1 wp-6298-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 6298 OF 2009 Mrs.Bina Madhukar Kadu ..Petitioner Vs. The State of Maharashtra and Ors. ..Respondents .... Mr. N.V.Bandiwadekar Adv. for Petitioner Ms. S.S.Bhende AGP for State. Mr. Mandar V.Limaye Adv.for Respondent No.3 .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : 24th JULY, 2009 P.C.: 1. Heard the learned counsel appearing on behalf of the Petitioner and the Respondents. 2. Respondents waive service. 3. Rule. Rule is made returnable forthwith by consent of the parties. 4. The Petitioner is challenging the order passed by the Education Officer (Secondary) dated 25.6.2009, whereby the proposal for approval made by the Respondent No.3 Management for granting approval to the promotion of the Petitioner to the post of Head Clerk was rejected. 2 wp-6298-09 5. The brief facts are as under: The Petitioner was appointed as a junior clerk on 1.8.1990 in Kalamboli High School and Junior College run by Respondent No.3. The aforesaid School is a Government recognized and aided Private Secondary School. The said appointment was duly approved. On 1st August, 1993, the petitioner was promoted as a Senior Clerk. Approval was granted to the said promotion. On 30.6.2007, one Mr. Bhise who was working as Head Clerk retired after he attained the age of superannuation. The Petitioner herein was promoted as Head Clerk by the Respondent No.3 Management with effect from 1.7.2007. The Management sent a proposal to the Education Officer seeking approval to the said order of promotion. Along with the said application, the following documents were annexed: (i) Proposal; (ii) Resolution of the Management; (iii) Seniority List; (iv) Roster List; (v) Joining Report. The Education Officer, however, rejected the application for the following reasons:- (i) that the latest seniority list had not been annexed by the Management; 3 wp-6298-09 (ii) the post of Head Clerk could not be approved in view of the Government Resolution dated 25.11.2005. (iii) that there is backlog of Scheduled Tribe-2 and V.J.N.T.-1 and as the petitioner was not from the said categories, his promotion cannot be approved. 6. The learned Counsel appearing on behalf of the Petitioner, firstly submitted that so far as the first ground is concerned, it is clear non- application of mind on the party of the Education Officer since the latest seniority list had been annexed along with the application. As far as the second reason which was given by the Education Officer for rejecting the proposal, the learned counsel for the petitioner invited my attention to the Government Resolution dated 25.11.2005. AS per Annexure A to the said Government Resolution, one post of Head Clerk would be admissible to Government recognised aided Secondary and Higher Secondary School/Junior College cases where the strength of the students in the school was between 1601 to 2200. He submitted that in the present case the strength of the students was 1670. He submitted that the staff schedule sanction given by the said Education officer shows that 1 post of Head Clerk is admissible in case of the school of the Respondent No.3. It was submitted that, therefore, there is complete non-application of mind in refusing to grant approval to the promotion which was given to the Petitioner herein. 4 wp-6298-09 7. The third reason is that there is backlog of Scheduled Tribe-2, V.J.N.T.-1 meaning thereby that the Management ought to have promoted a Senior Clerk from any of these categories as Head Clerk and since the Petitioner is not from these categories, hence, her promotion cannot be approved. As far as this reason is concerned, it is seen that the Respondent No.2 failed to consider that in the seniority list of Senior Clerks with the Respondent No.3 Management, there is no employee from ST or VJNT categories who could be so promoted to the post of Head Clerk. The seniority list of Senior Clerk cadre clearly bears out this fact. It is seen that, the petitioner was the senior most employee in the said cadre of Senior Clerks and hence, on the basis of said seniority, the Respondent No.3 promoted the Petitioner as a Head Clerk. The said seniority list had been annexed, but without considering the same, the Respondent No.2 has refused approval on the aforesaid ground which is not at all tenable. 8. The learned Counsel appearing on behalf of the Respondent No.3 has supported the case of the Petitioner. 9. The learned AGP appearing on behalf of the State was not in a position to justify the order passed by the Education Officer. He submitted that the matter may be remanded back to the Education Officer for fresh hearing. 10.In my view, it is not necessary to remand the matter back since the 5 wp-6298-09 order obviously has been passed as a result of total non- application of mind by the Education Officer. So far as ground no.1 is concerned, the seniority list has been annexed along with the application. No grievance has been made so far by any other employees in respect of the seniority list. No appeal has been filed against the order of promotion which was passed in favor of the present Petitioner. The said objection, therefore, does not survive. So far as, the second objection is concerned, it is apparent that the school had sufficient number of students for the purpose of appointing Head Clerk. The staff schedule sanction given by the said Education Officer shows that one post of Head Clerk is admissible in case of the School of the Respondent No.3. Therefore, it is obvious that the said condition also has been complied by the Respondent No.3 Management. As far as the third objection is concerned, there was no person in S.T. Or V.J.N.T. Categories available, hence, there was no question of promoting a person from such category as Head Clerk. 11.In the above circumstances, the impugned order is set aside. The Education Officer is directed to grant approval to the Petitioner's promotion to the post of Head Clerk. It is, however, clarified that in the event, any appeal is filed by any of the employees, challenging the order of promotion, the same may be decided by the School Tribunal on merits and in accordance with law. 6 wp-6298-09 12.Writ Petition is, accordingly, allowed in the aforesaid terms and disposed of. [ SMT.V.K.TAHILRAMANI,J.]