Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8344 OF 2023
1. Shrikisan Narayanrao Solanki
Age 38 years, Occ. Service, Working as Asst. Teacher in Z.P. School
Kakole-Ambernath, Dist Thane
R/at. C-Wing, Shree Pushpam Society, Karjat Road, Badlapur (E), Thane 421503
2. Swapnil Bibhishan Dhas
Age 36 years, Occ. Service, Hingangaon. Tq. Igatpuri, Dist. Pune
R/at. Pimpalgaon, Dhas, Barshi, Dist. Solapur 413401
3. Prashant Radhakrishna Bire
Age 36 years, Occ. Service, Working as Asst. Teacher in Z.P. School, Nimonicha Mala, Tal. Sinnar, Dist. Nashik
R/at. Post Manegaon, Tal. Sinnar, Dist. Nashik 422103.
4. Manoj Sadashiv Dalavi
Age 40 years, Occ. Service
Deodaithan, Jamkhed, Dist. Nagar
R/at Mundekar Wadi, Limpangaon,
Age 38 years, Occ. Service, (P.M.Shri) Kakatwa, Ambernath, District Thane
R/at. Vadgaon, Savtal, Wankute Road, Dist. Ahmednagar 414113
6. Ranjit Ravikiran Shende
Age. 34 years, Occ. Service
Working as Asst. Teacher in Z.P. School, R/at Post Chincholi, Tal. Madha, Dist. Solapur-413208
7. Deepak Devidas Pagar
Age. 42 years, Occ. Service
Harichiwadi, Tal. Trimbakeshwar, Dist. Nashik
R/at. Plot No. 125 Vastalya Niwas
Nagre Mala Indira Nagar Nashik 422009
8. Suhas Shivaji Patil
Age. 35 years, Occ. Service
Working as an Assistant Teacher in
ZP School, Kanoli
R/at. PO. Aknur, Tal - Radhanagari, Dist-Kolhapur, 416212
9. Arvind Keshav Gosavi
Age. 33 years, Occ. Service
Working as an Assistant Teacher
In ZP School, Nashik
R/at. PO. Bhakshi Road, Sharad Nagar, Satana, Tal-Baglan, Dis. Nasik katkam 2/17
Age. 35 years, Occ. Service
R/at. Unchamali, Samatanagar, At post Tal - Shirol, Dis Kolhapur 416103 ...Petitioner
2 The Secretary
Maharashtra Public Service Commission
Trishul Gold Field, Plot No. 34, Sector 11, Opp. Sarovar Vihar, Belapur CBD, Navi Mumbai – 400614. ...Respondents
…
1. Sareeka Sonyabapu Gonte
Age. 38 years, Occ. Service, R/at. Plot No. 35, Radhika Nagar, Nr. Forest Colony, Vilaspur Satara, Tq. Satara, Dist. Satara
2. Mr. Amol Jagannath Shinde
Age. 38 years, Occ. Service, R/at. Post Kaudgaon, Post. Ambejawalge, Tq. Dist. Osmanabad
3. Mr. Shital Udhav Daware
Age. 43 years, Occ. Service, R/at. Post Achler, Tq. Lohara, Dist. Osmanabad – 413602 ...Petitioners katkam 3/17
2 The Secretary
Maharashtra Public Service Commission
Trishul Gold Field, Plot No. 34, Sector 11, Opp. Sarovar Vihar, Belapur CBD, Navi Mumbai – 400614. ...Respondents
…
Mr. Sandeep Dere for the Petitioners in both WPs.
Mr. B.V. Samant, AGP for Respondents-State in both WPs.
…
JUDGMENT
2 These two Petitions challenge common judgment and order dated June 21, 2023 passed by the Maharashtra Administrative Tribunal (Tribunal) in Original Application Nos.327 of 2022 and 344 of 2022. The Original Applications were instituted by Petitioners seeking a declaration that they are eligible for participation in further selection process of Limited Departmental Competitive Examination 2017 (LDCE) for promotion/appointment to the post of Deputy Education Officer. By the impugned common judgment and order, the Tribunal has proceeded to dismiss the Original Applications.
