Bombay High Court
Rajendra Dattatraya Amlekar vs State Of Maharashtra & 3 Ors on 16 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2340/2003
Rajendra s/o Dattatraya Amlekar,
Aged about 38 years,
R/o.-House of Shri Pande, Laxminagar, Yavatmal. PETITIONER
.....VERSUS.....
1] State of Maharashtra through its Secretary,
Education Department, Mantralaya, Mumbai-32.
2]
Education Officer (Secondary), Yavatmal.
3] Vishudha Vidyalaya, Yavatmal,
through its Secretary
Shri Ashok Govindrao Yerawar,
Umarsara Road, Yavatmal.
4] Rani Laxmibai Vidyalaya, Shivaji Nagar,
Yavatmal, through its Head Mistress. R
ESPONDENTS
None for the petitioner.
None for the respondent nos. 3 and 4.
Ms Tajwar Khan, Assistant Government Pleader for respondent nos.1 and 2.
Coram : Smt. Vasanti A Naik &
Kum. Indira Jain, JJ.
Dated : 16
August, 2016.
th
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J.)
By this Writ Petition the petitioner challenges the order of cancellation
of approval to the appointment of the petitioner, dated 05-10-2001.
The respondent no.3-Society runs the respondent no.4 School which
receives grant in aid since the year 1957. The petitioner was appointed on
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the post of Laboratory Attendant, after issuance of an advertisement in the
daily newspaper and conducting the selection process as per the procedure. It
is the case of the petitioner that the petitioner was appointed as a Laboratory
Attendant on a clear and sanctioned vacancy that was caused due to the
retirement of one Shri Kelapure. The proposal for grant of approval to the
appointment of the petitioner was sent to the Education Officer. The
Education Officer granted approval to the appointment of the petitioner by an
order dated 25-09-2001. The petitioner started receiving the salary from the
State exchequer as the school was receiving grant in aid. By the impugned
order dated 05-10-2001, the approval to the appointment of the petitioner was
cancelled.
On a perusal of the Writ Petition and the documents annexed thereto, it
appears that it is the case of the petitioner that the approval to the
appointment of the petitioner was mainly cancelled because at the relevant
time, the State Government had imposed restrictions on private managements
receiving grant in aid, on filling up the posts of teaching and non-teaching
staff. According to the petitioner, the approval to the appointment of the
petitioner could not have been cancelled as the post of the Laboratory
Attendant is a solitary post in the respondent no.4 school and it is sanctioned
since the inception. According to the petitioner, the said vacancy in the
solitary post of Laboratory Attendant had occurred due to the retirement of
Shri Kelapure and after the petitioner was duly appointed and his services
were approved, the respondent/Education Officer (Secondary) could not have
cancelled the approval to the appointment of the petitioner without recording
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any reasons. According to the petitioner, the case of the petitioner stands fully
covered in favour of the petitioner by the order in Writ Petition
No.1280 of 2002.
Ms Khan, the learned Assistant Government Pleader states that in the
absence of an affidavit in reply filed on behalf of the Education Officer
(Secondary), it would not be possible to make a statement whether the
approval to the appointment of the petitioner was cancelled only because of
the ban imposed by the State Government. It is stated that there may be
other reasons for cancelling the approval to the appointment of the petitioner.
It is however fairly admitted that the order is sans reasons and it was necessary
for the Education Officer to have recorded at least some reasons while
cancelling the approval of the petitioner.
On a perusal of the Writ Petition and on hearing the learned Assistant
Government Pleader, we find that the impugned order cannot be sustained. It
is well settled that the approval to an appointment cannot be cancelled unless
the appointee is heard and some reasons are recorded for cancelling the
approval. The impugned order is extremely cryptic and does not record a
single reason for cancellation of the approval to the appointment of the
petitioner. It is well settled that an order sans reasons is not an order in the
eye of law and the same is liable to be quashed and set aside. Also, in the
absence of an affidavit in reply filed on behalf of the Education Officer
(Secondary), it would be necessary to believe the case of the petitioner that
the approval to the appointment of the petitioner could have been cancelled
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only because there was a ban imposed by the State Government on
appointments to the teaching and non teaching posts. Though the Writ
Petition is filed in the year 2003, the Education Officer (Secondary) has not
filed any reply till date. By an ad interim order, we had directed the
respondent-Education Officer to grant provisional approval to the appointment
of the petitioner during the pendency of the Writ Petition. The petitioner
therefore continued to receive the salary from the Government exchequer as
his services are approved during the pendency of the Writ Petition. Since the
petitioner has worked for more than 15 years on the post of Laboratory
Attendant, in our considered view, the respondent-Education Officer
(Secondary) may not cancel the approval to the appointment of the petitioner
only on the ground that a ban was imposed by the State Government on
appointments, at the relevant time. It would be necessary to quash and set
aside the impugned order and direct the respondent-Education Officer
(Secondary) to grant and continue the regular approval to the appointment
of the petitioner if the petitioner is qualified to hold the post of Laboratory
Attendant.
Hence, for the reasons aforesaid the Writ Petition is allowed. The
impugned order is quashed and set aside. The respondent- Education Officer
(Secondary) is directed to grant and continue regular approval to the
appointment of the petitioner if the petitioner is qualified to hold the post of
Laboratory Attendant. It is needless to mention that the petitioner would get
the benefit of continuity of service after the initial approval is granted and
continued in favour of the petitioner by the Education Officer. The regular
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approval may be granted in favour of the petitioner within one month.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUD
GE
Deshmukh
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true
and correct copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 19/08/2016
P.A. to the Hon'ble Judge.
