High Court
Legal Reasoning
3WP_3076_2022_Jd4Learned Advocate for the petitioner is relying on the decision bythis Court in Pandharinath Shivajirao Jogdand vs. The State of Maharashtraand others in Writ Petition No.9688 of 2022 decided on 22.02.2024, whereinreliance was placed on Datta vs. State of Maharashtra and others [2022 (4)AIR Bom R 131] regarding the absence of powers to Deputy Director ofEducation to interfere with the order passed by the Education Officerwherein approval was already granted. 5The facts which are not in dispute are that the petitioner ishandicapped person, who came to be appointed on the post of Lab Assistanton the basis of advertisement dated 03.01.2015 issued by respondentManagement. The educational qualification of the petitioner is B.A., D.Ed.,D.M.L.T.. The order for his appointment was given on 12.01.2015 and thepetitioner joined his duties on 13.01.2015. His proposal for approvalsubmitted to the office of Education Officer on 20.04.2015. The saidapproval was pending with the office of Education Officer, however, in themeantime, the petitioner completed three years probation period successfully.After the scrutiny of the documents and also the undertaking given by theManagement the approval came to be granted on 28.01.2021. Thereafter theproposal was submitted for the approval for inclusion of the name of thepetitioner in Shalarth Pranali and it was recommended by Education Officer. 4WP_3076_2022_JdRespondent No.2 by letter dated 08.03.2021 informed respondent No.5 tocomply with the deficiencies. Accordingly, respondent No.5 has compliedwith the deficiencies by letter dated 05.05.2021, 21.05.2021 and 11.08.2021.Respondent No.2 gave hearing to all the concerned, but ultimatelyrespondent No.2 by impugned order 06.01.2022 refused to include the nameof the petitioner in the Shalarth Pranali. It was then contended that as perthe roaster there is backlog of one post of Other Backward Class and theappointment of the petitioner is from open category and the open categorypost is not vacant, therefore, the said proposal cannot be allowed. 6The petitioner contends that the Management had explained thatthough there was vacancy from S.T. class, an undertaking was given by theManagement that it would be filled when another employee viz. Gajanan Ukewould retire from May, 2022. The objection, therefore, taken is not properand when the appointment of the petitioner is approved by the EducationOfficer, the same point cannot be gone into by respondent No.2 when theproposal for inclusion of name of petitioner in Shalarth Pranali is before him.7Per contra, the learned AGP strongly objected on the ground thatwhen there was no post vacant available from open category; yet, thepetitioner came to be appointed without following the due procedure, 5WP_3076_2022_Jdespecially getting the roaster verified, then the petitioner cannot seek the writof mandamus. 8At the outset, it is to be noted that the petitioner came to beappointed in 2015. The staffing pattern/Sanch Manyata for the said year2015-16 would show that there is one post of Lab Assistant. Further, itappears that the earlier Lab Assistant Mr. Vyankatesh Alladwad stood retiredon 31.10.2014. The copy of the resolution passed in school Committee ofrespondent No.5 would show that proposal was sent to Education Officer,Zilla Parishad, Nanded on 20.11.2014 for the appointment of Lab Assistantand then the advertisement was given in the daily newspaper dated03.01.2015. Interviews came to be held on 10.01.2015, wherein the presentpetitioner came to be selected. Now, it is to be noted that the said post is asingle post. In the impugned order respondent No.2 has not come with acase that for the single post also there is a reservation. In fact, he is the sameOfficer (Dr. Ganpat More, Deputy Director of Education, Latur Division,Latur), who had given letter dated 08.03.2021 to Education Officer(Secondary), Zilla Parishad, Nanded during the same course of inclusion ofthe name of the petitioner in Shalarth Pranali that upon the perusal of theproposal there is vacancy of one post of S.T. category. Now, in the impugnedorder he says that one post from Other Backward Class as per roaster is the 6WP_3076_2022_Jdbacklog. That means, the same Officer named above is in confusion or notsure as to from which category and for which post the reservation wasapplicable and backlog is there. Further, it appears that respondent No.2 hadnot taken into consideration the various Government Resolutions which areapplicable to a handicapped candidate. Even if the said single post may notbe reserved post; yet, if a person who is handicapped is appointed, then thatshould have been a welcoming step. 9Another important