Rohidas Babasaheb Waghmare vs The State Of Maharashtra And ...
2017 Latest Caselaw 7459 Bom

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              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD

                        WRIT PETITION NO.1948 OF 2017



 Rohidas S/o Babasaheb Waghmare,
 Age: 26 years, Occu: service,
 R/o Village Shahapur, Tq. Ambad
 District: Jalna
 At present R/o village Gadewadi
 Tq. Shevgaon, District: Ahmednagar                               Petitioner


          Versus


 1        The State of Maharashtra,
          Through its Secretary,
          School Education & Sports Department,
          Mantralaya, Mumbai


 2        The Deputy Director of Education,
          Pune region, Pune


 3        The Education Officer (Secondary)
          Zilla Parishad, Ahmednagar
          District: Ahmednagar


 4        Rajashri Shri Chhatrapati Shahu Shikshan
          Prasarak Mandal, Burudgaon Road,
          Ahmednagar, District : Ahmednagar
          Registered Trust: Through its Secretary


 5        The New English School, Gadewadi,
          Tq. Shevgaon, Dist. Ahmednagar
          Through Its Head Master                                 Respondents

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Mr.V.H. Dighe advocate for the petitioner Mr. S.B. Joshi Assistant Government Pleader for Respondent Nos.1 to 3 Mr. K.M. Gawade Patil advocate for respondent Nos.4 and 5 _______________

CORAM : R. M. BORDE & VIBHA KANKANWADI, JJ

(Date: September 22 nd 2017)

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

1 Heard.

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

for final decision at admission stage.

3 The petitioner is seeking quashsment of the order passed

by the Education Officer - Secondary on 24.12.2014, refusing to

grant approval to the appointment of the petitioner as a clerk.

4 The petitioner belongs to scheduled caste (SC) category

and has been appointed as against reserve seat, prescribed for

the aforesaid reserve category, in observance of the procedure

prescribed under law. The petitioner contends that, the

management, before proceeding to fill up the vacancy, tendered

an application to the Education Officer, Zilha parishad, seeking

permission to issue an advertisement. It is contended that, no

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response was received by the management to the

communication dated 16.5.2012, seeking permission to issue an

advertisement. As such, the management proceeded to issue

advertisement for the purpose of making appointment to the

post of Junior clerk from amongst SC category. It is calendered

that, the petitioner has been appointed by observing the due

procedure by the management in the year 2012. A proposal was

tendered seeking approval to the appointment, which was not

considered at the relevant time. The proposal tendered by the

management in the year 2014, seeking approval to the

appointment of the petitioner has been turned down by the

Education Officer - Secondary, for the reason that the

appointment of the petitioner is during ban period prescribed

under the Government Resolution dated 2.5.2012, as well as the

institution has not secured permission before proceeding to fill

up the post. It is contended that there were surplus employees

and that the Education Department could have directed the

management to absorb them while filling up the vacancies. The

petitioner contends that his appointment has been made during

the drive undertaken to fill-up the backlog vacancies. It is

contended that the Government Resolution dated 5.2.2012 does

not apply in case of backlog vacancies.

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5 The petitioner placed reliance on a Judgment delivered by

the Division Bench of this Court in Writ Petition

No.10580/2015 in the matter of Sau Revati Kusha Wagh &

another versus The State of Maharashtra along with the

companion Writ Petitions on 9.3.2017. The Division Bench

dealing with the matter has placed reliance on the earlier

Judgment of this Court in the matter of A.N. Dhale versus

State of Maharashtra and others (2016 (5) MhLJ 742) and

arrived at a conclusion that the Government Resolution dated

2.5.2012 issued by the School Education Department does not

apply in respect of backlog vacancies. It is recorded in the

Judgment that before issuance of the Government Resolution

dated 2.5.2012, the State Government has issued a resolution on

13.4.2011 allowing the institutions to fill up the posts reserved

for backward class categories, by adopting a special drive and

the ban imposed by the Government Resolution dated 2.5.2012

as such, would not apply to such cases.

6 In the instant matter, the petitioner belongs to SC category

and has been appointed in observance of the procedure,

prescribed under law. The counsel appearing for the petitioner

contends that in view of Rule 9(7) of the Maharashtra Employees

of Private Schools (Conditions of Service) Regulations 1981, it is

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obligation of the management to fill up the backlog vacancies by

observing prescribed procedure . The said obligation cast upon

the management has been performed, which cannot be

questioned by the Zilha Parishad Authorities.

7 In view of above, the reason put forth by the Education

Officer while turning down the proposal tendered by the

institution, seeking approval to the appointment of the petitioner

does not hold good. The Writ petition, therefore, deserves to be

allowed and the same is accordingly allowed.

8 The order passed by the Education Officer, impugned in

this petition, refusing to accord approval to the appointment of

the petitioner dated 24.2.2014 is quashed and set aside and the

respondent No.3 Education Officer - Secondary, Ahmednagar is

directed to accord approval to the appointment of the petitioner

in accordance with the provisions of Rules within eight weeks

from today.

 9        Rule is accordingly made absolute.

 10       There shall be no order as to costs.




        ( VIBHA KANKANWADI, J. )                         (R. M. BORDE, J)


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