Bombay High Court
Anil Purushottam Ashtankar vs The Education Officer (Sec.) Zp, ... on 14 March, 2016
Bench: B.P. Dharmadhikari
Judgment wp5055.11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 5055 OF 2011.
Shri Anil Purushottam Ashtankar,
Aged 35 years, Occupation - Service,
resident of Nandgaon, Post Kodamendi,
Tahsil Mauda, District Nagpur.
ig ....PETITIONER.
VERSUS
1. The Education Officer (Secondary)
Zilla Parishad, Bhandara.
2. Janta Shikahsn Sanstha,
Khamari (Buti), Post Matora,
District Bhandara through its
Secretary.
3. The Headmaster,
Buti Vidyalaya, Khamari (Buti)
Post Matora, District Bhandara. ....RESPONDENTS
.
-----------------------------------
Mr. P.N. Shende, Advocate for Petitioner.
Mr. M.M. Ekre, Asstt. Govt. Pleader for Respondent No.1.
Mr. N.R. Bhishikar, Advocate for Respondent Nos.2 and 3.
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CORAM : B.P. DHARMADHIKARI
& P.N. DESHMUKH, JJ.
DATED : MARCH 14, 2016.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri P.N. Shende, learned Counsel for the petitioner, Shri
Ekre, learned A.G.P. for respondent no.1 and Shri N.R. Bhisikar, learned
Counsel for respondent nos. 2 and 3 on Civil Application No. 545/2016 for
grant of early hearing.
2. Denial of approval to the petitioner from 25.09.2002 and granting
it only from 25.02.2010, has been questioned in the present petition.
3. Reply affidavit filed by respondent no.1 shows that there was no
vacancy in the year 2002 and hence, the appointment could not have been
made.
4. Judgment of this Court dated 16.02.2010 in Writ Petition No.
3043/2008, between the parties in paragraph no.6 speaks as under :
"6. On 22.07.2002, Education Officer has given
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approval to respondent no.1 to fill in vacant post
because of sanction of additional sections in the School
in 2000-01. Advertisement was accordingly published
on 09.08.2002, and interview of petitioner in response
thereto is not in dispute. The interview was conducted
on 16.08.2002 and it was attended by respondent no.4
as also present respondent no.1 along with Shri
Rehpade as Headmaster, Shri Ghutke as Incharge
Headmaster and other Trustees. Total 13 persons were
present at the time of that interview. The appointment
letter dated 25.09.2002 produced by the petitioner
shows signature of President Shri Pandhariji Pawankar
and Secretary Shri Namdeoraoji Pawankar on it. The
fact that the petitioner thereafter started working in the
school and has worked till academic year 2004-05 is
not in dispute between the parties."
5. It is therefore, apparent that when on earlier occasion, a vacancy
was found and permission to fill it up was given, stand to the contrary in
affidavit reply without mentioning basic facts cannot be accepted.
Respondent no.1 has to point out what went wrong in 2002 and as to how
the vacancy was found and how a permission to fill in the same was granted.
In any case, question would be, how the petitioner can be blamed for this.
Admittedly, the petitioner is in the employment since 24.09.2002.
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6. The affidavit placed on record does not show consideration of
these aspects. The impugned order of approval also does not mention the
same.
7. Learned A.G.P. in this situation is seeking time to file additional
affidavit. However, filing of additional affidavit will only result in bringing
new facts which can then be disputed either by the management or the
petitioner. In this situation, when petitioner is continuing in service, we
find it appropriate to quash and set aside the approval granted to him to the
extent it refuses the same from 25.09.2002. The respondent no.1 shall
examine the records of the school for 2001-02 or 2002-03 and after
considering the staff justification and position as per law then prevailing,
attempt to find out whether the permission given by his office to fill in the
vacancy was correct or not.
8. We direct the petitioner and respondent nos. 2 and 3 to appear
before the respondent no. 1 for said purpose on 04.05.2016 and to abide by
his instructions in the matter. The respondent no.1 to complete the said
exercise as early as possible and in any case within a period of 3 months.
Needless to mention that the Education Officer shall also independently look
into the petitioner's prayer for releasing salary for the period claimed.
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9. In view of above discussion, Writ Petition is partly allowed. Rule
is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Rgd.
