Bombay High Court
Fanindrakumar Laxman Baghele vs Zilla Parishad, Bhandara, Thr. ... on 10 August, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1242 of 2016
Fanindrakumar Laxman Baghele,
Aged 38 about years, Occ.-Nil,
Resident of P.O. Saundad Railway,
Tahsil Sadak Arjuni, District Gondia. .... Petitioner.
Versus
1] Zilla Parishad, Bhandara,
through its Chief Executive Officer, Bhandara.
2] The Chairman,
District Selection Committee and
the Collector, Bhandara.
3] The Member,
District Selection Committee and
Chief Executive Officer, Zilla Parishad, Bhandara.
4] Member Secretary, District Selection Committee and
Executive Engineer, Rural Water Supply Department,
Zilla Parishad, Bhandara.
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5] Sandip Vijay Mahakar,
Ramnagar, near D.M. Bar,
Behind Bagalkar Plot, Taluka & Distt. Bhandara.
6] Dinesh Devidas Dhawale,
At Post Makar Dhokda, Manegaon,
Taluka & Distt. Bhandara.
7] Sumit Siddhartha Nagdeo,
At Post Tekapar, Kardha,
Taluka & Distt. Bhandara.
8] Chandrakant s/o Ghanshyam Narayankar, (Intervener)
Aged 25 years, Occ.-Nil, (Amended as per Court' order
R/o.- Plot No.A6, Near BRO Campus, dated 22-3-2016)
Darshan Colony, Nandanwan, Nagpur. .. Respondents.
Shri A.A. Naik, Advocate for petitioner.
Shri B.M. Lonare, AGP for resp. no.2.
Shri R.S. Khobragade, Advocate for resp. nos. 1, 3 and 4.
Shri P.S. Tiwari, Advocate for resp. no.8.
Coram : B.P. Dharmadhikari &
Kum. Indira Jain, JJ.
th
Dated : 10
August, 2016.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
In this Writ Petition two questions fall for determination.
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First one is whether the petitioner an employee on contract
basis since 20-10-2010 can be treated as employee
previously in Zilla Parishad service so as to enable him to
claim extended age of 45 years while applying for the
recruitment. Second question is whether the application
submitted for the employment by the petitioner was in
accordance with the stipulation in Clause 11 of the
recruitment advertisement dated 31-10-2015.
2] The last date for submission of application was
13-11-2015 and the petitioner applied on 06-11-2015. Insofar
as the provision for age is concerned, it is contended by the
learned Advocate for the petitioner that the petitioner though
belonging to Other Backward Class category has applied in
open category and therefore the age of recruitment for the
petitioner is 33 years and if he is above 33 years his
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application cannot be looked into. The learned Advocate for
the petitioner, however, has relied upon Clause 7.2.g of the
advertisement to demonstrate that if such person is already
in the employment of the Zilla Parishad or the State
Government, he should be below 45 years of age on the last
date stipulated for making of an application i.e. on 13-11-2015.
In the present matter, the petitioner admittedly was below 39
years of age on the said date.
3] Learned Advocate Shri Naik for the petitioner further
submits that the experience certificate dated 26-10-2015
showing that the petitioner has been working from 20-10-2010
with Zilla Parishad on contract basis in Water Supply
Department is filed along with that application. No objection
given by the Competent Authority (Executive Engineer) of the
Water Supply Department on 15-10-2015 has also been
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supplied. He invites our attention to the assertion in Writ
Petition to demonstrate that all these documents form part of
the application. Learned Advocate for the petitioner relies
upon the judgment of the Hon'ble Apex Court in the case of
Union Public Service Commission v. Dr. Jamuna Kurup &
Ors. reported at AIR 2008 Supreme Court 2463, particularly
paragraph 13 therein to submit that the Hon'ble Apex Court
has found that no distinction can be made in regular
employee or temporary employee or employee on contract
basis. He, therefore, submits that the rejection of application
on the ground that the petitioner is over 38 years of age is
erroneous.
4] Learned Advocate Shri Khobragade appearing for
respondent nos. 1, 3 and 4 and learned Advocate Shri Tiwari
appearing for respondent no.8 opposed the petition.
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5] The learned Assistant Government Pleader appearing
for respondent no.2 submits that his instructions are still
awaited.
6] According to learned Advocate Shri Khobragade for
respondent nos. 1, 3 and 4 and learned Advocate Shri Tiwari
for respondent no.8, Clause 7.2.g of the advertisement
envisaged only a permanent employee already in
employment of the Zilla Parishad or the State Government.
The petitioner who is working on contract basis therefore is
not covered thereunder. They also invite our attention to the
fact that the petitioner has not applied through proper channel
and as he has applied in open category, his age should have
been below 33 years. The judgment of Hon'ble Apex Court
mentioned supra is sought to be distinguished by contending
that entirely different facts have been looked into there.
