High Court · 2024
Facts
wp-8040.211 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8040 OF 20211) Lalu s/o Balaji Kangulwar, Age-35 years, Occu:Service as Peon, R/o-Shardanagar, Sagroli, Taluka-Biloli, District-Nanded,2) Nagesh s/o Kamlakar Paware, Age-Major, Occu:Service as Peon, R/o-Sharadnagar, Sagroli, Taluka-Biloli, District-Nanded,3) Sanjay s/o Nagappa Kotnod, Age-Major, Occu:Service as Peon, R/o-Sharadnagar, Sagroli, Taluka-Biloli, District-Nanded. ...PETITIONERS VERSUS 1) The State of Maharashtra, Through its Secretary, School Education Department, Mantralaya, Mumbai-32,2) Deputy Director of Education, Latur Region, Latur,3) The Education Officer (Secondary), Zilla Parishad, Nanded,4) Sanskruti Samvardhan Mandal, Shardanagar, Sangroli, Taluka-Biloli, District-Nanded, Through its Secretary,
Legal Reasoning
wp-8040.217respondent No.3. In spite of specific averments in the Petitionand production of the documents, there is no mention about it orexplanation regarding the same in the affidavit filed on behalf ofrespondent No.3. This Court in Gopal Siddheshwar Akhade andothers vs. State of Maharashtra and others,[MANU/MH/2590/201], and in Tukaram s/o Bharat Dudile andanother vs. the State of Maharashtra and others (Writ PetitionNo.3098 of 2017, decided on 31st January 2024), held that whenthe respondent authorities had not responded to thecommunication made by the management regarding theinformation of the posts becoming vacant and then proceedingahead with the advertisement and appointing persons on thosevacant posts, then such appointments will have to be held asmade as per the procedure. Thus, we find that the appointmentof the petitioners were as against vacant posts.9.Perusal of the impugned orders would show that theproposals are rejected only on the ground that there is staffingpattern fixed by the Government for non-teaching staff. Thisindicates that when respondent No.3 had scrutinized theproposals, he had not found that the appointment of the presentpetitioners was not as per the procedure. In fact, when that wp-8040.218staffing pattern came to be approved for the non-teaching staff,is not clarified in the impugned orders. If it was in existence onthe date the permissions were sought to fill up the posts,respondent No.3 ought to have responded to the same.Respondent Nos. 4 and 5 were demonstrating to respondentNo.3 that the appointments would be as against the vacant postsand the communications were along with the “Bindu Namawali”,then any staffing pattern, which has come subsequently inexistence, cannot be the ground for rejection of the proposals. 10.In the impugned orders, there is no reference to theGovernment Resolution dated 11th December 2020, in specific.Even if for the sake of arguments we take that respondent No.3wanted to indicate the said Government Resolution to beapplicable and therefore, he is rejecting the proposals, yetrespondent No.3 failed to consider that all the threeappointments of the present petitioners were prior to the cominginto force the said Government Resolution dated 11th December2020. Sending proposals for approval after the date of theGovernment Resolution i.e. even after eight years, will notsupport the rejection of the proposals. No doubt, there is delayin sending the proposals, but it was certainly within the powers
Arguments
wp-8040.2125) Shri. Chhatrapati Shivaji High School & Junior College, Shardanagar, Sagroli, Taluka-Biloli, District-Nanded, Through its Head Master. ...RESPONDENTS ... Mr. V.S. Panpatte Advocate for Petitioners. Respondent No.1 served. Mr. S.K. Shirse, A.G.P. for Respondent Nos. 2 and 3. Mr. S.S. Deshmukh Advocate h/f. Mr. B.P. Gonare Advocate for Respondent Nos. 4 and 5. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 4th MARCH 2024DATE OF PRONOUNCING JUDGMENT : 20th MARCH 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent.2.The petitioners are challenging the orders dated 18thJanuary 2021 passed by respondent No.3 rejecting grant ofapproval to their appointments as Peon in respondent No.5institution and then refusing to grant regular pay-scale to them. wp-8040.2133.The petitioners have contended that on account ofretirement of one peon, by name Shri Uskelwar MalkojiPochyabhai on 31st December 2011, further on retirement of oneGangadhar Sambhaji Shinde on 31st October 2012 and then onretirement of one Gangaram Deorao Shinde on 31st January2015, the posts of peon had become vacant. Therefore,respondent Nos. 4 and 5, by making applications from time totime, sought permission from respondent No.3 to fill up thevacant posts by adopting the proper procedure. Respondent No.3had neither responded nor considered those applications byrespondent Nos. 4 and 5. Thereafter respondent Nos. 4 and 5proceeded to issue advertisement in the respective years afterthe respective posts had become vacant and then appointed thepresent petitioners, respectively. Thus, the appointments of thepetitioners were made in clear and vacant posts. Thereafterrespondent Nos. 4 and 5 had submitted the proposals for grantof approval to respondent No.3. Even the reminders were issued,however, by impugned orders dated 18th January 