High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.562 OF 20211Pradnya Niketan Shikshan Sanstha,Deglur, Dist. Nanded. Through it’s Secretary,Rajesh Madhavrao Lonikar,Age 46 yrs., Occ. Agri.,R/o Udgir, Tq. Udgir, Dist. Latur. 2Prabudha Dattatray Gaikwad,Age 35 yrs., Occ. Teacher,R/o Udgir, Tq. Udgir, Dist. Latur. 3Sau. Amrapali Rajesh Lonikar,Age 33 yrs., Occ. Special Teacher,R/o Udgir, Tq. Udgir,Dist. Latur. … Petitioners… Versus …1The State of Maharashtra,Through Secretary,Social Justice and Special AssistanceDepartment,Mantralaya, Mumbai. 2The Commissioner,Handicap Social Welfare,Maharashtra State,3, Church Road, Sadhu Vaswani Chowk, Pune. 3Regional Deputy Commissioner,Social Welfare Department,Latur Division, Gul Market, Latur,Tq. & Dist. Latur. 2WP_562_2021_Jd4District Social Welfare Officer,Zilla Parishad, Latur. … Respondents...Mr. V.D. Salunke, Advocate for petitionersMr. N.S. Tekale, AGP for respondent Nos.1 to 3Mr. S.S. Manale, Advocate for respondent No.4...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.RESERVED ON :21st FEBRUARY, 2024PRONOUNCED ON :07th MARCH, 2024JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2The petitioners challenged the impugned order dated01/07.10.2020 passed by respondent No.3, thereby refusing to grant DCPSaccount to petitioner Nos.2 and 3 and consequential prayer to direct therespondents to pay their due salary since the date of their appointments. 3Petitioner No.1 is a registered Trust which runs schools in rural
Legal Reasoning
3WP_562_2021_Jdareas for physically handicapped, mentally retarded and deaf and dumbstudents. Petitioner Nos.2 and 3 came to be appointed after adopting dueprocedure. It is contended that the Government granted permission to startthe school in the year 1989 and the school is getting grants since 1992.Initially the permission was granted to 45 residential students and 15 nonresidential students, thereby in all 60 students. In 2015 one of the ArtTeachers expired and in 2017 one Special Teacher got retired. The fact ofvacancy was communicated to respondent No.4 and permission was soughtto fill up the vacancy by advertisement. Accordingly, the advertisement wasissued. Petitioner No.2 was selected and appointed on the post of ArtTeacher by order dated 04.02.2015 and petitioner No.3 was selected andappointed as a Special Teacher by order dated 14.07.2017. The petitionershad applied for No Objection to respondent No.2 Commissioner to fill up thesaid posts in due course and accordingly, the No Objection has been given byrespondent No.2 on 24.11.2017. Since the date of appointment petitionerNos.2 and 3 are continuously working in the school at Udgir. RespondentNo.4 has given approval to their services by order dated 31.03.2018. Anapplication was given to respondent No.4 requesting him to grant accountnumber of DCPS to petitioner Nos.2 and 3. In the meantime, respondentNo.3 by order dated 24.07.2015 directed petitioner No.1 to appoint one Smt.Shobha Pandharinath Shinde as Art Teacher on compassionate ground, 4WP_562_2021_Jdthough she was age barred, in the said school, whereas one Lahu Sonkamblewas claiming appointment on the post of Art Teacher. The petitioner No.1institution challenged the said order dated 24.07.2015 by filing writ petitionbefore this Court bearing Writ Petition No.6007 of 2015. By a commonJudgment on 05.12.2016 it was held that the order of appointment in favourof Smt. Shobha Shinde was illegal. That order was set aside and the WritPetition No.10514 of 2015 filed by Lahu Sonkamble came to be dismissed.Petitioner Nos.2 and 3 have right to get DCPS account and in absence of thesame they are not getting salary. Therefore, institution gave letters, however,no action was taken. Again a representation was made and the reminder wassent. But the said proposal came to be rejected by the impugned order.Hence, this petition. 