Bombay High Court
Archana D/O Murlidhar Bonde And Others vs The State Of Maha. Thr. Principal Sec., ... on 26 September, 2019
Author: Vinay Joshi
Bench: Ravi K. Deshpande, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2486 OF 2017
(Sandip Namdeo Goswami vrs. State of Mah and ors)
AND
WRIT PETITION NO. 2494 OF 2017
(Anand Siddhawrth Dhakade vrs. State of Mah and ors)
AND
WRIT PETITION NO. 2582 OF 2017
(Archana Murlidhar Bonde and ors vrs. State of Mah and ors)
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri R.S.Padsodkar and Shri N.B.Kalwaghe, Advocates for
Petitioners
Shri L.M.Acharya, Advocate for Respondent-State
Shri Amol B. Patil, Advocate for Respondent-Municipal
Council.
CORAM: R.K. DESHPANDE AND
VINAY JOSHI, JJ.
DATE: 26th SEPTEMBER, 2019.
Common Order
All these three petitions are filed by the eight teachers appointed on contract basis during 2009 to 2012 to teach different subjects in the Polytechnic Institute run by the Municipal Council, Achalpur, on "no grant basis" and continued in service till their termination on 30.04.2017. All of them were appointed in response to the advertisement issued for that purpose in the newspaper and the selection conducted by the Standing Committee of the Municipal Council as a 'Selection Committee'. Apart from the eight petitioners in all these petitions, twenty one other persons were also ::: Uploaded on - 26/09/2019 ::: Downloaded on - 27/09/2019 05:27:00 ::: wp2486.17+2494.17+2582.17.odt 2/8 appointed as teachers in the same institute purely on 'temporary basis' during the period from 1985 to 2013 by the same method. All of them were also terminated on 30.04.2017.
2] By Government Resolution dated 18.11.2017, the Higher and Technical Education Department of the State Government took over the Polytechnic Institute for running and twenty one teachers along with other twenty two non-teaching employees working in the Institute, were absorbed in the employment. The petitioners were, however, excluded from absorption and hence, they have approached this Court by filing these petitions, seeking direction for their absorption in the same manner in which the other twenty one teachers were absorbed.
3] Normally, the regular appointment in the establishment of the Municipal Council is done in the posts which are sanctioned by the Director of Municipal Administration under Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The regular appointments are made in accordance with the Recruitment Rules prescribed for the purpose.
4] We put a specific question to Shri Amol Patil, the learned counsel appearing for the Municipal Council, Achalpur, as to whether the ::: Uploaded on - 26/09/2019 ::: Downloaded on - 27/09/2019 05:27:00 ::: wp2486.17+2494.17+2582.17.odt 3/8 posts on which the petitioners and the other teachers were absorbed in the employment of the State Government as per G.R. dated 18.11.2017, were sanctioned under Section 76 of the said Act by the Director of Municipal Administration. The response is that no such sanction was either required or obtained as the Polytechnic Institute was being run since 1985. It is also the specific response that the appointments in Polytechnic Institutes were not made in accordance with the Recruitment Rules for appointment to the posts sanctioned under Section 76 of the said Act.
4] We also put a specific question to Shri Amol Patil, learned counsel appearing for the Municipal Council as to whether 21 teachers absorbed by G.R. dated 18.11.2017 were made permanent or confirmed in service on the posts which they hold? This question was specifically required to be put for the reason that there is a positive statement made in the affidavit dated 08.08.2019 sworn in by Dr. Dattatraya Vyankatrao Jadhav, Joint Director, Technical Education, Amravati Division, Amravati, stating in sub-para (c) of para 7 as under;
"(c) ......... I say that the persons who were appointed through regular process were, as laid down in the procedure laid down by Directorate of Technical Education, were initially appointed for a temporary period and later were confirmed in the said post since the process was a regular process... .."::: Uploaded on - 26/09/2019 ::: Downloaded on - 27/09/2019 05:27:00 :::
wp2486.17+2494.17+2582.17.odt 4/8 Shri Patil is unable to make a positive statement for want of necessary instructions and seeks time in the matter.
