Bombay High Court
Ajay S/O Ashokrao Ghatole vs The State Of Maharashtra on 12 March, 2014
Author: N.W. Sambre
Bench: R.M.Borde, N.W. Sambre
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W.P. No.9539/12, etc.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9539 OF 2012
1. Ajay s/o Ashokrao Ghatole,
Age 26 years, Occu. Service with
Panchayat Samiti, Sengaon,
District Hingoli, R/o. Gaddepir Galli,
Tq. & District Hingoli.
2. Sunita Laxmansa Chandkar,
Age 28 years, Occu. Service with
Panchayat Smiti, Vasmat,
Tq. Vasmat, District Hingoli,
R/o. Vasmat, District Hingoli.
3. Archana Anandrao Jadhav,
Age 24 years, Occu. Service with
Panchayat Samiti, Hingoli,
Tq. & District Hingoli,
R/o. Hingoli, District Hingoli.
4. Anita Vilas Tale,
Age 25 years, Occu. Service with
Panchayat Samiti, Hingoli,
District Hingoli, R/o. Hingoli,
Tq. & District Hingoli. ...Petitioners
VERSUS
1. The State of Maharashtra,
Through its : The Principal Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Hingoli, District Hingoli,
Through its : Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad, Hingoli, District Hingoli. ...Respondents
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W.P. No.9539/12, etc.
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr B. S. Mundhe, Advocate for respondent Nos. 3 and 4
WITH
WRIT PETITION NO. 5685 OF 2013
1. Krishna s/o Ramdas Mehetre,
Age : 22 years, Occ. Service,
R/o. Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar.
2. Madhuri d/o Vasudeo Lakhapati,
Age : 30 years, Occu. Service,
R/o. Harihar Niwas, Tofkhan,
Ahmednagar.
3. Ravi s/o Vasant Khedkar,
Age : 25 years, Occ. Service,
R/o. Fule Nagar, Pathardi,
Dist. Ahmednagar.
4. Haribhau s/o Dattatrya Dhole,
Age : 24 years, Occ. Service,
R/o. Yeli, Tq. Pathardi,
Dist. Ahmednagar. Petitioners...
VERSUS
1. The State of Maharashtra,
Through it's the Principle Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
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W.P. No.9539/12, etc.
3. Zilla Parishad, Ahmednagar,
District Ahmednagar
Through its Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad, Ahmednagar,
District Ahmednagar. Respondents
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr S. T. Shelke, Advocate for respondent Nos. 3 and 4
WITH
WRIT PETITION NO. 9540 OF 2012
1. Mahesh s/o Vyankatrao Landge,
Age 28 years, Occu. Service,
Education Department (Primary),
Zilla Parishad, Nanded,
R/o. Gadgebabanagar, Loha,
Tq. Loha, District Nanded.
2. Sandip s/o Basvantrao Ramshette,
Age 21 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Ardhapur,
District Nanded,
R/o. 'Matrusmruti' Vishnunagar,
Nanded, Post Shivajinagar,
Tq. & District Nanded.
3. Govind s/o Datta Chivade,
Age 25 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Loha,
District Nanded, R/o. Kurula,
Tq. Kandhar, District Nanded.
4. Parmeshwar s/o Shankarrao Borikar,
Age : 25 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Kandhar,
District Nanded,
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W.P. No.9539/12, etc.
R/o. C/o. Ramchandra Bapurao Ratnaparkhe,
Priyadarshaninagar, Kandhar,
District Nanded.
5. Smt. Ragini Nilkanthrao Gaikwad,
Age 23 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Mukhed,
District Nanded, R/o. Ashoknagar,
Tq. Mukhed, District Nanded.
6. Anil s/o Kishanrao Chavan,
Age 23 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Degloor,
District Nanded, R/o. Shivajinagar,
Behind Gurudeo School,
Mukhed, District Nanded.
7. Prakash s/o Bhagwan Yenkar,
Age 25 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Mahur, District Nanded,
R/o. Mudana, Tq. Mahagaon,
District Yavatmal.
8. Suresh s/o Ganpatrao Katre,
Age 23 years, Occu. Service,
Office of Block Education Officer,
Panchayat Samiti, Dharmabad,
District Nanded,
R/o. Fulenagar, Bannali Road,
Dharmabad, District Nanded.
9. Amardeep s/o Uttamrao Ajne,
Age : 25 years, Occu. : Service,
Office of Block Education Officer,
Panchayat Samiti, Nanded, District Nanded,
R/o. C/o. : Sanjay Shelge Patil,
R-1, 'Krushnakunj',
Siddhi Vinayak Sankul, Purna Road, Nanded.
