Bombay High Court
Sambhaji Narayan Dewate And ... vs The State Of Maharashtra And ... on 5 August, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10149 OF 2014
1. Sambhaji s/o. Narayan Dewate,
Age: 49 years, Occup: Service
(presently nil), r/o. Ganga Colony,
Wadi (Bk.), Tq. & Dist. Nanded.
2. Govind s/o. Bhiwaji Gawale,
Age: 42 years, Occup: Service
(presently nil), r/o.Jawahar Nagar,
Tuppa, Tq.& Dist.:Nanded PETITIONERS
VERSUS
1. The State of Maharashtra
Through its Secretary,
Social Welfare, Cultural Affairs
and Sports Department,
Mantralaya, Mumbai-32.
2. The Commissioner for
Welfare of Physically Handicapped,
Maharashtra State,
3, Church Road,
Pune-411 001.
3. The Director of Social Welfare,
Maharashtra State,
Pune-1.
4. The Social Welfare Officer Group-A,
Zilla Parishad, Nanded
5. Deep Shikshan Sanstha,
Mukramabad, Tq.Mukhed
Dist.:Nanded, through its
President Shri Kailash Babuappa
Yampalle
::: Uploaded on - 05/08/2016 ::: Downloaded on - 07/08/2016 00:37:42 :::
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6. Vishwakarma Residential School
for Handicapped, Jintur, Tq.Jintur,
Dist. Parbhani
Through its Head Master.
(Respondent No.6 is added as per
Court's Order dtd.22.02.2016)
7. Deep Shikshan Sanstha,
Nanded
Through its President
Shri Narayan Deorao Pawar,
r/o Vazirabad, Nanded
(Respondent No.7 added as per
Court's order dtd.30.03.2016) RESPONDENTS
...
Mr.P.G.Rodge, Advocate for the petitioners
Mr.V.H.Dighe, AGP for respondent nos.1 to 3.
Respondent nos.4 to 7 served.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 21.07.2016
Pronounced on : 05.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
2. This Petition takes exception to the
impugned order / decision dated 30.06.2014
passed by respondent no.2 and further seeks
directions to respondent nos.2 to 4 to absorb
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the petitioners in any other recognized
school within stipulated period.
3. It is the case of the petitioners
that petitioner no.1 is having qualification
of S.C.C. and C.T.C. Petitioner no.2 has
passed 7th standard. Both the petitioners
belong to S.C. category. Petitioner no.1 came
to be appointed in Vishwakarma Residential
Handicapped school at Pandurangnagar, Nanded
run by respondent no.5 society on the post of
Art Teacher w.e.f. 15.06.1994 against a
clear, vacant and sanctioned post by
following due procedure. Petitioner no.2 came
to be appointed on the post of Peon in the
said school w.e.f. 15.06.1995. The said
school run by respondent no.5 was receiving
100% grant-in-aid at the relevant time. From
the dates of their initial appointments, the
petitioners were in service in the said
school till the refusal of registration to
the said school by respondent no.3 by order
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dated 24.05.1999. The District Social Welfare
Officer, Nanded, by an order dated
25.06.1998, granted approval to the
appointments of the petitioners as Art
Teacher and Peon respectively, from
01.07.1996 to 31.03.1998 i.e. for two
academic years. Thereafter, the District
Social Welfare Officer, Nanded, by order
dated 31.03.2011, granted approval in favour
of the petitioners from 01.04.1998 to
28.04.1999. Thus, the petitioners attained
the status of deemed confirmed employees in
the said school having been served
continuously for three years.
4. It is further the case of the
petitioners that the service books of the
petitioners in the said school were also
prepared and the benefit of revised pay scale
as per 5th Pay Commission had also been
granted to them. Petitioner no.1 has also
worked as Incharge Head Master of the said
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school. Respondent no.3, by order dated
24.05.1999, refused to grant further
registration to the said school run by
respondent no.5 society and the said
refusal / derecognition is not attributable
to the petitioners, but the same is
attributable to respondent no.5 society.
Therefore, as per the decision of this Court
in Writ Petition No.5744/2003 (Bhagwan
Rambhau Gore Vs. State of Maharashtra and
others) and Writ Petition No.43/2004 (Avinash
Raghunath Walkikar & others Vs. State of
Maharashtra & others), the petitioners are
entitled for their absorption in any other
recognized school as per the provisions of
Rule 25-A of the Maharashtra Employees of
Private Schools (Condition of Service) Rules
(for short 'the said Rules'). Therefore,
petitioner no.1 made representation on
25.08.2004 to respondent no.4 for absorption
of the employees of the said school.
