Non-Use Of Mandatory Portal Can't Be Ground To Reject Appointment When Portal Was Non-Functional: Bombay HC
A Division bench of the Bombay High Court comprising Justice M. S. Karnik and Justice Sharmila U. Deshmukh held that rejection of a teacher's appointment approval was unsustainable because the mandatory 'Pavitra Portal' was non-functional at the time of recruitment, and the Education Officer failed to respond to the school's prior communications. Background Facts A vacancy...
A Division bench of the Bombay High Court comprising Justice M. S. Karnik and Justice Sharmila U. Deshmukh held that rejection of a teacher's appointment approval was unsustainable because the mandatory 'Pavitra Portal' was non-functional at the time of recruitment, and the Education Officer failed to respond to the school's prior communications.
Background Facts
A vacancy for the post of Shikshan Sevak in the open category arose in Petitioner-School on 1st October 2020. It arose after the promotion of an Assistant Teacher to the position of Headmaster. The management submitted applications to the Education Officer on 25th July 2022 and 22nd August 2022. The applications sought information on the availability of any suitable surplus teachers for absorption. It requested permission to undertake recruitment through the 'Pavitra Portal' and to issue an advertisement. However, they received no response from the education authorities.
Therefore, the management proceeded to independently advertise the vacancy in two local daily newspapers 'Sakal' and 'Daily Lokmat'. The petitioner possessed the requisite G.D. Art qualification, and applied in response to the advertisement. She was appointed as a Shikshan Sevak after following the due selection process. A resolution was passed on 30th December 2022. A formal appointment order was issued to her on 2nd January 2023. The school management submitted a proposal to the Education Officer on 16th February 2023, seeking formal approval for the appointment. However, the proposal was rejected by the Education Officer.
Aggrieved by the same, the institution and the petitioner appointee filed the writ petition.
It was contended by the petitioners that the primary ground for rejection i.e. recruitment was not conducted through the 'Pavitra Portal' was invalid, as the portal itself was non-functional during that period. The petitioners relied upon the decision of Kalyansing Indrasing Rajput Vs. The State of Maharashtra, where it was observed that the Pavitra Portal was not operational until June 2024.
It was further submitted that management had made repeated written requests to the Education Officer seeking information on surplus teachers and permission to advertise the post, but no response was received. The reliance was placed on the judgment in Vidharbha Youth Welfare Society and another vs State of Maharashtra wherein it was held that the prior permission of the Education Officer is not necessary for filling a vacancy.
On the other hand, the Respondents-State supported the impugned order. It was contended that the government resolutions governing the recruitment process mandatorily require all appointments to the post of Shikshan Sevak to be made exclusively through the 'Pavitra Portal' system. It was contended that the Respondent had rightly rejected the proposal submitted by the Petitioner.
Findings of the Court
It was observed by the Court that the appointment proposal was rejected on the two grounds, firstly that the recruitment was not through the Pavitra Portal / Pranali and secondly that no permission was taken before issuance of the advertisement.
On the first ground, the case of Kalyansing Indrasing Rajput Vs. The State of Maharashtra was relied upon by the court wherein it was held that the 'Pavitra Portal' was non-functional from 2017 onwards until June 2024. It was held by the court that rejecting an appointment of petitioner made in January 2023 on the ground of non-use of a portal that was not operational was unsustainable and arbitrary.
On the second ground of not obtaining prior permission before advertisement, it was held by the court that the Petitioner management had send applications to the Education Officer seeking information about surplus teachers and for permission for publishing advertisement which did not meet with any response. It was held that the authorities having failed to respond to the petitioners' communications cannot reject the proposal.
Consequently, it was held that the order dated 28th February 2023, passed by the Education Officer was unsustainable. Further it was directed by the Court to the respondent Education Officer to grant individual approval to the appointment of Petitioner as a Shikshan Sevak with effect from her original appointment date of 2nd January 2023.
With the aforesaid observations, the writ petition filed by the petitioners was allowed by the court.
Case Name : Vidyapeeth Society, Kolhapur & Ors. Vs. The State Of Maharashtra & Ors.
Case No. : WRIT PETITION NO. 13868 OF 2023
Counsel for the Petitioners : Prashant Bhavake
Counsel for the Respondents : T.J. Kapre, A.G.P