1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6638 OF 2009 Ramkrishna Dharmaji Patil .. Petitioner Vs The State of Maharashtra and others .. Respondents Mr. N.V. Bandiwadekar for the petitioner Mr. P.I. Khemani, AGP for the State Shri. Mandar Limaye for respondent no. 3 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 29th September, 2009 P.C.: 1. Heard the learned counsel for the petitioner and the learned counsel for respondent nos. 1 and 2. 2. Rule. Respondents waive service. Rule is made returnable forthwith by consent of parties. 3. The petitioner has challenged the order dated 25th June, 2009 passed by the Deputy Director of Education who has rejected the proposal for grant of sanction to the appointment of the petitioner in the post of peon made by the respondent - management. 4. The proposal for approval to the appointment of the petitioner in RMA wp6638-09.sxw 2 the post of peon came to be rejected on two grounds. The first ground is that there is backlog of reservation. The second reason given in the impugned order is that as per G.R. dated 25th November, 2005, the post of peon is not admissible. As far as the second reason which was given by the Eduction Officer for rejecting the proposal, the learned counsel for the petitioner invited my attention to the very same Government Resolution dated 25th November, 2005. As per Annexure - A to the said G.R., it is seen that one post of peon will be admissible if the strength of the students of the school is over 500. The staffing schedule sanctioned given by the Education Officer also shows that three posts of peon are admissible in the school of the respondent. My attention was invited to the order dated 24th July, 2007 passed by respondent no. 2 - Education officer which shows that at the relevant time, there were 502 students in respondent school and that three posts of peon were admissible in the school. 5. Moreover, it is seen that one Smt . Prachi Prakash Pathak was working as a peon in a permanent and sanctioned post at Madhyamik Vidyalay, Dadar, Tal. Pen, District Raigad. The said RMA wp6638-09.sxw 3 secondary school is a Government recognized and aided and it is run by respondent no. 3 society. The said Smt. Prachi Pathak came to be transferred to another school of respondent no. 3 viz Madhyamik Vidyalaya, Kopra, Tal. Panvel, Dist. Raigad. The respondent no. 3 has appointed the petitioner in the post which was earlier occupied by Smt. Prachi Pathak. In view of all these facts, I find no merit in the second ground on the basis of which the proposal for approval was rejected. 6. As far as the first reason is concerned, as per roster, there was backlog of two posts in the handicapped category. Looking to this fact, the management passed resolution that the petitioner should be appointed as a peon in the handicapped category. The proposal for approval to the post of petitioner as a peon in the handicapped category was also submitted by the management. From the roster, it is clear that there was backlog in respect of handicapped category. Under Section 33 of the said Act, the institution has to reserve 3% of its posts for handicapped persons. The certificate produced by the petitioner from Competent Authority clearly shows that he is handicapped and he would fall in the category of RMA wp6638-09.sxw 4 handicapped person. This fact has not been disputed by Deputy Director of Education. In the affidavit-in-reply also, it is not the case of respondents that the petitioner is not handicapped and does not fall under the aforesaid category. Thus, it is not disputed that the petitioner is a handicapped person. That being the position, in my view, there is clear non-application of mind by the Deputy Director of Education in refusing to grant approval to the appointment of petitioner herein. 7. Hence, in view of the above facts, the writ petition is allowed. The impugned order dated 25th June, 2009 is quashed and set aside. The Education Officer is directed to grant approval to the appointment of the petitioner as expeditiously as possible and in any case within a period of six weeks from today. The Education Officer to release the payment in respect of salary of the petitioner within eight weeks from today. On release of salary to the petitioner, the management to pay the same to the petitioner as expeditiously as possible. Rule is made absolute in aforesaid terms. (SMT. V.K. TAHILRAMANI, J) RMA wp6638-09.sxw 5 RMA wp6638-09.sxw