Hansraj Baburao Somwanshi vs The State Of Maharashtra And ...
2021 Latest Caselaw 15221 Bom

                                     -1-

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                        WRIT PETITION NO.12779 OF 2018

Hansraj Baburao Somwanshi,
Age-32 years, Occu-Service,
R/o Omerga (Y),
Tq.Chakur, Dist.Latur                               -- PETITIONER

VERSUS

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

2. The Director of Education (Secondary),
   Maharashtra State, Pune,

3. The Deputy Director of Education (Secondary),
   Latur Division, Latur,

4. The Education Officer (Secondary).
   Latur, Dist.Latur,

5. The Secretary,
   School Education Management Committee,
   Ajansonda (Bk.)
   Ajansonda (Bu.) Tq. Chakur,
   Dist.Latur,

6. The Head Master,
   Haribhau Mule Madhyamik Vidyalaya,
   Dhangarwadi, Ajansonda (Bu),
   Tq.Chakur, Dist.Latur                            -- RESPONDENTS

Mr.D.S.Mali, Advocate for the petitioner.

Mr.S.G.Sangle, AGP for respondent Nos. 1 to 4. Mr.S.B.Choudhari, Advocate for respondent Nos.5 and 6.

khs/Oct. 2021/12779-d

( CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, JJ)

DATE : OCTOBER 25, 2021

ORAL JUDGMENT : (Per Ravindra V. Ghuge, J.)

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner has put forth prayer clause "B" and "C" as under :-

"B. By issuing writ of mandamus or any other writ, order or direction, this Hon'ble Court may be pleased to quash and set aside the order passed by the respondent No.4 dated 20/01/2017 and direct respondent Nos. 1 to 4 to grant approval to the petitioner as a Assistant Teacher from 11/11/2011 (permanent appointment order issued dated 11/11/2014 by respondent No.5.) in view of Government Resolution dated 4th Sept.2013.

C. By issuing writ of mandamus or any other writ, order or direction, this Hon'ble Court may be pleased to direct the respondent authorities to release payment of salary of the petitioner as a Assistant Teacher since 11/11/2011 to till today and grant consequential benefits."

3. The issue raised before us is only as regards whether the

khs/Oct. 2021/12779-d

Management could have surreptitiously altered the reservation

published in an advertisement after the Education Officer having

granted it's approval to recruit 4 posts by following the reservation

roaster.

4. Respondent Nos. 5 and 6 were granted permission by the

Education officer, vide communication dated 20/10/2011, to recruit 4

candidates as "Shikshan Sevak" as follows :-

v-dz- 'kS{kf.kd ik=rk laoxZ in

5. Within 24 hours, the Management published an advertisement on

21/10/2011 in an unknown newspaper by name " Dainik Marathwada

Neta" as under :-

ckykth f'k{k.k laLFkk] vtulksaMk & cq- )kjk lapyhr

gfjHkkÅ eqGs ek/;fed foKky;] /kuxjokMh

vtulksaMk & cq- rk-pkdqj] ft-ykrwj

ikfgtsr

vkeP;k 'kkGsr vuqnkuhr rRokoj [kkyhyizek.ks ins Hkjko;kph vkgsr-

khs/Oct. 2021/12779-d

v-dz- in laoxZ la[;k 'kS{kf.kd ik=rk 1 f'k{k.k lgk¸;d ,p-,l-lh-Mh-,M- vuqlwfpr tkrh 01 2 f'k{k.k lgk¸;d ,p-,l-lh-Mh-,M- vuqlwfpr tkrh 01 3 f'k{k.k lgk¸;d ch-,Llh-ch-,M-& foKku brj ekxkloxhZ; 01

ojhy loZ ik= mesnokjkauh 'kS{kf.kd izek.ki+=kP;k eqG izfrlg jfookj fn-23-10-2011 jksth

ldkGh 10-00 oktrk Lo[kpkZus eqyk[krhl mifLFkr jgkos-

eqyk[krhps fBdk.k% gfjHkkÅ eqGs ek/;fed foKky;] /kuxjokMh

vtulksaMk & cq- rk-pkdqj] ft-ykrwj

v/;{k eq[;k/;kid

'kkys; f'k{k.k lferh

gfjHkkÅ eqGs ek/;fed foKky;] /kuxjokMh] vtulksaMk & cq- rk-pkdqj] ft-ykrwj

6. The petitioner has been appointed on 11/11/2011 as a "Shikshan

Sevak" to teach the students belonging to the Science Faculty, though he

belongs to the Open Category and did not belong to the OBC category.

The Management also appointed a candidate from the OBC category to

teach the Marathi subject which position was earmarked for the Open

Category. Apparently the Management has tinkered with the

permission granted by the Education Officer and the advertisement

published, surreptitiously, by appointing the petitioner from the open

khs/Oct. 2021/12779-d

category when the position was reserved for the OBC category and

another person was appointed to the position earmarked for the Open

Category, when such candidate belonged to the OBC category.

7. The learned Advocate for the Management has tried to justify the

said recruitment by making surreptitious changes, on the ground that

by the time the selection was made pursuant to the advertisement

dated 21/10/2011, some approvals were granted by the Education

Officer thereby removing the backlog for the OBC category.

8. Howsoever, strenuously, would the learned Advocate for the

petitioner and the Management justify the appointment of the

petitioner, the legal remedy available to the Management was to

immediately insert a corrigendum in the newspaper cancelling the

advertisement dated 21/10/2011 and again approach the Education

Officer for updating the reservation roaster and then publish an

advertisement for making appointments. What has been surreptitiously

done by the Management is that they have themselves tampered with

the advertisement by interchanging the reservations, without bringing

this aspect to the notice of the Education Officer.

khs/Oct. 2021/12779-d

9. The learned Advocate for the petitioner canvasses that he has

been working for 10 years and his appointment must be regularized.

We are of the view that if an illegality has been committed by the

Management in recruiting candidates, passage of time cannot convert

the illegality into a legality. When the post at Sr.No.3 for teaching

Science subject was reserved for OBC and advertised accordingly,

naturally many candidates from the open category available in the

society may not have applied as the post was reserved for OBC. Similar

is the case of the appointment at Sr.No.4 in the advertisement. As

such, the modus operendi of the Management amounts to granting a

back door entry to the petitioner by eliminating the chances of many

more candidates belonging to the open category, who did not apply for

the said position and the petitioner alone is secretively picked and

appointed to the post reserved for the OBC when he belonged to the

Open category.

10. In view of the above, we do not find that our extra ordinary

jurisdiction could be exercised to legalize the illegality. The petition,

being devoid of merit, is therefore dismissed. Rule discharged.

khs/Oct. 2021/12779-d

11. The learned Advocate for the petitioner submits on instructions

that he seeks to initiate proceedings for seeking damages against the

Management. As such, the petitioner is at liberty to take recourse to

any remedy as is permissible in Law.

      ( S.G. MEHARE, J. )                        ( RAVINDRA V. GHUGE, J. )




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