Bombay High Court
Yashwant S/O Bhaiyyaji Shete vs State Of Mah Thr Its Secretray ... on 23 September, 2022
Bench: S.B. Shukre, G. A. Sanap
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.429 OF 2010
1. Yashwant s/o Bhaiyyaji Shette,
Aged about 27 yrs., Occu. Service,
C/o. Rashtrasant Tukdoji Deaf and
Dumb School, Chimur,
Distt. Chandrapur
... PETITIONER
...VERSUS...
1. State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya,
Mumbai - 400032
2. Divisional Social Welfare Officer,
Nagpur Division,
Mount Road, Sadar,
Nagpur
3. Social Welfare Officer (Group - A),
Zilla Parishad,
Chandrapur,
Tah. And Distt. Chandrapur
4. Gramin Yuwak Berojgar
Shikshan Sanstha,
Chimur, District Chandrapur
Through its President
... RESPONDENTS.
....
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2
___________________________________________________
Shri S.P. Bhandarkar, learned counsel with Ms Mallika Goenka,
counsel for the petitioner.
Shri K.L. Dharmadhikari, learned AGP for the respondent Nos.1 to 3
/State.
___________________________________________________
CORAM : S.B. SHUKRE AND G. A. SANAP, JJ.
DATE : 23/09/2022
ORAL JUDGMENT: (Per: S.B. SHUKRE, J.)
1. The matter is more than a decade old and needs to
be heard and decided finally now. Accordingly, we have heard
Shri K.L. Dharmadhikari, learned AGP for the respondent Nos.
1 to 3.
2. On going through the paper book of this petition,
we find that there is substance in the submission of learned
AGP for the respondent Nos.1 to 3 when he argued that this
petition is devoid of merits as the appointment of the
petitioner as Special Teacher in the school run by respondent
No.4 was without seeking any prior permission, was on
reserved post, for which the petitioner was not eligible and
was basically illegal. We find these submissions to be correct
from the facts revealed by the record of the case. We also find
that simultaneously petitioner had worked on two posts and
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which is not permissible. We do not find merit in this petition.
At this juncture, Ms Mallika Goenka, learned counsel holding
for Shri S.P. Bhandarkar for the petitioner has appeared and
has prayed for grant of time in the matter.
3. Since learned counsel is present, we are giving an
opportunity for making her submission in the matter.
4. Now Shri S.P. Bhandarkar, learned counsel for the
petitioner has also appeared before the Court. We have heard
him. Shri Bhandarkar, learned counsel for the petitioner
graciously concedes that on a post reserved for scheduled tribe
category candidate, candidate belonging to some other
category or open category like the petitioner cannot be
appointed. But, he submits that there were special
circumstances which existed at the time the petitioner was
initially appointed on 1.07.2002 as a special teacher. He points
out from the finding of facts recorded by the Divisional Social
Welfare Officer, Nagpur in his order dated 16.08.2007 that in
spite of issuance of the advertisement by the management, no
candidate for filling up the posts of special teacher reserved for
Scheduled Tribe Category candidate became available and
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therefore, the management, in the interest of students,
appointed the petitioner from open category. He submits that it
was this reason that made Divisional Social Welfare Officer,
Nagpur to issue a direction to the District Social Welfare
Officer for sending a proposal to him seeking temporary
approval of the appointment of the petitioner till the post of
special teacher was filled up from among the candidates
belonging to Scheduled Tribe Category by following
appropriate procedure.
5. Shri Bhandarkar, learned counsel further submits
that following the permission granted by this Court in its order
dated 14 March, 2014, the management initiated the process
of filling up the post of Special Teacher from among candidates
belonging to Scheduled Tribe Category and now that post has
been filled up by issuing appointment to a candidate belonging
to Scheduled Tribe Category. He further submits that in the
circumstances, only issue that has remained in this case is of
payment of salary to the petitioner for the period for which he
has actually rendered his service as a Special Teacher.
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6. These new developments are consistent with the
findings recorded by us earlier and therefore, the only issue
that has remained to be resolved in this petition is of payment
of salary for the period, for which the petitioner actually
worked as Special Teacher and also the respondents on which
the liability for payment of arrears of salary should be
fastened.
7. From the paper book of the petition, we find that
the petitioner had simultaneously worked on two posts, one as
a special teacher and other as mobile teacher in Zilla Parishad,
Chandrapur for some period of time. This period of time was
from 02.11.2006 to 01.10.2010. For this period of time, the
petitioner would not be entitled to receive any salary payable
to the post of special teacher and none of the respondents
would be liable to pay this salary. However, for the remaining
period of time during which the petitioner has worked as
special teacher in the school run by respondent No.4, the
petitioner would be entitled to receive the salary and this
salary, now forming arrears of salary, would have to be paid
only by respondent No.4 and no liability for payment thereof
shall arise against State Government, for the reason that the
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respondent No.4 had made the appointment without following
due procedure of law.
8. In the result, we partly allow the petition and direct
respondent No.4 to pay the arrears of salary to the petitioner
for the period, for which he has actually worked as special
teacher in the school run by it barring the period from
02.11.2006 to 01.10.2010, if the same has not been already
paid to the petitioner. Payment of arrears of salary shall have
to be made alongwith simple interest @ 7% per annum for the
period, for which the payment was due. The above direction
shall be complied with by respondent No.4 within eight weeks
from the date of the order, failing which the petitioner shall
have the liberty to execute this order by treating it as decree
passed by the Civil Court.
Rule is made absolute in the above terms. No costs.
JUDGE JUDGE
manisha
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Signed By:MANISHA ALOK
SHEWALE
Signing Date:23.09.2022 19:08
