Bombay High Court
Shri. Kadam Rahul Shivaji And Anr vs State Of Maharashtar, Through ... on 12 December, 2017
Bench: S.C. Dharmadhikari
1
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 5547 of 2014.
1) Shri Kadam Rahul Shivaji, PETITIONERS.
occupation service as clerk,
2) Shaikh Javed Ahmad
Occupation-service as Peon,
Both working in
Shri. Datta Vidya Mandir,
Akkalkot Road, Solapur.
VERSUS
1) State of Maharashtra,
through : Its Secretary
Education Department
Mantralaya, Mumbai
400 032.
2) Dy.Director of Education
Pune Region, Pune.
3) Administrative Officer,
Solapur, Municipal
Corporation Primary
Education Department
Solapur.
1/23
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4) Education Officer (Primary)
Solapur Zilla Parishad,
District Solapur.
5) Head Master, RESPONDENTS.
Shri Datta Vidya Mandir,
Akalkot Road, Solapur.
WRIT PETITION No.1503 of 2015.
1 Mane Kashinath Baburao, aged PETITIONER.
about 43 years, Occupation
service as clerk working in
Devraj Prathmaik Shala
Vidyadevi Balak Mandir,
Shantinagar, Junna Kumtha
Naka Road, Solapur.
Versus.
1 State of Maharashtra,
through : Its Secretary
Education Department
Mantralaya, Mumbai 400 032.
2 Director of Education Primary,
Dr. Ani Besant Road,
Central Building, Pune.
411 001.
3 Deputy Director of Education,
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3
Pune Region, 17, Dr. Babasaheb
Ambedkar
Opp. Lal Deul, Pune 411 001.
4 Administrative Officer Solapur,
Municipal Corporation,
Primary Education Dept.
Solapur.
5 Head Master, RESPONDENTS.
Devraj Prathmaik Shala
Vidyadevi Balak Mandir,
Shantinagar, Junna Kumtha
Naka Road, Solapur.
WITH
WRIT PETITION No. 2330 of
2015
1 Adarsh Kannad Vidyalay
MIDC Nilam Nagar, Bhag 3
Solapur run by Solapur
Shikhshan Prasarak Mandal
through its : President,
Mr. Usman Rajesab Inamdar
aged about 80 years.
2 Sagari Irshad Mahiboob
aged about 30 years,
working as a clerk in Adarsh
Kannad Vidyalay,
MIDC Nilam Nagar, Bhag 3
Solapur.
3 Kumbharikar Bhutalsidha PETITIONERS
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4
Mahadev, aged about 33 years,
working as Peon in Adarsh
Kannad Vidyalay,
MIDC Nilam Nagar, Bhag 3
Solapur.
VERSUS.
1 State of Maharashtra
Mantralaya, Mumbai.
Through : Its Secretary
Education Department.
2 Director of Education,
Directorate Office
Maharashtra State, Pune.
3 Deputy Director of Education,
Pune Region, Pune.
4 Education Officer, (Primary) RESPONDENTS
Solapur Zila Parishad,
Solapur.
WITH
WRIT PETITION No. 6299 of
2014.
1 Deepak Sidram Fule,
Occupation service as clerk,
2 Bhalchandra Mahendra More
Occupation service as Peon
both working in
Jay Bharat Primary School
4/23
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13/98, Bapuji Nagar,
Uttar Sadar Bazar,
Solapur.
VERSUS.
1) State of Maharashtra,
through : Its Secretary
Education Department
Mantralaya, Mumbai
400 032.
2) Dy. Director of Education
Central Building,
Maharashtra State, Pune.
3) The Deputy Director of
Education, Pune Region
Pune.
4) Administrative Officer,
Solapur, Municipal
Corporation Primary
Education Department
Solapur.
5) Head Master, RESPONDENTS.
Jay Bharat Primary School
13/98, Bapuji Nagar,
Uttar Sadar Bazar, Solapur.
Mr. V.S. Deokar in W.P.No.1503/15 and 6299/14
& Mrs. Ujawala V. Karpe, in W.P.No.5547/14 and
2330/15 Advocates for the Petitioners.
