Court On Its Own Motion v. Raju Dharmarao Shikshan Mandal, Rajwada, Aheri, Gadchiroli Thr. Secretary And ANR.

2025:BHC-NAG:4636-DB 1/14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.1612 OF 2019 Ku.Lata Jagannath Vaidya Vs. State of Maharashtra and ors. AND SUO MOTU CONTEMPT PETITION NO.1 OF 2025 IN WRIT PETITION NO. 1612 OF 2019 Court on its Own Motion -Vs- Raje Dharmarao Shikshan Mandal Rajwada, and anr. ------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders.

or directions and Registrar's orders.

--------------------------------------------------------------------------------------------------------------- Mr.P.D.Meghe, counsel for the original petitioner. Mr.I.J.Damle, AGP for respondent Nos.1 to 4.

Mr. Saurav Rajurkar counsel h/f Mr.Anand Parchure counsel for respondent Nos.5 and 6.

CORAM: NITIN W. SAMBRE AND MRS.VRUSHALI V. JOSHI, JJ.

DATE : 24th April, 2025.

1.

Heard.

2.

The petitioner has approached for following reliefs:- i) Issue an appropriate writ, order or direction and thereby, direct the respondents to grant permanent approval to the post of petitioner as as Instructor in MCVC Course of respondent No.6 College in the branch of Accounting and Auditing and further direct the respondents to release the salary of the petitioner on the post of instructor w.e.f. education session 2002-2003.

(ii) Quash and set aside the communication issued by respondent No.4-Vocational Education and Training Officer, District Gadchiroli dated 03/08/2016 at Annexure XXIII.

(ii-a) Quash and set aside the order passed by

2/14 respondent no.2- Director of Department of Technical Education and Training, Mumbai dated 29/12/2023.

iii) By way of ad-interim relief, direct the respondents to release the salary of the petitioner on the post of instructor of MCVC Course of respondent No.6- college, during the pendency of the present petition.

iv) Grant any other relief as may be found as may be deemed fit, in the facts and circumstances of the present case.

3.

The facts necessary for deciding the petition are as under:- The petitioner, holds B.Com and MS-CIT qualification and belongs to Other Backward Class Category. Pursuant to an advertisement issued by respondent Nos.5 and 6 in December- 1992, the petitioner applied for the said post and came to be selected and appointed on 01/01/1993. In November, 1994 the petitioner was appointed as a full time instructor and approval was granted by the respondent No.4 to such appointment which was continued up to 2002. 4.

The respondent No.4 after 2002 suddenly stopped granting approval to the appointment of the petitioner, however, the respondent Management continued with the appointment of the petitioner on the very same post and the petitioner continued to discharge her duties till her date

3/14 of superannuation i.e. 31/03/2022.

5.

It appears that in the interregnum, the respondent Management i.e. respondent No.5 and 6 has approached the respondent authorities seeking grant of approval to the appointment of the petitioner as was continued up to 2002 however, same was not accepted and vide communication dated 06/09/2007, the respondent authorities rejected the approval.

6.

Subsequent thereto again, the respondent Management continued the issue about grant of approval with the respondent Management as the staffing pattern roaster point was not approved from the Backward Class Cell. It appears that the change in policy of the Government from time to time thereby verifying the percentage of the reservations in the Tribal Dominated district of Gadchiroli led to deferring of the proposal of the respondent Management for grant of approval to the staffing pattern from the Backward Class Cell. 7.

It is in the year 2019, the petitioner has approached this Court seeking relief for grant of approval, and consequent to her superannuation, she is seeking the

4/14 terminal benefits attached to the post occupied by her. 8.

We must take it on record that the claim made in the petition to the extent of grant of approval, the petitioner having worked on the post continuously from 1994 is not disputed by the respondent Management i.e. respondent Nos.5 and 6 and the repeated request are moved by them for grant of approval to the appointment of the petitioner with the respondent Nos.2,3 and 4.

9.

