Bombay High Court
Anil S/O Gulabrao Rathod vs State Of Maharashtra, Thr. ... on 26 September, 2017
Bench: B.P. Dharmadhikari
wp1294.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1294 OF 2017
Anil s/o Gulabrao Rathod,
aged about 31 years,
occupation - Service,
permanent resident of Ajni,
Post - Kajaleshwar,
Tq. Barshitakli, Dist. Akola. ... PETITIONER
Versus
1. State of Maharashtra
through the Secretary,
Education Department,
Mantralaya, Mumbai- 400 032.
2. Education Officer (Secondary),
Zilla Parishad, Akola, Tq. And
District - Akola.
3. Swami Vivekanand Shikshan
Prasarak Mandal, Hirpur,
Tq. Murtizapur, Dist. Akola
through its President.
4. Jayaji Maharaj Vidyalaya,
Hirpur, Tq. Murtizapur,
District - Akola, through its
Head Master. ... RESPONDENT
Shri C.A. Joshi, Advocate for the petitioner.
Shri A.S. Fulzele, Additional GP for respondent Nos. 1 & 2.
Shri A.J. Thakkar, Advocate for respondent Nos. 3 & 4.
.....
CORAM : B.P. DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
SEPTEMBER 26, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard finally Shri C.A. Joshi, learned counsel for the
petitioner, Shri A.S. Fulzele, learned Additional GP for respondent
Nos.1 & 2 and Shri A.J. Thakkar, learned counsel for respondent
Nos. 3 & 4, by issuing Rule and making it returnable forthwith, with
consent.
2. The petitioner has been recruited on 01.07.2013 after
advertisement. The advertisement was published after securing
prior permission from the office of respondent No.2. The approval
to his appointment has been sought thereafter and till date, no
decision upon that proposal has been taken. Therefore, present writ
petition has been filed on 06.02.2017.
3. Respondent Nos. 1 & 2 have filed reply affidavit. In
reply affidavit dated 07.08.2017, respondent No. 2 submits that two
permanent / approved teachers viz. Shri U.P. Gulhane and Shri L.D.
Sarode were earlier rendered surplus in the very same School and
they lodged a complaint on 25.07.2013 with respondent No. 2 as
also with the office of the Deputy Director of Education, Amravati,
seeking their absorption. This fact of employees being declared
surplus was suppressed by respondent Nos. 3 & 4 when they sought
permission to advertise and recruit. Because of this complaint,
respondent No. 2 claims that he has revoked permission granted on
25.03.2013 to respondent Nos. 3 & 4 to advertise and to recruit.
4. It is further pointed out that the post occupied by the
petitioner was found to be not open and as per roster point, a
candidate belonging to backward class category ought to have been
recruited.
5. The learned AGP has submitted that order dated
25.03.2013 was subject to availability of vacancy, non availability of
surplus teacher and also adherence to roster point. As on all these
counts, recruitment process is found to be vitiated, permission to
recruit itself has been cancelled on 29.07.2013 and hence
appointment of the petitioner could not have been approved.
6. Shri Thakkar, learned counsel supports the case of the
petitioner.
7. We find that there could not have been such a
contingent order on 25.03.2013. If Shri Gulhane and Shri Sarode
were declared surplus, respondent No. 2 was aware and, therefore,
could have declined permission to recruit. Not only this, these two
Teachers had approached this Court in Writ Petition No. 6069 of
2013 and after hearing the respective counsel on 07.04.2014, their
writ petition was rejected. With the result, this Court found no
substance in their claim for absorption. This order dated
07.04.2014 is within the knowledge of respondent No. 2 as he was
party to that writ petition. However, he has not looked into that
order while filing reply before this Court.
8. He has, however, pointed out a still later event i.e.
event dated 04.12.2014 where after verification, backward Cell at
Amravati has pointed out backlog with respondent Nos. 3 & 4.
Thus, respondent No. 2 has taken defence that because of prevailing
backlog on 25.03.2013 also, permission to recruit could not have
been granted.
9. We find this attitude of the respondents wrong and also
amounting to victimization of the petitioner. Permission to recruit
was given on 25.03.2013 and after publication of advertisement and
recruitment, that permission stood exhausted.
10. Therefore, on 25.07.2013 when Shri Gulhane and Shri
Sarode complained, respondent Nos. 1 & 2 could not have undone it
as everything had become irreversible. In any case, if permission to
recruit dated 25.03.2013 was to be cancelled, interest created
thereby i.e. of the petitioner, ought to have been safeguarded. It
appears that the petitioner was not even heard. It also appears that
the petitioner got knowledge of order dated 29.07.2013 only
through reply affidavit filed before this Court on 14.08.2017.
Copy of this order dated 29.07.2013 is, however, not produced on
record.
11. In this situation, we quash and set aside the said order
dated 29.07.2013 and restore permission to recruit, given on
25.03.2013. After advertisement and recruitment, said permission
could not have been touched at all by respondent No. 2. Similarly,
for these reasons, we direct respondent No. 2 to grant necessary
approval to the appointment of the petitioner within a period of
three months from today.
12. With these directions, we dispose of the present writ
petition accordingly. Respondent No. 2 shall pay the sum of
Rs.3,000/- (Rs. Three thousand only) towards cost of this petition.
JUDGE JUDGE
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*GS.
