Dilip Bhanudas Shitole v. The Additional Commissioner, Aurangabad & Anr
Case Details
{1} wp1122-19 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1122 OF 2019 Dilip Bhanudas Shitole PETITIONER VERSUS The Additional Commissioner, Aurangabad & Anr. RESPONDENTS Mr. Avinash A. Khande, dvocate for the petitioner Mr. S. N. Kendre, AGP for respondent - State Mr. P. P. More, Advocate for respondent No.2 ....... ....… [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 30 th AUGUST, 2022 ORDER : 1. By this petition, filed under Article 227 of the Constitution
Legal Reasoning
of India, the petitioner has challenged the order dated 28 th May, 2018 passed by the Additional Commissioner in Case No. 2010/DB/Appeal/Cell/73. 2. The petitioner was appointed on compassionate ground, on the post of “Attendant”, by respondent Zilla Parishad on 16th November, 1993. At that time, the compassionate appointment policy was governed by Government Resolution dated 16th October, 1993. It appears that subsequently, the petitioner was promoted on the post of Junior Assistant. {2} wp1122-19 3. The petitioner filed appeal before the Commissioner, under section 14 of the Maharashtra Zilla Parishad Service (Discipline and Appeal) Rules, 1964, claiming promotion on the post of Extension Officer. 4. Respondent Zilla Parishad resisted the appeal filed by the petitioner, by filing a detail say contending that appointment of the petitioner is governed the policy of 1993. Change in the policy is effected vide Government Resolution dated 23rd August, 1996. The appointment order of the petitioner does not contain the condition that due to non availability of posts, the petitioner is appointed on Class “D” post and as soon as class “C” post will be available, the petitioner will be appointed on the said post. The respondent, therefore, requested to dismiss the appeal filed by the petitioner. 5. After hearing the parties, the Commissioner dismissed the appeal filed by the petitioner. This order is challenged by the petitioner, in the present petition. 6. Heard learned advocate for the petitioner, learned advocate for respondent No.2 and the learned Assistant Government Pleader for State. {3} wp1122-19 7. Learned advocate for the petitioner strenuously assailed the impugned order contending that considering the fact that on the date of appointment, the petitioner was possessing requisite qualification for appointment on the post of Class 3 category, but as vacant post was not available, he was appointed in class 4 category. Therefore, as and when class “3” category post was available, the petitioner ought to have been appointed on that post. The promotion granted to the petitioner on the post of Junior Assistant was ignoring his educational qualifications and eligibility, considering which the petitioner ought to have been given promotion on higher post of class “C” category. Further submission is that the petitioner ought to have been given benefit of clause IV of the Government Resolution dated 23rd August, 1996. According to him, one Sachin Maroti Shinde and Sau. R. C. Jagtap who were appointed on class “B” category and though no condition is mentioned in their appointment orders, as required under clause IV of the GR dated 23rd August, 1996, they are promoted on higher posts, however, the petitioner is denied the same. Therefore, the Zilla Parishad has adopted a discriminatory approach towards the petitioner and he is thus victimized. He, therefore, submits that the petition deserves to be allowed and the petitioner deserves promotion on higher post. {4} wp1122-19 8. Learned advocate for the respondent, on the other hand, supported the impugned order by placing reliance on the affidavit in reply and additional affidavit in reply filed by the Zilla Parishad. He submits that Government Resolution dated 23rd August, 1996 cannot be made applicable to the case of the petitioner, as the appointment order of the petitioner does not contain the condition as mentioned in Clause IV of the said GR and, therefore, the petitioner is not entitled for the relief, which he is claiming. He, therefore, submits that there is no substance in the petition and the same deserves to be dismissed. 9. It is not in dispute that the petitioner was appointed on 16th November, 1993 and at that time the policy of compassionate appointment was governed by the Government Resolution dated 16th October, 1993. It is also not in dispute that the change is effected in the earlier policy by Government Resolution dated 23rd August, 1996. Clause IV, of the said Government Resolution dated 23rd August, 1996 reads thus - ß4- xV ßdÞ e/khy inkaoj vuqdaik rRokoj fu;qqDrhlkBh ik= vl.kk&;k deZpk&;kyk inkP;k miyC/krs vHkkoh xV ßMÞ e/khy inkaoj fu;qDrh fnY;kl in miyC/k gksrkp xV ßdÞ e/khy inkoj R;kyk izk/kkU;kus fu;qDrh ns.;kr ;koh- v’kh {5} wp1122-19 fu;qDrh ljGlsok fu;qDrhus Hkj.;kr ;s.kk&;k inkaojhy let.;kr ;koh- ek= xV ßMÞ e/khy inkoj vuqdaik ;kstusvUo;s fu;qDrh ns.;kP;k vkns’kkr rlk Li"V mYys[k dj.;kr ;kok] rls dj.;kr vkys vlsy rjp xV ßdÞ e/khy inkoj fu;qDrh nsrk ;sbZyÞ 10. The Commissioner has rejected the appeal of the petitioner on the ground that the petitioner is not complying with the provisions of Government Resolutions dated 23rd August, 1996
Legal Reasoning
and 30th January, 2010 and the order of his colleague Shri Shinde is not placed on record by the petitioner. 11. Admittedly, the petitioner is granted promotion on the post of Junior Assistant. The petitioner has no right to claim that considering his educational qualification, he should have been promoted on the post of extension officer. The petitioner has also failed to make out a case of discrimination, by placing any document on record. The reliance placed by the petitioner, on clause IV of Government Resolution dated 23rd August, 1996, is misplaced and misconceived. Since the condition in clause No.IV of the said Government Resolution is absent in the petitioner’s appointmnet order, he cannot claim benefit of the said clause. 12. Taking into consideration the fact that the petitioner was appointed in the year 1993, when appointments on {6} wp1122-19 compassionate ground were governed by the Government Resolution dated 26th October, 1993, the Government Resolution dated 23rd August, 1996 cannot be retrospectively made applicable to the case of the petitioner. 13. The petitioner though has claimed higher promotional post befitting his educational qualification, he has failed to make out a case in that behalf. In the facts of the present case, the Commissioner was justified in rejecting the appeal filed by the petitioner. No case is made out by the petitioner to cause interference in the order passed by respondent No.1, in the
Decision
extraordinary writ jurisdication. The writ petition being devoid of merits, is dismsised. No costs. 14. The petitioner may approach appropriate forum for redressal of his grievance. 15. In view of disposal of the writ petition, civil application No. 11514 of 2022 is also disposed of. [NITIN B. SURYAWANSHI] JUDGE drp/wp1122-19