Bombay High Court
Vishal S/O Ramdas Sarvate vs The State Of Mah. Thr. Its ... on 26 October, 2016
Bench: V.A. Naik
wp5407.05.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5407/2005
PETITIONER: Vishal s/o Ramdas Sarvate,
aged about 29 years, Occupation - Service,
in Vikas Vidyalaya, Vikas Nagar, Amravati.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through its
Secretary, Department of Education,
Mantralaya, Mubmai - 32.
2. The Education Officer (Secondary),
Zilla Parishad, Amravati.
3. Vikas Vidyalaya, Vikas Nagar, Amravati
through its Head Mistress.
4. Janta Vidyalaya Mandal, Amravati,
through its President.
-----------------------------------------------------------------------------------------------------
Shri R.S. Parsodkar, Advocate for petitioner
Shri A.R. Chutake, AGP for respondent nos.1 and 2
-----------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 26.10.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
By this petition, the petitioner challenges the
communication of the respondent no.2 - Education Officer, dated
20.4.2005 rejecting the proposal for grant of approval to the appointment
of the petitioner on the post of peon. The petitioner has sought a direction
wp5407.05.odt
against the respondent - Education Officer to grant approval to the
appointment of the petitioner.
According to the petitioner, in terms of the advertisement
published by the respondent - Management in the daily newspaper on
4.11.2001, the petitioner had applied for the post of peon. The
respondent no.2 - Education Officer had granted permission to fill up the
post as per the rules on 11.10.2001. The petitioner was interviewed and
appointed vide appointment order dated 7.11.2001. The petitioner
continued to work on the post of peon but approval was not granted to
the petitioner's appointment solely on the ground that there was a ban on
the employment of non-teaching employees. Though the Management
was communicated by the communication, dated 26.3.3003 about the
decision, the petitioner's proposal was again sent to the Education Officer,
that was rejected by the impugned order, dated 20.4.2005 on the same
ground, that is, there was a ban on the appointment of non-teaching
employees.
Shri Parsodkar, the learned Counsel for the petitioner
submitted that the petitioner is a matriculate and was eligible for
appointment on the post of peon. It is submitted that the Education
Officer had granted permission to fill the post of peon by the order dated
11.10.2001 and in pursuance of the said permission, the Management
wp5407.05.odt
had issued the advertisement and the petitioner had applied and was
selected. It is submitted that after the Education Officer had permitted the
Management to fill two posts of non-teaching Class-IV employees, the
Education Officer cannot be permitted to reject the approval on the
ground that there was a ban on recruitment of non-teaching employees. It
is stated that this Court had by the order dated 12.1.2006 directed the
Education Officer to grant provisional approval to the petitioner's
appointment from the date of his appointment and in view of the interim
order, the petitioner is continued as a peon with approval, till date. It is
stated that in the aforesaid set of facts, the relief sought by the petitioner
needs to be granted.
The learned Assistant Government Pleader has supported
the impugned order. It is stated that since there was a ban on
recruitment, the Education Officer did not have the authority to grant
approval to the appointment of the petitioner as a peon. It is, however,
not disputed that in view of the interim order, the petitioner is working as
a peon and a provisional approval was granted to his appointment, from
the date of his appointment.
On hearing the learned Counsel for the parties, it appears
that the Education Officer was not justified in rejecting the proposal of
the petitioner. It appears from the documents annexed to the petition that
wp5407.05.odt
the Management was permitted to fill two posts of Class-IV employees in
October, 2001 and thereafter the Management issued the advertisement
in November, 2001 and appointed the petitioner on the post of peon. If
the petitioner is appointed as a peon in furtherance of the process
initiated by the Management in pursuance of the permission granted by
the Education Officer to fill two posts of Class-IV employees, the
Education Officer could not have rejected the approval on the ground that
there was a ban on recruitment of non-teaching employees. We have time
and again held that it would not be permissible for the Education Officer
to reject the approval, if all other conditions are satisfied, only on the
ground that there was a ban, if the Education Authorities have granted
permission for filling the posts and the Management has filled the posts
after following the proper procedure for appointment. In this case, we
find that in view of the interim relief granted by us at the time of
admission of the writ petition, the petitioner continued in service as a
peon and provisional approval is granted to his appointment from the
date of his appointment. In the circumstances of the case, the relief
sought by the petitioner needs to be granted.
Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order is quashed and set aside. The Education
Officer is directed to grant regular approval to the appointment of the
wp5407.05.odt
petitioner, if the petitioner is otherwise eligible for appointment on the
post of peon, within six weeks.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
