:1: bgp bgp bgp IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.4219 OF 2008 NO.4219 OF 2008 NO.4219 OF 2008 Rajendra Baban Babar ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents Mr.N.V.Bandiwadekar for petitioner. Mr.C.R.Sonawane, AGP for respondent Nos.1 and 2. Mr.Ajit J.Kenjale for respondent Nos.3 and 4. CORAM CORAM CORAM :- V.C.DAGA & :- V.C.DAGA & :- V.C.DAGA & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATE DATE DATE : 13TH APRIL,2009 : 13TH APRIL,2009 : 13TH APRIL,2009 P.C. P.C. P.C. . Heard. . Perused petition. 1. Rule, returnable forthwith. Heard finally on the joint motion made by the parties and by their consent dispensing with reasons in support of this order. 2. The petitioner has filed this petition claiming following reliefs: a) Rule nisi be issued and records and proceedings be called for, b) By a suitable Writ, Order or direction this Hon’ble Court be pleased to quash and set aside the impugned order (Exhibit-F) dated 4th January, 2008 issued by respondent No.2 refusing approval to the appointment of petitioner as full time teacher in respondent No.4 Junior College, and accordingly the respondent No.2 be directed to grant approval to the said appointment of petitioner with effect from 29th December, 2006 together with release of grant-in-aid for payment of salary :2: to the petitioner in that post from the said date onwards. c) By a suitable Writ, Order or direction this Hon’ble Court be pleased to hold and declare that the petitioner belongs to Open category and he was appointed as full time teacher in respondent No.4 Junior College through Open category in the vacancy available for that category, the petitioner was and is entitled to receive approval to the said appointment, and accordingly respondent No.2 be directed to grant approval with effect from 29th December, 2006 with payment of salary as full time teacher in the prescribed scale from that date. d) Pending the hearing and final disposal of this Writ Petition, respondent No.2 be directed to grant approval to the appointment of petitioner as full time teacher in respondent NO.4 Junior College with payment of salary in prescribed pay scale. (d)(1) By suitable writ, order or direction this Hon’ble Court may be pleased to quash and set aside the appointment order dated 16th June, 2008 (Exhibit-"J") issued by respondent NO.3 in favour of respondent No.5 as Full Time Teacher in respondent No.4 college. (d)(2) By suitable writ, order or direction this Hon’ble Court may be pleased to direct respondent Nos. 2 to 4 to reinstate petitioner as Full Time Teacher in respondent NO.4 College with effect from 16th June, 2008 with all consequential benefits including full back wages, seniority etc. (d)(3) Pending the hearing and final disposal of this Writ Petition, this Hon’ble Court may be pleased to direct respondent No.2 not to grant approval to the appointment of respondent No.5 as full time teacher in respondent No.4 College, made under appointment order dated 16th June, 2008 (Exhibit-"J"). (e) Pending the hearing and final disposal of this Writ Petition, respondent Nos.3 and 4 be restrained from terminating the services of petitioner as full time teacher in respondent No.4 Junior College on the ground of approval not granted by respondent No.2. (f) Cost of this petitioner be provided for. :3: (g) Any other order necessary in the interest of justice may kindly be issued. 3. On being noticed, respondents appeared through their Advocates. The respondent No.2 filed its affidavit with additional affidavit-in-reply to this petition. The respondent No.2, the Deputy Director of Education, Kolhapur Region, Kolhapur in paragraph No.4 of its additional affidavit-in-reply has said as under: 4. I say that at present, there is no vacancy to accommodate the petitioner in service. In view of this, the petitioner is no entitled for approval. However, if the petitioner is to be given approval, then either of these two i.e. petitioner or Shri.Sutar are required to be held surplus as per provision of Rule 26 of M.E.P.S., Rules, 1981 and need be absorbed elsewhere in case vacancy to accommodate either of these two exists. (Emphasis supplied) 4. Learned Counsel appearing for petitioner, learned AGP and learned Counsel for respondent Nos.3 to 5 jointly urged that the suggestions given in paragraph No.4 of additional affidavit dated 8th April, 2009, the contents of which are extracted and highlighted hereinabove are acceptable to the parties and the petition be disposed of in terms of the aforesaid suggestion coming from the respondent No.2 5. In the above view of the matter, it is declared that petitioner would be entitled for approval. In the event of such approval, the Education Officer to undertake exercise under Rule 26 :4: of M.E.P.S.Rules,1981 within eight weeks from today to find out as to out of these two i.e. petitioner and respondent No.5, who would be rendered surplus and in the event of such determination, it would be open for Education Officer to direct absorption of the teacher from amongst the petitioner or respondent No.5 whoever would be rendered surplus in the school wherever the vacancy may be available. 6. Needless to mention that this exercise shall not create any financial burden on the school management. However, the claim for reimbursement, if any, shall be subject to scrutiny by the Education Department on its own merits. 7. Rule is made absolute in terms of this order. With no order as to costs. 8. Learned AGP undertakes to communicate this order to all the concerned authorities. Parties to act on an authenticated copy of this order. (ANOOP (ANOOP (ANOOP V.MOHTA,J.) V.MOHTA,J.) V.MOHTA,J.) (V.C.DAGA,J.) (V.C.DAGA,J.) (V.C.DAGA,J.)