Satish S/O Nandikishor Tiwari vs State Of Maharashtra And Anr.
2004 Latest Caselaw 1414 Bom

JUDGMENT

S.U. Kamdar, J.

1. These two writ petitions are common and identical inasmuch as in both the petitions the petitioners are claiming appointment to the posts of Talathi. These petitions are resisted by the respondent Nos. 1 and 2 on identical grounds and, therefore, we dispose of both the petitions by this common judgment.

The Facts in W. P. No. 4637/2003 :

2. The petitioner in this petition is a son of Shri Nandkishor Gangaprasad Tiwari who was a Freedom Fighter and is a holder of 'Sanman Patra' issued by the State Government on 28th March, 1988. The Government of Maharashtra has issued Government Resolution dated 2nd March, 1981 and granted various concessions to the Freedom Fighters and their nominees in recruitment in class-Ill and class-IV categories in the Government service. The post of "Talathi" ranks in class-III category. On 10th March, 1998 the petitioner was nominated by his father as nominee in the office of the District Collector, Nagpur for the benefits which are available to the nominees of the Freedom Fighters. On 8th January, 1999 a representation was submitted by the father of the petitioner to the District Collector, Nagpur and request was made for providing employment to his son i.e. petitioner. By three letters dated 29th July, 1999, 1st October, 1999 and 24th April, 2000 the petitioner submitted representations/reminders to the office of the District Collector, Nagpur for considering his case on the ground of nomination made by his father, a Freedom Fighter for the appointment in class-III post in the Government service. The said claim was based on the Government Resolution which was issued in that behalf by the State Government. The petitioner received copy of the letter dated 25th February, 2000 from the office of the District Collector, Nagpur wherein the District Collector directed the appointing authorities/departmental heads to consider the claims of the Freedom Fighters and their nominees in the matter of appointment. On 9th June, 2000, a further representation was made by the petitioner for considering his claim for the grant of employment in class-III post. It is the case of the petitioner that since 1998 the posts of Talathi are filled in from time to time but the petitioner though eligible is not appointed to the said post. According to the petitioner, around 14 persons have been appointed in class-III category but the claim of the petitioner has been disregarded and not considered. On 30th June, 2003, the petitioner made an application for providing him various documents such as seniority list and appointments already effected by respondent No. 1 on various posts. He submitted that there was continuous appointments on various posts under class-Ill and class-IV category but, however, the claim of the petitioner was disregarded for such appointment. In spite of number of representations by the petitioner, there was no reply from the respondents herein. It is the case of the petitioner that the District Collector is not considering his claim and rights of the petitioner as nominee of the Freedom Fighter have been defeated. It is further case of the petitioner that his application for appointment in class-III post is pending for last five years but no benefits are granted to the petitioner herein. In the aforesaid circumstances, the petitioner has filed present petition claiming benefit of appointment under the category of nominee of the Freedom Fighter and claims that he is entitled to appointment under the said quota in class-III or IV category pursuant to the Government Resolution dated 2nd March, 1981.

3. The respondents have filed counter affidavit dated 16th October, 2004 and in paras-3 and 4 the case of the petitioner is substantially admitted by them. Para-4 of the said affidavit reads as under :

"4. It is submitted that, the petitioner has registered his name as a nominee of the freedom fighter Shri Nandkishor Gopalprasad Tiwari with the answering respondent No.2 on the 10th March, 1998 and his nomination is not disputed."

Thus, in substance, by the aforesaid facts it is clear that the petitioner's claim for the appointment to the post of "Talathi" and/or any other post in class-III category is pending for more than five years though he is entitled to the benefit of appointment as nominee of the freedom fighter as per Government Resolution dated 2nd March, 1981.

The Facts of W.P. No. 4708/2003 :

4. The petitioner in this petition was employed by the State Government on the post of Compiler and he was working with the Census Operations Department of the respondent herein. From the year 1991, he worked for about 21 months in the said post. However, since the Census Operations Department has been wound up, the petitioner became jobless. On 27th May, 1998, the Government of Maharashtra issued a resolution directing the district appointing authorities to fill in all the posts which are available, by appointing discharged employees of Census Department in 50% of the quota. Thus, the petitioner became entitled to appointment in class-III or class-IV category under the said 50% quota which was classified by the aforesaid resolution. In accordance therewith the respondent gave call letter to the petitioner to appear for interview for the post of Talathi. A selection committee was constituted under the chairmanship of the Collector - the respondent No. 1 herein. The petitioner was selected and his name was approved for the post of Talathi. Suddenly, on 24th September, 2003, the Collector decided to delete the name of the petitioner on the basis of the letter dated 18th September, 2003 received from the Divisional Commissioner, Nagpur. It is the case of the petitioner that though, accordingly, his name was deleted, however, some persons were appointed to the post of Talathi. It is this action of the respondents which is a subject matter of challenge in the present petition.

