IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6054 OF 2009 Yogesh Sudhakar Joshi ...Petitioner Vs. The State of Maharashtra and Ors. ... Respondents --- Shir N.V. Bandiwadekar for Petitioner Shri P.I. Khemani AGP for Respondent Nos.1 and 2 Shir Manda Lima ye a/w. Mr. Mahendra Agavekar 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 Respondents. 2. Respondents waive service. 3. Rule. Rule is made returnable forthwith by consent of the parties. 4. The Petitioner is challenging the order passed by the Education Officer (Secondary) dated 25.6.2009, whereby the application for approval made by the Respondent No.3 Management for granting approval to the Petitioner in the post of Junior Clerk was rejected. 5. The brief facts are as under: The Petitioner was appointed as a Lab Attendant on 15.9.1994 in K.N. Bathinya Secondary School, New Panvel, Tal. Panvel, Dist. Raigad which is run by the Respondent No.3 Society. The said appointment was duly approved. Thereafter, one Shri Palange, who was working as a senior clerk at Kolad School retired from service. In his place, Shri Sakharale who was working as a junior clerk was promoted as senior clerk. The Petitioner herein was promoted as junior clerk in the event that had arrived on account of promotion of Shri Sakharale by order dated 27.8.2009 with effect from 1.9.2007. Accordingly, he was allowed to join his duties as a junior clerk from the said date. Thereafter, by letter dated 22.10.2007, the head master of the school submitted a proposal to the Respondent No.2 and sought approval to the aforesaid promotion of the Petitioner herein. All the necessary documents such as seniority list, joining report etc. were annexed to the said proposal. The Respondent No.2, however, refused to grant approval to the promotion of the Petitioner as junior clerk by order dated 25.6.2009. In the said order, three reasons were assigned for not granting approval: (i) The latest seniority list had not been annexed by the Management. (ii) The backlog in respect of the reserved category candidates were not filled up. (iii) The post of junior clerk could not be approved in view of the Government Resolution dated 25.11.2005. Perusal of the impugned order clearly indicates that there is a complete non-application of mind on the part of the Education Officer. The management had annexed the seniority list to the proposal and, therefore, first objection does not survive. So far as the second objection is concerned, Division Bench of this Hon'ble Court in Writ Petition No.4747 of 2005 had already held that the Education Officer should not refuse to grant approval only on the ground that the reserved posts are not filled in by the Management. In the present case also, the Petitioner admittedly has been appointed from the open category. Admittedly, a post was available from the open category and, as such, it cannot be said that the said appointment has been made against the reserved category. The second reason given by the Education Officer also is contrary to the ratio laid down by the Devision Bench of this Court in Writ Petition No.4747 of 2005. So far as, the third objection is concerned, the notification dated 25.11.2005 clearly stipulates that the strength of the students in between 1001 to 1600, then two posts of junior clerks can be filled in by the Management. The Education Officer had, in fact, in the certificate dated 2.8.2007, has granted approval for filling in two posts of junior clerks since the strength of the students in the school was 1199 and, as such, the Education Officer had erred in not granting approval on account of the three grounds. In the result, the impugned order dated 25.6.2009 is quashed and set aside. The Respondent No.2 Education Officer is directed to grant approval to the appointment of the Petitioner as junior clerk. It is clarified that if the said promotion order is challenged by any other employee by filing an appeal under section 9 of the MEPS Act before the School Tribunal, in that event, the School Tribunal shall decide the appeal on merits and in accordance with law and shall not be influenced by any observation made by this Court in this order, directing the Education Officer to grant approval to the appointment of the Petitioner. 6. Writ Petition is, accordingly, allowed in the aforesaid terms and disposed of. (V.M. KANADE J.)