1 5.wp-4585-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 4585 OF 2009 The Deputy Director, Vocational Education and Training, Mumbai and Anr. ..Petitioners Vs. Shri.Sumedh Janardhan Mahadik and Ors. ..Respondents .... Mrs.M.P.Thakur AGP for Petitioners Mr.N.V.Bandiwadekar Adv. i/b Deepak Dongre Adv. for Respondent No.1. Mr.P.P.Chavan i/b Reshma Muthani Adv. for Respondent Nos.2 & 3. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : JULY 22, 2009 P.C.: 1. Heard the learned AGP for the petitioners, Mr.Bandiwadekar, the learned counsel for the Respondent No.1 and Mr.Chavan, the learned counsel for the Respondent Nos.2 and 3. 2. Respondent No.1-Sumedh Janardhan Mahadik was appointed on 27th March, 2003 as Laboratory Assistant as the post of Laboratory Assistant which was earlier held by Shri.Ramdas Bhatkar fell vacant on account of his taking voluntary retirement on 1st October, 2001. On 29th 2 5.wp-4585-09 March, 2007, Respondent No.2 Management issued termination order to Respondent No.1 as their proposal for grant of approval of appointment of Respondent no.1 was rejected. Respondent No.1 challenged the said termination before the School Tribunal. By judgment and order dated 24th October, 2008, the School Tribunal, Kolhapur allowed the appeal bearing No.24 of 2007 filed by the Respondent No.1. The order of termination of Respondent No.1 dated 29th March, 2007 effective from 1st May, 2007 came to be quashed and the Respondents were directed to reinstate him on his original post of Laboratory Assistant with full back wages and continuity in service with effect from 1st May, 2007. Being aggrieved thereby, this writ petition has been preferred. 3. The main ground of challenge is that the appointment of Respondent No.1 is not on a sanctioned post as the post of Laboratory Assistant had lapsed prior to the appointment of Respondent No.1. In support of this contention, reliance is placed on Government Resolution dated 10th September, 2001. The learned AGP has pointed out that in the said Government Resolution, it is stated that if any post falls vacant for more than six months and the said post is not filled up within six months on regular basis, then prior to filling up such post, prior permission of the Finance Department had to be obtained. It is stated that the said post should be revived before filling up and such post cannot be filled up 3 5.wp-4585-09 without consent of the Finance Department. The learned AGP submitted that in the present case, Respondent Nos.2 and 3 had filled up the post without taking prior permission of the Finance Department, which was very much necessary as the post was vacant for a period more than six months since Shri.Ramdas Bhatkar retired voluntarily on 1st October, 2001. She submitted that in view of these facts, appointment of Respondent No.1 on such post is void ab initio and in such case, the Petitioners were not bound to pay benefits to Respondent No.1. 4. It is pertinent to note that the very same Government Resolution dated 10th September, 2001 on which reliance has been placed by the learned AGP also states that as far as posts from Scheduled Caste and Scheduled Tribes and other backward classes are concerned including V.J.N.T., even if the post remained vacant for a period of more than six months, the said post would not lapse and for filling of such post, the permission of the Finance Department is not required. Reference may also be made to other Government Resolutions issued after the Government Resolution dated 10th September, 2001 but before the appointment of Respondent No.1. Moreover, Government Resolution dated 10th September, 2001 on which reliance is placed and Government Resolution dated 2nd January, 2003 issued by the State Government mention that to fill up the vacant post of teaching and non- 4 5.wp-4585-09 teaching staff among backward categories, no prior permission of Finance Department or any authority, is required. Thus, it is seen that there was no necessity for Respondent No.2 to seek prior permission of the Finance Department to appoint Respondent No.1. 