Bombay High Court
Shaikh Fazal Ur Raheman Habibur Raheman vs The State Of Maharashtra And Others on 26 April, 2018
Author: S.S. Shinde
Bench: S.S. Shinde
(1) wp9388.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9388 OF 2016
WITH
CIVIL APPLICATION NO.14865 OF 2017
Shaikh Fazal Ur Raheman .. PETITIONER
S/o. Habibur Raheman,
Age-37 years, Occu-Service as Peon,
Jamhoor Secondary and Higher Secondary
School, Udgir, Tq. Udgir, Dist. Latur
VERSUS
1. The State of Maharashtra, ... RESPONDENTS
Through Secretary,
School Education & Sports Department,
Mantralaya, Mumbai-32
2. Deputy Director of Education,
Latur Division, Latur
3. The Education Officer (Secondary)
Zilla Parishad, Latur
Dist. Latur
4. The President/Secretary,
Liberal Education Society,
Udgir, Tq. Udgir, Dist. Latur
5. The Head Master,
Jamhoor Secondary and Higher Secondary
Schoo, Udgir, Tq. Udgir, Dist. Latur
6. Munshi Fasiuddin,
Age-42 years, Occu-Service,
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(2) wp9388.16
Jr. Clerk in Jamhoor Secondary and
Higher Secondary School, Udgir,
Tq. Udgir, Dist. Latur
Mr.S.B.Gastgar, Advocate for the petitioner
Mr.S.S.Dande, AGP for respondent Nos. 1 to 3
Mr.S.D.Tawshikar, Advocate for respondent Nos. 4 and 5
Mr.A.N.Ansari, Advocate for respondent No.6
Mr.Shaikh Mujtaba Gulam Mustaba, Advocate for the
applicant in CA/14865/17
CORAM :S.S. SHINDE &
S.M. GAVHANE, JJ.
RESERVED ON :01.02.2018 PRONOUNCED ON :26.04.2018 J U D G M E N T [PER: S.M. GAVHANE, J.] . Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.
2. By this petition under Articles 14,16,226 and 227 of the Constitution Of India the petitioner has claimed following substantive reliefs;
"(B) By issuing writ of certiorari or any other appropriate writ, order or directions in the like nature to quash and set-aside backdoor entry/appointment (dated 01.07.2007) of respondent No.6 on the post of Jr. Clerk in respondent No.5 School run by respondent No.4 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: (3) wp9388.16 Institution as shown in the Civil List on Non- Teaching Staff prepared for academic year 2015- 2016.
(C) By issuing writ of mandamus or any other appropriate writ, order or directions in the like nature to direct the respondents to appoint/promote the petitioner on the post of Junior Clerk w.e.f. 01.09.2010 and to pay all consequential benefits of Jr. Clerk to the petitioner from 01.09.2010 onwards."
3. According to the petitioner, he belongs to "Julaha" Other Backward Class category. On 25.02.2004 he was appointed as Peon in respondent No.5 school run by respondent No.4 Institution by following due procedure on clear and vacant post as per the provisions of Maharashtra Employees of Private Schools (Condition of Service) Act and Rules, 1981 (for short the MEPS Act and Rules, 1981). At that time he was possessing requisite qualification i.e. H.S.C. Subsequently he has completed Diploma in Information Technology and also completed B.A. On 24.03.2006 respondent No.3 Education Officer (Secondary) accorded approval to the appointment of the petitioner on the post of Peon.
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4. It is contended that respondent No.5 /Headmaster as per Rule 12 of the MEPS Act and Rules, 1981 time to time prepared Civil List/Seniority List of non-teaching staff working in the school. In the month of August i.e. on 31.08.2010, one Senior Clerk namely Daimi Syed Ahmed retired on superannuation. One Sk. Faseeh Ahemad Junior Clerk who was eligible for promotion was promoted on the post of Senior Clerk. Therefore, post of Junior Clerk is lying vacant due to promotion of Sk. Faseeh Ahemad. Under the provisions of Rule 12, Schedule-B and Schedule-F of the MEPS Act and Rules the petitioner is entitled for promotion. Therefore, he made several representations/ applications dated 07.09.2010, 23.02.2011, 26.09.2011, 13.10.2015, 26.10.2015, 26.11.2015 and 30.12.2015 to respondent authorities thereby requesting to promote him on the post of Junior Clerk.