3 Briefly stated, facts of the case are that – Petitioners are working on the post of Assistant Teacher in various Primary Schools run and managed by Zilla Parishads. The School Education and Sports Department of the Government of Maharashtra notified the Deputy Education Officer in the Maharashtra Education Service, Group-B (Administrative Branch) (Gazetted) (Recruitment) Rules, 2016 (Recruitment Rules 2016) vide Notification dated July 5, 2016. Under the Recruitment Rules, the post of Deputy Education Officer is to be filled by promotion, LDCE or nomination. The method of LDCE is further bifurcating into two streams viz. persons holding designated posts in Maharashtra Education Services (MES) and persons holding designated posts in District Technical Services (DTS). katkam 5/17
4 In pursuance of the Recruitment Rules, a circular was issued by the State Government on May 17, 2017 proposing to fill-up 123 posts of Deputy Education Officer, which were bifurcated into 31 posts allotted for MES stream and 92 pots allotted for DTS stream.
5 By letter dated May 19, 2017 the Directorate of Education clarified that Assistant Teachers working in Primary Schools of Zilla Parishads are not eligible to participate in LDCE 2017. Petitioners applied in pursuance of the circular and it appears that they were issued admission certificates. They accordingly participated in the written examination.
6 Some Primary Teachers working in Zilla Parishad Schools were aggrieved by the clarification issued by Directorate of Education on May 19, 2017 holding them ineligible for LDCE 2017 and filed Original Application No.634 of 2017 before the Tribunal. The Original Application was allowed by judgment and order dated October 4, 2018 holding that since the post of Primary Teacher is a feeder cadre for appointment by transfer to the District Technical Services (Class III) (Educational), Grade-II, it forms a part of DTS. The Tribunal therefore directed that Primary Teachers who are serving in employment of Government of Maharashtra and holding the requisite qualification are declared eligible to participate in LDCE 2017. Later, the words “Primary Teachers who are serving in employment of Government of Maharashtra katkam 6/17 and” came to be replaced by the words “Applicants”. Thus the benefit of the judgment and order dated October 4, 2018 was restricted to the Applicants therein. The Review Petition filed by the State Government against that judgment and order came to be rejected by order dated February 1, 2019.
7 Petitioners had already participated in their written test of LDCE
2017. On April 1, 2023 Respondents published result of the written test. Cut off marks against various categories for calling the candidates for interview were also declared. Cut off marks in Open General category was declared as 150. It appears that Petitioners secured more than the cut of marks of 150. However, in the list of eligible candidates for appearing in the interview, the names of Petitioners were missing. Since Petitioners were declared ineligible to participate in the further selection process, they approached the Tribunal by instituting Original Application Nos.327 of 2022 and 344 of 2022.
8 Before decision of Petitioners’ Original Applications, similar Original Application came to be instituted by Assistant Teachers working in Zilla Parishad Schools before Nagpur Bench of the Tribunal in Original Application No.391 of 2022. By its judgment and order dated July 25, 2022, the Nagpur Bench of the Tribunal held that the earlier judgment and order of the Tribunal dated October 4, 2018 was not in katkam 7/17 rem but in personam. It accused Applicants of Original Application No.391 of 2022 of delay and accordingly proceeded to dismiss Original Application No.391 of 2022. The Principal Bench of the Tribunal felt bound that the decision of its co-ordinate Bench in Original Application No.391 of 2022 and therefore proceeded to dismiss Petitioners’ Original Applications by common judgment and order dated June 21, 2023. Shortly after dismissal of Petitioners’ Original Application, the Applicants before Nagpur Bench of the Tribunal in Original Application No.391 of 2022 approached this Court, Bench at Nagpur by filing Writ Petition No.5059 of 2022 and by order dated June 23, 2023 this Court was pleased to permit the Petitioners therein to participate in the interview process.
