IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6053 OF 2009 Ravindra Kisan Aher ...Petitioner Vs. The State of Maharashtra & Others ... Respondents --- Shri N.V. Bandiwadekar for Petitioner Shri P.I. Khemani AGP for Respondent Nos.1 and 2. Shri Mandar Limaye a/w Shri Mahendra Aagavekar for Respondent No.3 ---- CORAM: V.M. KANADE J. DATED 18TH JULY, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel for the Respondents. 2. Respondents waive service. 3. Rule. Rule is made returnable forthwith by consent of the parties. 4. The Petitioner was appointed as a peon by order dated 13.6.1989. The post of junior clerk became vacant on account of promotion of Rajan Patil to the post of senior clerk. The Petitioner was promoted to the post of junior clerk by order dated 27.8.2007. He accordingly joined his duties with effect from 1.9.2007. An application was made and proposal was sent by the Management to the Education Officer for granting approval to the said appointment. Along with the proposal, which was sent by the Management, copy of the seniority list also was annexed. The Education Officer, however, by his order dated 25.6.2009 refused to grant approval on three grounds: (i) copy of seniority list is not annexed. (ii) there is a backlog in respect of SC, ST, SBC and N.T. Candidates and; (iii) the promotion was not in accordance with the Government Resolution dated 25.11.2005 5. The said order is clearly illegal. Firstly, along with the proposal the seniority list was annexed by the Management. Secondly, the appointment was made to the open category post and there was no vacancy from the reserved category post and, as such, the second reason given by the Respondent No.2 is clearly illegal in view of the decision of the Division Bench of this Court in Writ Petition No.4747 of 2005. The third ground also given by the Respondent No.2 is not applicable to the said post since the Education Officer itself had given certificate which is annexed tothe petition granting approval to the said post. In my view, there is a clear non-application of mind on the part of the Education Officer while passing the said order. The Impugned order is, therefore, set aside. The Respondent No.2 Education Officer is directed to grant approval to the appointment of the Petitioner as junior clerk. It is clarified that if the said promotion order is challenged by any other employee by filing an appeal under section 9 of the MEPS Act before the School Tribunal, in that event, the School Tribunal shall decide the appeal on merits and in accordance with law and shall not be influenced by any observation made by this Court in this order, directing the Education Officer to grant approval to the appointment of the Petitioner. 6. Writ Petition is, accordingly, allowed in the aforesaid terms and disposed of. V.M. KANADE J.