wp1219.12 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1219 OF 2012
Suresh s/o Deoraoji Raipure,
resident of Sai Nagar, Arvi,
District - Wardha. ... PETITIONER
Versus
1. The Education Officer (Secondary),
Zilla Parishad, Wardha.
2. The Municipal Council, Arvi,
through its Chief Officer,
District - Wardha.
3. Shri Haridas Devidas Mahatme,
c/o Nagar Parishad High School,
Arvi, District - Wardha.
4. The Collector, Wardha. ... RESPONDENTS
Shri Deshpande, Advocate holding for Shri Anand Parchure,
Advocate for the petitioner.
Shri N.H. Joshi, AGP for respondent Nos. 1 & 4.
Shri S.S. Ghate, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI
ROHIT B. DEO, JJ.
JUNE 06, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) Heard Shri Deshpande, Advocate holding for Shri ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:44:18 ::: wp1219.12 2 Anand Parchure, learned counsel for the petitioner, Shri N.H. Joshi, learned AGP for respondent Nos. 1 & 4 and Shri S.S. Ghate, learned counsel for respondent No. 2. Shri A.P. Raghute, learned counsel appearing for respondent No. 3 is not present.
2. The petitioner admittedly has joined employment on 05.08.1981. Because of the Government Resolution dated 30.06.2004 read with earlier Government Resolution dated 15.06.1995, date 15.06.1995 has been treated as his date of joining service. Thus, for the purposes of seniority, his date has been shifted from 05.08.1981 to 15.06.1995. This shifting and decision has been questioned in present matter.
3. The promotions (alleged) as Assistant Head Master effected in 2006 is the cause of action. The petitioner was promoted to that post because of his seniority. Respondent No. 3 claims that as the petitioner belonged to Dhanwar community, his date of entry ought to have been reckoned as 15.06.1995 and hence he was junior to Respondent No. 3. The Education ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:44:18 ::: wp1219.12 3 Officer has passed some orders while adjudicating this controversy. The Collector, Wardha, has also on 25.06.2007 passed an order and directed the Municipal Council to look in to the position again. It appears that finally the petitioner has been given date 15.06.1995 as date of entry and, therefore, present petition has been filed.
4. According to Shri Deshpande, Advocate for the petitioner, the post when advertised in the year 1981 did not carry any reservation and the petitioner was recruited as open category candidate and during his entire service, he did not take advantage of caste and the promotion given as Assistant Head Master was also in open category. His caste was also not validated as it was never sent for verification. He states that in this situation, reliance upon Government Resolution dated 30.06.2004 and thereby fixing date 15.06.1995 as relevant date for counting seniority, is without jurisdiction and arbitrary.
5. Shri Ghate, learned counsel for respondent No. 2 - Municipal Council, submits that respondent No. 2 has acted in ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:44:18 ::: wp1219.12 4 accordance with law in the matter and after directions of various authorities, Government Resolutions operating on the subject have been adhered to.
6. Shri Joshi, learned AGP appearing for respondent Nos. 1 & 4 also supports the arguments of Shri Ghate, learned counsel for respondent No. 2.
7. A perusal of order of the Collector, Wardha, dated 25.06.2007 reveals stand of the Municipal Council before the Collector that the petitioner was recruited in open category and had never taken any advantage of his caste 'Dhanwar'. The Municipal Council, therefore, pointed out to the Collector that the provisions contained in Government Resolution dated 30.06.2004 were not applicable to him. The objection to his seniority on the basis of said Government Resolution, therefore, was urged to be misconceived. In the face of this reply of the Municipal Council, the Collector in exercise of powers under Section 308 of the Maharashtra Municipalities Act, 1965, suspended operation of Resolution dated 17.04.2006 and ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:44:18 ::: wp1219.12 5 directed the Municipal Council to redetermine the seniority.
8. Even before this Court, the petitioner has pointed out in paragraph 16 of his petition that he joined service as open category candidate and never took advantage of the caste. Without prejudice, he has also pointed out that promotional post of Assistant Head Master or Head Master was not reserved. It was contended that being isolated post, roster was not applicable to the same.
9. All these contentions fall for our consideration in 2017 when the petitioner has reached the age of superannuation on 15.11.2013 while respondent No. 3 has also superannuated on 01.07.2014. Thus, the issue is only academic in present situation. No order promoting either the petitioner or respondent No. 3 or then any other person on the post of Head Master substantively has been produced on record. Thus, the promotions either as In-charge Head Master or then Assistant Head Master may have resulted in giving some officiating allowance only to the incumbent. That ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:44:18 ::: wp1219.12 6 allowance, therefore, cannot have any impact on last pay drawn for the purposes of computing pension.
10. The facts referred to above clearly show that in the advertisement for recruitment published by respondent No. 2 - Municipal Council in 1981, post was not shown as reserved. With the result, merely because the petitioner belongs to 'Dhanwar' caste, it cannot be said that he was recruited as a reserved category candidate then. While filling in service book, he has mentioned his caste as "Dhanwar" on first page. This was necessary because the caste is required to be disclosed on first page. That again does not mean that he was recruited against a reserved post. The Government Resolution dated 30.06.2004 has been issued only to extend benefit of protection in employment already extended to the State Government servants by Government Resolution dated 15.06.1995 to the employees of local bodies. Thus, Government Resolution stipulates that the provisions contained in Government Resolution dated 15.06.1995 are also applicable to the incumbents who have been recruited or promoted against the ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:44:18 ::: wp1219.12 7 reserved post. As the petitioner was not so recruited or promoted, Government Resolution dated 30.06.2004 has no relevance. Not only this, the other Government Resolution dated 15.06.1995 also, therefore, cannot be resorted to.
11. In this situation, we find that the direction to treat 15.06.1995 as date for the purposes of counting seniority of the petitioner is unsustainable. His seniority for all purposes is to be counted from 05.08.1981.
12. With these directions, we partly allow the present writ petition and dispose it of. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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