10. Siddharth s/o Dadarao Pawale,
Age : 25 years, Occ. : Service,
Office of Block Education Officer,
Panchayat Samiti, Hadgaon,
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W.P. No.9539/12, etc.
District Nanded.
R/o. Vishvadeepnagar, Taroda (Kh.),
Tq. & District Nanded.
11. Shaikh Salim Mahemoodsab,
Age : 27 years, Occ. Service,
Panchayat Samiti, Biloli, Nanded. Petitioners
Versus
1. The State of Maharashtra
Through it's : the Principle Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2.
The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Nanded,
District Nanded,
Through its : Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad Nanded,
District Nanded. Respondents
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr V. S. Panpatte, Advocate for respondent Nos. 3 and 4
WITH
WRIT PETITION NO. 9552 OF 2012
1. Gajanan s/o Baliram Gaikwad,
Age 22 years, Occu. Service with
Panchayat Samiti, Pathari,
District Parbhani,
R/o. Shivajinagar, Pathari,
Tq. Pathari, District Parbhani.
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2. Amol s/o Sureshrao Zadgaonkar,
Age 23 years, Occu. Service with
Panchayat Samiti, Palam,
District Parbhani,
R/o. Near Office of Gram-Panchayat,
Kokate Galli, Palam,
Tq. Palam, District Parbhani.
3. Rahul s/o Bhagwanrao Dhondge,
Age 22 years, Occu. Service with
Panchayat Samiti, Purna,
District Parbhani,
R/o. Awalgaon, Post Wadgaon,
Tq. Sonpeth, District Parbhani.
4. Smt. Manisha Ashokrao Pardhe,
Age 22 years, Occu. Service with
Panchayat Samiti, Sailu,
District Parbhani,
R/o. Gram-Sevak Colony,
Ganar Niwas, Tq. Sailu,
District Parbhani. Petitioners
Versus
1. The State of Maharashtra,
Through its : The Principle Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Parbhani,
District Parbhani,
Through its : Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad, Parbhani,
District Parbhani. Respondents
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
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W.P. No.9539/12, etc.
Mr C. R. Thorat with Mr Mundhe, Advocate for respondent Nos. 3 and 4
WITH
WRIT PETITION NO. 9555 OF 2012
1. Smt. Asmita Baburao Thale,
Age 25 years, Occu. Service with
Panchayat Samiti, Aurangabad,
District Aurangabad,
R/o. N-11, B-28/2 T.V. Centre,
HUDCO, Aurangabad.
2. Smt. Mayuri Mhalsakant Patil,
Age 25 years, Occu. Service with
Education Department,
Zilla Parishad, Aurangabad,
R/o. E-1/9/6, Mathuranagar,
N-6, CIDCO, Aurangabad.
3. Santosh s/o Eknath Borkar,
Age 26 years, Occu. Service with
Panchayat Samiti, Khultabad,
District Aurangabad,
R/o. Jijai Medical, N-11, T.V. Centre,
HUDCO, Aurangabad. Petitioners
Versus
1. The State of Maharashtra,
Through its : The Principle Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Aurangabad,
District Aurangabad,
Through its : Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad, Aurangabad,
District Aurangabad. Respondents
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W.P. No.9539/12, etc.
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr U. B. Bondar, Advocate for responent Nos. 3 and 4
WITH
WRIT PETITION NO. 9563 OF 2012
1. Smt. Asha Shesharao Naikwade,
Age 24 years, Occu. Service,
R/o. Shivajinagar, Barshi Road,
Beed, District Beed.
2. Smt. Rupali Ashok Nandalgaonkar,
Age 22 years, Occu. Service,
R/o. Dharmamurti Niwas,
Sarnath Colony, Shahunagar,
Beed, District Beed.
3. Mahesh s/o Gopalrao Thigale,
Age 23 years, Occu. Service,
R/o. Maharashtra Housing Colony,
Dhanora Road, Beed, District Beed.
4. Vilas s/o Motiram Darpe,
Age 24 years, Occu. Service,
R/o. New Police Colony,
Near Sangam Hall, Beed,
District Beed.
5. Manoj s/o Pandurang Lokhande,
Age : 24 years, Occu. Service,
R/o. Yeshwantnagar Kennel Road,
Beed, District Beed.
6. Amar s/o Arunrao Pathak,
Age 24 years, Occu. Service,
R/o. At Post Pali,
Tq. & District Beed.
