High Court · 2024
Legal Reasoning
1 933.WP-46-2023.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No. 46 / 2023Dharmendra Rajesh Mahajan (Mali)Age : 24 years, Occu. Service as Peon. At Swami Vivekanand High School,Shivajinagar, Maliwada, Nandurbar,Tq. and Dist. Nandurbar. ...PetitionerVersus1.State of MaharashtraThrough its Secretary, ’School Education Department,Mantralaya, Mumbai.2.The Education Officer (Secondary),Zilla Parishad, Nandurbar.3.The Superintendent,Pay & Provident Fund Unit (Secondary),Nandurbar.4.Mahatma Phule Shikshan PrasarakMandal, Shivajinagar, Maliwada,Nandurbar, Tq. and Dist. NandurbarThrough its President/ Secretary.5.Swami Vivekanand High School,Shivajinagar, Maliwada,Nandurbar, Tq. and Dist. NandurbarThrough its Head Master. ..Respondents
Legal Reasoning
2 933.WP-46-2023.doc _ _ _Advocate for the Petitioner : Mr. Panpatte V.S. A.G.P. for Respondent Nos. 1 to 3 /State : Mr. D.R. KordeAdvocate for Respondent No.4 and 5 : Mr. S. N. Suryawanshi _ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. DATE : 14 JUNE 2024 ORAL JUDGMENT [ Per Shailesh P. Brahme, J. ] :.Rule. Rule is made returnable forthwith. Heardlitigating sides finally.2.Petitioner is challenging a decision taken on09.05.2022 and consequential communication dated15.07.2022 issued by the respondent no.2/Education Officer,thereby rejecting the proposal for approval to theappointment of petitioner on the post of Peon on the basisof compassionate appointment. 3.Undisputedly, petitioners father was rendering’services with the respondent no.4 on the post of peon. Hisservices were approved by the respondent no.2/EducationOfficer. During the course of service he expired on09.09.2014. After his demise, petitioner was appointed bythe respondent no.4/management vide order dated 17.11.2014 3 933.WP-46-2023.doc for a period of three years on probation. However, proposalfor grant of approval was submitted by the management tothe Education Officer belatedly on 19.09.2018. This Courthad to intervene by issuing directions to the respondent/Education Officer to decide the proposal.4.In furtherance of the directions issued by this Court,Education Officer conducted hearing and arrived at adecision on 15.05.2022 holding that the proposal wassubmitted belatedly, there was dispute in the managementand there was ban on recruitment was imposed by theGovernment Resolution dated 02.05.2012 at the time ofappointment of the petitioner. Hence it was rejected by theEducation Officer. By consequential letter dated15.07.2022, decision was communicated to the respondent/Head Master.5.Learned Counsel for the petitioner submits that thepetitioner was appointed after following due procedure oflaw on compassionate ground against a vacant permanentposts. He would further submit that the ban imposed byGovernment Resolution dated 02.05.2012 cannot be madeapplicable to the appointment on the compassionate ground.It is further submitted that petitioners father was’ 4 933.WP-46-2023.doc appointed as a peon and his services were also approved bythe Education Officer.6.Learned Counsel for the petitioner refers to staffingpattern of 06.08.2012 which was for the year 2013 to showthat two posts of peon and one post of Naik were admissible.He relies upon the decision rendered by this Court in thematter of Yogita Shivsing Nikam VS. State of Maharashtraand Others in Writ Petition No.4219/2018; Sayed Asad SyedYusuf Vs. State of Maharashtra in Writ PetitionNo.8933/2018 and Samita Sameer Desai Vs. State ofMaharashtra in Writ Petition No.7507/2016.7.Learned Counsel appearing for the respondent/management supports the claim of the petitioner and adoptsthe submission.8.Per-contra, learned AGP appearing for the respondentnos. 1 to 3 repels the submission of the learned Counsel forthe petitioner. He would refer to affidavit-in-reply. Hesubmits that when the petitioner was appointed, two posts ofpeon and one post of Naik were admissible and later on postof Naik stood lapsed. Presently both the posts of peon areoccupied and for want of vacant post, the Education Officeris justified in rejecting the proposal. 5 933.WP-46-2023.doc 9.We have considered rival submissions of the parties.Petitioners father expired on 09.09.2014 during the’service when he was working as a peon. His services wereapproved by the respondent/Education Officer as peon.Petitioner was appointed vide order dated 17.11.2014.10.We have considered impugned order dated 19.05.2022.The respondent no.2/Education Officer was directed todecide the proposal on its own merits and in accordancewith law and policy. He has not in candid terms consideredthe situation which was prevailing, when the petitioner wasappointed. The staffing pattern and available vacancieshas not been taken into account. Impugned order dated19.05.2022 even does not indicate that post of peon was notavailable. It only refers to filing of proposal belatedly,disputes in the management and ban imposed by GovernmentResolution dated 02.05.2012. 11.We have gone through consequential communicationdated 15.07.2022 addressed by the Education Officer to theHead Master. In the said communication, it is mentionedthat no post is available. The said communication is a fall-out of hearing conducted by him and concluded vide orderdated 19.05.2022. We are of the considered view that theEducation Officer has not considered relevant record. 6 933.WP-46-2023.doc 12.Although it is stated in the affidavit-in-reply thatpost of Naik had lapsed, petitioners father was working as’a peon and immediately after his death petitioner wasappointed on that post. In all possibility, the petitionerhas been appointed against vacancy created due to demise ofhis father. We find that no fact finding exercise isconducted by the Education Officer. In this situation wefind it appropriate to relegate the parties to theEducation Officer for considering the proposal afresh. 13.Though learned Counsel for the petitioner hasadverted our attention to the judgments of this Courtrendered in the matter of Yogita Shivsing Nikam; Sayed AsadSyed Yusuf and Samita Sameer Desai (supra), as theEducation Officer has not taken decision after consideringrelevant material, it would not be appropriate to grant anyabsolute relief in favour of the petitioner on the basis ofjudgment cited by his learned Counsel. The facts andcircumstances in the cited judgments are distinguishable.Here the controversy pertains to availability of vacantpost.14.It is clarified that the Education Officer can takeinto account the judgments upon which reliance is placed bythe petitioner as well as the policy of the Government laid 7 933.WP-46-2023.doc down in communication dated 14.09.2022. It need not bereiterated that the proposal for approval for theappointment of an employee on the compassionate groundcannot be rejected on the ground that there was ban imposedby Government Resolution dated 02.05.2012. For the reasonsstated above, following order is passed :ORDERiWrit Petition is partly allowed.iiOrder dated 19.05.2022 and consequentialcommunication dated 15.07.2022 passed by the respondent/Education Officer are quashed and set aside.iiiThe respondent no.2/Education Officer shall considerthe proposal of the petitioner afresh on its own meritsafter extending opportunity of hearing to him as well asthe management and shall take decision within a period offour week.ivNeedless to state that respondent no.2/EducationOfficer shall take into account the staffing patternrelevant record and law laid down by judgments of HighCourts.vRule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENajeeb..