High Court · 2009
Legal Reasoning
(1) 912 W.P. No. 3722-2020 Judgment.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3722 OF 2020Shivaji S/o Bhivaji Sasane,Age : 36 Years, Occ. Service,R/o. Mitra Nagar, Majalgaon,Tal. Majalgaon, District Beed. .. Petitioner VERSUS1.The State of Maharashtra,Through its Secretary,Education and Sport Department,Mantralaya, Mumbai. 2.The Director,Maharashtra State Council for Education,Research and Training, Pune-30.3.The Deputy Director of Education,Education Department, Aurangabad Divsion,Aurangabad. 4.The Secretary, ( Prashasan)Shri Swami Vivekananda Education Society,R/o 2130 ‘E’ Ward Tarabai Park, Kolhapur,5.The Principal,Shri Swami Vivekananda Education Society,R/o. D.Ed College Vidhya Nagar Beed,Tal and Dist. Beed. .. Respondents ...Advocate for the Petitioner : Mr. Amol R. Gaikwad AGP for Respondent Nos. 1 to 5 : Ms. R. R. Tandale ...CORAM :S. G. MEHARE AND SANDIPKUMAR C. MORE , JJ.DATED : MARCH 18, 2025 (2) 912 W.P. No. 3722-2020 Judgment.odtJUDGMENT (PER S.G. MEHARE, J) :-1.Rule. Rule made returnable forthwith. Heard finally by consent of the parties.2.The petitioner’s case is that on 11th June 2009, he wasappointed as Assistant Teacher (ATD) in Adhypak Vidhayala, Beed,District Beed. He was a part time teacher, therefore, every year theappointment orders were issued afresh, except the approval for theyear 2009-2010 had been granted by the Education Officer to hisappointment. The proposal for the approval of his appointment forthe year 2009-2010 was sent to the Education Officer. In responsethereto, the Deputy Director of Education, Aurangabad, by letter dated21.02.2011 put the query to the Management about the delay insending the proposal of the petitioner. The Management hasexplained the same. However, his approval remained pending. Hence,he preferred Writ Petition No. 11178/2015 before this Court. By thatWrit Petition, the Deputy Director of Education, Aurangabad wasdirected to take an appropriate decision. Thereafter, the DeputyDirector of Education, Aurangabad took a decision on 30.10.2017 andgranted approval to the appointment of the petitioner as a part timeteacher for the year 2009-2010. Since the decision was pending, aContempt Proceeding was also filed and in that Contempt Proceedingsome statements were made and considering the submissions, theContempt Proceeding was disposed off. (3) 912 W.P. No. 3722-2020 Judgment.odt3. After granting the approval by the Dy. Director of Education,Aurangabad by letter dated 30.10.2017, as per the case of thecontesting respondent, an opinion was sought from the Director ofEducation, Pune and thereafter the Director of Education passed theimpugned order dated 15.10.2018 rejecting the approval to thepetitioner's appointment for the year 2009-2010, on the ground thatin staffing pattern for the year 2009-2010, the post of Art teacher wasnot approved and the post of Drawing Teacher was shown vacant.The staffing pattern for the year 2010-2011 reveals that the petitionerwas appointed on 12.06.2010 on the part time post of Art teacher andpost of Drawing teacher was shown vacant. In 2009-2010, the postfor Art teacher was not vacant. Hence, no approval could be grantedfor the year 2009-2010.4.The learned AGP has filed affidavit-in-reply of respondent No.3and reiterated the reasons mentioned in the impugned order. In sumand substance, it is the contention of respondent No.3 that theappointment of the petitioner is after the Government Resolutiondated 04.11.2009. Hence, he does not deserve the prescribed pay scaleas per the 6th Central Pay Commission. In a Contempt Proceeding, anopportunity was granted to impugn the order before this Court. Theimpugned order is free from errors and illegality. Since the post of thepetitioner for which he was claiming the approval was not approved, itcannot be granted approval for the same. (4) 912 W.P. No. 3722-2020 Judgment.odt5. The learned counsel for the petitioner has vehemently arguedthat the impugned order has been passed deliberately after theContempt Proceeding has been initiated. The impugned order doesnot have the reference of seeking opinion, after the approval wasgranted on 30.10.2017. He would submit that, his first appointmentwas as Assistant Teacher (ATD), therefore, he was posted on the postof Drawing teacher and that post was never vacant. It was asanctioned post in the year 2009-2010. However, subsequently in theyear 2010-2011, a new post of Art teacher was approved for