Bombay High Court
Shri.Amol Ashok Gadekar vs The District Vocational Education And ... on 4 February, 2021
Author: Surendra P. Tavade
Bench: S.C. Gupte, Surendra P. Tavade
Digitally signed by
Smita Smita Gonsalves
Gonsalves Date: 2021.02.08
11:08:54 +0530
sg 1/4 10. wp6921-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6921 OF 2018
Amol Ashok Gadekar, since deceased
through his legal heirs. .. Petitioners
v/s.
The District Vocational Education
and Training Office, Solapur-1 & Ors. .. Respondents
....
Mr. B.S. Nayak, for the Petitioners.
Mr. N.C. Walimbe, AGP, for Respondent Nos. 1 to 3.
Mr. Avinash Avhad, for Respondent Nos. 4 and 5.
....
CORAM: S.C. GUPTE &
SURENDRA P. TAVADE, JJ.
DATE : 4 FEBRUARY, 2021.
P.C:-
. Heard learned Counsel for the Applicant, who is the widow of
the original Petitioner, and also heard learned AGP for the Respondent- State and learned Counsel for the Respondent-Management (Respondent Nos. 4 and 5). Rule. Rule taken up for hearing forthwith, by consent of Counsel.
2. The original Petitioner was appointed as an Instructor for X- Ray Technician Course in Respondent No.5-Institution. The Petitioner has the requisite qualifications for the post, having cleared HSC Examination with second class (though this is a matter of dispute, which is discussed 1 of 4 sg 2/4 10. wp6921-18.doc below) and having successfully completed a Technician's Course and produced a certificate to that effect. His appointment was made pursuant to an advertisement issued and applications made for appointment to the seat. His appointment was of 6 November 2012. A proposal was, thereafter, sent by the management to Respondent No.1 for approval to the Petitioner's appointment. The proposal was initially rejected by an order passed on 16 January 2013. The proposal was, thereafter, resubmitted by the management and was lastly rejected on 29 October 2016. This rejection order is the subject matter of challenge in the petition.
3. During the pendency of the petition, the Petitioner expired. His widow and daughter (through her local guardian, i.e. the widow) have taken out the present interim application for bringing themselves on record in place of the original Petitioner and praying for payment of arrears of salary and terminal benefits of the original Petitioner.
4. The impugned order of the Respondent-State rejecting the proposal for approval to the Petitioner's appointment contains three grounds for such rejection. Firstly, it is claimed that the Petitioner's appointment was not in accordance with the G.R. of 6 February 2012, which requires the management to first seek a prior permission of education authorities before making any appointment. Secondly, it is claimed that it was imperative to check the roster before making any appointment, which requirement was not complied with. Thirdly, it is claimed that the Petitioner did not have the requisite education qualification.
2 of 4 sg 3/4 10. wp6921-18.doc
5. So far as the roster is concerned, it is nobody's case that there was no vacant seat for the reserved category of OBC to which the Petitioner belongs. It is not in dispute that the Petitioner belongs to the category of OBC and was entitled to be appointed in the seat. Merely because nothing is placed on record by the Respondent-Management to show that the roster was checked and its requirements were complied with, approval cannot be denied to the Petitioner's appointment. After all, what is important is that the disputed appointment was actually permissible under the roster.
6. The main ground for contesting the petition, so far as the Respondent-State is concerned, is want of educational qualification. It is submitted that though the Petitioner has passed HSC Examination, he does not hold a minimum second class in the examination. The Petitioner has produced proof to show that he had originally cleared his HSC Examination with 38.7% of marks. He, however, re-appeared at the examination to improve his performance and, thereafter, obtained adequate marks in four optional subjects to take his overall percentage beyond 45, i.e. the minimum percentage for second class. Merely because the statement of marks for his second attempt at HSC examination does not contain the words "second class" (obviously so, since it was a re- examination and only some subjects were attempted), the overall percentage of the Petitioner, which is a matter of mere arithmetic calculation, cannot be disputed.
7. After having worked for so many years with the Respondent 3 of 4 sg 4/4 10. wp6921-18.doc School, the Petitioner cannot be denied salary and other benefits merely for want of a prior permission before advertisement for appointment, for which he cannot be said to be at fault. He applied in response to the advertisement duly issued by the Respondent-Management, appeared for the interview and secured his appointment.
8. In the premises, Rule is made absolute and the petition is allowed by quashing and setting aside the communication of 29 October 2016 issued by Respondent No.2 and directing Respondent No.2 to grant approval to the post of the Petitioner forthwith and pay arrears of salary and terminal benefits of the original Petitioner to the Petitioners substituted in the amended petition. Such approval must be granted and salary and other benefits must be disbursed within a period of six weeks from today.
(SURENDRA P. TAVADE, J.) (S.C. GUPTE, J.)
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