Bombay High Court
Vijay Nagorao Vibhute vs The State Of Maharashtra And ... on 14 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 WP / 4725 / 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4725 OF 2021
VIJAY S/O NAGORAO VIBHUTE
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
AND
CIVIL APPLICATION NO. 11500 OF 2022 IN WP / 4725 / 2021
(Vijay Nagorao Vibhute Vs. The State and another)
...
Advocate for petitioner / applicant : Mr. D.R. Irale Patil
AGP for the respondent - State : Mr. K.N. Lokhande
Advocate for the respondent no. 2 : Mr. N.S. Kadam
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 14 SEPTEMBER 2022
ORAL ORDER (MANGESH S. PATIL, J.) :
We have heard the respective advocates finally.
2. The petitioner is primarily aggrieved by the fact that
pursuant to the decision of this Court in writ petition no. 7565 of 2008,
though his appointment was affected and he was displaced, he was
accommodated by treating his appointment as fresh appointment but
his pay was not protected in spite of he having put in 10 years of
service and in spite of the provision of rule 11 of the Maharashtra Civil
Services (Pay) Rules, 1981.
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2 WP / 4725 / 2021
3. It appears that, one Maruti Chandoji Gaikwad had filed writ
petition no. 7565 of 2008 in which the present petitioner was arrayed
as respondent no. 24. While allowing the writ petition, this Court had
passed the following order :-
"31. We therefore pass the following order:
ORDER
(I) The Zilla Parishad is directed to appoint the petitioner to
the post of Livestock Supervisor with effect from the date of
appointment given to the other candidates appointed in the
open category with continuity of service. It is however made
clear that the Zilla Parishad will not be liable to make any
payment of backwages to the petitioner.
(II) The appointment of respondent No. 7 shall be considered
as appointment made in the category of Other Backward
Class(OBC) candidates from the date of his appointment in the
open category.
(III) The Zilla Parishad is directed to appoint the respondent No.
24 to the post reserved for Nomadic Tribe as described in
communication dated 1st September, 2017 by Zilla Parishad to
the learned counsel for Zilla Parishad and also reflected in the
communication dated 24th April, 2017 addressed by the Zilla
Parishad to the petitioner under the provisions of Right to
Information Act, produced on record by the learned counsel for
respondent Nos. 4 to 12 and 19 to 28 within four weeks from
today.
(IV) It is, however, made clear that the appointment of the
respondent No. 24 to the said post shall be treated as fresh
appointment and he will not be entitled to the deemed date of
appointment which was the deemed date of his initial
appointment.
(V) The Zilla Parishad shall act on the authenticated copy of this
order. "
4. Pursuant to clause (IV), the petitioner's appointment was
specifically treated as fresh appointment and accordingly a fresh order
3 WP / 4725 / 2021
pursuant to this clause (IV) was issued on 31-08-2018 and he was
brought down to the original pay scale of the post.
5. Aggrieved thereby he preferred an appeal under section
13 and 14 of the Maharashtra Zilla Parishad (Discipline and Appeal)
Rules, 1964 and by the impugned order, his appeal was dismissed.
6. As can be seen, the petitioner was to be displaced since
he had secured the lowest marks in the category and the petitioner in
writ petition no. 7565 of 2008 was to be appointed in an open category
displacing the respondent no. 7 therein. Perhaps, realizing the
consequence that was coming in his way, the petitioner himself had
offered to treat his appointment as a fresh appointment subject to his
foregoing the benefits of his initial appointment. Paragraph no. 28 of
the judgment makes this abundantly clear. In view of such concession,
following were the observations made in paragraph no. 30 :-
"30. In our view since the Zilla Parishad is responsible for
appointing respondent No. 7 who had applied under the OBC
category by appointing him in the open category in view of
the respondent No. 7 at that point of time competing with the
other candidates in the open category and had illegally
refused to appoint the petitioner in one of the posts
earmarked for open category, the respondent No. 24 is likely
to be affected by this order. In our view the request of the
learned counsel for respondent No. 24 to direct the Zilla
Parishad in these circumstances to appoint him to the said
post reserved for Nomadic Tribe which appointment is at the
discretion of the selection committee deserves to be
accepted. We are, however, not inclined to grant any benefit
of deemed date to the respondent No. 24 as the date of his
initial appointment made by the Zilla Parishad. At the same
time we are also not inclined to award any backwages to the
4 WP / 4725 / 2021
petitioner. At this stage learned counsel for the petitioner has
fairly stated that his client does not press the relief of
backwages if he is given the deemed date of the date of initial
appointment. Statement is accepted."
7. Admittedly, the petitioner had not challenged this judgment
and order in writ petition no. 7565 of 2008 and we see no reason and
justification for him to turn around and claim the benefits which he
himself had surrendered in the peculiar fact and situation of the matter.
8. The writ petition is dismissed.
9. Rule is discharged.
10. Pending civil application is disposed of.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
