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CIVILAPPELLATE JURISDICTION
CIVIL WRIT PETITION NO.557 OF 2023
1 Ambare Arvind Gopinath
Residing at – Lingadevi, A/p –
Lingadev, Tal- Akole, District Ahmednagar
Pin-422610 ...Petitioner
2 The Education Officer (Secondary)
Pune Zilla Parishad, Pune.
3 The Deputy Director of Education
Pune Division, Pune – 30
4 The President / Secretary, Gramvikas Mandal, Otur
At Post-Ottur, Tal-Junnar, District – Pune 412409 ...Respondents
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Mr. Mandar Bagkar for the Petitioner.
Mrs. M. P. Thakur, AGP for Respondent Nos.1, 2 & 3.
Mr. Vinayak Kumbhar for Respondent Nos.4.
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ORAL JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally with the consent of the Parties.
2. The Petitioner has put forth prayer clauses (a) and (b), which read as under: “A) That this Hon'ble Court under its Civil Appellate Extra Ordinary Territory Writ Jurisdiction under Article 226 and 227 of Constitution of India 1950, be pleased to quash and set aside the order dated 2/5/2022 passed by the Respondent No. 2 Education Officer, Zilha Parishad Pune, whereby the proposal of the present Petitioner is Rejected. Thus further by issuing Writ of Mandamus or any other Appropriate Writ Direction, direct the Respondent No. 2 Education Officer to grant the approval to the present Petitioner's proposal dated 20/11/2019 with all benefits which he is entitled as Peon in the Aided School from his appointment. B) That this Hon'ble Court under its Civil Appellate Extra Ordinary Territory Writ Jurisdiction under Article 226 and 227 of Constitution of India 1950, be pleased to direct respondent no.3 to issue Shalarth Id after approval to the appointment of the petitioner by respondent no.2. ”
3. The Management, Respondent No.4, purportedly moved an application for seeking permission to publish an advertisement, on 5th June, 2013 wherein five posts were sought to be filled. Out of the two posts of Junior Clerks, one post was reserved for ST; from the two posts of Lab Assistants, one post each was reserved for NT & OBC; and one post of Peon was reserved for OBC.
4. We find from the record that the request letter dated 05.06.2013 for granting permission to publish an advertisement and fill up the posts, was never served upon the Education Officer. The Management cannot show an acknowledgment of receipt from the office of the Education Officer. The request letter which is received by the Eduction Officer on 5th June, 2013 pertains to the appointment of teachers.
5. It is the contention of the Management that the Education Officer did not grant permission for publishing an advertisement. This argument can be negated on two grounds. Firstly, no Application for seeking permission was tendered to the Education Officer. Secondly, assuming for the sake of assumption that such an Application was tendered on 5th June 2013, the advertisement was published by the Management, immediately on 7th June, 2013 in daily Lokmat, meaning thereby that the Management approached daily Lokmat on either 05.06.2013 or on 06.06.2013 and got the advertisement published on 7th June, 2013. The Management appears to have moved with electric speed. Even if the Application dated 5th June, 2013 is presumed to have been tendered to the Education Officer, there was hardly any time for him to even think and pass an order either granting or refusing permission.
6. Another glaring factor is before us. On 14th June, 2013, the Management decided to appoint the Petitioner as a Peon. He belongs to the OBC category. On 15th June, 2013, the Petitioner was appointed as a Peon. In the pleadings, in paragraph 4, the Petitioner avers that the Management passed a Resolution on 14th June, 2013 to appoint the Petitioner, on the same day the interviews were held and a resolution was passed immediately.
7. The appointment order dated 15th June 2013, does not even mention as to whether the Petitioner was interviewed. The opening sentence in the order indicates that, with reference to the Application dated 15th June, 2013 filed by the Petitioner, he was appointed as a Peon on 15th June, 2013, with effect from 15th June,
2013. In the pleadings, it is averred that the Petitioner was selected and appointed on 14th June, 2013, he immediately joined duties on 14th June, 2013, after office hours.