4Affidavit-in-reply on behalf of respondent Nos.1 to 4 has beenfiled by Mr. Sunil Nagesh Khamitkar, the District Social Welfare Officer, ZillaParishad, Latur. According to him, the appointment of petitioner Nos.2 and 3is illegal and, therefore, DCPS account number cannot be given to them. Are-joinder has been filed by the petitioner. It is said that the appointment ofpetitioner No.3 is as per roaster i.e. from the reserved category. Reliance wasplaced on the decision in Umed Pariwar vs. The Statement of Maharashtraand others, Public Interest Litigation No.188 of 2010 before the Principal 5WP_562_2021_JdSeat decided on 05.03.2013, which has then culminated in the GovernmentResolution. 5Heard learned Advocate Mr. V.D. Salunke for petitioners, learnedAGP Mr. N.S. Tekale for respondent Nos.1 to 3 and learned Advocate Mr. S.S.Manale for respondent No.4. 6It will not be out of place to mention here that during thependency of the present petition respondent No.2 has issued an order dated26.12.2023 in respect of petitioner No.3 stating that she has been given DCPSaccount number. Thereafter, again a letter is given by respondent No.3 torespondent No.4 on 20.02.2024 reiterating that DCPS account number hasbeen given to petitioner No.3, but as regards petitioner No.2 is concerned, itis said that he turns out to be the surplus teacher. According to GovernmentResolution dated 18.08.2004 sanctioned post for Art Teacher is only one for25 students. The intake of the school was 60 and, therefore, for 50 studentsthere should be two Art Teachers, thereby he turns out to be the extraTeacher and, therefore, DCPS account number cannot be given to him. 7As aforesaid, as regards petitioner No.3 is concerned, thepurpose of the petition is served. Now, the question is only in respect ofpetitioner No.2. The intake capacity of the school is 60. For 50 students as 6WP_562_2021_Jdper the said Government Resolution dated 18.04.2004, permissible numberof Art Teacher would be two. However, here, taking into consideration 10more students the next category would appear and there should be one moresanctioned post for Art Teacher. In fact, if we consider the staffing patterngranted in the year 1995 while admitting 60 students posts of three ArtTeachers were permitted. There was no basis for the observations in orderdated 20.02.2024 that the permissible limit is only two. It appears thatrespondent No.3 had not considered the staffing pattern granted in the year1995 itself to the petitioners. 8When petitioner No.2 came to be appointed by order dated04.02.2015, it is the categorical statement on behalf of petitioner No.1 thatcommunication was given to respondent No.4 permitting them to fill up thevacant post. Respondent No.4 has approved the services of respondent No.2as well as respondent No.3 by order dated 31.03.2018. Perusal of thoseorders would definitely show that he had considered the staffing patternbefore issuing those orders. Therefore, when a competent authority hadcome to the conclusion that the appointment of petitioner No.2 was properi.e. by adopting proper procedure, then at the time of granting DCPS accountnumber respondent No.3 could not have gone to the extent to scrutinizewhether the order passed by respondent No.4 was correct or not. Since the 7WP_562_2021_Jdservices of petitioner No.2 were already approved, it was the act of onlygranting DCPS account number. Almost on the similar facts when permissionis granted and DCPS account number is given to petitioner No.3, there was infact no reason for respondent No.3 to reject the proposal. 9For the aforesaid reasons, the writ petition deserves to beallowed. Hence, following order. ORDER1The Writ Petition stands allowed. 2The impugned order dated 01/07.10.2020 passed by respondentNo.3 as well as the order passed on 20.02.2024 by respondent No.3 standquashed and set aside to the extent of petitioner No.2. 3Respondent Nos.2 and 3 are directed to grant DCPS accountnumber to petitioner No.2 within a period of 15 days from today and to takefurther steps to pay his due salary as per law, within a period of one monthfrom the date of granting DCPS account number. 4Rule is made absolute in the above terms. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd