Bombay High Court
Ashok Namaji Sahare vs Education Officer (Sec.) Zp, Ngp. ... on 26 April, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 10 OF 2005
Ashok Namaji Sahare,
aged 46 years, occupation :
service, resident of Plot No.130,
Kapilnagar, Nagpur, District
Nagpur. ... Petitioner
- Versus -
1) Education Officer (Secondary),
Zilla Parishad, Nagpur.
2) Nagsen Education Society,
Bezonbagh, Nagpur, through its
President Shri Chintaman Govinda
Mohite, r/o Dr. Ambedkar Colony,
Lashkaribagh, Post Dr. Ambedkar
Marg, Nagpur - 17.
3) Nagsen Vidyalaya, Kamptee Road,
Bezonbagh, Nagpur, through its
Head Master.
4) Aadarsh Kanya Shala, Bezonbagh,
Nagpur, through its Head Mistress.
5) Shri S.T. Gedam, Junior Clerk,
Nagsen Vidyalaya, Kamptee Road,
Bezonbagh, Nagpur. ... Respondents
-----------------
Shri B.H. Shambharkar, Advocate for petitioner.
Smt. M.N. Hiwase, Assistant Government Pleader for
respondent No. 1.
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CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
APRIL 26, 2016
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) :
Heard Shri Shambharkar, learned counsel for the
petitioner and Smt. Hiwase, learned Assistant Government
Pleader for respondent No. 1. Nobody appears for other
respondents.
2) Shri Shambharkar, learned counsel submits that the
petitioner claims promotion as Junior Clerk in view of
provisions of Part 3 of Schedule `F' of Maharashtra Employees
of Private Schools (Conditions of Service) Rules, 1981,
(hereinafter referred to as MEPS Rules, 1981). He contends
that one post of Junior Clerk became vacant and as the
petitioner was senior-most candidate, who had improved his
educational qualification and was eligible for it, he needed to be
given that post. He points out that this Court on 04/01/2005
directed the parties to maintain status quo. Though respondent
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No. 5 was selected and appointed as direct recruit on that post,
respondent No. 5 did not report for duty and post is lying
vacant since last about 10-11 years. He points out that the
petitioner has hardly one year of service left before his
superannuation. He is relying upon Division Bench judgment in
the case of Ramesh Shivram Khairnar vs. State of Maharashtra
and others (2003 (4) Mh.L.J. 470), particularly paragraphs 11
and 12.
3) Smt. Hiwase, learned Assistant Government Pleader
for respondent No.1, is opposing the petition. She submits that
as the Management had two Schools and two posts of Junior
Clerk, the roster applies and as per that roster, one post of
Junior Clerk is reserved for backward class, i.e. Scheduled
Tribe. The petitioner does not belong to Scheduled Tribe and
hence, post was rightly advertised. She further states that if
respondent No. 5 has abandoned employment, Management
cannot keep the post vacant for such a long time and somebody
else must be working. She, therefore, prays for dismissal of the
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petition. In the alternative, she has also sought adjournment to
obtain instructions about alleged abandonment of employment
by respondent No. 5.
4) Respondent No. 1 has filed reply-affidavit wherein it
has been pointed out that respondent No. 2 - Society is running
two High Schools, which receive 100% grant-in-aid from State
Government. One post of Senior Clerk is sanctioned in each
School. There are two posts of Junior Clerk and three posts
of Senior Clerk. One Y.T. Jambhulkar, Senior Clerk then in
employment in Nagsen Vidyalaya retired on 31/05/2002. Shri
S.S. Bipate, Junior Clerk was then promoted as Senior Clerk
vide Resolution dated 20/6/2004 by the Management. As such,
only one post of Junior Clerk became available. The other post
was occupied by open category candidate and hence, the vacant
post needed to be filled in by a reserved category candidate, i.e.
Scheduled Tribe candidate. As such, respondent No. 1
permitted the Management to issue advertisement.
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5) Perusal of Schedule `F' - Part 3 of the MEPS Rules,
1981, shows that insofar as post of Peon is concerned, it is
classified as Lower Grade Staff. It is specifically stipulated that
if any of the Lower Grade Staff improves his qualification and
becomes eligible for the post of Clerk, such employee should be
given preference while filling up said post according to his place
in seniority. This provision has been looked into by the Division
Bench in its judgment in the case of Ramesh Shivram Khairnar
vs. State of Maharashtra & Ors., (supra). The Division Bench
has found that the petitioner before it is required to be
considered first and if he is found fit, he should be appointed as
Junior Clerk. The act of the management in publishing
advertisement before considering his eligibility has been held to
be unsustainable.
6. Smt. Hiwase, learned AGP, however, has invited our
attention to the judgment delivered by Full Bench of this Court
in the case of Tanaji Madhukar Barbade vs. State of Maharashtra
& Ors., reported at 2010 (6) Mh. L.J. 901. Full Bench has
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considered the above mentioned Division Bench view as also a
Division Bench which had taken a view to the contrary and
concluded that the provisions contained in Schedule 'F' of the
MEPS Rules, do not provide promotion to the post of Junior
Clerk and merely prescribe a preference to be given to the lower
grade staff in making appointment to the post of Junior Clerk.
The relevant legal provisions in Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977,
and MEPS Rules, 1981, are looked into by Full Bench.
7. In this situation, it is apparent that the claim of the
present petitioner that he should be promoted as Junior Clerk
cannot be accepted. The petitioner deserves only preference
and preference would employ priority when two equal persons
become available. The facts on record show that the post of
Junior Clerk may not have been filled in and is vacant even
today.
8. In this situation, we direct the respondents to
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consider the entitlement of the petitioner to preference as per
Part 3 of Schedule 'F' of Rules 1981, as and when they decide to
fill in the vacancy in the cadre of Junior Clerk.
9. Considering the fact that the petitioner is due for
superannuation shortly, we also direct the respondents to
expedite the process.
10. With these directions, we dispose of the present writ
petition. Rule is made absolute accordingly. However, in the
facts and circumstances of the case, there shall be no order as to
costs.
JUDGE JUDGE
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