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2013 DIGILAW 389 (BOM)

Archana Ajay Walvekar v. President

2013-02-15

A.P.BHANGALE, A.S.OKA

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Judgment A.S. OKA, J. Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondent Nos. 1 and 2 Office noting shows that the third Respondent has been served with the notice. The learned AGP represents the fourth Respondent. 2. The case of the Petitioner is that she was appointed by the first Respondent to the post of Junior Clerk under the appointment order dated 3rd October 2010 from 1st October 2010 to 30th September 2013. The grievance in the Petition is as regards the communication dated 24th January 2011 issued by the third Respondent (Education Officer (Primary) Zilla Parishad, Sangli) informing the second Respondent-the Principal of the concerned School that approval cannot be granted to the appointment of the Petitioner as there was a ban on employment imposed by the State Government when the Petitioner was appointed. The Petitioner has referred to the communication dated 15th September 2011 addressed by the third Respondent to the second Respondent. In the said communication, a reference has been made to the Government Resolution by which the ban was imposed on filling up the posts of non-teaching staff. 3. On 22nd December 2011, the Petitioner wrote a letter to the second Respondent stating that she was informed on 19th December 2011 that she was told not to sign the muster. She called upon the second Respondent-Head Mistress of the School to disclose reasons for not allowing her to sing the muster. On the said letter, there is an endorsement made by the second Respondent that the President of the School Committee has directed the Petitioner not to sign the muster. 4. The learned counsel appearing for the Petitioner is relying upon the Government Resolution dated 22nd March 2012. He submits that by the said decision, the ban imposed earlier on the employment was withdrawn. An affidavit has been filed by the second Respondent. The learned counsel for the first and second Respondents (Management of the School in which the Petitioner was appointed) contended is that the appointment of the Petitioner made by the earlier School Committee was not legal and proper and the same was made without considering the other eligible candidates. It is contended that the earlier School Committee has not taken into consideration the list of candidates for appointment on compassionate ground. It is contended that the earlier School Committee has not taken into consideration the list of candidates for appointment on compassionate ground. The reliance is placed on the proposal of the Petitioner sent to the Education Officer. It is contended that the present Governing Council of the first Respondent has taken an objection for the appointment of the Petitioner. 5. The contention of the learned counsel appearing for the first and second Respondents is that the appointment of the Petitioner was made on temporary basis. His submission is that the Petitioner is not entitled to the approval as the first and second Respondents have already raised an objection with the Education Officer that the appointment of the Petitioner is not legal and valid. 6. From the communications at Exhibits-C and E (24th January 2011 and 15th September 2011), it is apparent that the approval has been denied by the Education Officer only on the ground of the ban imposed by the State Government at the relevant time. The questions whether the ban has been subsequently revoked or not and whether on the basis of revocation of the said ban, approval can be granted to the Petitioner are required to be considered by the third Respondent. As far as the first and second Respondents are concerned, the letter of appointment dated 31st October 2010 clearly records that the appointment of the Petitioner was made on temporary basis from 1st October 2010 till 30th September 2013. In the reply filed by the first and second Respondents, though it is contended that the appointment was illegally made, the affidavit does not state that the appointment of the Petitioner was terminated by the first and second Respondents. In Paragraph 19 of the reply, it is contended that in the appointment letter, it was stated that the salary and allowances will not be paid to the Petitioner unless the service of the Petitioner was approved by the Education Department. Thus, even if what is stated in the affidavit-in-reply of the first and second Respondents is accepted as correct, the appointment of the Petitioner which is in force at least till 30th September 2013 has not been terminated by the first and second Respondents. 7. Thus, even if what is stated in the affidavit-in-reply of the first and second Respondents is accepted as correct, the appointment of the Petitioner which is in force at least till 30th September 2013 has not been terminated by the first and second Respondents. 7. As we have noticed that the approval was denied only on the ground that the ban was imposed by the State Government on granting employment and as the appointment of the Petitioner even according to the letter of appointment continues at least till 30th September 2013, then this is a fit case where the third Respondent will have to be directed to consider the case of the Petitioner afresh in the light of the Government Resolution dated 22nd March 2012 (Page 36 of the Petition). It is obvious that the Education Officer is bound to consider the objections raised by the first and second Respondents in accordance with Jaw. We make it very clear that we have not gone into the nature of the appointment of the Petitioner as well as the legality and validity thereof. The learned counsel appearing for the first and second Respondents contends that the remark made on the letter dated 22nd October 20 II by the second Respondent (Exhibit-A to the Petition) will amount to otherwise termination. We may note that in the reply which is filed on 11th July 2012, it is not the case of the first and second Respondents that the employment of the Petitioner has been terminated and, therefore, the remark on the said letter will not amount to termination. 8. Hence, we pass the following order. We may note that in the reply which is filed on 11th July 2012, it is not the case of the first and second Respondents that the employment of the Petitioner has been terminated and, therefore, the remark on the said letter will not amount to termination. 8. Hence, we pass the following order. ORDER (a) We direct the third Respondent to reconsider the case of the Petitioner for grant of approval in the light of the contentions raised in the additional affidavit dated 5th July 2012 filed by the Petitioner and in the light of the Government Resolution dated 22nd March 2012; (b) It is obvious that the third Respondent shall take into consideration the objections raised by the first and the second Respondents; (c) Appropriate decision shall be taken by the Education Officer in accordance with law within a period of two months from the date on which an authenticated copy of this order is produced by the Petitioner; (d) We direct the third Respondent to act upon an authenticated copy of this judgment and order; (e) The Petition is disposed of on above terms. Ordered accordingly.