Bombay High Court
Sandip Dattatray Aabhale And ... vs The State Of Maharashtra And ... on 13 January, 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.6349 OF 2020
1. Sandip s/o Dattatray Abhale,
Age : 41 years, Occu. Service,
R/o Akalapur, Tq. Sangamner,
Dist. Ahmednagar
2. Pravin s/o Nivrutti Divekar,
Age : 34 years, Occu. Service,
R/o Akalapur, Tq. Sangamner,
Dist. Ahmednagar ..PETITIONERS
Versus
1. The State of Maharashtra,
Through the Principal Secretary to
School Education Department,
Mantralaya, Mumbai - 32
2. The Education Ofcer (Secondary),
Zilla Parishad, Ahmednagar
3. Shri Ganesh Bahujan Vidya Prasarak
Sanstha, Bota, A/P. Bota,
Tq. Sangamner, Dist. Ahmednagar,
Through its President ...RESPONDENTS
Mr S.T. Shelke, Advocate for the petitioners;
Mrs G.L. Deshpande, A.G.P. for respondents No.1 & 2;
Mr S.S. Wagh, Advocate for respondent No.3
CORAM : SUNIL P. DESHMUKH
AND
ABHAY AHUJA, JJ.
DATE : 13-01-2021
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ORAL JUDGMENT (Per Sunil P. Deshmukh, J.)
Rule. Rule made returnable forthwith. Heard the learned
counsel appearing for parties fnally by consent.
2. After hearing, factual and un-disputable position emerges
that petitioner no.1 had been appointed as Laboratory Attendant,
whereas petitioner no.2 as Peon by respondent no.3
management - institution. To such appointments, Education
Ofcer - respondent no.2 herein had granted approval with efect
from 16-12-1997 and 13-06-2003, respectively. Having regard to
the prevailing position pursuant to the Maharashtra Employees of
Private Schools (Conditions of Service) Act and the Rules framed
thereunder, coupled with that the resolution had been issued by
fnance department of the government of Maharashtra on
14-01-2016 raising the limit of promotion into clerical cadre from
25% to 50%, the respondent management, the petitioners
having acquired qualifcations for the post of clerk, had promoted
them as junior clerks on 01-12-2017. The management has
submitted proposal to respondent no.2 seeking approval to
promotion of petitioners. Said proposal has been rejected by the
Education Ofcer on 17-03-2020, referring to government
resolution dated 28-10-2004 and that there had been no revision
of stafng pattern for non teaching staf.
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3. Learned Counsel Mr Shelke, during the course of his
submissions, refers to an order dated 04-12-2020 in writ petition
no.2321 of 2019, stating that present situation is wholly
governed by said decision.
4. In present case, it would be pertinent to refer to Schedule
'F' of the Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981, item '3', reading, thus,
"3. Guidelines for fixaion of senioriay of non-aexching
saxf:
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 seniormost Junior Clerk. The posts of Head Clerk
and Superintendent shall be flled in respectively by promotion of
senior-most Senior Clerk and seniormost Head Clerk,
respectively.
Librxrixn: In the case where the Management runs only
one School a seniority list of Librarian need not be maintained as
the post is an 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.
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Lxborxaory Assisaxnas: 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 Grxde Saxf: A common seniority list of
Lxborxaory Aaaendxna, Naik, Oilman, Machine Attendant, Peon,
Watchman,Chowkidar, Sweeper, call-woman, Kamathi, Attendant,
Laboratory Hamal, Liftmen and such other lower grade staf, if
any, shall be maintained on the basis of the dates of their
appointment. If xny of ahe lower grxde saxf improves his
quxlifcxaions as prescribed either for ahe posa of Laboratory
Assistant or Clerk, such employee should be given
preference while flling in ahe sxid posa according to his
place in seniority. "
5. Schedule speaks of giving preference to an incumbent
employee improving his qualifcations, to be considered for
promotion to the post of junior clerk.
6. Apart from aforesaid, perusal of the government resolution
dated 28-10-2004 would show that it does not speak of
promotional post to be flled in by direct recruitment. Non
revision of stafng pattern would not be a ground to detain
recruitment on a available post.
7. Taking into account the purport underlying the decision
relied on, on behalf of the petitioners, it appears that the
rejection to approve promotion of petitioners on the post of Clerk
would not be tenable. The reasons given in the impugned order
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as well as those in the afdavit in reply are not the reasons to
detain promotion on the post which otherwise would be
available to the petitioners in normal course.
8. For all aforesaid reasons coupled with decisions relied on
behalf of petitioners, namely in the cases of Ashok s/o. Shankarrao
Shinde Versus Probodhan Shikshan Sanstha and others, reported in 1999
(1) Bom. C.R. 800 and Ramesh Shivram Khairnar Versus State of
Maharashtra and others, reported in 2003 (4) Bom. C.R. 470, it would be
expedient that the impugned order is set aside.
9. As such, the writ petition is allowed in terms of prayer
clause (B) and respondent no.2 shall pass appropriate orders on
proposal submitted for petitioners' promotion as junior clerk.
Rule is made absolute accordingly.
(ABHAY AHUJA) (SUNIL P. DESHMUKH)
JUDGE JUDGE
amj