7. Sagun s/o Fakira Bochare,
Age 24 years, Occu. Service,
R/o. At Post Patoda,
Tq. Patoda, District Beed.
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8. Smt. Varsha Balasaheb Misal,
Age 25 years, Occu. Service,
R/o. Sarda Nagari, Beed,
District Beed.
9. Smt. Sandhya Bhausaheb Nagare,
Age 24 years, Occu. Service,
R/o. Sambhajinagar, Nagar Road,
Balepir, Beed, District Beed.
10. Sayyed Siraj Sayyed Isak,
Age 24 years, Occu. Service,
R/o. Nagar Road, Balepir Beed,
District Beed.
11.
Pathan Fayyaj Suradkha,
Age 24 years, Occu. Service,
R/o. Raimoha, Tq. Shirur Kasar,
District Beed.
12. Vasant s/o Babab Kale,
Age 22 years, Occu. Service,
R/o. Dhangar Jawalka,
Tq. Patoda, District Beed. ...Petitioners
Versus
1. The State of Maharashtra,
Through its : The Principle Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Beed,
District Beed,
Through its : Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad, Beed,
District Beed. Respondents
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W.P. No.9539/12, etc.
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr C. R. Thorat with Mr Mundhe, Advocate for respondent Nos. 3 and 4
WITH
WRIT PETITION NO. 9560 OF 2012
1. Kum. Jayshree Arunrao Bhoite,
Age 25 years, Occu. Service with
Education Department (Primary),
Zilla Parishad, Jalgoan,
R/o. Yawal, District Jalgaon.
2.
Vaishali Digambar Ratnaparkhi,
Age 35 years, Occu. Service with
Panchayat Samiti, Erandol,
District Jalgoan,
R/o. Near 5-K, Forest Colony,
Ring Road, Jalgaon,
District Jalgaon.
3. Manisha Yeshwantrao Khachale,
Age 35 years, Occu. Service with
Panchayat Samiti, Yawal,
District Jalgaon,
R/o. Vidyanagar, Faijpur,
Tq. Yawal, District Jalgaon.
4. Prinkya Ashok Shivde,
Age 24 years, Occu. Service with
Panchayat Samiti, Jalgaon,
R/o. Samrat Colony, Jalgaon,
District Jalgaon.
5. Sunil s/o Govind Murkute,
Age 23 years, Occu. Service with
Panchayat Samiti, Parola,
District Jalgaon,
R/o. Tukarmwadi, Jalgaon,
District Jalgaon.
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6. Bapu s/o Jayram Bagul,
Age 30 years, Occu. Service with
Panchayat Samiti, Pachora,
District Jalgaon,
R/o. Krushnapuri, Pachora,
District Jalgaon.
7. Sandip s/o Deochand Gaikwad,
Age 27 years, Occu. Service with
Panchayat Samiti, Jamner,
District Jalgaon, R/o. MIDC Colony,
Juni Vasahat, Ajintha Road,
Jalgaon.
8. Sachin s/o Arjun Chaudhari,
Age 26 years, Occu. Service with
Panchayat Samiti, Bodwad,
District Jalgaon,
R/o. Ozar (Bk.), Tq. Jamner,
District Jalgaon.
9. Ramesh s/o Shankar Dangode,
Age 30 years, Occu. Service with
Panchayat Samiti, Bhusawal,
District Jalgoan,
R/o. Tadvi Colony, Yawal,
District Jalgaon.
10. Ganesh s/o Pundlik Sapkale,
Age 35 years, Occu. Service with
Panchayat Samiti, Amalner,
District Jalgaon, R/o. Gautamnagar,
Dharangaon, District Jalgaon.
11. Mandar s/o Sudarshan Chaudhari,
Age 28 years, Occu. Service with
Panchayat Samiti, Dharangaon,
District Jalgaon, R/o. Anitanagar, Dharangaon,
District Jalgoan.
12. Mohmad Rais Noormohmad
Age 25 years, Occu. Service with
Panchayat Samiti, Raver,
District Jalgaon,
R/o. Shahid Abdul Hamid Chowk,
Rasalpur Road, Raver, District Jalgaon. Petitioners
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Versus
1. The State of Maharashtra,
Through its : The Principle Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Jalgaon,
District Jalgaon,
Through its : Chief Executive Officer.
4.