part time,therefore, instead of giving appointment on the post of Drawingteacher, he was appointed as Art Teacher. He would point out that thepost of Drawing teacher was sanctioned in the year 2009-2010,therefore, his appointment on that post was legal and valid. However,the learned Director of Education has confused two appointmentorders which were independent. He would also refer to the proposalof the Management sent to the Deputy Director of Education andargued that the Management has specifically mentioned that apetitioner was appointed as Drawing teacher in the year 2009-2010.It seems the misconception of the facts and search ground to reject theproposal. The petitioner was rendering services as a Drawing teachersince 11.06.2009. Therefore, he deserves the benefit of 6th pay-Commission scale. He prayed to allow the Writ Petition.6.Per contra, the learned AGP has vehemently argued that the (5) 912 W.P. No. 3722-2020 Judgment.odtdecision dated 30.10.2017 was taken by the in charge DeputyDirector. Thereafter, an opinion has been sought from the Director,Maharashtra State Education, Research and Training Council, Puneabout the proposal. On verifying the facts and material placed onrecord, the Deputy Director of Education has rightly passed theimpugned order. In view of the observations in the ContemptProceeding, the impugned order has been challenged before thisCourt. So it has no connection with the earlier order dated 30.102017. Since the post was not sanctioned, there was no question togrant the approval. That apart, the appointment of petitioner wasafter the Government Resolution dated 4.11.2009, hence he does notdeserve the benefit of 6th pay commission.7.Perused the papers with able assistance of learned respectivecounsels. The staffing pattern which has been placed on record forthe year 2009-2010 clearly mentions that part time post of Drawingteacher was approved. The appointment order of petitioner, dated11th June 2009 clearly establishes that he was appointed as AssistantTeacher (ATD). The petitioner did not dispute that since thereafter hewas appointed as Art Teacher.8.When the proposal for the approval of appointment for the year2009-2010 was submitted before the Dy Director of Education, somedeficiencies were pointed out. The said deficiencies were restricted to (6) 912 W.P. No. 3722-2020 Judgment.odtexplaining the delay. None other than the explanation, otherobjections were raised. Thereafter, the Deputy Director of Educationin clear terms has granted the approval to the petitioner for the year2009-2010. In the interregnum, the Contempt Proceeding was goingon, and that time the impugned order was passed. Though theContempt Court had granted an opportunity to the petitioner toimpugn the order, it has a co-relation with the earlier order ofapproval. The record clearly establishes that on the date of firstappointment of the petitioner for the year 2009-2010, the post onwhich he was appointed was vacant and he was specifically appointedon that vacant part time post. The silence of the EducationDepartment speaks a lot, and that shows their object. Reading thefacts in toto, there appears substance in the contention of thepetitioner that the Deputy Director of Education was disappointedbecause he was to face Contempt Proceeding and it has been reflectedin the impugned order. At the cost of repetition, we record thefindings that the post for which the petitioner was appointed in theyear 2009-2010 was vacant and he was correctly appointed on thatpost. Therefore, there was no negligence. Reading the impugnedorder, it appears that the Director of Education is confused about theappointment for the year 2010-2011 and 2009-2010. We do not findsufficient reason for the Education Officer to find out the grounds,which are mentioned in the impugned order, to reject the proposal. In
Decision
(7) 912 W.P. No. 3722-2020 Judgment.odtthe result, we are of the opinion that petition deserves to be allowed.Hence the following order. ORDER(I)The Writ Petition is allowed.(II)The impugned order dated 15.10.2018 passed by the Director ofEduction stands quashed and set aside and the order of the Deputy Director of Education, Aurangabad dated 30.10.2017 is retained.(III)The authority concern is directed to act upon the order dated30.10.2017 and implement it forthwith in any case within two months from today. (IV)No order as to costs.Rule is absolute in above terms.(SANDIPKUMAR C. MORE) (S. G. MEHARE)JUDGE JUDGEY.S.K.