5. Further it is the case of the petitioner that the appointment of respondent No.6 shown as backdoor entry on 01.07.2007 as a Junior Clerk by respondent No.5 in Civil List of non-teaching staff for the year 2015- 2016. In the year 2007 in respondent No.5 school there was no post of Junior Clerk vacant, and all of a sudden name of respondent No.6 is shown in above said Civil List. The petitioner was available in the school for ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: (5) wp9388.16 promotion of Junior Clerk, however respondent Nos. 4 and 5 shown respondent No.6 as appointed on the post of Junior Clerk by violating provisions of the MEPS Act and Rules, 1981 and Schedule-B and F and Government Resolution dated 10.05.2005. Respondent No.3 has not given approval to the appointment of respondent No.6 on the post of Junior Clerk, till today.
6. Respondent No.3 Education Officer (Secondary) has filed affidavit-in-reply stating that, right to appoint or promote is prerogative of Management and accordingly respondent Nos. 4 and 5 have appointed respondent No.6 as Junior Clerk. The proposal of respondent No.6 was submitted by Management and respondent No.2 has given approval to the services of respondent No.6. Subject matter of the application dated 29.08.2016 of the petitioner is sub-judice before this Court in this writ petition. Therefore, decision would be taken on the said application as per the order of the High Court. The petitioner was accordingly communicated vide letter dated 16.11.2016.
7. Respondent No.6 has filed reply-affidavit stating that respondent No.4 Management is recognized as minority Institution and the concerned authority has ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: (6) wp9388.16 issued the minority certificate on permanent basis in favour of respondent No.4 Management. At the same time respondent No.2 i.e. Deputy Director of Education, has also nominated four posts of minority Management for exemption. The Management is very old registered in 1968, and since then running the school, initially Secondary school and thereafter by way of natural growth the same was expanded and reached upto Senior College. Respondent No.6 is concerned with the Jamhoor D.Ed. College, which was started in the year 1988 on non-grant basis and he came to be appointed as Junior clerk in the said D.Ed. college in the year 1996-1997 for one academic year, same was continued for the next year also i.e. 1998-1999. On his appointment as Junior Clerk his service book was maintained. So also, proposal was sent to the Deputy Director Education, Aurangabad Division by Principal of Jamhoor Junior College on 22.11.1996 with the list of employees in which his name is at Sr. No.7.
8. Respondent No.6 further stated that, unfortunately the recognition of Jamhoor D.Ed. College was withdrawn in the year 1998-1999, and as such his services came to an end. Thereafter, he and other employees were making the representations to the Education Department as well as to the Management for ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: (7) wp9388.16 continuation of their services. The first application is dated 19.08.1999. His continuous representations got the reply from the Education Officer (Secondary) Zilla Parishad Latur on 06.11.2003, that he should approach the Deputy Director of Education, Latur. He further stated that in the application submitted by him on 01.03.2004 and 22.09.2005, he has specifically pointed out the names of the employees who were either re-appointed or appointed afresh which includes his name. He has pointed out the fact that instead of making fresh appointments of new candidate his case should have been considered. Further respondent No.6 stated that in the year 2007 the Management has got the recognition for D.Ed. Jamhoor College from NCERT Bhopal. When the college has started running he again approached respondent Management with the prayer that as his (respondent No.6's) service was brought to an end on de-recognition of college, and now college has started and he may be continued in the same college. Said request was considered, and he was given appointment from 01.07.2007. Since 01.07.2007 he has been working honestly and sincerely as Junior Clerk in Jamhoor Junior college on non-aided basis.