The Education Officer (Primary),
Zilla Parishad, Jalgaon,
District Jalgaon. Respondents
Mr V. D. Sapkal, Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr M. S. Sonawane, Advocate for respondent Nos. 3 and 4
WITH
WRIT PETITION NO. 10060 OF 2012
1. Shri. Sunil Subhashrao Kulkarni,
Age : 35 years, Occ: service as
Data Entry Operation with
Zilla Parishad, Latur,
R/o. Narayannagar, Latur,
Tal and Dist: Latur.
2. Smt. Sunita Wanraj Jadhav @
Padmavati Suryawanshi,
Age : 28 years, occ: service,
as Data Entry Operation with
Panchayat Samitee, Latur,
R/o. Latur, Tal and Dist: Latur.
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3. Smt. Dwarka Sopanrao Shelke,
Age : 26 years, Occ: service as
Data Entry Operator with
Panchayat Samitee, Ausa,
Tal: Ausa, Dist. Latur.
4. Kum. Ashwini Anandrao Jadhav,
Age : 24 years, occ: service as
Data Entry Operator with
Panchayat Samitee, Nilanga,
r/o. Nilanga, Tal: Nilanga,
Dist: Latur.
5. Smt. Zohar Burhan Ahaliya,
Age: 28 years, Occ: service as
Data Entry Operator with
Panchayat Samitee, Renapur,
r/o. Renapur, Tal : Renapur,
Dist: Latur.
6. Shri. Shrikant Gangadhar Pawar,
Age : 29 years, Occ: Service as
Data Entry Operator with
Panchayat Samitee, Chakur,
r/o. Chakur, Tal: Chakur,
Dist: Latur.
7. Shri. Vivekanand Govind Parchande,
Age : 31 years, Occ: Service as
Data Entry Operator with
Panchayat Samitee, Ahmedpur,
r/o. Ahmedpur, Tal: Ahmedpur,
Dist: Latur.
8. Smt. Meera Shivajirao Kanwate,
Age : 28 years, Occ: Service as
Data Entry Operator with
Panchayat Samitee, Udgir,
r/o. Udgir, Tal: Udgir, Dist: Latur.
9. Alik Joharsab Sekh,
Age : 32 years, occ: Service as
Data Entry Operator with
Panchayat Samitee, Shirur Anantpal,
r/o. Shirur Anantpal,
Tal: Shirur Anantpal, Dist : Latur.
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10. Shri. Somnath Nagorao Holkar,
Age: 31 years, Occ: Service as
Data Entry Operator with
Panchayat Samitee, Jalkot,
r/o. Jalkot, Tal: Jalkot,
Dist: Latur.
11. Abdul Atik Abdul Gafar Shaikh,
Age: 30 years, occ: service as
Data Entry Operator with
Panchayat Samitee, Devani,
r/o. Devani, Tal: Devani,
Dist: Latur. ...Petitioners..
Versusig
1. The State of Maharashtra,
Through its Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 32.
2. The Director of Education,
Maharashtra State, Pune.
3. Zilla Parishad, Latur,
District Latur,
Through its Chief Executive Officer.
4. The Education Officer (Primary),
Zilla Parishad, Latur,
District Latur. Respondents...
Mr Anand V. Patil (Indrale), Advocate for petitioners
Mrs A. V. Gondhalekar, AGP for respondent Nos. 1 and 2
Mr V. D. Hon, Advocate for respondent Nos. 3 and 4
CORAM : R.M.BORDE &
N.W. SAMBRE, JJ.
(Date of reserving the
judgment : 26th February, 2014
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Date of pronouncing the
judgment : 12th March, 2014)
JUDGMENT (PER N.W. SAMBRE, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally with the consent of parties.
3. The present petitioners, claiming to be appointed as Data Entry Operators on contract basis, have questioned the communication dated 9.11.2012, issued by the Director of Education (Primary), directing all the Education Officers (Primary), Zilla Parishad in the State of Maharashtra, to start the process of recruitment of Data Entry Operators on contract basis afresh.
4. The petitioners claim that in view of the directions issued by the Honourable Apex Court, the Central Government has floated a scheme with an intention to provide cooked food to the students of the Primary Schools with effect from 1995-96, which is identified as 'Mid-Day Meal scheme'.
The said scheme came to be implemented through the State Government at the level of Director of Education.
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5. For achieving the object of implementation of the scheme in the entire State, the State has resolved to fill up 397 posts of Data Entry Operators on contract basis. It was provided that the said posts shall be filled in for a period of one year and after expiry of the period of one year of the employment, the said appointment will automatically come to an end.
