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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Writ Petition NO. 6287 OF 2014
PETITIONER: Maroti Bapurao Pakade,
Aged about 59 Years, Occu: Retired,
R/o Near Walgaon Police Station, Warwad,
Post Walgaon, Dist. Amravati
-VERSUS-
RESPONDENTS: 1. The Chief Executive Officer,
Zilla Parishad, Amravati.
2. Education Officer (Primary),
Zilla Parishad, Amravati.
3. Education Officer (Secondary)
Zilla Parishad, Amravati.
4. Commissioner,
Amravati Division, Amravati.
Shri. S.W. Deshpande, Advocate for the petitioner.
Shri. Parag Anil Kadu, Advocate for the Respondent No. 1.
Smt. T.H. Khan, A.G.P. for Respondent No.3 and 4..
CORAM: Z.A. Haq, J.
DATED: 06.11.2017.
Oral Judgment
1. Heard.
2. Rule. Rule made returnable forthwith.
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3. The petitioner has challenged the order passed by the learned Commissioner dismissing his appeal filed under Rule 14(a) of Zilla Parishads and Panchayat Samittee (Discipline and Appeal) Rules 1964 (hereinafter referred as "the Rules of 1964"), and rejecting his claim for absorption/promotion in the post of Assistant Teacher pursuant to the recommendations made by the Headmaster of the School on 25th September, 1997.
4. The undisputed facts are:-
The petitioner was appointed as Laboratory Assistant (Class-III Cadre) with the Zilla Parishad School. In due course, the petitioner acquired higher qualifications after obtaining permission from the employer. The petitioner acquired degree of Bachelor of Arts in 1991 and degree of Bachelor of Education in 1997. After acquiring the above qualifications, the petitioner requested for promotion / absorption in the post of Assistant Teacher in the quota fixed for the in-service candidates. The Headmaster of the school, in which the petitioner had been working, by the communication dated 25/09/1997, recommended the absorption/promotion of the petitioner in the post of Assistant Teacher. However, the concerned authorities overlooked the claim of the petitioner and therefore the ::: Uploaded on - 18/11/2017 ::: Downloaded on - 18/11/2017 23:52:30 ::: wp6287of2014_J.doc 3/6 petitioner approached Industrial Court for redressal of his grievance in 2005. The Zilla Parishad (employer) raised objection before Industrial Court that the complaint filed by the petitioner was not maintainable. The petitioner withdrew his complaint in 2010 and filed appeal before Commissioner, which is dismissed by the impugned order.
5. The case of the Zilla Parishad (Employer) is that the claim of the petitioner could have been considered only because there was vacancy in the quota reserved for in-service candidates. The Zilla Parishad has relied on the provisions on Rule 6(2) of the Rules of 1964 to deny the claim of the petitioner and the learned Commissioner has dismissed the appeal filed by the petitioner, accepting the contention of the Zilla Parishad and relying on Rule 6(2) of the Rules of 1964.
6. Though, it is not on record, the learned advocate for the respondent No.1 has submitted that 50% posts of Assistant Teacher were required to be filled by promoting or nominating the in-service candidates. It is undisputed that Shri G.U. Avinashe and Shri Dange who were also working as Laboratory Assistant were absorbed/ promoted as Assistant Teachers in January 1998. As recorded earlier, ::: Uploaded on - 18/11/2017 ::: Downloaded on - 18/11/2017 23:52:30 ::: wp6287of2014_J.doc 4/6 the Headmaster of the School were the petitioner was working had recommended the name of the petitioner for absorption/ promotion in the post of Assistant Teacher. There is nothing on record to show that Shri G.U. Avinashe and Shri Dange were senior to the petitioner. The Zilla Parishad has kept back the relevant details and has not pointed out the seniority list. There is nothing on record to show that after the name of the petitioner was recommended by the Headmaster of the School by the communication dated 25th September, 1997, post of Assistant Teacher was not available in the 50% quota in which the petitioner could have been absorbed as Assistant Teacher.
7. The facts on record show that the petitioner has discharged the initial burden of showing that though by the communication dated 25th September, 1997, the Headmaster of the school in which the petitioner had been working recommended that the petitioner be absorbed /promoted as Assistant Teacher, Shri G.U. Avinashe and Shri Dange were absorbed / promoted as Assistant Teachers in January 1998. The Zilla Parishad has failed to discharge its burden of showing that Shri G.U. Avinashe and Shri Dange were senior to the petitioner. The Zilla Parisahd has failed to discharge the burden of showing that post of Assistant Teacher was not available in the 50% ::: Uploaded on - 18/11/2017 ::: Downloaded on - 18/11/2017 23:52:30 ::: wp6287of2014_J.doc 5/6 quota to be filled by absorption/promotion of in-service candidates. In these facts, adverse interference is required to be drawn against the Zilla Parishad and the claim of the petitioner has to be upheld.
8. Hence the following order.
(i) The impugned order passed by the learned Commissioner is set aside.
(ii) It is held that the petitioner is entitled for absorption /promotion as Assistant Teacher w.e.f. the date on which Shri G.U. Avinashe and Shri Dange were absorbed / promoted as Assistant Teachers. The seniority of the petitioner shall be fixed according to the rules and the name of the petitioner be placed accordingly in the seniority list.
(iii) The petitioner is illegally deprived of his legitimate claim and therefore it has to be held he is entitled for consequential benefits including monetary benefits.
The Zilla Parishad shall make available to the petitioner the difference of emoluments considering the absorption / promotion of the petitioner in the post of ::: Uploaded on - 18/11/2017 ::: Downloaded on - 18/11/2017 23:52:30 ::: wp6287of2014_J.doc 6/6 Assistant Teacher w.e.f. the date on which Shri G.U. Avinashe and Shri Dange were absorbed / promoted as Assistant Teachers.
(iv) The petitioner shall be given all the benefits within three months failing which the Zilla Parishad will be liable to pay interest at the rate of 9% per annum on the amount payable to the petitioner, the interest being chargeable from today.
(v) As it is held that the petitioner is illegally deprived of his legitimate claim, the Zilla Parishad shall pay costs of Rs. 20,000/- to the petitioner and produce the receipt of it on the record of this petition within three months.
Rule made absolute in the above terms.
JUDGE nandurkar ::: Uploaded on - 18/11/2017 ::: Downloaded on - 18/11/2017 23:52:30 :::