Bombay High Court
Welcome Augusten Mascaren vs The State Of Maharashtra Through The ... on 17 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3017
Author: R. D. Dhanuka
Bench: R. D. Dhanuka, Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11683 OF 2019
Welcome Augusten Mascaren ... Petitioner
V/s.
The State of Maharashtra ... Respondent
.......
Mr. Prashant S. Bhavake for the Petitioner.
Mr. P. P. Kakade, Govt. Pleader a/w Mr. Karan S. Thorat, AGP for the
Respondent-State.
.......
CORAM: R. D. DHANUKA AND
MADHAV J. JAMDAR, JJ.
DATE : 17th DECEMBER, 2020.
ORAL JUDGMENT (Per R. D. Dhanuka, J.) :-
. Mr. Bhavake, learned counsel for the petitioner seeks liberty to delete respondent nos. 6 and 7 from the cause title of the petition on the ground that no reliefs are sought against the respondent nos. 6 and 7. Statement is accepted. Leave to amend is granted. Amendment to be carried out forthwith. Re-verification is dispensed with.
2. Rule. Learned AGP waives service for the respondent nos. 1 to 5. By consent of parties the petition is heard finally.
3. By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned the order dated 23rd October, 2018 passed by the Deputy Director of Education, Mumbai Region, thereby ::: Uploaded on - 19/12/2020 ::: Downloaded on - 19/12/2020 20:29:52 ::: bdp 2/6 7-wp-11683.19.doc cancelling the individual approval granted to the appointment of the petitioner in the post of Junior Clerk for the probationary period at respondent no.7-secondary School and for other reliefs.
4. The petitioner is B.A. by qualification. The respondent nos.6 and 7 had issued an advertisement on 13th May, 2010 for inviting the applications from the eligible candidates for one post of Junior Clerk on contract basis for 3 years. Pursuant to the said advertisement, the petitioner applied for appointment to the said post of Junior Clerk. The petitioner was appointed as Junior Clerk by the management for the period 15th June, 2012 to 14th June, 2015 in open category. The Education Inspector granted the approval to the said appointment on 12th March, 2013. The petitioner was thereafter appointed as permanent Junior Clerk on 27th June, 2015. The Education Inspector granted approval to the said appointment on 30th November, 2017. The salary of the petitioner was released as permanent Junior Clerk from the date of the appointment.
5. The respondent no. 4 issued a show cause notice on 30 th May, 2018 to the petitioner as well as to the management and called upon them for personal hearing on 23rd October, 2018. It was the case of the respondent no. 4 that the approval granted to the petitioner was wrongly granted in view of the resolution dated 15 th June, 2012 thereby prohibiting from filling up any post, in more particularly for the post in question. The petitioner appeared before the respondent no. 4. By an order dated 23rd October, 2018, the Deputy Director of Education cancelled the approval granted to the petitioner w.e.f 15 th June, 2012 to ::: Uploaded on - 19/12/2020 ::: Downloaded on - 19/12/2020 20:29:52 ::: bdp 3/6 7-wp-11683.19.doc the post of Junior Clerk on probationary basis. The said order is impugned by the petitioner in this petition.
6. Mr. Bhavake, learned counsel for the petitioner invited our attention to the some of the exhibits annexed to the petition including the advertisement issued by the management on 13th May, 2010 and the impugned order dated 23rd October, 2018. It is submitted that the advertisement was already issued by the management on 13 th May, 2010 that is much prior to the date of Government Resolution dated 15th June, 2012. He submits that the Education Inspector had rightly granted the approval to the said appointment initially made on probationary basis and thereafter on the post of permanent Junior Clerk. The said resolution dated 15th June, 2012 was thus not applicable to the appointment already made on the basis of the process already started prior to the date of the said resolution.
7. Learned counsel invited our attention to the judgment of this Court delivered on 10th July, 2017 in Writ Petition No. 8587 of 2017 in case of Smt. Munoli Rajashri Karabasappa v/s. State of Maharashtra and Ors. and other connected Writ Petitions. It is submitted that in the said judgment it is already held by this Court that the ban imposed by the Government would not be applicable to the 3 categories i.e.
