Bombay High Court
Santosh Gajanan Khilari vs The Joint Director Of Higher ... on 13 August, 2015
WP 190-2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 190 OF 2011
Santosh Gajanan Khilari .. Petitioner
vs
The Joint Director of Higher Education & Ors. .. Respondents
Mr. Uni Sariputta Paramod Sarnath for the petitioner.
Mr. J.S. Saluja, A.G.P. for respondent nos.1 and 5.
Ms. Pranali S. Dixit for respondent no.2.
ig CORAM: MOHIT S. SHAH, C.J. &
A.K. MENON, J.
DATE : 13 AUGUST 2015
ORAL JUDGMENT (Per Chief Justice)
The petitioner, who is a person with 60% of locomotive
disability of lower limb, has challenged the order of the Assistant
Director, Higher Education, Mumbai Division dated 13/19 March
2010 (Exhibit "H") insofar as it concerns the petitioner's
appointment to the post of Junior Clerk being granted with effect
from 1 January 2010 instead of from 7 February 2007.
2. There is no dispute about the fact that respondent no.3
college had issued a public advertisement and invited applications
for the post of Junior Clerk and that the petitioner was selected and
appointed as a Junior Clerk with effect from 1 March 2007. The
appointment was, however, subject to approval of respondent no.1-
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Joint Director of High Education. However, when the college
requested respondent no.1 for approval, the office of respondent
no.1 raised an objection that the petitioner was appointed to the post
of Junior Clerk which was reserved for a person with disability. The
objection was that since there were only 27 posts of Group C, the
petitioner could not have been given the benefit of reservation for
persons with disability.
3. In the reply affidavit also, the same defence has been
taken. It is stated that at the relevant time, there were 27 sanctioned
posts in Group C and, therefore, no post was reserved for persons
with disabilities as it would require a minimum of 33 sanctioned
posts to qualify for 3% reservation by providing one post in the
reserved category for disabled person. The reply further indicate
that in Group D, there were 52 sanctioned posts at the relevant time
and, therefore, there was a provision for one post for person with
disability. It is further contended in the reply affidavit that as per
G.R. Dated 6 May 2004, 100 point reservation roster is required to
be kept for the persons with disabilities, but the roster has to be
maintained cadre-wise in Groups A, B, C and D separately.
4. Learned counsel for the petitioner submits that the G.R.
Dated 6 May 2004 annexed to the reply affidavit on behalf of
respondent no.1, while providing for reservation for persons with
disabilities for the posts in Group A, B, C and D, specifically provides
as under:
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" Direction are given to keep 100 point roster for
each post & to keep category wise reservation for
disabled. It is difficult to determine 3% reservation for
disabled person when there are minimum number of
posts. As per Central Government policy the reservation
of the post in Group C & D can be made together
whereas for Group A & Backward Class determination of
the reservation should be made as per category."
5. Relying on the above direction, it is submitted that there
was nothing wrong on the part of respondent no.3 college in
clubbing Group C and D posts together and accordingly proceeding
on the basis that out of 79 posts in Group C and D in the aggregate
(27 posts in Group C + 52 posts in Group D), applying 3%
reservation, 2 posts were required to be reserved for persons with
disabilities and accordingly the petitioner was appointed on one of
those 2 posts.
6. Learned counsel further submits that when the
petitioner's appointment was terminated in February 2008 on
account of non-approval from the office of respondent no.1, the
petitioner had approached the Mumbai University and College
Tribunal by way of an appeal being Appeal No. 69 of 2008 and by a
judgment and order dated 17 July 2008 the Tribunal allowed the
said appeal. It is vehemently submitted that not only the
termination order was set aside, but the Tribunal directed the college
to reinstate the petitioner with full back wages and the petitioner
was paid full back wages by the college.
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7. Mr. Saluja, learned A.G.P. appearing for respondent nos.1
and 5, has vehemently opposed the petition and relying on the
affidavit in reply of Joint Director of Higher Education submitted
that since there were only 27 sanctioned posts in Group C, applying
3% reservation no post was reserved for persons with disabilities in
view of the fact that there has to be minimum 33 sanctioned posts
for providing reservation of one post in the concerned cadre.
8. Having heard the learned counsel for the parties, we find
considerable substance in the submissions made on behalf of the
petitioner. Admittedly there were 27 sanctioned posts in Group C
and 52 sanctioned posts in Group D, i.e. 79 posts in the aggregate in
Group C and D. The relevant portion of G.R. Dated 6 May 2004
quoted hereinabove clearly provides that as per the Central
Government Policy, the reservation of posts in Group C and D can be
made together. Hence no error was committed when the petitioner
was appointed on the posts reserved for persons with disabilities
since applying 3% reservation to 79 posts in Group C and D, 2.37
posts were available.
9. In view of the above, we allow the petition and direct
respondent nos.1 and 5 to grant approval to the petitioner's
appointment to the post of Junior Clerk with effect from 1 March
2007. Since the petitioner has already been paid the back wages by
the management in compliance with the order of the Tribunal, there
is no question of again giving any direction for payment of back
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wages, but the respondents shall treat the petitioner has having been
appointed on the post of Junior Clerk reserved for persons with
disability with effect from 1 March 2007 for all purpose including
seniority, pay fixation and pensionary benefits, etc.
10. It is clarified that any monetary benefit/s payable to the
petitioner shall be paid to the petitioner only with effect from 1
November 2010 as the present petition was filed on 22 October 2010
11. Respondent no.3 College shall submit a proposal to
respondent no.1 for refixation of petitioner's pay within one month
from the date of receipt of a copy of this judgment and respondent
no.1 shall thereafter pass necessary orders on the proposal within 2
months from the date of receipt of the proposal.
12. The consequential benefits payable to the petitioner shall
be paid within 2 months from the date of the order of respondent
no1.
13. Rule is made absolute in the above terms.
CHIEF JUSTICE
(A.K. MENON, J.)
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