Bombay High Court
Mr. Mahesh Nivrutti Suryavanshi vs The State Of Maharashtra Through ... on 29 November, 2021
Bench: R.D. Dhanuka, Abhay Ahuja
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Digitally
signed by
MUGDHA M
MUGDHA M PARANJAPE
PARANJAPE Date:
2021.11.30
11:42:35
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8665 OF 2019
Shri. Mahesh Nivrutti Suryavanshi ... Petitioner
Vs.
The State of Maharashtra, Through
the Secretary, School Education & Sports
Department & Ors. ... Respondents
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Mr. Prashant Bhavake for the Petitioner.
Mr.V.M. Mali, AGP for Respondents No.1 to 5-State.
Mr. Prashant Jadhav i/by S.S. Tambekar for Respondent No.5.
Mr. Utkarsh Desai for Respondents No.6 and 7.
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CORAM : R.D. DHANUKA &
ABHAY AHUJA, JJ.
DATE : 29TH NOVEMBER, 2021
P.C. :
1. Rule. Rule made returnable forthwith. Mr. Mali, learned
AGP for Respondents No.1 to 5-State waives service. Mr. Jadhav,
learned counsel for Respondent No. 5 and Mr. Desai, learned
counsel for Respondents No.6 and 7 also waive service.
2. By consent of the parties, Petition is heard fnally.
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3. By this Petition, fled under Article 226 of the
Constitution of India, the Petitioner has impugned the order dated
8th April, 2019 passed by the Education Offcer, thereby rejecting the
proposal submitted by Respondents No.6 and 7, seeking individual
approval to the appointment of the Petitioner in the post of
Shikshan Sevak at the Respondent No.7-Primary School and for
other reliefs.
4. The Petitioner is B.A., D.Ed. by qualifcation and also
passed the Teachers Eligibility Test. The Petitioner belongs to OBC
category.
5. It is the case of the Petitioner that due to the retirement
of Assistant Teacher Smt. Madhuri Krishnaji Chougale on 30 th
September, 2013, one post of Shikshan Sevak was lying vacant at
Respondent No.7-Primary School, with effect from 1st October, 2013.
Respondent No.6 accordingly published an advertisement in the
daily newspaper "Muktnayak" on 13th September, 2013 inviting
applications for the post of Shikshan Sevak at Respondent No.7-
Primary School. The Petitioner responded to the said advertisement
and applied for appointment on the said post. On 25 th September,
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2013, the school committee of Respondent No.7 selected the
Petitioner for the said post and passed the requisite Resolution in
that regard.
6. On 1st October, 2013, Respondent No.6 appointed the
Petitioner on the said post of Shikshan Sevak at Respondent No.7-
Primary School. The Management, thereafter, submitted a proposal
for the individual approval to the appointment of the Petitioner on
22nd March, 2019 on the post of Shikshan Sevak to the Education
Offcer. On 8th April, 2019, the Education Offcer rejected the said
proposal submitted by the Management for appointment of the
Petitioner on the said post of Shikshan Sevak. The Petitioner thus
fled this Petition.
7. Mr. Bhavake, learned counsel for the Petitioner invited
our attention to some of the exhibits annexed to the Petition
including the impugned order. It is submitted by the learned counsel
that there was no creation of new post after 2nd May, 2012. The
Petitioner was appointed on the post lying vacant after 2 nd May,
2012, having been qualifed and fulflling all other conditions.
Learned counsel also draws our attention to the roster and would
submit that at the relevant time, there were four posts vacant in the
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open category. Though, the Petitioner belongs to OBC category, the
Petitioner was appointed on the said post on merits. The
appointment of the Petitioner was made after publication of the
advertisement and after following requisite procedure for Shikshan
Sevak. It is submitted that the reliance placed by the State
Government on the judgment of this Court delivered on 10th July,
2017 in the case of Smt. Munoli Rajashri Karabasappa Vs. State of
Maharashtra, Thru. Secretary & Ors. in Writ Petition No.8587 of
2016 with connected Writ Petitions is misplaced. This Court in the
said judgment has not held that even if the post has fallen vacant
after 2nd May, 2012 and no new post is created, no appointment can
be made under the said Resolution dated 2nd May, 2012.
8. In our view, since this post, on which the Petitioner was
appointed, was vacant due to retirement of another Assistant
Teacher on 30th September, 2013, the Petitioner having been
qualifed, after following the requisite procedure, was duly
appointed on 1st October, 2013. The impugned order passed by the
Education Offcer rejecting the proposal submitted by the
Management is thus totally erroneous and bad in law. We,
accordingly, pass the following order.
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9. The Writ Petition is allowed in terms of prayer
clause (b).
10. The Education Offcer is directed to grant approval for
the appointment of the Petitioner to the post of Shikshan Sevak as
well as post of the permanent Assistant Teacher from the initial
date of appointment, within four weeks from today and shall release
salary/ honorarium payable to the Petitioner with its all arrears
within a period of four weeks from the date of granting approval.
11. Rule is made absolute in the above terms. No order as to
costs.
12. Parties to act on the authenticated copy of this order.
(ABHAY AHUJA, J.) (R.D. DHANUKA, J.)
Mugdha 5 of 5
