Sangramsinh Bhausaheb Ghule And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 3264 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD


                     WRIT PETITION NO.8850 OF 2018


1.       Sangramsinh Bhausaheb Ghule,
         Age : 40 years, occu.: Service,
         R/o.: Newasa (Kh), Tq. Newasa,
         District : Ahmednagar

2.       Marutrao Ghule Patil Shikshan
         Sanstha, Dnyaneshwar Nagar,
         Post Bhende (Bk), Tq. Newasa,
         District : Ahmednagar
         Through : Its Administrative Ofcer

3.       The Headmaster,
         Jijamata Secondary & Higher Secondary
         School, Dnyaneshwar Nagar,
         Post Bhende, Tq. Newasa,
         Dist.: Ahmednagar                  ...              Petitioners

                 Versus

1.       The State of Maharashtra,
         Through its Secretary,
         School Education Department,
         Government of Maharashtra,
         Mantralaya, Mumbai-32

2.       The Education Ofcer (Secondary),
         Zilla Parishad, Ahmednagar                ...       Respondents


                               ...
Mr. Manoj A. Dond Patil h/f Mr. C. K. Shinde, Advocate for
petitioners
Mr. S. S. Dande, A.G.P. for Respondents No.1 and 2
                               ...




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                               CORAM: SUNIL P. DESHMUKH &
                                         ABHAY AHUJA, JJ.

DATED: 22nd FEBRUARY, 2021.

JUDGMENT (PER : ABHAY AHUJA, J.) :-

1. Rule. Rule made returnable forthwith. By consent

of learned counsel for appearing parties, fnally heard.

2. The petitioner no.1 was appointed on the post of peon

by petitioner no.2 society school management on 01-09-2005,

which is stated to be made on clear and sanctioned post as

per prescribed procedure. On the school having received

100% grant, second respondent Education Ofcer accorded

approval to the appointment of frst petitioner as peon with

efect from the said date. Petitioner no.1 was promoted to

the post of junior clerk w.e.f. 13-02-2015 and is presently

serving in the petitioner no.3 school run by petitioner no.2

society. However, the proposal dated 16-02-2018 by

petitioner no.3 seeking approval to the said appointment /

promotion was rejected by 2 nd respondent by order dated

24.07.2018 and therefore, this writ petition.

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3. Brief background is that since a junior clerk serving in

the school came to be promoted as senior clerk, the post of

junior clerk was rendered vacant. Having regard to the

placement of petitioner no.1 in the common seniority list and

the roster, so also on giving sympathetic consideration to the

1st petitioner being 50% handicapped, the petitioner school

management resolved to promote petitioner no.1 to the said

vacant post of junior clerk in its meeting on 01-03-2015,

pursuant to which, petitioner no.1 was appointed as junior

clerk vide order dated 13-02-2015 issued by the secretary of

the petitioner no.2.

4. Thereafter, the petitioner management submitted

proposal dated 16.02.2018 to the respondent no.2 Education

Ofcer on 23-02-2018 seeking approval to the said

appointment / promotion. The said proposal was rejected by

2nd respondent vide order dated 24-07-2018 on the ground

that the post of junior clerk is liable to be flled in by direct

recruitment under Government Resolution dated 28-10-2004.

5. Shri M. A. Patil holding for Mr. C. K. Shinde, learned

counsel for the petitioners, submits that the Government

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Resolution dated 28-10-2004 has no application to the

present facts and circumstances. He submits that the said

Government Resolution refers to implementation of

reservation policy for Group-C and Group-D cadres of non-

teaching staf engaged in recognized private schools. The

said Government Resolution does not speak about the post of

junior clerk being only available for direct recruitment and

therefore, the application of the said Government Resolution

is misplaced. It is not a case of respondents that the post of

junior clerk had ever been reserved. He submits that frst

petitioner sufers of 50% physical disablement that he has

been serving as a peon with efect from 01-09-2005. That the

benefts of higher pay scale in lieu of promotion have been

denied by petitioner no.1 with a hope that he will get the

promotional post as he is the only candidate among the lower

grade staf in the institution who is possessing the

qualifcations required for the promotional post of junior clerk.

Petitioner no.1 is also the senior most lower grade staf

member. The channel of promotion provides for promotion to

the post of junior clerk from amongst the lower grade staf

members and therefore, also deserves to be approved by 2 nd

respondent.

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6. It is submitted that 2nd respondent did not even consider

that frst petitioner is possessing requisite qualifcations for

the post of junior clerk. Petitioner no.1 has passed B.A., MS-

CIT course and has also passed the Marathi and English

typewriting examinations. Petitioner no.1 has been promoted

in accordance with the provisions of M.E.P.S. Act and the

Rules. The promotion is not contrary to the provisions of the

Act, the Rules or the reservation policy. Even the roster

maintained in the school is not afected. The post of the

junior clerk is to be flled in as per the provisions of the

M.E.P.S. Act and the Rules and the Government Resolution

dated 28-10-2004 is not applicable. In any event the

Government Resolution cannot override the statutory

provisions and rules.

7. It is submitted by learned counsel for the petitioners

that there is nothing placed on record by the Education

Ofcer about the B.C. Cell having directed not to promote the

petitioner on vacant post nor the Government Resolution

dated 12-02-2015 and 18-05-2015 has been applied. He

submits that there is no ban.