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5. It is further the case of the
petitioners that in view of the decision of
this Court in Writ Petition No.5744/2003
(Bhagwan Rambhau Gore Vs. State of
Maharashtra and others) and Writ Petition
No.43/2004 (Avinash Raghunath Walkikar &
others Vs. State of Maharashtra & others),
respondent no.2 issued Circulars and
Instructions from time to time for absorption
of surplus employees of the de-recognized
handicapped schools and by issuing letters
called necessary information from all the
Zilla Parishads as regards vacant posts in
the recognized schools. After the orders were
passed by this Court in Writ Petition No.
5744/2003 (Bhagwan Rambhau Gore Vs. State of
Maharashtra and others) and Writ Petition
No.43/2004 (Avinash Raghunath Walkikar &
others Vs. State of Maharashtra & others),
the respondent authorities prepared the list
of the closed down handicapped schools and
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workshops due to cancellation of registration
certificate and they have also prepared the
list of the employees, who were working in
the said closed down schools and also
recommended the names of such employees for
their absorption in the other schools. As per
the information gathered by them, most of the
employees of the said list have been
absorbed by the respondent authorities and
continued their services. However, the
respondents did not consider the claim of the
petitioners. In the meanwhile, the
derecognized handicapped school wherein the
petitioners, who were working, came to be
transferred to new management under the
Government directions, and shifted the
earlier Vishwakarma Residential School for
handicapped from Pandurang Nagar, Nanded
wherein the petitioners were serving to
Jintur, Dist. Parbhani, and since then the
said school is running at Jintur.
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6. It is further the case of the
petitioners that though, the petitioners have
preferential right to be absorbed in
respondent no.6 school, but respondent no.6
school did not allow the petitioners to join
the said school, and the respondent
authorities also did not take any effective
steps / decision for absorption of the
petitioners.
7. It is further the case of the
petitioners that in response to the
representation dated 25.08.2004 and also as
per the instructions issued by respondent
no.2, since respondent no.4 did not forward
the proposal to respondent no.2 for
absorption of the petitioners, petitioner
no.1 by representation dated 13.07.2009
requested respondent no.4 to forward proposal
for absorption of petitioners and other
surplus employees of the said school run by
respondent no.5. Again, the petitioners by
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representation dated 29.12.2009 requested
respondent no.4 to submit proposal to
respondent no.2 for their absorption.
8. It is further the case of the
petitioners that respondent no.4 submitted
proposal on 06.01.2010 before respondent no.2
for absorption of the petitioners. However,
respondent no.2 neither considered the said
proposal, nor communicated anything to the
petitioners for more than two years.
Therefore, the petitioners preferred Writ
Petition No.913/2013 (Sambhaji Narayan Dewate
and another Vs. The State of Maharashtra)
before the High Court seeking directions for
their absorption. The High Court, by order
dated 22.04.2014, was pleased to dispose of
the said Writ Petition by directing
respondent no.2 to decide the said proposal
dated 06.01.2010 on or before 30.06.2014.
Thereafter, as per the directions of this
Court, respondent no.2 proceeded to decide
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the said proposal and accordingly, by order
dated 30.06.2014, respondent no.2 rejected
the said proposal on the ground that the said
proposal has been submitted belatedly after
lapse of 11 years, and no explanation is
given in regard to steps taken for getting
the petitioners absorbed in the transferred
school and started by respondent no.2 in the
year 2004 at Jintur, District Parbhani. It is
further observed that the petitioners and the
office of respondent no.4 seem to have
disinterested in the absorption process and
the claim of the petitioners, and the
proposal submitted by respondent no.4 are
time barred.
9. The learned counsel appearing for
the petitioners submits that respondent no.2
did not appreciate that the petitioners and
also respondent management are continuously
persuading respondent no.4 and respondent
no.2 by making representations. He invites
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our attention to the copies of the
representations, which are placed on record.
It is submitted that as per the directions
issued by respondent no.2 on 21.04.2007,
respondent no.4 has not taken any steps for
allowing the petitioners to join the
Residential Handicapped School started by
respondent no.5 society at Jintur, District
Parbhani and/or for absorption of the
petitioners in any other recognized school.