9. According to respondent No.6 he made an application on 01.07.2015 to the Management for ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: (8) wp9388.16 considering his case for transfer from un-aided to aided institution. Further it is stated that the vacancy of Junior Clerk fallen vacant in Jamhoor Urdu High School from the year 2010, as Senior Clerk Daimi Syed Ahmed has retired. The post of Senior Clerk was filled in by giving promotion to Junior Clerk Shaikh Fasi Ahmed and as such on promotion of Junior Clerk Fasi Ahmed the post of Junior Clerk was vacant. His (respondent No.6's) request for transfer from un-aided to aided Institution on the available vacancy was considered by the Management by passing the Resolution dated 28.07.2015, and he came to be transferred from Jamhoor D.Ed. College Udgir to Jamhoor High School Udgir by order dated 28.07.2015. Accordingly he joined on transferred post on 01.08.2015. After his transfer from D.Ed. College to High School, proposal was sent to Education Officer (Secondary) Zilla Parishad Latur for approval, firstly, on 07.05.2015 and reminder on 25.01.2016, and by order dated 14.07.2016 the approval is granted by the Education Officer Zilla Parishad, Latur. He also stated that the petitioner's claim is not tenable at all, as the promotion is not a fundamental right. Contending that it is not a case of appointment by 'back door entry' as contended by petitioner respondent No.6 has prayed to dismiss the petition.
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10. The affidavit-in-reply has been filed by Mr. Mirza Wahed Ali Mohammad Ali on behalf of respondent Nos. 4 & 5 stating therein that Jamhoor D.Ed. College Udgir was established in the year 1995-1996. Respondent No.6 being qualified was selected and appointed as Junior Clerk in the Jamhoor D.Ed. College on 26.08.1996 on non- grant basis. The proposal was sent to the Deputy Director, Education Officer, Aurangabad for getting approval/sanction for the appointment of respondent No.6. It is further stated that due to certain technical grounds the D.Ed. College was derecognized by the Government in the year 1998. After persuasion for long time with the Government Authorities, the D.Ed. College has again got recognition in the year 2006-2007. Respondent No.6 was again reinstated on the original post of Junior Clerk from 01.07.2007 and thereafter he worked with the Jamhoor D.Ed. College till 01.08.2015 on non- grant basis. The petitioner was appointed on the post of Peon on 25.02.2004 in respondent No.5 school, and he was having qualification up to H.S.C. only. The petitioner alleges to have completed B.A. during the course of his employment, but he has never sought permission from the respondent Nos. 4 or 5. Therefore, the conduct of the petitioner involving in full time educational course ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 10 ) wp9388.16 without taking prior permission of the present respondent is against Rule 25 of the MEPS Act and Rules.
11. It is further stated by Mirza Ali that one Senior Clerk namely Daimi Syed Ahmed got retired on 31.08.2010 due to his superannuation. As such one post of Clerk became vacant in respondent No.5 school. Therefore, one Shaikh Fasi Ahmed, who was working as Junior Clerk in respondent No.5 school was promoted as Senior Clerk on the vacant post on 15.04.2014. As such one post of Junior Clerk was vacant with respondent No.5 school. Respondent No.5 school as well as the D.Ed. College being run by the same Management, it was quite permissible to seek transfer. The Management vide resolution dated 28.07.2015 resolved to transfer respondent No.6 from D.Ed. College to respondent No.5 school. Accordingly the Management sent proposal for transfer of respondent No.6 to respondent No.3 for approval. Respondent No.3 after due inquiry accorded approval for said transfer. As such the transfer of respondent No.6 from the D.Ed. College to respondent No.5 school is completely legal and within four corners of law. Said transfer being made on request of the employee and for administrative grounds, in view of the Rule 41 of the Rules, 1981 it is lawful for Management to do so. Thus transfer of respondent No.6 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 11 ) wp9388.16 from D.Ed. College to Secondary School cannot be designed as back door entry.
12. It is further stated by Mirza Ali that petitioner being working on aided post in respondent No.5 school has no locus to challenge the transfer orders. No prejudice is caused to the petitioner by such transfer. Therefore, the petition at the behest of the petitioner is not at all maintainable. No question to promote him arises when the Management is already having competent employee to work as Junior Clerk. Respondent No.6 is having better qualification and experience for the post of Junior Clerk. Hence the transfer of respondent No.6 is just and proper. The application of the petitioner seeking permission is altogether different thing and same can be considered as and when he gets requisite seniority. After transfer respondent No.6 is being paid same pay scale as was paid prior to his transfer. He being transferred from one school to another managed by same Management, his seniority would not affect. As such the respondent No.6 is senior in gradation list to the petitioner who is class-IV employee. It would be not out of place to mention that the petitioner is involved in some criminal cases and other matrimonial prosecutions before the Court. He was arrested in connection with an ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 12 ) wp9388.16 offence registered with Udgir City Police Station at Udgir. The matters are pending before the Courts at Udgir. As such the demeanor of the petitioner is not proper. It is stated that the Government Resolution dated 10.05.2005 is not applicable in matter in hand. There are no vacancies with the respondent Management to promote the class-IV employee on class-III post. So also, considering number of employees of class-IV working with the Management, said G.R. is also not applicable in facts and circumstances of the case. No rules of the Rules, 1981 or any provision of the Act, 1977 is violated by the present respondent while transferring respondent No.3 from the D.Ed. College to the respondent No.5 school, both run by same Management. Therefore, allegations of the petitioner are factually incorrect and misconceived of facts and law. It is contended that the present petition lacks bonafide and merit and hence deserves to be rejected with costs.
