1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION (ST)NO.20693 OF 2006 IN WRIT PETITION NO.10086 OF 2004 1. The Deputy Director of Education ] Kolhapur Region, Hattimahal Road, ] District: Kolhapur. ] 2. The Director of Education ] Government of Maharashtra ] Pune. ] 3. The State of Maharashtra ] Through Additional ] Government Pleader ] High Court, Mumbai ] ...Petitioners/ Orig.Respdts.4 to 6 Vs. 1.Smt.Sarala Maruti Angaj ] Aged 32 years, Occ: Service ] Residing at 712/43, ] Shahaji Vasahat ] Near Shahaji Udyan ] Kolhapur- 416 002. ] 2.The Chairman ] Shri Dudhhsakhar Shikshan ] Prasaran Mandal ] Bidri Mouninagan, Taluka:Kagal ] District: Kolhapur ] 3.The Secretary ] Shri Dudhhsakhar Shikshan ] Prasaran Mandal ] 2 Bidri (Mouninagar) ] Taluka: Kagal, Dist: Kolhapur ] 4.The Principal ] Dudhhsakhar Vidyaniketan & ] Junior College, Bidri (Mouninagar) ] Taluka: Kagal, Dist: Kolhapur ] ...Respondents Respdt.No.1 Orig.Ptnr. & & Respdt.Nos.2 to 4 Orig.Respd.Nos.1 to 3 Mr.R.C. Sonawane, A.G.P for State Petitioner Mr. S.S. Pakale for Respondent No.1 Mr.S.V. Sadavarte for Respondents 2 to 4 CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Date of Reserving the Judgment :28 th February, 2008 Date of Pronouncing the Judgment:28 th March, 2008 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. Rule returnable forthwith. 2. The Petitioners shall register the Review Petition. 3. Heard learned A.G.P for the Petitioners and the learned Advocate on behalf of the Respondents. 4. The Petitioners seek a review of the order of the Division Bench of this Court of Hon'ble The Chief Justice H.L.Gokhale of Allahabad High Court (as he then was) and one of us 3 (Smt.Roshan Dalvi, J.) dated 22 nd July 2005 in Writ Petition No.10086 of 2004. That order came to be passed directing Respondents 2,3 and 4 herein to pay the salary of the Respondent No.1 herein and further directing the Petitioners hereto reimburse such salaries paid to the Respondent No.1 and to approve her appointment to the post of full time lecturer of Chemistry in the Junior College run by the Respondent Nos.2, 3 and 4. 5. It is contended that there is an error apparent on the face of record that the said order requires to be either set aside or modified. 6. The Petitioners have applied for deletion of the latter part of the order which shall be dealt with presently. 7. It is essential to set out and understand the chronology of the events that led to the said order. Respondent No.1 (Original Petitioner) is a handicapped lady. Her qualifications are M.Sc.B.Ed ., pursuant to an advertisement published by Petitioner No.2 (original Respondent No.1), she appeared for the interview and was selected. After following due process of selection, she was appointed as an Assistant Teacher of Chemistry by Respondent No.4, in Respondent No.4 Junior College on part time basis from 2nd August, 1999 4 pursuant to the appointment order dated 28th July, 1999. This appointment was subject to the approval/sanction of the Petitioners. Since she was appointed on part time basis there was no reservation of SC/ST/NT/OBC candidates to be considered. Her appointment was to be reviewed and approved each year. That was done for 4 years until the year 2002- 2003. She was until then taking 20 periods per month in Respondent No.4 College. 8. During the 5th year of her career in 2003- 2004 one Mrs. C.V. Patil who was the Lecturer in Chemistry came to be appointed as Vice Principal of the College. Her work load was consequently reduced from 30 periods to 12 periods. 2 other teachers including the Respondent No.1 were given additional work load. The Respondent No.1 was required to take 30 periods in place of 20 periods, which she earlier took. The total work load of the Lecturers for Chemistry which was earlier sanctioned and required in the College remained unchanged at 72 periods. Since Respondent No.1 was given the full work load for that year, she was made a full time teacher/lecturer by order/letter by Respondent No.5 dated 14 th July, 2003. The Respondent No.1 contends that, that was after considering her seniority that she was so appointed. This appointment was also, subject to the approval of the Petitioners. She was put on probation period 5 for 2 years. An application was made for approval of her full time appointment. Application for approval was sent by Respondent No.5 to the Petitioners. Hence, she was not paid her salary from 17 th July 2003, to claim which, she filed the above Writ Petition. 