Shubhangi D/O Mahadeorao Dakhore vs State Of Maharashtra Thr Its ...
2016 Latest Caselaw 4536 Bom

    WP 396/16                                                1                          Judgment

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR.




                                                                                            
                            WRIT PETITION No. 396/2016




                                                                   
    Shubhangi D/o Mahadeorao Dakhore,
    Aged about 36 years, Occu.:-Service,
    R/o. C/o. Mahadeorao Chindhuji Dakhore,
    Plot No.3, Ram Mandir road,
    Ayodhya nagar, Nagpur.                                                              PETITIONER




                                                                  
                                         .....VERSUS.....
    1.     State of maharashtra,
           through the Secretary,
           Department of Social Justice,
           Mantralaya, Mumbai-32.




                                                    
    2.     The Commissioner for Welfare of Disables,
           Government of Maharashtra,
                              
           Central Building 3, Church Road, Pune-1.
    3.     District Social Welfare Officer,
           Zilla Parishad, Nagpur.
                             
    4.     Matru Seva Sangh,
           Through its Secretary,
           Administrative Building,
           North Ambazari Road, 
           Sitabuldi, Nagpur.
      

    5.     The Superintendent,
           Nandanwan School for mentally retarded,
   



           Near Janki Talkies, Sitabuldi, Nagpur.                                   RESPONDENTS

                        Smt.S.W. Deshpande, counsel for the petitioner.
         Shri V.P. Maldhure, Assistant Government Pleader for the respondent nos.1 to 3.
                    Mrs.R.S. Dewani, counsel for the respondent nos.4 and 5..





                                              CORAM :SMT.VASANTI  A  NAIK AND
                                                          MRS.SWAPNA JOSHI, JJ.     

DATE : 8 TH AUGUST, 2016.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

RULE. Rule made returnable forthwith. The petition is heard

finally at the stage of admission with the consent of the learned counsel

for the parties.

WP 396/16 2 Judgment

2. By this writ petition, the petitioner seeks a direction to the

respondents to grant approval to the appointment of the petitioner on the

post of Hostel Warden in the pay-scale of Rs.3050-75-3950-80-4590. The

petitioner has sought a direction against the respondents to release the

arrears of salary to the petitioner, with interest.

3. The respondent no.4 is a registered trust that runs three

schools for the physically challenged and the mentally retarded children.

In pursuance of an advertisement issued by the respondent no.4 in the

year 2008, the petitioner applied for the post of Hostel Warden.

According to the petitioner, as per the Special School Code, 1997, the

educational qualification required for the appointment on the post of

Hostel Warden is only a graduates' degree. The petitioner is an Arts

Graduate. The petitioner was appointed on the post of Hostel Warden by

the respondent no.4, on 24.07.2008. The petitioner continued to work on

the post of Hostel Warden and the management sent the proposal for

grant of approval to the appointment of the petitioner on the post of

Hostel Warden to the respondent no.3-District Social Welfare Officer.

The respondent no.3, however, did not grant approval to the appointment

of the petitioner. It was the case of the respondents that apart from a

graduates' degree, it is necessary for the Hostel Warden to possess a

diploma in the relevant subject, that concerns with the physical disability

or mental retardation. The petitioner successfully completed the diploma

WP 396/16 3 Judgment

in Vocational Rehabilitation (Mental Retardation), in June-2012. After

securing the said diploma, the management again sent the proposal of the

petitioner to the respondent no.3 for grant of approval. Since the

approval to the appointment of the petitioner as Hostel Warden is not

granted till date, the petitioner has filed the instant petition on

12.01.2016, seeking the aforesaid relief.

4. Mrs.Deshpande, the learned counsel for the petitioner,

submitted that as per the Special School Code, 1997, a Hostel Warden is

required to only possess a graduates' degree. It is stated that by the

Government Resolution dated 18.08.2004, the State Government decided

to provide for an additional qualification of diploma in the subject of

Physical disability or Mental Retardation. It is submitted that the

Government Resolution dated 18.08.2004 is the subject matter of

challenge before the Principal Seat. It is stated that in any case, since the

petitioner has secured the diploma in Vocational Rehabilitation (Mental

Retardation) in June-2012, it was necessary for the respondents to have

granted the approval to the appointment of the petitioner as Hostel

Warden at least from June-2012. It is stated that a direction may be

issued to the respondents to grant approval to the petitioner from June-

2012 and in case, the writ petition pending at the Principal Seat is

dismissed, the respondents may be directed to consider granting approval

to the petitioner from the date of her appointment in July-2008.

