1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3432 OF 2005. Vishwanath Dagdu Gudhadhe, aged about 37 years, resident of Dapki Road, Akola. ... PETITIONER. VERSUS 1. Rashtriya Vidhya Niketan,Akola through its President Shri Radhakisan Plot, Akola. 2. Headmaster, NWW Swawlambi Vidyalaya, Akola. 3. Dy.Director of Education, Amravati, Walgaon Road, Amravati. 4. Education Officer [Secondary] Zilla Parishad, Akola, District – Akola. ... RESPONDENTS. --------------------------- Mr. Anjan De, learned Counsel for Petitioner. Mr. A.M. Ghare, learned Counsel for Respondent Nos. 1 & 2. Mrs. T.D. Khade, learned A.G.P. for Respondent Nos.3 & 4. ------------------------- CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 07, 2010. 2 ORAL JUDGMENT : 1. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner – employee is challenging the order passed by the School Tribunal on 29.06.2005 in Appeal No. 168/1996, whereby his appeal challenging the termination from service by order dated 3.12.1996 came to be dismissed. 2. In view of the subsequent developments in the matter, it is not necessary for this Court to go into details of the said challenge. 3. I have heard Shri De, learned Counsel for petitioner, Shri Ghare, learned Counsel for respondent nos. 1 and 2 and Mrs. Khade, learned A.G.P. for respondent nos. 3 and 4. The learned counsel have invited attention to the various orders passed in the matter. Perusal of the order dated 23.03.2007, shows that after noticing that the petitioner was appointed on 18.03.1994 against a vacancy caused by the retirement of one Tulshiram Shinde, Question whether, the said appointment as against clear vacancy or not, arose. This Court then also noticed that the appointment was made without obtaining prior permission of the Education Officer and for that reason, approval was not given to the appointment of the petitioner. In the light of 3 these contentions and because of the judgment of Full Bench of this Court reported at 2007 [1] Mh.L.J. 597 (St. Ulai High School .vrs. Devendraprasad Jagannath Singh), this Court then asked the Education Officer to reconsider the question of approval within a period of four months. The contentions raised by the learned A.G.P. that post on which petitioner came to be appointed was supernumerary in terms of clause 55.1 to 55.3, was then also noted. The Education Officer was directed to hear all concern. In pursuance of this direction, on 30.04.2008 the Education Officer has granted approval to the appointment of the petitioner against vacant post w.e.f. 01.07.2003. 4. Shri Ghare, learned counsel appearing for respondent nos. 1 and 2, has stated that respondent nos. 1 and 2 are supporting the case of petitioner and after retirement of Tulsiram Shinde on 28.02.1994 a clear vacancy was available against which petitioner came to be appointed. He therefore, supports the argument of Shri De, that said approval ought to have been from the date of appointment of petitioner. 5. Mrs. Khade, learned A.G.P. however points out that, the order of approval is not supposed to be a reasoned order and hence facts 4 which weighed with the education officer while granting approval from 01.07.2003 are not on record. She fairly accepts that copy of the Civil Application No.4192/2008 seeking appropriate directions to modify that sanction w.e.f. 18.03.1994 was received by the office of the Government Pleader on 17.06.2008, but she points out that reply affidavit could not be filed. 6. Perusal of the impugned order passed by the School Tribunal reveals that the School Tribunal has dismissed the appeal after noticing that the appointment of petitioner was not made as per Section 5 of the Maharashtra Employees of Private School (conditions of Services) Regulation Act, and there was no approval to his services. These findings are because of absence of vacant post, as then found by the Education Officer. The subsequent events clearly show that the Education Officer has found it proper to grant approval from 01.07.2003, it therefore means that at least from 01.07.2003 a vacant post against which the petitioner could have been accommodated, is found to be in existence. The contention of petitioner that, after Tulshiram retired, he came to be appointed again shows availability of vacant post. The said factor or its consideration does not figure in the order granting approval. The education officer could not file any reply to the Civil Application No. 5 4192/2008 and hence this Court also cannot look into the matter. Shri Ghare, as also Shri De, learned counsel have stated that, even if the approval is granted from 18.03.1994 no financial burden is cast upon the government exchequer. In view of this statement and fact that there is approval from 01.07.2003, and respondent nos. 1 and 2 management is not opposing the petition, the impugned order of termination dated 3.12.1996 is quashed and set aside. The petitioner is accordingly directed to be reinstated. However, grant of continuity and entitlement to back wages [ if any], shall depend upon the date from which the Education Officer finds him entitle to approval. The said officer has already granted approval from 01.07.2003 and hence in any case, the petitioner is entitled to continuity and wages from 01.07.2003. If after hearing respective parties, the education officer for valid reasons finds it proper to grant approval from 18.03.1994 or from any other subsequent date, as per records produced by the Management, the petitioner shall be deemed to be reinstated from the said date i.e. he will get benefit of continuity from such date. His entitlement to wages from such date till 01.07.2003 will be examined by the Education Officer, but then as disclosed above by the learned counsel for the Management and Petitioner that will not enable the petitioner to recover any amount from the Education Department. 6 7. At this stage, Shri De, learned counsel states that the petitioner should be permitted to make representation to the Education Officer in this respect and management should be directed to make relevant records available for inspection of the Education Officer. Accordingly, the petitioner is permitted to move suitable application / representation in relation to grant of approval before the Education Officer, by 31.01.2010. The Management may file its reply to that application and shall produce relevant records for the scrutiny of the Education Officer. After scrutiny of those records and after hearing the petitioner and Management, the Education Officer may consider entitlement of petitioner to claim approval from 18.03.1994 or from any other date between 18.03.1994 to 01.07.2003. Acceptance of such date by the petitioner shall not prohibit him from challenging the order of Education Officer, if it is ultimately found to be adverse to him. The Education Officer shall attempt to decide the issue as early as possible and in any case by 31.03.2010. 8. Writ Petition is accordingly partly allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd