1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6056 OF 2009 Shri Samadhan Parshuram Patil ..... Petitioner. V/s The State of Maharashtra and Others. ...... Respondents. --- Mr. N.V. Bandiwadekar for the petitioner. Mr. P.I. Khemani, AGP for respondent Nos. 1 and 2. Mr. Mandar Limaye for respondent No.3. ---- CORAM: V.M. KANADE, J. DATE : 17TH JULY, 2009 P.C:- 1. Heard the learned Counsel appearing on behalf of the petitioner and the learned AGP appearing on behalf of respondent Nos. 1 and 2. 2. Rule. Respondents waive service. Rule is made returnable forthwith by consent of parties. 3 Petitioner is challenging the order dated 25/06/2009 whereby respondent No.2 has refused to grant approval to the 2 promotion of the petitioner as a junior clerk in the school run by respondent No.3 – management. Petitioner, initially, was appointed as a peon on 01/08/1997. Approval was granted by respondent No.2 to the said appointment on 30/03/2002. The post of junior clerk became vacant on account of retirement of Antu Anant Patil who was working as a junior clerk at T.T. School since he attained the age of superannuation on 31/07/2006. In view of the seniority of the petitioner in the cadre of peon and on account of his educational qualifications, the management promoted the petitioner in the said vacant post as a junior clerk by order dated 25/07/2006. Petitioner joined his duties as a clerk from 01/08/2006 in the T.T. School run by respondent No.3. The Head Master, thereafter, made a proposal for granting approval to the said appointment. However, respondent No.2, by the impugned order dated 25/06/2009, refused to grant approval. The first reason given in the impugned order is that up-to-date seniority list has not been annexed to the proposal submitted by the management. This reason which is given is totally incorrect since the proposal which was sent by the Head Master to respondent No.2 contained a copy of the seniority list which was very much annexed to the said proposal. The said reason, therefore, is clearly illegal and the respondent No.2 was not justified in 3 refusing the approval on that ground. The second reason given in the impugned order is that there is a backlog of reservation in the cadre of Junior Clerk – Lab-Assistant – Librarian. It was submitted that the said reason is also incorrect. It was submitted that as per the provisions of Rule 9(7) of the M.E.P.S. Rules, the reservation for teaching and non-teaching posts was to be prescribed at 34% and the balance 66% posts were to be filled by open category. Further, from the chart which is annexed to the Petition, it appears that out of 23 posts in open category, only 15 posts were filled-in and, as such, there is a backlog of 8 posts in the open category. Division Bench of this Court in the case of Smt. Hira Shivaji Kalche vs. The State of Maharashtra & Ors dated 15 th September, 2005 passed in Writ Petition No. 4747 of 2005 has held that if the appointment is made in the open category in respect of the post which is available to the open category then, in such cases, approval cannot be refused on the ground that backlog of reserved category is not filled-up. In view of the ratio of the said judgment, the second ground also is clearly illegal. The third reason given in the impugned order is that the post of junior clerk which had become vacant and which was filled-up by promotion was not permissible as per Government Resolution dated 25/11/2005. The third reason is also clearly illegal since the perusal of the said Government 4 Resolution indicates that where the strength of students in the school is upto 500, one post of junior clerk can be filled-up by the management. The number of students which has taken admission in the said school is 390 and, as such, the management was entitled to fill-up the post of one junior clerk. The reasons given by the Education Officer, therefore, are contrary to the provisions of Rules as well as the Government Resolution dated 25/11/2005. 4 The impugned order is, therefore, quashed and set aside. Respondent No.2 is directed to grant approval to the appointment of the petitioner in the said post with further direction to release grant in aid for payment of salary to the petitioner within four weeks from today. 5. Writ Petition is allowed and the Rule is made absolute in the above terms. 6. Petition is disposed of. (V.M. KANADE, J)