Bombay High Court
Rameshwar S/O Mahadeorao Surve vs State Of Maharashtra Through The ... on 8 March, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.6254 OF 2015
Rameshwar s/o. Mahadeorao Surve,
Aged about 42 years,
Occupation : Service (Lab. Tech.),
R/o. Umarkhed, Tah. Umarkhed,
District Yavatmal. : PETITIONER
...VERSUS...
1. State of Maharashtra,
through the Secretary of Rural Development
and Water Resources Department,
Mantralaya, Mumbai-32.
2. Divisional Commissioner,
Amravati Division, Amravati.
3. Chief Executive Officer,
Zilla Parishad, Yavatmal.
4. District Health Officer,
Public Health Department,
Zilla Parishad, Yavatmal. : RESPONDENTS
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Mr. S.U. Nemade, Advocate for the Petitioner.
Smt. P.D. Rane, A.G.P. for the Respondent Nos.1 and 3.
Mr. M.I. Mourya, Advocate for the Respondent Nos.3 and 4.
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CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
th
DATE : 8 MARCH, 2016.
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ORAL JUDGMENT : ( Per : B.P. Dharmadhikari, J.)
Heard finally with consent of parties by issuing Rule and
making it returnable forthwith.
1. Petitioner presently about 43 years old and a qualified
Laboratory Technician in employment of respondent No.3-Zilla
Parishad incurred disability (low vision) in 2010 while in
employment. The extent of disability is 40%.
2.
Proposal to shift the petitioner to a post equivalent in all
respects i.e. Extension Officer (Panchayat) was mooted in 2010 and
was submitted to State Government. Record shows that on 12 th
May, 2015 Office of the Divisional Commissioner, Amravati
demanded certain clarification from respondent No.3 and it has
been furnished on 19.10.2015. The respondent No.3 has pointed
out that post of Extension Officer (Panchayat) in open category is
lying vacant for direct recruitment. It is also pointed out that
qualifications of petitioner are sufficient to enable him to occupy
that post. The Chief Executive Officer has expressly mentioned that
a post of Extension Officer (Agriculture), Extension Officer (Health)
and Extension Officer (Education) cannot be given to petitioner, as
he lacks qualification.
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3. It appears that the post actually fell vacant in March
2015. After the post fell vacant as permission from Government
was taking time, the respondent No.3-Chief Executive Officer, in
the interest of administration found it essential to proceed further
with direct recruitment and issued public advertisement. The
petitioner has at that juncture approached this Court. This Court
has issued notice and granted rule on stay on 3rd December, 2015.
4. The petitioner continues to work on a subordinate post
of Health Assistant and due to provisions of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (hereafter referred to as, "1995 Act") his
wages are protected.
5. Advocate Shri S.U. Nemade, in this background invites
our attention to the provisions of Section 32, Section 33 and
Section 47 of the 1995 Act and relies upon the judgment of the
Hon'ble Apex Court, in the case of Kunal Singh vs. Union of India
and another, reported in AIR 2003 Supreme Court 1623,
particularly paragraph 9 to urge that the post of Extension Officer
(Panchayat) must be given to petitioner. He has also invited our
attention to the provisions of Rule 6(10) of the Maharashtra Zilla
Parishads District Services (Recruitment Rules) 1967.
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6. Advocate Shri M.I. Mourya for respondent No.3 and 4
has opposed the petition. Only to demonstrate that there is no
malice either in law or on facts, he pointed out that subject vacancy
for the first time arose in March, 2015 and it was reasonably
apparent that it could not be given to petitioner in near future.
Considering the sensitive nature of post and nature of duties,
respondent No.3 found it essential to fill up the vacancy promptly
and, therefore, in public interest advertisement was issued. He
submits that, however, simultaneously respondent No.3 has pointed
out that post of Extension Officer (Statistics) is available and
petitioner is qualified to occupy it. He states that if approval of
Government is received, Zilla Parishad can give that post to
petitioner.
7. Smt. P.D. Rane, learned A.G.P. submits that the proposal
is under consideration of State Government and she is awaiting
instructions.
8. Perusal of provisions mentioned (supra) clearly show
that the petitioner cannot be thrown out of employment and his
service needs to be protected. Accordingly, respondent Nos.3 and 4
have protected his service as also his wages, however, he is made to
work on a inferior post of Health Assistant.
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9. It is not in dispute that the petitioner is qualified to work
as Extension Officer (Panchayat). Necessary compliances to seek
approval of State Government are already made by respondent
Nos.3 and 4. However, provisions of Section 47 of the 1995 Act are
very clear and as per first proviso thereto, petitioner can be shifted
to some other post with same pay scale and service benefits.
Second proviso stipulates that when it is not possible to adjust
employee against any post, he needs to be kept on supernumerary
post until a suitable post is available or he attain the age of
superannuation, whichever happens earlier. Legislative mandate
therefore, clearly reveals that till a suitable post becomes available,
a supernumerary post is required to be created.
10. In this situation, we find that the correspondence
undertaken by respondent Nos.3 and 4 with State Government was
not at all necessary. Law obliges empower respondent Nos.3 and 4
to give to petitioner the proper post and this obligation cannot be
defeated by approaching State Government in the matter.
11. Here provisions of Rule 6(10) of 1967 Rules (supra)
needs to be looked into. Rule 6 is on appointment by nomination,
promotion or transfer. As per sub-Rule 10, the Chief Executive
Officer has been given an overriding power if application is made
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by any member on medical ground. In that event, he can with
previous approval of Commissioner, transfer such member to other
post in district services under the Zilla Parishad on such terms and
conditions as may be specified by Commissioner. Chief Executive
Officer cannot avoid and overlook even this obligation.
12. Perusal of Section 6 of the Maharashtra Land Revenue
Code, 1966 and Section 272 of Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1961 show that the Divisional
Commissioner for Amravati Division is the Commissioner envisaged
in this provision.
13. Therefore, in present matter respondent No.3-Chief
Executive Officer could have exercised there powers and transferred
petitioner as Extension Officer (Panchayat). It was not necessary
for him to await the decision of State Government in the matter.
We find that for last more than five years, respondent Nos.3 and 4
have not cared to act in furtherance of there powers.
14. In this situation, we direct respondent No.3 to submit
appropriate proposal for absorbing/appointing petitioner as
Extension Officer (Panchayat) to respondent No.2-Divisional
Commissioner within a period of 4 weeks from today. The
respondent No.2-Divisional Commissioner shall thereafter consider
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it in accordance with above mentioned Recruitment Rules and
provisions of the 1995 Act and take suitable decision upon it within
next eight weeks.
15. Till then, the respondent Nos.3 and 4 shall not proceed
to fill up existing vacancy in the post of Extension Officer
(Panchayat).
16. Writ petition is thus partly allowed and disposed of. No
costs.
JUDGE JUDGE
okMksns