5. In this case also the respondent Nos. 1 and 2 have filed their counter affidavit and have substantially accepted the case of the petitioner inasmuch as none of the averments made in the petition are denied by the respondents. In the affidavit, which has been filed by the respondents on 29th October, 2004 pursuant to the direction of this Court, the respondents have admitted in para-3 thereof that there are two posts of Talathi vacant in Bhandara Sub-Division. However, it is contended that all these posts fall in O.B.C. and open category and not in Scheduled Caste Category and, therefore, the petitioner cannot be given appointment on these posts. Para-3 of the said affidavit reads as under :

"3. I state that there are two posts vacant in Bhandara Sub-Division, one is at Mouza Khamri and one is at Mohdura. The post of Mouza Khamri in Bhandara Sub-Division has become vacant due to death of Shri Kokate and said post belongs to Other Backward Class Category and it is vacant since 15th July, 2004. The post of Mohdura, which falls in Open Category, vacant on 30-8-2004 due to death of Shri Sharma. All the two vacancies in Bhandara Sub-Division are not from Scheduled Caste Category but belongs to O.B.C. and Open Category."

6. The basic contention of the respondents in both these petitions is that the petitioners cannot be appointed to the aforesaid vacant post of "Talathi". It is contended that though the petitioners are entitled to the appointment long back but by virtue of the orders passed by the Aurangabad Bench in Letter's Patent Appeal No. 83 of 2003 all the posts have been filled in by appointing the persons working as Mustering Assistants. According to the respondents, in view thereof, though there were posts available but they were required to be filled in by appointing Mustering Assistants in view of the directions of the Aurangabad Bench of this Court and, therefore the claims of the petitioners were not considered for appointment to the said posts in the past.

7. Insofar as this contention is concerned, it is necessary to go into the background of the said L.P.A. No. 83 of 2003 and various orders passed therein. The L.P.A. No. 83 of 2003 has been filed by one Mr. Satish Nandkishore Tiwari. Against the orders dated 18th August, 2001 and 30th August, 2003 passed by the Industrial Court, writ petition was preferred by him before the Aurangabad Bench of this Court being Writ Petition No. 70 of 1996 which came to be dismissed in the light of the judgment delivered by the Division Bench of this Court in Writ Petition No. 847 of 1996. The said Writ Petition No. 847 of 1996 was disposed of by the learned Single Judge by an order dated 18th August, 2001 along with various other writ petitions. The petitioner in the said writ petition, who was working as Muster Assistant has filed a complaint against the State Government as an employer, contending that the said Muster Assistant was employed by the State Government to maintain muster role of the workers carrying out work under the Employment Guarantee Scheme. It was the case of the petitioner along with other petitioners that though they were working for more than 7 years with the State Government, their services are kept temporary even though in effect they are carrying out work of permanent nature. The said act of the State Government, according to the petitioner, amounted to unfair labour practice under Item 6 of the MRTU and PULP Act, 1971. In effect by the said application, the said Muster Assistants sought permanency of their job and regularisation of their service. The said complaint was dismissed by the Industrial Court and against the said order of dismissal, the said Muster Assistants approached this Court in Writ Petition No. 847 of 1996. L.P.A. No, 83 of 2003 arises out of said writ petition being W.P. No. 70 of 1996.

8. On 28th January, 2003 the Division Bench of the Aurangabad Bench passed an order directing the State Government to give details of the Muster Assistants who are not absorbed in spite of earlier order dated 10th July, 2002. By the said order, the Division of the Aurangabad Bench directed the State Government to furnish information regarding number of Muster Assistants who are not absorbed under the scheme framed by the State Government under Resolution dated 1st December, 1995. A blanket stay on filling up of any vacancies whatsoever in Class III and Class IV categories till all Mustering Assistants are absorbed was also passed by the Division Bench in the said appeal. By the further order dated 28th February, 2003, the Division Bench of the Aurangabad Bench has modified the earlier order dated 28th January, 2003 and permitted the vacancies to be filled in the categories of project affected persons, freedom fighters wards and appointments on compassionate ground.

9. In the said order there was a blanket stay for filling up of posts of class III and Class IV unless and until claims of Muster Assistants are settled and they are absorbed in the regular employment. This order dated 28th February, 2003 was modified by a further order dated 31st March, 2004, insofar as it pertains to filling up of the posts reserved for physically handicapped persons. By further order dated 26th June, 2003 the said order was further modified and police constables were allowed to be appointed. In Civil Application No. 793 of 2003, further clarification was given inter alia stating that insofar as filling up post of reserved categories like appointment of wards of freedom fighter, project affected persons and Anshakalin employees will not be affected insofar as their percentage is concerned, after reserved categories backlog of Muster Assistants are filled in unless and until categories of workman were not permitted to be appointed.

