1 wp623.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 623 OF 2010 Gajanan Kaduba More. ..Petitioner. Vs. State of Maharashtra & ors. ..Respondents. WITH WRIT PETITION ST.NO.123 OF 2011 Sahyadri Shikshan Sanstha & Anr. ..Petitioners. Vs. The Education Inspector(West Zone) & ors. ..Respondents. Mr. S.D.Dighe, advocate for Petitioner in WP 623/10 and for Respondent No.3 in WPL 123/11. Mrs. Anjali Helekar, AGP for Respondent Nos. 1 and 2. Mr. Mihir Desai, advocate for Respondent Nos. 3 and 4 and for Petitioner in WPL 123/11. Mr. N.V.Bandiwadekar, advocate for Respondent No.5. Ms. S. Sreedharan, AGP for State in WPL 123/11. CORAM : A.M.KHANWILKAR & MRS MRIDULA BHATKAR, JJ. DATE : MARCH 16, 2011. 2 wp623.10.sxw P.C. 1. By this Petition under Article 226 of the Constitution of India, decision of the Education Department declining to give approval to the appointment of the Petitioner herein, is put in issue. The Petitioner was appointed on 14 th June, 2004, after a regular advertisement in local newspaper issued by the Management on 11 th February, 2004. The Petitioner was appointed as Assistant Teacher as he possessed qualification of B.Sc. B.Ed. His appointment letter dated 16 th June, 2004 indicates that he was offered B.Ed. pay-scale of Rs.5500-9000 per month in the scale of Rs.5,500/- with effect from the date of appointment. While the Petitioner was in employment, the Respondent No.5 came to be appointed on 15 th June, 2005 as trained graduate teacher as he possessed similar qualification as that of the Petitioner i.e. B. Sc. B.Ed. It also appears that both the Petitioner as well as the Respondent Nos. 5 have submitted same undertaking to the Management that they would work in D.Ed. Scale. That undertaking therefore, cannot be the basis to examine the claim of the Petitioner with regard to the approval to his initial 3 wp623.10.sxw appointment and in particular, in the context of the school becoming grant in aid school with effect from 2008. It is not necessary for us to examine the grievance of the Petitioner that the initial appointment of the Respondent No.5 is not proper or without following prescribed procedure. That is a matter to be enquired into by the Education Department in the first instance. 2. Suffice it to observe that the Education Department has rejected the proposal for approving the appointment of the Petitioner, amongst other, on the ground that the appointment of Petitioner was against D.Ed scale. This finding is based presumably on the basis of the bond executed by the Petitioner. Whereas, from the advertisement and appointment letter of the Petitioner, it is more than evident that the Petitioner was appointed on B.Ed. Scale. In our opinion, the real question to be examined by the Education Department, is, whether the Petitioner was appointed against a clear vacant post and possessing necessary qualification to be appointed in that post. The claim of the Petitioner will precede the claim of the Respondent No.5, having been 4 wp623.10.sxw appointed in earlier point of time. These are all matters, which will have to be reconsidered by the Education Department. In the event, it transpires that the appointment of the respondent No.5 is questionable, the department will have to consider the same before approving his appointment in the appropriate post. In any case, if the appointment of the Respondent No.5 is found to be proper, the approval to his appointment will be subject to first considering the claim of the Petitioner, who has been appointed in earlier point of time. We are informed across the bar by the Counsel for the Management that insofar as the present school is concerned, there are only five approved posts in B.Ed scale and four approved posts in D.Ed scale. However, according to the learned AGP, there are only five approved B.Ed. posts and three approved D.Ed. posts. Needless to observe that if all the posts in B.Ed. scale are exhausted consequent to the approval to be granted to the Petitioner’s initial appointment, approval to the appointment of the Respondent No.5 can be suitably changed to another post, if available or issue such other direction, as may be warranted in the fact situation of the case. 5 wp623.10.sxw 3 Accordingly, we set aside the impugned Order dated 30 th March, 2009 Exh. P1 and instead, the Respondent No.2 is directed to reconsider the proposals of the Petitioner as well as Respondent No.5 afresh on its own merits in accordance with law. That shall be done as expeditiously as possible, in any case, within six weeks from today. 4 Needless to observe that the Respondent No.2 shall offer opportunity to the Petitioner, Respondent No.5 as well as the Management before taking any final decision. 5 Petition disposed of on the above terms. (MRS MRIDULA BHATKAR, J) (A.M.KHANWILKAR,J)