(i) where the recruitment process was already commenced prior to the Government Resolution dated 2nd May, 2012, (ii) insofar as appointment made for the subjects of English, Maths and Science are concerned and (iii) where the recruitment is made to fulfill the backlog of reserve categories candidates. He invited our attention to the ::: Uploaded on - 19/12/2020 ::: Downloaded on - 19/12/2020 20:29:52 ::: bdp 4/6 7-wp-11683.19.doc paragraph 9 of the said judgment by which this Court was pleased to quashed and set aside the orders impugned therein and directing the Education Officer to examine the independent process to grant an approval to each of the teachers who fell under those three categories.
8. Learned counsel also placed reliance on the the judgment of this Court delivered on 16th January, 2019 in the Writ Petition No. 12544 of 2018 in case of Shivkumar Anandrao Pawar v/s. State of Maharashtra and Ors. in support of the submission that the order passed by the Deputy Director of Education cancelling the approval granted to the initial appointment is illegal.
9. Mr. Thorat, learned AGP for the respondent nos. 1 to 5 on the other hand invited out attention to the averments made in the affidavit in reply and would submit that there was ban of recruitment under the directions given by the Government as per Government Resolution dated 10th June, 2010. He submits that the appointment of the petitioner was made during the period of ban of recruitment by Government Resolution dated 2nd May, 2012 i.e. on 15th June, 2012. Learned AGP made an attempt to distinguish the judgment of this Court in case of Smt. Munoli Rajashri Karabasappa (supra) on the ground that the said judgment was delivered by this Court in case of a teacher and was not in case of the non-teaching staff.
10. It is not in dispute that the advertisement was issued by the management on 13th May, 2010, however the appointment was made on 15th June, 2012. The said appointment was already approved by the ::: Uploaded on - 19/12/2020 ::: Downloaded on - 19/12/2020 20:29:52 ::: bdp 5/6 7-wp-11683.19.doc Education Inspector on 12th March, 2013. The petitioner was thereafter made permanent as Junior Clerk on 27th June, 2015 which appointment was approved by the Education Inspector on 30th November, 2017.
11. The Division Bench of this Court in case of Smt. Munoli Rajashri Karabasappa (supra) has considered the Government Resolution dated 2nd May, 2012 by which the State Government has imposed the ban on recruitment of Assistant Teacher till there was 100% absorption of the surplus teachers. The said ban was however subsequently withdrawn by Government Resolution dated 4 th September, 2013, insofar as subjects of Englihs, Maths and Science are concerned.
11. This Court in the said judgment has held that the State Government had released the ban by Government Resolution dated 4th September, 2013 where the selection process had already commenced on 6th September, 2012. In the backdrop of these facts, this Court accordingly directed the Education Officer to examine independent cases and grant approval where the recruitment process was already commenced prior to the Government Resolution dated 2nd May, 2012.
12. In our view, the principles laid down by this Court in the said judgment in case if Smt. Munoli Rajashri Karabasappa (supra) can be extended to the case of non-teaching staff also. Since the recruitment process had already started by issuing an advertisement as far back as on 13th May, 2010, though the appointment was made on 15 th June, 2012, the judgment of this Court in case of Smt. Munoli Rajashri ::: Uploaded on - 19/12/2020 ::: Downloaded on - 19/12/2020 20:29:52 ::: bdp 6/6 7-wp-11683.19.doc Karabasappa (supra) would apply to the facts of this case also. In our view, Mr. Thorat, learned AGP could not distinguish the said judgment of this Court in the facts of this case.
13. The impugned order proceeds on the premise that though the advertisement was issued on 13th May, 2010, the appointment made on 15th June, 2012 would be illegal in view of the Government Resolution dated 2nd May, 2012. In our view, the impugned order is passed in the teeth of the principles of law laid down by the Court on 10 th July, 2017 in case of Smt. Munoli Rajashri Karabasappa (supra) and thus deserves to be set aside.
14. We therefore pass the following order :-
(a) Rule is made absolute in terms of prayer clause (b).
(b) The arrears of salary shall be released by the respondent nos.1 to 5 to the petitioner within 8 weeks from today.
(c) The respondents shall act on the copy of this order authenticated by the Sheristedar of this Court.
(d) No order as to costs.
[MADHAV J. JAMDAR, J.] [R. D. DHANUKA, J.]
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