1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : N A G P U R. WRIT PETITION No. 1475 OF 2001 Arun Keshavraoji Kawale aged 35 years, r/o c/o Vasudeorao Dhomne, Vidarbha Housing Colony, Nahar Road, Bhandara. ... PETITIONER. -VERSUS - 1. The Education Officer (Secondary), Z.P. Bhandara. 2. The Secretary, Gramin Vidya Vikas Shikshan Sanstha, Bhandara. 3. The Head Mistress, Savitribai Phule Madhyamik Vidyalaya, Bela, District Bhandara. 4. P.S. Kukde, aged 32 years, r/o c/o Savitribai Phule Madhyamik Vidyalaya, Bela, District Bhandara. ... RESPONDENTS. .... Mr. A.D. Mohgaonkar Advocate for the Petitioner. Mr. P.D. Kothari, A.G.P., for Respondent no.1. Mr. Anand Parchure Advocate for Respondents 2 & 3. Mr. S. Borkar Advocate for Respondent no.4. .... 2 CORAM : S.A. BOBDE &A.B. CHAUDHARI, JJ. RESERVED ON : 22-06-2010. PRONOUNCED ON : 20 th JULY, 2010. ORAL JUDGMENT (Per A.B. Chaudhari, J.) : This writ petition is directed against the order dated 5.3.2001 (Annexure-14) passed by Education Officer- respondent no.1 granting approval to respondent no.4. 2. In support of writ petition, Mr.Mohgaonkar learned counsel for the petitioner argued that the petitioner acquired graduate qualification B.A. in 1997 (winter exam) as against respondent no.4 who obtained the same in the year 1998. He then argued that the date of birth of the petitioner is 4.10.1965 as against 11.10.1969 of respondent no.4 and therefore the petitioner was senior in the matter of seniority as per rules. The post in 25% Graduate Pay Scale quota was therefore required to be given to the petitioner rather than respondent no.4 so also the approval. He then pointed out that as a matter of fact the Education Officer had by an order dated 4.12.2000 held the petitioner to be the senior most or rather senior to respondent no.4 and had also directed the management to send the name of petitioner for approval in 25% graduate pay scale quota. But by the impugned order dated 5.3.2001 the Education Officer granted approval to respondent no.4, for which there is no explanation. 3 3. Per contra, Mr. Parchure and Mr.Borkar, learned counsel for respective respondents, supported the impugned order and submitted that the petitioner had not obtained required permission as per rules before undertaking the course for graduation-B.A. from the management which is a pre condition for taking such course. Therefore, the approval was rightly granted in favour of respondent no. 4 who had admittedly obtained prior permission from the management before undertaking the course of graduation and, therefore, no fault could be found out with the impugned order. 4. We have gone through the impugned order and also considered the submissions made on behalf of rival parties. There is no dispute that the petitioner is senior by virtue of his age and in accordance with the rules providing for seniority to the elder person. There is further no dispute that the post of 25% graduate pay scale quota goes by seniority and therefore it was the petitioner who was entitled to the said post, which eventually was given to respondent no.4 and that order is under challenge in the present writ petition. 5. The only defence taken by respondents appears to be that the petitioner had not obtained prior permission before he became graduate in 1997 and that the graduate qualification obtained by him was wholly unauthorized. Perusal of the record shows that on 7.7.1997 the petitioner 4 had made an application or rather given intimation to the management as well as Head Mistress about his undertaking B.A. graduation course as an external candidate. It further appears that he had, after passing his B.A. course, made application on 13.8.1999 for taking entry in the service book. The respondent/management has not at all come with a stand that it had issued single memo or taken action against the petitioner or had informed the Education Officer to the effect that the petitioner had not taken any permission for undertaking graduate course. The obvious reason for obtaining permission from the management appears to be that the absence of such a teacher should not affect the students during working days. In the instant case, the petitioner appeared in graduate course as an external candidates. It appears that the management did not have any objection for the petitioner undertaking graduate course externally. In the absence of any protest or memo or action by the management against the petitioner, it is not possible for us to accept the contention raised by the management that the petitioner did not obtain required permission for obtaining graduate degree. Assuming that such a permission was not obtained, the same at the most could be said to be a misconduct but the same cannot be utilized to deprive him of the benefits otherwise available to him in law. In the result, we find that the impugned order passed by the Education Officer is clearly illegal and the same deserves to be quashed and set aside. Hence 5 the following order. 6. Writ petition is allowed. Rule is made absolute in terms of prayer clause (i). The Education Officer-respondent no.1 to consider the claim of the petitioner, inter alia, for appointment to the post of 25% graduate pay scale quota in accordance with law and in the light of the observations made by this Court hereinabove. JUDGE JUDGE