Ku. Geeta D/O Digambar Tidke vs The Commissioner, Tribal ...
2017 Latest Caselaw 3064 Bom

WP  541/15                                            1                            Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.

                        WRIT PETITION No. 541/2015

Ku.Geeta D/o Digambar Tidke,
Aged 31 Years, Occu - Service.
R/o. At Post-Koka (Jungle),
Tah- Dist- Bhandara.                                                          PETITIONER

                                   .....VERSUS.....

1.    The Commissioner,
      Tribal Development Department,
      Maharashtra State, Nashik.
2.    Additional Commissioner,
      Tribal Development Department,
      Giripeth, Nagpur.
3.    Swamy Vivekanand Bahuuddeshiya
      Shikshan Sanstha, Amgaon (Dighori),
      Dist- Bhandara, 
      through its Secretary.
4.    Anudanit Secondary and Higher
      Secondary Ashramschool, Koka (Jungle),
      Tah- Dist- Bhandara.
      through its Headmaster.                                                  RESPONDENTS

                    Shri P.N. Shende, counsel for the petitioner.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondent nos.1 and 2.
                 Shri S.S. Sharma, counsel for the respondent no.3.


                                     CORAM :SMT.VASANTI  A  NAIK AND
                                                   A.D. UPADHYE, JJ.                  

DATE : 12 TH JUNE, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this writ petition, the petitioner challenges the order of the

Additional Commissioner, Tribal Development, dated 18.11.2014 insofar

as it refuses to grant the approval to the appointment of the petitioner

with effect from 15.08.2010.

WP 541/15 2 Judgment

2. In pursuance of an advertisement issued by the respondent-

Management, the petitioner was appointed as a higher secondary teacher

on probation of three years on 15.08.2010. The respondent nos.3 and 4-

Management sent the proposal of the petitioner for grant of approval to

his appointment. The Additional Commissioner, Tribal Development

refused to grant approval to the appointment of the petitioner. The

petitioner as well as the management challenged the action on the part of

the Additional Commissioner, Tribal Development in an appeal before the

Commissioner, Tribal Development. The appeal was partly allowed and

by the order dated 03.02.2014, the Additional Commissioner was directed

to grant the approval to the appointment of the petitioner in accordance

with law. After the Commissioner passed the order on 03.02.2014, the

Additional Commissioner passed the impugned order granting approval to

the appointment of the petitioner with effect from 09.08.2012. The

petitioner is aggrieved by the order of the Additional Commissioner, as far

as it refuses to grant approval to the services of the petitioner from

15.08.2010 to 08.08.2012.

3. Shri Shende, the learned counsel for the petitioner, submitted

that the Commissioner, Tribal Development had directed the Additional

Commissioner to grant approval to the appointment of the petitioner with

effect from 15.08.2010. It is submitted that since the appeal filed by the

petitioner was allowed, the Additional Commissioner should have granted

WP 541/15 3 Judgment

the approval to the appointment of the petitioner from 15.08.2010. It is

submitted that on 15.08.2010, the petitioner was appointed in clear

vacancy and since the post was available in open category, the Additional

Commissioner ought to have granted approval to his appointment with

effect from 15.08.2010.

4. Shri Dharmadhikari, the learned Assistant Government

Pleader appearing for the respondent nos.1 and 2, has opposed the prayer

made in the petition. It is submitted that in the year 2010, only three

posts were available for the teaching staff from the open category and the

management had appointed four teachers from the open category. It is

stated that the petitioner was excess in the open category and the

petitioner could not have sought the approval from 15.08.2010. It is

submitted that the petitioner was appointed for teaching the subject of

Geography and the subject of Geography was not a subject sanctioned for

appointment of teachers in view of the circular of the Commissioner,

dated 16.02.2001. It is submitted that Geography was included as a

subject for teaching only vide circular dated 16.07.2013. It is submitted

that though the subject was included in the year 2013, the Additional

Commissioner had granted approval to the petitioner's appointment with

effect from 09.08.2012. The learned Assistant Government Pleader

sought for the dismissal of the writ petition.

WP 541/15 4 Judgment

5. On hearing the learned counsel for the parties and on a

perusal of the affidavit-in-reply, it appears that the relief sought by the

petitioner cannot be granted. We do not find any infirmity in the order of

the Additional Commissioner, refusing to grant approval to the

petitioner's appointment from 15.08.2010. It is categorically stated on

behalf of the Additional Commissioner in the affidavit-in-reply that

though there were only three vacancies in the open category, the

management had appointed four teachers from the open category and the

appointment of the petitioner was in excess. It further appears that the

petitioner was appointed for teaching Geography as the main subject and

as per the circular of the Commissioner, dated 16.02.2001, Geography

was not included as a subject for teaching. By the Commissioner's

circular, dated 16.07.2013, Geography was included as a subject for

teaching and the approval was granted to the appointment of the

petitioner even before that date. In the circumstances of the case, the

petitioner cannot claim the grant of approval from 15.08.2010 as of a

right, merely because he was appointed on the said date by the

management.

In the result, the writ petition fails and is dismissed with no

order as to costs. Rule stands discharged.

              JUDGE                                           JUDGE

APTE