Bombay High Court
Pushpa Ambadas Bargat vs The State Of Maharashtra Through Its ... on 27 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi, M.S. Jawalkar
2024:BHC-NAG:10909-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2669/2021
Pushpa Ambadas Bargat,
Aged 49 yrs., Occ. Special Teacher,
R/o. Shastri Nagar, Muthe Layout,
Buldhana, Tah. & Dist. Buldhana.
.... Petitioner
VERSUS
1. The State of Maharashtra through
its Secretary, Social Justice and Special
Mantralaya, Mumbai - 32.
2. The Commissioner,
Physically Handicapped Welfare,
Maharashtra State-3 Church Road,
Pune-01.
3. Regional Dy. Commissioner
Social Welfare Department, Amravati,
Tah. & Dist. Amravati.
4. Director,
Social Welfare Department, Pune.
5. District Social Welfare Officer,
Zilla Parishad, Buldhana.
6. The Secretary/President,
Physically Handicapped &
Rehabilitation Society, Buldhana,
Tah. & Dist. Buldhana.
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7. Priyanka Babaso Mali,
Aged 30 yrs., Occ. Special Teacher,
C/o. Shashikant Jatkar, Basweshwar
Nagar, Post Sagwan, Buldhana,
R/o. Buldhana, Tah. & Dist. Buldhana.
....RESPONDENTS
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Mr. Nitin Bargat, Advocate for petitioner.
Mr. N.R. Patil, AGP for respondent Nos. 1 & 5.
Mr. M.O. Shukla, Advocate for respondent No.6.
Mr. R.V. Gahilot, Advocate for respondent No.7.
-------------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
SMT.M.S. JAWALKAR, JJ.
DATE : 27.09.2024
ORAL JUDGMENT : (PER VINAY JOSHI, J.)
Heard.
2. This petition is under Article 226 of the Constitution of
India seeking to quash impugned order dated 20.08.2019 passed by
respondent No.3 Regional Deputy Commissioner, Social Welfare
Department, whereby sanction to the petitioner's post with
retrospective effect has been rejected. Likewise, the petitioner also
seeks to quash administrative approval to the appointment of
respondent No.7 on the post of "Special Teacher".
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3. The petitioner has completed 12th Standard, M.A., B.Ed
and also passed eligibility test. The petitioner has completed
diploma in Training of the Teacher of the Deaf and Dumb School.
The petitioner belongs to Nomadic Tribe ("N.T."). The petitioner
has applied to the respondent No.6 for appointment to the post of
"Special Teacher". After interviewing, the petitioner, she was
appointed by respondent No.6 on the post of "Special Teacher" vide
resolution dated 07.06.2001. The petitioner was appointed on said
post with effect from 15.07.2001, to which she joined on
20.07.2001. The petitioner has undergone requisite training and
after completion of probation period, urged for grant of status of
permanency. Time and again, the petitioner's proposal was
forwarded, however sanction was not accorded. Initially, the
sanction was refused by respondent No.2 vide communication dated
12.01.2016 informing to the respondent No.5 District Social Welfare
Office that the sanction cannot be accorded since prior permission
was not obtained from respondent No.2 Commissioner, Physically
Handicapped Welfare, Maharashtra State.
4. It is petitioner's contention that fresh proposal was also
moved by passing resolution. According to the petitioner,
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respondent No.2 has also granted no objection to the post of
petitioner, however vide impugned communication, proposal was
rejected stating that petitioner was over age on the date of granting
sanction. It is petitioner's contention that said decision was against
the guidelines issued by the State Government. The petitioner
contended that the respondents have shown extra favouritism to
respondent No.7 by appointing her as a "Special Teacher".
Therefore, the petitioner seeks for setting aside the impugned
communication as well as challenged the appointment of
respondent No.7 on the post of Special Teacher.
5. The respondents have resisted the petition by contending
that the impugned orders were passed on 20.08.2019 and
26.02.2020 and thus, there is inordinate delay in raising the
challenge. The petitioner is seeking retrospective approval to her
appointment for the post of "Special Teacher" which cannot be
granted. The petitioner's proposal was first time received by
respondent No.2 in the year 2016, but it was rejected as requisite
No Objection Certificate ("NOC") from the department of Physically
Handicapped Welfare was not obtained. It is contended that the
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petitioner did not challenge the said communication and therefore,
it has attained finality.
6. It is disputed that no objection was granted on 16.12.2017
by respondent No.2 for grant of petitioner's proposal. It is
contended that the said no objection was for filling up one post of
"Special Teacher" as per approved reservation, but it was not
granted specifically as regards to the petitioner. It is contended that
there were several deficiencies in the proposal for which vide
communication dated 25.04.2019 hearing was scheduled on
04.05.2019, however the petitioner remained absent. The
respondents would submit that on the date of forwarding proposal
for approval the petitioner was barred by age hence the impugned
communication cannot be faulted.
7. It is respondents' contention that the petitioner was never
permanently employed on vacant post. Her appointment was
purely on temporary basis and time to time separate appointment
orders have been issued on. On each year, the petitioner has
applied a fresh, on which year-wise appointment has been granted.
There was no permanent vacant post available with respondent
No.6 School, therefore, on temporary basis, petitioner was
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appointed. The petitioner's entire claim is based on NOC received
by respondent No.2, but it was for a post without mentioning the
name of petitioner. It is respondents' contention that respondent
No.6 has followed the due procedure while filling up vacant post by
issuing advertisement. In said recruitment process, three candidates
have appeared including petitioner and respondent No.7. Since the
petitioner secured highest score, her proposal was forwarded for
approval, however it came to be rejected as the petitioner was
barred by age to be appointed on permanent post. As the
respondent No.7 has secured second position, she was absorbed and
accordingly approval was granted. It is contended that permanent
approval issued in favour of respondent No.7 dated 04.02.2021 was
not under challenge and thus, the petition carries no merit.
8. Most of the facts are not in dispute that the petitioner was
appointed in the year 2001 purely on temporary basis. The
respondents have produced various orders to show that time to time
the petitioner was appointed on temporary basis. It reveals that
there was no permanent vacancy hence the petitioner was
appointed on temporary basis. Though the petitioner contended
that respondent No. 2 has issued NOC dated 16.12.2017, however it
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reveals from the communication that it was for filling up one post of
Special Teacher. Pertinent to note that no objection was not issued
for petitioner's appointment. It reveals that after sanction of post,
public advertisement was issued, on which recruitment process was
conducted. The petitioner along with respondent No.7 participated
in the process. The respondents have produced record of the
recruitment process showing that petitioner scored highest whilst
respondent No.7 was second highest. The proposal was also sent,
however it was rejected as the petitioner was overage. The learned
counsel appearing for respondents took us to Clause 4-A of the
Special School Code applicable to the disabled. It provides upper
age for fresh appointment as 45 years only. Undisputedly, at
relevant time, petitioner was above 45 years of age. The petitioner
has also disputed the entire recruitment process by contending that
her signature was forged. The petitioner contended that she never
participated in recruitment process. According to the petitioner,
false record is created. She has filed handwriting expert's report,
however in writ jurisdiction said disputed question cannot be gone
into.
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9. It reveals from the record that initially there were several
deficiencies in the petitioner's proposal for which she was called for
personal hearing, but she did not appear. Rule 4-B of the said Code
specifies that upper age can be relaxed by respondent No.2 in cases
of female ex-service man and the person having experience.
10. The learned counsel for respondents has rightly relied on
the decision of the Supreme Court in case of Secretary, State of
Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1
to contend that temporary employee could not claim permanency
after expiry his/her term of appointment. The temporary employee
would not be entitled for absorption merely on the strength of her
continuation. It reveals that since there was no vacancy, the
petitioner was time to time appointed on temporary basis. After
sanction of the post, recruitment process was conducted, in which
petitioner was selected at Serial No.1, however since she was age
barred, her proposal was rejected. Rule 4-B of the said Code leaves
discretion with the Authority to relax the condition of age.
Moreover, it reveals that hearing was not given to the petitioner. In
the circumstances, it is appropriate that the matter requires
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reconsideration by considering the long standing services rendered
by the petitioner on the said post.
11. In view of above, impugned order dated 20.08.2019
rejecting the petitioner's approval is quashed and set aside. The
matter is relegated to respondent No.3 Regional Deputy
Commissioner, Social Welfare Department, Amravati for fresh
consideration in the light of above observation, after hearing the
petitioner. The said exercise shall be completed within three
months from the date of appearance of the petitioner.
12. Petition stands dispose of in above terms.
(SMT.M.S. JAWALKAR, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 01/10/2024 11:17:17
