Bombay High Court
Narayan Dattu Panchal vs The State Of Maharashtra And ... on 30 November, 2017
Bench: R.M. Borde
1 WP 11968-2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11968 OF 2017
Narayan Dattu Panchal,
Age: 40 years, Occup. Nil,
R/o. At Post Wazar Tq. Deglur
District Nanded. .. Petitioner
VS.
1. The State of Maharashtra
Through Principal Secretary,
Social Justice Department
Mantralaya, Mumbai.
2. The Commissioner for Disabled Persons
Maharashtra State, 3 Church Road,
Pune.
3. The Social Welfare Officer (Group A)
Zilla Parishad, Amravati,
District Amravati.
4. The Head Master,
Residential Blind School Chikhaldara
Run by Rashtriya Apang Kalyan Sanstha
Amravati Dist. Amravati. .. Respondents
----
Mr. B. R. Warma, Advocate holding for Ms. Ujjwal
Agrawal, Advocate for the petitioner.
Mr. A. R. Kale, Assistant Government Pleader for
respondents No.1 and 2/ State.
----
CORAM : R. M. BORDE &
SMT. VIBHA KANKANWADI. JJ.
2 WP 11968-2017
Date of reserving
the Judgment : 04th October, 2017.
Date of pronouncing
the Judgment : November, 2017.
ORAL JUDGMENT ( Per Smt. Vibha Kankanwadi. J.)
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties appearing finally, by consent.
2. By this writ petition, the petitioner has invoked the
jurisdiction of this Court under Article 14, 21, 226 and 227 of the
Constitution of India, for issuance of writ of certiorari or for directions
for quashing and setting aside the order dated 20-09-2012 and for
releasing of his salary for the period between 26-09-2007 to 27-03-
2012.
3. The factual matrix leading to the petition are that, the
petitioner joined the services as Watchman in June, 1990 with school
by name Kailaswasi Rangoji Ghate Orthopedic Handicap Residential
School, Hanegaon Tq. Deglur District Nanded, which was a special
school. The school was functioning on non grants-in-aid basis. The
grants were accorded by respondent No.1 State for the first time in
1995-1996. The said school came to be closed from 20-11-2000 as
3 WP 11968-2017
some discrepancies were found in the inspection conducted by the
officers of respondent No.2. Respondent No.2 had prepared list of
surplus employees working in the special school at the State level. The
petitioner was waiting for his absorption since December, 2000. He
had visited the office of respondent No.2 time and again with the
request of absorption. Ultimately an order of absorption came to be
passed in his favour on 26-09-2007 by respondent No.2. He was asked
to join school at Paturda District Buldhana by the order dated 26-09-
2007. He went to the said school for joining but the school authorities
did not allow him to join.
4. The said fact was brought to the notice of respondent No.2
by way of representations by the petitioner on 10-12-2007, 19-12-
2007, 17-03-2008 and 08-08-2008. Without verifying the said fact
and taking further steps for absorption, the respondent No.2 asked the
school at Paturda Dist. Buldhana on 09-05-2008 as to why they have
not allowed the petitioner to join the services. The school informed
respondent No.2 that the post of Watchman is not sanctioned in the
said school. Copy of the staffing pattern was attached to the letter
dated 26-05-2008. It was also requested in the said letter that, if the
petitioner is directed to be absorbed as Watchman then post should be
4 WP 11968-2017
sanctioned. However, there was no response thereafter by respondent
No.2.
5. The petitioner therefore approached this Court by filing
writ petition No.7239 of 2009. Thereafter this Court directed to
respondent No.2 to inform what steps were taken in the matter. The
petitioner received letter of appointment on 17-03-2012 in the school
of respondent No.4 at Chikhaldara District Amravati. The petitioner
joined his services there on 27-03-2012. Taking note of the said
progress, the said writ petition was disposed of by this Court.
However, at the time of disposing of the petition, this Court directed
the respondent No.2 to decide the representation made by the
petitioner on the issue of salary, independently.
6. The respondent No.2, without hearing petitioner, rejected
his representation on 20-09-2012. It is stated by the the petitioner
that, it was legal obligation of the respondent No.2 to monitor and
supervise the judicial orders/ directions and respondent No.2 was the
competent authority to issue absorption orders in respect of surplus
employees. After the petitioner joined the services at Chikhaldara, he
served for years but due to health problem, he retired from the service
on July, 2015.
5 WP 11968-2017
7. The petitioner has submitted that, the right of absorption
and joining the duties was created in his favour by order dated 26-09-
2007 issued by respondent No.2, which could not be implemented
because of inaction on the part of the authorities and the casual
approach of respondent No.2. He has submitted that, he is not
claiming the back-wages period from 2004 to 2007 as he was out of
employment but he is claiming salary from September 2007 to 27-03-
2012 by quashing the order issued by respondent No.2 on 20-09-2012.
