High Court
Facts
wp-4320-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.4320 OF 20241.Nanasaheb Hilal BhosaleAge: 58 years, Occu.: Retired (Peon),R/o. Secondary Ashram School,Talban Tanda,Tal. Bhadgaon, Dist. Jalgaon.2.Harshal Vitthal Patil,Age: 39 years, Occu.: Service (Jr. Clerk),R/o. Secondary Ashram School,Talban Tanda,Tal. Bhadgaon, Dist. Jalgaon.3.Nilesh Prabhkar Bagul,Age: 40 years, Occu.: Service (Peon),R/o. Secondary Ashram School,Talban Tanda,Tal. Bhadgaon, Dist. Jalgaon.4.Madhuri Hansraj Patil,Age: 39 years, Occu.: Service (Asst. Cook)R/o. Secondary Ashram School,Talban Tanda,Tal. Bhadgaon, Dist. Jalgaon.5.Suvarna Madhavrao PatilAge: 36 years, Occu.: Service (Cook),R/o. Secondary Ashram School,Talban Tanda,Tal. Bhadgaon, Dist. Jalgaon.6.Poonam Sambhaji PatilAge: 43 years, Occu.: Service (Lab Asst.),R/o. Secondary Ashram School,Talban Tanda,Tal. Bhadgaon, Dist. Jalgaon.. PETITIONERSVERSUS1.The State of MaharashtraThrough, Principal Secretary,[1]
Legal Reasoning
wp-4320-2024.odtNo.5. So also, the petitioners state that respondent No.5 is the formalparty. 4.The fact which is not in dispute that the petitioners are theemployee of respondent No.5 Aided School as a non teaching stafffalling in ‘C’ and ‘D’ category.5.Learned Advocate for the petitioners has relied on the decisionof this Court at Principal Seat in Writ Petition No.2358 of 2013 andcompanion matters (Kiran Namdeo Shinde and others Vs. State ofMaharashtra, Through Secretary, Social Welfare Department andothers, decided on 21.09.2013), so also the decision of this Court inWrit Petition No.2690 of 2022 (Vakil Sahebrao Jadhav (Died), Throughhis L.Rs and others Vs. State of Maharashtra and others, decided on23.11.2022) and the decision of this Court in Writ Petition No.13234 of2022 (Vitthal Dagadu Chavhan Vs. State of Maharashtra, Through itsSecretary and others, decided on 22.12.2022), wherein it was heldthat “the ACPS scheme is made applicable to the Non Teaching Staff ofgroup ‘C’ and ‘D’ of the aided private schools in the State under theGovernment Resolution dated 30.04.1998, as modified from time totime shall be available to the non teaching staff of the same categoryin the private aided Ashram Schools.” The learned Advocate for the petitioners submits that in spite ofthese clear pronouncements of this Court, respondent No.4 by[4] wp-4320-2024.odtimpugned communications/orders dated 19.03.2024 and 28.03.2024says that the scheme is not applicable to the Ashram Schools forV.J.N.T. Therefore, the said impugned order deserves to be set aside. 6.Learned AGP further points out that since necessary documentswere not forwarded i.e. the copy of the confidential reports and dateon the certificate, it appears that the said proposal has been returnedback.7.The impugned orders appear to have been passed on twocounts. One that the concerned officer was under the assumption thatthere is no Government Resolution or policy to make the A.C.P.S.Scheme applicable to non teaching employees of Ashram Schools ofV.J.N.T. and the second ground is that certain documents were notforwarded.8.It appears that the first ground is in ignorance of the judgmentpassed by this Court in Kiran Namdeo Shinde (Supra). It cannot besaid that the Ashram schools referred in the said decision wasrestricted to one category. In fact, it is in respect of the AshramSchools, which are aided and run by the private institutions. Inparagraph No.21 of the decision in Kiran Namdeo Shinde (Supra),following order is passed :-“21.Hence, we dispose of the petitions, by passing thefollowing order :-[5] wp-4320-2024.odt(i) We declare that the benefit of ACPS, which isapplicable to the employees of Group ‘C’ and ‘D’ non-teaching staff of the aided Private Schools in the State underthe Government Resolution dated 30th April, 1998 asmodified from time to time shall be available to the non-teaching staff of the same category in the private aidedAshram Schools;(ii)The appropriate Authority appointed by the StateGovernment shall examine the individual cases of thepetitioners for deciding whether they satisfy the criteria laiddown for availability of the benefit of ACPS to the privateaided Government Schools under the Government Resolutiondated 30th April, 1998 as modified from time to time.(iii)We make it clear that the petitioners will be entitledto the benefit of the said scheme, provided they satisfy theeligibility criteria which is prescribed for the correspondingnon-teaching staff of the private aided Schools;(iv)We grant time of six months to the respondents toscrutinize the cases of the petitioners and to considerwhether they are eligible for the benefit of ACPS;(v)To those petitioners who are found eligible, thebenefit shall be extended, as expeditiously as possible;(vi)Petitions are disposed of on above terms.”9.Thus, it can be seen that a declaration has been given inparagraph No.21 (i) of the said judgment/order, which is in rem andthe other clauses were in respect of relief granted in personam i.e.restricted to or connected to the petitioners in the said petitions. Thesame decision has been then followed in Vakil Sahebrao Jadhav[6] wp-4320-2024.odt(Supra) and Vitthal Dagadu Chavan (Supra). Even in