Wp 2341/10 1 IN THE HICH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2341/2010 Pundalik Tukaram Gaikwad Petitioner Vs. Education Officer,(Secondary) Z.P.Nashik & Ors. Respondents Mr.Sandesh Patil a/w Mr.Prashant Jadhav for petitioner Mr.C.R.Sonawane,AGP for Res.1 & 2 Mr.N.R.Bubna,for Res.3 CORAM- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE 26th April,2011 P.C. . Heard counsel for the parties. Rule. Rule made returnable forthwith by consent. AGP waives service on behalf of respondent nos.1 & 2. Mr.Bubna waives service on behalf of respondent no.3. As short question is involved the petition is taken up for final disposal by consent. 2 This petition under Article 226 of the Constitution takes exception to the order dated 24/6/2008 passed by the Education Officer (Secondary), Z.P.,Nashik, whereby the proposal for approving the appointment of the petitioner to the post of Clerk has been refused with retrospective effect. The petitioner was posted in respondent-school as a junior clerk in the year 1994. The management is disputing the correctness of that stand and in fact had proceeded against the petitioner for fabricating the record for securing the appointment letter in favour of Wp 2341/10 2 the petitioner and, therefore, dismissed him from service. The said decision was challenged by the petitioner before the School Tribunal, where he succeeded as the appeal was allowed with order of reinstatement of the petitioner. The said order was challenged by the management vide W.P.No. 4472/2000 which has been admitted, however, the operation of the order of reinstatement has not been stayed by this Court. As a result, the petitioner was required to be reinstated in service by the management. It is after this reinstatement, respondent no.1 has now passed order dated 24/6/2008 refusing to grant approval to the initial appointment of the petitioner with retrospective effect. 3 The grievance in this petition is that the order so passed by respondent no.1 is malafide and colourable exercise of power. The incumbent Education Officer (Secondary) is none other than the mother of the Secretary of the Trust which is running the school in which the petitioner came to be appointed as a clerk. She also happens to be the wife of the Chairman of the said Trust. The fact that the then Education Officer who has passed the impugned order dated 24/6/2008 was closely related to the office bearers of the management which is running the school in which the petitioner was appointed as a clerk, is not in dispute. If it is so, it necessarily follows that the then Education Officer, (Secondary),Z.P.Nashik has acted in excess of jurisdiction. In any case the order so passed on 24/6/2008 will have to be treated as vitiated in the Wp 2341/10 3 eyes of law. It is intriguing that the officer who was so closely related to the office bearers of the Institution was given posting in the same area of operation of the Institution. That is a matter which will have to be examined by the Secretary of the Education Department and appropriate action should be proceeded against the concerned official, if so advised. We keep all the questions in that behalf to be decided on its own merits. 4 Suffice it to observe that the impugned decision dated 24/6/2008 cannot be allowed to stand even for a minute and,therefore, we have no hesitation in setting aside the same, for the reasons recorded hereinabove. Instead, we would direct the new incumbent Education Officer (Secondary) to examine the proposal regarding the grant of approval to the appointment of the petitioner as a clerk in the respondent- school afresh on its own merits, in accordance with law, uninfluenced by the earlier decision which is being set aside in terms of this order. Indeed, this decision will have to abide by the outcome of W.P.No.4472/2000. 5 All questions in that behalf are left open to be considered afresh on its own merits. 6 The present incumbent Education Officer,(Secondary) shall take decision on the restored proposal one way or the other as expeditiously as possible in any case not later than eight weeks from the Wp 2341/10 4 receipt of this order, either through the office of the Government Pleader or the petitioner which ever is earlier . 7 The petition succeeds in terms of prayer clause (b), on the above terms. 8 Copy of this order be forwarded to the Secretary, School Education Department, for information and necessary action in the light of the observations made herein. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR ,J.)