1 wp-6357-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 6357 OF 2009 Shri.Subhash Laxman Thombare ..Petitioner Vs. The State of Maharashtra and Ors. ..Respondents .... Mr.N.V.Bandiwadekar Adv. for Petitioner Mr.P.I.Khemani AGP for Respondent nos.1 and 2. Mr.Mandar 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, the learned AGP for respondent nos.1 and 2 and learned counsel for the respondent no.3. 2. Rule. Respondents waive service. Rule is made returnable forthwith by consent of parties. 3. By this petition, the petitioner is challenging the order passed by the Respondent no.2 Education Officer dated 25th June, 2009 whereby the 2 wp-6357-09 application filed by respondent no.3-Management seeking approval to the appointment of the petitioner as a peon was rejected. The petitioner was appointed as a peon by an order dated 19th July, 2008 in a school run by respondent no.3. The said appointment was made after the selection procedure laid down under the Act and Rules, was followed by respondent no.3. He thereafter, joined the said school as a peon with effect from 1st August, 2008. 4. The Head Master of the said school submitted a proposal to respondent no.3, seeking approval to the aforesaid appointment of the petitioner as a peon. Along with the said proposal, relevant documents were also annexed. The Education Officer-respondent no.2, however, refused to grant approval by his order dated 25th June, 2009 on two grounds mentioned in the said order. The first reason given in the said order is that the backlog in respect of reserved category candidates is not filled up by the Management and secondly, as per Government Resolution dated 25th November, 2005, the post of peon is not admissible. 5. It was submitted by the learned counsel appearing on behalf of the petitioner that so far as the first reason is concerned, since the petitioner himself belongs to Other Backward Class category which is one of the reserved categories and for whom reservation is prescribed 3 wp-6357-09 under the M.E.P.S. Rules, 1981, the proposal could not have been refused on that ground. 6. The second reason given in the impugned order is that as per G.R. Dated 25th November, 2005, the post of peon is not admissible. The said reason is also illegal and contrary to the record. The respondent no.2 has referred to the G.R. Dated 25th November, 2005. However, even as per annexure to the said G.R., it can be seen that if the strength of the students in the school is upto 500, one post of peon is admissible. 7. The learned AGP appearing on behalf of the State Government was not in a position to justify the order passed by the Education Officer and, therefore, he submitted that the matter may be remanded. 8. In my view, it is not necessary to remand the matter in view of the admitted position. There is clear non-application of mind on the part of Education Officer. It is not in dispute that the petitioner belongs to Other Backward Class category which is one of the reserved categories under the Rules. The first reason therefore, is clearly untenable. 9. 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 25th November, 2005. As per Annexure-A to the said G.R. It is seen that one post of Clerk will 4 wp-6357-09 be admissible if the strength of the students of the school is over 500. The record shows that at the relevant time, in the school there were 1231 students and therefore, one post of peon was admissible. Six posts of peons were sanctioned by the respondent no.2 Education Officer. The staff schedule sanctioned given by the Education Officer shows that the post of peon is admissible in the school of respondent no.3. My attention was invited to the order dated 2nd August, 2007 passed by Respondent no.2-Education Officer in which it was stated that at the relevant time, there were about 1231 students and 25 sanctioned Divisions and, therefore, one post of peon was admissible. My attention was also invited to the order dated 25th January, 2006 passed by respondent no.2 wherein he had sanctioned six posts of peon. Moreover, it is seen that Shri.Dilip Bhosale was working as a Laboratory Attendant in the school run by Respondent no.3. He expired on 21st May, 2008. Hence, Respondent no.3 promoted the senior most peon in the secondary school i.e. Shri.Vishwajit Deshmukh in the vacant post of Laboratory Attendant. This resulted in vacancy in the post of peon in the said school. The Management therefore, invited applications for the said post of peon. The petitioner applied for the said post. After conducting the selection procedure, petitioner came to be selected and appointed in the said post of peon. Petitioner had 5 wp-6357-09 been appointed in the post of peon which had become vacant due to promotion of Shri.Vishwajit Tukaram Deshmukh to the post of Laboratory Attendant. Therefore, it is clear that the post of peon in the school of the Management was also a sanctioned and vacant post which was also duly admissible as per the aforesaid Government Resolution. 10.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 peon. 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. 11.Writ petition is, accordingly, allowed in the above terms and disposed of. [ SMT.V.K.TAHILRAMANI,J.]