1 WP1161.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1161 OF 2011 Ms.Shaikh Nilofer Hashmat ... Petitioner v/s State of Maharashtra & ors. ... Respondents Mr.Sagar P. Batavia for the petitioner. Mr.A.I. Patel, A.G.P. for respondent Nos.1 to 3. Mr.P.J.Thorat for respondent Nos.4 and 5. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 7TH DECEMBER, 2011 P.C.: 1. Heard Mr.Sagar Batavia, the learned counsel for the petitioner, Mr.Patel, the learned A.G.P. for respondent Nos.1 to 3 and Mr.Thorat for respondent Nos.4 and 5. 2. As per the petitioner, respondent Nos.4 and 5 had released an advertisement inviting applications to fill in one post each in Geography and Hindi/Marathi, of an Assistant Teacher and to be appointed in H.R. High School, Nandgaon, 2 WP1161.11 Dist. Nashik. The petitioner responded to the said advertisement and pursuant to the interviews held on 20.6.2010 she was issued an appointment order on 2.7.2010 as Shikshan Sevak. This appointment was for a period of three years commencing from 3.7.2010 and on a consolidated honorarium of Rs.4,000/- per month. She claims that she reported for duty on 3.7.2010 but the Head Master of the school did not allow her to report for duty from 4.7.2010 onwards. She submitted a representation dated 15.7.2010 and finally approached this Court for seeking directions to allow her to report for duty. It is also her case that respondent No.6, who was working as a primary school teacher, was, by an order dated 9.7.2010 given the pay scale of Trained Graduate Teacher and he resumed his duties as such on 22.7.2010. However, the Education Officer (Secondary), Zilla Parishad, Nashik, by his order dated 27.9.2010 rejected the proposal submitted for approval to the appointment order of respondent No.6. The petitioner, therefore, claims that the post for which she was appointed as per the appointment order dated 2.7.2010 is still vacant and she be directed to be reinstated. 3. An affidavit in reply has been filed by respondent Nos.4 and 5. At the first instance, it has been submitted that, on 3 WP1161.11 20.6.2010 there were in all 13 candidates and all of them had responded to the advertisement referred to herein above. Respondent No.6 was not one of such candidates. The petitioner had scored 37 marks and there were other 6 candidates who had scored more than 37 marks. Ms.Farah Zeba Khalil Ahmed Khatik who was at Sr.No.9 had scored 45 marks and she came to be appointed as a teacher in Geography. It has further alleged that the appointment order alleged to have been issued in favour of the petitioner is a fabricated document signed by the Secretary purportedly and he was not authorized to do so. It has been further pointed out that, as per the staffing pattern, from the academic year 2010-11 the additional post of an Assistant Teacher was not required to be filled in and, therefore, the second post advertised for an Assistant Teacher in Hindi/Marathi was not required. The affidavit has specifically refuted the charge that the Head Master did not allow the petitioner to report for duty despite the fact that she was duly selected as Shikshan Sevak. 4. Along with an affidavit in reply filed by respondent Nos. 4 and 5, the mark-sheets in the process of interview and prepared and signed by four members of the Selection Committee has been placed before us and it is clear from the 4 WP1161.11 same that there were six more candidates who scored more marks than the 37 marks scored by the petitioner and, therefore, the petitioner was not the most meritorious candidate. Whether the Secretary was authorized to issue an appointment order in favour of the petitioner or any other candidate is a disputed question of fact which cannot be gone into in this petition. However, when the management has taken a specific stand that the petitioner was not selected as she was not the most meritorious candidate, the relief prayed for directions to the Head Master to allow her to resume her duty cannot be granted. The petitioner had an alternate remedy when she was purportedly not allowed to report for duty on 4.7.2010 and she has approached this Court belatedly in January, 2011. 5. Thus, viewed in any manner, the relief prayed for in this petition cannot be granted and hence the petition must fail and the same is hereby rejected. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 5 WP1161.11