WP 190-2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 190 OF 2011
Santosh Gajanan Khilari .. Petitioner
vs
The Joint Director of Higher Education & Ors. .. Respondents
Mr. Uni Sariputta Paramod Sarnath for the petitioner.
Mr. J.S. Saluja, A.G.P. for respondent nos.1 and 5.
Ms. Pranali S. Dixit for respondent no.2.
ig CORAM: MOHIT S. SHAH, C.J. &
A.K. MENON, J.
DATE : 13 AUGUST 2015 ORAL JUDGMENT (Per Chief Justice) The petitioner, who is a person with 60% of locomotive disability of lower limb, has challenged the order of the Assistant Director, Higher Education, Mumbai Division dated 13/19 March 2010 (Exhibit "H") insofar as it concerns the petitioner's appointment to the post of Junior Clerk being granted with effect from 1 January 2010 instead of from 7 February 2007.
2. There is no dispute about the fact that respondent no.3 college had issued a public advertisement and invited applications for the post of Junior Clerk and that the petitioner was selected and appointed as a Junior Clerk with effect from 1 March 2007. The appointment was, however, subject to approval of respondent no.1-
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Joint Director of High Education. However, when the college
requested respondent no.1 for approval, the office of respondent no.1 raised an objection that the petitioner was appointed to the post of Junior Clerk which was reserved for a person with disability. The objection was that since there were only 27 posts of Group C, the petitioner could not have been given the benefit of reservation for persons with disability.
3. In the reply affidavit also, the same defence has been taken. It is stated that at the relevant time, there were 27 sanctioned posts in Group C and, therefore, no post was reserved for persons with disabilities as it would require a minimum of 33 sanctioned posts to qualify for 3% reservation by providing one post in the reserved category for disabled person. The reply further indicate that in Group D, there were 52 sanctioned posts at the relevant time and, therefore, there was a provision for one post for person with disability. It is further contended in the reply affidavit that as per G.R. Dated 6 May 2004, 100 point reservation roster is required to be kept for the persons with disabilities, but the roster has to be maintained cadre-wise in Groups A, B, C and D separately.
4. Learned counsel for the petitioner submits that the G.R. Dated 6 May 2004 annexed to the reply affidavit on behalf of respondent no.1, while providing for reservation for persons with disabilities for the posts in Group A, B, C and D, specifically provides as under:
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" Direction are given to keep 100 point roster for
each post & to keep category wise reservation for disabled. It is difficult to determine 3% reservation for disabled person when there are minimum number of posts. As per Central Government policy the reservation of the post in Group C & D can be made together whereas for Group A & Backward Class determination of the reservation should be made as per category."
5. Relying on the above direction, it is submitted that there was nothing wrong on the part of respondent no.3 college in clubbing Group C and D posts together and accordingly proceeding on the basis that out of 79 posts in Group C and D in the aggregate (27 posts in Group C + 52 posts in Group D), applying 3% reservation, 2 posts were required to be reserved for persons with disabilities and accordingly the petitioner was appointed on one of those 2 posts.
6. Learned counsel further submits that when the petitioner's appointment was terminated in February 2008 on account of non-approval from the office of respondent no.1, the petitioner had approached the Mumbai University and College Tribunal by way of an appeal being Appeal No. 69 of 2008 and by a judgment and order dated 17 July 2008 the Tribunal allowed the said appeal. It is vehemently submitted that not only the termination order was set aside, but the Tribunal directed the college to reinstate the petitioner with full back wages and the petitioner was paid full back wages by the college.
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7. Mr. Saluja, learned A.G.P. appearing for respondent nos.1 and 5, has vehemently opposed the petition and relying on the affidavit in reply of Joint Director of Higher Education submitted that since there were only 27 sanctioned posts in Group C, applying 3% reservation no post was reserved for persons with disabilities in view of the fact that there has to be minimum 33 sanctioned posts for providing reservation of one post in the concerned cadre.
8. Having heard the learned counsel for the parties, we find considerable substance in the submissions made on behalf of the petitioner. Admittedly there were 27 sanctioned posts in Group C and 52 sanctioned posts in Group D, i.e. 79 posts in the aggregate in Group C and D. The relevant portion of G.R. Dated 6 May 2004 quoted hereinabove clearly provides that as per the Central Government Policy, the reservation of posts in Group C and D can be made together. Hence no error was committed when the petitioner was appointed on the posts reserved for persons with disabilities since applying 3% reservation to 79 posts in Group C and D, 2.37 posts were available.
9. In view of the above, we allow the petition and direct respondent nos.1 and 5 to grant approval to the petitioner's appointment to the post of Junior Clerk with effect from 1 March 2007. Since the petitioner has already been paid the back wages by the management in compliance with the order of the Tribunal, there is no question of again giving any direction for payment of back ABS 4 of 5 ::: Downloaded on - 19/08/2015 23:56:04 ::: WP 190-2011 wages, but the respondents shall treat the petitioner has having been appointed on the post of Junior Clerk reserved for persons with disability with effect from 1 March 2007 for all purpose including seniority, pay fixation and pensionary benefits, etc.
10. It is clarified that any monetary benefit/s payable to the petitioner shall be paid to the petitioner only with effect from 1 November 2010 as the present petition was filed on 22 October 2010
11. Respondent no.3 College shall submit a proposal to respondent no.1 for refixation of petitioner's pay within one month from the date of receipt of a copy of this judgment and respondent no.1 shall thereafter pass necessary orders on the proposal within 2 months from the date of receipt of the proposal.
12. The consequential benefits payable to the petitioner shall be paid within 2 months from the date of the order of respondent no1.
13. Rule is made absolute in the above terms.
CHIEF JUSTICE
(A.K. MENON, J.)
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