Bombay High Court
Shivaji Bhivaji Sasane vs The State Of Maharashtra And Others on 18 March, 2025
2025:BHC-AUG:8226-DB
(1)
912 W.P. No. 3722-2020 Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3722 OF 2020
Shivaji S/o Bhivaji Sasane,
Age : 36 Years, Occ. Service,
R/o. Mitra Nagar, Majalgaon,
Tal. Majalgaon, District Beed. .. Petitioner
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Education and Sport Department,
Mantralaya, Mumbai.
2. The Director,
Maharashtra State Council for Education,
Research and Training, Pune-30.
3. The Deputy Director of Education,
Education Department, Aurangabad Divsion,
Aurangabad.
4. The Secretary, ( Prashasan)
Shri Swami Vivekananda Education Society,
R/o 2130 'E' Ward Tarabai Park, Kolhapur,
5. The Principal,
Shri Swami Vivekananda Education Society,
R/o. D.Ed College Vidhya Nagar Beed,
Tal and Dist. Beed. .. Respondents
...
Advocate for the Petitioner : Mr. Amol R. Gaikwad
AGP for Respondent Nos. 1 to 5 : Ms. R. R. Tandale
...
CORAM : S. G. MEHARE AND
SANDIPKUMAR C. MORE , JJ.
DATED : MARCH 18, 2025
(2)
912 W.P. No. 3722-2020 Judgment.odt
JUDGMENT (PER S.G. MEHARE, J) :
-
1. Rule. Rule made returnable forthwith. Heard finally by consent
of the parties.
2. The petitioner's case is that on 11th June 2009, he was
appointed as Assistant Teacher (ATD) in Adhypak Vidhayala, Beed,
District Beed. He was a part time teacher, therefore, every year the
appointment orders were issued afresh, except the approval for the
year 2009-2010 had been granted by the Education Officer to his
appointment. The proposal for the approval of his appointment for
the year 2009-2010 was sent to the Education Officer. In response
thereto, the Deputy Director of Education, Aurangabad, by letter dated
21.02.2011 put the query to the Management about the delay in
sending the proposal of the petitioner. The Management has
explained the same. However, his approval remained pending. Hence,
he preferred Writ Petition No. 11178/2015 before this Court. By that
Writ Petition, the Deputy Director of Education, Aurangabad was
directed to take an appropriate decision. Thereafter, the Deputy
Director of Education, Aurangabad took a decision on 30.10.2017 and
granted approval to the appointment of the petitioner as a part time
teacher for the year 2009-2010. Since the decision was pending, a
Contempt Proceeding was also filed and in that Contempt Proceeding
some statements were made and considering the submissions, the
Contempt Proceeding was disposed off.
3. After granting the approval by the Dy. Director of Education,
Aurangabad by letter dated 30.10.2017, as per the case of the
contesting respondent, an opinion was sought from the Director of
Education, Pune and thereafter the Director of Education passed the
impugned order dated 15.10.2018 rejecting the approval to the
petitioner's appointment for the year 2009-2010, on the ground that
in staffing pattern for the year 2009-2010, the post of Art teacher was
not approved and the post of Drawing Teacher was shown vacant.
The staffing pattern for the year 2010-2011 reveals that the petitioner
was appointed on 12.06.2010 on the part time post of Art teacher and
post of Drawing teacher was shown vacant. In 2009-2010, the post
for Art teacher was not vacant. Hence, no approval could be granted
for the year 2009-2010.
4. The learned AGP has filed affidavit-in-reply of respondent No.3
and reiterated the reasons mentioned in the impugned order. In sum
and substance, it is the contention of respondent No.3 that the
appointment of the petitioner is after the Government Resolution
dated 04.11.2009. Hence, he does not deserve the prescribed pay scale
as per the 6th Central Pay Commission. In a Contempt Proceeding, an
opportunity was granted to impugn the order before this Court. The
impugned order is free from errors and illegality. Since the post of the
petitioner for which he was claiming the approval was not approved, it
cannot be granted approval for the same.
