1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4455 OF 2009 Sandeep S/o Damodar Chavan, Age : 29 Years, Occu. : Assistant Teacher, R/o Rashtramata Indra Gandhi Kanya Vidyalaya, Sillod, Tq. Sillod, District Aurangabad. .. Petitioner Versus 1. The State of Maharashtra through its Secretary, Department of Education, Mantralaya Mumbai. 2. The Education Officer (Secondary), Zilla Parishad, Aurangabad. 3. Bhartiya Shikshan Sanstha, (Reg. No. F-731, Aurangabad) N-12, HUDCO, Abhijot Vidyalaya, Rozabaag, Aurangabad, Tq. & Dist. Aurangabad, through its Secretary. 4. Rashtramata Indira Gandhi Kanya Vidyalaya, Sillod, Tq. Sillod, Dist. Aurangabad through its Head Master. .. Respondents 2 Shri B. L. Sagar Killarikar, Advocate for the Petitioner. Shri P. P. More, A.G.P. for the Respondents No. 1 and 2. Shri V. D. Hon, Advocate for the Respondents No. 3 and 4. CORAM : A. P. DESHPANDE, AND N. D. DESHPANDE, JJ. DATE : 09TH MARCH, 2010. ORAL JUDGMENT [Per A. P. DESHPANDE, J. ] : 01. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 02. The petitioner was appointed as an assistant teacher in one of the schools administered and managed by the respondent No. 3 which is a public trust, so also a society. At the time of initial appointment, the petitioner was very much eligible and qualified for being so appointed as he possessed the qualification of B.Sc. B.Ed. The initial appointment of the petitioner being in clear and permanent vacancy, he was appointed on probation for a period of two years. On satisfactory completion of probation period, the management has bestowed status of a confirmed employee on the present petitioner in adherence to the provisions 3 of Section 5 of the M. E. P. S. Act. The head master/school management submitted petitioner's proposal to the Education Officer for according an approval after the appointment of the petitioner as an assistant teacher. However, the Education Officer by his order dated 19th March, 2005 did not grant the approval as asked for by pointing out certain deficiencies. One of the deficiency was that management had not intimated the Education Officer about position of backlog in relation to the reservation of backward class. 03. It is the case of the respondent/management that after removing deficiencies, the proposal was thereafter again forwarded to the Education Officer, however, this time, the proposal was not favourably considered on the ground that there exists backlog in regard to appointment of candidates belonging to the backward class. 04. Aggrieved by the refusal on the part of the Education Officer, the petitioner filed writ petition in this Court. According to the learned counsel for the petitioner, the petitioner had contended in the said writ petition bearing No. 6881/2008 that though there was a backlog in existence some of the candidates 4 who were appointed subsequent to the present petitioner in the year 2004-2005, were granted approval, despite the position of backlog remaining the same. Thus, according to the petitioner, the Education Officer had adopted different standards while according approval to the proposal submitted by the management in regard to the appointment of assistant teachers appointed in the year 2004-2005. The action on the part of the Education Officer in declining to approve the appointment of petitioner has been termed as arbitrary and discriminatory, and in violation of petitioner's fundamental rights contained in Article 14 of the Constitution of India. 05. On notice being served on the Education Officer and the authorities in the Education Department when the earlier petition came up for hearing a statement was made on behalf of respondent that they have already initiated an inquiry into the correctness of grant of approval to some other teachers similarly situate, who were appointed subsequent to the petitioner so also in the matter of failure to aprove the appointment of the petitioner. In view of the statement made by the respondent in the earlier writ petition, this Court disposed of writ petition and permitted the authorities in the Education Department to hold 5 an inquiry in tune with the statement. The Education Officer is stated to have caused an inquiry in relation to grant of approval to five other assistant teachers and in the matter of refusal of approval in the case of the present petitioner. 06. It is the case of the Education Officer that after affording an opportunity of hearing to all the six employees including the petitioner, the impugned order came to be passed, whereunder, approval granted to other five candidates has been revoked, whereas, approval to the appointment of the petitioner has been refused. It will not be out of place to point out that the only reason for revoking approval of five other candidates and refusal of approval to the petitioner as noticed from the impugned order is that there existed backlog in the appointments of candidates from the backward class. It will be also relevant to mention at this juncture that we have heard the petitions filed by other five candidates, so also this petitioner yesterday and issued Rule in the writ petitions filed by other five candidates and granted them interim relief. We do not propose to reproduce the reasons assigned in support of the interim order, while dealing with the case of the present petitioner. 