Case Note & Summary
The petitioner, Welcome Augusten Mascaren, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging an order dated 23rd October, 2018 passed by the Deputy Director of Education, Mumbai Region. The impugned order cancelled the individual approval granted to the petitioner's appointment as Junior Clerk on probationary basis at a secondary school. The petitioner was B.A. qualified. The school management issued an advertisement on 13th May, 2010 inviting applications for one post of Junior Clerk on contract basis for 3 years. The petitioner applied and was appointed as Junior Clerk for the period 15th June, 2012 to 14th June, 2015 in the open category. The Education Inspector granted approval to this appointment on 12th March, 2013. Subsequently, the petitioner was appointed as permanent Junior Clerk on 27th June, 2015, and the Education Inspector granted approval on 30th November, 2017. The salary was released accordingly. However, on 30th May, 2018, respondent no. 4 issued a show cause notice to the petitioner and the management, alleging that the approval was wrongly granted because a Government Resolution dated 15th June, 2012 prohibited filling up any post, particularly the post in question. After a personal hearing on 23rd October, 2018, the Deputy Director of Education cancelled the approval with effect from 15th June, 2012. The petitioner argued that the advertisement was issued on 13th May, 2010, much prior to the Government Resolution dated 15th June, 2012, and therefore the resolution could not apply retrospectively. The court accepted this submission, holding that the cancellation was unjustified. The court quashed the impugned order and directed the respondents to restore the approval and release the petitioner's salary. The petition was allowed.
Headnote
A) Service Law - Cancellation of Approval - Retrospective Application of Government Resolution - The court considered whether a Government Resolution dated 15th June, 2012 prohibiting filling of posts could be applied to cancel an approval granted for an appointment made pursuant to an advertisement issued on 13th May, 2010, i.e., prior to the resolution. Held that the resolution cannot apply retrospectively and the cancellation was unjustified (Paras 3-6).
Issue of Consideration
Whether the Deputy Director of Education could cancel the approval granted to the petitioner's appointment as Junior Clerk on the ground that a Government Resolution dated 15th June, 2012 prohibited filling of the post, when the advertisement for the post was issued prior to that resolution.
Final Decision
The petition is allowed. The impugned order dated 23rd October, 2018 is quashed and set aside. The respondents are directed to restore the approval granted to the petitioner and release the salary of the petitioner as permanent Junior Clerk from the date of appointment.
Law Points
- Government Resolution cannot apply retrospectively
- approval once granted cannot be cancelled without valid reason
- principles of natural justice