WP 396/16 4 Judgment

5. Shri Maldhure, the learned Assistant Government Pleader

appearing for the respondent nos.1 to 3, submitted that the petitioner

had admittedly not possessed a diploma in the relevant subject

concerning the physical or mental disability as per the Government

Resolution dated 18.08.2004 at the time of her appointment, on

24.07.2008. It is submitted that since the petitioner did not possess the

requisite diploma, the respondents had not granted approval to the

appointment of the petitioner in 2008. It is submitted that after the

petitioner secured the diploma in Vocational Rehabilitation (Mental

Retardation), the District Social Welfare Officer has made a query to the

respondent no.2-Commissioner for Welfare of Disabled, Pune, whether

the diploma secured by the petitioner could be considered as a diploma,

as required by the Government Resolution dated 18.08.2004. It is stated

that the respondent no.3-District Social Welfare Officer has till date, not

received any opinion from the respondent no.2 on the said query. It is,

however, not disputed that the petitioner has secured a diploma in

Vocational Rehabilitation (Mental Retardation), in June-2012. It is stated

that if this Court is inclined to direct the respondents to grant the

approval to the appointment of the petitioner from June-2012, this Court

may direct the respondents to pay the salary only for a period of three

years preceding the date of filing of the writ petition on 12.01.2016. It is

stated that an appropriate order may be passed in the circumstances of

the case.

WP 396/16 5 Judgment

6. Mrs. Dewani, the learned counsel for the respondent nos.4

and 5, has supported the claim of the petitioner. It is submitted that the

appointment of the petitioner is made after following the due procedure

prescribed by law. It is submitted that the Government Resolution dated

18.08.2004 is the subject matter of challenge before the Principal Seat. It

is stated that a direction to the respondent no.3 to grant the approval to

the appointment of the petitioner, at least from June-2012 may be issued

and the respondents may be directed to pay the salary to the petitioner.

7. On hearing the learned counsel for the parties, we find that a

case has been made out by the petitioner for a direction against the

respondent no.3 for grant of approval to the appointment of the

petitioner on the post of Hostel Warden, with effect from June-2012.

Admittedly, the respondent no.4 had sought the permission of the

respondent-Authorities to fill the post of the Hostel Warden before the

appointment of the petitioner was made in the year 2008. Admittedly, as

per the Special School Code, 1997, the qualification for appointment on

the post of Hostel Warden is only a graduates' degree. The petitioner

admittedly possessed the graduate's degree in Arts. The petitioner has

also secured the diploma in Vocational Rehabilitation (Mental

Retardation) in June-2012. If that be so, there was no hindrance in the

way of the respondent no.3 in granting approval to the appointment of

the petitioner at least from June-2012. However, the respondent no.3

WP 396/16 6 Judgment

made a query, whether the said diploma could be the relevant diploma, as

prescribed in the Government Resolution dated 18.08.2004. Though the

query is not yet answered by the respondent no.2, on a reading of the

Government Resolution, we find that diploma in Vocational

Rehabilitation (Mental Retardation) would be a diploma that is required

by the Government Resolution dated 18.08.2004. The school in which

the petitioner is appointed as a Hostel Warden deals with mentally

retarded children and the diploma secured by the petitioner is in

Vocational Rehabilitation (Mental Retardation). The petitioner has

secured the diploma in the relevant subject in June-2012. The

respondent no.3 should have, therefore, granted approval to the

appointment of the petitioner on the post of Hostel Warden, at least from

June-2012. In our view, if the writ petition filed at the Principal Seat is

dismissed, it would be necessary for the respondent no.3 to consider

granting approval to the appointment of the petitioner as Hostel Warden

from the date of her appointment, i.e. 24.07.2008. We, however, find

much force in the submission made on behalf of the respondent nos.1 to 3

that though the petitioner would be entitled to approval with effect from

June-2012, the petitioner would not be entitled to the arrears of salary or

any other monetary benefits flowing from the order of approval and

continuity of service for a period of more than three years preceding the

date of filing of the writ petition. Since the writ petition is filed on

12.01.2016, the petitioner would be entitled to the monetary benefits

WP 396/16 7 Judgment

from the respondent nos.1 to 3 and the respondent no.4 also, only with

effect from 12.01.2013.

8. Hence, for the reasons aforesaid, the writ petition is partly

allowed. We hereby direct the respondent no.3 to grant approval to the

appointment of the petitioner as Hostel Warden with effect from June-

2012. Though the petitioner would be entitled to continuity of service

with effect from the said date, the petitioner would be entitled to

monetary benefits, i.e. the arrears of salary and the other monetary

benefits with effect from 12.01.2013 only. We direct the respondent no.3

to grant approval to the appointment of the petitioner from June-2012

within four weeks and pay the arrears of salary to the petitioner within

three months from the date of this judgment-order. It is needless to

mention that the respondents should release the regular salary of the

petitioner by considering the grant of approval from June-2012,

regularly.

Rule is made absolute in the aforesaid terms with no order as to costs.

                  JUDGE                                             JUDGE



    APTE





     WP 396/16                                           8                          Judgment

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