1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2688 OF 1997 Dilip Ramling Lukade, Age : about 43 years, Occ.Service, Residing at 1550/10, Subhash Nagar, Barsi, District – Solapur. ..Petitioner. ­Versus­ 1. The Education Officer (Secondary), Zilla Parishad, Solapur. 2. The State of Maharashtra. 3. The Secretary, Barsi Shikshan Prasarak Mandal, Jamgaon Road, Barsi, District – Solapur. 4. Ramchandra Murlidhar Kanade, Adult, Occ.Lab. Assistant, Yemaidevi, Vidyamandir, Korphale, Taluka – Barsi, District – Solapur. ..Respondents. ... Mr.S.G. Kudle, Advocate for the petitioner. Mr.C.R. Sonawane, A.G.P. for the respondents – State. Mr.Ashok Tajane, Advocate i/b. Mr.G.S. Godbole, Advocate for respondent No.4 in Writ Petition No.2688 of 1997. .... 2 CORAM : BILAL NAZKI, AND SMT.V.K.TAHILRAMANI,JJ DATE OF RESERVING THE JUDGMENT : 19 th JUNE, 2009 DATE OF PRONOUNCING THE JUDGMENT : 23 rd JULY, 2009. JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] :­ 1. The petitioner – Dilip Ramling Lukade was appointed as a Junior Clerk on 9.9.1976 in Barsi English Medium Highschool which is an unaided school, conducted by the respondent institution. Thereafter, respondent No.3 by transfer order dated 1.5.1995 transferred the present petitioner to an aided school, which is also run by respondent No.3, in the regular pay­scale of Junior Clerk. The proposal for granting approval to the transfer of the petitioner was forwarded to the office of respondent No.1 i.e. Education Officer (Secondary), Zilla Parishad, Solapur. 3 Respondent No.1 granted approval to the petitioner’s transfer case by order dated 18.5.1995. However, by subsequent order dated 19.5.1997, respondent No.1 stayed the earlier order granting approval. 2. It seems that the petitioner was appointed as a Junior Clerk in the English Medium School which was unaided on a lumpsum pay of Rs.200/­ per month. The petitioner was working in the English Medium School from 9.9.1976 to 1.5.1995. As stated earlier, by order dated 1.5.1995 the petitioner was transferred to Shri Yemaidevi Vidya Mandir, which is also a school run by respondent No.3 i.e. Barshi Shikshan Prasarak Mandal which is an aided institution of respondent No.3. It seems that the transfer of the petitioner to the aided school was not approved by the Education Officer and consequently the petitioner was not paid salary as per the prescribed rate. Hence, the petitioner filed 4 Writ Petition No.749 of 1996 seeking directions to the Education Officer to grant approval to the transfer of the petitioner from the unaided school to the aided school w.e.f. 1.5.1995 and to pay the petitioner salary as per the prescribed rate. In the said matter, it is held that the respondent No.1 was not justified in staying the order granting approval behind back of the petitioner and without giving him a reasonable opportunity of being heard. Hence, the order of stay granted by respondent No.1 on 11.1.1996 came to be quashed. The Division Bench in its order dated 11.6.1996 directed that the petitioner be given a reasonable opportunity of hearing and thereafter necessary orders be passed in respect of granting approval to the petitioner’s transfer from Barshi English Medium Highschool to Shri Yemaidevi Vidyamandir as a Junior Clerk. 3. Pursuant to the directions of this Court dated 11.6.1996 in Writ 5 Petition No.749 of 1996 the Education Officer, Zilla Parishad, Solapur heard the petitioner and other interested parties and passed the impugned order whereby the approval granted to the petitioner as a Clerk came to be canceled as the appointment and transfer order of the petitioner was illegal. 4. We have heard Mr.Kudle the learned Counsel for the petitioner, Mr.Godbole for respondent No.4 and Mr.Sonawane the learned AGP for the State. Respondent No.3 institution is absent despite service. 5. The Education Officer has not granted approval mainly on the ground that the post on which the petitioner was appointed as a Clerk was not accorded sanction in the staff approval and the approval to the appointment as Clerk has not been obtained from the Education Officer. No resolutions were passed by the Management or School Committee in respect of appointment of 6 the petitioner and an order was issued only by the Headmaster who was not competent to do so. The appointment order of the petitioner dated 9.9.1976 also shows that the appointment of the petitioner was part­time on lumpsum pay of Rs.200/­. 