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7] With the assistance of all respective Counsel, we have
perused the records. Learned Advocate Shri Khobragade for
respondent nos. 1, 3 and 4 has also invited our attention to
the provisions of the Maharashtra Zilla Parishads (Contract
Service) Rules, 1963 [for short, "the Rules, 1963"]. The said
Rules apply to persons appointed by the Chief Executive
Officer of the Zilla Parishad under a contract for special
purposes. As per Rule 2(b) of the Rules, 1963 "employee
under contract" means a person appointed by, the Chief
Executive Officer under contract and includes a person
appointed on contingency paid establishment, daily-rated
establishment or work-charged establishment; and a part-time
employee. In sub-rule(b-1) "part-time employee" means a
person working under the control of a Zilla Parishad, who is
not governed by the normal working hours applicable to
regular employees. As per sub-rule (c) "regular employee"
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means a person working under the control of a Zilla Parishad
(no being an employee under contract). As per Rule 3 sub-
rule(4) of the Rules, 1963, the qualifications in respect of age,
education and experience, etc. for appointment to the posts
on Work-Charged Establishments, shall be the same as are
applicable to similar posts on regular establishment.
8] Perusal of judgment of the Hon'ble Apex Court
mentioned supra, shows that therein the advertisement dated
13-03-2004 published by the UPSC for 45 posts of 'Ayurvedic
Vaids' was looked into. It prescribed that age should not
exceed 35 years. The UPSC advertisement clearly specified
that the age limit of 35 years was relaxable for employees of
Municipal Corporation of Delhi, upto five years. The Hon'ble
Apex Court in paragraph 13 has considered this aspect and
found that the respondents before it who were appointed on
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contract basis initially for a period of six months & continued
thereafter from time to time for further periods of six months
each, were therefore, employees of the Municipal Corporation
of Delhi, and consequently, entitled to the benefit of age
relaxation. It held that the fact that the scope of term
'employees of Municipal Corporation of Delhi' is no way
restricted, makes it clear that the intention was to include all
employees including contractual employees.
9] Any employer has option to engage the employees on
daily-wages, on temporary basis or then permanently. The
provisions to which our attention has been invited do not
show that the contractual employees have not been treated
as Zilla Parishad employees. On the contrary, it appears that
under the said Rules of 1963, the Zilla Parishad has to
regulate their employment. The advertisement speaks of
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employees in service of Zilla Parishad or in service of
Government, and if such employee is already in service of
Zilla Parishad or State Government, he has to be below 45
years of age on the last date prescribed for submission of
application. The petitioner fulfills this requirement.
10] The question whether the petitioner belongs to Other
Backward Category or not is not relevant. As once it is held
that the petitioner is entitled to the benefit of Clause 7.2.g the
upper age limit in his case is 45 years & that age limit does
not depend upon his caste.
11] The other question is whether the petitioner has applied
as per Condition No.11 of the advertisement. The said
condition requires Government, Semi Government employees
to apply with permission of Competent Authority and to
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produce the original of such permission at the time of
verification of documents. If this condition is not fulfilled,
resultant consequence is refusal to issue appointment order
of a candidate who is selected on the strength of such
deficient application. The petitioner before this Court has in
paragraph 5 of the petition specifically stated that he has
submitted an application along with the documents which
are annexed collectively and marked as Annexure "C" with
the Writ Petition. "No objection" given by the Executive
Engineer on 15-10-2015 is thus claimed to be enclosed along
with the application to the employment. By said "no
objection" on the subject of grant of permission to apply for
recruitment, the petitioner has been given permission to apply
for the recruitment in year 2016-2017 and to appear for
examinations, if any. This assertion & annexure has not been
denied by any of the respondents. Respondent nos.1, 3 and
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4 has in paragraph 6 stated that perusal of documents filed
by the petitioner itself shows that he is not a State
Government/ Zilla Parishad employee and therefore had not
applied through proper channel. On the basis of this and
perusal of the papers submitted by the petitioner, the further
contention is therefore that the petitioner is not entitled to
claim age relaxation. Respondent no.8 has filed reply-
affidavit and in paragraph 7 after mentioning the condition of
age it is pleaded that from perusal of said condition it is
apparent that the relaxation is provided to departmental
candidates who applied through the department and not to
candidates like the petitioner who have worked on the
contract basis for few months. Thus, there is no express
assertion that the petitioner did not apply as contemplated by
Clause 11 of the advertisement. Clause 11 of the
advertisement as mentioned supra only contemplates
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submission of application with previous permission of the
Competent Authority. Such permission (in original) is
required to be produced for verification at the time of scrutiny
of documents. It appears that even the copy of such
permission is not required to be enclosed along with the
application. It's later part laying down consequence of not
producing original permission for scrutiny reveals that the
application is to be processed further and if said employee is
selected, his documents are scrutinized. If at that time, said
permission is not produced, he cannot be issued appointment
order.
12] In this case, as we find that the petitioner has submitted
necessary authorization/permission of Competent Authority
and upper age limit in this case is 45 years, we hold that his
candidature needs to be looked into on merits by respondent
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nos.2, 3 and 4. Therefore, impugned communication dated
15-02-2016 is quashed and set aside.
13] Rule is made absolute accordingly. No costs.
JUDGE JUDGE
Deshmukh
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 12/08/2016
P.A. to the Hon'ble Judge.
