Maroti Bapurao Pakade vs The Chief Executive Officer, ...
2017 Latest Caselaw 8461 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH : NAGPUR.

                                      Writ Petition NO. 6287 OF 2014

  PETITIONER:                          Maroti Bapurao Pakade,
                                       Aged about 59 Years, Occu: Retired,
                                       R/o Near Walgaon Police Station, Warwad, 
                                       Post Walgaon, Dist. Amravati
                                                                                                   
                                                  -VERSUS-

  RESPONDENTS: 1.                               The Chief Executive Officer,
                                                Zilla Parishad, Amravati.

                                        2.      Education Officer (Primary),
                                                Zilla Parishad, Amravati.
                                        3.      Education Officer (Secondary)
                                                Zilla Parishad, Amravati. 
                                        4.      Commissioner, 
                                                Amravati Division, Amravati. 
    

  Shri. S.W. Deshpande, Advocate for the petitioner.
  Shri. Parag Anil Kadu, Advocate for the Respondent No. 1.
  Smt. T.H. Khan, A.G.P. for Respondent No.3 and 4.. 

                                 
                                             CORAM: Z.A. Haq, J.

DATED: 06.11.2017.

Oral Judgment

1. Heard.

2. Rule. Rule made returnable forthwith.

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3. The petitioner has challenged the order passed by the

learned Commissioner dismissing his appeal filed under Rule 14(a) of

Zilla Parishads and Panchayat Samittee (Discipline and Appeal) Rules

1964 (hereinafter referred as "the Rules of 1964"), and rejecting his

claim for absorption/promotion in the post of Assistant Teacher

pursuant to the recommendations made by the Headmaster of the

School on 25th September, 1997.

4. The undisputed facts are:-

The petitioner was appointed as Laboratory Assistant

(Class-III Cadre) with the Zilla Parishad School. In due course, the

petitioner acquired higher qualifications after obtaining permission

from the employer. The petitioner acquired degree of Bachelor of Arts

in 1991 and degree of Bachelor of Education in 1997. After acquiring

the above qualifications, the petitioner requested for promotion /

absorption in the post of Assistant Teacher in the quota fixed for the

in-service candidates. The Headmaster of the school, in which the

petitioner had been working, by the communication dated

25/09/1997, recommended the absorption/promotion of the

petitioner in the post of Assistant Teacher. However, the concerned

authorities overlooked the claim of the petitioner and therefore the

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petitioner approached Industrial Court for redressal of his grievance in

2005. The Zilla Parishad (employer) raised objection before Industrial

Court that the complaint filed by the petitioner was not maintainable.

The petitioner withdrew his complaint in 2010 and filed appeal before

Commissioner, which is dismissed by the impugned order.

5. The case of the Zilla Parishad (Employer) is that the claim

of the petitioner could have been considered only because there was

vacancy in the quota reserved for in-service candidates. The Zilla

Parishad has relied on the provisions on Rule 6(2) of the Rules of

1964 to deny the claim of the petitioner and the learned

Commissioner has dismissed the appeal filed by the petitioner,

accepting the contention of the Zilla Parishad and relying on Rule

6(2) of the Rules of 1964.

6. Though, it is not on record, the learned advocate for the

respondent No.1 has submitted that 50% posts of Assistant Teacher

were required to be filled by promoting or nominating the in-service

candidates. It is undisputed that Shri G.U. Avinashe and Shri Dange

who were also working as Laboratory Assistant were absorbed/

promoted as Assistant Teachers in January 1998. As recorded earlier,

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the Headmaster of the School were the petitioner was working had

recommended the name of the petitioner for absorption/ promotion in

the post of Assistant Teacher. There is nothing on record to show that

Shri G.U. Avinashe and Shri Dange were senior to the petitioner. The

Zilla Parishad has kept back the relevant details and has not pointed

out the seniority list. There is nothing on record to show that after the

name of the petitioner was recommended by the Headmaster of the

School by the communication dated 25th September, 1997, post of

Assistant Teacher was not available in the 50% quota in which the

petitioner could have been absorbed as Assistant Teacher.

7. The facts on record show that the petitioner has discharged

the initial burden of showing that though by the communication dated

25th September, 1997, the Headmaster of the school in which the

petitioner had been working recommended that the petitioner be

absorbed /promoted as Assistant Teacher, Shri G.U. Avinashe and

Shri Dange were absorbed / promoted as Assistant Teachers in

January 1998. The Zilla Parishad has failed to discharge its burden of

showing that Shri G.U. Avinashe and Shri Dange were senior to the

petitioner. The Zilla Parisahd has failed to discharge the burden of

showing that post of Assistant Teacher was not available in the 50%

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quota to be filled by absorption/promotion of in-service candidates. In

these facts, adverse interference is required to be drawn against the

Zilla Parishad and the claim of the petitioner has to be upheld.

8. Hence the following order.

(i) The impugned order passed by the learned

Commissioner is set aside.

(ii) It is held that the petitioner is entitled for

absorption /promotion as Assistant Teacher w.e.f. the date

on which Shri G.U. Avinashe and Shri Dange were

absorbed / promoted as Assistant Teachers. The seniority

of the petitioner shall be fixed according to the rules and

the name of the petitioner be placed accordingly in the

seniority list.

(iii) The petitioner is illegally deprived of his

legitimate claim and therefore it has to be held he is

entitled for consequential benefits including monetary

benefits.

The Zilla Parishad shall make available to the

petitioner the difference of emoluments considering the

absorption / promotion of the petitioner in the post of

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Assistant Teacher w.e.f. the date on which Shri G.U.

Avinashe and Shri Dange were absorbed / promoted as

Assistant Teachers.

(iv) The petitioner shall be given all the benefits

within three months failing which the Zilla Parishad will be

liable to pay interest at the rate of 9% per annum on the

amount payable to the petitioner, the interest being

chargeable from today.

(v) As it is held that the petitioner is illegally

deprived of his legitimate claim, the Zilla Parishad shall

pay costs of Rs. 20,000/- to the petitioner and produce the

receipt of it on the record of this petition within three

months.

Rule made absolute in the above terms.

JUDGE

nandurkar