9 Under this background Petitioners have challenged the common judgment and order dated June 21, 2023 passed in Original Application Nos.327 of 2022 and 344 of 2022 in the present Petitions.
10 Appearing for the Petitioners Mr. Dere, the learned counsel would submit that Petitioners are similarly situated to the Applicants of Original Application No.634 of 2017 and the Tribunal erred in not extending same benefits to them. He would further submit that the Tribunal actually wanted to allow Petitioners’ Original Application but felt bound by the decision taken by the co-ordinate Bench at Nagpur in Original katkam 8/17 Application No.391 of 2022. That the Applicants of Original Application No.391 of 2022 are permitted to participate in the interview process on account of interim order passed by the Nagpur Bench of this Court. Thus, the order passed by Nagpur Bench of the Tribunal in Original Application No.391 of 2022 has not attained finality and is subject matter of challenge before this Court, Bench at Nagpur.
11 Mr. Dere further submits that Petitioners otherwise meet the eligibility criteria prescribed in the Recruitment Rules that the post of Assistant Teacher is specifically included in Part-II of Schedule-B as forming part of DTS, (Group C) (Non-Gazetted).
12 Per contra, Mr. Samant, the learned AGP appearing for the Respondent-State would oppose the Petition and support the impugned judgment and order passed by the Tribunal. He would submit that Petitioners do not fulfill the eligibility criteria specified in the Recruitment Rules. That the relief granted by the Tribunal in its earlier decision dated October 4, 2018 was specifically restricted to the Applicants therein. That the Original Application was barred by principles of delay and laches. Alternatively, Mr. Samant would submit that Petitioners initially applied under the stream of MES and now want to take disadvantage of the judgment and order of the Tribunal dated October 4, 2018 by claiming that now they are part of DTS. That katkam 9/17 Petitioners cannot now be permitted to switch their stream from MES to DTS. He would pray for dismissal of the Petitions.
14 The short issue that arose for consideration of the Tribunal and which again arises for our consideration is whether Petitioners are eligible to participate in the LDCE 2017 convened vide circular dated May 17,
2017. The method of filling of the posts of Deputy Education Officer and the exact eligibility criteria is specified in the Recruitment Rules, 2016. It would be relevant to refer some of the relevant provisions of the Recruitment Rules, 2016: “(e) “District Technical Service Group-C” means the District Technical Service, Group-C under the control of Zilla Parishad and it includes the posts mentioned in Part II of Schedule B appended to these rules;” “(h) “Maharashtra Education Service, Group-C” means the Maharashtra Education Service, Group-C which includes the posts included in Part I of Schedule B appended to these rules;” “3. Appointment to the post of Deputy Education Officer in the Maharashtra Education Service, Group-B (Administrative Branch) (Gazetted) shall be made either,- (A)(1) by promotion of a suitable person on the basis of seniority, subject to the fitness, from amongst the persons holding the post of Maharashtra Education Service, Group-C, having not less than five years of regular service in that post; and (2) by promotion of a suitable person on the basis of seniority, subject to the fitness, from amongst the persons holding the post of District Technical Service, Group-C, having not less than five years of regular service in that post; katkam 10/17 or (B)(1) by selection of a suitable person on the basis of merit list prepared on the basis of Limited Departmental Competitive Examination to be held by the Commission from amongst the persons holding the post of Maharashtra Education Service, Group-C, having not less than five years of regular service in that post; and (2) by selection of a suitable person on the basis of merit list prepared on the basis of Limited Departmental Competitive Examination to be held by the Commission, from amongst the persons holding the post of District Technical Service, Group-C, having not less than five years of regular service in that post; or
(C) by nomination on the basis of the result of Competitive
(i) are not more than thirty eight years of age; relaxation of five years in case of candidates belonging to the reserved categories; and
(ii) possess a degree of any statutory university or any other qualification declared by the Government to be equivalent thereto.” “Schedule-B Part-I Maharashtra Education Service, Group-C (Non gazetted) Sr. No. (1)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14. Assistant Education Inspector. Administrative Officer, Municipal Corporation. Science Supervisor. Co-ordinator. Technical Assistant. Subject Specialist. Subject Assistant or Special Teacher. Counsellor. Assistant Project Officer. Programme Officer. Lecturer (Government Junior College). Extension Officer (State Council of Education Research and Training). District Science Supervisor. Assistant Teacher (Government D.Ed College). katkam 11/17 Part-II District Technical Service, Group-C (Non gazetted) Sr. No. (1)
1.
