Bombay High Court
Nimish Trimbakrao Gaulkar vs State Of Mah & Ors on 4 October, 2017
Bench: S.P. Deshmukh
1 WP-5545.05.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 5545 OF 2005
Nimish s/o Trimbakrao Gaulkar,
Age : 33 years, occup. Government
Service as Linen-keeper (Vastrapal)
in the Office of Medical Hospital,
Women and Child Hospital, Jalna,
R/o Dr. Gaulkar, Vidya Nagar, .. PETITIONER/
Jalna, District : Jalna Orig. Applicant
versus
1) The State of Maharashtra,
through the Secretary,
Department of Health Services,
M. S. Mantralaya, Mumbai
2) The Joint Director,
Health Services (Health),
Pune - 3
3) The Deputy Director,
Health Services, Aurangabad. .. RESPONDENTS
Original
4) The Medical Superintendent, Non-Applicants
Women & Child Hospital, Jalna
---
Mr. Avinash S. Deshmukh, Advocate holding for Mr. Rajendrraa
Deshmukkh, Advocate for petitioner
Ms. S. S. Raut, Assistant Government Pleader for respondents
---
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CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 4th October, 2017
ORAL JUDGMENT (PER: SUNIL P. DESHMUKH, J.)
1. Leave to amend.
2. Petitioner is before this court, challenging order of the
Maharashtra Administrative Tribunal, Aurangabad Bench,
passed on 05-07-2005 in Original Application No. 238 of 2001
whereunder his request for declaration of his appointment to
be regular and permanent under order dated 05-01-2001
issued by respondent no. 3 and to give to him all incidental,
ancillary and consequential benefits arising therefrom, has
been declined.
3. Petitioner has passed higher secondary certificate
examination (12th standard examination) and has also passed
English and Marathi typing tests. Additionally, petitioner has
undergone two years course of machinist in Industrial Training
Institute. So far as these qualifications are concerned, there
is no dispute on that those are sufficient for appointment in
class III category in the Government service.
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4. Under Government Resolution Dated 02-03-1981
concession is given to the freedom fighters and their
nominees from rigour of getting selected through Regional
Selection Board and they are given preference in class III and
IV posts in Government service.
5. Smt. D.S. Sadhu who was a freedom fighter had
nominated the petitioner to avail of the benefit of employment
pursuant to Government Resolution dated 02-03-1981,
on 03-06-1994. Despite the request made in 1994, for quite
a long time, the same was not being responded to. Around
2000, the petitioner had requested respondent no. 2 for
appointment. Petitioner's request had been forwarded to
respondent no. 3, as petitioner was competent for
appointment on the post which was permanent and vacant at
the relevant time.
6. On 05-01-2001, an order came to be issued by
respondent no. 3 appointing petitioner as linen keeper for a
period of three months, purporting the same to be ad-hoc
appointment. Petitioner being a nominee of freedom fighter,
had been claiming a permanent post on regular basis whereas
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his appointment was on ad-hoc basis and as such, he had
been before the Maharashtra Administrative Tribunal under
Original Application No. 238 of 2001 referred to hereinabove
seeking the reliefs mentioned therein.
7. The Tribunal had granted interim relief in the
original application and the same continued till final decision
had been rendered on 05-07-2005 rejecting the request of
the petitioner under the original application. Petitioner thus is
before this court.
8. While deciding original application, the Tribunal
has considered that in its' earlier decision rendered on
18-11-2002 in Original Application no. 720 of 2001 and other
companion Original Applications, it had disapproved
Government Resolutions dated 07-04-2001 and 20-03-2002
concerning appointments in public employment of candidates
from special categories and had issued certain directions to
the Additional Chief Secretary and the Principal Secretary,
General Administration Department (Personnel) to review
Government circular dated 13-09-2000 and modify the same
suitably by incorporating appropriate guidelines, further
directing to carry out similar exercise in relation to other
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special categories, such as, freedom fighters and census
retrenched employees within the time frame stated in the
order.
9. While this petition had been pending, under
interim orders in the same, petitioner's services were
protected till decision in writ petition. In the meanwhile, it
appears that since the posts of linen keeper were declared
surplus, the petitioner who was holding such post had been
accommodated as junior clerk by respondent no. 3 in the
same department.
10. Learned counsel for the petitioner Mr. A. S.
Deshmukh refers to and relies on order dated 3/6-12-2007
which, according to him, declares that the employees who
were rendered surplus, were absorbed under the same, and
in the same it had been referred to that case of the petitioner
is pending in court.
11. Learned counsel submits that a concession for
appointment of nominee of freedom fighter had been made
available under Government Resolution passed way back on
02-03-1981 pursuant to which Smt. Sadhu who had been
looked after by petitioner had nominated petitioner in 1994
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for appointment in government services. However, said
request was not attended to and the laudable reason for
which Government Resolution has given concession in
appointing nominee or freedom fighter was getting ignored
and the family of the petitioner and that of freedom fighter
Smt. Sadhu had not been in any gainful employment.
Pursuant to nomination of petitioner by Smt. Sadhu,
ultimately her request had been forwarded to respondent no.
3 and accordingly petitioner was appointed in class III post of
linen keeper. It is not the case at all that the petitioner does
not possess requisite qualification for appointment.
12. He submits that the petitioner is qualified to hold on to
class III post. The post he is employed in, is permanent.
Concession has been given to nominee of freedom fighter
from the rigour of undergoing recruitment process through
Regional Selection Board pursuant to which he has been
legitimately entitled to a permanent post. However, his
appointment had been made only on ad hoc basis for a period
of three months and, as such, the petitioner had to approach
the Maharashtra Administrative Tribunal.
