Ku.Jaishri Ramesh Kulte vs Dy. Director Of Vocational Edn.& ...
2018 Latest Caselaw 598 Bom

   wp3606.02                                                                       1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                   WRIT PETITION  NO.   3606   OF  2002

  Ku. Jaishri Ramesh Kulte,
  occupation - Service, 
  Hutatma Rashtriya Tantrik
  Vidyalaya, r/o Ashti, Taluka
  Ashti, District - Wardha.                       ...   PETITIONER

                    Versus

  1. Deputy Director of Vocational
     Education and Training,
     Regional Office, Civil Lines,
     Nagpur.

  2. Hutatma Smarak Samiti, Ashti
     r/o Ashti, Taluka - Ashti,
     District - Wardha.

  3. The Principal,
     Hutatma Rashtriya Tantrik
     Vidyalaya, r/o Ashti, Taluka - 
     Ashti, District - Wardha.                    ...   RESPONDENTS


  Shri  S. Borkar, Advocate for the petitioner.
  Shri S.J. Kadu, Additional GP for respondent No. 1.
                     .....

                                      CORAM : B.P. DHARMADHIKARI &
                                                MRS. SWAPNA JOSHI, JJ.

JANUARY 18, 2018.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Borkar, learned counsel for the

petitioner and Shri Kadu, learned AGP for respondent No. 1.

2. The petitioner seeks a direction to the respondents

to grant approval to her appointment as a Store Clerk from

19.12.1996 with consequential prayer to release her salary. It

is not in dispute that during the pendency of this writ petition,

the petitioner has received some amount from her employer.

We do not wish to go into those details.

3. The learned counsel for the petitioner submits that

after proper advertisement and interview, the petitioner - a

duly qualified candidate has been selected and appointed. It is

pointed out that post was lying vacant after earlier incumbent

left the job. The post was for Other Backward Class (OBC)

category even then and has been filled in from the person like

the petitioner belonging to that category.

4. Shri Borkar, learned counsel points out that on

02.08.2002, approval has been rejected by pointing out that

there was backlog in other cadres of SC/VJNT/ST. The other

reason given in the impugned order is, no steps were taken to

fill in that backlog and the petitioner came to be appointed

without previous permission of the office of the Deputy Director

of Vocational Education and Training i.e. respondent No. 1.

5. Our attention is invited to the stand of the

management. It is submitted that the management is not

expressly opposing the case of the petitioner and on 31.07.2007

pointed out to this Court that the post of Store Keeper is an

isolated post to which reservation does not apply and hence

denial of approval is also wrong on that ground. Our attention

is also invited to a document dated 31.10.2007. Shri Borkar,

learned counsel, claims that on that day, respondent No. 1 has

granted approval to the employment of Shri Patil, Shri Pawar,

Shri Sambartode, Shri Bhatulkar and Shri Tatisar. He submits

that when appointments of persons recruited later on are

approved, the same implies that the backlog has been taken

care of. In the alternative and without prejudice he submits

that when later recruited employees were given approval, it

cannot be denied to the petitioner on the ground that the

backlog is not cleared.

6. The learned counsel for respondent Nos. 2 & 3 is

stated to be not available.

7. Shri Kadu, learned AGP submits that the document

dated 31.10.2007 cannot be looked into as it is not supported

by any affidavit and has been produced at the eleventh hour,

without giving respondent No. 1 any opportunity to verify it.

He further adds that if later recruits are entering service after

proper advertisement and with necessary no objection of the

department, grant of approval to them cannot enure to the

benefit of the petitioner. He adds that in present matter,

admittedly, no previous approval or sanction of respondent No.

1 was taken before publishing advertisement. He is relying

upon the reply affidavit to substantiate this fact. He adds that

had there been such a proposal, respondent No. 1 could have

then forwarded a surplus employee for absorption against the

post of Store Clerk.

8. With the assistance of respective counsel, we have

perused the records. The order of this Court dated 31.07.2007

records submission of respondent Nos. 2 & 3 that post of Store

Clerk is an isolated post to which reservation does not apply.

9. A perusal of para V of Schedule B of the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981, reveals that there, while prescribing

Qualifications for non-teaching posts in Junior Colleges

teaching Vocational Subjects/ Courses, at Sr. No. 3, post of

Store-keeper has been mentioned. The qualification prescribed

is Secondary School Certificate examination and some

experience in maintenance of stores. There is no objection to

the qualifications of the petitioner, raised by anybody.

10. The impugned order dated 02.08.2002 points out

that previous permission before issuing advertisement for

recruitment was not taken. The advertisement appears to be

dated 17.07.1996. Respondent No. 1 has, however, not

pointed out that on that day there was surplus employees with

above qualification and they could have sent to the

establishment of respondent Nos. 2 & 3 to work as Store Clerk/

Store-keeper. Thus, in the absence of data, mere technical

lapse is being pressed into service to defeat the otherwise open

and transparent recruitment.

11. The other objection raised by respondent No. 1 is

backlog of four posts. The backlog mentioned is SC - 1, VJNT -

1 and ST - 2 posts. When post of Store Keeper in Schedule B

para V (supra) is looked into, it is clear that the person

occupying it has got a distinct and independent work which

may not have any identity with other teaching or non-teaching

activities in Vocational institute. However, in the absence of

necessary data, we are leaving the contention that it is an

isolated post, open.

12. In present matter, the petitioner belongs to OBC

category and has been recruited against that post after

following proper procedure. There is no backlog of OBC shown

in the impugned order. It is also not stated that post meant for

some other Caste/ Tribe has been filled in by appointing the

petitioner.

13. In this backdrop, if the contention that on

31.10.2007 other employees recruited later on have been given

approval is correct, the denial of approval to the petitioner

alone may not be sustainable. However, we cannot accept the

document dated 31.10.2007 as true and correct. The exercise

of its verification and to find out its impact on the case of the

petitioner can be left to respondent No. 1 himself. If

respondent No. 1 finds that the employees recruited later on

have been given approval or independently finds that there is

no backlog now available, he can consider the case of the

petitioner for grant of approval.

14. The matter is pending before this Court since

September 2002 and in any case even after accepting the

document dated 31.10.2007, for completing the exercise,

respondent No. 1 would be required to apply his mind. We,

therefore, find that interest of justice can be met with by

directing the petitioner to submit necessary representation

putting on record these facts along with document dated

31.10.2007. If such a representation is made within two

weeks from today, respondent No. 1 shall consider it in

accordance with law within next six weeks. Respondent Nos. 2

& 3 shall also cooperate with respondent No. 1 in expeditious

disposal of the controversy.

15. The date from which approval can be granted is to

be decided by respondent No. 1 after considering the document

dated 31.10.2007. After finalizing such date, if the petitioner is

found entitled to grant of approval, necessary directions in

relation to payment of arrears of salary to her shall be issued by

respondent No. 1 within next four weeks.

16. To facilitate this exercise, we quash and set aside

the impugned communication dated 02.08.2002. Writ Petition

is thus, partly allowed and disposed of. However, there shall be

no order as to costs.

           JUDGE                                                   JUDGE
                                     ******

  *GS.