Mr. Vijay Killedar, Advocate for Respondent-
Administrative Officer, Solapur Municipal
Corporation, Primary Edu.Dept.Solapur in all
5/23
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the petitions.
Mr. A.I. Patel, AGP for Respondent Nos. 1 to 3.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
RESERVED ON:- 8 th November, 2017.
PRONOUNCED ON:- 12 th December, 2017.
JUDGMENT (PER: SMT. BHARATI. H. DANGRE,J).
1 Rule, Respondents waive service. By consent, rule is
made returnable forthwith and the petitions are taken up for
hearing and final disposal. All these four writ petitions revolve
around the same set of facts and seek same reliefs and hence
they are heard together and disposed of by this common
judgment.
All the four writ petitions are filed by the petitioners
seeking directions to the Respondents, State of Maharashtra and
its subordinates in the Department of Education to grant
individual approval to the appointment of the petitioners
effected on the post of clerk/peon from the date of their initial
appointment and all the petitioners pray for release of salary in
their favour, on grant of such approval.
2 In order to appreciate the grievance of the petitioners
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in the respective petitions, it is necessary to refer to certain
factual events which are common to all the petitioners except
the variance in the dates on which the events took place. In W.P.
No. 5547 of 2014 petitioner No.1 Rahul Shivaji Kadam and
petitioner No.2 Shaikh Javed Ahmad are presently working on
the establishment of Respondent No.5/ Shri Datta Vidya Mandir,
Akkalkot Road, Solapur as clerk and peon respectively and their
appointments are effectted from 25th June, 2007 and 16th June,
2009 respectively. As far as W.P. No. 1503 of 2015 is concerned
the petitioner is working as clerk in Devraj Primary School,
Solapur i.e. Respondent No.5. He is appointed in the said post
from 10th July, 2003. In W.P. No. 6299 of 2014 petitioner,
namely Deepak Sidharam Fule is working as clerk and petitioner
No.2 Bhalchandra Mahendra More is working as peon in Jay
Bharat Primary School, Solapur i.e. respondent No.5 from 1 st
June, 2004. In W.P. No. 2330 of 2015 which is filed by Adarsh
Kannad Vidyalay,M.I.D.C. Nilam Nagar, Solapur, petitioner No.2
Sagari Irshad Mahiboob is working as clerk in the establishment
of petitioner No.1 since 26th July, 2004 whereas petitioner no. 3
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Kumbharikar Bhutalsidha Mahadev is working as peon in
petitioner no.1 school from 26th July, 2004. All the petitioners
are constrained to approach this Court, aggrieved by the action
of the respondents in denying approval to their appointments in
spite of the fact that they are in service since considerably long
period of time and they have been deprived of benefit of
approval in view of the new policy of the State Government by
which the restriction is imposed on absorption of persons like
the petitioners, until the surplus non-teaching staff is absorbed.
3 The State of Maharashtra has an existing policy in
regard to sanction of non-teaching post on the establishment of a
primary school, on crossing the strength of 500 students in
terms of Rule 115 (3) (b) of the Bombay Primary Education
Rules, 1949 and according to the said Rules a primary school
having 500 or more students or on its roll are entitled for
having one post of junior clerk and one post of Class-IV employee
(peon) to be sanctioned on its establishment. The respective
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school in which the petitioners in all the petitions seeking relief
before us were working reached the desired number of 500
students in different academic years and the respective schools
sought permission from respondent No.3 and Respondent No.4
for filling up the said post either of peon or the clerk as the case
may be and after issuing advertisement carried out the
recruitment process for filling up the said post. All the
petitioners before us were qualified to be appointed to the post of
clerk/peon as the case may be, participated in the selection
process pursuant to the advertisement and were appointed on
the respective posts on different dates which we have already
mentioned above, and they are holding the said post since their
date of appointment on the establishment of the different
schools in Solapur District.
On the issuance of order of appointments the respective
schools submitted their proposal seeking approval to their
appointments from the date of their initial appointments to the
Education Officer Primary School, Zilla Parishad, District
Solapur and the Education Officer taking into account the fact
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that the respective schools were eligible for sanction of non-
teaching staff in the backdrop of the strength of the students in
the said school directed respective schools to submit fresh
proposal for approval of non-teaching staff and accordingly
respective schools forwarded the proposal for individual
approval in favour of the petitioners on the post of clerk/peon as
the case may be.
