Bombay High Court
Balkrishna Ramchandra Borale vs The State Of Mah & Ors on 22 January, 2018
Bench: S.P. Deshmukh
1 WP - 4273-2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4273 OF 2006
Balkrishna S/o Ramchandra Borale,
Age : 34 years, Occu.: Service,
R/o At Laxmi Niwas, Opposite Petrol Pump,
Udgir, Tq. Udgir, Dist. Latur .. PETITIONER
VERSUS
1] The State of Maharashtra,
Through : Secretary, Social Justice,
Cultural Work & Special Grant Department,
Mantralaya's Extension Building,
Mantralaya, Mumbai - 400 032.
2] Commissioner of Handicapped
Welfare Department, Maharashtra
State, Pune
3] Chief Executive Officer,
Zilla Parishad, Latur,
Tq. & Dist. Latur
4] Director of Social Welfare Department,
Maharashtra State,
Pune - 01.
5] Special Social Welfare Officer,
Grade-A, Zilla Parishad,
Latur
6] Divisional Social Welfare Officer,
Latur Division, Latur
7] Secretary,
Anatpal Shikshan Sanstha,
Krishna Niwas, Nobel Colony,
Udgir, Tq. Udgir, Dist. Latur
8] Head Master,
Dyanvikas Niwasi Apang Vidyalaya
Udgir, Dist. Latur .. RESPONDENTS
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2 WP - 4273-2006
...
Mr. Sanjay Kolhare, Advocate for petitioner
Mr. S.M. Ganachari, AGP for respondents no. 1, 2 4 and 6
Mr. V.R. Sonwalkar, Advocate for respondents no. 3 and 5
...
CORAM : SUNIL P. DESHMUKH &
P. R. BORA, JJ.
DATE : 22-01-2018
ORAL JUDGMENT (PER - SUNIL P. DESHMUKH, J.):
1. Petitioner is before this Court aggrieved by inaction to
sanction the post of Hostel Superintendent with effect from
01-04-1995 and to give to him the benefits accruing therefrom.
2. There is no particular dispute on the factual position that
petitioner had been appointed as Hostel Superintendent in
respondent no. 8 - Dyanvikas Niwasi Apang Vidyalaya, Udgir, run
under the aegis of respondent no. 7 - Anatpal Shikshan Sanstha.
Pursuant to aforesaid appointment, approval to said post appears to
have been sought by respondents no. 7 and 8.
3. It is the case of the petitioner that sanction to the post
had been given only on 26-12-2003 and subsequently, approval to
his appointment had been given by respondent no. 5. There is also
no dispute about that respondent no. 8 - school is governed by
Special School Code for Schools for Handicapped, 1997 and under
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the same, Rule 43 provides for appointment of appropriate staff and
the staffing pattern provides for one Hostel Superintendent for each
hostel holding either a Bachelor's degree or Diploma in Physical
Education.
4. It appears that petitioner's school had been given
permission by the concerned authorities on 31-03-1997 and had
sanctioned about 8 posts therein, which did not include petitioner's
post of Hostel Superintendent.
5. Learned counsel for petitioner submits that the Special
Code for Schools for Handicapped, 1997 (for short "Special School
Code, 1997") provides for a post of Hostel Superintendent for each
hostel and that petitioner has been appointed as Superintendent in
the hostel of respondents no. 7 and 8. While there is no dispute
about that petitioner is having requisite qualification pursuant to the
Special School Code, 1997, sanction and approval to the post of
Hostel Superintendent had been due and incumbent and the
benefits accruing therefrom pursuant its provisions. He submits
there is no reason as to why said benefits should be denied to the
petitioner. He further submits that in respect of special schools in
the State, such post had been given sanction immediately along
with permission. He purports to buttress his said submission by
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sanction having been granted under order of respondent no. 4 in
respect of school run by Ahilyadevi Holkar Educational Institution of
Udgir.
6. Respondents no. 3 and 5 have filed their affidavit in
reply to the petition in 2007, submitting that permission to run the
school had been granted by the State Government in 1997 and had
later sanctioned the post of Hostel Superintendent on 26-12-2003.
