Rahulkumar Tejlal Meshram vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 4641 Bom

                                                                                 23 WP-2299-2021.odt
                                                   1

  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR.
                   WRIT PETITION NO.2299 OF 2021

             PETITIONER                  :          Rahulkumar Tejlal Meshram,
                                                    Age-Adult, Occupation-Peon, R/o.
                                                    Gauttam Buddha Ward, kumbhari
                                                    Nagar, Tq. And Dist. Gondia.

                                                    ..VERSUS..

             RESPONDENTS : 1. The State of Maharashtra,
                              Through its Secretary, Department
                              of Education, Mantralaya, Mumbai.

                                                 2. The Education Officer (Secondary),
                                                    Zilla Parishad, Gondia.

                                                 3. Shree Samarth New                    Education
                                                    Society, Through its                 Secretary,
                                                    Raitoli, Gondia.
                                                 4. J. M. High School, Gondia, Through
                                                    its   Headmaster    Main    Branch,
                                                    Gondia.
-------------------------------------------------------------------------------------------
             Shri. R. R. Pimpalkhute h/f Shri. A. S. Thotange, Advocate for Petitioner
             Ms. H. N. Jaipurkar, AGP for the Respondent Nos.1 and 2.
             Shri. S. S. Tambulkar, Advocate for the Respondent Nos.3 and 4.
------------------------------------------------------------------------------------------------------------

                        CORAM                :     SUNIL B. SHUKRE AND
                                                   SMT. M. S. JAWALKAR, JJ.

                        DATE                 :     2nd MAY, 2022.


            ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)



            .             Heard.
                                                   23 WP-2299-2021.odt

2. Rule. Rule made returnable forthwith. Heard

finally by consent of the parties.

3. The Petitioner was appointed on the post of

Peon by Respondent No.3/Management on

compassionate basis after the death of father of the

Petitioner. The Petitioner was so appointed on

30.11.2016. When approval to such appointment of

the Petitioner was sought, it was rejected by the

Education Officer i.e. Respondent No.2 on the ground

that ban on recruitment as per the Government

Resolution dated 12.02.2015 was in operation. The

Petitioner was compelled to file petition being Writ

Petition No.244 of 2018. By the judgment delivered

on 18.11.2019, this Court held that ban on

recruitment imposed as per the GR dated 12.02.2018

would not come in the way of the Petitioner who was

appointed on compassionate basis in the year 2016,

and therefore, this Court, remanded back the matter

to the Education Officer for its being considered

afresh in accordance with the GR dated 31.12.2002,

which prescribed the procedure for making of

compassionate appointments of teaching and non 23 WP-2299-2021.odt

teaching staff.

4. Upon remanding of the matter, the

Education Officer again considered the whole issue

and found that the issue would have to be decided in

terms of the GR dated 23.10.2013, which was the GR

on which status quo was imposed by the GR dated

12.02.2015. After all, this Court had held that the GR

dated 12.02.2015 would not come in the way of

considering the appointment of the Petitioner on

compassionate basis for grant of approval or

otherwise.

5. The GR dated 23.10.2013 determined the

staffing pattern of various teaching and non teaching

staff and as per this staffing pattern, in all 15 posts of

Peon were admissible in the six schools run by the

Management and whereas on the date on which the

Petitioner was appointed on compassionate basis,

there were seventeen Peons who were working in all

six schools of the Management. Thu,s it was found by

the Education Officer that two Peons were already

surplus and as such no post of Peon was available for 23 WP-2299-2021.odt

being filled up by making any compassionate

appointment. On this ground, the Education Officer

rejected the proposal of the Management seeking

approval to such appointment of the Petitioner.

6. We find nothing wrong in the reasons so

recorded in the impugned order for refusing to

approve appointment of the Petitioner. Once, this

Court held that the GR dated 12.02.2015 would not

come in the way of considering the issue of grant of

approval or otherwise to the appointment of the

Petitioner on compassionate basis, the Education

Officer was required to examine the issue in the light

of the GR dated 23.10.2013, as by the GR dated

12.02.2015, a status quo was directed to be imposed

in respect of staffing pattern prescribed by the GR

dated 23.11.2013. The Education Officer was obliged

under law to consider the issue of grant of approval

to the appointment of the Petitioner in the light of the

staffing pattern prescribed vide GR dated 23.10.2013.

