The main legal point established in the judgment is that appointments should be made against sanctioned posts, and the remedy of appeal should be created by statute and not by executive order.

JUDGMENT

M.G. Sewlikar, J. - Rule. Rule made returnable forthwith. With the consent of the parties, taken up for final hearing at the admission stage.

2. By this petition under Article 226 of the Constitution of India, petitioner has challenged the order dated 28th December, 2017 by which the proposal dated 20th June, 2014 submitted by respondent nos.5 and 6 for according approval to the post of the petitioner as a Cook has been rejected by respondent no.3-Regional Deputy Commissioner Social Welfare, Aurangabad.

3. Factual matrix leading to this petition is as under:

Respondent no.6 runs Sane Guruji Secondary School, Taluka Kaij, District Beed. Initially the school had classes from 1st to 7th standard. Permission for 8th standard was granted from the academic year 2012-2013 vide resolutions dated 2nd August, 2008 and 28th August, 2012. Accordingly, by Government resolution dated 14th February, 2006 one post of Cook was sanctioned. Vide corrigendum dated 24th March, 2006 and resolution dated 14th February, 2006 it was modified and post of Cook was created for 9th standard as well. By the resolution dated 14th February, 2006 post of one Cook was made admissible for every forty students. Thus, since 14th February, 2006 and corrigendum dated 24th March, 2006, there were two sanctioned posts of Cook.

For filling up second post of Cook, school management issued an advertisement on 17th May, 2012 inviting applications for various posts including the post of Cook. Petitioner made an application for the post of Cook whereafter he was selected. Accordingly, order of appointment of petitioner was issued on 20th June, 2012. Respondent authorities accorded approval to the services of the petitioner in the pay scale of Rs.4400-7400 with grade pay of Rs.1600 for two academic years on probation.

Respondent no.6 submitted proposal dated 21.06.2015 to the office of Assistant Commissioner Social Welfare. Additional Commissioner Social Welfare forwarded the proposal of respondent no.6 dated 21st June, 2015 recommending approval to the post of petitioner as Cook vide communication dated 30th May, 2017. The said proposal was turned down by the respondent no.3-Regional Deputy Commissioner Social Welfare, Aurangabad by order dated 28th December, 2017, only on one ground that post of second Cook was not sanctioned. On the basis of this order, respondent no.6 issued a show cause notice to petitioner calling upon him to explain as to why his services should not be terminated. This show cause notice dated 04th January, 2018 was served upon the petitioner on 06th January, 2018. These two orders i.e. the order of respondent no.3 dated 28th December, 2017 and 04th January, 2018 are impugned in this writ petition.

4. Respondent no.3 has filed affidavit in reply. Respondent no.3 has contended that post of second Cook was not sanctioned. Therefore, appointment of petitioner is not against a sanctioned post. Respondent no.3 has further contended that petitioner has an alternate efficacious remedy of appeal created by Government resolution dated 03rd August, 2017. On these two counts, respondent no.3 has sought rejection of the writ petition.

5. Respondent nos.1 to 4 have filed their affidavit in reply contending that by virtue of Government resolution dated 14th February, 2006 one post of Cook was created for 8th standard and by corrigendum dated 24th March, 2006, resolution dated 14th February, 2006 was made applicable to both 8th and 9th standards. Respondent nos.1 to 4 contended that by Government resolution dated 30th June, 2006 out of two sanctioned post, one post was converted from Cook to Helper. Therefore, sanctioned post of Cook was only one. Appointment of petitioner was, therefore, not against the sanctioned post. Respondent nos.1 to 4 contended that Assistant Commissioner Social Welfare and the school management by active connivance got sanctioned incorrect staffing pattern which shows that two posts of Cook were sanctioned. In fact only one post of Cook w