The said aspect has not been taken into
consideration by respondent no.4. It is
submitted that the petitioners are declared
as surplus and their legitimate claim for
absorption cannot be turned down by assigning
unsustainable reasons by respondent no.2. It
is submitted that the impugned order is
passed without application of mind by
respondent no.2 and is without considering
the case of the petitioner on merits. It is
submitted that the Division Bench of the
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Bombay High Court Bench at Aurangabad in the
case of Shivkumar Meherbabu Shriramwar &
others Vs. The State of Maharashtra in Writ
Petition No.2216/2013 decided on 16.09.2015
has considered the claim of the petitioners
therein, who were removed from the service in
the year 1999 and directed the respondents
therein to consider the prayer of the
petitioners therein for absorbing them in the
services of the respondents.
10. On the other hand, the learned AGP
appearing for respondent - State relying upon
the reasons assigned by respondent no.2 in
the impugned communication submits that
respondent no.2 has rightly turned down the
request of the petitioner for absorption on
the ground that there was inordinate delay in
approaching the respondent authorities by the
petitioners and also the earlier school
wherein the petitioners were serving.
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11. In spite of giving sufficient
opportunity to the respondents, none of the
respondents has filed reply. Therefore,
pleadings / grounds taken in the Petition
remained uncontroverted on behalf of the
respondents and presumption can be in favour
of the petitioner that the said pleadings /
grounds have been accepted by the
respondents.
12. We have given careful consideration
to the submissions of the learned counsel
appearing for the petitioners and the learned
AGP appearing for the respondent - State.
With their able assistance, perused the
pleadings in the petition, annexures thereto
and the documents placed on record by the
parties. It appears that respondent no.2 has
negativated the claim of the petitioners on
the ground of delay and concluded that the
prayer of the petitioners for absorption is
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time barred. Upon perusal of the copies of
documents placed on record by the
petitioners, it appears that various posts
were sanctioned by the office of the District
Social Welfare Officer, Nanded in respondent
no.6, by his letter dated 25.06.1998
addressed to the President / Secretary /
Director of respondent no.6 school. It
further appears that petitioner no.1, who is
from S.C. Category was appointed as Art
Teacher in the pay scale of Rs.1200-2040/-.
Petitioner no.2 namely Govind Bhiwaji Gawale,
who is from S.C. category was appointed as
Peon in the pay scale of Rs.770-1150. It is
evident from the documents placed on record
that the approval was granted to his
appointment by the District Social Welfare
Officer, Nanded. It further appears that
staffing pattern was approved for as many as
8 posts including the posts on which the
petitioners were appointed for the period
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from 01.04.1998 to 28.04.1999 by the District
Social Welfare Officer.
13. It further appears from the order
passed by the Director of Social Welfare,
Maharashtra State, Pune on 24.05.1999
(Exhibit-B Page 18) that the respondent
school did not fulfill the requirements for
registration and also there were inadequate
number of students and therefore, the said
authority rejected the application for
registration of the said school. It further
appears from the perusal of the letter
written by the Headmaster of the said school
to the District Social Welfare Officer on
25.08.2004 that the respondent school
received the approval for three years and
therefore it was requested to make applicable
the recommendations of 5th Pay Commission in
respect of the employees working in the said
school. There was also a request made by the
employees, who were working in the said
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school, which was closed due to rejection of
approval to the registration of the said
school by the Director of Social Welfare,
Maharashtra State, Pune. Therefore, the
request is made in the said letter to absorb
all the employees in some other schools. It
is further stated in the said letter that due
to closure of the school, the employees are
on the verge of starvation. It further
appears from the perusal of the letter
written by the Commissioner, Social Welfare,
Maharashtra State, Pune to the Social Welfare
Officer, Zilla Parishad and also to the
Special Social Welfare Officer, Bombay that
the Bombay High Court Bench at Aurangabad in
Writ Petition No.5744/2003 [Bhagwan Rambhau
Gore Vs. State of Maharashtra and others] and
Writ Petition No.43/2004 [Avinash Raghunath
Walkikar & others Vs. State of Maharashtra &
others] issued directions to the said
authority to prepare common seniority list of
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the employees who were working in the
schools, which are already closed down. It
further appears that in the said letter there
is a reference of the said Writ Petitions and
also directions issued by the High Court to
prepare common seniority list of such
teachers and absorbed them as per the
seniority. Therefore, the instructions were
issued to the various Ashram Schools not to
make fresh appointments without prior
permission / approval of the respondent
authorities. It was informed that the
appointments made without seeking approval in
that case appropriate action will be taken
against erring Officer and also against the
said school. It is specifically mentioned in
the said letter that in case the school is
closed down and transferred to some other
institution the employees working in the said
school, are required to be absorbed in the
transferred school, and the school at
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transferred place cannot go ahead with fresh
recruitment of staff.