2.
3.
4.
5. Assistant Teacher. Head Master (Non Gazzated). Lecturer (Junior Colleges). Extension Officer (Junior). Secondary Teacher.
15 Thus, the post of Deputy Education Officer in the MES, Group-B, (Administrative Branch), (Gazetted) is to be filled by three methods of promotion, LDCE and nomination. Since we are not concerned with the methods of promotion and nomination, we may concentrate on the method of LDCE. The method of LDCE is further bifurcated into two streams of MES and DTS. MES means Maharashtra Education Services comprising posts included in Part-I of Schedule-B appended to the Rules. Thus under MES stream 14 posts stated in Part-I of Schedule-B are included. These are essentially non-teaching staff working in Government and Semi-Government Organizations. DTS has been defined to include those working under the control of Zilla Parishad and five posts are mentioned in Part-II of Scheduled-B. These are essentially teachers working in Zilla Parishad Schools. The posts of Assistant Teachers in Zilla Parishad Technical Services is specifically included as katkam 12/17 forming part of the DTS, Group-C. We therefore, do not see any reason why Assistant Teachers working in Zilla Parishad Schools cannot be included as a part of DTS, Group-C within the meaning of the Recruitment Rules.
16 The possible objection was that the words “District Technical Services, Group-C” are not reflected in the provisions of Maharashtra Zilla Parishad (District Services) Recruitment Rules, 1967, on account of which an anomaly has been created. This anomaly has been partly resolved by the Tribunal by its judgment and order dated October 4, 2018 in Original Application No.634 of 2017 wherein it is held that “District Technical Services, Group-C” and “District Technical Services (Class-III) (Educational)” specified under the provisions of the Maharashtra Zilla Parishad (District Services) Recruitment Rules, 1967 are one and the same.
17. The Tribunal was thereafter required to decide the next question as to whether Primary Teachers working in Zilla Parishad Schools can be treated as part of “District Technical Services, (Class III), (Educational)”. This difficulty was faced essentially on account of the fact that the provisions of the Zilla Parishad Recruitment Rules specify the post of “Assistant Secondary School Teachers” which appear to be different than Primary Teachers. The Tribunal therefore, considered the rules under katkam 13/17 which the post of Assistant Secondary School Teacher could be filled up and arrived at a conclusion that a Primary Teachers could be appointed by transfer to District Technical Services, (Class-III) (Educational). On account of this, the Tribunal arrived at conclusion that Primary Teachers working in Zilla Parishad Schools who fulfilled the prescribed qualification and eligibility prescribed in column 4 of Appendix IV of Part-I of Zilla Parishad Recruitment Rules, 1967 to be eligible for participation in the LDCE 2017 for promotion/appointment to the post of Deputy Education Officer. We reproduce the method of filling up the posts in District Technical Service (Class III) Grade II (Educational) in the Maharashtra Zilla Parishad (District Services) Recruitment Rules, 1967 as under: “(b) temporary transfer of suitable persons from among Assistant Teachers in District Technical Service (Class III) (Educational) and from amongst Primary School Teachers and Masters in District Service (Class III) (Subordinate Educational) who:-” (emphasis supplied)
18 Thus not only Primary Teachers but also Assistant Teachers can be appointed on transfer in the District Technical Services (Class-III) (Educational). Once Primary Teachers in Zilla Parishad Schools are held by the Tribunal as eligible to participate in the LDCE 2017, we see no reason why Assistant Teachers in Zilla Parishad Primary Schools cannot be held so eligible. We accordingly hold that Petitioners are eligible to participate in LDCE 2017. katkam 14/17