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13. Learned counsel goes on to submit that
petitioner's Original Application had been decided by
Maharashtra Administrative Tribunal not on merits of the case
but stands decided with reference to its' earlier order
rendered on 18-11-2002 in some other application i.e.
Original Application bearing No. 720 of 2001 and other
companion Original Applications which hardly has any
relevance to the claim of the petitioner. He submits that, in
fact, there had been no hearing as such on the issue involved
in the Original Application and the order impugned has been
passed on the concerns not related with the Government
Resolution dated 02-08-1981. He submits that while there is
no dispute about the petitioner being nominee of freedom
fighter and had been appointed accordingly, his rightful claim
was undecided on merits and for the reasons which are apart
from the Government Resolution dated 02-03-1981.
14. Learned Assistant Government Pleader Ms S. S.
Raut, submits that petitioner's claimed absorption /
accommodation under order dated 3/6-12-2007 had been ad
hoc in nature subject to the decision by the court and said
order would have to bWP-5545e considered in the context of
background in which it had been issued.
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15. Learned Assistant Government Pleader for the
respondents submits that Tribunal's order reflects, analogy
had been drawn and there had been directions to the
Additional Chief Secretary and the Principal Secretary, General
Administration Department to formulate transparent
guidelines for appointments under special categories including
those of nominees of freedom fighter and census retrenched
employees and in such a case, order impugned can hardly be
faulted with. She further purports to refer to that respondent
no. 3 had no authority to make appointment on permanent /
regular basis from special category since such authority vests
in the Government.
16. We have heard learned counsel as aforesaid. It would
be pertinent to refer to Government Resolution dated
02-03-1981 which reads :-
'' By Government Circular Memorandum, General Administration
Department, No. CNS/1065/4652/J, dated the 12 th October 1965,
Government has granted certain concessions to Freedom Fighters
and their nominees in the matter of recruitment to class III and
class IV posts in Government offices which are not required to be
filled in by the appointment of candidates selected by the
Maharashtra Public Service Commission. These orders were
reiterated by Government Endorsement, General Administration
Department, No. CNS-1077/1078/XVI-A, dated the 1 st September
1977 (copy appended for ready reference. In order to remove the
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impediments in the implementation of these orders Government is
pleaded to direct further as follows :-
(i) The appointments of freedom fighters and their
nominees in Class III posts in Government service which are
at present within the purview of the Regional Selection
Boards should be excluded from their purview with
immediate effect.
(ii) The freedom fighters and their nominees should be
given preference over strike period personnel in the matter of
recruitment to class III and class IV posts, if the former are
otherwise suitable for appointment.
(iii) It is reiterated that the freedom fighters and their
nominees should be considered for appointment to class III
and class IV posts in Government service on the basis of
their applications received directly, without requiring them
to come through the Employment Exchanges.
2. All the appointing authorities are requested to follow these
orders scrupulously. ''
17. There is no dispute about petitioner possessing
requisite qualifications for appointment in class III category
post in State government service. There is no dispute, while
petitioner had been initially appointed as linen keeper in the
post, it was a permanent and regular post and the post of
clerk on which he is accommodated / absorbed also is a
permanent post. There is also no dispute that petitioner had
been appointed as a nominee of freedom fighter according to
the decision of the State Government as reflected in the
Government Resolution dated 02-03-1981. It appears that
operation of the Government Resolution dated 02-03-1981,
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had not been obfuscated or was in-operative or has been
stayed.
18. While the petitioner had been appointed under the
order of respondent no. 3, it appears, respondent no. 3 had
purportedly appointed him only for a period of three months.
Since petitioner's legitimate claim had been for permanent
post which he was denied, he had approached the
Maharashtra Administrative Tribunal. The Tribunal, however,
had declined to accede to the request getting weighed under
its directions to the authorities to formulate guidelines. It is
nobody's case pursuant such directions any guidelines in
respect of appointments of nominees of freedom fighter have
been framed by the authorities concerned.
19. During the course of this writ petition petitioner had
been accommodated / absorbed under orders dated
3/6-12-2007 and 26-11-2007. Both these communications
show, to a fairly large extent, that the petitioner had been
absorbed as class III category post i.e. junior clerk or post
equivalent to the same. Such accommodation / absorption
does not appear to be conditional one.
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20. Further, petitioner has been working all along since
2001 continuously without any interruption and presently his
age is 46 years. The tribunal had been in error in passing
impugned order in 2005 relying on its order in 2002 without
taking into account it did not appear its order had been
followed and without looking at prevailing position.
21. In the facts and circumstances, we consider that it
would not be proper for us to allow services of the petitioner
being truncated, particularly when he is the nominee of
freedom fighter and his case had been recommended under
said category and appointed pursuant to decision of
Government giving concession to nominees of freedom
fighters who have been given exemption from the rigour of
selection through Regional Selection Board. In such
circumstances, it would be difficult for us to leave the
petitioner in dire straits more so while his claim to the post
being legitimate is undisputed.
22. We do not consider, in the facts of the case, Tribunal
could have dismissed an otherwise legitimate claim simply
going by its earlier decision rendered on 18-11-2002 in
Original Application no. 720 of 2001 and other companion
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Original Applications referred to hereinbefore without
considering government instructions or decision in this
regard. Under the circumstances, we deem it appropriate to
allow the writ petition.
23. Writ petition accordingly is allowed in terms of amended
prayer clauses (C), (D) and (E) and is disposed of.
24. Rule made absolute in aforesaid terms.
SANGITRAO S. PATIL SUNIL P. DESHMUKH,
JUDGE JUDGE
pnd