14. Sum and substance of the said letter
is that the High Court directed to prepare
common seniority list of all the employees
who had served in the schools which were
already closed down and thereafter absorb
those employees as per the seniority. It
further appears that respondent authorities
have taken steps to prepare common seniority
list of surplus teachers from the closed
handicapped, deaf and dumb and visually
challenged students for the purpose of their
absorption in some other schools. The
petitioners' names find place in the said
list of surplus employees declared from the
respondent no.6 school. It appears that the
said list was prepared somewhere in the year
2007-08 and since then the petitioners are
awaiting their absorption. It further appears
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that the Headmaster of respondent no.6 school
had further written letter to the District
Social Welfare Officer on 20.07.2009
requesting therein for absorption of the
employees who are declared surplus from
respondent no.6 school. There is also
reference in the said letter that the
approval was granted to the said school for
consecutive three years. It further appears
that there is also another letter written by
the Headmaster to the Commissioner,
Handicapped, Maharashtra State, Pune on
20.07.2009 requesting absorption of all the
surplus employees. There is also letter
written by the present petitioners and also
one employee on 29.12.2009 to the Social
Welfare Officer, Zilla Parishad, Nanded for
their absorption in some other schools. There
is a letter written by the Social Welfare
Officer, Group-A, Zilla Parishad, Nanded to
the Commissioner, Handicapped Welfare,
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Maharashtra State, Pune on 06.01.2010 by
which the said Officer forwarded proposal for
necessary action at the end of the said
Commissioner for absorption of the surplus
teachers from respondent no.6 school.
Therefore, upon perusal of the pleadings in
the Petition and the copies of the documents
placed on record, there is no manner of doubt
that the petitioners and also the Headmaster
of respondent no.6 school were continuously
pursuing the cause and requesting their
absorption in some other schools. It appears
that there is total non-application of mind
by respondent no.2 to the facts of the case
and in a mechanical manner, respondent no.2
rejected the request of the petitioners and
other similarly situated employees, who were
working in the said school and whose names
have been included in the list of surplus
teachers prepared by the respondents on the
ground that their prayer is belated and time
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barred, and therefore, the same cannot be
considered.
15. In the light of the discussion
hereinabove, we quash and set aside the
impugned order / decision dated 30.06.2014
passed by respondent no.2, and we direct
respondent no.2, to consider the claim of the
petitioners on merits after hearing the
petitioners and also similarly situated
persons and keeping in view their service
record and the fact that their names have
already been included in the list of surplus
employees prepared by the respondent
authorities in pursuance of the directions
issued by this High Court in Writ Petition
Nos.5744/2003 and 43/2004. We make it clear
that respondent no.2 shall not assign the
same reasons, which are assigned in the
impugned communication, and take decision on
the claim of the petitioners on merits. The
petitioners are awaiting their absorption
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since long, therefore, we direct respondent
no.2 to take decision after hearing the
petitioners and also all concerned including
the Headmaster as expeditiously as possible,
however, within 10 weeks from today and
communicate the said decision to the
petitioners and the concerned respondents.
The petitioners and respondent no.6 shall
appear before respondent no.2 in his office
on 16th August, 2016. Respondent no.2 shall
allow the petitioners and also respondent no.
2 to place on record the copies of the
documents, if any, and after summoning the
record of the office of the Social Welfare
Officer, Zilla Parishad, Nanded as well as
the Special Social Welfare Officer, Nanded,
take a decision on the same day or may fix
further date for hearing and for taking
decision. However, the entire exercise has to
be completed as expeditiously as possible,
however, within 10 weeks from today.
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16. The Petition is partly allowed. The
Writ Petition is disposed of on above terms.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