6. It appears that the State Government prescribed the following qualification for the post of Data Entry Operator :-
a) The candidate should have passed 12th standard and the preference should be given to a candidate holding a graduate degree;
b) The candidate should have typing speed of 30 words per minute in Marathi language and 40 words per minute in English language;
c) The candidate should have knowledge of Computer and also passed the MS-CIT examination or similar qualification prescribed by the Central Government;
d) Age should be between 18 and 35 years. ::: Downloaded on - 29/03/2014 18:56:37 ::: (17) W.P. No.9539/12, etc.
The said Government Resolution further provides that the selection of the candidate at district level should be carried out by the Education Officer (Primary) with the approval of the Chief Executive Officer. It further provides for constitution of a selection committee consisting of five persons. The said selection committee was headed by Chairman, a Secretary and three members. It was provided that the post is required to be filled in after issuing an advertisement in the newspaper and inviting applications.
The scheme of selection provides for a complete transparent process, so as to avoid any arbitrariness in the matter of selection of the candidates and also gives equal opportunity to the qualified candidates to participate and compete in selection process.
7. In the light of said decision of the Government, the respondent Zilla Parishad carried out the process of recruitment of Data Entry Operators and the candidates who have successfully undergone the entire selection process and selected were given appointment orders for a period of one year on purely contract basis.
8. Since the period of appointment of the petitioners as Data Entry Operators was coming to an end, having completed period of one year of appointment on contractual basis, appointment orders were issued to them by the Zilla Parishad for a period of one year on same terms as ::: Downloaded on - 29/03/2014 18:56:37 ::: (18) W.P. No.9539/12, etc. that of earlier appointment orders.
9. By Government decision dated 25.10.2012 issued by the respondent - State Government, the honorarium that was fixed while making appointments of Data Entry Operators on contract basis was increased from Rs.6,000/- to Rs.9,600/- per month. By another Government decision of the same date, it was resolved by the State Government that since posts of Data Entry Operators were not sanctioned for the Municipal Corporations, for the purpose of implementing the scheme of providing mid-day meal to the students of the primary schools, to create posts of Data Entry Operator for each Municipal Corporation. It was also decided that appropriate action be initiated for recruitment of Data Entry Operators by District Committees for these new posts.
10. It appears that taking shelter of above referred Government decision, the Director of Education (Primary) has instructed Education Officers in the State of Maharashtra, that the State Government has directed all the Zilla Parishads to carry out the fresh recruitment process of Data Entry Operators and as such issued instructions to the Education Officers to carry out the recruitment process for total 423 posts of Data Entry Operators, including the earlier filled in 397 posts.
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11. The constitution of the Selection Committee for the purpose of carrying out fresh recruitment of the Data Entry Operator is identical to that of the one provided in the Government decision dated 10.2.2010.
The only change that was noticed was that the posts were increased from 397 to 423, in view of the decision of the Government to provide one Data Entry Operator to each of the the Municipal Corporations. Being aggrieved by the above referred communication dated 9.11.2012 issued by the Director of Education (Primary), the petitioners have preferred these petitions.
12. It is the claim of the petitioners that they were appointed on contract basis for a period of one year, whereas their appointment was continued for one more year. It is further claimed that respondent no.2 - Director of Education, has ordered initiation of fresh recruitment process so as to replace their services by another contractual employees. According to the petitioners, their services are required to be protected though they are appointed on contract basis. The petitioners further claim that in future they will not claim any equity or permanency in service, based upon their present contractual employment. The petitioners, as such, prayed for quashing of the impugned communication dated 9.11.2012 including that of taking out fresh process for recruitment of Data Entry Operators.
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13. While countering the above referred submissions, the affidavit in reply filed for and on behalf of respondent no.2 reflects that the "Mid Day Meal Scheme" is a Central Government sponsored scheme. The appointments of the Data Entry Operators in the State are with an intention to have smooth operation of the scheme. It is further claimed by the respondents that as per the policy of the Government, the initial appointment of Data Entry Operators was for a period of one year and after completion of period of one year, the appointment of the petitioners was to come to an end automatically. Since the State was unable to carry out the appointments immediately, so as to make stop-gap-
arrangement, the petitioners were granted appointment for one more year.
The respondent submits that in view of the above referred condition in the recruitment procedure, the petitioners are not entitled to claim that they should be continued in service.