5] The staffing pattern existing in the Polytechnic Institute since 1985, when the recruitment started till the termination of the services of the employees on 30.04.2017, is not placed on record by any of the parties. Undisputedly, from the advertisements, proceedings of Selection Committee and the orders of appointment of the petitioners, indicate that all of them were appointed on contract basis, on the consolidated pay. The advertisement indicate that the appointments are to be made on the posts of purely temporary in nature, to be filled in on ad-hoc basis, whereas the orders of appointment, gives the expression " अस्थाई कॉन्ट्रॅक्ट कॉन्ट्रॅक्ट बेसि पदावर", as we understand it, to be an appointment on 'Contract basis on Temporary Post'. We have also gone through the advertisement, the proceedings of selection and the orders of appointment of twenty one teachers absorbed by G.R. dated 18.11.2017. All these are the appointments for specific period and on purely temporary basis. However, the appointments are in the specific pay-scale stated therein.
6] In the affidavit dated 08.08.2019 sworn in by Dr.Dattatraya Vyankatrao Jadhav, Joint ::: Uploaded on - 26/09/2019 ::: Downloaded on - 27/09/2019 05:27:00 ::: wp2486.17+2494.17+2582.17.odt 5/8 Director, Technical Education, Amravati Division, Amravati, and filed for and on behalf of the respondents except the Municipal Council states that the Director of Technical Education set in place new Rules for making appointments on 31.08.2001 and since then the appointments in the Polytechnic Institutes were required to be made as per the instructions provided under the said Rules. It is the stand taken that the teachers absorbed were appointed in accordance with the procedure laid down in these Rules and with the approval of the Director of Technical Education, whereas the appointments of the petitioners were not made in accordance with these Rules.
7] The said affidavit gives a chart pointing out the difference between the procedure for appointment of 'regular' and 'contract' basis employees from the year 2009, adopted by the Municipal Council and it is reproduced below.
Sr. Description Regular Staff Contract
No Appointment Basis
Appointment
1 Whether Yes No.
appointments are
made as per Roster
approved by
Competent Authority?
(The Assistant
Commissioner)
2 Whether advertise- Yes No.
ment in newspaper is
approved by Director/
Joint Director,
Technical Education?
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wp2486.17+2494.17+2582.17.odt 6/8 3 Whether Selection Yes No. Committee is approved by Director/ Joint Director?
4 Whether interviews Yes No.
are conducted by
Selection Committee
appointed by Director
/ Joint Director?
5 Whether staff Yes No.
approved is obtained
or submitted to
Director / Joint
Director?
6 Whether AICTE Yes No.
qualification norms is
followed during
appointment?
7 Whether age limit for Yes No.
appointment is
considered?
8 For the staff Yes No
appointed from the
year 2009 onward
whether Director of
Technical Education/
MSBET guidelines for
appointment
followed?
9 Whether staff is Regular Consolidated
appointed on regular
pay scale or
consolidated pay
scale?
Obviously, the teachers appointed prior to 2001 and absorbed by G.R. dated 18.11.2017 were not required to undergo the process of recruitment as per the Rules dated 31.08.2001.
7] We defer the dictation of this judgment for a period of one week so as to enable the Municipal Council to file proper affidavit on record giving the factual position as is assured to ::: Uploaded on - 26/09/2019 ::: Downloaded on - 27/09/2019 05:27:00 ::: wp2486.17+2494.17+2582.17.odt 7/8 us, which includes - (i) as to whether all the posts in Polytechnic Institute were sanctioned under Section 76 of the said Act by the Director of Municipal Administration; (ii) whether the procedure for recruitment as prescribed in the statutory Recruitment Rules of the Municipal Council, if any, was followed while making the appointments to the teaching and non-teaching posts in the Polytechnic Institute; (iii) whether the teachers absorbed by G.R. dated 18.11.2017 were made permanent or confirmed in service or if their services are regularized by separate order, to produce the same on record.
8] Put up this matter on 04.10.2019 as part hard and for continuation of further dictation at Sr.No.1.
9] We make it clear that no further time shall be granted to file affidavit and if such affidavit is not filed, the Court shall proceed to hear the matter and to dictate the judgment.
10] Steno copy of the order be supplied to the learned counsel to act upon.
11] We direct the petitioners to carry out pagination, within 4 days.
::: Uploaded on - 26/09/2019 ::: Downloaded on - 27/09/2019 05:27:00 :::wp2486.17+2494.17+2582.17.odt 8/8 12] Office is directed to bind the paper book on or before the next date.
JUDGE JUDGE
Rvjalit
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