2021, thoseproposals have been rejected on the ground that there is staffingpattern approved in respect of non-teaching staff and therefore,approval cannot be so granted. Hence, the present Petition. wp-8040.2144.Respondent Nos. 4 and 5 i.e. the management and theHead Master, gave affidavit-in-reply through Sambhaji PundlikGaikwad, the Head Master, wherein they are supporting thepetitioners and along with the affidavit-in-reply, documents havebeen also produced to support the contentions.5.On behalf of respondent No.3, one Baliram IrrannaYerpulwar, the Superintendent, Class-II has filed the affidavit-in-reply, wherein it is stated that though the petitioners are statedto be appointed since 2012 and 2015, respectively, yet theirproposal has been submitted belatedly on 28th December 2020i.e. after the lapse of eight years period. As per the GovernmentResolution dated 11th December 2020 in spite of allowing staffingpattern for the non-teaching staff, the allowance for class-IVemployees is made applicable to the private aided school,partially aided school, aided secondary and higher secondaryschool. As per that, it is permitted to give honorarium to theclass-IV posts instead of making regular appointment andtherefore, approval cannot be granted.6.Heard learned Advocate Mr. Panpatte for the petitioners,learned AGP Mr. Shirse for respondent Nos.2 and 3 and learned wp-8040.215Advocate Mr. Deshmukh holding for learned Advocate Mr. Gonarefor Respondent Nos. 4 and 5. Perused the documents.7.Learned Advocate for the petitioners is relying on thedecision in Padmin Sonerao Hande vs. the State of Maharashtraand others (Writ Petition No.5241 of 2021, decided by theDivision Bench of this Court on 11th March 2022), wherein thesubsequent Government Resolution was held to be inadmissibleto be applied to the earlier appointments. Learned Advocate alsorelies on the decision in Dilip Baburao Patil vs. State ofMaharashtra and others (Writ Petition No.3175 of 2020, decidedby the Division Bench of this Court on 30th July 2021), wherein ithas been held that the Government Resolution dated 12thFebruary 2015 cannot be considered for the general ban imposedon the recruitment. Further, the learned Advocate for thepetitioners relied on the Single Bench decision of this Court inElizabeth Benjamin Joseph and another vs. the State ofMaharashtra and another (Writ Petition No. 239 of 2020, decidedon 11th December 2020), wherein also it is said that theGovernment Resolution dated 12th February 2015 is notapplicable to the appointments made prior to that date. wp-8040.2168.Perusal of all the documents which have been produced bythe petitioners as well as respondent Nos. 4 and 5 would clearlyshow that one Uskelwar Malkaji Pochyabhai was about to retireon 31st December 2011 and therefore by communication dated23rd November 2011, respondent Nos.4 and 5 sought permissionfrom respondent No.3 to fill up the said vacancy. Said Uskelwarwas a peon working with respondent No.5. Along with the saidapplication, the staffing pattern / Sanch Manyata was alsoattached. Thereafter one Shinde Gangadhar Sambhaji, peon wasabout to retire on 31st October 2012 and therefore, bycommunication dated 13th September 2012, permission wassought from respondent No.3 – Education Officer to fill up thevacancy by giving an advertisement. Further another peon,namely, Shinde Gangaram Devrao was about to retire on 31stMay 2015 and therefore, by communication dated 15th April 2015permission was sought to fill up the vacancy by giving anadvertisement. All these three communications were received torespondent No.3 and the acknowledgments of the same areappearing on these communications. Along with thesecommunications, the copy of the staffing pattern of therespective year was attached i.e. “Bindu Namawali” and also theseniority-list. It appears that there was no response from
Decision
wp-8040.219of respondent No.3 to call an explanation from respondentNos. 4 and 5 regarding the delay. Straightway rejecting theproposals without calling upon the explanation is unjustified. 11.Further, when respondent No.3 had received theapplications seeking permission to issue advertisement, thenwithout explaining those documents, especially theacknowledgment of those applications in the affidavit-in-reply;respondent No.3 was not justified in taking a ground in theaffidavit-in-reply that the proposals are filed belatedly. Theaffidavit-in-reply would not have been stretched to dug outfresh reasons, which were not part of the impugned orders.12.Under the said circumstance, the Petition deserves to beallowed. Hence the following order:- O R D E R(I)The Writ Petition stands allowed in terms of prayer clauses“B” and “C” to the Writ Petition.(II)The release of the salary of the respective petitioners asPeon, as per their entitlement and thereafter on regular pay- wp-8040.2110scale, as stated in prayer clause “C” to the Petition, should be inphased manner, to be divided between two equal installments ofhaving duration of six months and the first installment would bedue on 15th April 2024.(III)Rule is made absolute in the above terms. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/MAR24