Bombay High Court
Janata Shikshan Prasarak Mandal, ... vs National Commissione For ... on 4 August, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2080/2015
PETITIONERS: 1. Janata Shikshan Prasarak Mandal,
Pusad through its President Shri Jai
Sudhakarrao Naik, aged 52 years,
office at Naik Bungalow, Gandhi Nagar,
Pusad, Dist. Yeotmal.
2. Smt. Vatsalabai Naik Mahila Mahavidyalaya,
Pusad through its Principal, Dr. Ganesh
Tukaram Patil, Aged 53 years, Talao
Layout, Pusad, Dist. Yeotmal.
...VERSUS...
RESPONDENTS: 1. National Commission or Schedule
Castes, Regional Office, (Maharashtra
and Goa) through its Registrar, Kendriya
Sadan, A Wing, First Floor, Opp. Akurdi
Railway Station, Nigdi Pradhikaran,
Pune - 411 044.
2. The Director of Higher Education, State
of Maharashtra, Central Building, Pune - 01.
3. The Joint Director of Higher Education,
State of Maharashtra, Amravati Division,
Amravati.
4. State of Maharashtra, through its
Secretary, General Administration
Department, Mantralaya, Mumbai - 32.
5. Shri Dnyaneshwar Namdeo Ubale,
aged - Major, Occu. - Service (Junior Clerk),
Smt. Vatsalabai Naik Mahila Mahavidyalaya,
Pusad, Talao Layout, Pusad, Dist. Yeotmal.
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Shri B.G. Kulkarni, Counsel for the petitioners
Shri I.J. Damle, AGP for respondent nos.2 to 4
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 04.08.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioners challenge the order of the
National Commission for Scheduled Castes dated 11/3/2015 directing the
petitioners to revise - amend the appointment order of the year 1989
pertaining to Punjab Rathod.
The petitioner no.1 is an Educational Society that has
established the petitioner no.2 - college in the year 1989. At that time,
the college of the petitioner was not receiving grant-in-aid. Grant-in-aid
was released in favour of the petitioner after the period of three years in a
phased manner. On 6/11/1989 Punjab Rathod was appointed as a head
clerk in the college run by the petitioner. On 1/8/1990, the respondent
no.5, who belongs to the Scheduled Castes, was appointed as a peon on a
post earmarked for the said category. In 1995, Punjab Rathod was
promoted as an office superintendent and one Chauhan as a head clerk.
The respondent no.5 submitted a complaint for the first time, after nearly
25 years from his appointment before the National Commission for
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Scheduled Castes that though the post on which Punjab Rathod was
appointed in the year 1989 ought to have been reserved for the Scheduled
Castes the same was not reserved and illegally Punjab Rathod was
appointed on the said post though he does not belong to the Scheduled
Castes. In the complaint, the respondent no.5 sought for his appointment
in the year 1989 by removing Punjab Rathod from the said post. By the
impugned order dated 11/3/2015 the Commission for the Scheduled
Castes directed the petitioners to take appropriate action for amendment
- revision of the order, with a view to appoint the respondent no.5 in
place of Shri Punjab Rathod in accordance with the Circular by the State
Government dated 5/11/2009. The petitioners have impugned the said
communication in the instant petition.
Shri Kulkarni, the learned Counsel for the petitioners
submitted that the Commission was not justified in asking the petitioners
to appoint the respondent no.5 on the post on which Shri Punjab Rathod
was appointed in the year 1989. It is submitted that Punjab Rathod was
appointed on 6/11/1989 as a head clerk and when the respondent no.5
was appointed to the post of peon that was reversed for the Scheduled
Castes, the respondent no.5 did not possess the qualifications meant for
appointment to the post of head clerk. It is submitted that nearly 25 years
after his appointment the respondent no.5 has wrongfully approached the
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Commission for Scheduled Castes and the Commission has without any
authority of law directed the petitioners to revise the orders pertaining to
Punjab Rathod and the respondent no.5. It is submitted that when the
respondent no.5 was not eligible for holding the post of head clerk, he
could not have been appointed on the said post. It is submitted that the
respondent no.1 - Commission does not have the jurisdiction to direct the
appointment of the respondent no.5 to the post of head clerk and the
removal of Punjab Rathod from the post of head clerk, as is sought to be
done by the impugned order.
The respondent no.1 - Commission has filed an affidavit-in-
reply. It is stated in the affidavit-in-reply that the communication of the
respondent no.1 - Commission dated 11/3/2015 is mistakenly considered
by the petitioners to be an order. It is stated in the affidavit-in-reply that
by the said communication the petitioners have been only asked to furnish
some documents to the Commission. It is stated that the Commission is
set up with a view to investigate and monitor the effective
implementation of the safeguards and to advise in the planning process
for the social integration and economic development.
Shri Damle, the learned Assistant Government Pleader
appearing for the respondent no.4 submits that the petitioner no.2 had
followed the procedure laid down in the Government Circulars while
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appointing the candidates by nomination and promotion, as could be
noted from the affidavit-in-reply.
On a perusal of the impugned order dated 11/3/2015, it
appears that by the said order-communication, the Commission had not
only asked the petitioners to furnish some documents, but had also asked
them to make some amendment-revision pertaining to the appointment of
Shri Punjab Rathod and the respondent no.5. The Commission has held in
the order dated 11/3/2015 that the petitioners ought to have appointed
the respondent no.5 instead of appointing Shri Punjab Rathod. The
National Commission has observed in the said order- communication that
without confirming the services of Shri Punjab Rathod on the said post,
the respondent no.5 ought to have been appointed in his place. After so
observing and directing the petitioners to make a revision-amendment in
respect of the aforesaid, the petitioners were also directed to furnish a
compliance report. Apart from the aforesaid, the petitioners were directed
to supply certain documents to the Commission. It is apparent from the
order-communication that by the said communication, the Commission
had not only asked the petitioners to supply some documents but had also
asked the petitioners to revise-amend the orders pertaining to the
appointment and confirmation of Punjab Rathod and the respondent no.5.
It appears that there is no force in the submission made on behalf of the
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respondent - Commission that the communication dated 11/3/2015 is
not in the form of an order but is only a communication asking the
petitioners to supply some documents. In our view, it was not proper on
the part of the Commission to entertain a complaint on behalf of the
respondent no.5 nearly 25 years after his appointment in respect of the
appointment of Punjab Rathod who was appointed a year earlier on the
post of head clerk and the respondent no.5 was not qualified to hold the
said post. In the circumstances of the case, the impugned order is liable to
be quashed and set aside, specially when the State Government has
observed in the affidavit-in-reply filed on behalf of the respondent no.4
that the petitioners had followed the procedure laid down in the
Government Circulars from time to time while nominating the candidates
and promoting them.
Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order is quashed and set aside. Rule is made
absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Wadkar
