Bombay High Court
Ramling Janardan Nagtilak vs The State Of Maharashtra And ... on 2 August, 2016
Bench: S.S. Shinde
7357.2014WP.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7357 OF 2014
Ramling Janardan Nagtilak
Age- 40 Occu:-Service,
R/o. Yedshi,
Tq. Dist. Osmanabad. PETITONER
VERSUS
1. The State of Maharashtra
School Education and Sports Department
(Through its Secretary)
(Copy to be served on the Govt.Pleader,
High Court - Aurangabad)
2. Marathwada Bahuudeshaia Sevabhavi
Sanstha, Kumbhefal, Tq. Paranda,
Dist. Osmanabad
(Through its Secretary)
3. Dr. Shamprasad Mukherjee Madhyamik
Vidhayalaya, Kumbhefal, Tq.Paranda,
Dist. Osmanabad
(Through the Head Master)
4. The Education Officer
(Secondary)
Zilla Parishad Osmanabad,
Tq. Dist. Osmanabad. RESPONDENTS
...
Mr.V.C.Dharurkar, Advocate for the petitioner
Mr.A.G.Magre, AGP for respondent Nos.1 & 4
Mr.B.K.Patil, Advocate h/f. Mr. S.R.Madhekar,
Advocate for respondent nos. 2 and 3.
...
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7357.2014WP.odt
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CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 15.07.2016
Pronounced on : 02.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
Heard.
2. Rule.
ig Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. It is the case of the petitioner
that on 20.06.2005 the petitioner was
appointed to the post of 'Peon' with
respondent no. 3 school. The appointment was
made after following due procedure. It was
on permanent, clear, vacant and sanctioned
post. On 17.12.2007, the proposal for
approval to the petitioner's appointment was
sent by respondent no.3 to respondent no.4.
The hearing was conducted in the office of
respondent no.4 about grant of approval to
the petitioner's appointment on 29.06.2009
7357.2014WP.odt
and 18.08.2009. On 01.10.2009, respondent
no.4 was pleased to refuse to grant approval
to the petitioner's appointment citing
Government Resolution dated 25.11.2005. The
petitioner as well as the respondent no.3
addressed representations dated 23.07.2012,
10.07.2013, 26.06.2014, 17.12.2012 and
26.08.2013, stating that the reliance on the
Government Resolution dated 25.11.2005 for
consideration of approval to the petitioner's
appointment was misplaced, since the
petitioner's appointment was much prior to
the issuance of Government Resolution dated
25.11.2005 and the Government Resolution
cannot be made applicable retrospectively.
On 14.07.2014, respondent no.4 is still
pleased to reiterate that the petitioner is
not entitled for approval to his appointment
as Peon. Hence this Writ Petition.
4. The learned counsel appearing for
the petitioner submits that the petitioner's
7357.2014WP.odt
appointment is dated 20.06.2005. Therefore,
the Government Resolution dated 25.11.2005
issued by the School Education and Sports
Department, Government of Maharashtra,
Mantralaya, Mumbai cannot be made applicable
with retrospective effect. It is further
submitted that the petitioner's appointment
was on clear vacant and sanctioned post at
the relevant time. It is further submitted
that the petitioner is continuously rendering
the services in respondent institution since
his appointment and therefore, it cannot be
said that there is delay in filing the
proposal for approval by the management. It
is submitted that there is continuing cause
of action for the petitioner, and therefore,
the legitimate claim of the petitioner cannot
be turned down on the technical ground that
the proposal submitted by the respondent
management for approval to the appointment of
the petitioner suffers from the delay or
7357.2014WP.odt
laches. It is submitted that the reasons
given in the impugned communication by
respondent no.4 in view of the Government
Resolution dated 25.11.2005, only two posts
of Peon are admissible to the respondents
School and already three persons are
appointed and also as per the Government
Resolution dated 23.10.2013, the only one
post of the peon is admissible to the
respondent school, cannot sustain since the
said Government Resolutions cannot be made
applicable with retrospective effect to the
case of the petitioner, since the
petitioner's appointment was on 11.06.2005.
Therefore, the learned counsel appearing for
the petitioner submits that the Petition
deserves consideration.