8. Heard learned counsel appearing for the petitioner. He
has specifically contended that, the petitioner is claiming salary for the
period, right has been created in his favour as the respondent No.2
had directed his absorption in September, 2007. In spite of having
knowledge that the petitioner cannot be absorbed at Paturda Dist.
Buldhana, further steps were not taken by the respondent No.2. He
relied on the decision in Writ Petition No.7409 of 2014 decided by this
Court on 30th October, 2015 in respect of the employee of the same
residential school where the petitioner was earlier working. In the
said petition, the petitioner therein is held to be entitled to get the
salary for the intervening period.
6 WP 11968-2017
9. The learned counsel for the respondents submitted that,
the claim of the petitioner was rejected in 2012 yet he has filed the
petition in 2017, and therefore, it suffers from delay. Furthermore, the
order passed by respondent No.2 is correct as there is no provision for
giving salary to an employee during the period of absorption.
10. The facts are not much in dispute. The special school in
which the petitioner was working came to be closed down after
inspection by the officers of respondent No.2. The petitioner was
serving as Watchman, and therefore, he cannot be said to be a person
who could have been responsible for the closure of the school/
institution. The respondent No.2 had prepared list of surplus
employees after the closure of special schools, and therefore, it was the
duty of the respondent No.2 to make efforts for their absorption. The
petitioner came to be absorbed for the first time on 26-09-2007 with
the school situated at Patturda District Buldhana, however the
authorities at that school had not allowed the petitioner to join. He
had brought the said fact to the notice of the respondent No.2 by his
representations dated 10-12-2007, 19-12-2007, 17-03-2008 and 08-
08-2008, copies of which has been produced on record. Thereafter, it
appears that the respondent No.2 had called upon the school at
7 WP 11968-2017
Paturda to explain the non-absorption of the petitioner with them.
The fact was then clarified by the school that, there is no sanctioned
post of Watchman with them. Thereafter also the respondent No.2 has
not offered any other post or appointment to the petitioner with any
other institution. Only by way of indulgence in Writ Petition No.7239
of 2009 when this Court directed the respondent No.2 to inform the
steps taken by him, order of absorption, appointment of the petitioner
with the respondent No.4 school at Chikhaldara District Amravati
came to be passed on 17-03-2012, accordingly the petitioner has
joined the services there.
11. The questions those cropped up in respect of the petitioner
and similar employees was, whether employee of special school
terminated on account of abolition of posts due to closure of the said
school is entitled for absorption in another special school, whether on
account of refusal by the school where such employee is directed to be
absorbed, coupled with inaction on the part of the State authorities to
see that such employee is permitted to be joined in such special school,
whether such employee becomes entitled for salary from the date of
order of absorption apart from right to get such order of absorption
executed. The said questions have been answered by this Court in
8 WP 11968-2017
Writ Petition No.7409 of 2014. The petitioner therein was serving as
'Molkarin' in the same school where the petitioner was serving i.e.
Kailaswasi Rangoji Ghate Orthopedic Handicap Residential School,
Hanegaon Tq. Deglur District Nanded. After examining the relevant
provisions under the Special School Code, 1977 coupled with
Maharashtra Employees of Private Schools (Conditions by Service)
Regulation Act 1981, this Court has come to the conclusion that
despite attempt on the part of the petitioner to resume the duties
offered by way of absorption, when the other school does not allow,
then the salary for the said period till the absorption are required to be
paid. Therefore, those reasons given in the said writ petition are
applicable here. In this case also the petitioner became surplus
because of the closure of the school, there was no fault on his part for
the closure of the school. He had attempted to join his service after
the letter of absorption on 26-09-2007 but he was not allowed, and
therefore, the order that was passed by respondent No.2 on 20-09-
2012, is illegal, arbitrary and unjustified.
12. The fault of delay and latches will not come in way of the
petitioner for the simple reason that the cause of action for the
petitioner is recurring. A note will have to be taken that, the
9 WP 11968-2017
petitioner was serving as a Watchman and due to health ground he
was required to retire. He was declared medically unfit due to the
Chronic Renal Failure Anemia, and therefore, writ petition deserves to
be allowed as follows.
ORDER
1) The respondents- State Authorities are directed to
release salary of the petitioner for the post of Watchman
from 26-09-2007 till 27-03-2012.
2) The arrears of salary be paid to the petitioner within
period of four (4) months from today.
3) Rule made absolute in above terms. There shall be
no order as to costs.
[SMT. VIBHA KANKANWADI] [R. M. BORDE]
JUDGE JUDGE
vjg/-.
