Bombay High Court
Shivhar Madhav Devkamble And ... 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.8151 OF 2019
1. Shivhar s/o Madhav Devkamble,
Age : 28 years, Occup. Service as
Peon in Secondary Ashram School,
Sullai-Dongargaon,
Tq. Jalkot, Dist. Latur
2. Atmaram s/o Digambar Santre,
Age : 35 years, Occup. Service as
Peon in Secondary Ashram School,
Sullai-Dongargaon,
Tq. Jalkot, Dist. Latur ...PETITIONERS
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, Latur,
Dist. Latur
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
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Mr V.S. Panpatte, Advocate for the petitioners;
Mr P.N. Kutti, A.G.P. for respondents No.1 to 3;
Mr P.S. Dikle, Advocate for respondents no.4 & 5
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 peon, namely, Narayan Mansing Rathod was to
retire on superannuation, it had been requested under letters
dated 21-09-2018 and 09-05-2019 by respondent no.4 -
management to respondent no.2 - assistant commissioner, social
welfare, Latur that posts of Peon falling vacant on
superannuation of employees, be flled up from surplus peons
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 posts may be
given for flling it up. There had been no response and the
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management had issued advertisement in daily 'Mahasagar'
dated 30-10-2018 and 04-06-2019 respectively, for flling up two
posts of Peons. It is submitted that after following due procedure
thereafter, petitioners had been appointed on the posts as a
scheduled caste candidates. Accordingly, management had
sought approval to said appointments, 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 posts
nor for advertisement and having regard to ban under
government resolution dated 16-10-2012 and surplus peons
being available.
3. Learned counsel for the petitioners points out page 21
annexed to petition, contending that as a matter of fact, there
was backlog of scheduled caste in appointments and surplus
peons had been sought and in the absence of such surplus peons
being available, permission for advertisement had been sought
to fll up the post. There had been no communication on the
same and thus, advertisements had been issued and after
following due procedure as aforesaid, petitioners have been
appointed. The ban under government resolution dated
16-10-2012 would not hold their appointments, having regard to
the decision dated 10-07-2017 of a division bench at the
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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:-
(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 petitioners 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.
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5. Learned A.G.P. Mr Kutti contends that appointments
obviously are 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
case where it can be said that there had been no prior
permission sought or any scheduled caste candidates surplus
had been ever sent for absorption in the school. The ban, as it
would emerge, does not hold for the vacancies of peons and for
flling up the backlog of reserved category candidates.
7. Communications dated 21-09-2018 and 09-05-2019 clearly
show that permission had been sought for flling up the posts by
scheduled caste candidates due to backlog and that petitioners
come 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.
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8. As such, in view of aforesaid, the impugned communication
is set aside. The proposal for approval to the appointments for
petitioners 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
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
