 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 66/2009 ( Nalini w/o Dinkar Salve vs. State of Maharashtra and others) ----------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... CORAM: D.D.SINHA & A. P. BHANGALE , JJ. DATED: 02nd March, 2009. *** 1. Heard Shri Anand Parchure, learned counsel for the petitioner; Mr Nitin Sambre, learned Government Pleader for Respondents 1 and 2 ; Mr S.P.Bhandarkar, for Respondent No.3; Mr S.P.Palshikar, for Respondent No.4 and the Intervenor in-person. 2. The present petition is directed against the communication dated 29.12.2008 though addressed to the President and Secretary of the Respondent No.3 -Trust; copy thereof is forwarded to the petitioner. By the said communication, it is informed that the approval granted to the petitioner as Assistant Headmistress dated 30.11.2006 came to be canceled and the Management is informed to recover the amount of difference of pay from the petitioner. 3. Learned counsel for the petitioner has submitted that the petitioner was appointed as  Assistant Headmistress and the proposal was submitted by the Management to the then Education Officer for grant of approval. The Education Officer, after considering the eligibility of the petitioner, granted approval for the post of Asst. Headmistress vide order dated 30.11.2006. He further submitted that the petitioner did not obtain the approval, either by playing fraud or misrepresenting the claim. It is, therefore, contended that even if it is presumed for the sake of argument that the petitioner, at the relevant time was junior to one Mr.Khadse, the petitioner was not instrumental in obtaining the approval from the Education Officer for the post of Assistant Headmistress and, therefore, the recovery of the difference of pay which is to be initiated against the petitioner, is bad in law. 4. Mr. Nitin Sambre, learned Government Pleader has submitted that Respondent No.4 on earlier occasion, had filed a Writ Petition No.1925/2008, questioning the order passed by the Education Officer, whereby the petitioner was given additional charge of the post of Assistant Headmistress as well as administrative and financial powers. This Court vide order dated 12th September, 2008 disposed of the petition keeping the issue open in the said petition and permitted Respondent No.4 to canvass his grievance before the appropriate Authority. In such a situation, Respondent No.4 has approached the Education  Officer for redressal of his grievance regarding inter se seniority between the petitioner and Respondent No. 4. The Education Officer by order dated 23.2.2008, after giving opportunity to the petitioner, Management as well as Respondent No.4, has concluded that the petitioner was appointed on 11.7.1977 and at the time of appointment, she was holding the qualification of B.Sc. and obtained B.Ed. qualification in the year 1979 ; whereas Respondent No.4 was appointed in the year 1973 and at the relevant time was holding qualification i.e. B.Sc. and obtained B.Ed. qualification in the year 1975. The Education Officer, therefore, held that the Respondent No.4 is senior to the petitioner and, therefore, the Management was directed to take appropriate action in this regard. 5. it is not in dispute that Respondent No.4 stand superannuated with effect from 31.12.2008. However, his services are continued till the end of present academic session, which would come to an end on 30th April, 2009. Counsel for the petitioner states that in view of the subsequent development, the Respondent-Management should take appropriate steps to fill up the post of Headmistress by appointing the petitioner who is the senior-most teacher in the school and forward the proposal in this regard to the Education Officer for grant of approval.  6. We have considered the rival contentions. In view of the above-referred facts, it appears that the petitioner was appointed as Asst. Headmistress and the Education Officer granted approval to the said post vide order dated 30.11.2006. Neither the State nor Respondent No. 2 has placed before us any material to demonstrate whether the petitioner obtained the said approval by playing fraud or by fabricating documents etc. The affidavit filed by the Education officer is completely silent in this regard. There is no whisper in the said affidavit that the petitioner was instrumental in obtaining approval from the Education Officer with oblique motive. In such a situation, it is difficult for us to hold that the petitioner was responsible for order of approval passed by the Education Officer and in absence thereof, the impugned communication dated 29.12.2008, in our view, cannot be sustained in law to the extent of recovery. 7. It is also not in dispute that Respondent No.4 though stand superannuated with effect from 31.12.2008 however will be continued in service till 30th May 2009 and, therefore, it is not necessary for us to consider the grievance of the petitioner in respect of inter-se seniority between the petitioner and Respondent No.4 at this stage. At the same time, after 30th April,2009, we expect the Management to take appropriate steps to fill up the post of Asst. Headmaster/ Headmistress/  Headmaster in accordance with law, after scrutinizing the seniority list of teachers and forward the name of such a person to the Education Officer, who shall again verify and scrutiny the proposal on the basis of latest, declared seniority list of teachers and it is only thereafter and on being satisfied about the eligibility of the candidate, shall grant /refuse the approval. It is made clear that in spite of our clear direction, if the Education Officer commits a mistake in granting approval, he shall be solely responsible for his own Act. 8. Parties to maintain status quo as on today till 30th April,2009. 9. With the above observations, Writ Petition is disposed of. JUDGE JUDGE sahare