Full Judgment Text
2026:BHC-AS:7884
27-WP-3059-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3059 OF 2019
SATISH
RAMCHANDRA
SANGAR
1. Pundalik Dashrath Thakare,
Age : 43 Years, Occupation : Service,
Residing at : At Gandre, Post Kone,
Taluka : Wadha, District : Palghar – 421303.
Digitally signed by
SATISH RAMCHANDRA
SANGAR
Date: 2026.02.16
17:41:39 +0530
2. The Wadha Co-operative Education
Society Ltd., Wadha,
District : Palghar – 421 303. ...Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary, School Education
Department, Mantralaya, Mumbai – 400 032.
2. The Education Officer (Secondary),
Zilla Parishad, Palghar. ...Respondents
*
Mr.Vinayak R. Kumbhar a/w Mr.Rajendra B. Khaire i/b. Ms.Ashwini
N. Bandiwadekar, Advocates for Petitioners.
Mr.N.C.Walimbe, Addl.G.P. a/w Smt.D.S.Deshmukh, AGP, for the
Respondents – State.
*
CORAM : M.S.KARNIK &
S. M. MODAK, JJ.
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DATE : 9 FEBRUARY 2026
ORAL JUDGMENT : (PER : M.S.KARNIK, J.)
1. Heard learned counsel for the petitioner and learned Addl.G.P.
for the respondents-State.
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2. The challenge in this Petition is to the order dated 5 December
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2018 passed by the Respondent No.2 – The Education Officer
(Secondary), Zilla Parishad, Palghar, rejecting the proposal made by the
petitioner No.2 – management for approval to the appointment of the
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petitioner No.1 as a peon with effect from 1 October 2009.
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3. On 30 September 2009, one Shri.Balu Vithal Patil working as a
Naik in the school retired from the service. Hence, the petitioner No.2
– management promoted Shri.Ramdas Bhiva Kamble, then working as
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a peon, on the said post of Naik which fell vacant with effect from 1
October 2009. The petitioner No.2 – management published an
advertisement to fill-up the post of peon which was to fall vacant in the
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open category. The advertisement is dated 7 September 2009. The
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interview was to be held on 13 September 2009. Total four
candidates appeared for the said interview including the petitioner
No.1. The petitioner No.1 was selected for appointment. The
appointment order was issued to the petitioner No.1 as a peon
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Shikshan Sevak for 3 years with effect from 1 October 2009 on
monthly honorarium of Rs.1500/- (Rupees One Thousand Five
Hundred).
4. The headmaster submitted a proposal to respondent No.2 – the
Education Officer (Secondary), Zilla Parishad, Palghar for approval to
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the appointment of the petitioner No.1. By the impugned order, the
respondent No.2 rejected the proposal on the ground of ban on
recruitment of non-teaching employees imposed by the respondent
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No.1 vide Government Resolution (henceforth, “GR”) dated 12
February 2015.
5. Learned Addl.G.P., in support of the impugned order submitted
that the proposal was submitted by the petitioner No.2 – management
only in the year 2018 and therefore, in view of the ban imposed in the
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year 2015 vide GR dated 12 February 2015, the proposal of the
petitioner submitted during ban period has rightly been rejected by the
respondent No.2 – Education Officer. Further, the learned Addl.G.P.
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invited our attention to the communication dated 9 February 2026
addressed by the respondent No.2 to the Government Pleader, High
Court, Bombay. It is submitted that while making the appointment, the
permission of the respondent No.2 was not obtained. It is further
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stated that the Resolution issued by the management is dated 1
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August 2010, however, the appointment is shown from 1 October
2009 which is wrong.
6. The next ground raised in the said communication is that the
school sent the proposal for approval to the Education Officer – Zilla
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Parishad, Thane on 8 October 2012, whereas the proposal dated 1
September 2018 was submitted to the Education Officer, Zilla
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Parishad, Palghar on 7 September 2018. Further, in view of the ban
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vide GR dated 12 February 2015, till revised staffing pattern is
determined, no appointment should have been made. It is further
quoted in the said communication that from staffing pattern for the
year 2014-2015 till school staffing approval of 2024-2025, as the post
of peon was not falling under “sanctioned post ”, at present, the
approval for the post of peon to the petitioner cannot be granted.
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7. Heard. The petitioner was appointed with effect from 1 October
2009. At the relevant time, when the petitioner was appointed, there
was no requirement of obtaining NOC. The petitioner was appointed
against the vacant post pursuant to the promotion of Shri.Ramdas
Bhiva Kamble who was promoted from the post of peon to that of
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Naik with effect from 1 October 2009. The petitioner No.1 thus was
appointed against the vacant post that was existing which fell vacant
consequent to the promotion of Shri.Ramdas Bhiva Kamble as a Naik.
