Bombay High Court
Dilipsing Bhagwat Patil vs Principal, Kisan Mahavidyalaya ... on 4 April, 2001
Equivalent citations: 2001 (4) BomCR 449
Author: S Mhase
Bench: S Mhase, J Patil
JUDGMENT
S.B. Mhase, J.
1. Heard Mr. S.R. Barlinge, learned Counsel for the petitioner, Mr. R.J. Godbole, learned Counsel for the respondent No. 1 and Mrs. A.V. Gondhalekar, learned AGP for the respondent Nos. 2 and 3.
2. Mr. S.R. Barlinge, learned Counsel for the petitioner, seeks leave to delete the respondent No. 3.
3. Leave granted.
4. Heard. Rule. With the consent of the parties, Rule is made returnable forthwith and the petition is taken up for final hearing.
5. An advertisement for the post of Instructor came to be issued in the year 1994 (Exhibit "G" to the petition). It was not specifically made clear that the post of instructor was a reserved or unreserved one, however, against the post of Peon, which was also advertised in the said advertisement, it was specifically mentioned that the said post was reserved for scheduled tribe category and therefore, we can safely infer that the advertised post of instructor was not a reserved post and it was to be filled in from open category candidates. It is pertinent to note that the said advertisement was not issued by the management, but was issued by the respondent No. 1 herein.
Apart from this, the appointment orders, issued from time to time and annexed at Exhibit "A" (Colly) to the petition, show that even though the petitioner was appointed temporarily on year to year basis, he was not informed that his appointment was against a reserved post. The petitioner had accepted the said appointment orders, treating the post of instructor as an unreserved post.
6. We asked Mrs. A.V. Gondhalekar, learned AGP, as to what is the difficulty in releasing the salary of the petitioner and she states that the dispute is in between the petitioner and the respondent No. 1.
7. We have heard Mr. R.J. Godbole, learned Counsel for the respondent No. 1 and he submitted that the respondent Nos. 2 and 3 have insisted that as the post of the petitioner is a reserved post and approval has been given on year to year basis, it should be filled in from a reserved category candidate. Mr. R.J. Godbole, learned Counsel further submitted that for the convenience of the petitioner, the post of instructor is converted into Nomadic Tribe reserved category and as the respondent Nos. 2 and 3 were asking for submission of a caste certificate of a person working on the said post of Instructor, which has been converted as a post reserved for Nomadic Tribe category, the petitioner, who is working on the said post of Instructor, was directed to submit his caste certificate.
8. We find that the advertised post of instructor was an unreserved post and therefore, it was not necessary to convert the said post in any other reserved category. Moreover, for conversion of a post advertised as an unreserved post into a reserved post, basically, the roster must show that the said post was a reserved post and the publication discloses that the post of the Instructor is not a reserved post. Had such a notice of post being reserved been given to the candidates, the petitioner would not have opted for appointment on a reserved post. Secondly, if a candidate from open category applies for a reserved post, at the time of accepting the appointment order, it would be left to his discretion either to accept a reserved post or not. It is possible that a candidate from open category may get an appointment orders against open category as well as against a reserved post and in that circumstance, when the option to choose posting from such two appointment is available, he will definitely select the unreserved post.
However, in the present case, since beginning, it is represented that the advertised post of Instructor is unreserved one and therefore, it is not open for the respondent No. 1 to convert it as a reserved post and say that the Roster show the advertised post of Instructor is a reserved post. Such a practice would not be allowed, as several managements will adopt such a practice to harass innocent employees and therefore, we are inclined to interfere in the matter.
9. What we find is that in the advertisement it was not specifically mentioned that the post of Instructor was a reserved post. Moreover, at the time of joining, or issuing subsequent orders, even though temporarily on year to year basis, the management had not clarified that such an appointment of the petitioner was against a reserved post of Instructor, which could have helped the petitioner to decide whether he should accept posting on a reserved post or not. Nothing of this sort has been done by the respondents and therefore, after completion of service of more than 6 years by the petitioner on the said post, it is inappropriate on the part of the respondents to say that the advertised post of Instructor is a reserved post and that the pay & salary will not be released. Therefore, we are inclined to allow the petition with following directions.
10. The respondent No. 1 shall submit a proposal in respect of the petitioner for approval and release of salary before the respondent No. 2 and in view of the observations made herein above, the respondent No. 2 shall grant approval and release the salary of the petitioner.
11. Rule is made absolute in terms of the above order.