5. On the other hand, the learned AGP
appearing for the respondent - State relying
upon the averments in the affidavit-in-reply
submits that the aforesaid two Government
7357.2014WP.odt
Resolutions are very much applicable to the
facts of the petitioner's case. It is
submitted that if the petitioner was
appointed in the month of June 2005, in that
case the respondent management ought to have
submitted proposal for approval to his
appointment when the proposal of other three
employees was submitted for approval of their
appointments dated 28.10.2005. It is
submitted that as per the Government
Resolution dated 25.11.2005, there are three
posts of peons admissible to the respondent
management, however, already three employees
have been appointed and the approval is
granted to their appointment by respondent
no.4. It is submitted that first time the
management submitted proposal for approval in
the year 2009 and thereafter in the year
2014. There is inordinate delay and laches
which are not explained by the petitioner.
Respondent no.3 school became eligible for
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admissible grants for 8th standard to 10th
standard from September 2006 and the
petitioner is claiming salary and arrears
from 2005 from the Government.
6. We have considered the submissions
of the learned counsel appearing for the
petitioner and the learned AGP appearing for
the respondent - State. With their able
assistance, perused the pleadings and grounds
taken therein, annexures thereto, reply filed
by respondent no.4. Upon perusal of the copy
of the appointment letter placed on record at
Exhibit-B Page-13 of the compilation of the
Writ Petition, it is mentioned in clause-1 of
the said appointment letter that in pursuance
of the application filed by the petitioner on
11.06.2005, he has been appointed to the post
of Peon with effect from 20.06.2005 or from
the date on which the petitioner joined the
post of Peon in the pay scale of
Rs.2550-3200/-. However, in clause 2 there
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are blank spaces and the period of such
appointment is not mentioned. There are also
blank spaces in clause 3 of the said letter.
In the footnote also, there are blank spaces.
If the contention of the petitioner is
accepted, the petitioner was appointed on
20.06.2005 and he has joined the services on
the same day, in that case certainly
provision of the Government Resolution
referred herein above cannot be made
applicable with retrospective effect to the
case of the petitioner. However, the
respondent management will have to produce
the relevant record before respondent no.4 to
show that as a matter of fact the
petitioner's appointment was on 20.06.2005.
From the documents placed on record, it
appears that at least from 17.12.2007, the
respondent management has written letter to
respondent no.4, requesting therein to grant
approval to the services of the petitioner.
7357.2014WP.odt
The petitioner has placed on record the
copies of letters written by respondent no.3
to respondent no.4 stating therein that the
petitioner is in continuous service and the
approval should be granted to his
appointment. Neither the respondent
management has produced original record
before respondent no.4, nor respondent no.4
has applied his mind to the record maintained
by the respondent management.
7. In that view of the matter, the
impugned orders / communications dated
01.10.2009 and 14.07.2014 passed by
respondent no.4 stand quashed and set aside.
Respondent no.4 is directed to reconsider the
case of the petitioner for approval to his
appointment, afresh. Respondent no.3 is
directed to produce the original record
before respondent no.4 within 4 weeks from
today. Respondent no.4 to look into the
original record and find out when the
7357.2014WP.odt
petitioner was appointed, on the date of his
appointment how many posts were vacant,
whether the petitioner was fulfilling the
requisite qualification for the appointment
to the post of Peon at the relevant time,
etc. Respondent no. 4 is directed to take
decision afresh on the proposal submitted by
respondent no.3 for the approval to the
appointment of the petitioner to the post of
Peon. Respondent nos.2 and 3 and the
petitioner to cause appearance before the
Education Officer on 25.07.2016. Respondent
nos. 2 and 3 to produce original record in
relation to the appointment of the petitioner
before respondent no.4. Respondent no.4 can
take decision on 25.07.2016 or may fix one
more date for hearing the petitioner and
respondent nos. 2 and 3, and take the
decision. However, the entire exercise to be
completed as expeditiously as possible,
however within 14 weeks from today.
7357.2014WP.odt
8. The rule is made absolute in the
above terms. The Writ Petition stands
disposed of accordingly. No costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
