High Court
Legal Reasoning
WP 1961 1962 15.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1961 OF 2015Ashok s/o Gundappa Badihaveli,Age 39 years, Occ. Service as Art Teacherin Swami Ramanand Tirth ResidentialSchool for Deaf and Dumb, AuradShahajani, r/o. Aurad Shahajani,Tq. Nilanga, Dist. Latur.…PetitionerVERSUS1)The State of MaharashtraThrough its Secretary,Social Justice and Special AssistanceDepartment, Mantralaya Mumbai-32.2)The Commissioner for Welfare ofHandicapped, Maharashtra State,3, Church Road, Pune-1.3)Deputy Commissioner of Social WelfareLatur Region, Latur.4)The Social Welfare Officer Group-A,Zilla Parishad, Latur.5)Chandrasagar Bahu-UddeshiyaSevabhavi Sanshta, AuradShahajani, Tq. Nilanga, Dist.Latur, Through its Secretary.6)Swami Ramanand Tirth ResidentialSchool for Deaf and Dumb, AuradShahajani, Tq. Nilanga, Dist. LaturThrough its Headmaster.7)Vidyabhushan Yuvak Mandal,Buland Nagar, Udgir,Through its Secretary,Sanjay D. Mule, Age 60 years,Occ. Service, R/o. Nai AbadiUdgir, Tq. Udgir, Dist. Latur…Respondents …1/8 WP 1961 1962 15.odtWITHWRIT PETITION NO. 1962 OF 2015Nandkumar s/o Gunderao Bhande,Age 36 years, Occ. Service as ArtTeacher in Indira Gandhi ResidentialSchool for Handicapped, Aurad Shahajani,R/o. Aurad Shahajani, Tq. Nilanga,Dist. Latur.…PetitionerVERSUS1)The State of MaharashtraThrough its Secretary,Social Justice and Special AssistanceDepartment, Mantralaya Mumbai-32.2)The Commissioner for Welfare ofHandicapped, Maharashtra State,3, Church Road, Pune-1.3)Deputy Commissioner of Social WelfareLatur Region, Latur.4)The Social Welfare Officer Group-A,Zilla Parishad, Latur.5)Chandrasagar Bahu-UddeshiyaSevabhavi Sanshta, AuradShahajani, Tq. Nilanga, Dist.Latur, Through its Secretary.6)Indira Gandhi Residential Schoolfor Handicapped, Aurad Shahajani,Tq. Nilanga, Dist. Latur, throughits Headmaster.7)Vidyabhushan Yuvak Mandal,Buland Nagar, Udgir,Through its Secretary,Sanjay D. Mule, Age 60 years,Occ. Service, R/o. Nai AbadiUdgir, Tq. Udgir, Dist. Latur…Respondents…2/8
Legal Reasoning
WP 1961 1962 15.odtAdvocate for Petitioners : Mr. K.P. Rodge h/f Mr. P.G. RodgeA.G.P. for Respondent nos. 1 to 3 : Mr. K.N. LokhandeAdvocate for Respondent no. 4 : Mr. P.R.TandaleAdvocate for Respondent no. 5 : Mr. V.D.GunaleCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON PRONOUNCED ON :: 21.06.2024 08.07.2024ORDER : (PER : MANGESH S. PATIL, J.)These are identical matters with identical reliefs. The petitioners havebeen serving as Art Teachers, initially appointed in the respondent no.6residential school which was being run by respondent no. 5-EducationSociety on non grant basis but was subsequently started receiving grant inaid from September 2003. Later on the school was transferred and is nowbeing run by respondent no. 7-management.2.In order to avoid repetition, with the consent of both sides, thematters are heard finally at the stage of admission.3.Rule. Rule is made returnable forthwith. Learned A.G.P. waivedservice for respondent nos. 1 to 3. Learned advocate Mr. Tandale waivedservice for respondent no. 4. Learned advocate Mr. Gunale waived servicefor respondent no. 5.4.Apparently there has been no dispute about the fact that thepetitioners were appointed by respondent no. 5-management as ArtTeachers in respondent no. 6 school way back on 01.01.2000 and 1.10.1999respectively. Respondent no. 6 is a residential school for deaf and dumb andwas earlier governed by the Special Code for Handicapped Schools, 1990and Revised Code 1997 (hereinafter ‘Old Code’). There were three posts ofArt Teachers admissible to the school till September 2003. The three3/8 WP 1961 1962 15.odtschools being run by respondent no. 5, apart from respondent no. 6 school,started receiving grants from October 2003.5.The issue that gives rise to these petitions is as regards a new staffingpattern framed by the State Government for schools for handicapped vide agovernment resolution dated 18.08.2004. Under the new policy, only oneart teacher was admissible, and consequently, respondent no. 3 by theimpugned communication dated 30.08.2014 expressly declined thepetitioners request for recognizing their services as art Teachers against theposts which were vacant and admissible under the Old Code and for arrearsof salary from 26.09.2003 to 30.12.2006.6.At the outset, it is necessary to note that the learned advocate for thepetitioners, considering the fact that the claim of the petitioners for arrearsof salary after a long slumber of about eight years being stale and timebarred, expressly on instructions submitted that the petitioners would not beclaiming the arrears but persist with the request to tag their servicesdischarged by them as Art Teachers against the staffing pattern recognizedunder the Old Code since inception.7.The learned advocate for the petitioners would advert our attention tothe correspondence between respondent nos. 1 to 4 inter se. He wouldpoint out that no dispute has ever been raised by any of the respondents thatthe petitioners were appointed under the Old Code. He would also advertour attention to the stand being taken by respondent nos. 2 to 4 in theiraffidavit in reply that till the policy was changed by a government resolutiondated 18.08.2004, the petitioners were appointed against the vacant posts ofArt Teachers admissible according to the Old Code. He would submit that inspite of such change in policy, the authorities are bent upon in applying thegovernment resolution dated 18.08.2004 retrospectively, which they couldnot have done. For the purpose of counting the service, the servicedischarged by the petitioners under the Old Code prior to 18.08.2004 should4/8 WP 1961 1962 15.odthave been considered by the authorities even if, for whatever reasons thepetitioners’ claim for arrears of salaries was not tenable. The authoritiescould not have questioned their initial appointment by applying the staffingpattern which was brought into effect at a later point of time.8.Per contra, the learned A.G.P. would oppose the petitions by referringto