6. Transfer has to be against vacancy and in the present case there was no such vacancy. The G.R. dated 8.11.1994 which has been relied upon by the Management is not applicable to this case as on the inspection of the documents and inquiry conducted by the office of the Education Officer on 5.8.1996, it was noticed that no subsequent appointment order was found on the record of school in question, which was issued by the Management. The School record shows that the petitioner was appointed in English Medium Primary School in 1976, as part­time clerk. It is also noticed from the Muster Roll, maintained by the English Medium School that the petitioner was transferred from English 7 Medium Primary School to English Medium Secondary School in August, 1989. The Muster Roll of April, 1988, of primary section of English Medium school shows that the petitioner was working as a Clerk. Also a Muster Roll of primary section for October, 1988 shows that the petitioner was working as a Clerk in primary section, whereas the Muster Rolls for June, 1989 and April, 1988, do not show the name of the petitioner. It is clear that the petitioner was not working in the School continuously. The Muster Roll of Primary Section English Medium School for August, 1989, bears the signature of the petitioner upto 28 th of August, 1989. In the remarks column of the Muster Roll, the following remarks are recorded against the name of the petitioner “transferred Clerk to High School”. It is also surprising that the petitioner has also signed the Muster Roll of English Medium High School from 1 st August, 1989, onwards. 8 Hence, it is clear that the petitioner was not appointed as full time clerk in English Medium High School from 1976. 7. The record also indicates that in the English Medium School which was unaided the petitioner was working in 1995 on a lumpsum salary of Rs.450/­ per month and this appointment was not in the regular pay­scale. This fact also goes to establish that the petitioner’s appointment was not a regularly appointed confirmed employee eligible for transfer from one School to another. During the course of enquiry conducted by the Education officer in obedience of the directions issued by this Court, the Headmaster of the English Medium High School admitted in writing on 8.5.1996 that the petitioner’s service book was not maintained whereas on subsequent hearing before the Education Officer, a service book was produced purportedly prepared on 28.5.1995. This contradictory stand by the 9 management was noted to be fabrication of documents by way of an afterthought so as to protect the transfer of the petitioner and thus the finding of the Education Officer cannot be faulted. 8. The record produced before the Education Officer in respect of English Medium High school clearly indicates that the petitioner was never appointed as a full time clerk and his appointment was not against a regular vacancy in the pay­scale of Junior Clerk. 9. By this method of transfer, the Managements motive to offer the petitioner a regular post of Junior Clerk was nothing short of showing him a favour of appointment by giving go­by to the process of selection and that too against a post which did not exist as per the staffing pattern approved by the Education Officer at the transferred school i.e. Shri Yemaidevi Vidyamandir. The decision relied upon by the petitioner in the 10 case of Shrirang Pandurang Naikwadi Vs. Headmaster, Barsi Technical High School, Barsi District – Solapur and others of this Court dated 19.7.2000 (Coram : A.P.Shah & B.H.Marlapalle,JJ.) would not be applicable to the case of the petitioner as in that case the approval to the transfer of the appointment of the petitioner therein in the aided school came to be denied mainly on the ground that the backward quota was not filled­up by the third respondent institution. However, in that case it was brought on record that the petitioner infact belongs to backward category i.e. OBC and hence the order of the Education Officer rejecting the application for approval made by respondent No.3 School of the petitioner therein came to be set aside. The facts in the present case are entirely different. The said decision being distinguishable on facts, the said decision would not be applicable to the present case. 11 10. In view of the above facts, the impugned order does not call for any interference. In any case, it is clearly stated in the impugned order that though the approval accorded to the appointment of the petitioner is canceled as the appointment and the transfer order is illegal, however, the management can appoint the petitioner as a Clerk as per Rule and Law in a fresh vacancy if no other lower grade staff is eligible for promotion. Hence it would be open to the Management to appoint the petitioner if such a situation arises. 11. In the result, the petition fails. Rule discharged. Writ Petition is dismissed. Interim relief stands vacated. No order as to costs. [BILAL NAZKI,J] [SMT.V.K.TAHILRAMANI,J.]