Nitin Vijay Thorat vs The State Of Maharashtra And ...
2016 Latest Caselaw 6459 Bom

                                                           WP 11205/2015
                                       - 1 -


                         




                                                                       
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD                                     




                                               
                                                  
    WRIT PETITION NO.11205/2015                    

    Nitin S/o Vijay Thorat,




                                              
    Age 27 years, Occ.: Service
    as Assistant Teacher
    in Shrirampur Education 
    Societies High School
    Gondhwani Road, Shrirampur,




                                    
    District Ahmednagar.
                                ig   ..Petitioner..

           Versus
                              
    1] The State of Maharashtra,
    Through its Secretary,
    Education Department,
    Mantralaya, Mumbai-32.
      


    2] The Education Officer,
    (Secondary) Zilla Parishad,
   



    Ahmednagar.

    3] President/Secretary,
    Shrirampur Education Society,





    Shrirampur. Taluka Shrirampur,
    District Ahmednagar.

    4] The Head Master,
    Shrirampur Eduction





    Societies High School
    Gondhwani Raod, Shrirampur.
    District Ahmednagar. 
                              ...Respondents... 
                                                         
                              .....
    Shri A.N.Kakade, Advocate for the Petitioner.
    Smt. M.A.Deshpande, AGP for Respondent Nos.1 & 2.
    Shri P.V.Barde, Advocate for Respondent Nos.3 & 4. 
                              .....
      



      ::: Uploaded on - 18/11/2016             ::: Downloaded on - 19/11/2016 00:52:50 :::
                                                                  WP 11205/2015
                                             - 2 -


                                          CORAM: S.V. GANGAPURWALA &




                                                                             
                                                  K.L. WADANE, JJ. 

DATE: 15.11.2016

ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :

1] Heard learned counsel for the parties. Rule.

Rule made returnable forthwith. With the consent of

learned counsel for the parties, the petition is taken up

for final disposal at this stage.

2] Mr.Kakade, learned counsel for the petitioner

submits that the petitioner possesses the qualification

of M.A., B.Ed. in Geography subject. The respondent -

institution published an advertisement inviting

applications for the post of Assistant Teacher in

Geography subject. Pursuant to the said advertisement,

the petitioner applied and after undergoing the selection

process, the petitioner was selected and appointed on the

said post. The proposal was submitted to the respondent

- authority seeking approval to the appointment of the

petitioner. The same is rejected by the respondent no.2

on the ground that the vacancy in respect of the category

from which the petitioner is appointed does not exist and

that the appointment is made during the ban period. The

WP 11205/2015

- 3 -

learned counsel submits that the appointment of the

petitioner was pursuant to the permission granted by this

Court to fill in the post. The petitioner belongs to

open category and the post is vacant to be filled in from

open category.

3] Mr.Barde, learned counsel for the institution

submits that the appointment has been made after

following the due procedure of law. The vacancy exists

and in the clear vacant post meant for open category

candidate, the petitioner has been appointed. The

institution would fill in the reserved category post as

would be available.

4] Learned AGP submits that the appointment of the

petitioner was during the ban period i.e. the Government

had banned fresh recruitment. According to the learned

AGP, the Roster was also not verified by the B.C. Cell so

also backlog has not been filled in.

5] We have considered the submissions canvassed by

the learned counsel for the respective parties.

6] It would not be open for the respondent -

authority to contend that the appointment of the

petitioner was during the ban period for the simple

WP 11205/2015

- 4 -

reason that this Court under order dated 6.7.2012 in Writ

Petition No.5348/2013 had permitted the institution to

appoint one teacher in Geography and the said appointment

shall be subject to further orders passed in Writ

Petition No.5348/2003. As such, the respondents were

required to consider the proposal seeking approval to the

appointment of the petitioner in the light of the order

passed in Writ Petition No.5348/2003. The same could not

have been rejected on the ground that the appointment was

made during the ban period.

7] Learned AGP has received the instructions from

the Education Officer (Secondary) under communication

dated 21.10.2016 that five posts are vacant. The

petitioner is appointed from the open category and the

post of graduate teacher from open category is vacant.

In view of the said communication, even the ground

agitated by the respondent - authority in order that the

appointment of the petitioner is not made from the

category for which the post is vacant would not survive.

8] In the light of the above, the impugned order is

quashed and set aside. The respondent - authority shall

consider the proposal for approval to the appointment of

WP 11205/2015

- 5 -

the petitioner and shall not reject it on the ground

that the appointment of the petitioner was during the ban

period or that the vacancy did not exist of the category

from which the petitioner is appointed. However, the

approval that may be granted by the respondent authority

would be subject to the orders that would be passed in

Writ Petition No.5348/2003.

9] Rule is made absolute in above terms. No costs.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)

ndk/c15111614.doc