1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 5118/2010 Bhupesh Vasant Masram -VERSUS- The Education Officere (Secondary) Z.P. and others. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI & A.P. BHANGALE, JJ. DATED : AUGUST 22, 2011. Heard finally by consent of Shri R.P. Joshi, learned Counsel for petitioner, Shri Kankale, learned A.G.P. for respondent no.1 and Shri M.I. Dhatrak, learned Counsel for respondent nos. 2 and 3. Rule, returnable forthwith. Shri Joshi, learned counsel points out that petitioner, then an untrained teacher was appointed against a Scheduled Tribe reserved category post with condition that he will obtain D.Ed. Qualification within 2 three years of 30.07.2006. He further states that this time limit was later on extended and currently the training qualification can be obtained till 2015. In this background, he contends that as the School Tribunal has directed reinstatement of one Mr. Choudhari, the Education Officer has canceled the approval given to the appointment of petitioner, and subsequently respondent nos. 2 and 3 are supposed to issue termination order. He contends that petitioner even today is discharging his duties, but has not received salary because of cancellation of approval. He has invited attention to the approval given by the Education Officer on 23.03.2007 to urge that, against vacancy of Shri Choudhari, one Shri P.S. Agrawal from open category came to be appointed as Shikshan Sevak. Shri Dhatrak, learned counsel for respondent nos. 2 and 3 is supporting the case of petitioner. Shri Kankale, learned A.G.P. has today tendered additional affidavit which states that petitioner was appointed against vacancy caused by 3 removal of Shri Choudhari. Perusal of the documents shown to us clearly show that the petitioner was not appointed against the vacancy caused by removal of Shri Choudhari. According to Shri Joshi and Shri Dhatrak, learned Counsel, Shri Choudhari was candidate belonging to other backward class and against his vacancy Shri P.S. Agrawal from open category came to be appointed. The approval as granted on 23.03.2007 by the Education Officer supports this contention. Not only this, it also shows that the petitioner is belonging to scheduled tribe and has been appointed against the post reserved for Scheduled Tribe. Prima facie therefore, it appears that the petitioner has got nothing to do with the vacancy against which Shri Choudhari was initially appointed or against which he is to be accommodated. In these circumstances, it is to be noted that the petitioner has also acquired the D.Ed., qualification in January, 2011 i.e. within time as stipulated by the State Government. Hence, we quash and set aside the orders 4 dated 25.06.2010 passed by respondent no.1. However, we direct the petitioner as also respondent nos. 2 and 3 to appear before respondent no.1 Education Officer on 12.09.2011. The Education Officer shall after hearing the respective parties and after perusal of the records, pass fresh orders in this respect, as early as possible and in any case by 08.11.2011. Petition is partly allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE JUDGE Rgd