the stand of respondent nos. 2 to 4 in their affidavit in reply. He wouldsubmit that no fault can be found with the impugned communication,applying the staffing pattern evolved by the government resolution dated18.08.2004 and the impugned communication dated 30.08.2014.9.The learned advocate Mr. Gunale would support the petitioners.10.A bare look at the impugned communication dated 30.08.2014 woulddemonstrate that even respondent no. 4 has been expressly admitting thefact that the school -respondent No. 6 was being run by respondent no. 5-management and the petitioners have been serving there as art teachers andthe school started receiving grants with effect from 26.09.2003. It alsoexpressly admits the position that according to the Old Code, the staffingpattern provided posts of two art teachers against 40 students. However, byvirtue of the government resolution dated 18.08.2004, it has been broughtdown to one art teacher for 40 students.11.Same is the stand in the affidavit in reply filed on behalf of therespondent nos. 2 to 4.12.This clearly demonstrates that till the government resolution dated18.082.004 was issued there were two posts of art teachers admissibleagainst 40 students. Even the order issued by respondent no. 4 dated08.07.2009 (Exh. ‘J’) mentioned the fact that the petitioners were appointedeven before the government resolution dated 18.08.2004 was passed. Evenin these communications/orders it has been expressly mentioned that thesepetitioners’ initial appointment is of 01.01.2000 and 01.10.19995/8 WP 1961 1962 15.odtrespectively.13.It is equally important to note that subsequent to issuance of thegovernment resolution dated 18.08.2004, by the order dated 20.09.2004,the respondent no. 2 who is the Commissioner for Welfare of Handicapped,issued an order inter alia expressly mentioning in clause 3 that even whilegranting approval to some of the appointments made by respondent no. 5,respondent no. 4 -District Social Welfare Officer should take into account thecriteria of age limit as was provided under the Old Code in respect of suchemployees of respondent no. 6, who were working since prior to18.08.2004. Meaning thereby that respondent nos. 1 to 4 are alive to thefact that respondent no. 5 management has been running respondent no. 6 -school under the Old Code and there could be employees working theresince before 18.08.2004.14.If such is the state of affairs, one fails to understand as to how thestaffing pattern which had come into being with effect from 18.08.2004would regulate the working of respondent no. 6 school. As is indicatedherein above, the impugned communication expressly admits that under theOld Code, two posts of art teachers were admissible. It has also mentionedherein above that even respondent no. 4 – District Social Welfare Officer hasbeen admitting the fact that the petitioners have been working since prior to18.08.2004. It was imperative, therefore, that the staffing pattern under theOld Code ought to have been followed.15.In this regard it is equally important to note that by a communicationdated 04.03.2005 (Exh. ‘G’), respondent no. 2 by a general circularaddressed to the District Social Welfare Officers across the State issuedcertain guidelines regarding granting of approvals to the employees in 113Special Schools, which were bought on grant. In paragraph no. 1 it wasmentioned that the Old Code was brought into effect from 27.08.1997. Theeligibility and qualification criteria in respect of the employees appointed6/8
Decision
WP 1961 1962 15.odtand working under the Old Code should be examined in accordance withthe Old Code of 1997 and it is only to the employees appointed after18.08.2004, their eligibility and qualification should be examined inaccordance with the government resolution dated 18.08.2004. This clearlydemonstrates that respondent nos. 2 to 4 have been alive to the fact that inrespect of the special schools being run under the Old Code, there could beemployees working on non grant basis, and the staffing pattern providedunder the Old Code was not exactly the same under the governmentresolution dated 18.08.2004.16.If such is the anomalous position, we have no manner of doubt thatrespondent nos. 1 to 4 could not have applied the new staffing pattern whileconsidering the issue regarding approvals to be granted to the employeeslike the petitioners, who were appointed prior thereto, when the staffingpattern was different. This being the precise issue, the impugnedcommunication refusing to recognize the earlier service of the petitioners,which they had rendered while the respondent no. 6 school was notreceiving grant and applying the government resolution dated 18.08.2004 isgrossly unjustified. It is the basic tenet of a service jurisprudence thatconditions of service cannot be altered to the disadvantage of an employee.This is what has happened, which needs to be set right.17.As has been observed earlier, as far as arrears of salaries is concerned,the petitioners have withdrawn the plea. The impugned communicationdated 30.08.2014 being grossly illegal needs to be set aside with a directionto respondent no. 4 to reconsider the individual cases of the petitioners forgrant of approval from their initial date of appointment by applying thestaffing pattern as was in existence prior to 18.08.2004.18.The Writ Petitions are partly allowed. The impugned communicationdated 30.08.2014 is quashed and set aside. Respondent no. 4 shall pass afresh order, in the light of the above observations for granting approval to7/8 WP 1961 1962 15.odtthe petitioners’ appointment from the initial date of their appointment, asexpeditiously as possible and in any case within six weeks.19.It is made clear that in case the respondent no. 4 requires somepermission to be obtained from respondent nos. 2 and/or 3, he may do soand the latter shall be obliged to grant permission/pass appropriate order inthe light of above observations.20.Rule is made absolute in above terms. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-8/8