IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6055 OF 2009 Wasim Mustakim Sayed ...Petitioner Vs. The State of Maharashtra & Others ... Respondents --- Shri N.V. Bandiwadekar for Petitioner Shri P.I. Khemani AGP for Respondent Nos.1 and 2. Shri Mandar Limaye a/w Shri Mahendra Aagavekar for Respondent No.3 ---- CORAM: V.M. KANADE J. DATED 17TH JULY, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel for the Respondents. 2. Respondents waive service. 3. Rule. Rule is made returnable forthwith by consent of the parties. 4. The Petitioner was appointed as a Junior Clerk by order dated 31st December, 2007 since the said post had become vacant on account of promotion of the junior clerk and senior clerk. An application was made and proposal was sent by the Management to the Education Officer for granting approval to the said appointment. Along with the proposal, which was sent by the Management, copy of the seniority list also was annexed. The Education Officer, however, by his order dated 25.6.2009 refused to grant approval on three grounds: (i) copy of seniority list is not annexed. (ii) there is a backlog in respect of SC, ST, SBC and N.T. Candidates and; (iii) the vacant post of junior clerk is not in conformity with the Resolution dated 25.11.2005 5. In my view, there is a clear non-application of mind on the part of the Education Officer while passing the said order. The proposal itself clearly indicates that the common uptodate seniority list had been annexed along with the proposal and, therefore, this ground does not survive. So far as, the second ground is concerned, the Division Bench of this Court in Writ Petition No.4747 of 2005 and in several other cases, the Division Bench as also the Single Bench of this Court have consistently held that the Education Officer cannot refuse to grant approval only on the ground that there is a backlog in respect of reserved category candidates and more particularly, when the appointment has been made from the open category and vacancies are available in the open category candidates. In view of the judgments of this Court in the aforesaid case, the ratio of the said judgment is squarely applicable to the second objection raised by the Education officer and the said objection does not survive. So far as third objection is concerned, the learned Counsel for the Petitioner has invited my attention to the approval granted by the same Education Officer, in which he has stated that total number of students in the said school is 2810 and he has granted approval for two posts of senior clerk and three posts of junior clerk. The resolution dated 25.11.2005 also in terms state that where the strength of the students is between 501 to 1000, two junior clerks can be appointed by the school. In the present case, the strength of the student is more than 2000 which fact, is accepted in the certificate given by the Education Officer and as such, the post clearly falls within the purview of the notification dated 25.11.2005. The impugned order, therefore, is patently illegal. The Writ Petition is, accordingly, allowed. The Respondent No.2 is directed to grant approval to the appointment of the Petitioner to the post of junior clerk in the Respondent No.3 School. 6. Petition is, accordingly, disposed of. V.M. KANADE J.