4) The Deputy Director of Education Pune Region, Pune
verified the proposal and respondent No.1 prepared one District-
wise list of non-teaching staff for the entire State of Maharashtra
and issued a Government Resolution on 1st April, 2011
sanctioning the posts in various primary schools in the State on
the basis of requisite strength of the students as on 30th
September, 2010. The Government Resolution dated 1st April,
2011 included the name of school in which they were appointed
and also included the name of the petitioners. The said
Government Resolution issued by the School Education
Department set out that Rule 115 (3) (b) of the Bombay Primary
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School Rules, 1949 make a provision for admissibility of one
post of junior clerk and one class IV employee i.e. peon to those
schools whose strength of the students was 500 or more. The
Government by its earlier Resolution dated 12 th July, 2004 had
permitted such grant in aid primary school whose strength was
more than 500 students to fill in the admissible posts and
accordingly 193 Government Aided Primary Schools were
sanctioned 193 posts of junior clerks and 193 posts of peons
and the said posts were filled in. However, subsequently the
strength of the students of the said school had fallen below five
hundred and, therefore, 121 junior clerks and 103 peons had
become surplus and therefore proposal was submitted to absorb
the surplus junior clerks and peons before filling up the post of
non-teaching staff. In this background, the proposal for selection
of 193 posts of junior clerks and 193 posts of peons was
approved by the Joint Secretary Committee and High Level
Secretary Committee on 17th April, 2010 and 21st January, 2011
respectively and the State Government issued Resolution on 1 st
April, 2011 thereby granting an approval for creation of the said
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posts, division-wise and district-wise and for filling up the same.
This Government Resolution was accompanied with the list of
posts created and the name of the schools in which the said
posts were created. Appendix II of the said Government
Resolution include the names of Samrat Ashok Marathi
Vidyalaya, Shri Datta Vidya Mandir, Akkalkot, Arun Primary
School, Devraj Primary School, Balbharati Primary School and
Vikas Vidyalaya who have been sanctioned post of clerk and
post of peon and the year.
5 The grievance of the petitioners is that in spite of the
said Government Resolution, they were not granted approval,
and they continue to work without same, till today. This
constrained some of the petitioners to approach this Court by
filing Writ Petition No. 3806 of 2013 and this Court on 13 th
October, 2014 granted an opportunity to the respondent Nos. 1
to 3 to take a decision on the proposal of the petitioners which
was already forwarded to them by Education Department of
Solapur Municipal Corporation. Pursuant to the order passed by
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this Court, the Administrative Officer, Solapur Municipal
Corporation, Primary Education Department, Solapur addressed
a letter to Respondent No.5 School in W.P. No.5547 of 2014 by
which it was communicated to the Head Master of Respondent
No.5 that the School had been asked vide letter dated 13 th June,
2012 to fill in the post of non-teaching post (clerk and peon)
subject to the condition that the surplus peon and clerk should
be absorbed in the school and it was mentioned that Shri
Baswaraj Purchure, clerk and Shri Sharad Shinde, peon who
were declared as surplus and directed to be absorbed by letter
dated 16th August, 2012, but were not absorbed and in view of
this inaction, no approval can be granted to the appointment of
Shri Rahul Shivaji Kadam, Clerk i.e. petitioner No.1 and
petitioner No.2 Shri Shaikh Javed Ahmed, Peon similar such
communications were addressed to the head of the schools.
The petitioners being aggrieved by the impugned
letter/communication have challenged the said communication
in the present petitions before us. By amendment the
petitioners have also sought relief of cancellation of the policy of
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the State Government namely "First surplus then wait list" or in
the alternative the petitioners have sought declaration that the
impugned policy may not be made applicable to the petitioners
since they are working on the said posts for more than ten years.
In nut-shell, the grievance of the petitioners is that they have
been validly appointed and their appointments were approved
by the State Government by issuing Resolution on 1 st April,
2011. However, there is no implementation of the said
Government Resolution and the decision of the respondents to
absorb surplus non-teaching staff into the schools before
granting approval to the appointees on the newly created post
has deprived the petitioners of benefits of approval though they
have rendered long length of service for more than ten years.