It is pertinent to note that the objection of the Education Officer is not
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that the petitioner No.1 was not actually appointed with effect from 1
October 2009 but the objection is that the proposal which was
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submitted in the year 2018 was after a long delay. The objection is that
the proposal submitted was during the pendency of ban imposed vide
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GR dated 12 February 2015 and hence, the approval has rightly been
refused.
8. We find that the fact about petitioner being actually appointed
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with effect from 1 October 2009 is not controverted. Further, the only
reason recorded in the impugned order is that the proposal was
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submitted during the ban period. It is by the communication dated 9
February 2026 addressed to the learned Government Pleader that new
grounds why the proposal deserves to be rejected are sought to be
placed on record. Raising additional grounds at this stage is not
justified. However, we are inclined to deal with these grounds as well.
9. Once it is established that the petitioner was appointed with
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effect from 1 October 2009 on a vacant post, the proposal, though
submitted in the year 2018, has to relate back to the date of initial
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appointment i.e. 1 October 2009. Further, the petitioner was
appointed on a vacant post after issuance of the advertisement. No
requirement has been placed on record that at the relevant time, the
permission of the respondent No.2 was required for filling up of the
vacant post of peon on which the Petitioner came to be appointed.
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10. The respondents are not justified in giving a retrospective effect
to the ban which was imposed for the first time in the year 2015. The
proposal is for approval to the appointment of the petitioner from the
year 2009. One of the contention of learned Addl.G.P. is that the
proposal has been belatedly filed and it should have been filed within a
period of 6 months. No doubt, the proposal should have been
submitted at the earliest. But once it is found that the petitioner is
appointed against the vacant post, after issuance of advertisement and
following the procedure, there is no reason to deprive the petitioner of
the facility of approval as he has actually worked in the post right from
his initial appointment on the vacant post till the grant of approval.
The petitioner No.1 cannot be faulted for the delay on the part of the
management in submitting the proposal.
11. It is not the date of submission of the proposal which is relevant,
but it is the date from which the petitioner has been appointed on the
vacant sanctioned post will be relevant for the grant of approval. The
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GR dated 12 February 2015 does not have a retrospective effect.
Staffing pattern which is sought to be relied upon was to be finalized
from the year 2015 onwards, whereas, the petitioner was already
appointed in the year 2009. The respondents proceeding on the
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premise that there was no post of peon indicated in the staffing pattern
is completely misconceived as the petitioner was appointed on a vacant
post which had fallen vacant in the year 2009 consequent to the
promotion of Shri.Ramdas Bhiva Kamble and which has not been
controverted by the respondents.
12. It is pertinent to note that the impugned order only records
about the ban on recruitment which ground for rejection has been
found to be unjustified by us for the reasons stated above. The
impugned order is, therefore, quashed and set aside. The petition
succeeds and is accordingly allowed in terms of prayer clause (b) which
reads thus:-
(b) By a suitable Writ, order or direction, this Hon’ble Court be
pleased to quash and set aside the impugned order dated
05.12.2018 issued by the respondent No.2, and accordingly
the respondent No.2 may be directed to grant approval to
the appointment of the petitioner No.1 as Peon–Shikshan
Sevak w.e.f 01.10.2009 in the aided Secondary School of the
petitioner No.2 and to release the grant-in-aid for payment
of monthly honorarium for a period of 3 years from the said
date of appointment, and thereafter to grant further approval
as peon in pay scale and release the grant-in-aid for payment
of monthly salary in the pay scale applicable to the post of
regular Peon w.e.f. 01.10.2012, together with arrears.”
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13. The arrears be paid within a period of 6 months from the date of
communication of this order. Learned counsel for the petitioner on
instructions submits that the petitioner is not claiming any interest on
the amount of arrears. Learned Addl.G.P. submitted that the arrears
should be restricted from the year 2018 viz the date of submission of
the proposal, if at all the petition is to be allowed. We find that on the
earlier occasion, the proposal was already submitted to the Zilla
Parishad – Palghar in 2012 and hence, we are not inclined to restrict
the arrears as requested by learned Addl.G.P. The petitioner, working
as a peon, should not be deprived of the arrears during the period he
has worked.
14. With these observations, the Writ Petition stands disposed of.
(S. M. MODAK, J.) (M. S. KARNIK, J.)
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