Bombay High Court
Suresh S/O Deoraoji Raipure vs The Education Officer ... on 6 June, 2017
Bench: B.P. Dharmadhikari
wp1219.12 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1219 OF 2012
Suresh s/o Deoraoji Raipure,
resident of Sai Nagar, Arvi,
District - Wardha. ... PETITIONER
Versus
1. The Education Officer (Secondary),
Zilla Parishad, Wardha.
2. The Municipal Council, Arvi,
through its Chief Officer,
District - Wardha.
3. Shri Haridas Devidas Mahatme,
c/o Nagar Parishad High School,
Arvi, District - Wardha.
4. The Collector, Wardha. ... RESPONDENTS
Shri Deshpande, Advocate holding for Shri Anand Parchure,
Advocate for the petitioner.
Shri N.H. Joshi, AGP for respondent Nos. 1 & 4.
Shri S.S. Ghate, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI
ROHIT B. DEO, JJ.
JUNE 06, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Deshpande, Advocate holding for Shri
Anand Parchure, learned counsel for the petitioner, Shri N.H.
Joshi, learned AGP for respondent Nos. 1 & 4 and Shri S.S.
Ghate, learned counsel for respondent No. 2. Shri A.P.
Raghute, learned counsel appearing for respondent No. 3 is not
present.
2. The petitioner admittedly has joined employment
on 05.08.1981. Because of the Government Resolution dated
30.06.2004 read with earlier Government Resolution dated
15.06.1995, date 15.06.1995 has been treated as his date of
joining service. Thus, for the purposes of seniority, his date has
been shifted from 05.08.1981 to 15.06.1995. This shifting and
decision has been questioned in present matter.
3. The promotions (alleged) as Assistant Head Master
effected in 2006 is the cause of action. The petitioner was
promoted to that post because of his seniority. Respondent No.
3 claims that as the petitioner belonged to Dhanwar community,
his date of entry ought to have been reckoned as 15.06.1995
and hence he was junior to Respondent No. 3. The Education
Officer has passed some orders while adjudicating this
controversy. The Collector, Wardha, has also on 25.06.2007
passed an order and directed the Municipal Council to look in
to the position again. It appears that finally the petitioner has
been given date 15.06.1995 as date of entry and, therefore,
present petition has been filed.
4. According to Shri Deshpande, Advocate for the
petitioner, the post when advertised in the year 1981 did not
carry any reservation and the petitioner was recruited as open
category candidate and during his entire service, he did not
take advantage of caste and the promotion given as Assistant
Head Master was also in open category. His caste was also not
validated as it was never sent for verification. He states that in
this situation, reliance upon Government Resolution dated
30.06.2004 and thereby fixing date 15.06.1995 as relevant date
for counting seniority, is without jurisdiction and arbitrary.
5. Shri Ghate, learned counsel for respondent No. 2 -
Municipal Council, submits that respondent No. 2 has acted in
accordance with law in the matter and after directions of
various authorities, Government Resolutions operating on the
subject have been adhered to.
6. Shri Joshi, learned AGP appearing for respondent
Nos. 1 & 4 also supports the arguments of Shri Ghate, learned
counsel for respondent No. 2.
7. A perusal of order of the Collector, Wardha, dated
25.06.2007 reveals stand of the Municipal Council before the
Collector that the petitioner was recruited in open category and
had never taken any advantage of his caste 'Dhanwar'. The
Municipal Council, therefore, pointed out to the Collector that
the provisions contained in Government Resolution dated
30.06.2004 were not applicable to him. The objection to his
seniority on the basis of said Government Resolution, therefore,
was urged to be misconceived. In the face of this reply of the
Municipal Council, the Collector in exercise of powers under
Section 308 of the Maharashtra Municipalities Act, 1965,
suspended operation of Resolution dated 17.04.2006 and
directed the Municipal Council to redetermine the seniority.
8. Even before this Court, the petitioner has pointed
out in paragraph 16 of his petition that he joined service as
open category candidate and never took advantage of the caste.
Without prejudice, he has also pointed out that promotional
post of Assistant Head Master or Head Master was not reserved.
It was contended that being isolated post, roster was not
applicable to the same.
9. All these contentions fall for our consideration in
2017 when the petitioner has reached the age of
superannuation on 15.11.2013 while respondent No. 3 has also
superannuated on 01.07.2014. Thus, the issue is only
academic in present situation. No order promoting either the
petitioner or respondent No. 3 or then any other person on the
post of Head Master substantively has been produced on
record. Thus, the promotions either as In-charge Head Master
or then Assistant Head Master may have resulted in giving
some officiating allowance only to the incumbent. That
allowance, therefore, cannot have any impact on last pay
drawn for the purposes of computing pension.
10. The facts referred to above clearly show that in the
advertisement for recruitment published by respondent No. 2 -
Municipal Council in 1981, post was not shown as reserved.
With the result, merely because the petitioner belongs to
'Dhanwar' caste, it cannot be said that he was recruited as a
reserved category candidate then. While filling in service book,
he has mentioned his caste as "Dhanwar" on first page. This
was necessary because the caste is required to be disclosed on
first page. That again does not mean that he was recruited
against a reserved post. The Government Resolution dated
30.06.2004 has been issued only to extend benefit of protection
in employment already extended to the State Government
servants by Government Resolution dated 15.06.1995 to the
employees of local bodies. Thus, Government Resolution
stipulates that the provisions contained in Government
Resolution dated 15.06.1995 are also applicable to the
incumbents who have been recruited or promoted against the
reserved post. As the petitioner was not so recruited or
promoted, Government Resolution dated 30.06.2004 has no
relevance. Not only this, the other Government Resolution
dated 15.06.1995 also, therefore, cannot be resorted to.
11. In this situation, we find that the direction to treat
15.06.1995 as date for the purposes of counting seniority of the
petitioner is unsustainable. His seniority for all purposes is to
be counted from 05.08.1981.
12. With these directions, we partly allow the present
writ petition and dispose it of. However, in the facts and
circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