With this grievance the petitioners have approached this Court.
6 In response to the writ petition, Respondent No.3/the
Administrative Officer, Municipal Primary School, Solapur has
filed an affidavit-in-reply on 27th October,2014, opposing the
grant of relief sought by the petitioners. Respondent No.3 do not
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dispute the issuance of the Government Resolution dated 2nd
May, 2012 requiring and mandating the respondents to conduct
inspection drive for ascertaining the actual number of students
in the school within the precincts and the fact that inspection
was carried out for ascertaining the strength of the students of
respondent No.5 school. It is stated in the affidavit that on
inspection, the strength of the students was found less than 500
and hence the post of clerk as well as peon was not available in
the primary school. Respondent No. 3 has further stated on
affidavit that in order to implement the provisions of Right of
Children to Free and Compulsory Education Act, 2009 (for
short, the RTE Act), the staffing pattern in respect of the
teaching and non-teaching employees of the school came to be
revised and the Government has resolved not to grant approval
to any other appointment unless the surplus candidates are
absorbed. According to respondent No.3, this was applicable to
the post of the petitioners also and therefore they could not have
been absorbed unless the surplus non-teaching staff was
absorbed.
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7 We have heard learned Counsel Mr. V.S. Deokar and
U.V.Karpe for the petitioners and learned A.G.P. Mr. A.I. Patel
for Respondent Nos. 1 to 3.
The learned Counsel for the petitioners would argue
that the decision of the respondents not to grant approval to the
appointment of the petitioners as non-teaching staff is highly
arbitrary and he would contend that the petitioners were
appointed long back 2007 and have continued on the sanction.
The learned Counsel for the petitioners would place heavy
reliance on the Government Resolution of 1st April, 2011,
whereby the Government has granted approval to the non-
teaching posts in the Government Aided Private Primary
Schools, where it was found that the number of the students on
roll was 500 and permission was granted to fill up the said post.
The learned counsel would contend that the posts of the
petitioners were appointed are included in the Government
Resolution of 1st April, 2011 and only because the Government
has subsequently issued a Government Resolution directing
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absorption of surplus non-teaching staff and the decision not to
sanction any post unless and until the surplus staff is absorbed
cannot be used to deny the claim of the petitioners.
As against this argument, the learned A.G.P. would
not dispute the fact that by the Government Resolution dated 1 st
April, 2011 the Respondent Schools were held entitled for
sanction of non-teaching staff in view of the fact that the
strength of students in the said school was 500. However, he
would argue that the State Government had issued directions to
the Director (Primary School), Maharashtra State, Pune for
absorbing the surplus clerks and peons in the Division prior to
grant of approval to the newly appointed persons on vacant
posts. He would argue that in the year 2011-12 in Solapur
District ten clerks and nine peons were declared surplus and
were required to be absorbed and in this backdrop grant of
approval to the appointments of the petitioners on the
establishment of respondent no.5-school would violate the
Policy Decision of the State Government.
8 On careful consideration of the contentions advanced
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on behalf of both parties, it can be seen that respondent No.3 has
issued communication to the Head Master of Respondents school
informing that in terms of the communication issued by the
Director, Pune Division Pune on 13th June, 2012, the Head
Master was directed not to grant any individual approval to any
new non-teaching employee unless and until the process of
absorption of surplus clerks and peons is completed and by the
said communication the Head Master of Respondent schools
were directed to absorb the peons and clerks who were declared
surplus and and in the absence of their absorption, the approval
to the appointments of the petitioners cannot be granted. We are
not incognizant of the fact that the State Government had taken
a policy decision to absorb the surplus teaching and non-
teaching staff on account of implementation of the Right of
Children to Free and Compulsory Education Act, 2009, who have
been declared as surplus and have prohibited the primary
schools from any approval being granted to the appointments
unless and until the surplus staff was absorbed. However, on
perusal of the Government Resolution dated 1st April, 2011we
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note that it also relates to absorption of 193 junior clerks and
193 peons in 193 Government Approved Aided Private Schools
in the State of Maharashtra, on the post which were created in
view of the policy of the State Government to make such schools
eligible for non teaching staff when the strength of the student
exceeded 500. The said Government Resolution was issued to
tackle a situation where the posts were created in the respective
schools when the strength of the students on roll was more than
500 but it had subsequently reduced and therefore 121 junior
clerks and 103 clerks had become surplus. In order to deal with
the contingency, the State Government issued the Resolution on
1st April, 2011 to absorb such clerks and peons and decision was
taken and accordingly they were held to be eligible for approval
in the schools where strength of students was exceeding 500.
