Bombay High Court
Vaibhavwadi Taluka Shikshan ... vs The State Of Maharashtra Through ... on 15 September, 2021
Bench: R.D. Dhanuka, Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4954 OF 2016
Vaibhavwadi Taluka Shikshan
Sanstha, Mumbai & Ors. ...Petitioners
Versus
The State of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO.4956 OF 2016
Vaibhavwadi Taluka Shikshan
Sanstha, Mumbai & Ors. ...Petitioners
Versus
The State of Maharashtra & Ors. ...Respondents
Mr.Prashant Bhavke for the petitioners in both the Writ Petitions.
Mrs.P.J. Gavhane, AGP for the State - respondent Nos.1 to 3.
CORAM : R.D. DHANUKA &
ABHAY AHUJA, JJ.
DATE : 15TH SEPTEMBER, 2021
(THROUGH VIDEO CONFERENCE)
P.C.:-
1. Rule. Mrs.Gavhane, learned AGP waives service for the
respondents. By consent of the parties, both the writ petitions were
heard together and are being disposed of by a common order.
2. By these petitions filed under Article 226 of the Constitution
of India, the petitioners have impugned the order dated 16 th April, 2015
passed by the respondent no.3 - Education Officer thereby refusing to
grant individual approval to the appointment of the petitioner no.3 to the
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post of Peon at the petitioner no.2 school and seek an order and
direction to reconsider the said proposal by offering opportunity of
being heard to the petitioners and to grant individual approval to the
appointment of the petitioner no.3.
3. Mr.Bhavke, learned counsel appearing for the petitioners
invited our attention to the impugned order dated 16 th April, 2015
passed by the Education Officer (Secondary). He submits that out of
four reasons recorded by the Education Officer (Secondary), the
reasons recorded in paragraphs 1 and 2 being factual aspects are not
disputed by the petitioners. Objection is to the reasons recorded in
paragraph 3 and 4.
4. Insofar as rejection of approval on the ground that during
the period 2008-2009, there was ban on the appointment of the
Government employee is concerned, it is submitted by the learned
counsel that in this case, the petitioner no.3 in both the writ petitions
were appointed on 21st June, 2010 on the said post of Peon and thus
the said G.R. would not apply to the appointment made subsequently.
5. Insofar as the reasons recorded in paragraph 4 that the
fresh proposal shall be submitted considering the Government
Resolution dated 12th February, 2012 is concerned, it is submitted that
the said Government Resolution also would not apply to the petitioner
no.3 in both the writ petitions, since both of them were already
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appointed in the year 2010 when there was no ban.
6. Mrs.Gavhane, learned AGP for the State could not defend
the order passed by the Education Officer (Secondary). The respondent
- State has not disputed that the petitioners were appointed in the year
2010. No Government Resolution is pointed out thereby imposing any
ban on appointment of the employee during the said period when the
petitioners were appointed in the year 2010.
7. Learned counsel for the petitioners relied upon the
judgment of the Division Bench in case of Suman Shriram Kakad vs.
State of Maharashtra & Anr. 2011 (Supp.) Bom.C.R. 943 and in
particular paragraphs 15 and 16 and on an unreported judgment
delivered by this Bench in case of Shrikrishna Bhikaji Bondge vs.
State of Maharashtra & Ors. in Writ Petition No.3525 of 2019 and
more particularly paragraphs 13 and 14. We have perused the
judgments relied upon by Mr.Bhavke, learned counsel for the
petitioners.
8. In our view, since the petitioners were appointed in the year
2010, ban for the specific period i.e. 2008-2009 would not apply to such
appointments of the petitioners subsequently. Similarly the Government
Resolution dated 12th February, 2015 does not apply with retrospective
effect and would apply with prospective effect. The appointment of the
petitioner no.3 in both the writ petition having been made in the year
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2010 would not be affected by ban imposed, if any, under the said
Government Resolution dated 12th February, 2015. The judgments
relied upon by the learned counsel for the petitioners referred to above
would assist the case of the petitioners.
9. In our view, both the reasons recorded in paragraphs 3 and
4 of the impugned order dated 16th April, 2015 are totally perverse and
without application of mind and contrary to the principles laid down by
this Court in cases of Suman Shriram Kakad (supra) and Shrikrishna
Bhikaji Bondge (supra) and various other judgments delivered by this
Court. The order passed in paragraphs 3 and 4 of the impugned order
dated 16th April, 2015 thus deserves to be quashed and set aside.
10. We accordingly pass the following order :-
a). The impugned order dated 16th April, 2015 recorded in
paragraphs 3 and 4 thereof passed by the Education Officer
(Secondary) Zilla Parishad, Sindhudurg are quashed and set aside.
b). The Education Officer (Secondary) Zilla Parishad,
Sindhudurg is directed to grant individual approval to the appointment of
the petitioners in both the writ petition in the post of Peon at the
petitioner no.2 - school within four weeks from today. The Education
Officer (Secondary) Zilla Parishad, Sindhudurg shall release grant in
respect of the said appointments payable to the petitioner no.2 school
within four weeks from the date of granting individual approval. No order
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as to costs. Parties to act on the authenticated copy of this order.
c). Both the writ petitions are allowed in aforesaid terms. Rule
is made absolute accordingly.
(ABHAY AHUJA, J.) (R.D. DHANUKA, J.)