14. It is further claimed by the respondents that few Data Entry Operators appointed for implementing the 'Mid Day Meal Scheme' in the State of Maharashtra have left the job, as a result of which posts of Data Entry Operators remained vacant, which hampers the implementation of the scheme in question. It is further alleged by the respondent - State that there are no regular posts created on permanent basis for Data Entry Operators. The payment for the Data Entry Operators is made from the ::: Downloaded on - 29/03/2014 18:56:37 ::: (21) W.P. No.9539/12, etc. component of Management, Monitoring and Evaluation Funds released by the Government of India. It is further provided in the scheme by the Central Government that the expenditure on salaries shall be incurred only for the staff appointed on contract for a maximum of one year at a time.
The respondent further submits that that appointments of the petitioners are not ad hoc but are contractual and that too for a limited period and as such prayed for rejection of the petitions.
15. In support of the contentions raised by the petitioners, they have placed reliance on the judgment reported in 2012 (4) ALL MR 293 (Rajendra s/o Vitthalrao Kamble vs. Government of Maharashtra & ors.) . The petitioners have invited attention of this Court to the observations made by this Court in paragraph 10, more particularly clause (3), which read thus :-
"Whether the decision of the Government to re-advertise the posts afresh, after lapse of three years, for being filled up by new appointees on ad hoc basis is contrary to the principle laid down in the case of State of Haryana and others Vs. Piara Singh and others (supra), that one ad hoc appointee cannot be replaced by another ad hoc appointee?"
The petitioners have invited attention of this Court to the observations made by this Court in paragraphs no.13 and 14 of the said judgment, so as to support their contention that even if the appointments of the ::: Downloaded on - 29/03/2014 18:56:37 ::: (22) W.P. No.9539/12, etc. petitioners are on contract basis, that too against the temporary posts, their services cannot be replaced by appointing another person on temporary basis.
16. The petitioners sought to rely upon the judgment of the Apex Court, reported in AIR 2009 SC (Supp) 1054 (Md. Abdul Kadir and anr.
vs. Director General of Police, Assam & ors.). Based upon the above referred judgments, the petitioners have sought to canvass that the act on the part of the Government and also that of respondent no.2 Director of Education of advertising the posts occupied by the petitioners as Data Entry Operators, on contract basis, is liable to be quashed and set aside as the said act on the part of the respondent is in violation of the principle laid down by the Apex Court as regards replacement of one ad hoc employee by another ad hoc employee.
17. Per contra, the learned Assistant Government Pleader has strenuously urged that the claim of the petitioners is required to be considered in the light of the fact that the posts in question are temporary posts which are required to be filled in on contract basis as the scheme is sponsored by the Central Government. The sponsorship of the scheme by the Central Government is conditional and the conditions incorporated by the Central Government are binding on the State Government. The learned Assistant Government Pleader submits that as the posts are ::: Downloaded on - 29/03/2014 18:56:37 ::: (23) W.P. No.9539/12, etc. temporary in nature and the appointments are contractual, the petitioners have no right to claim continuation.
18. The respondent invited attention of this Court to the law laid down by the Apex Court in the matter of Secretary, State of Karnataka & ors.
vs. Umadevi (3) and ors., reported in (2006) 4 SCC 1, so as to canvass that in the matter of public employment, the maintenance of transparency;
the compliance of the recruitment procedure as per the Recruitment Rules and as provided in the scheme of the Constitution is required to be followed. The learned Assistant Government Pleader invited attention of this Court to the finding recorded by the Honourable Apex Court in the above referred judgment in paragraph 12, which reads thus :-
"In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognised and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a ::: Downloaded on - 29/03/2014 18:56:37 ::: (24) W.P. No.9539/12, etc. duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected,there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. "
19. Learned Assistant Government Pleader further canvassed that this Court should be very slow in granting the relief as the posts, against which the petitioners are employed, are temporary in nature and it is the experience of the State Government that the contractual employees like present petitioners at later stage claim permanency, based upon their earlier appointments and as such prayed for dismissal of the petitions.
20. Having considered the rival contentions of the respective parties, it appears that the respondent - State Government has taken decision on 10.2.2010 of filling up posts of Data Entry Operators on contract basis for a period of one year. The said Government decision contemplates the process of recruitment to be undertaken for the purpose of appointments of Data Entry Operators and also lays down the norms/procedure to be followed while carrying out such appointments. The procedure for recruitment as provided in the Government Resolution reflects complete transparency including that of the considerations towards the qualifications ::: Downloaded on - 29/03/2014 18:56:37 ::: (25) W.P. No.9539/12, etc. of the concerned candidate. It further appears that the respondents, in compliance with the decision of the Government have undertaken the recruitment process which was undergone by the candidates like present petitioners resulting into issuing appointment orders in their favour on contract basis for a period of one year.