13. The petitioner has filed rejoinder affidavit to affidavit-in-replies filed by respondent Nos. 3,4,5 and 6 and reiterated almost all the contentions raised in the petition referred earlier. The additional contentions raised in this affidavit in short are that the affidavit- in-reply is filed by one Mirza Wahed Ali Mohammad Ali on ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 13 ) wp9388.16 behalf of respondent Nos. 4 and 5 posing himself as working Secretary of respondent No.4 Institution. But, he is not at all Secretary of the said Institution and the so called resolution dated 28.07.2015 passed by the Institution and transfer order dated 28.07.2015 are illegal and violative of provisions of MEPS Act and Rules as well as provisions of Maharashtra Public Trusts Act as they are not Trustees of respondent No.4 Institution. In Schedule-I of the Institution no names of the so called Trustees/Board of Directors are appearing who passed the resolution and transfer order because there are several Change Reports of different groups claiming in power of the Institution, are still pending in the Office of Charity Commissioner, Latur.
14. Further it is stated that application under Section 41/E of the Maharashtra Public Trust Act, is filed by some of the Trustees before joint Charity Commissioner, Latur Region Latur. The Hon'ble Court initially granted statu-quo on 06.09.2012 and the application under Section 41-E finally came to be disposed on 23.07.2015 and school Headmaster i.e. respondent No.5 herein, was appointed on behalf of the trust for recruitment of new staff as per the rules and regulations and both the parties i.e. applicants and non-
::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 :::( 14 ) wp9388.16 applicants shall not take part, directly or indirectly in the recruitment process. The order dated 23.07.2015 is challenged by filing writ petition No.8443/2015 and it is pending for adjudication. In said writ petition order dated 08.02.2016 passed by High Court directing parties to maintain status-quo as on today is in operation.
15. It is further stated by the petitioner that the so called members of the Management/Trust illegally passed resolution dated 28.07.2015 and by issuing transfer order dated 28.07.2015 showing respondent No.6 continuous in service allowed the respondent No.6 to join on the post of Junior Clerk in respondent No.5 school, though his appointment is dated 26.08.1996 in D.Ed. College run by respondent No.4 Institution and the said D.Ed. College was derecognized by Govt. of Maharashtra in the year 1998. Thereafter, from the year 2006-07, D.Ed. College was recognized by the State Government. Hence the respondent No.6 is re-instated in D.Ed. College on 01.07.2007, thereafter he worked till 01.08.2015 on non- grant basis and then transferred by above said resolution. The resolution passed by the so called trustees is illegal and the persons claiming in power in the Institution, their Change Report is pending before Charity Commissioner due to dispute in the Management.
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16. Moreover, the petitioner has stated that the Education Officer (Primary) and the Education Officer (Secondary) both are party respondent in proceedings of application under Section 41-E before the Joint Charity Commissioner, Latur Region, Latur as well as in pending writ petition no.8443/2015. Therefore, subsequent order dated 14.07.2016 issued by respondent No.3 Education Officer (Secondary), Zilla Parishad, Latur is clear violation of order dated 08.02.2016 passed by Hon'ble High Court in writ petition No.8443/2015.
17. Learned Advocate appearing for the petitioner submits that petitioner is working as a Peon since 25.02.2004 in respondent No.5 school. He also completed B.A. The approval is accorded to his appointment on 24.03.2006 by the Education Officer. Therefore, petitioner is entitled to be appointed on the post of Junior Clerk by promotion as per Rule-12, Schedule-F clause-III and Schedule-B clause-IV of the MEPS Act and Rules, 1981 on the vacant post of one Shaikh Faseeh Ahmed who was promoted as Senior Clerk in place of Daimi Sayed Ahmed Sr. Clerk retired on 31.08.2010. Respondent Nos. 4 and 5 shown respondent No.6 appointed on the post of Junior Clerk by violating above said provisions.