In the aforesaid background, it is the contention of Mr.Meghe learned counsel appearing for the petitioner that once having been appointed after following the due process of law and respondent Nos.1 to 4 having granted approval to the appointment of the petitioner for a period from 1994 to 2002, there is no reason for not continuation of such approval to the appointment of the petitioner, when it is an admitted fact on record that the post occupied by the petitioner was neither advertised nor any person belonging to Backward Class Category came to be appointed against such post. According to the learned counsel appearing for the petitioner, the continuous service of the petitioner from 1994 till superannuation not only results in the petitioner rendering the pensionable service but also the petitioner is

5/14 entitled for grant of approval when the respondents are not disputing about the petitioner having continued on the said post.

10.

So as to substantiate the aforesaid contention, reliance is placed by the learned counsel appearing for the petitioner on the Division Bench judgment of this Court delivered at Principal Seat in the matter of D.G Ruparel College X State of Maharashtra and others reported in 1999

(1) L.L.N.704 particularly, on paragraph Nos.5-B,5-C and 5-D wherein it has been observed as under:

"5-B. It is needless for us to carry out an exegesis of this rule, since the Supreme Court has already forestalled us in Shakuntala Ganpatrao Shirbhate Vs. Industrial Weaving Co-operative Society and others [A.I.R. 1994 S.C. 36]. The Supreme Court pointed out in Shakuntala (vide supra), that when a vacancy is reserved for a backward class candidate belonging to a particular category, and such a candidate of that backward class is not available, then the employer school is obliged to appoint a backward class candidate belonging to any other recognised backward class category in the said post, and by virtue of rule 9(9), that candidate shall be entitled to be regularly appointed on the said post. It is the grievance of the petitioner, as well as the second respondent, that the Education Department pays scant regard to the provisions of this rule, much less, to the discussion of this rule by the Apex Court. The grievance appears to be justified.

5C. In the premises, we are of the view that the second respondent, who belongs to the Shimpi (O.B.C.) category, was entitled to be

6/14 regularly appointed in the vacancy in the academic year 1995-96, since, in that year the vacancy had been reserved in favour of a candidate belonging to nomadic tribe category, who was not available, and the second respondent, an O.B.C. was available.

The first respondent was bound to approve second respondent's appointment, right from the academic year 1995-96, which they have failed to do for no valid reason.

5D. As far as the third respondent is concerned, he cannot be regularly appointed, as a continuation of the second respondent as a temporary employee during the academic year 1997-98 was itself erroneous. If the rule had been implemented properly, there would have been no occasion for appointment of the third respondent at all. Nonetheless, because of fortuitous circumstances, third respondent came to be appointed in temporary capacity and worked during the entire academic year 1997-98, for which, without doubt, he has to be plaid the admissible salary and other allowances. Sri Desai, appearing and for the second respondent, states that, since he was not allowed to work, and did not work during the academic year 1997-98, the second respondent shall not make any claim for salary and allowances for the academic year 1997-98".

11.

As against above, the learned counsel appearing for respondent Nos.5 and 6 supports the claim of the petitioner and submits that there were repeated attempts on the part of said respondents to seek continuation of the approval to the appointment of the petitioner post 2002, which is rejected for incorrect reasons.

12.

The learned Assistant Government Pleader, while

7/14 strenuously opposing the claim of the petitioner, would urge that the petitioner has not questioned the rejection of the approval communicated on 06/09/2007. According to him, the rejection of approval is based on the backlog and the appointment of the petitioner from open category. He would further claim that even if there was a variance in the proportion of the seats to be reserved in the Gadchiroli district pursuant to the change in the policy of the Government, that by itself does not give leverage to respondent Nos.5 and 6 to appoint the petitioner as an open category candidate against the reserved category. It is further urged by the learned AGP that though the petitioner is claiming to be appointed from OBC Category (Kunbi), the validity is produced by the petitioner only in 2006 and as such, the claim was not considered for continuation. The learned AGP has invited our attention to the Staffing pattern and the backlog available with the respondent Management so as to substantiate his claim that the appointment of the petitioner cannot be regularised. 13.