21. The fact remains that the petitioners were well aware of the fact that they are appointed on contract basis and that too for a limited period of one year. It appears that thereafter the respondents have continued the services of the petitioners for another year.
22. Thereafter, it appears that the State Government on 25.10.2012 has reviewed the position as regards honorarium to be paid to the Data Entry Operators and has increased honorarium from Rs.6,000/- to Rs.
9,600/- per month. The State Government has approved the proposal of creating one post of Data Entry Operator at each Municipal Corporation level in the District which is required to be filled in by the District Committee on contract basis. It is nowhere directed in the Government decision dated 25.10.2012, that so far as the posts of Data Entry Operators which are occupied by the petitioners are concerned, those should be re-advertised. What is provided is that the additional posts created at Municipal Corporation level should be filled in by the District Committee.
::: Downloaded on - 29/03/2014 18:56:37 ::: (26)W.P. No.9539/12, etc.
23. It further appears that respondent no.2, taking shelter of the Government decision dated 25.10.2012, has decided to advertise 423 posts of Data Entry Operators to be filled in on contract basis, though there is no mention about the same in the Government decision dated 25.10.2012.
24. The perusal of the procedure to be followed for the purpose of carrying out a fresh recruitment process for filling up 423 posts (397 old + 26 new) of Data Entry Operators indicates that it is identical to that of the procedure followed while carrying out recruitment of Data Entry Operators vide Government Resolution dated 10.2.2010. It is worth to observe here that the qualification of the candidates whose candidature is to be considered for the purpose of appointment as Data Entry Operator, the recruitment procedure that is required to be undertaken, the advertisement, the constitution of selection committee, the weightage of marks, etc. is identical to that of the 2010 decision of the Government under which the petitioners were appointed.
25. Except that of creation of additional 26 posts of the Data Entry Operators at the Municipal Corporation level, nothing has changed but for some vacancies occurred because of the services left by the Data Entry Operators appointed in 2010.
::: Downloaded on - 29/03/2014 18:56:37 ::: (27)W.P. No.9539/12, etc.
26. It is further worth to mention here that just because the number of posts are increased, it was not the intention of the State Government to advertise the posts of the Data Entry Operators which are occupied by the petitioners, at least no such material is placed on record by the respondents to demonstrate that either there was any direction from the Central Government or State Government to fill up the posts afresh.
Perusal of the Government decision dated 25.10.2012 of which shelter is taken by respondent no.2 for issuing the impugned communication, at least does not mention that the posts occupied by the petitioners are required to be re-advertised. In fact, what is provided in the Government decision dated 25.10.2012 is that the recruitment process for filling up the posts of Data Entry Operators created for the Municipal Corporations be initiated by the District Committees.
27. One more facet of the matter is that the intention of the Government or that of respondent no.2 appears to be to continue with the services of Data Entry Operators. At least the scheme which is floated by the Central Government contemplates such contractual appointments on the temporary posts. It further contemplates that appointment is to be given for a year.
::: Downloaded on - 29/03/2014 18:56:37 ::: (28)W.P. No.9539/12, etc.
28. The State Government thereafter continued the appointments of the Data Entry Operators who were appointed on temporary posts on contract basis. The perusal of the impugned communication reflects that the State Government is in need of the services of Data Entry Operators for the operation of the scheme and as such has sought to fill up the posts by giving fresh advertisement. If the State Government or respondent no.2 Director of Education is permitted to continue with the fresh process of selection of Data Entry Operators for the temporary posts on contract basis, the same shall be in violation of the rights guaranteed under Articles 14 and 16 of the Constitution of India. The observations made by the Division Bench of this Court in the case of Rajendra Vitthalrao Kamble (cited supra), more particularly paragraph 14 read thus :-
"14. In the case of Mohd. Abdul Kadir and another Vs. Director General of Police, Assam, and others ((2009) 6 SCC
611), the Supreme Court has found that the practice of giving artificial breaks in service is contrary to service jurisprudence. In that case, ex-servicemen were selected for appointment under the Prevention of Infiltration of Foreigners Additional Scheme, 1987 (For short, "PIF Scheme") for strengthening the Assam Government machinery for detection and deportation of foreigners. The PIF scheme was extended from time to time. The appellant, an ex-serviceman, who was selected and appointed as a Sub-Inspector on 1-9-1988. He challenged the Circular dated 17th March 1995 issued by the Inspector General of Police ::: Downloaded on - 29/03/2014 18:56:37 ::: (29) W.P. No.9539/12, etc. (Border) which stated that the appointments of ex- servicemen under the PIF Scheme were to be made on contract basis for a period of one year and 45 days before the expiry of one year termination notice was to be issued to every ad hoc employee and fresh appointments were to be made. The terminated employee, if he desired to continue, was required to make an application for fresh appointment. The appellant challenged his termination in pursuance of the circular as well this procedure of annual termination and re-appointment before the High Court. Single Judge allowed the petition but the Division Bench, on appeal, dismissed it. Allowing the appeal against the decision of the Division Bench, the Supreme Court held that artificial annual breaks and re-appointments introduced by the State agency entrusted with the operation of the PIF scheme was not valid."
