Vijay Jagannath Gawade vs Sub Divisional Officer And Sub ...
2023 Latest Caselaw 12975 Bom

Bombay High Court

Vijay Jagannath Gawade vs Sub Divisional Officer And Sub ... on 18 December, 2023

Author: A.S. Chandurkar

Bench: A.S. Chandurkar

2023:BHC-AS:38955-DB



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CIVIL APPELLATE JURISDICTION

                                           WRIT PETITION NO.15550 OF 2023
            Vijay Jagannath Gawade,                                                                ]
            Age : 39 yrs., Occ.: Agriculturist,                                                    ]
            R/o. Phansawde, Tal. Sawantwadi,                                                       ]
            Dist. Sindhudurga.                                                                     ] .. Petitioner
                         Versus
            1. Sub-Divisional Officer and                                                          ]
               Sub-Divisional Magistrate,                                                          ]
               Sawantwadi, Tal. Sawantwadi,                                                        ]
               Dist. Sindhudurga.                                                                  ]
            2. The Collector, Sindhudurga,                                                         ]
               Dist. Sindhudurga.                                                                  ]
            3. Additional Commissioner,                                                            ]
               Konkan Division, Mumbai.                                                            ]
            4. The State of Maharashtra                                                            ] .. Respondents


            Mr. Mahesh V. Rawool for the Petitioner.
            Mr. P.P. Kakade, Govt. Pleader, with Mr. S.L. Babar, AGP, for the Respondents.


                                                              CORAM : A.S. CHANDURKAR &
                                                                                FIRDOSH P. POONIWALLA, JJ

                                                              DATE          : 18TH DECEMBER, 2023.

            ORAL JUDGMENT : { Per A.S. Chandurkar, J. }

1. RULE. Rule made returnable forthwith and, by consent, heard learned

counsel for the parties. Learned AGP waives notice for the respondents.

2. The petitioner came to be appointed as "Police Patil" initially on 29 th June

2010 for a period of five years and thereafter on 31 st May 2020 for a period of

5-WP-15550-2023-Corrected Order Pursuant to Speaking to Minutes Order dt. 19-12-2023.doc Dixit

ten years. On the ground that the provisions of the Maharashtra Civil Services

Rules, 2005 as regards "small family" are applicable to the post of "Police Patil",

the petitioner came to be removed from the said post by an order dated 2 nd June

2023 on the ground that he had more than two children. Being aggrieved, the

petitioner has preferred an appeal before the Additional Commissioner (Kokan

Division), Mumbai on 30th June 2023. Along with that appeal, an application

for seeking stay to the order passed by the Sub-Divisional Magistrate has also

been preferred. The grievance of the petitioner is that during pendency of the

said proceedings, fresh process of recruitment on the post of Police Patil has

been initiated.

3. The learned counsel for the petitioner submits that the provisions with

regard to "small family", as contained in the Government Resolution dated 14 th

September 2011 and 28th March 2005 are not applicable to the post of "Police

Patil". Though the Additional Commissioner has sought guidance in this regard

from the State Government, the same has not been received, as a result of which

the petitioner's stay application has not been considered.

4. Considering the fact that the petitioner's statutory appeal along with the

stay application is pending with the Additional Commissioner, coupled with the

fact that the post of "Police Patil", that has fallen vacant with the removal of the

petitioner, is now sought to be filled in, the following order would serve the

ends of justice :-

(i) Within a period of three weeks from today, the petitioner's

stay application, that has been preferred seeking stay of

5-WP-15550-2023-Corrected Order Pursuant to Speaking to Minutes Order dt. 19-12-2023.doc Dixit

the order dated 2nd June 2023, shall be considered and

decided on its own merits.

(ii) Within a further period of three weeks from that date, the

petitioner's appeal challenging the order dated 2 nd June

2023 shall be decided on merits.

(iii) The process initiated for filling-in the post of "Police Patil",

due to the removal of the petitioner, would be subject to

outcome of the appeal preferred by the petitioner.

(iv) It is, however, made clear that the stay application shall be

decided by the Additional Commissioner (Kokan Division),

Mumbai on its own merits without being influenced by

any observations made in this order. All points in that

regard are kept open.

            (v)    To enable the stay application to be considered, the

                   petitioner          shall      appear         before        the       Additional

                   Commissioner            (Kokan        Division),        Mumbai          on      21st

                   December 2023.

(vi) Parties to act on the authenticated copy of this order.

5. Rule is disposed of in the aforesaid terms.

[ FIRDOSH P. POONIWALLA, J. ] [ A.S. CHANDURKAR, J. ]

5-WP-15550-2023-Corrected Order Pursuant to Speaking to Minutes Order dt. 19-12-2023.doc Dixit