Paragraph No.5 of the affidavit-in-reply is reproduced herein-below as under:-

5. It is submitted that, the Respondent No2, inspected the proposal regarding granting approval to the appointment of the Petitioner and have noted the following

8/14 findings;

i. That as mentioned herein above, the Respondent No.3 had given temporary approval to Petitioner's appointment for the Academic Year 1994-95 till 2001-2002, and thereafter neither any temporary nor permanent approval was granted. Therefore, since no approval was granted by the Respondent No.3, the responsibility of payment of salary and other consequential benefits is not of the Respondent Nos. 1 to 4. It is submitted that as the Respondent Nos.5 & 6 are the appointing and terminating authorities to Petitioner's post. The Respondent No. 5 & 6 had continued the Petitioner from 2002 onwards, without any approval. Hence, the Respondent Nos. 5 & 6 are solely responsible for payment of salary and other service related benefits to the Petitioner.

ii. That the Respondent No.3 vide its letter dated 06.09.2007 had already communicated to Respondent Nos. 5 & 6 that as a per the Roster submitted by them in the year 20062007, there was already backlog in ST category -69, VJNT category -14 and SBC category-6. There was surplus in SC category +3, OBC category +22 and OPEN category +59. As there were +59 surplus employees already working, Petitioner was also surplus. That, as the Petitioner's post was surplus, no approval is granted to the appointment of the Petitioner by the Respondent No.3. The said fact is already communicated by the Respondent No. 3 to the Respondent Nos. 5 & 6.

iii.

That the Respondent No.3 vide communication dated 06.09.2007 had communicated to Respondent Nos.5 and 6 regarding no approval can be granted.

Further it was also informed by the Respondent No.3 communication that there is no provision about granting approval considering the same as a special case as per Maharashtra Employees of Private Schools, (Conditions of service), Rules 1981.The copy

9/14 of communication dated 06.09.2007 sent by the Respondent No.3 to the Respondent Nos.

5 & 6 is annexed as Annexure R-3 herewith this affidavit".

14.

We have considered the aforesaid submissions. 15.

The initial entry of the petitioner in the employment of respondent Nos.5 and 6 that too against a clear vacancy after the petitioner having faced the recruitment process in accordance with law is not a fact in dispute and is borne out of the record.

16.

Based on the above, continuously, at the request made by respondent Nos.5 and 6-Management, the respondent Nos.1 to 4 have proceeded to grant approval to the appointment of the petitioner up to 2002. 17.

The only reason which is coming out from the record of respondent Nos.1 to 4 for non continuation or non grant of approval is that there was a backlog and since, respondent Nos.5 and 6 have failed to clear such backlog, the approval was not continued.

18.

If we appreciate the aforesaid contention in the backdrop of the available material on record, it is not the case of respondent Nos.5 and 6, which is supported by the

10/14 respondent Nos.1 to 4 that after the non grant of approval, have advertised the post and the same was filled in to which respondent Nos.1 to 4 have granted approval to the appointment of a candidate from the backward class. Rather, it can be interfered from the record that the post which was occupied by the petitioner never fell vacant or advertised by respondent Nos.5 and 6 and even respondent Nos.1 to 4 never mandated the said respondents to terminate the services of the petitioner and advertise the said post to be filled in from the reserved category. 19.

Though respondent Nos.1 to 4 are claiming that in 2007 refusal of approval was communicated to respondent Nos.5 and 6 however, it is the case of the petitioner that such communication was never made available by either of the respondents to the petitioner.

20.

We must be sensitive at this stage to the fact that it is an admitted position on record that in the year 2006, the petitioner has submitted the validity of belonging to OBC category and it was always open for respondent Nos.1 to 4 to consider the claim of the petitioner for continuation of the service and grant of approval from the OBC category. The perusal of the pleadings and the communication does

11/14 reflect that respondent nos.1 to 4 have not considered the claim of the petitioner any time before in the wake of the status of the petitioner of belonging to OBC category as she is holding a validity for the same.

