1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 5962 OF 2007. Sanjay s/o Ramdas Awaghad. ... PETITIONER VERSUS The State of Maharashtra and six others. ... RESPONDENTS .... Shri R.S. Parsodkar, Advocate for the petitioner. Smt. S.S. Wandile, Assistant Government Pleader for the respondent Nos.1 to 4. Shri V.M. Deshpande, Advocate for the respondent Nos.5 and 6. Shri Amit Balpande, Advocate for the respondent No.7. .... CORAM : A.P. LAVANDE & PRASANNA B. VARALE, JJ. DATE OF RESERVING THE ORDER : 29TH JANUARY, 2009. DATE OF PRONOUNCING THE ORDER : 06TH MAY, 2009. ORDER : Being aggrieved by the communication/letter dated 12.12.2007 issued by the Education Officer (Secondary), Zilla Parishad, Amravati, thereby cancelling the approval granted to the petitioner as Shikshan Sevak on 18.12.2001 and Assistant 2 Teacher on 03.07.2006; the petitioner has approached this Court by preferring the present writ petition. 2. The facts, in brief, giving rise to filing of the present petition are as under :- Initially the petitioner came to be appointed as Physical Training Instructor (PTI) vide appointment order dated 30.03.1998. At the relevant time, the petitioner was possessing the qualification B.Com., B.P.Ed. The approval forwarded by the respondent No.6 to the respondent No.4 – Education Officer was rejected on the ground that there was no workload. As the approval was rejected by the respondent No.4, the petitioner was not paid salary. The petitioner, by letter dated 27.06.2000, resigned from the post of PTI and the resignation was accepted. In the year 2001, the petitioner acquired qualification B.Ed. and B.A. (in Hindi literature). During the Academic Session 2001-2002, as the post of Shikshan Sevak was lying vacant in respondent No.6-School, an advertisement was issued. The respondent No.6 sought permission from the respondent No.4 to fill up the post of 3 Shikshan Sevak by communication dated 10.10.2001. The respondent No.4 granted permission by communication dated 11.10.2001. In response to the advertisement, the petitioner applied for the said post and appeared for interview on 27.10.2001. The School Committee, vide resolution dated 29.11.2001, resolved to appoint the petitioner on the post of Shikshan Sevak with effect from 01.12.2001. Accordingly, appointment order was issued to the petitioner on 29.11.2001. The petitioner joined the services. The respondent No.6 – Headmaster forwarded the proposal for approval to the appointment of the petitioner, to respondent No.4 by communication dated 18.12.2001. The Education Officer (Secondary), Zilla Parishad, Amravati granted approval with effect from 01.12.2001 for three years. The petitioner was receiving salary for the said period i.e. from 2001 to 2004. As the petitioner completed the period of three years, the management – respondent No.5 decided to pass resolution to appoint the petitioner as Assistant Teacher as the petitioner had completed three years of service as Shikshan Sevak and accordingly passed resolution dated 04.12.2004 thereby 4 appointing the petitioner as Assistant Teacher with effect from 01.12.2004 for teaching subject Hindi literature. The appointment letter, dated 07.12.2004 came to be issued. The petitioner also received three increments in the service and he was receiving his salary regularly. By letter dated 12.12.2007, it was informed by the respondent No.4 to the respondent No.6 that a complaint was received making grievance against the appointment of the petitioner. It was found by the Deputy Director of Education, Amravati Division, Amravati that there was illegality in the appointment of the petitioner. It was further found by the Deputy Director of Education that the petitioner was not possessing the required educational qualification. It was also found by the authority that in spite of the approval rejected by the Education Officer (Secondary), Zilla Parishad, Amravati on 30.09.1998, the petitioner was employed by the management from 30.03.1998 to 27.06.2000. It was also observed by the authority that the petitioner was also not complying with the conditions/clauses of the advertisement issued for the post of Shikshan Sevak. The authority also found that the lists of eligible candidates were not called from the 5 Social Welfare Department, Employment Exchange, Tribal Development Department. As these irregularities were found, the approval to the post of Assistant Teacher as well as approval to the post of Shikshan Sevak were cancelled by the communication dated 12.12.2007. 