::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 :::( 16 ) wp9388.16 Therefore, the appointment of respondent No.6 as a Clerk in respondent No.5 school is back door entry and the same is liable to be quashed and petitioner is required to be appointed as Clerk in view of above said provisions of MEPS Act and Rules and Government Resolution dated 10.05.2005. To support his submissions learned Advocate has relied upon the decisions in the case of Ashok Shankarrao Shinde Vs Prabodhan Shikshan Sanstha, Nagpur reported in 1999 (1) Mh.L.J. 348 and in the case of Ramesh Shivram Khairnar Vs State of Maharashtra and others reported in 2003 (4) Mh.L.J. 470.
In the case of Ashok Shinde (supra) while considering the avenue of promotion available as per clause-3 Schedule-F of MEPS Act (Condition of Service) Rules, 1981 it was held that in case of non-teaching staff possibility of promotion will have to be read in Schedule-B, Clause-IV. Such promotion is also a source of appointment for the post of Laboratory Assistant or Clerk. On the question as to whether a peon appointed in an aided school on acquiring qualifications during the course of time is eligible to be promoted to the post of clerk as prescribed under the MEPS (Condition of Service) Rules, 1981 it was held that entire scheme of the Rules including Schedules appearing thereunder has to be given combined reading and provisions have to be interpreted ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 17 ) wp9388.16 thereafter to further the underlying intent of this subordinate legislation. In case of non-teaching staff, employees of lower grade staff, so far as peons are concerned, there is a possibility of promotion to the post of a Laboratory Assistant or clerk which will have to be read into Schedule 'B', Clause-IV pertaining to the junior clerk as one of the source of appointment for the post. To that extent, therefore Schedule 'F' will project itself into Schedule 'B' and on combined reading both meaning and effect will have to be given to it. Then only the underlying idea of encouraging the lower staff to aim higher and achieve better can be implemented and that goal can be advanced. However, when there is a provision for the management to consider the case of incumbent claimant to the promotional post if at the end of the exercise when it is found that he is not suitable, recourse can be had to direct recruitment.
In the above case in paragraph Nos. 15 and 16 it was observed that the petition is accepted to the extent that there is a possibility of a peon being promoted to the post of a clerk as per Rule 12 of Schedule 'F' read with Rules 2(1)(j) Schedule 'B' and also clause (IV) of sub rule (1) and the directions were issued that as and when in future vacancy arises for the post of clerk, the claim of the petitioner will be considered and it is left ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 18 ) wp9388.16 open to the management to take decision with regard to the merits of the claim on the basis of the material before it and in accordance with rules.
18. Learned AGP appearing for respondent Nos. 1 to 2 made submissions in the light of affidavit-in-reply of respondent No.3 Education Officer.
19. So also, learned Advocate appearing for respondent Nos. 4 and 5 made submissions in the light of reply affidavit of Mirza Ali filed on their behalf. It is submitted that petitioner was appointed as a Peon on 25.02.2004. At that time his qualification was only H.S.C. He claims to have completed B.A. during course of his employment. He never sought permission of respondent Nos. 4 or 5. Therefore, his conduct of involving in full time educational course without taking prior permission of respondent Nos.4 or 5 is against Rule 25 of the MEPS Act and Rules. Said Rule reads as under:-
Rule 25; Obtaining Higher or Additional Qualification:
1. An employee other than the Head shall obtain previous permission of the Head and the Head shall obtain previous permission of the Management in case he intends to obtain higher or additional qualifications by joining courses for which regular attendance is necessary. In other cases he shall intimate the Head or the Management. The Head or Management may grant such permission ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 19 ) wp9388.16 provided the normal work of the school does not suffer. The employee so permitted cannot claim as a mattger of right any kind of leave for the preparatinon of examination for obtaining such qualification. He shall however, be eligible to get leave due to admissible to him for the purpose of appearing for the examination including the period required for journey if any, for that purpose.
