1 W.P.No.7178/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.8531 OF 2009. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.M.S.Deshmukh, advocate for the petitioner. Mr.P.B.Pawar, advocate for Respondent Nos.1 and 2. Mr.K.B.Choudhari, Addl.Govt. Pleader for the Respondent No.3. Mr.S.S.Mundhe, advocate for Respondent No.4. CORAM : S.V.GANGAPURWALA,J. Date : 20.09.2011. PER COURT : 1. Heard. 2. The petitioner herein is M.A.B.Ed. The petitioner came to be appointed by the Respondent No.1 in Respondent No.2 School as a trained graduate teacher on 1.8.2000. The Respondent No.3 Education Officer also granted approval for a period commencing from 13.10.2000 to 30.4.2001. Thereafter, for the academic year 2001-2002, the petitioner was again appointed and the proposal was forwarded by the Management to the Respondent No.3 for approval. The said approval was rejected by the Education Officer on the ground that petitioner is B.Ed. and is appointed on D.Ed. 2 W.P.No.7178/11 pay-scale. 3. On 31.1.2003, the Respondent No.2 issued order of termination. The same was challenged initially in Writ Petition which was disposed of in view of the alternate remedy available. Thereafter, the petitioner filed appeal bearing No.3/2005 before the School Tribunal. The School Tribunal, dismissed the appeal vide its judgment and order dated 1.10.2009. The same is assailed in the present Petition. 4. The perusal of the judgment of the School Tribunal, it is manifest that the Tribunal has held that the petitioner was eligible and qualified for the post for which he was appointed. It is also held that the petitioner was appointed on permanent vacancy in the post of a trained graduate teacher. The School Tribunal clearly held that "It is not in dispute that appellant was appointed as education employee against the said clear and permanent vacancy". The said post was reserved for a candidate belonging to S.C. category. The petitioner also belongs to S.C. category and only on the count that the appointment of the petitioner was not by following the prescribed procedure, the appeal was dismissed. Mr.Deshmukh, learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Manohar Mahadeo Bhajikhaye Vs. Presiding Officer, School Tribunal, Chandrapur and others" reported in 2011 (4) Mh.L.J. 312 and 3 W.P.No.7178/11 contends that when even the approval was granted to the appointment and the petitioner qualifies for the said post, the said aspect was not material even otherwise the petitioner was validly appointed by following due procedure. 5. The Respondent No.4 herein is appointed in the year 2003 and is working continuously since then as is admitted by the Management. It is also not disputed that Respondent No.4 is also eligible for the said post and has been properly appointed. 6. In view of all the aforesaid facts, it is clear that even the petitioner was eligible to be appointed to the said post, where he was appointed. In such circumstances, at this stage, it would be inappropriate even to unsettle the Respondent No.4. However, the petitioner and the Respondent No.4 both can not be accommodated in the Respondent No.2 institution. 7. In light of the above, the impugned order is quashed and set aside. Still, the services of the Respondent No.4 shall not be disturbed and the petitioner herein shall be declared as surplus and shall be entitled to be absorbed in any other institution as per vacancy. 8. The Writ Petition is accordingly disposed of with aforesaid directions. However, there shall be no order as to costs. 9. The name of the petitioner shall be placed in the appropriate 4 W.P.No.7178/11 roll of surplus candidates. (S.V.GANGAPURWALA,J.) Dt.20.09.2011. asp/office/wp8531.09 5 W.P.No.7178/11