As per this staffing pattern, it was found that there

were already two Peons who were in surplus and

therefore the Education Officer could not grant 23 WP-2299-2021.odt

approval to the compassionate appointment of the

Petitioner as Peon in one of the schools run by the

Management. No fault, therefore, could be found with

the reasoning so given by the Education Officer in the

impugned order.

7. The learned Counsel for the Petitioner

submits that the Education Officer did not consider

the issue in a comprehensive manner and certainly

not in the manner as directed by this Court in its

judgment dated 18.11.2016 delivered in Writ Petition

No.244 of 2018. This Court had directed the

Education Officer also to consider the issue in light of

the GR dated 31.12.2002. The learned Counsel for

the Petitioner is right in his submission that the

impugned order does not reflect consideration of the

case of the Petitioner in the light of the GR dated

31.12.2002. But, this GR also says that if no post is

available in the same school where a candidate like

the Petitioner applies for grant of compassionate

appointment, name of such person be added in the

waiting list and that person be considered for being

appointed in another school where the vacancy 23 WP-2299-2021.odt

exists. In other words, as per the GR dated

31.12.2002, the name of the Petitioner should have

been added in the waiting list so that, as and when

vacancy arose in some other schools, the Petitioner

could have been appointed as a Peon on

compassionate basis, is the submission of the learned

Counsel for the Petitioner. This was certainly possible

for the Education Officer to consider and even accept

that but for the new developments which have come

to the fore. Now, by a decision taken on 11.12.2020

by the State, the post of Peon which falls in Class-IV

category in the recognized schools run by Private

Management and which schools are on partly/fully

aided basis, have been abolished and the State

Government has taken a policy decision that instead

of recruiting regular Class-IV employees, the

Government would sanction the consolidated amount

as allowance which is known as Peon allowance to

such schools. Such being the new development,

which is relevant for the purpose of deciding the

controversy involved in the present case, we do not

think that now any purpose would be served by

remanding the matter back to the Education Officer 23 WP-2299-2021.odt

for its reconsideration and decision afresh in the light

of the GR dated 31.12.2002. Now, the name of the

Petitioner cannot be added even in the waiting list as

the waiting list itself has, by necessary implication,

been scrapped in view of the latest policy decision of

the State of Maharashtra taken on 11.12.2020.

8. The learned Counsel for the Petitioner has

also relied upon the view taken by the Division Bench

of this Court at Principal Seat, Mumbai in the case of

Smt. Manisha Dnyneshwar Londhe .Vs. The

State of Maharashtra and Others, WP No.2619

of 2021 decided on 19.01.2022, in order to support

the contention that in-spite of abolition of the post of

the Peon, the Division Bench has granted relief to the

Petitioner by directing the Education Officer to decide

the proposal in accordance with law.

9. On a careful reading of the said judgment

dated 19.01.2022, we find that the judgment is

distinguishable on facts. In that case, the

compassionate appointment was made with effect

from 10.06.2016 and there was no dispute about the 23 WP-2299-2021.odt

fact that on the date on which the appointment was

made the post of Peon was available. There was also

no issue involved in that Petition regarding putting

the name of the Petitioner therein on any waiting list.

Such are not the facts of the present case, which

have been narrated in the earlier paragraphs and

therefore, in our respectful submissions no assistance

could be taken by the Petitioner from the said

decision rendered in the case of Manisha (supra)

10. The learned Counsel for the Petitioner has

also referred to us the case of Yogita Shivsing

Nikam .Vs. State of Maharashtra, 2021 (6) ABR

545.

11. In the said case, a view has been taken that

ban on recruitment imposed as per the GR dated

12.02.2015 would not apply to compassionate

appointments. There can be no quarrel about the

same. But, in the present case, what has been found

by the Education Officer that no post of Peon was

available in the school i.e. Respondent No.4 when the

compassionate appointment of the Petitioner as Peon 23 WP-2299-2021.odt

was made. In recording such a finding, the Education

Officer did not give any such reason that because

there was a ban on recruitment, approval could not

be granted. Rather, the reason given was that there

were no post of Peon available at the relevant time

and so approval could not be granted, which reason

in the facts and circumstances of this case, has been

found by us to be infallible. Therefore, no help in our

respectful opinion, would go out from the case of the

Yogita (supra) to the case of the Petitioner here.

12. In the result, the petition stands dismissed.

Rule is discharged.

                (JUDGE)                    (JUDGE)



 TAMBE
                    Digitally signed by
         ASHISH     ASHISH
         ASHOKRAO   ASHOKRAO TAMBE
                    Date: 2022.05.04
         TAMBE      16:36:58 +0530