Balaji Vithalrao Mitkar vs The State Of Maharashtra And ...
2022 Latest Caselaw 3752 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO.10544 OF 2016


 Balaji s/o Vithalrao Mitkar,
 Age 48 Years, Occu. Service,
 Asstt. Teacher in Shri. Shankarrao Chavan,
 Secondary School, Asarjan Camp,
 Tq. Dist. Nanded,
 R/o Asarjan, Tq. Dist. Nanded                          ..PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          Through its Secretary,
          Higher and Technical Education
          Department, Mantralaya,
          Mumbai - 400032

 2.       The Education Officer (Secondary),
          Zilla Parishad, Nanded,
          Dist. Nanded

 3.       Sanskar Wardhini Shikshan Prasarak
          Mandal, Jayprakash Nagar,
          Asarjan Camp, Nanded,
          Tq. Dist. Nanded,
          Through its Secretary

 4.       Head-Master,
          Shri. Shankarrao Chavan Secondary
          School, Asarjan Camp, Nanded,
          Tq. Dist. Nanded run by
          Sanskar Wardhini Shikshan
          Prasarak Mandal, Jayprakash Nagar,
          Nanded, Tq. Dist. Nanded                      ..RESPONDENTS




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 Mr. G.J. Karne , Advocate for petitioner;
 Mr. S.K. Tambe, A.G.P. for respondents no.1 & 2;
 Mr. V.P. Sawant, Advocate for respondents no.3 & 4

                                 CORAM : R.D. DHANUKA
                                               AND
                                         S. G. MEHARE, JJ.

DATE : 6th April, 2022

ORAL JUDGMENT (Per R.D. Dhanuka, J.)

1. Rule. Mr. Tambe, learned A.G.P. waives service for

respondents no.1 and 2 and learned Counsel Mr. Sawant for

respondents no.3 and 4.

2. Rule made returnable forthwith.

3. By this petition filed under Article 226 of the Constitution of

India, the petitioner prays for a Writ of Mandamus directing

respondents no.1 and 2 to condone the break in service of the

petitioner relating to summer vacation for the year 1998, 1999 and

2000 and to grant him three annual increments for such three years.

The petitioner also seeks a Writ of Certiorari for quashing and setting

aside the order dated 22.4.2009 passed by the Education Officer

(Secondary), Zilla Parishad, Nanded and prays for condonation of

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break in service of the petitioner relating to the summer vacation of

the year 1998, 1999 and 2000 and to grant him three annual

increments for those three years.

4. Learned Counsel for the petitioner invited our attention to the

order passed by the Education Officer rejecting the proposal

submitted by the management for condonation of break in service.

Learned Counsel relied upon the Government Resolution dated

10.5.1989, annexed at page 46 of the petition.

5. At this stage, we do not propose to go into the issue whether

the petitioner was appointed on leave vacancy during those three

years, on year to year basis, or not. The fact remains that under the

said Government Resolution dated 10.5.1989, the issue of

condonation of break in service can be decided only by the State

Government, as rightly canvassed by Mr. Tambe, learned A.G.P. for

the State. The Education Officer, thus, could not have passed any

order on the proposal submitted by the management for condonation

of break.

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6. The consequential benefit of condonation of break can also be

decided by the State Government depending upon the outcome of the

proposal submitted by the management to grant condonation of break

in favour of the petitioner for the summer vacation period of the year

1998, 1999 and 2000.

7. The impugned order dated 22.4.2009 passed by the Education

Officer, is accordingly quashed and set aside, being without

jurisdiction.

8. Respondent no.1 is directed to consider the said proposal

submitted by the management for condonation of break, within a

period of six months from the date of receipt of copy of this order,

without being influenced by the observations made by the Education

Officer in the impugned order dated 22.4.2009 and in accordance

with law. If respondent no.1 is of the view that the petitioner as well

as the management have made out a case for condonation of break

for aforesaid three years, consequential benefits shall be granted by

respondent no.1 to the petitioner within three months from the date

of passing of such order. If the order passed by respondent no.1

would be adverse to the interest of the petitioner, the petitioner

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would be at liberty to take appropriate recourse to challenge the

same.

9. This Court has not expressed any views on the merits of the

proposal submitted by the management for considering condonation

of break for three vacation period.

10. It is made clear that the proposal already submitted by the

management shall be submitted to the Deputy Director of Education,

to be routed through the Education Officer, for consideration. The

Education Officer shall forward such proposal to the Deputy Director

of Education within four weeks from today.

11. Writ Petition is disposed of in aforesaid terms.

12. All contentions of both parties are kept open.

13. Rule is made partly absolute. No order as to costs.

14. Parties to act on authenticated copy of this order.

  (S. G. MEHARE, J.)                        (R.D. DHANUKA, J.)

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