Bombay High Court
Digamber Dadu Khavare vs State Of Maharashtra And Ors on 16 December, 2021
Bench: R.D. Dhanuka, R. N. Laddha
17_WP10710_17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10710 OF 2017
Digambar Dadu Khavare ... Petitioner
Vs.
State of Maharashtra and others ... Respondents
Mr. Prashant Bhavake for Petitioner.
Ms. S. S. Bhende for Respondent Nos.1 and 2-State.
CORAM : R. D. DHANUKA &
R. N. LADDHA, JJ.
DATE : DECEMBER 16, 2021
P.C. :-
Mr. Bhavake, learned counsel for the petitioner seeks liberty to
delete respondent Nos.3 and 4 from the cause title of the petition. Leave
to amend is granted. Amendment to carried out forthwith. Re-
verification is dispensed with.
2. Rule. Ms. Bhende, learned AGP waives service for respondent
Nos.1 and 2. By consent of parties, petition is heard finally.
3. By this petition filed under Article 226 of the Constitution of
India, the petitioner has impugned the order dated 14.09.2016 passed by
respondent No.2 - Education Officer refusing to grant approval to the
appointment of the petitioner to the post of Shikshan Sevak.
4. Case of the petitioner is that Shri. Prabhakar K. Sorate who was
occupying the said post of Shikshan Sevak retired on 31.05.2013. In
view of the said vacancy, the management applied for permission to
issue advertisement on 17.05.2013. Since the permission was neither
rejected nor granted for quite some time, the management ultimately
advertised the said post in two newspapers on 28.05.2013. Pursuant to
the said advertisement, the petitioner applied for the said post in the
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vacancy scheduled to be created on 31.05.2013 and was appointed by
the management on 15.06.2013. The management thereafter applied to
the Education Officer for approval for appointment of the petitioner in
the said post. By the impugned order, the Education Officer rejected the
said proposal on the ground that there was a ban under the Government
Resolution dated 02.05.2012 from creating any new post after
02.05.2012.
5. Mr. Bhavake, learned counsel for the petitioner invited our
attention to the said impugned order dated 14.09.2016 and would submit
that the management has not created any new post but has sought to fill
up the said post fell vacant in view of the retirement of the erstwhile
Shikshan Sevak after following the due procedure. He submits that
management had applied for permission to issue advertisement before
appointing the petitioner on the said post. Though the petitioner had
applied for permission, no permission was granted for quite some time
by the Education Officer.
6. Learned counsel for the petitioner invited our attention to the
judgment of this Court delivered on 23.08.2021 in Writ Petition
No.3708 of 2018 (Sandiprao V. Savant Vs. President / Secretary, Agrani
Shikshan Prasarak Mandal) and more particularly paragraph 9 and
would submit that on the similar set of facts, this Court had quashed and
set aside the order passed by the Education Officer rejecting the proposal
for approval to the post of petitioner as Shikshan Sevak on the ground
that there was ban on creation of a new post.
7. Ms. Bhende, learned AGP for the respondents-State on the other
hand invited our attention to the paragraphs 3 and 8 of the affidavit in
reply filed by the State Government. It is submitted by the learned AGP
that there was a ban on recruitment of teachers as well as non-teaching
staff vide Government Resolution dated 02.05.2012. The management
had not obtained permission from the Education Officer before issuance
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of the advertisement. She submits that the surplus teachers were not
absorbed before appointing the petitioner on the said post of Shikshan
Sevak.
8. A perusal of the record clearly indicates that it is not in dispute
that the said post of Shikshan Sevak fell vacant in view of the retirement
of the erstwhile Shikshan Sevak Shri. Prabhakar K. Sorate on
31.05.2013. A perusal of the Government Resolution dated 02.05.2012
would clearly indicate that the same was in respect of ban on creation of
a new post from the date of issuance of the said Government Resolution.
In this case, the management did not create any new post after
02.05.2012 on which the petitioner was appointed. The petitioner was
appointed on the post having fallen vacant due to the retirement of the
erstwhile Shikshan Sevak Shri. Prabhakar K. Sorate on 31.05.2013.
9. A Division Bench of this Court in the case of Sandiprao V.
Savant (supra) has held that under the said Government Resolution
dated 02.05.2012, there was a ban on creation of a new post. The said
ban would not apply to the appointment made on the vacant post. It was
not the case of the State Government that the petitioner was appointed
on the post which was a new post created by the management. In our
view, the impugned order rejecting the approval for appointment of the
petitioner to the post of Shikshan Sevak on the ground that the
appointment was illegal in view of violation of the Government
Resolution dated 02.05.2013 is totally perverse and without application
of mind. The principles of law laid down by this Court in the case of
Sandiprao V. Savant (supra) clearly applies to the facts of this case.
10. In so far the other two issues raised by the State Government in
the affidavit in reply that the management had not filled up any surplus
teachers is concerned, a perusal of the said impugned order clearly
indicates that the approval to the appointment of the petitioner is not
rejected on that ground. Be that as it may, no material is produced in the
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affidavit in reply in support of the said contention.
11. So far as the contention raised by the respondents in the affidavit
in reply that the management had not taken prior approval of respondent
No.2 for publishing advertisement in the newspaper for the said post is
concerned, we have perused the document annexed by the petitioner to
the petition viz. a letter dated 17.05.2013 addressed by the management
to the Education Officer seeking permission for issuance of the
advertisement. Permission was neither granted nor rejected by the
Education Officer within the reasonable period of time. The
management accordingly issued the said advertisement. Approval of the
petitioner is not rejected on the ground that the management had not
applied for permission. Even otherwise, the said contention raised in the
affidavit in reply is based on wrong factual premises.
12. In our view, the impugned order is contrary to the principles of
law laid down by this Court in the case of Sandiprao V. Savant (supra)
and thus deserves to be quashed and set aside.
13. We accordingly pass the following order:-
a. Writ Petition is allowed in terms of prayer clause (A);
b. Respondent No.2 - Education Officer is granted four weeks'
time to grant approval to the appointment of the petitioner to
the post of Shikshan Sevak pursuant to the proposal submitted
by the management;
c. After the approval is granted by the Education Officer, the
Deputy Director of Education shall enter name of the
petitioner in Shalarth Pranali within two weeks thereafter;
d. The Education Officer shall thereafter grant all consequential
benefits to the petitioner including payment of arrears of
salary from the initial date of appointment within four weeks
thereafter without fail.
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14. Rule is made absolute in the aforesaid terms. There shall be no
order as to costs.
15. Parties to act on an authenticated copy of this order.
(R. N. LADDHA, J.) (R. D. DHANUKA, J.)
Minal Parab