2. The provisions of sub-rule (1) shall not apply in the case of professional courses, such as B.Ed. Or D.Ed. which are prerequisites of a teacher appointed by granting relaxation of qualifications prescribed in schedule "B" and also in cases of any similar course organized by the Department, if the employee intimates immediately after applying to the Head or the Management that he intends to join the course.
20. Learned counsel appearing for respondent No.6 made submissions in the light of contentions in reply filed by the said respondent.
21. We have carefully considered the submissions made by the learned Advocates appearing for petitioner, respondent Nos. 4 to 6 and learned AGP. With their assistance we have perused the pleadings of the parties.
So also, we have perused the documents produced on record by the petitioner and respondent No.6 and Government Resolution dated 10.05.2005.
22. There is no dispute that the petitioner was appointed on the post of Peon on 25.02.2004 in respondent No.5 school run by respondent No.4 Institution. At that time his qualification was H.S.C. The approval was ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 20 ) wp9388.16 granted to his appointment. On 31.08.2010 one Senior Clerk namely Daimi Syed Ahmed working in respondent No.5 school retired on superannuation. The said post of Senior Clerk was filled in by giving promotion to one Sk. Faseeh Ahemad, Junior Clerk and said post of Junior Clerk was vacant. On the said post of Junior Clerk respondent No.6 is working as per civil list of non teaching staff for the year 2015-2016 in respondent No.5 school.
23. According to the petitioner he being a Peon and the member of non teaching staff on the establishment of respondent No.5 school he was required to be promoted as a Junior Clerk, considering his seniority, in vacant post of Junior Clerk after promotion of Junior Clerk Sk. Faseeh Ahemad as a Senior Clerk as above as per schedule- F in clause-3 of MEPS Act and Rules. But instead respondent Nos. 4 and 5 appointed respondent No.6 in respondent No.5 school as back door entry on 01.07.2007 as a Junior Clerk although there was no post of Junior Clerk vacant in the school in the year 2007. Therefore, the said appointment of respondent No.6 is sought to be quashed and set aside and the petitioner has claimed to appoint him as a Junior Clerk on promotion w.e.f. 01.09.2010 since when post of Junior Clerk in respondent No.5 school was vacant and claimed all consequential ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 21 ) wp9388.16 benefits from the said date onwards.
24. To appreciate above contentions of the petitioner, it is necessary to refer relevant portion of Rule 12, Schedule-B Clause-IV, and Schedule-F Clause-3 of the MEPS Act and Rules, 1981 and Government Resolution dated 10.05.2005 and they are reproduced as under:-
Rule 12. Seniority List :
Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non-teaching staff in the School in accordance with the guidelines laid down in Schedule "F". The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. Any subsequent change made in the seniority list from time to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be obtained.
(2) Objections, if any, to the seniority list or to the changes therein shall be duly taken into consideration by the Management.
(3) Disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision.
Schedule B Clause-IV QUALIFICATIONS FOR NON-TEACHING POSTS IN SCHOOLS
1) Junior Clerk A person who has passed at least the Matriculation or the Secondary School Certificate Examination or any other qualification declared by the Government as equivalent thereto.
2) Senior Clerk By promotion from amongst persons ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 22 ) wp9388.16 holding the posts of Junior Clerk on the basis of seniority-cum-merit.
3) Head Clerk By promotion from amongst persons holding the posts in Senior Clerk on the basis of seniority-cum-merit.
4) Superintendent By promotion from amongst persons holding the posts of Head Clerk on the basis of seniority-cum-merit.
(The above posts are shown in descending order and the higher posts are promotional posts available in Secondary Schools and Junior Colleges of Education on the basis of enrollment of the Schools concerned.) Schedule F Clause-3
3. Guidelines for fixation of seniority of non-teaching staff:
Clerks: The clerical and supervisory posts in the channel of promotion comprise Junior Clerk, Senior Clerk, Head Clerk and Superintendent, Seniority of Junior Clerks in a School or Schools shall be determined on the basis of the date of appointment of the persons concerned. The post of Senior Clerk shall be filled in by promotion of senior most Junior Clerk. The posts of Head Clerk and Superintendent shall be filled in respectively by promotion of senior-most Senior Clerk and senior most Head Clerk, respectively.
