IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6035 OF 2009 Vijay Nana Sakharle ...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 Senior Clerk was rejected. 5. The brief facts are as under: The Petitioner was appointed as a junior clerk on 1.4.1998. On 30.5.2007, one Mr. Phalanges retired after he attained the age of superannuation. The Petitioner herein was promoted by the Respondent No.3 Management on 27.8.2007 with effect from 1.9.2009. The Management filed an application before the Education Officer seeking approval to the said order of promotion. Along with the said application, the following documents were annexed: (i) Proposal; (ii) Resolution of the Management; (iii) Seniority List; (iv) Roster List; (v) Joining Report. The Education Officer, however, rejected the application for the following reasons:- (i) that the latest seniority list had not been annexed by the Management; (ii) the post of senior clerk could not be approved in view of the Government Resolution dated 25.11.2005. 6. The learned Counsel appearing on behalf of the Petitioner, firstly submitted that so far as the first ground is concerned, it is clear non-application of mind on the party of the Education Officer since the seniority list had been annexed along with the application. He submitted that so far as the second reason which was given by the Education Officer, he invited my attention to the Government Resolution dated 25.11.2005. In the said Government Resolution, it was decided by the Government that post of senior clerk would be approved in cases where the strength of the students in the school was between 1001 to 1600. He submitted that in the present case the strength of the students was 1191. He submitted that a certificate to that effect had, in fact, been given by the said Education officer by an order dated 2.8.2007 which was annexed at Exhibit 'D' to the petition. It was submitted that, therefore, there is complete non-application of mind in refusing to grant approval to the promotion which was given to the Petitioner herein. 7. The learned Counsel appearing on behalf of the Respondent No.3 has supported to the case of the Petitioner. 8. The learned AGP appearing on behalf of the State was not in a position to justify the order passed by the Education Officer. He submitted that the matter may be remanded back to the Education Officer for fresh hearing. 9. In my view, it is not necessary to remand the matter back since the order obviously has been passed as a result of total non- application of mind by the Education Officer. So far as ground no.1 is concerned, the seniority list has been annexed along with the application. No grievance has been made so far by any other employees in respect of the seniority list. No appeal has been field against the order of promotion which was passed in favor of the present Petitioner. The said objection, therefore, does not survive. So far as, the second objection is concerned, the Education Officer in his certificate dated 2.8.2007, after taking inspection of the school has stated as under: “that in all there are 24 divisions, the total number of students is 1191.” In view of his own certificate, therefore, it is apparent that the school had sufficient number of students for the purpose of appointing senior clerk. The Resolution dated 25.4.2005, also clearly stipulates that where the strength of the student is between 1001 to 1600, in that case, there should be two junior clerks and one senior clerk. Therefore, it is obvious that the said condition also has been complied by the Respondent No.3 Management. Under these circumstances, the impugned order is set aside. The Education Officer is directed to grant approval to the Petitioner's promotion to the post of senior clerk. It is, however, clarified that in the event, any appeal is filed by any of the employees, challenging the order of promotion, the same may be decided by the School Tribunal on merits and in accordance with law. 10. Writ Petition is, accordingly, allowed in the aforesaid terms and disposed of. (V.M. KANADE J.)