5. The learned counsel for the petitioner has vehemently argued
that the impugned order has been passed deliberately after the
Contempt Proceeding has been initiated. The impugned order does
not have the reference of seeking opinion, after the approval was
granted on 30.10.2017. He would submit that, his first appointment
was as Assistant Teacher (ATD), therefore, he was posted on the post
of Drawing teacher and that post was never vacant. It was a
sanctioned post in the year 2009-2010. However, subsequently in the
year 2010-2011, a new post of Art teacher was approved for part time,
therefore, instead of giving appointment on the post of Drawing
teacher, he was appointed as Art Teacher. He would point out that the
post of Drawing teacher was sanctioned in the year 2009-2010,
therefore, his appointment on that post was legal and valid. However,
the learned Director of Education has confused two appointment
orders which were independent. He would also refer to the proposal
of the Management sent to the Deputy Director of Education and
argued that the Management has specifically mentioned that a
petitioner was appointed as Drawing teacher in the year 2009-2010.
It seems the misconception of the facts and search ground to reject the
proposal. The petitioner was rendering services as a Drawing teacher
since 11.06.2009. Therefore, he deserves the benefit of 6th pay-
Commission scale. He prayed to allow the Writ Petition.
6. Per contra, the learned AGP has vehemently argued that the
decision dated 30.10.2017 was taken by the in charge Deputy
Director. Thereafter, an opinion has been sought from the Director,
Maharashtra State Education, Research and Training Council, Pune
about the proposal. On verifying the facts and material placed on
record, the Deputy Director of Education has rightly passed the
impugned order. In view of the observations in the Contempt
Proceeding, the impugned order has been challenged before this
Court. So it has no connection with the earlier order dated 30.10
2017. Since the post was not sanctioned, there was no question to
grant the approval. That apart, the appointment of petitioner was
after the Government Resolution dated 4.11.2009, hence he does not
deserve the benefit of 6th pay commission.
7. Perused the papers with able assistance of learned respective
counsels. The staffing pattern which has been placed on record for
the year 2009-2010 clearly mentions that part time post of Drawing
teacher was approved. The appointment order of petitioner, dated
11th June 2009 clearly establishes that he was appointed as Assistant
Teacher (ATD). The petitioner did not dispute that since thereafter he
was appointed as Art Teacher.
8. When the proposal for the approval of appointment for the year
2009-2010 was submitted before the Dy Director of Education, some
deficiencies were pointed out. The said deficiencies were restricted to
explaining the delay. None other than the explanation, other
objections were raised. Thereafter, the Deputy Director of Education
in clear terms has granted the approval to the petitioner for the year
2009-2010. In the interregnum, the Contempt Proceeding was going
on, and that time the impugned order was passed. Though the
Contempt Court had granted an opportunity to the petitioner to
impugn the order, it has a co-relation with the earlier order of
approval. The record clearly establishes that on the date of first
appointment of the petitioner for the year 2009-2010, the post on
which he was appointed was vacant and he was specifically appointed
on that vacant part time post. The silence of the Education
Department speaks a lot, and that shows their object. Reading the
facts in toto, there appears substance in the contention of the
petitioner that the Deputy Director of Education was disappointed
because he was to face Contempt Proceeding and it has been reflected
in the impugned order. At the cost of repetition, we record the
findings that the post for which the petitioner was appointed in the
year 2009-2010 was vacant and he was correctly appointed on that
post. Therefore, there was no negligence. Reading the impugned
order, it appears that the Director of Education is confused about the
appointment for the year 2010-2011 and 2009-2010. We do not find
sufficient reason for the Education Officer to find out the grounds,
which are mentioned in the impugned order, to reject the proposal. In
the result, we are of the opinion that petition deserves to be allowed.
Hence the following order.
ORDER
(I) The Writ Petition is allowed.
(II) The impugned order dated 15.10.2018 passed by the Director of
Eduction stands quashed and set aside and the order of the
Deputy Director of Education, Aurangabad dated 30.10.2017 is
retained.
(III) The authority concern is directed to act upon the order dated
30.10.2017 and implement it forthwith in any case within two
months from today.
(IV) No order as to costs.
Rule is absolute in above terms.
(SANDIPKUMAR C. MORE) (S. G. MEHARE)
JUDGE JUDGE
Y.S.K.