Lower Grade Staff- A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, call-woman, Kamathi, Attendant, Laboratory Hamal, Liftmen and such other lower grade staff, if any, shall be maintained on the basis of the dates of their appointment. If any of the lower grade staff improves his qualifications as prescribed either for the post of Laboratory Assistants or Clerk, such employee should be given preference while filling in the said post according to his place in seniority.
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25. From clause-3 of Schedule-F, and the Government Resolution dated 10.05.2005 it is clear that the Peon i.e. Class-IV employee working in the school is eligible to be considered for promotion on the class-III post i.e. Clerk-cum-Typist provided he has to fulfill all the requirements in the above said schedule and the Government Resolution.
26. Considering the contentions of the petitioner and the requirements for promotion to the post of Clerk from Class-IV employee, it is necessary to see, whether on 31.08.2010 when Senior Clerk Daimi Sayyed Ahemad was retired and in his place Junior Clerk Sk. Faseeh Ahemad was appointed and one post of Junior Clerk in respondent No.5 school was therefore vacant, the petitioner was eligible to be considered for promotion to the post of Junior Clerk. As regards qualification for the post of Junior Clerk, it is the case of the petitioner that when he was appointed as a Peon on 25.05.2004 he was possessing requisite qualification i.e. H.S.C and thereafter he also completed B.A. Necessary qualification for the post of Junior Clerk i.e. non-teaching post in the school as per Schedule-B Clause-IV is that the said person has to pass at least Matriculation Secondary ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 25 ) wp9388.16 School Certificate Examination or any other qualification declared by the Government is equivalent thereto. Considering this qualification required for the appointment of the Junior Clerk in the school and H.S.C. qualification of the petitioner, it can be said that when the post of Junior Clerk was vacant in respondent No.5 school, the petitioner was holding required qualification.
27. Now it is to be seen, whether at the relevant time when the post of Junior Clerk was vacant in respondent No.5 school, the petitioner was senior in the seniority list of Peons/Class-IV employees maintained in respondent No.5 school. Exh.'C' civil list of 2010-2011 of non-teaching staff in respondent No.5 school shows that there were in all 8 non-teaching staff/employees in respondent No.5 school. In the said list at Sr. No.1 there is name of Shaikh Faseeh Ahmeed who was undisputedly promoted as a Senior Clerk after retirement of Senior Clerk Daimi Sayyed Ahemad on 31.08.2010. This civil list further shows that there were five Peons working in the year 2010-2011 and their names are at Sr. Nos.4 to 8. The name of Peon at Sr. No.4 is Shaikh Ahmed Hussain and his qualification is IX. At Sr. No.5 the name of Mr.Shaikh Mohd. Moizuddin and his qualification is ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 26 ) wp9388.16 HSC. At Sr. No.6 the name of present petitioner Mr. Shaikh Fazal Ur Rahman and his qualification is HSC. At Sr. No.7 there is name of Mr. Shaikh Munnawwer Ahmed and his qualification is IX and at Sr. No.8 there is name of Mr. Tamboli Syed Alimuddin and his qualification is IX. Thus it is obvious from the above list that in 2010-2011 amongst the total 8 non-teaching staff, the present petitioner is at Sr. No.6. So also, in the said year even amongst the five Peons working in respondent No.5 school he was at Sr. No.3. Moreover, it is seen from the said list that in the said year 2010-2011 Peon Shaikh Mohd. Moizuddin was senior to the petitioner and his qualification was HSC. Therefore, it cannot be said that in the year 2010-2011 when there was vacancy of Junior Clerk in respondent No.5 school, the petitioner was Senior most in the class-IV employees in the said school. But, it appears that Shaikh Mohd. Moizuddin Peon working in the respondent No.5 school was senior and was having HSC qualification which is required for the post of Junior Clerk as per Clause-3 of Schedule-F of the MEPS Act and Rules, 1981 was above the the petitioner.
