1 WP884.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 884 OF 2011 Ramesh Gangadhar Rokade ... Petitioner v/s 1. The State of Maharashtra & ors. ... Respondents Mr.Shaikh Nasir Masih for the petitioner. Ms.S.S.Bhende, A.G.P. for respondent Nos.1, 2 and 3. Mr.Sanjay Shinde for respondent Nos.4 and 5. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 5TH SEPTEMBER, 2011 P.C.: 1. Heard. 2. Rule. 3. Respondents waive service. 4. In this petition filed under Article 226 of the Constitution of India, the petitioner has taken exception to 2 WP884.11 the order dated 26.4.2010 passed by respondent No.2 and by the said order the petitioner’s appointment has been approved with effect from 24.9.2008 and not from the initial date of appointment. 5. There is no dispute that the petitioner came to be appointed on probation in the academic year 2002-03 in the pay scale of Rs.5000-8000 on a clear vacancy and the said appointment came to be approved by respondent No.2 vide his order dated 20.3.2003. It was stated in the said order that respondent Nos.4 and 5 management was required to fill in the backlog of the reserved category appointees and if the same was not filled in by the year 2004, the approval would be kept pending. 6. The petitioner had filed an appeal before the School Tribunal at Nasik challenging the order of termination dated 30.7.2007 and the appeal came to be allowed on 23.9.2008 with the following directions:- “Appeal is allowed. The order of management of respondent institute dated 30.7.2007 terminating the services of appellant is hereby set aside. The respondent Nos.1 and 2 and hereby directed to reinstate the appellant on the same post with full back wages, continuity of services and other consequential benefits attached to the said post. 3 WP884.11 The management of respondent institute shall comply the above directions within 40 days from the date of the order. Parties shall bear their own cost.” 7. The Tribunal clearly noted that in the academic year 2003-04 the petitioner was appointed on probation for a period of two years and the said appointment was approved by respondent No.2. The Tribunal has directed to reinstate the petitioner with full back wages and continuity of service as well as other consequential benefits. It appears that the approval order seeks to take support of the order passed by the School Tribunal on 23.9.2008 and as per respondent No.2 the approval to the appointment of the petitioner is required to be granted only after the School Tribunal allowed his appeal. This presumption, in our view, is totally unfounded. 8. The conditional approval granted by the management on 20.3.2003 to the appointment of the petitioner has to be taken into consideration and if the management has not filled in the backlog of reserved posts, the petitioner cannot be punished. It is also to be noted that the petitioner himself belongs to the Nomadic Tribes and at the same time as per the affidavit in reply filed by respondent Nos.4 and 5, as of now, there is no backlog of the reserved categories. Hence, the impugned order is unsustainable and the petitioner’s 4 WP884.11 appointment must be approved from the academic year 2002-03 onwards. 9. In the premises, the petition succeeds and the same is hereby allowed. It is directed that the respondent will pass a fresh order granting approval to the petitioner’s appointment from the academic year 2002-03 onwards within a period of two weeks from today. Undoubtedly, the petitioner will be entitled for the back wages in terms of the order passed by the School Tribunal. 11. Rule is made absolute in terms of the above directions but without any orders as to costs. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 5 WP884.11