Bombay High Court
Shivraj Hanmantrao Patil vs The State Of Maharashtra And Others on 2 April, 2025
Author: R.G. Avachat
Bench: R.G.Avachat
2025:BHC-AUG:10830-DB
3-wp12566.2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12566 OF 2018
Shivraj s/o. Hanmantrao Patil,
Age : 37 years, Occ. Service as
Assistant Teacher in
Gurudev Vidya Mandir Madhyamik
Vidyalaya, Tq. Mukhed,
Dist. Nanded ..Petitioner
Vs.
1. The State of Maharashtra,
Through Secretary,
School Education Department,
Mantralaya, Mumbai
2. The Commissioner of Education,
Maharashtra State,
Senapati Bapat Marg,
Balbharati Premises,
Pune - 411 004
3. Deputy Director of Education,
Latur Division, Latur,
4. The Education Officer (Secondary)
Zilla Parishad, Nanded
5. Gurudev Shikshan Sanstha,
Mukhed, Tq. Mukhed,
Dist. Nanded,
through Its Secretary
6. Gurudev Vidya Mandir Madhyamik
Vidyalaya, Mukhed, Tq. Mukhed,
Dist. Nanded, through its Head Master ..Respondents
----
Mr.V.S.Panpatte, Advocate for petitioner
Mr.S.R.Yadav-Lonikar, AGP for respondent nos.1 to 4
Mr.I.D.Maniyar, Advocate for respondent nos.5 and 6
----
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CORAM : R.G.AVACHAT AND
SANDIPKUMAR C. MORE, JJ.
DATE : APRIL 02, 2025
ORAL JUDGMENT (PER R.G. AVACHAT, J.) :-
Heard learned counsel for the parties.
2. Rule. Rule, made returnable forthwith. Heard finally with
the consent of learned counsel for the parties.
3. The petition has been filed with the following main
reliefs:-
"B. By a writ of certiorari or any other
appropriate writ or direction in the like
nature, the order dated 23.10.2018, issued
by the respondent no.3 at Exhibit "M" may
please be quashed and set aside and the
approval dated 26.12.2013 granted by the
respondent no.4 - Education Officer to the
appointment of the petitioner as Shikshan
Sevak and the further order dated
09.02.2017, issued by the respondent no.4 -
Education Officer granting permanent
approval to the services of the petitioner as
Assistant Teacher in regular pay-scale from
01.12.2016 may please be restored and
accordingly, the respondent no.4 may please
be directed to release the monthly salary of
the petitioner regularly;
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4. The petitioner was, initially, appointed as Shikshan Sevak
on 15.06.2012 on leave vacancy. Thereafter, he was appointed as
Shikshan Sevak with effect from 01.12.2013 for a period of three
years. On 26.12.2013, the respondent - Education Officer granted
approval to the appointment of the petitioner as Shikshan Sevak.
Before that, on 19.11.2013, the respondent-Management issued an
advertisement for filling up the post of English Teacher reserved for
Scheduled Tribe category. A copy of the advertisement has been
placed on record. There was a note in the advertisement that if a
candidate from the reserved category was not available, the post
would be filled up from the other candidates who have appeared for
the interview. Admittedly, the petitioner applied for the said post
from the reserved category. The advertisement was issued on
account of a post that had fallen vacant due to retirement of one
Garkewad, who belonged to the scheduled tribe category. The
respondent- Education Officer granted approval to the petitioner's
appointment vide order dated 26.12.2013 (for Shikshan Sevak) and
then granted permanent approval vide communication dated
09.02.2017. All these orders find place in the record of this Writ
Petition. Thereafter, the approval granted by the respondent -
Education Officer was recalled/invoked vide order dated 23.10.2018,
which is impugned in this Writ Petition. The order dated 23.10.2018
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indicates that the petitioner and the respondent - Management were
given opportunity of hearing before the order impugned herein was
passed. The conclusions drawn by the respondent - Deputy Director
of Education were as under:-
(i) The vacancy had occurred on 06.11.2013 due to
retirement of Shri.K.G.Garkewad;
(ii) Shri.Garkewad belonged to Scheduled Tribe;
(iii) The roster was approved upto 10.03.2010 and
pursuant thereto, there was no backlog;
(iv) Since there was no backlog, the post that had
fallen vacant due to retirement of Shri.Garkewad,
ought to have been filled up by appointment of a
candidate belonging to Scheduled Tribe.
These are the main reasons for cancellation of the approval granted
to the petitioner's appointment.
5. Learned counsel for the petitioner submitted that the
petitioner rendered more than little over six years of service by the
time the order impugned herein was passed. He would further
submit that by now, the petitioner continued to work and the period
thereof goes little over twelve years. According to him, the
authorities the concerned had granted approval to the petitioner's
appointment from open category. On the date he was recruited,
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there was no backlog at all. On the contrary, the candidates
belonging to reserved category were more than the the candidates
belonging to open category; and as such, the reservation exceeded
52%, as was required in view of the Apex Court Judgment in the case
of Indra Sawhney Etc. vs Union Of India And Others, AIR
1993 SC 477. Learned counsel would further submit that since the
Education Officer granted approval to the petitioner's appointment in
open category and there having been no backlog till date and the
petitioner to have rendered service of little over 12 years, the
petition may be allowed.