The petitioners are covered by the said resolution and were held
entitled for approval. In ignorance of this fact, the respondent
schools were communicated that the petitioners cannot be
granted approval on the post of clerk and peon respectively.
9 We do not find the approach adopted by the
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respondents to be justified one. No doubt, it is laudable policy of
the State Government to absorb the surplus non-teaching staff
who have been rendered surplus and the State Government has
restrained the schools from appointing new staff in the absence
of their absorption but in any case, we find that the petitioners
are also entitled for the same protection as they have been
declared surplus by the Government Resolution on 1 st April,
2011 and the State Government has granted approval to 121
posts of clerks and 103 posts of peons throughout the State of
Maharashtra and they were held entitled for sanction of posts
and approval.
In any event, the petitioners cannot be said to be at
fault and they were appointed on the post of peon / clerk, the
school in which they were appointed was eligible for the sanction
of non-teaching staff in view of the fact that the strength of
students on roll in the school exceed 500. It is also a fact that
six other employees who were similarly situated as the
petitioners and whose names were included in the list appended
to the Government Resolution dated 1st April, 2011 have been
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granted individual approval and this fact is not disputed by the
respondents. Not granting approval to the petitioners on one
hand and conferring the benefit of approval to another set of
employees who are similarly situated as the petitioners is
clearly discriminatory and the respondents have not offered any
justification for the alleged discrimination. The Government had
issued a Resolution on 2nd December, 2012 when it had carried
out a special drive for assessing the actual strength of the
students on roll of various schools since it had noticed that the
private aided schools were indulging in hiking the number of
students in order to avail the grant-in-aid from the State
Government. The State Government issued the Resolution on
2nd May, 2012 thereby proposing the modalities to be followed by
the authorities in view of the special drive for assessment of
strength of the students carried through out the State of
Maharashtra between 3 to 5th October, 2011. By the said
Government Resolution it was resolved that the schools where
the attendance of the students was found to be less than 50%,
were liable for initiation of criminal proceedings and were also
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liable for facing the consequences of withdrawal of the approval
of such schools. By the same Government Resolution, the
Government also resolved that those teachers who have been
rendered surplus as a result of the said special drive should be
accommodated in the schools meeting the requisite strength and
till the teachers/non-teaching staff who were declared surplus
have been absorbed in totality, private schools/schools run by
the local bodies, would not recruit new teaching/non-teaching
staff. It is in the backdrop of this Government Resolution the
claim of the petitioners is denied. As expressed above, we are of
the opinion that the said policy of the Government cannot be
used to deprive the petitioners of the benefit of approval since
they themselves are the one who have been declared as surplus
in view of the strength of the students falling below 500, though
at the time of their appointment the school in which they were
appointed was having the requisite strength and therefore the
State Government by the said Resolution resolved to grant
approval to their post and this included respondents school in
which the petitioners were appointed.
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10 In view of the above circumstances, we hold that the
impugned communication issued by the Respondents cannot be
sustained and the petitioners also need to be extended the
benefit of the policy decision of the State Government. In such
circumstances, we allow the present writ petitions with
directions to the respondents to grant approval to the
appointments of the petitioners from the respective dates and
we further direct the respondents to release the salary of the
petitioners in the respective petitions (except petitioner No.1 in
W.P. No. 2330/2015) from the date of their appointments
treating the posts which they are holding to be the sanctioned
and approved posts. Rule is made absolute in all the petitions
accordingly. No order as to costs.
[SMT.BHARATI H. DANGRE,J.][S.C. DHARMADHIKARI, J.]
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