3. Shri R.S. Parsodkar, the learned Counsel appearing on behalf of the petitioner submitted that the impugned order deserves to be set aside on more than one ground. It was submitted that the order passed by the authority is without application of mind. The authority has not taken into consideration that the respondent No.4 himself has granted approval to the petitioner with effect from 01.12.2001 in response to the proposal forwarded by the respondent No.1 dated 18.12.2001. The petitioner had also received salary for the said period. The petitioner was appointed as Assistant Teacher by passing resolution by the management and the approval for the post of Assistant Teacher was also granted. He had also received the benefits such as increments in the service and he was receiving his salary regularly. As such, the learned Counsel 6 Shri Parsodkar submitted that the non consideration of these facts shows that the authorities have not applied their mind. It is further submitted that the reasons mentioned in the impugned order are neither convincing nor legal and as such they suffer from arbitrariness. It is also submitted that the service record of the petitioner is clean and satisfactory. 4. An affidavit-in-reply is filed on behalf of the respondent No.4. Smt. S.S. Wandile, the learned Assistant Government Pleader appearing on behalf of the respondent Nos.1 to 4 submitted that the impugned order dated 12.12.2007 is self satisfactory. Learned AGP further submitted that the grounds are mentioned in detail in the impugned communication/order. She further submitted that the management appointed the petitioner in spite of the fact that the petitioner was not possessing the required qualification. It was further submitted that initially permission granted by the respondent No.4-Education Officer by communication dated 11.10.2001 stipulates certain clauses/conditions for issuance of the advertisement. By referring to the communication dated 7 11.10.2001 and more particularly to the clauses 2 and 5, the learned AGP submitted that as the post of Shikshan Sevak was to be filled in from the reserved category candidates, the communication dated 11.10.2001 carries much importance, in reference to clause 2 i.e. maintaining the roster, clause 5 i.e. the lists to be requisitioned from the Social Welfare Department, Employment Exchange, the Tribal Development Department and the candidate to be selected from these lists are the important clauses. It is submitted that as these clauses were not followed by the management, an appointment made, giving go bye to these important clauses, makes the appointment illegal and for such illegal appointment, no protection deserves to be granted by this Court. Learned AGP further submitted that in the advertisement, the requisite qualification was mentioned i.e. B.A.(Hindi Literature) along with B.Ed. (with History) as a special subject. It was further submitted that as the petitioner was not possessing the essential qualification i.e. B.Ed. with History as special subject, the appointment of the petitioner itself was in breach of the conditions of the advertisement. It was further submitted that though the 8 approval was rejected by letter dated 22.02.1999, the management continued the petitioner for further period and the petitioner was working till the year 2000. It was, therefore, submitted that in view of these facts, no fault can be found with the authorities and as such the petition deserves no interference at the hands of this Court. 5. The petitioner has filed the rejoinder to the reply filed by the State. In the rejoinder, it is submitted by the petitioner that though the approval was rejected by communication dated 22.02.1999, the petitioner resigned from the said post on 27.06.2000 and the resignation was accepted and as such it is incorrect to say that the petitioner was employed by the management till the year 2000. The other contentions in the rejoinder are that the petitioner is possessing requisite qualification namely, B.A. Additional (Hindi Literature) from Amravati University and B.Ed. with subjects Hindi and History from Aurangabad University and as such the petitioner is possessed of requisite educational qualification. It is further contended in the rejoinder that there was no need to call the list 9 from the Social Welfare Department or Tribal Development Department as there was a backlog from Nomadic Tribe Category and the petitioner was appointed from NT category. 6. We have given our anxious consideration to the submissions of the learned Counsel appearing on behalf of the respective parties. It is not in dispute that initially the petitioner was appointed as Physical Training Instructor by appointment order dated 30.03.1998 and when the approval was forwarded, the same was rejected by the respondent No.4 – Education Officer as there was no workload. In spite of the fact that the approval was rejected by the competent authority, the petitioner was in the service of respondent No.5 till the year 2000. The contention of the petitioner that he himself has resigned from the service by communication dated 27.06.2000 and the resignation was duly accepted is of no consequence. The fact remains that the petitioner was working till the year 2000 without any approval from the competent authority will not make the petitioner entitled to claim any right. The fact that the petitioner has worked for the period from his rejection of 10 approval to his resignation dated 27.06.2000 without salary will not create any right in his favour. 