Dhananjay Hanmant Nargunde v. The Social Welfare Officer, Category-A, Zilla Parishad, Sangli & Ors.

Mr. S.A. Sawant for the petitioner. Mr. G.M. Savagave for respondent 3. Mr. N.P. Deshpande, A.G.P. for the State. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATED : FEBRUARY 04, 2008. P.C.:-

1. The petitioner is a qualified special teacher, who has been appointed by the Society for Rehabilitation of the Handicapped conducted by respondent 3 herein on 28/6/2005. Admittedly, the petitioner belongs to Nomadic Tribe (for short, “N.T.”) category. Respondent 3 has sent a proposal to respondent 1 for approval of AJN 2 the petitioner's post. The said proposal is pending till date. He is aggrieved by letter dated 26/6/2006 issued by respondent 1 informing him that as per the judgment delivered by the Aurangabad Bench of this court, the candidates whose names are in the waiting list will have to be appointed to the post of special teachers in the schools for handicapped. Therefore, unless respondent 2 gives no objection, the petitioner cannot be appointed. The letter further informs the petitioner that his appointment has not been made by respondent 3 as per the rules and, therefore, approval cannot be granted to him by respondent 1.

2. Our attention is drawn by learned counsel for the petitioner to order dated 9/9/2004 passed by this court in Writ Petition No.6728 of 2004 and connected writ petitions. The petitioners therein are at present working in the school conducted by respondent 3 in the posts reserved for N.T. category. It appears that the petitioners therein had filed this petition seeking approval of the Government for appointment to the posts where they were working as special teachers. This court passed the following order : AJN 3 “2. It is ordered that the respondent no.3 and 4, as per the sanction orders given to the petitioners and particularly as per Condition No.14 thereof, should see that two posts of Scheduled Tribes and 1 post of V.J./N.T. category are filled by following the procedure in accordance with law. The Respondent no.3 and 4, should publish an advertisement in the widely circulated newspapers viz. Kesari and Pudhari for filling in those three posts, i.e. 2 posts of Scheduled Tribes and 1 posts of V.J./N.T. categories, on which posts three petitioners have apparently been given appointments.

3. It is, therefore, ordered that steps to that effect, as indicated above, should be taken by the respondent no.3 and 4 for filling in these three posts belonging to particular backward classes. Along with the advertisement, as per the 4. relevant Government Resolution, the Respondent Nos.3 and 4 should also call for the lists of S.T. and V.J./N.T. candidates from the concerned authorities, i.e. the Employment Exchange Office and the Project Officer of the Tribal Welfare Department, for the purpose of appointments to these posts. The petitioners shall be allowed to continue 5. in their posts till the duly selected reserved caste category is available and they shall be paid their salary as per the rules.

6. Writ Petition accordingly stands disposed off with no orders as to costs.” AJN 4

3. Learned counsel for the petitioner relied upon the judgment of the Supreme Court in State of Haryana & Ors. v. Piara Singh & Ors., (1992) 4 SCC 118, where it is observed that an ad-hoc or temporary employee should not be replaced by another ad-hoc or temporary employee; he must be replaced only by a regularly selected employee to avoid arbitrary action on the part of the appointing authority. He submitted that in the light of above order of this court and the observations of the Supreme Court in Piara Singh' s case (supra), and the fact that the petitioner has been appointed after following the due procedure and he belongs to N.T. category, his appointment must be approved.

4. We are informed that thereafter as directed by this court, steps were taken by respondent 3. Advertisement was published in widely circulated newspapers and the present petitioner was appointed to the post of special teacher on 28/2/2005. It is clear from paragraph 5 of the said order dated 9/9/2004 that the petitioners therein were to be continued in their posts only till the AJN 5 duly selected reserved caste category candidates are available. Judgment of the Aurangabad Bench of this court dated 24/6/2004 in Writ Petition No.43 of 2004 to which reference is made in the impugned letter dated 26/6/2006 states that after closure of Deaf and Dumb School since as per rule 63(1) of the standard code applicable to it, the service conditions provided in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and rules made thereunder are applicable to it, a list of retrenched employees has to be prepared and absorption of the petitioners therein should be considered on the basis of seniority of the retrenched employees in the list. Mr. Deshpande, learned A.G.P. Appearing for respondents 1 and 2 made a statement on instructions from Mr. A.S. Pawar, Inspector Samaj, Kalyan, that no N.T. candidate is available in the seniority list. In the circumstances, prima facie, it appears to us that approval can be granted to the petitioner's appointment. However, the petitioners in Writ Petition No.6728 of 2004 are not before us. We, therefore, direct respondent 3 to take steps in the light of order dated 9/9/2004 passed in Writ Petition No.6728 of 2004 after giving AJN 6 hearing to the petitioners in Writ Petition No.6728 of 2004 and the connected writ petitions. Needless to say that after the hearing is given, respondent 3 will submit necessary proposal to respondent 1 as regards approval for the petitioner's post and respondent 1 shall take necessary action thereon. Needless to say that since the petitioner is working from 28/6/2005, respondent 1 shall consider the petitioner's request for grant of salary in accordance with law. The petition is disposed of. [SMT. RANJANA DESAI, J.] [SMT. ROSHAN DALVI, J.]