21.

As a sequel of above, just because there was backlog, which was not cleared by respondent Nos.5 and 6, that by itself will not entail the respondents to refuse the approval particularly, when the petitioner is belonging to OBC category and also holds a validity. In addition to above, we must be sensitive to the fact that the backlog is required to be filled in only by respondent Nos.5 and 6 subsequent to the year 2002 by advertising the post as till 2002, there was an approval to the appointment of the petitioner from respondent Nos.1 to 4. Once such approval is continued for a period of 8 years i.e. 2002, respondent Nos.1 to 4 ought not to have cancelled such approval just because there was a backlog of Backward Class. Rather, it was for respondent Nos.1 to 4 to pursue respondent nos.5 and 6 to fill in the existing vacancies from the candidate belonging to backward class instead of discontinuing the approval to the post occupied by the petitioner as she belonged to the OBC Category. As such, in the aforesaid background, the view expressed by the respondents of refusing to grant the

12/14 approval to her appointment cannot be held to be legal. That being so, we deem it appropriate to allow the present writ petition. We quash and set aside the impugned order dated 29/12/2023.

22.

We hereby declare that from 2002 onwards the petitioner is entitled for the approval till her superannuation and the post which was occupied by the petitioner post superannuation can be directed by respondent Nos.1 to 4 to be filled in by respondent nos.5 and 6 from the reserved category.

23.

The petitioner as a sequel of above, is entitled not only for back-wages she admittedly having been worked on the said post but is also held to be entitled for all the terminal benefits, which are attached to the post occupied by the petitioner.

24.

In the wake of aforesaid observations, we direct respondent Nos.5 and 6 to submit a proposal complete in all respect for grant of approval within a period of four weeks to respondent Nos.1 to 4, who shall process such request of the petitioner in the backdrop of the aforesaid declaration and not only pay back-wages but also the

13/14 terminal benefits to the petitioner within a period of 3 months thereafter. The writ petition as such stands allowed in the above terms.

25.

Apart from the aforesaid observations, we are equally required to be sensitive to the affidavit filed on record by the President of the respondent No.5 Society thereby stating that they have already submitted a proposal for grant of approval of the roster point to the Backward Class Cell. Once, the aforesaid statement is made on affidavit we accept the same as an undertaking to this Court.

26.

We further direct the Assistant Commissioner, Backward Class Cell to decide the proposal submitted by respondent Nos.5 and 6 for approval of the roster point expeditiously and in any case, within a period of two months from today. We direct respondent Nos.5 and 6 to depute their representative, who shall appear before the Highest Officer of the Backward Class Cell for grant of approval to the roster point on 07/05/2025. The period of two months for passing appropriate order approving the roster point shall reckon from 7/05/2025. The Assistant Commissioner, Backward Class Cell so also respondent Nos.5 and 6 shall submit the final order passed by the

14/14 Backward Class Cell from the office of the Divisional Commissioner before this Court in any case by 31.07.2025. The office shall for the purpose of reporting the compliance, place the matter before this Court on 31/07/2025. SUO MOTU CONTEMPT PETITION NO.1 OF 2025

1. In view of the order passed in Writ Petition No.1612 of 2019, suo motu contempt petition No.1 of 2025 stands disposed of.

2.

Insofar as the entire costs deposited in the present proceedings in this Court till this date are concerned, we deem it appropriate to direct that the entire costs be apportioned in favour of the Office of the Comptroller, MAFSU,Nagpur.

The Registrar (Judicial) shall take appropriate steps in the matter so that the amount of costs are diverted to the account of the Comptroller, MAFSU, Nagpur which can be utilized by the said Office for the animal welfare and animal health treatment.

(MRS. VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.) Signed by: Kavita P Tayade Designation: PA To Honourable Judge Date: 03/05/2025 14:43:27