Since there had been no sanction to the post, appointment of
petitioner had not been earlier approved. Affidavit further refers to
that the deponent had recommended the case of petitioner earlier in
2001 to the Commissioner, Handicapped Welfare, Maharashtra
State, Pune, to sanction post of Hostel Superintendent. It is further
purportedly pointed out that while granting permission in 1997,
eight posts were sanctioned, which did not include post of Hostel
Superintendent. This Court under its order dated 01-09-2017 in
paragraph no.2, has observed thus :-
" 2. Learned A.G.P. to take instructions from the concerned Officer,
whether under Rule 43 to 47 of Special School Code, such post of
Hostel Superintendent was required to be sanctioned by the
Government and if was required to be sanctioned, why such post
was not sanctioned at the relevant time. The State Government
shall file an affidavit to this effect within 2 weeks from today.
In such affidavit the State Government shall also deal with the
contentions raised by the petitioner in this Writ Petition. Copy of
the affidavit-in-reply shall be served upon the petitioner as well
as upon the learned Advocate representing respondent Nos. 3 and
5 simultaneously. It is made clear that no further extension would
be granted."
5 WP - 4273-2006
7. Thereafter, the matter got adjourned on couple of
occasions and the Court had to pass a stern order on 24-11-2017.
Thereafter, the affidavit-in-reply came to be filed on behalf of
respondents no. 1, 2, 4 and 6. Perusal of the affidavit shows that
respondent no.8 school had been granted permission in 1997 and
only eight posts were sanctioned and post where petitioner had
been appointed that of Hostel Superintendent, had not been granted
sanction. It had been sanctioned subsequently on 26-12-2003.
The affidavit save and except reiterating that although the petitioner
was appointed in 1995 on the post of Hostel Superintendent but till
26-12-2003, the post was not sanctioned by the Government and,
therefore, approval had not been granted. The affidavit does not
even by whisper reflect upon, as to whether pursuant to Rules 43 to
47 of the Special School Code, 1997, the post of Hostel
Superintendent in respect of school of respondents no. 7 and 8 was
required to be sanctioned. The affidavit further purports to deny
the liability to pay salary and allowances from date of appointment
till 26-12-2003 when the post of Hostel Superintendent had been
sanctioned and appointment of petitioner had been approved. The
affidavit-in-reply does not show as to why the post had not been
sanctioned or for that matter, as to whether the same was required
to be sanctioned in accordance with provisions of Rule 43 to 47 of
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the Special School Code, 1997, as referred to under order dated
01-09-2017 passed by this Court.
8. Although learned AGP purports to resist the claim made
that sanction atleast had been due from the date on which
permission had been granted to respondent no. 8 school, he has not
been able to resist the same giving any plausible reason. It has not
been explained in affidavit-in-reply, as to why the benefit under the
provisions of Special School Code, 1997 should be detained from
giving to petitioner, as is claimed to have been given to school at
Udgir, Dist. Latur. Affidavit is conspicuously silent in respect of the
same.
9. In the circumstances, it emerges that there is no dispute
that petitioner had been appointed in 1995 as Hostel
Superintendent in the Handicapped school run under the aegis of
respondent no. 7 and that permission to run the school had been
given in 1997 by the State Government, sanctioning along the
same, eight posts. It would also have to be referred to that the
school is a residential school having a hostel and that Hostel
Superintendent pursuant to the Special School Code, 1997, is
required to be appointed.
7 WP - 4273-2006
10. In the circumstances, while there is no plausible reason
coming forth to detain benefit of sanction to the Hostel
Superintendent's post in respondent nos. 7 and 8 school, it would
be expedient to allow the writ petition in terms of prayer clause (B)
with a rider that the benefits of sanction to the post would not
entitle petitioner to claim salary from respondents no. 1 to 6 till
26-12-2003, however, all other benefits accruing from such sanction
shall flow to the petitioner till that day and onwards. The benefits
should be computed for making payment to petitioner from
26-12-2003.
11. Rule is made absolute in above terms.
[P. R. BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
arp/
