Bombay High Court
Vinod Gangadhar Zunjare vs The State Of Maharashtra And ... on 8 February, 2021
Bench: S.P. Deshmukh, Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8129 OF 2019
Vinod s/o Gangadhar Zunjare,
Age : 34 years, Occup. Service as
Shikshan Sevak in Secondary
Ashram School, Vasantnagar
(Kotgyal), Tq. Mukhed,
Dist. Nanded ...PETITIONER
Versus
1. The State of Maharashtra
Through its Secretary,
Social Justice and Special
Assistance Department,
Mantralaya, Mumbai - 32
2. The Regional Deputy Commissioner,
Social Welfare Department,
Dr. Babasaheb Ambedkar
Social Justice Bhavan,
Near Market Yard, Latur
3. Assistant Commissioner,
Social Welfare, Nanded,
Dist. Nanded
4. Vimukta Jati Seva Samiti,
Vasantnagar (Kotgyal),
Tq. Mukhed, Dist. Nanded,
Through its Secretary
5. Secondary Ashram School,
Vasantnagar (Kotgyal),
Tq. Mukhed, Dist. Nanded,
Through its Head Master ...RESPONDENTS
Mr V.S. Panpatte, Advocate for the petitioner;
Mr P.N. Kutti, A.G.P. for respondents No.1 to 3
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CORAM : SUNIL P. DESHMUKH
AND
ABHAY AHUJA, JJ.
DATE : 08-02-2021
ORAL JUDGMENT (Per Sunil P. Deshmukh)
Rule. Rule made returnable forthwith. Heard learned
Counsel appearing for parties fnally by consent.
2. While one assistant teacher, namely, Mr Bharat Kerba
Mehte was to retire on superannuation, it had been requested
under letter dated 27-05-2019 by management to the assistant
commissioner, social welfare, Nanded, that post falling vacant on
superannuation of said employee, be flled up from surplus
teacher from the category of scheduled caste as there is a
backlog of scheduled caste candidate in the appointments and
that in case that is not possible, permission to advertise the post
may be given for flling it up. There had been no response and
the management had issued advertisement in daily 'Mahasagar'
dated 04-06-2019 for flling up three posts including the one
which had been rendered vacant upon superannuation of
aforesaid Mr Mehte. It is submitted that after following due
procedure thereafter, petitioner had been appointed on the post
as a scheduled caste candidate. Accordingly, management had
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sought approval to said appointment, however, that has been
turned down under impugned communication dated 24-06-2019,
for there had been no prior permission sought to fll up the post
nor for advertisement and having regard to ban under
government resolution dated 16-10-2012 and surplus teachers
being available.
3. Learned counsel for the petitioner points out page 18
annexed to the petition contending that as a matter of fact, there
was backlog of scheduled caste in appointments and surplus
assistant teacher had been sought and in the absence of such
surplus teacher being available, permission for advertisement
had been sought to fll up the post. There had been no
communication on the same and thus, advertisement had been
issued and after following due procedure as aforesaid, petitioner
has been appointed. The ban under government resolution
dated 16-10-2012 would not hold his appointment, having regard
to the decision dated 10-07-2017 of a division bench at the
principal seat of this court in writ petition no.8587 of 2016 with
connected writ petitions, relevant portion of which reads, thus, :
"In the result the Writ Petitions are allowed and impugned orders
are quashed and set aside. The Respondents - Education Ofcers are
directed to examine independent cases and grant approval to each of
the teachers who fall in the following three categories:-
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(a) Where the recruitment process is already commenced
prior to GR dated 2nd May 2012;
(b) where the appointments made for flling up vacancies in
English, Mathematics and Science;
(c) where the recruitment is made to fulfl the backlog of
reserve categories candidates."
4. Learned counsel for the petitioner further contends that
government resolutions dated 02-05-2012 and 16-10-2012 are
pari-materia / same, while government resolution dated
02-05-2012 applies to the schools other than ashram schools and
government resolution dated 16-10-2012 has been issued in
respect of ashram schools. He submits that beyond that there is
no distinction between the two. He further submits that the
considerations which have weighed with the division bench at
the principal seat in aforesaid decision, apply on all fours to the
present situation.
5. Learned A.G.P. Mr Kutti contends that appointment
obviously is during the ban under resolution dated 16-10-2012
and that there is an alternate remedy available.
6. Going by the reasons which have been given under the
impugned communication, it is obvious that it would not be a
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case where it can be said that there had been no prior
permission sought or any scheduled caste candidate surplus had
been ever sent for absorption in the school. The ban, as it would
emerge, does not hold for the vacancies in english, mathematics
and science subjects and for flling up the backlog of reserved
category candidates.
7. Communication dated 27-05-2019 clearly shows that
permission had been sought for flling up the post by scheduled
caste candidate due to backlog and that petitioner comes from
said caste. It is not the case that any surplus scheduled caste
candidate had been sent for accommodation in the school. In
view of the same, it would be expedient that we follow the
course of the decision of the division bench, having regard to
observations in paragraph 9 reproduced herein-above earlier. It
will not be out of place to refer that aforesaid decision has been
followed in writ petition no.2014 of 2017, dated 23-02-2018,
quoting aforesaid paragraph no.9.
8. As such, in view of aforesaid, the impugned communication
is set aside. The proposal for approval to the appointment for
petitioner is revived. Appropriate order be passed by
respondent no.2 without rejecting the same for the reasons on
which the impugned order has been passed. Said exercise be
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completed within a period of six weeks from the date of receipt
of writ of this order.
9. Rule is made absolute accordingly. No order as to costs.
10. Writ Petition is disposed of.
(ABHAY AHUJA) (SUNIL P. DESHMUKH)
JUDGE JUDGE
amj
