Bombay High Court
Shrikant Dayaram Nagarkar vs State Of Mah.Thr.Secr.Mumbai And ... on 31 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3030/2005
PETITIONER: Shrikant s/o Dayaram Nagarkar
Aged 45 years, Occu : Service,
R/o Plot No.136, Laghuvetan Colony,
Post Jaripatka, Nagpur.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra
through its Principal Secretary,
Social Welfare Department, Mantralaya,
Mumbai - 32.
2. The Director of Social Welfare,
State of Maharashtra, Central Building,
Pune - 1.
3. The Commissioner of Social Welfare and
Disabled, State of Maharashtra, Central Building,
Pune - 1.
4. The Divisional Social Welfare Officer
State of Maharashtra, Mount Road, Sadar,
Nagpur.
5. The Social Welfare Officer,
Zilla Parishad, Nagpur.
6. The Auditor, Local Fund Section,
Zilla Paraishad, Nagpur.
7. Deaf & Dumb Industrial Institute,
through its Principal, Shankar Nagar, Nagpur.
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Shri B.G. Kulkarni, Advocate for petitioner
Shri A.A. Madiwale, AGP for respondent nos.1 to 6
Shri Narayan Phadnis, Advocate for respondent no.7
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CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 31.08.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
By this writ petition, the petitioner challenges the objection
raised by the respondent no.6 - Auditor of Local Fund Section of the Zilla
Parishad that the salary of the petitioner as an accountant could not be
paid as the second post of accountant could not have been sanctioned by
the Director of Social Welfare. The petitioner seeks a declaration that the
appointment of the petitioner on the post of accountant in the
establishment of the respondent no.7 is valid and legal and the petitioner
would be entitled to the monetary benefits, flowing from the order of
appointment.
The petitioner was appointed as a junior clerk in the
respondent no.7 - Deaf and Dumb Industrial Institute from time to time.
In the year 1998, since as per the order of the Director of Social Welfare,
two posts of accountants were admissible in view of the strength of more
than 250 students in the respondent no.7 - Institute, as per the staffing
pattern, the respondent no.7 issued an advertisement with the permission
of the Director of Social Welfare in March, 1998. Though the petitioner
was working as a junior clerk in the respondent no.7 - Institute, the
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petitioner applied for the second post of accountant, that was earmarked
for the Scheduled Castes. After conducting written test and the interview,
the petitioner was selected for appointment on the second post of
accountant. The petitioner was appointed by an order, dated 29.4.1998
and the Director of Social Welfare approved the appointment of the
petitioner provisionally by the order, dated 27.7.1998. On 20.7.2000, the
services of the petitioner as an accountant were confirmed and
permanent approval was granted to his appointment by an order, dated
21.11.2000. Suddenly, in the year 2002, the respondent no.6, the Auditor
raised an objection in regard to the appointment of the petitioner on the
second post of accountant and the salary payable to him. According to the
Auditor, the second post of accountant was not admissible and the
petitioner could not have been appointed on the said post.
When this matter came up for admission, while issuing Rule,
this Court had by an order, dated 18.7.2005 directed the respondents to
continue the petitioner in service of the respondent no.7 as an accountant
and after the person working on the other post of accountant retires or a
vacancy occurs in the said post, the said post should not be filled in. Thus,
by our order, dated 18.7.2005 the petitioner continues to work on the
post of accountant for more than 11 years after filing of the petition. Also,
by the said interim arrangement, the respondent no.7 is prohibited from
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filling up the other post of accountant after a vacancy occurs in the said
post due to any reason whatsoever.
In the interest of justice and in the facts and circumstances
of the case, it would be necessary to make the Rule absolute in terms of
the interim order. Passing any other order in exercise of the writ
jurisdiction, in our considered view, would not be in the interest of
justice. The petitioner has not only continued to work as an accountant
after the interim relief is granted but he continues to work so, from the
date of his appointment on 29.4.1998. Almost 18 years have lapsed from
the date of the appointment of the petitioner on the post of accountant. If
by chance a vacancy has already occurred on the other post, as the
learned Counsel for the respondent no.7 is not in a position to inform us
in that regard, the respondent no.7 must not have filled the vacancy in
terms of our interim order. In any case, the services of the petitioner
cannot be terminated at this stage, when he has put in more than
18 years of service on the post of accountant as the Institute had sought
the necessary permission from the Director of Social Welfare and then
filled the post on which the petitioner was appointed after publishing the
advertisement and following the due procedure for selection. In our view,
the ends of justice would meet if the interim arrangement is continued
and the Rule is made absolute in terms of the interim arrangement. If at
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all the respondent no.7 is of the view, considering the present staffing
pattern, that any other post of accountant is admissible, it would be open
for the respondent no.7 to take appropriate steps. By allowing the writ
petition in terms of the interim relief, we are not foreclosing the right of
the respondent no.7 to claim, in future, that a second post of accountant
could be admissible in the changed scenario.
Hence, for the reasons aforesaid, the writ petition is partly
allowed. Rule is made absolute in terms of the interim order, dated
18.7.2005. In the circumstances of the case, there would be no order as to
costs.
JUDGE JUDGE
Wadkar
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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 : S.S. Wadkar, P.S. Uploaded on : 02/09/2016