9. It is the Petitioner's case that under the G.R dated 26th March 2002 prior government sanction was required for appointment of any teacher/lecturer or Shikshan Sevak on permanent basis and that, since it was not obtained the appointment itself was irregular and no approval can later be granted. We have seen that indeed the appointment of Respondent No.1 both as part time as well as full time teacher/lecturer was subject to Government sanction/approval. Consequently application for said approval was made. We are informed that approval for the post of full-time Chemistry Teacher/Lecturer has been granted from 14 th July 2003. What follows as a matter of corollary is the disbursement of salary for the services put in by Respondent No.1 in the approved post. 10. Despite approval, it is contended on behalf of the Petitioners that under G.R dated 11 th October 2000 annexed as exhibit- 2 to the Review Petition, which was not brought to the notice of the Court at the time when the order under 6 review dated 22 nd July 2005 came to be passed by this Court, the reimbursement of salary of any teacher/lecturer is to be made only subject to availability of funds, and no School/College can claim the grants as of right. 11. It is the case of the Petitioners that the Respondent No.1 applied for and has been appointed under the open category. There has been a back- log in Respondent No.5 College for appointment of SC/ST/NT/OBC as well as women in the respective quotas meant for them. The Petitioner's appointment as full time teacher/lecturer is subject to the appointment of the reserved categories. That having not been done, the appointment of Respondent No.1 is not valid. It may be mentioned that the Respondent No.1 as the handicapped women could be appointed in the post reserved for the handicapped though she has not applied for it. The Petitioners contend that even in the capacity of woman, the resolution could have been effected by appointing a woman from the SC/ST/NT/OBC category. Since the Petitioner/Respondent No.1 is otherwise from open category her appointment as the full time teacher/lecturer is challenged in view of the backlog of the Respondent No.5 College. The Petitioners, therefore, contended that the appointment is made without following the required rules and procedure. 7 12. The Petitioners further contend that initially there were 2½ posts for Chemistry Teachers/Lecturers in Respondent No.5 College. There were 72 periods of Chemistry per month. Upon reduction of some of the periods of the Vice Principal, they were shared by the Respondent No.1 and another Teacher/Lecturer without any change in the total workload. Despite that by the appointment of the Respondent No.1 as a full time teacher/lecturer there came to be 3 full time posts. The Petitioners contend that accordingly the part time post got abolished and one new full time post was created. Such post requires prior sanction as per the G.R dated 26 th March 2002. However, we are informed that sanction has been granted from 14th July 2003. 13. It is argued on behalf of the Petitioners that the error in order dated 22 nd July, 2005 needs to be corrected by deleting the latter portion of the said order requiring the Petitioners to reimburse the amounts paid by the College Management to her. 14. We are told that about Rs.5 lakhs have been paid by way of arrears of salary from the appointment of the Petitioner as full time teacher on 14 th July, 2003 until after the order 8 dated 22 nd July 2005. It is contended on behalf of the Respondents 2,3 and 4 that her appointment as a full time teacher dated 14 th July, 2007 was subject to the approval of the State Government. Approval has been granted. She was initially not paid her salaries as approval sought was refused. She has been paid the arrears only pursuant to the High Court order and under the same order that amount was directed to be reimbursed to the College Management. Now that approval is granted from 14 th July 2003. She must be reimbursed the salary paid to her from that day. 15. It is contended on behalf of the Petitioners that under the Government resolution, which was not relied upon in the Writ Petition, dated 11 th October 2000 any reimbursement is subject to availability of funds. It is contended by Mr. Sonawane that as there is no availability of funds at present with the State Government the grant in respect of the salary to be paid to the Petitioner No.1 cannot be allowed. 16. It is contended on behalf of the 1st Respondent and Respondents 2 to 4 that the G.R dated 11th October 2000 is applicable only in respect of grants to be given to new Schools. The School of Respondents 2 to 4 had already been an aided school and grant has been received in respect of other teachers. Paragraph 1 of the G.R dated 11th October 9 2000 runs thus: “(1) Revised Grant- in-Aid Formula: The Secondary Schools which are not as yet brought on Grant- in-Aid as well as the Schools, which will be granted permission in future are entitled to Grant- in-Aid as under towards salary and non-salary expenditure.” 17. Consequently we find substance in the contention that the said G.R does not apply to this case. 18. The Petitioners shall reimburse the salary paid to the Respondent No.1 for the period during which her services have been approved as full time Chemistry Teacher/Lecturer in the College of Respondents 2,3 and 4. 19. Respondents 2 to 4 shall be entitled to claim refund of the salary paid to Respondent No.1 from the Petitioners for the period during which approval has been granted to the post held by her. 20. Civil Review Petition disposed of accordingly. 10 (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.)