19. It appears that the Tribunal itself wanted to take a view different than the one taken by the Nagpur Bench Tribunal in Original Application No.391 of 2022. This is clear from following observations made by the Tribunal in para 5 of the impugned judgment and order dated June 21, 2023: “5. In fact, we are of the view that issue decided in OA No.634/2017 & group matters on 4.10.2018 in favour of the eligibility of primary teachers working in ZP is correct one and no stay is granted by the Hon'ble High Court. So it holds the field. Though, we had a different interpretation of the order passed in R.A 21/2018 in O.A 634/2017, regarding relief in persona, we cannot go by our interpretation as the Division Bench of the M.A.T, Nagpur Bench has earlier decided this issue. …. …....” (emphasis supplied)
20 It appears that the Tribunal felt bound by the decision taken by its Nagpur Bench in Original Application No.391 of 2022. We, however of the view that the Original Applications instituted by Petitioners were within limitation. The cause of actions of filing the Original Applications by the Petitioners arose on April 1, 2022 when they were impliedly declared ineligible by not including their names in the list of eligible candidates. Though the selection process was initiated vide circular dated May 17, 2017, the Petitioners were allowed to participate therein. They appeared in the written test and their result has also been declared. Therefore, there was no reason for Petitioners to feel aggrieved before April 1, 2022. Since the cause of action arose on April 1, 2022, Original Applications filed by them were perfectly by within limitation. katkam 15/17
21. The Tribunal therefore ought to have extended the benefit of judgment and order dated October 4, 2018 passed in Original Application No.634 of 2017, to the extent of its application. We have already held that the Tribunal was concerned with eligibility of Primary Teachers working in Zilla Parishads while deciding Original Application No.634 of 2017. Though Petitioners before us work on the post of Assistant Teacher, the reasoning of the Tribunal adopted in judgment and order dated October 4, 2018 would squarely apply to the case of the Petitioners as well.
22 As observed above, both the posts of “Assistant Teachers” and “Primary School Teachers” are eligible for appointment by transfer in District Technical Services (Class-III) (Educational) which is equated with District Technical Services, (Class-C) within the meaning of Recruitment Rules, 2016 by the Tribunal. The Tribunal therefore, ought to have granted Petitioners similar benefits on lines with its judgment and order dated October 4, 2018 passed in Original Application No.634 of
2017.
23. What remains now is to deal with submission of Mr. Samant that Petitioner initially applied through MES stream and are now attempting to switch to DTS stream. We do not find from the applications submitted by Petitioners that they had applied as a part of MES stream. They did katkam 16/17 specify in the applications that they are working as ZP Teachers. The teaching staff of ZP falls only in Part-II of Schedule B (District Technical Services) of the Recruitment Rules, 2016. We therefore have no manner of doubt that Petitioners applied for LDCE through DTS cadre and their cases are required to be considered only against 91 posts advertised for DTS cadre. The objection of the State Government in this regard is therefore repelled.
24. Petitioner are therefore eligible to participate in LDCE-2017 for appointment to the post of Dy. Education Officer and their cases are required to be considered against vacancies reserved for DTS stream.
25 We accordingly proceed to pass the following order: O R D E R i) Impugned judgment and order of the Tribunal dated 21 June 2023 is set aside. Petitioners are declared eligible to participate in the Limited Departmental Competitive Examination for promotion/appointment to the post of Deputy Education Officer through the District Technical Services Stream. Petitioners are permitted to participate in the interview process scheduled to be held from 11 July 2023 to 14 July 2023. ii) With the above directions, the Writ Petitions are allowed. Rule is made absolute.
SANDEEP V. MARNE, J. DHIRAJ SINGH THAKUR, J. katkam 17/17