10. It is very significant to note that the appellants before the Aurangabad Bench were only two persons falling in the category of Mustering Assistants claiming appointment. By virtue of the order passed in the said appeal by the Aurangabad Bench and the circulars issued by the State Government from time to time, in compliance with the said order the State Government proceeded to appoint and fill in the Mustering Assistants numbering about 1,200 in class-III and class-IV categories. Thus, all other appointments were given a go-by and the persons falling in the category of Mustering Assistants marched over and got themselves appointed to the various posts pursuant to the special drive for filling in backlog of backward candidates in class-III and class-IV category of the State Government. Even in respect of the posts of Talathi, it is stated by the respondents on affidavit that there were 7 vacant posts under the reserved category and out of these 7 posts, 5 posts were filled in by appointing Mustering Assistants and only balance 2 posts were filled in by appointing other persons. It is, therefore, the case of the respondents that the case of the petitioner in Writ Petition No. 4708/2003 could not be considered.

11. Thereafter, these two Mustering Assistants moved the Division Bench of Aurangabad Bench of this Court on 24th August, 2004 and made a statement that their grievances have been redressed and that they have been absorbed in the State Government service and, therefore, they did not want to prosecute the civil application further and that the same may be disposed off as not pressed. The learned A.G.P. appearing for the State Government before the Aurangabad Bench thereafter made a request to the Court to clarify that in view thereof the interim order passed therein no more exists. Accordingly, said clarification was granted by the Court in the aforesaid matter. By further order dated 24th August, 2004 on Civil Application Nos. 1134/2004 and 5681/2004 in the said pending L.P.A. No. 83/2003 they were disposed off. The Division Bench of the Aurangabad Bench permitted withdrawal of L.P.A. No. 83/2003 and clarified that all the interim orders including order dated 28th February, 2003 are vacated and they are no more in operation.

12. The learned counsel for the respondents vehemently contended before us that denial of the right of the petitioner to be appointed on the post of Talathi is directly consequent to the order passed by the Aurangabad Bench and, therefore, the petitioners' case was rightly rejected and this Court should not grant any relief to this petitioner for being appointed to the post of Talathi.

13. It is undoubtedly clear from the facts narrated above that the petitioners, though entitled to be appointed to the post of Talathi or any other post in class-III or class-IV category, have been denied their rights of appointment. Both these petitioners belong to reserved category and were entitled to be appointed in their own turn in accordance with the waiting-list and seniority-list maintained by the State Government in respect of various categories of the employees.

14. The respondents have appointed around 1,200 Mustering Assistants in compliance with the interim order passed by the Division Bench of the Aurangabad Bench of this Court. By the final order dated 24th August, 2004 the said interim orders have been vacated. Appeal is withdrawn. The consequent result is that the Mustering Assistants who got reliefs of getting themselves absorbed on various posts as and by way of interim arrangement as final reliefs though their rights were never finally adjudicated by the Court of law. Further anomalous situation arises because appointments of the Mustering Assistants on number of posts were pursuant to the interim order passed by the Division Bench of the Aurangabad Bench. While passing final order in the said L.P.A. No. 83/2003, the appointments are neither regualrised nor confirmed by the Aurangabad Bench of this Court. The said L.P.A. has been withdrawn. The rights of the parties have not been adjudicated. The interim orders passed in the said L.P.A. have also been vacated expressly by order dated 24th August, 2004. In our view, the consequence would, therefore, flow that if the interim orders are vacated and appeal is dismissed as not pressed the situation must prevail as on the date when the interim order was not passed. However, we are conscious of the consequence which may flow therefrom. It may result in the absorptions becoming irregular and the appointments of Mustering Assistants may be required to be set aside.

15. Be that as it may. We are not inclined to go into that larger issue. It is an admitted position that two posts of Talathi are vacant. In our view, since the rights of the petitioners in both the petitions have been ignored and overlooked, may be by virtue of the interim order passed by the Aurangabad Bench of this Court which now stands vacated, the petitioners become entitled to get themselves appointed on the said posts. The case of the petitioners must be considered on these two available posts of Talathi. We cannot refuse to grant relief to the petitioners merely on the ground that their claims must be ignored because of the interim order passed in some other L.P.A. filed by the Mustering Assistants. Both the petitioners are, therefore, entitled to appointment in the post of Talathi. In our view, at least because of the fact that two posts of Talathi are vacant, though may not be for the reserved category, the rights of the petitioners must be protected and considered. There are large number of appointments effected of the Mustering Assistants in cases of reserved category though the Mustering Assistants may not be from the reserved category. We are of the opinion that the petitioners are entitled to be considered for appointment on these two posts of Talathi.

16. In one case, the petitioner was employed in the Census Department right from 1991. He was even selected and his name was approved for being appointed to the post of Talathi. However, his case has not been considered by the authorities to absorb him in class-III and/or class-IV category.

17. We are of the view that both the petitions deserve to succeed. In the light thereof, we direct the respondents that the case of the petitioners in both these petitions be considered against the said two vacant posts of Talathi. We further direct that if the petitioners are found suitable for the post of Talathi which are lying vacant, then in that event the respondents should appoint both the petitioners to that posts. We direct the respondent to complete the said exercise within a period of eight weeks from today.

Both the writ petitions are disposed of accordingly. However, there shall be no order as to costs.