5. The learned AGP thereafter submitted that the said post was lying vacant for a period of more than six months and in view of the Government Resolution dated 10th September, 2001, the said post had lapsed and no appointment could have been made to such lapsed post hence, he was rightly terminated. Useful reference can be made to other two Government Resolutions dated 31st October, 2002 and 2nd January, 2003. In these Government Resolutions, permission was granted by the Government to fill up the post reserved for backward classes. In view of these Government Resolutions, the Respondent Nos.2 and 3 were bound to fill up the post of Laboratory Assistant on or before 31st March, 2003. As stated earlier, the appointment of the Respondent no.1 was dated 27th March, 2003, thus, it is seen that the appointment of Respondent No.1 was made pursuant to these two Government Resolutions. 6. The learned AGP thereafter submitted that Respondent No.1 was not appointed in accordance with the provisions of law, hence, the Tribunal ought not to have set aside the order of termination. She submitted that no advertisement was issued and no list was called for from Social 5 5.wp-4585-09 Welfare Department. As far as this ground is concerned, it is seen that in the written statement filed by the petitioners before the Tribunal, no such ground was taken. However, in the written statement filed by the present Respondent nos.2 and 3, it is categorically stated that Respondents had advertised the said post and requested the recruitment machinery of Government of Maharashtra to provide eligible candidates from Scheduled Caste category for appointment on the vacant post of Laboratory Assistant and after scrutinizing various candidates and holding interviews, they appointed the appellant subject to the approval of the Deputy Director of Education and Training. The material on record shows that name of Respondent No.1 was registered with the Employment Exchange and Social Welfare Office. The Respondent No.2 Management had notified said post to the Employment Exchange Agency. The Employment Exchange Agency sent the names of the candidates to the respondent no.2. The name of appellant was one of them. Accordingly, the respondent no.2 called the candidates including Respondent no.1 for interview. In the said interview he was found suitable. Therefore, the Respondent Management appointed him on probation for two years by an order dated 27th March, 2003. Thus, I see no no merit in this submission. 7. Thereafter, the learned AGP submitted that the said post was reserved for Scheduled Tribe and Respondent No.1 is from Scheduled Caste 6 5.wp-4585-09 and hence, the decision of not granting approval to the appointment of Respondent No.1 and termination by Management, cannot be faulted. As far as this aspect is concerned, it is seen that this ground is being taken for the first time before this Court. In the written statement filed by the Petitioners before the Tribunal, no such ground was taken. Moreover, the reservation roster dated 31st December, 2002 which has been annexed to this petition by the petitioner clearly shows that there was one backlog as far as Scheduled Caste category is concerned and as far as Scheduled Tribe category is concerned, there was no backlog. Thus, this document which has been annexed by the Petitioners themselves clearly shows that there was backlog in the Scheduled Caste category and it is not disputed that Respondent No.1 is from Scheduled Caste category. Thus, it is seen that after complying with all the necessary formalities, Respondent No.1 came to be appointed for a period of two years on probation as Laboratory Assistant vide appointment order dated 27th March, 2003 by the Management. This appointment was pursuant to the Maharashtra Government Special Drive Programme in respect of filling up of the backlog of the employees of backward classes which is mentioned in Government Resolution dated 2nd January, 2003. In the said Government Resolution, it is stated that the period has been extended upto 31st March, 2003 to fill up the post of reserved category and if the said post 7 5.wp-4585-09 was not filled up, action will be taken against the concerned appointing authorities. Keeping this Government Resolution in mind, Respondent Nos.2 and 3 have appointed the Respondent No.1 on 27th March, 2003 on finding him to be eligible. 8. Looking to these facts, it is seen that Respondent No.1 has been appointed after following the necessary procedure and in view of the Government Resolutions mentioned above, his appointment cannot be faulted. The petitioners were in error in not granting approval to his appointment. The Tribunal has considered all aspects in detail and thereafter has rightly passed the order. The order is just, legal and proper. No case is made out for interference with the order of the Tribunal dated 24th October, 2008. 9. Writ petition is rejected. [ SMT.V.K.TAHILRAMANI,J.]