Zahoor Gulam Hussain Deshpande vs The State Of Maharashtra And ...
2016 Latest Caselaw 6590 Bom

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                 IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                            
                            BENCH AT AURANGABAD

                          WRIT PETITION NO.248 0 OF 2016




                                                    
     Zahoor Gulam Hussain Deshpande
     Age : 45 years, occupation: service
     resident of Sathghar Mohalla
     Near Sunni Masjid, At Paldhi,




                                                   
     Taluka Dharangaon
     District Jalgaon                                                  Petitioner

              Versus




                                      
     1        The State of Maharashtra
              through Secretary
              School Education & Sports Department,
                             
              Mantralaya, Mumbai 400 032

     2        The Secretary
                            
              Anjuman - Khidmat-E-Khalkh
              Jalgaon

     3        Head Master
              MTP Urdu High School Paldhi
      

              Taluka Dharangaon District Jalgaon

     4        The Education Officer (Secondary)
   



              Zilla Parishad, Jalgaon                                 Respondents

Mrs. A.N. Ansari advocate for the petitioner Mr. M.M. Nerlikar, Assistant Government Pleader for

Mr. G.A. Nagori advocate for respondent Nos.2 and 3 _______________

CORAM : R.M. BORDE &

SANGITRAO S. PATIL , JJ

(Date : 21st November, 2016.)

ORAL JUDGMENT (Per: R.M. Borde, J)

1 Heard.

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2 Rule. With the consent of the parties, petition is taken up

for final decision at admission stage.

3 The petitioner is working as a Peon in a school, operated by

Respondent No.2 institution. The petitioner was appointed on

14.6.1989 and is placed at Sr.No.5 in the seniority list of non-

teaching staff for the year 2014-2015, maintained by the

institution. The petitioner came to be transferred from one school

to another, which was objected by the petitioner by presenting an

application to the Education Officer. The Education Officer,

however directed the petitioner to approach the institution, since

the order of transfer is by way of absorption in K.K. Urdu High

School, Jalgaon. The petitioner claims that, he is the senior most

peon and there are three other employees from the said category

listed in the seniority list, maintained by the institution who have

been retained by the management.

4 Although the management, in the affidavit in reply has not

stated anything about declaration of the petitioner as a surplus

employee, the petitioner has invited our attention to the list

maintained by Zilha Parishad of surplus employees, which includes

the name of petitioner at Sr.No.460. The petitioner has been, in

fact, treated as surplus employee, in disregard to the seniority list

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maintained by the institution. The management, in its affidavit in

reply has also accepted the fact that, the petitioner is the senior

most employee in the category of peon and he has not been

considered as a surplus employee. This issue appears to have

been lost sight of, by the Education Officer, while directing the

petitioner to approach the management. The management

appears to have erroneously transferred the petitioner, treating

him surplus, in disregard to the seniority list maintained by the

institution.

5 The issue, as regards the seniority of the petitioner and as

to whether he could be declared as surplus employee, together

with the issue as to the legality and correctness of the transfer

order issued by the management are required to be dealt with by

the Education Officer.

6 The order passed by the Education Officer on 22.8.2015

appears to have been passed without application of mind to the

record of the case and as such, deserves to be quashed and set

aside and it is accordingly quashed and set aside. It would be

open for the petitioner to file a detail appeal/representation to the

Education Officer, within a period of 15 days from today. The

Education Offer shall take appropriate decision on the appeal /

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representation that would be tendered by the petitioner within

one month on its own merit and in accordance with provisions of

law.

     7        Rule is accordingly made absolute.




                                                  
     8        There shall be no order as to costs.




                                      
             (SANGITRAO S. PATIL, J)
                              ig                           (R.M.BORDE, J)
                            
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