29. It is further worth to rely upon the observations made by the Apex Court in the case of Md. Abdul Kadir & anr. (cited supra). Paragraph 3 of the said judgment reflects some what similar picture as that of in the present case. While dealing with the contention as regards protection of services of the petitioners in that case, in paragraph 8 of the said judgment the Honourable Apex Court has observed thus :-
"We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-::: Downloaded on - 29/03/2014 18:56:37 ::: (30)
W.P. No.9539/12, etc. appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues.
Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments. We are therefore of the view that the ::: Downloaded on - 29/03/2014 18:56:37 ::: (31) W.P. No.9539/12, etc. learned Single Judge was justified in observing that the process of termination and re-appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be quashed."
30. The explanation given by the State Government that the posts were required to be filled in for an year on contract basis and the petitioners might seek protection in service, cannot be a reason for discontinuation of the petitioners from the posts as they can be continued till the scheme is sponsored and continued by the Central Government and the State Government and petitioners satisfy the condition of recruitment of there is change in Recruitment Rules.
31. The reliance placed by the learned Assistant Government Pleader on the judgment of Secretary, State of Karnataka & ors. vs. Umadevi (3) & ors. (cited supra) has also taken note of the cases in which the employees were temporarily appointed without following due process of selection and in derogation to the rules of selection seeking the employment on permanent basis. The observations made by the Apex Court in the said judgment, more particularly in paragraphs 43, 45, 47 and ::: Downloaded on - 29/03/2014 18:56:37 ::: (32) W.P. No.9539/12, etc. 49, read thus :-
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an ::: Downloaded on - 29/03/2014 18:56:37 ::: (33) W.P. No.9539/12, etc. employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court ::: Downloaded on - 29/03/2014 18:56:37 ::: (34) W.P. No.9539/12, etc. were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.::: Downloaded on - 29/03/2014 18:56:37 ::: (35)
W.P. No.9539/12, etc.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the ::: Downloaded on - 29/03/2014 18:56:37 ::: (36) W.P. No.9539/12, etc. argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
In the present case, the petitioners have undergone the selection process undertaken by the State Government as per its policy. There is no objection to the recruitment process that has been undergone by the present petitioners. The petitioners are not claiming permanent status based upon their temporary employment or absorption or regularisation.
What is claimed by the petitioners is that they should be continued in employment till the scheme in question is continued or till there is a change in the requirement of the qualification under the scheme by the Central Government. The case of the petitioners is squarely covered by the judgment of Apex Court in the case of Mohd. Abdul Kadir (cited supra).
32. In that view of the matter, the reliance placed by the learned Assistant Government Pleader on the above referred judgment, is wholly misplaced.
::: Downloaded on - 29/03/2014 18:56:37 ::: (37)W.P. No.9539/12, etc.
33. As a result of above, writ petition deserves to be allowed.
The Writ Petition is accordingly allowed.
The impugned communication of ordering fresh recruitment for filling up 423 posts of Data Entry Operators on contract basis, to the extent of present petitioners, is quashed and set aside.
It would be open for the respondents to carry out recruitment process for filling up the posts of Data Entry Operators, which have become vacant on account of the services left by the appointees recruited earlier and the additional posts created by the State Government for each Municipal Corporation.
The petitioners are entitled to continue as Data Entry Operators on contract basis till the scheme sponsored by the Central Government continues. The petitioners shall not claim any permanency or equity out of their contractual employment as Data Entry Operators.
::: Downloaded on - 29/03/2014 18:56:37 ::: (38)W.P. No.9539/12, etc. Rule is made absolute in above terms.
In the circumstances, there shall be no order as to costs.
N.W. SAMBRE R.M.BORDE
JUDGE JUDGE
amj/wp9539.12
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