: 1 : wp-4057-11=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4057 OF 2011 Rajendra Baban Babar .. Petitioner v/s. The State of Maharashtra & Ors. .. Respondents ......... Mr.N.V. Bandiwadekar for the petitioner Ms. S.S. Bhende, AGP for respondent nos. 1 and 2 Mr. A.J. Kenjale for respondent nos. 3 and 4. Mr. V.S. Kapse for respondent no.5 ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 10th AUGUST, 2011. P.C. : 1. Heard learned Counsel for the parties. 2. Rule. Rule made returnable forthwith. By consent, the matter is taken up for final hearing. 3. This petition takes exception to the order passed by the Deputy Director of Education, Kolhapur Division, Kolhapur dated 16th May, 2011 declaring the petitioner as surplus full time Assistant Teacher in respondent no.4 Junior College. On the earlier occasion, the petitioner : 2 : wp-4057-11=.doc had challenged the decision of the Deputy Director of Education dated 12th November, 2010 by way of Writ Petition No.9211 of 2010. The said writ petition was allowed on the finding that the Deputy Director of Education was in error in applying the reservation of 52%. It has been held by this Court in the said decision that since the petitioner was appointed on 29th December, 2006, as per the prevailing regulations, the reservation to be applied was only up to 34%. After recording that finding, the matter was sent back to the Deputy Director of Education for reconsideration. After the remand, the Deputy Director of Education in the impugned order dated 16th May, 2011 has reiterated his earlier order and has noted that there is no reason for taking a different view. 4. This order is subject matter of challenge in the present writ petition. After hearing Counsel for the parties, we have no hesitation in taking the view that the Deputy Director of Education has completely exceeded his Authority and has proceeded to pass order, which is bordering on having committed contempt of this Court. Neither any reason has been recorded by the Deputy Director of Education for reiterating his earlier order in the impugned decision nor the Deputy Director of Education has given opportunity of hearing to the petitioner. The impugned decision, therefore, cannot be allowed to continue even : 3 : wp-4057-11=.doc for a minute. The said decision, therefore, will have to be set aside forthwith. 5. Learned AGP appearing for the respondents submits that the correct position has now been brought in the affidavit filed by Mr. Pandurang Tukaram Patil, Assistant Director of Education on 29th June, 2011. She has placed reliance on paragraph no.1 of the said affidavit to contend that no fault can be found with the impugned decision of the Deputy Director of Education, as when the petitioner was appointed on 29th December, 2006, the Government Resolution in force was dated 19th June, 1996. As per the said Government Resolution, seats reserved for Open Category were 48% and for Reserved category were 52%. 6. We have no hesitation in taking the view that this reason is not spelt out in the impugned decision. Besides, it was not open to the Deputy Director of Education to take a view, which is contrary to the judgment of this Court dated 30th March, 2011. If any of the respondents had any reservation, about the opinion recorded in the said judgment, should either have applied for review of the judgment or challenged the said judgment before the appropriate forum. By no stretch of imagination, the respondents on its own can proceed on the : 4 : wp-4057-11=.doc assumption that the finding recorded in the earlier judgment is incorrect. 7. Taking any view of the matter, therefore, impugned decision of the Deputy Director of Education dated 16th May, 2011 is quashed and set aside. Instead, we restore the proceedings before the Deputy Director of Education for considering the matter afresh in the light of judgment of this Court in Writ Petition No. 9211 of 2010 dated 30th March, 2011, so long as same is in force. We keep all other questions open to be decided by the Deputy Director of Education on its own merits in accordance with law. 8. Petition is disposed of in the above terms. 9. The parties shall appear in the office of Deputy Director of Education on 30th August, 2011 at 11.00 a.m., on which date the Deputy Director of Education may proceed with the hearing, if so advised or assign some suitable date, as may be convenient to him, while ensuring that the final decision be taken, not later than FOUR weeks therefrom. 10. We keep the question of initiating appropriate action against the : 5 : wp-4057-11=.doc Deputy Director of Education open, which will be considered at the appropriate stage. 11. Copy of the order be forwarded to the Secretary, School Education for information and necessary action. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)