7. As far as the appointment of the petitioner to the post of Shikshan Sevak in the year 2001 is concerned, we find that the respondent No.4 in response to the permission sought by the respondent No.6 informed by communication dated 11.10.2001 that on certain conditions, the department grants permission to issue advertisements. The material conditions are (i) the roster is to be followed and maintained; and (ii) the lists of the eligible candidates be requisitioned from the Social Welfare Department, Employment Exchange, Tribal Development Department and eligible candidate to be selected from these candidates. The perusal of the advertisement which is annexed to the petitioner as Annexure-2 reveals that for the post of Shikshan Sevak which was to be filled in, the essential qualification was B.A. (Hindi Literature) and B.Ed. with History subject. It was also mentioned that the post is reserved for the candidates from Nomadic Tribe (C). As far as the condition in respect of the educational qualification, the advertisement 11 mentions as B.A (Hindi Literature)and B.Ed. with History subject. The learned Counsel for the petitioner submitted that the petitioner possessed the requisite qualification i.e. B.A. (Hindi Literature) from Amravati University and B.Ed. from Aurangabad University having Hindi and History subjects in B.Ed. The petitioner has annexed the copy of statement of marks at Annexure-14 to show that the petitioner had appeared for B.Ed. examination in the year 2001 with Hindi and History as the subjects in method. The petitioner, therefore, submitted that he was possessing the requisite qualification. As against this, the learned AGP submitted that for the said post of Shikshan Sevak, the requisite condition was that having educational qualification as B.A. (Hindi Literature) and B.Ed. with History as a special subject. 8. We find that as the post of Shikshan Sevak was to be filled in from the candidates of the Nomadic Tribes, the clauses in the communication dated 11.10.2001 are important. As the selection is from the reserved category candidates, it was necessary to follow the roster and the contention of the 12 petitioner that there was no need to follow the roster cannot be acceptable. The other clause namely Clause 5 that lists to be requisitioned from the Social Welfare Department, Employment Exchange and Tribal Development Department and eligible candidates to be selected from these lists carry much importance. We are not convinced with the argument advanced by the learned Counsel for the petitioner that the petitioner is from Nomadic Tribe Category and since the post is reserved for Nomadic Tribe Category candidate, there was no need to call the lists from the Social Welfare Department, Employment Exchange or Tribal Development Department. If the candidate is to be selected from the reserved category then an equal opportunity ought to have been given to the other eligible candidates belonging to such category to compete. It is not shown by the petitioner that an opportunity was given to the other eligible candidates from the said category to compete with the petitioner and the petitioner was selected being more meritorious than others. We are, therefore, unable to accept the contention of the petitioner that there was no need to call the lists from Social Welfare Department, Employment Exchange, 13 Tribal Development Department. 9. We find that at the initial stage i.e. at the stage when the petitioner was appointed as PTI, his appointment itself was not approved by the competent authority and in spite of the rejection of the approval, the petitioner was kept in service from 30.03.1998 to 27.06.2000 by the management. We also find that at the time of selection of the petitioner for the post of Shikshan Sevak in the year 2001, the selection of the petitioner was clearly in breach of the conditions. We also find that merely because the petitioner was continued to be in service by the fault of some officers will not entitle the petitioner to continue in service in breach of the provisions. Insofar as the submission of the learned Counsel for the petitioner that the petitioner is possessing the requisite qualification i.e. B.A. (Hindi Literature) and B.Ed. having Hindi and History subjects is concerned, the learned AGP, by opposing the said submissions, has submitted that the petitioner was not possessing the requisite qualification as the requisite qualification was B.A. (Hindi Literature) and B.Ed. with History as special subject. As we have held that the 14 initial appointment of the petitioner itself is illegal, in our opinion, this issue is of no consequence. 10. Taking overall view of the matter, we see no reason to interfere with the impugned order passed by the respondent No.4. 11. In the result, the petition is dismissed with no order as to costs. Interim order, if any is passed, stands vacated. JUDGE JUDGE *rrg.