point to be noted is that a communicationdated 20.11.2014 was made by respondent No.5 to the Education Officerabout the intention of Management to fill up the said vacant post. Perusal ofthe said letter dated 20.11.2014 would clearly show that it was so informedto Education Officer (Secondary) that the post has become vacant and ifthere are surplus candidates for the post of Lab Assistant, then they may beaccommodated with respondent No.5 before 01.12.2014 and if no candidateis sent before 01.12.2014, then respondent No.5 would be at liberty to givethe advertisement. When this communication dated 20.11.2014 is notresponded by the Education Officer (Secondary) – respondent No.3, then theadvertisement and the selection of the petitioner will have to be taken as – ‘asper the procedure’. 7WP_3076_2022_Jd10Respondent No.3 approved the appointment of the petitioner byorder dated 28.01.2021. Respondent No.3 was duty bound to consider allthe requirements regarding the procedure for appointment that was adopted,roaster, staffing pattern etc.. Unless it is proved that respondent No.3 hadnot resorted to the procedure prescribed for him while granting the approval,respondent No.2 cannot sit as an appellate authority and then take objectionin respect of backlog and appointment of the petitioner from the opencategory; as hurdle. Respondent No.2 was, in fact, required to consider whiledealing with procedure of inclusion of the name of the employee in ShalarthPranali that the appointment is approved and there are no mala fides in theappointment. Relying on the decision in Datta (supra) in PandharinathShivajirao Jogdand (supra), therefore, this Court has concluded that theDeputy Director of Education has no power to interfere with the order passedby the Education Officer granting the approval to the appointment of thepetitioner and further held that the appointment was not in compliance withthe provisions of law. In Datta (supra) even additional point was consideredregarding transfer of the employee from unaided division to aided division.It was further held that unless there are allegations of fraud or manipulationagainst the petitioner or against the Management, the Deputy Director ofEducation cannot reject the proposal for entering the name of the saidemployee in the Shalarth Pranali. Therefore, taking into consideration the 8WP_3076_2022_Jdfacts of this case, the impugned order deserves to be set aside as everyprocedure is properly complied with in respect of the appointment of thepetitioner and, therefore, he should get the salary. Hence, following order. ORDER1The Writ Petition stands allowed. 2The impugned order dated 06.01.2022 passed by respondentNo.2 – Deputy Director of Education, Latur Division, Latur is hereby quashedand set aside. 3Respondent No.2 shall include the name of the petitioner inShalarth Pranali as per the proposal submitted by respondent No.5, within aperiod of four weeks, and he should issue directions to release the salary ofthe petitioner by ascertaining the period from when it becomes due. 4Respondent No.3 to act in view of the directions to be given byrespondent No.2 thereafter. 5Rule is made absolute in the above terms. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD922 WRIT PETITION NO.3076 OF 2022Shrinivas Rajabhau Gadkar,Age 32 yrs., Occ. Service as Lab Assistant,R/o Lokmitra Nagar, Nanded,Tq. & Dist. Nanded. … Petitioner… Versus …1The State of MaharashtraThrough it’s Secretary,Education Department,Mantralaya, Mumbai – 32. 2Deputy Director of Education,Latur Division, Latur. 3The Education Officer (Secondary),Zilla Parishad, Nanded. 4Janta Shikshan Prasarak Mandal,Umardari, Tq. Mukhed, Dist. Nanded.Through it’s President/Secretary. 5Narsinha Vidya Mandir,Secondary and Higher Secondary School,Mahaveer Society, Nanded,Tq. & Dist. Nanded. Through it’s Head Master. … Respondents...Mr. V.S. Panpatte, Advocate for petitionerMr. P.S. Patil, AGP for respondent Nos.1 to 3 2WP_3076_2022_JdMr. R.C. Bramhankar, Advocate h/f Mr. B.P. Gonare, Advocate for respondentNo.4Respondent No.5 – Served....CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE :04th APRIL, 2024JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2The petitioner challenges order dated 06.01.2022 passed byrespondent No.2 – The Deputy Director of Education, Latur Division, Latur,thereby rejecting the proposal to include the name of the petitioner inShalarth Pranali and pay the arrears as well as salary of the petitioner witheffect from 13.01.2015. 3Heard learned Advocate Mr. V.S. Panpatte for the petitioner,learned AGP Mr. P.S. Patil for respondent Nos.1 to 3 and learned Advocate Mr.R.C. Bramhankar holding for learned Advocate Mr. B.P. Gonare forrespondent No.4.