6 07. According to the learned counsel for the petitioner, the petitioner's appointment is not against a roster point earmarked for any of the category of backward class. According to him respondent/school management has maintained the roster duly approved by the B. C. Cell from the Office of the Commissioner and in the said roster the petitioner's appointment being at point No. 54 in the roster, the same was against a point earmarked for open category. Thus, what needs to be borne in mind is that the present petitioner was not appointed in defiance of the roster or the roster point. Thus, no illegality can be said to have been committed in appointing the petitioner at point No. 54 in the roster. The only ground on which approval has been refused to the petitioner is that there exists backlog in the schools administered by the respondent/management in relation to candidates from the backward class. 08. The learned Assistant Government Pleader tried to place reliance on Government Circular dated 05th November, 2009 and pressed para 4 of the said Government Circular to sustain the action of refusing approval to the appointment of the present petitioner. Perusal of clause 4 of the Government Circular clearly reveals that if a candidate from open category is 7 appointed against a roster point reserved for any of the backward classes, then such an appointment need to be revoked and the consequential vacancy occurred ought to be filled in by appointing a candidate belonging to backward class. As pointed out hereinabove, the appointment of the petitioner was not against a roster point earmarked for any of the categories of the backward class and hence the action on the part of the Education Officer in refusing approval to the petitioner cannot be sustained on that ground as well. 09. Truly speaking, the policy decision reflected in Government Circular dated 05th November, 2009 has no application to the case of the present petitioner, for the reason that his appointment is of the year 2004. His proposal has been kept in abeyance by pointing out the deficiencies in the year 2005 and 2007 and even the impugned order is passed prior to the coming in force of the Government Circular. No other provisions of law or a policy decision is brought to our notice to justify refusal of approval or revocation of approval on the ground that there exists a backlog as mentioned hereinabove. 10. The five candidates who were appointed subsequent to the 8 petitioner were as a matter of fact initially granted approval and hence the petitioner was constrained to file writ petition in this Court contending that on the one hand approval has been refused to the petitioner on the ground that there exist backlog, whereas to the appointments of five other candidates who were appointed subsequent to the petitioner though backlog position remained the same, they were granted approval, thereby treating the petitioner differently. 11. We have already stayed the same impugned order which is assailed in other five petitions, by assigning reasons in support of the same. The case of the present petitioner stand at higher pedestal than the case of other five petitioners. Present petitioner being an earlier appointee, in the above narrated fact and situation, we deem it appropriate to allow this petition to the extent it relates to the petitioner and to the extent it refuses to accord approval to the appointment of the present petitioner only on the ground that there exists backlog of backward class candidate in the establishment of the school management. 9 12. It will not be out of place to mention at this juncture that according to the Education Officer, there is backlog of 24 posts, whereas, according to the management the backlog is of 15 posts. The school/management has placed on record statement indicating that there exists 10 vacancies and 03 vacancies are to come into being in the academic session 2010-2011. The school management has tendered an undertaking to the Education Officer and copy of which is placed on record assuring Education Officer that hereinafter the school management will not make any appointment of a candidate from the open category unless and until backlog is wholly removed. 13. We accept the said undertaking furnished by the school management treating it as an undertaking tendered to this Court and it is thus clear that hereinafter the school management shall not appoint any candidate from open category unless and until the entire backlog is wiped out. Having regard to the facts and circumstances and more so the fact that the petitioner has been appointed six years back, we deem it appropriate to allow the petition. 14. The impugned order passed by Education Officer to the 10 extent it relates to the petitioner and to the extent it refuses to approve the appointment of the petitioner only on the ground that there exist a backlog, is quashed and set aside. We direct the Education Officer to hold a denovo inquiry touching the question of grant of approval to the appointment of the petitioner initially on probation for a period of two years and thereafter as a permanent employee after affording a reasonable opportunity of hearing to the petitioner, so also the school management. This exercise shall be carried out by the Education Officer uninfluenced by the fact that there exists a backlog of backward class categories in various schools administered by the respondent/management. 15. A limited prayer made by the learned counsel for the petitioner for payment of salary until the lis is decided, is not opposed by the learned counsel Shri Hon for the school management. Hence we direct the respondent/school management to pay the salary of the petitioner as admissible under the Rules from the month of March 2010 onwards till the question of approval is adjudicated upon, by cheque. We expect the Education Officer to decide the case expeditiously and preferably within a period of three months from today. 11 Rule is made absolutely in above terms. [ N. D. DESHPANDE, J.] [A. P. DESHPANDE, J.] bsb/Mar.10