Kiran NamdeoShinde (Supra) it is further observed by this Court that only on thebasis of purported ground of financial crunch, the approach of theState Government of discriminating between the non teaching staff ofaided Ashram Schools and non teaching staff of aided Private Schoolsis unjustified. Denial of benefit of A.C.P.S. amounts to discrimination,which is hit by the rights guaranteed under Articles 14 and 16 of theConstitution of India. The parity was considered. Therefore, theimpugned orders cannot be sustained on the ground that there is nopolicy with the State Government to grant A.C.P.S. to the non teachingstaff of the aided Private Ashram schools for VJNT.10.As regards the observations in respect of shortfall of documents,certainly the said authority has right to verify the proposal, but if thereare shortfalls, then the said authority cannot reject the proposal, but itshould get the necessary documents from the school/managementand, therefore, the rejection on that ground is also not justified whenrespondent No.4 had failed to exercise powers and calling uponrespondent No.5 to cure the defects by getting the documents.11.Another fact to be noted is that if respondent No.4 was of theopinion that there is no such policy of the Government to grantA.C.P.S. to the petitioners, then the proposal could have been deniedonly on that count. The second ground ought not to have been[7]
Arguments
wp-4320-2024.odtOther Backward Bahujan WelfareDepartment, Mantralaya,Mumbai-32.2.The Director of Other BackwardBahujan Welfare Department, MaharashtraState, Pune. 3.Regional Deputy Commissioner,Other Backward Bahujan WelfareDepartment Nasik, Region Nasik.4.Assistant Commissioner Other BackwardBahujan Welfare Department, Jalgaon5.Head Master,Secondary Ashram School,Talban Tanda, Tal. Bhadgaon,Dist. Jalgaon.. RESPONDENTS…Mr. Chandrakant P. Patil h/f Mr. Paresh B. Patil (Borse), Advocate forthe petitioners.Mrs. R. P. Gour, AGP for respondent Nos.1 to 4 – State.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : 25th APRIL, 2024.JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Rule. Rule made returnable forthwith. Heard learned Advocatesfor the appearing parties finally by consent.2.Present petition has been filed by the petitioners for followingreliefs :-“B)By appropriate Writ in the nature of Certiorari orany other Writ of like nature or by appropriate orders[2] wp-4320-2024.odtand directions, impugned communication letters dated19.03.2023 and 28.03.2024 issued by the respondentNo.4 authority may kindly be quashed and set aside.C)By appropriate Writ in the nature of Mandamus orany other Writ of like nature or by appropriate ordersand directions, the respondents may kindly be directedto declare that, the benefits of Assured Career ProgressScheme (in short ACPS), which is applicable to theemployees of Group ‘C’ and ‘D’ non-teaching staff of theaided Private School in the State, under theGovernment Resolution dated 30th April, 1998, asmodified from the time to time applicable to the non-teaching staff of the same category in private aidedSchools.D)By appropriate Writ of like nature or byappropriate orders and directions, the respondents maykindly be directed to grant the benefits of Time BoundPromotional Pay Scales to the Petitioners post withinperiod of two months under Assured Career ProgressScheme which is applicable to the employees of Group‘C’ and ‘D’ non-teaching staff of the VJNT aided PrivateSchools under Government Resolution dated 30th April,1998, on the ground of the petitioners have beencompleted 12 years qualifying services, from the date oftheir initial appointment.”3.Learned AGP waives notice for respondent Nos.1 to 4. In viewof the fact that the benefit of time bound promotion as per theAssured Career Progress Scheme (A.C.P.S.) has been rejected byrespondent No.4, there is no necessity to issue notice to respondent[3]
Decision
wp-4320-2024.odtconsidered at all. That means, the scrutiny ought not to have beendone. 12.In view of the above-said facts, we allow the writ petition withfollowing directions :-I)Respondent authorities would be at liberty toexamine the case of the petitioners for verifying as to whetherthe petitioners satisfy the criteria laid down for claiming theA.C.P.S. benefits, after completing 12 years in the private/aidedAshram schools in the light of Government Resolution dated30.04.1998, which has been modified by succeedingGovernment Resolutions from time to time. II)The verification should be done within a period ofone month from today. After concluding the exercise ofverification, the amounts based on entitlement of the petitionerswould be paid within a period of six months from taking decisionupon such verification.III)In the event the authority arrives at a conclusion that thepetitioners are not entitled, then a reasoned order would bepassed and the same would be communicated to the petitionerswithin a period of 15 days from the date of the decision.[8] wp-4320-2024.odtIV)Thereafter, the petitioners would be at liberty to challengethe said decision by resorting to the remedy permissible underlaw.13.Rule is made absolute in the above terms. [ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]