits that petitioners should take recourse to it and fill in the vacancy after 31st October, 2017. After the staff justification with petitioners is approved, steps to fill in the post of Principal on permanent basis can be initiated. She therefore submits that the grievance made is erroneous.

7 In brief reply, Advocate Naik points out that efforts have been made by petitioners to obtain sanction to staff justification after 2012 continuously every year. Last staff approval has been granted in the year 2012 and post of Principal has been shown sanctioned in it. Thereafter every year, in proportion with number of students taking education, necessary proposal for sanctioning the staff strength has been submitted, but those proposals submitted since 2013 are still under consideration of Department.

8 He points out that G.R. dated 15th March 2012 speaks of minority institution and petitioners before this Court do not fall in that category. He further submits that to reduce burden on public exchequer, effort of respondents is to reduce number of sanctioned posts. The policy decisions mentioned supra, therefore, prohibit creation of and sanction to new posts and do not pertain to existing vacancies. According to him, the words "creation of posts" and "recruitment" need to be interpreted together and recruitment only to new posts is prohibited.

9 He points out that when petitioners are in a position to fill in vacancy of Principal permanently as per law before 31st October 2017, the respondents cannot force it to fill in the same on officiating basis.

10 In view of these arguments, with the assistance of respective counsel we have perused the papers. It appears that on 22.8.2017 petitioners have written to respondent no.2 pointing out that as per last staff approval granted on 18.12.2012, the post of Principal is sanctioned and it is becoming vacant on 31.10.2017 after superannuation of the incumbent. They have also mentioned that roster requirement has been examined by the Assistant Commissioner of Backward Cell and as post is isolated, the Backward Cell has replied that roster does not apply to it. The respondent no.3-University has also given 'no objection' to fill in that post on 23rd August, 2017 from open category.

11 Thus, with these clearances and no objection, petitioners have approached the office of respondent no.2 and sought necessary permission.

12 Insofar as the alleged bar in various GRs mentioned supra is concerned, the basic document appears to be G.R. dated 11th February, 2016 issued by Finance Department. It is on subject of review of existing number of approved/ sanctioned post in various departments and for modifying the complement. This G.R. mentions that considering the alterations in working pattern, increasing use of modern technologies the manual workload is reduced day-by-day and hence it has become necessary to give up such unnecessary/superfluous posts. This G.R. therefore directed that all administrative departments should accordingly review staff strength with them and obtain approval to revised staff strength by September,2016. It further mentions that post continuing on temporary basis were given life from 1.3.2016 upto 30th September, 2016 and if such approval to revise staffing strength is not obtained, the burden of wages payable to such holders of temporary posts would be entirely of the concerned Department.

13 On 16.9.2016 this time limit given upto end of September, 2016 was increased to end of April,2017 and on 25th May 2017 new deadline prescribed was 31st August, 2017.

14 In this challenge, we do not find it necessary to comment on object of State Government behind issuing these policy decisions. It is not in dispute that after approval granted in 2012, various proposals submitted by petitioners from time to time are still under consideration and have not been either rejected or approved.

15 The petitioners run a College and in such a touching institute, the posts on teaching side or on non-teaching side are sanctioned in proportion to strength of students. If the strength of students increases, number of posts increase and if the strength decreases the number of posts also decrease. The question therefore is whether the alleged use of modern technologies or advances in office work can be co-related with this activity of teaching. If it can be, the revised student-teacher ratio could have been pointed out by respondents to petitioners and they could have been thereafter required to work out the strength of teaching and non-teaching staff with them, but that has not been done.

16 It is known to everybody that such a ratio of staff-student strength is applicable on uniform basis to all institutes receiving Government aid in entire State and therefore it is not left to the discretion of a particular employer to work out for its own college or school. This ratio is therefore required to be worked out by State Government only and then the strength of students and requirement of staff is evaluated and determined accordingly. This ratio is predetermined and on the basis of that ratio the requirement of staff is worked out.

17 In recent matter, insistence of respondents is upon employers, to reduce number of superfluous posts i.e. posts found in excess with them. Whether there can be such an insistence for an educational institute in absence of any predetermined ratio therefore is the question which really needed answer. The order dated 3rd October 2017 produced at Exh. "X" today does not consider this aspect at all.

18 Here, we are satisfied that petitioners have got a sanctioned post of Principal. There is only one post of Principal and hence it is highly improbable that said post would be rendered surplus and therefore recruitment thereto may be unwarranted. Considering the facts at hand, we find application of mind in Exh.X unsustainable. The so called rationalization or adoption to modern technique /method cannot have any impact on an isolated post of Principal of a College. The petitioners cannot be forced to accept any provisional or officiating arrangement. The petitioners have already prepared themselves for filling in the posts on permanent basis on superannuation of present incumbent.

19 In this situation, we quash and set aside the communication dated 10.7.2017 at Annexure "G' and also the order dated 3.10.2017 at Exh.'X'.

20 We direct the respondent no.2-Joint Director, to give necessary permission to petitioners to fill in the post of Principal which is falling vacant on 31.10.2017, at the earliest.

21 Rule is made absolute in the aforesaid terms, with no order as to costs.