8. The Head Master of Pushpavati Vidyalaya, Dingore, Taluka Junnar, District Pune, issued letter dated 14th June, 2013 to the President of the Educational Trust mentioning therein that the Petitioner has reported for duties and he was allowed to join duties on 15th June, 2013. If the Petitioner joined on 15th June 2013, how did the Head Master issue a joining report to the President of Institution on 14th June 2013, stating that the Petitioner has joined on 15th
9. We have perused the impugned order passed by the Education Officer (Secondary) dated 2nd May 2022, rejecting the proposal seeking approval for the appointment of the Petitioner. In the backdrop of the impugned order, we have perused the revised proposal dated 1st February 2021, tendered by the Management to the Education Officer, wherein it is stated that the following documents have been filed with the Education officer:- १) प्रपत्र अ २) सेवक संच नि नि चती पत्र ३) नि ंदू नि यमावली ४) जानि रात ५) संयुक्त शालेय समन्वय सनिमती ठराव ६) निरक्त पदांचा तपनिशल ७) न्यायप्रनिवष्ठ सल्याचे मीपत्र ८) रुजू निरपोर्ट* ९) शैक्षनि.क कागदपत्रे
10. Insofar as the staffing pattern is concerned, it appears that the Management has tendered the same with the revised proposal dated 1st February, 2022. With regard to the roster reservation (commonly known as “ ” नि ंदू नि यमावली ), the same also appears to have been tendered. With regard to the advertisement, the Management has published the advertisement in daily Lokmat without the prior permission of the Education Officer.
11. The impugned order clearly concludes that a proper selection process was not conducted by the Management. On perusing the record before us, we are also seriously doubtful as to whether such selection process was scrupulously conducted in the light of the above discussion with regard to the Application for employment of the Petitioner, his selection, his appointment, his joining, etc. These factors discussed above are glaring.
12. With regard to the reservation roster, the post of the Petitioner was reserved for OBC category. It is undisputed that the Petitioner belongs to the OBC category.
13. The objection of the Education Officer as regards the Govt. Resolution dated 28th January 2019, pertaining to the staffing pattern, we find the said objection to be unsustainable since the Petitioner is said to have been appointed on 14th or 15th
14. In the light of the above, we find that there are glaring infirmities and the deficiencies in the selection process conducted by the Management. Scant respect has been shown to the recruitment rules and the procedure. Without seeking permission for publishing the advertisement and for recruitment, the advertisement was published on 7th
15. Therefore, the only issue that begs for a decision is as to whether the Petitioner is at fault. He read the advertisement and applied for the post of a Peon which was reserved for the OBC category. The Management, in a weird manner, selected the Petitioner and appointed him. His educational qualification is H.S.C. qualified. We do not find that we can hold him responsible for the serious irregularities committed by the Management. If a strict view is to be taken, the Petitioner is likely to lose his employment.
16. The learned Advocate for the Petitioner submits that the Management has been paying paltry amounts in cash to the Petitioner, intermittently, towards stipend. For twelve years, he survived on paltry amounts and continued on the hope that some day, he would get an approval and regular salary scale, keeping in view that the Management’s school is ‘grant in aid’. As such, the blame could be placed upon the Management for the serious infirmities as discussed above.
17. In view of the above, this Petition is partly allowed. The impugned order is set aside and we direct the Education Officer (secondary) to pass a formal order of granting approval to the appointment of the Petitioner from 15th June, 2013. Insofar as arrears of salary are concerned, we direct the Education Officer to calculate the salary of the Petitioner for three years preceding the date of the filing of the Petition and the said amount, in accordance with the scale applicable to the post of the Petitioner, would be paid to the Petitioner within a period of 60 days from today.
18. Insofar as the conduct of the Management is concerned, we could have taken a strict view. Since this is the first case of this kind pertaining to the Respondent Management, namely Gramvikas Mandal, Otur, Post Otur, Taluka Junnar, District Pune, that we are imposing costs of Rs.1,00,000/-. Since the Petitioner has been working on paltry amounts, and has been intermittently paid in cash, with no evidence of payment of salary, the said amount of Rs.1,00,000/- shall be deposited by the Management in this Court within 21 days from today and we grant leave to the Petitioner to withdraw the said amount by tendering his Bank account details. The Registry shall transfer the said amount in the Bank account of the Petitioner, through the digital process.
19. We warn the Management, that it should not recover this amount of Rs.1,00,000/- from the Petitioner. The arrears of salary also be directly credited in the Bank account of the Petitioner.
20. We record that if this Management indulges in any further acts of this nature by carrying out recruitment de-hors the Rules or the Pavitra Portal, the State would be at liberty to initiate process for transfer of Management.
21. Rule is made absolute in the above terms. (ABHAY J. MANTRI, J.) (RAVINDRA V. GHUGE, J.)