28. It appears that in the civil list of 2011-2012 of non-teaching staff working in the respondent No.5 school total 8 staff members were there. In the said list ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 27 ) wp9388.16 also at Sr. No.1 name of Shaikh Faseeh Ahmeed is shown as Junior Clerk who was promoted as Senior Clerk after retirement of Senior Clerk Daimi Sayed Ahmed on 31.08.2010. In the said list at Sr. No.3 the name of Shaikh Mohd. Moizuddin who was Peon in the above referred civil list of 2010-2011 of non-teaching staff of respondent No.5 school, it appears that his designation is shown as Lab Assistant and not as a Peon. In this list the name of present petitioner is shown at Sr. No.6 and his qualification is shown as HSC and above the petitioner there is the name of Peon Shaikh Ahmed Hussain at Sr. No.5 whose qualification is IX. Considering the fact that as per this list the name of the petitioner is at Sr. No.6 and his qualification is HSC, he can be said to be Senior amongst the Peons who can be said to be eligible to consider for the post of Junior Clerk. However, it cannot be said on the basis of the list of 2011-2012 that petitioner was senior amongst the Peons eligible for promotion to the post of Junior Clerk which was vacant in respondent No.5 school in 2010 as observed earlier.
29. As per Government Resolution dated 10.05.2005 while giving promotion from eligible Group 'D' employees to the post of Clerk-Cum-Typist in Group 'C' instead of ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 28 ) wp9388.16 from 25% posts falling vacant every year, promotion is to be given from the 25% sanctioned posts of Clerk-Cum- Typist cadre. The petitioner has not produced any record to show whether the post of Junior Clerk was vacant in 2010 in respondent No.5 school to be filled in by promotion from Group 'D' as per government resolution dated 10.05.2005.
30. It is the case of respondent No.6 that he was appointed as Junior Clerk in Jamhoor D.Ed. College in the year 1996-1997 for one year and he was continued for next year also i.e. for 1998-1999. There is no dispute that this Jamhoor D.Ed. College and respondent No.5 school are of the same institution i.e. respondent No.4. Respondent No.6 further stated in his affidavit that the recognization of the D.Ed. College was withdrawn by the Government. Again Government has granted recognization to the said D.Ed. College in 2007. He stated that he was given appointment from 01.07.2007 in the said D.Ed. College which is non-aided basis. Thereafter, on 01.07.2015 he made application for transfer from non- aided to aided Section. The same was approved by the Deputy Director of Education, Latur by order dated 02.12.2015. He stated that vacancy of Junior Clerk in respondent No.5 school was created due to promotion of ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 02:01:41 ::: ( 29 ) wp9388.16 Shaikh Faseeh Ahmeed as a Senior Clerk in place of Daimi Sayed Ahemad in 2010 and said post of Junior Clerk was vacant. Therefore, he was transferred from D.Ed. College to respondent No.5 school by order dated 28.07.2015 and he is serving in the said school since 01.08.2015. The approval is granted by the Education Officer, Zilla Parishad, Latur by order dated 14.07.2016. From the above contents of the affidavit of respondent No.6 it appears that he has served for about 8 years in the D.Ed. College of respondent No.4 Institution as a Junior clerk and thereafter he was transferred and approval is also given by the Education Officer to his transfer to respondent No.5 school. Therefore, when the petitioner has not shown that vacancy of Junior Clerk in respondent No.5 school on account of retirement of Senior Clerk was available for promotion of Group 'D' employee to Group 'C' and respondent No.6 has served for more than 8 years as a Junior clerk, it cannot be said that the appointment of respondent No.6 by the impugned order dated 01.07.2007 is back door entry and the same cannot be set aside as claimed by the petitioner. So also, for the reasons discussed hereinabove no directions can be issued to the respondents to appoint the petitioner on the post of Junior Clerk from 01.09.2010 with benefits of post of Junior Clerk as claimed.
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31. For the reasons discussed hereinabove, we are of the considered view that the petitioner is not entitled to the reliefs claimed in this petition. Accordingly, we dismiss the petition. Rule discharged. No costs.
32. We have held that the petitioner is not entitled, to any of the reliefs claimed and dismissed the petition. However, we direct the respondents that as and when in future vacancy arises for the post of Junior Clerk in any school/college of respondent No.4 Institution the claim of the petitioner may be considered for appointment/promotion to the post of Junior Clerk on its own merits and in accordance with rules and procedure.
33. In view of the dismissal of the writ petition, the civil application for adding party does not survive and the same is disposed of.
[S.M.GAVHANE,J.] [S.S. SHINDE,J.]
VishalK/wp9388.16
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