JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted.

2. The judgment of the Bombay High Court dismissing the writ petition filed by the appellant herein as also the subsequent order dismissing the review petition are challenged in this appeal.

3. Appellant herein came to be appointed by Leva Education Union, Leva Boarding Zilla Peth, Jalgaon, hereinafter called the “Management” in Nandinibai Vamanrao Girls High School, Jalgaon w.e.f. 1.1.2001 vide letter dated 30.12.2000. The appellant belongs to the “Other Backward Class” (OBC) category. He was a science graduate and had worked as a clerk in a private bank. He applied to an advertisement issued by respondent no. 3 dated 23.12.2000 inviting applications for the post of Junior Clerk. Significantly, this post had become vacant since the earlier employee working on this post was promoted. That promotion was given due to the superannuation of a Chief Clerk. With the result, Shri S.S. Gangapurkar was promoted as a Chief Clerk and so also Shri V.B. Patil who was the junior most employee was promoted as a Junior Clerk w.e.f. 1.11.2000. It was, therefore, that the post had fallen vacant. It was thus a clear vacancy. The advertisement clarified that the post was reserved for the OBC category. Also, it was clearly mentioned in the advertisement that the preference was given to the candidates who were registered with the employment exchange, Maharashtra. Accordingly, the interviews were held on 30.12.2000 and the appellant herein on the basis of his experience in the clerical field and qualifications was selected out of approximately 9 candidates who appeared for the interview.

4. The appointment order came to be issued by the respondent no. 4 School on 31.12.2000. The Management then sent the proposal to the Education Officer for approval of the appointment of the appellant along with a resolution to that effect. This was done on 7.2.2001. The respondent no. 2, after considering all the facts, accorded the approval to the appointment of the appellant as a Junior Clerk on 17.3.2001. This approval was granted w.e.f. 1.11.2001. The approval letter also suggests that this vacancy had fallen because of the promotion of Shri Gangapurkar and Shri V.B. Patil. However, the respondent No.2 again issued a letter dated 30.5.2002 stating that the appointment was not in accordance with the rules and hence the approval granted by the department was being cancelled. Very significantly, before this abrupt cancellation, the department did not give any hearing either to the petitioner or to the management.

5. A representation was made against this letter by the appellant to the management. The respondent management also personally approached and requested the department to give details about the reasons for the abrupt action of cancellation of the approval. The respondent No.4 also wrote a letter dated 22.6.2002 to the Education Officer requesting to give details or reasons for the cancellation of appointment. The respondent no.2, however, chose to keep mum. The appellant, therefore, approached Aurangabad Bench of the Bombay High Court by way of a writ petition.

6. It is for the first time that before the High Court that a reply came to be filed by Respondent Nos. 1 and 2 wherein they justified their order was an outcome of the Government Circular No. V.G.T-1000/PK 13/2000/Finance Bill-19/Dt.26th February, 1999 issued on Ist March, 2000.

7. Relying upon the aforementioned resolution dated 1.3.2000 whereby the Government had imposed ban on the recruitment on the posts which have fallen vacant on account of retirement, voluntary retirement, resignation or death of incumbent, it was justified by the Government that the post on which the petitioner was appointed and become vacant on 31.10.2000 on account of the retirement of one Shri A.P. Mahajan, the then Chief Accountant working in the school and therefore it was contrary to the Government Resolution. It was on this ground alone that the writ petition was dismissed a