6. The respondent/Management has filed affidavit-in-reply
supporting the claim of the petitioner.
7. Learned AGP representing respondent nos.1 to 4 would
submit that the roster was approved only upto March, 2013. When
the petitioner had applied from a Scheduled Tribe category and
advertisement indicates the post to be filled up from same category,
the Management and the petitioner having been hands in glows,
played a mischief and converted the petitioner's appointment into an
Open Category candidate. When it was revealed, the order
impugned herein was passed after giving the petitioner and the
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Management an opportunity of hearing. He would further submit
that since the petitioner was from Open Category, he even ought not
to have applied in response to the advertisement. To this, learned
counsel for the petitioner counters contending that in view of the
note below the advertisement, the petitioner applied and came to be
appointed.
8. We have considered the submissions advanced. The
advertisement itself indicated that if a candidate belonging to the
Scheduled Tribe category was not found to be eligible, the post
would be filled up from those who have participated in the
recruitment process. Admittedly, the petitioner was one of the
candidates in the fray. He was selected as an Open Category
candidate. The respondent - Management submitted a proposal for
approval of his appointment. The respondent-Education Officer
granted approval; and subsequent thereto, also granted approval to
his permanent appointment.
9. In view of the affidavit-in-reply of the respondent -
Management, it has been averred in paragraphs 4 and 5, which read
thus:-
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4. I say that, at this juncture it would be
necessary to place on record the list of the
employees and the category against which they
have been appointed. In the academic year 2012-
13, following employees were working. The chart
mentioned below indicate the name of the
employee and the category/caste of which they
belongs.
Name of employee Caste
K.G.Garkewad ST
M.S.Ganapure SC
Thamke S.S. SC
S.G.Jaybhay NT(D)
B.M.Palekar NT(B)
G.B.Shirse OBC
J.M.Garudkar OBC
R.R.Dange OBC
S.S.Garudkar OBC
R.S.Garudkar OBC
Arya S.D. Open
Jadhav M.S. Open
Kuntewad I.B. Open
5. I say that, on the date of appointment of
the writ petitioner which was in the year 2013,
the post became vacant because of retirement of
Garkewad K.G. If provisions contain in Rule 9(9)
of M.E.P.S. is taken into consideration the
institution is under obligation to keep reservation
of 52% of post. It is apparent from the list
mentioned in the above said paragraph that out of
14 posts, which were available, 9 persons
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belonging to reserve category were filled in and
only 3 posts have been offered to Open category.
In the aforesaid premises, the post fell vacant
consequent upon the retirement of Garkewad K.G.
(belong to S.T. category) is not go to S.T. category
as per 200 point roster application. The post
would go to open category as the mandatory
requirement is that the reservation shall not exists
beyond 52% as has been settled by the decision of
the Hon'ble Supreme Court of India in the case of
Indra Sawhney Etc. vs Union Of India. It is
further required to be noted that the conclusion
drawn by the department - Respondent no.2
herein that the post held by Garkewad K.G.
belonging to S.T. Category would necessarily go to
that category alone is thus, thoroughly
misconceived and rejection on that ground is
unsustainable in law.
10. We found the respondent - Education Officer to have not
countered/traversed these averments in the affidavit-in-reply. As
such, on the date the advertisement was issued, admittedly, there
was no backlog at all. As against 14 posts, only three candidates of
Open Category were serving, meaning thereby, the backlog having
been Nil and the posts occupied by others, exceeded the prescribed
percentage of quota. On retirement of Shri. Garkewad and on
appointment of the petitioner from Open Category, there was no
breach of any of the rules relating to filling up the requisite number
of candidates belonging to the reserved category.
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11. Learned counsel for the respondent/Managements comes
around to submit that it would furnish an undertaking that no
backlog would be kept and as soon as a vacancy from reserved
category occurs, the same would be filled up from the very category.
12. A reference to the judgment of the Apex Court in the
case of M.S. Mudhol And Anr. vs S.D. Halegkar And Ors.,
JT1993(4)SC143, would not be out of place, in paragraph 6, it has
been observed thus:-
6. Since we find that it was the default on the
part of the 2nd respondent, Director of Education
in illegally approving the appointment of the first
respondent in 1981 although he did not have the
requisite academic qualifications as a result of
which the 1st respondent has continued to hold
the said post for the last 12 years now, it would
be inadvisable to disturb him from the said post
at this late stage particularly when he was not at
fault when his selection was made. There is
nothing on record to show that he had at that
time projected his qualifications other than what
he possessed. If, therefore, inspite of placing all
his cards before the selection committee, the
selection committee for some reason or the other
had thought it fit to choose him for the post and
the 2nd respondent had chosen to acquiesce in
the appointment, it would be iniquitous to make
him suffer for the same now. Illegality, if any, was
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committed by the selection committee and the
2nd respondent. They are alone to be blamed for
the same.
13. In view of the above and in the peculiar facts and
circumstances of the case namely, the petitioner to have rendered
little over 12 years of service by now, we are inclined to allow the
Writ Petition.
14. The petition is allowed in terms of prayer clauses (B) and
(C). Rule made absolute accordingly.
[SANDIPKUMAR C. MORE, J.] [R.G. AVACHAT, J.]
KBP
