Ramesh Shivram Khairnar vs State Of Maharashtra Through ...
2003 Latest Caselaw 683 Bom

JUDGMENT

C.K. Thakker, C.J.

1. The matter was not on board but is taken on board at the request of learned counsel for the Petitioner in view of the fact that the interim relief granted earlier was to expire today.

2. With consent of parties, we have taken the matter for final hearing and have heard the parties. Rule. Mr. C.R. Sonawane, Assistant Government Pleader, waives service of notice of Rule for respondent Nos. 1 and 2. Mr. A.A. Garge learned advocate, waives service of notice of rule on behalf of respondent No. 3.

3. A short question which arises for our consideration in the present petition is as to legality or otherwise of the action of respondent No. 3 Rail Child Sanstha, Kalyan, District Thane in issuing an advertisement for filling of a post of Junior Clerk without considering the case of the petitioner for the said post.

4. The case of the petitioner which has not been disputed by the respondent-Management is that he was appointed as a Peon by an order dated 12th June, 1990 and he resumed duty on 16th June, 1990. In 1994, the petitioner cleared Secondary School Certificate Examination and thereby became eligible for the appointment to the post of Junior Clerk. On 1st May, 2002, one Mrs. Prabhudesai who was working as a Senior Clerk, took voluntary retirement. In view of the said development, one Mrs. Puranik who was serving as Junior Clerk was promoted as Senior Clerk resulting in vacancy of a Junior Clerk. Since the petitioner by that time, cleared Secondary School Certificate Examination, he applied on February 13, 2003 (Exhibit-B) to appoint him to the post of Junior Clerk. there was no response by the Institution. Even thereafter applications were made by the petitioner reiterating his request but nothing was done by the Management.

5. Looking to two communications dated 20th February, 2003 and 3rd May, 2003, Exhibits-C and D respectively, it is clear that even the Education Officer (Secondary), Zilla Parishad, Thane, informed the Head Master of Respondent No. 3 Institution that since applications were made by some employees for the appointment to the post of Junior Clerk who were having necessary educational qualifications, an appropriate action was required to be taken in accordance with Rules for making appointment as Junior Clerk. It was also stated that the Office of Education Officer should be informed as to the steps taken by the Management. It was also stated that if compliance report will not be submitted, penal action will be taken against the Institution.

6. The learned counsel for the petitioner stated that even the letters of Education Officer did not yield any fruitful result and probably not replied by the Management. On the other hand, an advertisement was issued in "Janateche Janmat" on 9th May, 2003, to fill up the post of Junior Clerk in respondent No. 3-Institution. The petitioner, therefore, has approached this Court by filing the present Writ Petition.

7. The learned counsel for the petitioner drew our attention to Rule 12 of Maharashtra Employees of Private Schools Rules, 1981 which provides for maintaining seniority list of the employees working in Institution. Schedule F to which a reference was made in Rule 12, lays down guidelines for fixation of seniority of teaching and non-teaching staff. Item No. 3 is relevant which provides fixation of seniority of non-teaching staff. The relevant entry relating to lower grade staff, reads as under:

"3. .....

Lower Grade Staff- A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, other lower grade staff, if any, shall be maintained on the basis of the dates of their appointment. If any of the lower grade staff improves his qualifications as prescribed either for the post of Laboratory Assistant or Clerk, such employee should be given preference while filling in the said post according to his place in seniority".

8. The learned counsel for the petitioner contended that from the above extract, it is clear that if any of the lower grade staff improves his qualification as prescribed for the post of Clerk, such employee should be given preference while filling in the said post considering his placement in seniority. It was stated that it is not in dispute that petitioner had cleared Secondary School Certificate Examination in 1994 and thereby he became eligible to be considered for the post of Junior Clerk. In view of educational qualifications, it was incumbent on respondent No. 3 to consider his case. Instead of doing so, an advertisement was issued by the third respondent which is illegal and contrary to law.

9. The learned counsel placed reliance on a decision of this Court on the point in Ashok Shankarrao Shinde v. Prabodhan Shikshan Sanstha, Nagpur and Ors. (1999) 1 MhLJ 348 wherein Division Bench of this Court considered the relevant provisions of law and observed that in case of non-teaching staff, the possibility of promotion has to be read and Management is bound to consider the case of incumbent claimant to the promotional post. Unless he is found unsuitable, recourse cannot be had to direct recruitment.

10. In the instant case, it is not the case of the third respondent that the petitioner is not eligible. Hence, his case requires to be considered as laid down in the above case.

11. By filing an affidavit in reply, action of the respondent No. 3 is sought to be supported. It was stated that there were two posts of Junior Clerk in two schools run by the Management. On one post, Vishwas Sirkar of Scheduled Caste came to be appointed in one School. Since the petitioner belongs to Scheduled Caste,he could not be appointed as Junior Clerk as in that case, reservation would exceed 52%. It was also stated that petitioner was not found suitable for the post.

12. When the case of the petitioner was not considered at all and advertisement was issued, for direct recruitment,in our opinion, action must be held to be illegal and contrary to law. So-called reservation has nothing to do with Schedule F. Presumably because of well-settled legal position, the Education Officer also issued a direction to respondent No. 3 but respondent No. 3 did not pay any heed to it.

13. Under the circumstances, in our opinion, petition deserves to be allowed and is accordingly allowed. The action of respondent No. 3 of issuing advertisement, deserves to be set aside and is accordingly set aside. It is directed that respondent No. 3 will consider the case of the petitioner and if found fit, will appoint him to the post of Junior Clerk. In case, he is not found fit or suitable, it is open to the Management to take appropriate action in accordance with. In the circumstances, in the light of statutory provisions and decision of this Court, it would be appropriate if respondent No. 3 is directed to pay costs to the petitioner.

14. The learned counsel for the petitioner at this stage prays that if order will be passed against the petitioner and he is not found fit for the post of Junior Clerk, protection may be granted so as to enable him to approach appropriate forum/Court. In our opinion, the prayer is reasonable taking into account the stand taken by the respondent No. 3 Institution. We, therefore, direct that after consideration of the case of the petitioner, if he is not found fit and is not appointed, he will be informed accordingly. Such order shall not be implemented two weeks from the receipt of the order by the petitioner.

Rule is made absolute to the extent indicated above with costs.

Parties be given copies of this order duly authenticated by Sheristedar/Personal Secretary of this Court.