1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4406 OF 2000 Subhash s/o Madhavrao Patil, age: 49 years, Occ: service, R/o Satrasen, Tal. Chopada, District Jalgaon. Petitioner Versus 1 The State of Maharashtra, through the Additional Commissioner, Division, Nasik, Tribal Development Bhawan, Juna Agra Road, Nasik-2. 2 The Project Officer, Ekatmik Vikas Prakalp Officer, Yawal, District Jalgaon. 3 The Chairman, Shri Raising s/o Fuga Bhadale, Dhanaji Nana Choudhary, Adivasi Seva Mandal, Satrasen, Tal. Chopada, District Jalgaon. Respondents Mr.P.B.Patil, advocate for the petitioner. Mrs.R.K.Ladda, A.G.P. for Respondent No.1. Mr.V.G.Sakolkar, advocate for Respondents No.2 and 3. CORAM: B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE : 8 th July, 2010. ORAL JUDGMENT (Per S.V.Gangapurwala, J.): 2 1 Heard Shri P.B.Patil, learned Counsel for the petitioner, Mrs.Ladda, learned Assistant Government Pleader for Respondent No.1 and Shri Sakolkar, learned Counsel for Respondents No.2 and 3. 2 The petitioner, by the present petition, takes exception to the order dated 11.09.2000, passed by Respondent No.1, thereby terminating services of the petitioner. 3 The petitioner herein was appointed by Respondent No.3 vide appointment order dated 01.06.1989. Thereafter again he was continued on 31.03.1992. Respondent No.2 accorded approval to the appointment of the petitioner. Thereafter, Respondent No.1 terminated services of the petitioner vide order dated 11.09.2000 on the ground that the petitioner does not hold necessary qualifications. 4 Shri Patil, learned Counsel for the petitioner, submitted that when the approval was granted, at that time, it was a clear approval and no condition was put forth about the qualification. According to him, the order of termination issued by Respondent No.1 was without authority and before such an order was passed, the petitioner was not given any opportunity of hearing. 5 Mrs.Ladda, learned A.G.P., contended that the petitioner does not possess necessary qualification of D.Ed. and that there was no post of Drawing Teacher available as per the staffing pattern and as such, tried to substantiate the order of termination. 3 6 On perusal of the order of approval granted to the appointment of the petitioner, said approval is clear and it does not suggest that the approval is given on certain conditions or the petitioner does not satisfy the test of qualification. On the contrary, in the order of approval, the qualification of S.S.C. A.T.D. was specifically mentioned. This shows that after taking into consideration all the aspects, approval was granted to the appointment of the petitioner. 7 In such circumstances, Respondent No.1 could not have passed the impugned order. Moreover, the impugned order involves serious consequences, inasmuch as, it is detrimental to the interest of the petitioner. In such circumstances, the minimum requirement of an opportunity of hearing ought to have been given to the petitioner. On this ground also, the order cannot be sustained. 8 By way of an interim order, this Court has stayed the impugned order of termination, still Mr.Patil submits that the petitioner was not continued in service. 9 As we have observed that the order of termination is illegal, the effect would be that he would be deemed to be continued in service. Shri Patil submits that the petitioner has attained the age of superannuation on 21 st July, 2009. The petitioner was appointed on 13.06.1989. As the order of termination is set aside, it will be deemed that he was continued in service and as such, he would complete the minimum qualifying service required for pension. 10 Though we set aside the order of termination, since nothing has 4 been placed on record that the petitioner was not gainfully employed, we are not inclined to grant arrears and back wages. However, the petitioner would be entitled for pensionary benefits prospectively. Respondents shall fix the pension of the petitioner within a period of six months from today and make the payment accordingly. 11 Rule is made absolute on above terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA) (B.R.GAVAI) JUDGE JUDGE ******* adb/wp440600