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8.       Learned         A.G.P.    contends    that   under        Government

Resolution dated 28-10-2004 reservation has been made

applicable to lower grade posts of group 'C' and 'D' and as

such, are liable to be flled in by direct recruitment. He

however does not dispute the facts set out above.

9. We have heard learned counsel for the petitioners as

well as the respondents. We have also perused the papers

and proceedings in the matter.

10. Before dealing with the case at hand, it would be in the

ftness of things to frst refer to the decisions in the case of

Ashok s/o Shankarrao Shinde vs. Prabodhan Shikshan

Sanstha and others, [1999(1) Bom.C.R.800] and in the

case of Ramesh Shivram Khairnar vs. State of

Maharashtra and others, [2003(6) Bom.C.R. 254] ,

wherein this court has considered similar issue and held that

the action of the management in flling the post of junior clerk

by way of issuance of advertisement i.e. by direct recruitment

without considering the claim of lower grade staf in terms of

Item no.3 of Schedule 'F' of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules 1981 (MEPS

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Rules, 1981) is illegal and contrary to law. For the sake of

convenience paragraph no.12 of the decision in the case of

Ramesh Shivram Khairnar (supra) which has also relied

upon the decision in the case of Ashok Shankarrao Shinde

(supra) is apt and is quoted as under :

"12. When the case of the petitioner was not considered at all and advertisement was issued, for direct recruitment, in our opinion, action must be held to be illegal and contrary to law. So-called reservation has nothing to do with Schedule F. Presumably because of well-settled legal position, the Education Ofcer also issued a direction to respondent No.3 but respondent No.3 did not pay any heed to it".

11. In the present case, petitioner no.1 had been appointed

as a lower grade staf i.e. peon with efect from 01-09-2005

and pursuant to the promotion of an employee serving as

junior clerk to senior clerk, post of junior clerk had been

rendered vacant. Considering frst petitioner's seniority, he

was promoted to the post of junior clerk. Petitioner no.1 had

passed his B.A. examination and also the Marathi and English

typewriting examinations. He also passed MS-CIT course.

Petitioner no.1 possesses the requisite qualifcations for the

post of junior clerk as prescribed in item 'IV' of Schedule 'B'

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under the M.E.P.S. Rules, 1981. As such he was eligible to be

considered for promotion to the post of junior clerk pursuant

to Schedule 'F' of the MEPS Rules, 1981, which speaks of

giving preference to an incumbent employee improving his

qualifcations. The post has been flled up as per item '3' of

Schedule-F of the Rules. Item '3' of Schedule 'F' of the

M.E.P.S. Rules 1981 is quoted as under :

"3. Guidelines for fxation of seniority of non- teaching staf :

Clerks : The clerical and supervisory posts in the channel of promotion comprise Junior Clerk, Senior Clerk, Head Clerk and Superintendent, Seniority of Junior Clerks in a School or Schools shall be determined on the basis of the date of appointment of the persons concerned. The post of Senior Clerk shall be flled in by promotion of senior most Junior Clerk. The posts of Head Clerk and Superintend shall be flled ini respectively by promotion of senior-most Senior Clerk and senior most Head Clerk, respectively. Librarian : In the case where the Management runs only one School a seniority list of Librarian need not be maintained as the post is as isolated one. In case where the Management runs more than one School a seniority list of Librarian shall be maintained on the basis of the date of appointment. The Librarian shall not be held eligible for promotion to any other post. Laboratory Assistants : A seniority list of Laboratory Assistants shall be maintained on the basis of the date of appointment. The incumbents of the posts shall not be held eligible for promotion to any other post.

Lower Grade Staf :             A common seniority list of Laboratory





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Attendent, Naik, Oilman, machine Attendant, Peon, Watchman, Hamal, Liftmen and such other lower grade staf, if any, shall be maintained on the basis of the dates of their appointment. If any of the lower grade staf improves his qualifcations as prescribed either for the post of Laboratory Assistant or Clerk, such employee should be given preference while flling in the said post according to his place in seniority."

12. Perusal of the aforesaid Item '3' clearly highlights its

applicability to the case of the frst petitioner. The

Government Resolution dated 20-10-2004 does not refer to

flling up of post by direct recruitment. In that view of the

matter, the communication dated 24-07-2018 to 3 rd

petitioner, is therefore, not tenable and deserves to be set

aside.

13. In this context, we also rely upon a recent decision

dated 4th December, 2020 of this court in Writ Petition No.

2321 of 2019 in the case of Ramesh Anandrao Gavhane

vs. The State of Maharashtra and others . This court

while considering a similar issue has set aside the impugned

order and allowed the said petition.

14. In view of the aforesaid discussion and being in

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respectful agreement with the aforesaid decisions, we set

aside the communication / decision dated 24-07-2018 by the

respondent no.2 Education Ofcer. We allow the petition and

direct the 2nd respondent to pass appropriate orders on the

proposal submitted for the approval of the frst petitioner's

appointment / promotion as junior clerk. Rule is made

absolute accordingly. No order as to costs.

(ABHAY AHUJA, J.)                   ( SUNIL P. DESHMUKH, J. )

vsm/