Bombay High Court
Ku. Kiran Ramdas Borkar vs Deputy Director Of Education, Nagpur ... on 20 September, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Milind N. Jadhav
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 4431 of 2018
Petitioner : Ku Kiran Ramdas Borkar, aged about 32 years,
Occ: service, resident of Bangaon, Tahsil
Amgaon, District Gondia
versus
Respondents: 1) Deputy Director of Education, Nagpur Division,
Nagpur
2) The Education Officer (Secondary), Zilla Parishad, Gondia
3) Gramotthan Sanstha, Amgaon, District Gondia, through its President, c/o Saraswati Vidyalaya, Bangaon, Tahsil Amgaon, District Gondia
4) Saraswati Vidyalaya, Bangaon, Tahsil Amgaon, District Gondia, through its Headmaster Shri P. N. Shende, Advocate for petitioner Ms Kalyani Deshpande, AGP for respondents no. 1 and 2 Respondents no. 3 and 4 served Coram : Sunil B. Shukre & Milind N. Jadhav, JJ Dated : 20th September 2019 Judgment (Per Sunil B. Shukre, J) ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 13:38:23 ::: 2
1. Learned Assistant Government Pleader appearing for respondents no. 1 and 2 seeks three weeks' time to file reply in the matter by way of last chance. The request has been opposed by learned counsel for the petitioner. We are with learned counsel for the petitioner in this regard. In this case, almost an year has gone by and yet no reply has been filed by respondents no. 1 and 2. Learned Assistant Government Pleader submits that respondents no. 1 and 2 have indeed filed reply in PIL No. 108 of 2018 with which this petition was tagged. She submits that in that PIL, a detailed reply was filed and it was only due to subsequent development that respondents no. 1 and 2 could not file their reply in this petition individually. She points out that the PIL has been finally disposed of on 26.6.2019 and thereafter this petition has been listed on board for hearing today only. If this petition was to be heard separately in terms of the order passed on 26.6.2019, we feel that the respondents should have been ready with reply in this matter for the reason that they were also expected to address the grievance of the petitioner herein at the individual level who has been suffering for no fault of hers for the last six years and is without salary since May 2018. We see no justification in the request of learned Assistant Government Pleader. Request is rejected.
2. Rule. Heard forthwith finally.
3. The petitioner has been appointed as Assistant Teacher on ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 13:38:23 ::: 3 18.5.2011 by following due procedure. She was appointed on a post reserved for scheduled caste category. Respondent no. 2-Education Officer vide his order dated 29.8.2013 granted approval to the appointment of the petitioner on probation for a period from 27.6.2011 to 26.6.2013. Later on, by the order issued on 9.10.2013, the Education Officer (Secondary) granted permanent approval to the appointment of the petitioner with effect from 27.6.2013.
4. Now, the impugned order dated 23rd May 2018 (Annexure- VII) states that the no objection initially granted by the Education Officer for appointing the petitioner as an Assistant Teacher was inappropriate as at that point of time, the reservation roaster was not duly certified as correct by the Backward Class Cell. The no objection was granted by the then Education Officer on 27.2.2011 while the roaster was approved on 13.4.2012. The impugned order holds that the No Objection accorded by the Education Officer in absence of certification of the roaster by the Backward Class Cell cannot be justified. The Deputy Director of Education by the impugned order has, on this count, cancelled the approval order given by the Education Officer on 29.8.2013.
5. The certification of the reservation roaster, it would be seen from the impugned order, was there on record much before the approval ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 13:38:23 ::: 4 to the appointment of the petitioner was granted on 29.8.2013 by the Education Officer. It is not the case of respondent no. 2 that the certification was conditional like making of suitable amendment to the reservation roaster. It is also not the case of respondent no. 2 that what was certified later on was not the reservation roaster which was in operation on the date on which the No Objection was granted by the Education Officer. This would only show that the impugned order has been passed for a reason which is absolutely not consistent with the material available on record, rendering the impugned order as illegal.
6. There is one more dimension involved in this case. The impugned order cancels the approval order dated 29.8.2013. This order had approved the appointment of the petitioner on a probation for two years from 27.6.2011 to 26.6.2013. This order came to be merged in the order dated 9.10.2013 whereby permanent approval came to be given to the appointment of the petitioner from 27.6.2013. The impugned order does not in any manner touch the order granting permanent approval to the appointment of the petitioner issued on 9.10.2013 by the Education Officer. The effect is that the impugned order cancels something which does not exist on record and allows to continue the order dated 9.10.2013 which governs the status of the petitioner as duly approved Assistant Teacher or permanent Assistant Teacher on permanent basis. Even ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 13:38:23 ::: 5 otherwise, respondent no. 2 could not have upset the order dated 9.10.2013 on the ground that the reservation roaster was certified as incorrect by the Backwardclass Cell subsequent to the issuance of no objection issued to the appointment of the petitioner by the Education Officer, for the reasons stated earlier.
7. In the result, we are inclined to this allow this petition and it is accordingly allowed. The impugned order is quashed and set aside. Respondents no. 1 and 2 are directed to release the salary of the petitioner regularly and also pay her arrears of salary. The withheld salary which, according to the learned counsel for the petitioner, is from May 2018, be paid to the petitioner within two months from the date of receipt of this order.
8. Rule is made absolute in the above terms. No costs.
MILIND N. JADHAV, J SUNIL B. SHUKRE, J
joshi
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