Disposed

Shri. Arun Uttareshwar Barbole v. State of Maharashtra and Ors.

Bombay HC30 Jul 2014WP/2020/2013

Case brief

AI extract

What is this about?

In a writ petition regarding service regularization, the High Court of Bombay acknowledged the petitioner could not prove lawful appointment procedures or benefit from post reductions. Instead of dismissal, it directed authorities to decide his surplus status.

What did the court decide?

Directed Director/Joint Director to consider declaring petitioner as surplus and communicate decision within six weeks.

Shri. Arun Uttareshwar Barbole Vs State of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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WRIT PETITION NO. 2020 OF 2013

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Shri Arun Uttareshwar Barbole.	...	Petitioner.
V/s.
State of Maharashtra Mantralaya & others.	...	Respondents.

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V.S.Deokar for the petitioner.

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A.I.Patel, AGP for respondent Nos.1 and 2.

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Ms.Meenal S. Deshmukh for respondent Nos.3 and 4.

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CORAM : NARESH H. PATIL AND RAVINDRA V. GHUGE, JJ.

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DATED : 30th July 2014.

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P.C. :

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The petitioner claims to be appointed as Peon in the year 1998 with respondent No.3 institute in place of Mr.Mulani who was already discharging duties as Peon. As the said person died, petitioner was appointed in his place. It is contended that the wife of the deceased had filed Writ Petition No.7369/1999. By judgment and order dated 19th August 2006, the Division Bench of this Court dismissed the said petition. It is submitted that special leave petition to appeal was filed before the Apex Court. By judgment and order dated 14th March 2008, the Apex Court dismissed appeal. Paras15, 16 and 17 of the said order read as under:

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"15. In this case, the respondent is a charitable institution. It is run on Government aid. It cannot afford to appoint persons in a post which has not been sanctioned. It has not been denied or disputed that one Arun Uttareshwar has already been appointed in place of the deceased husband of the appellant. It does not matter s to whether the said appointment has been approved by the State or nor inasmuch as it it had not been done, on the basis of the policy decision contained its is resolution dated 31st December 2002 the same cannot be considered to be of much significance, particularly, in view of the fact that the appellant's husband died as far back as on 16.9.1996 and the vacancy had been filled up in the year 1997.

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Furthermore, about 12 years have passed. Appellant's son is aged about 20 years and daughter is aged about 16 years. Therefore, they have become major. Appellant herself would be aged about 38 years now. She cannot be given any appointment at this age.

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Keeping in view the fact situation obtaining in this case, we are of the opinion that no case has been made out for exercising our discretionary jurisdiction under Article 136 of the Constitution of India. This appeal, therefore, is dismissed. No costs."

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Thereafter the present petitioner preferred petition before this Court being Writ Petition No.6386/2012. By order dated 16th July 2013, the Division Bench of this Court disposed of the said petition with direction to the Joint Director to hear the petitioner and take final decision on the prayer of the petitioner that approval be granted to his service. By communication dated 25th October 2012, the Joint Director opined that in

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view of Government Resolution dated 22nd May 2008 the sanctioned post applicable to the school got reduced and, therefore, the petitioner's services could not be approved. This communication was again challenged by the petitioner by filing present petition.

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Learned counsel for the petitioner submits that the petitioner was appointed by the School management by following necessary procedure under the M.E.P.S. Act. During the period from 2000 to 2006 he was out of service as the wife of deceased Mulani had approached this Court and interim orders were operating against the petitioner. It is the submission of learned counsel that if the department was unwilling to grant approval to regular appointment to the petitioner then he may at least be declared as surplus.

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Affidavit in reply has been filed by respondent Nos.1 and 2. It is the stand of the respondents that the petitioner was working on temporary basis and at no point of time he was made regular/permanent. As per Government Resolution dated 22nd May 2008, one post has been reduced. Therefore the petitioner's services could not be regularized. The deponent has further contended that approval to the petitioner's services was given on temporary basis from 200607 to 200708. Learned A.G.P. submits that the Head Master of the institution was unable to make out whether the petitioner was appointed by following proper procedure. Except the entries in the muster register, the Head Master could not produce any relevant record to demonstrate that the petitioner's appointment was made in accordance with law.

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We have perused the judgment and order passed by this Court as also the judgment delivered by the Apex Court. We have also perused the order dated 16th July 2012 passed in Writ Petition No.6386/2012.

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We do not find any cogent or reliable material on record placed in the earlier proceedings or before this Court in the present petition demonstrating that the petitioner was appointed in accordance with the procedure established by law. Admittedly, the petitioner was out of service from 2000 to 2006. It is submitted that the petitioner is continued in service by the management. The Joint Director has refused to accord approval to the petitioner's services on account of Government Resolution dated 22nd May 2008.

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The learned counsel for the petitioner has pressed into service alternate request that in case he is declared surplus then at least the petitioner would be in a position to get some benefits as he is now age barred to get any other service. While passing the order dated 10th April 2013, the Division Bench had expressed similar view in the facts of the case. It is a matter of fact that the petitioner has been agitating his grievances since last several years and approached this Court twice as petitioner and was party to one more writ petition as respondent.

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In the peculiar facts of the case, we are of the view that though the petitioner is not in a position to make out convincing case

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regarding grant of approval to his services rendered so far with respondent No.3, but still the Director/ Joint Director would consider as to whether the petitioner could be termed as surplus. We direct the Director/ Joint Director to look into this aspect of the matter as per the directions given by us and take appropriate decision in accordance with law and communicate the same to the petitioner within a period of six weeks from the date of receipt of this order.

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With the aforesaid observation and direction, petition is disposed of.

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(RAVINDRA V. GHUGE, J.) (NARESH H. PATIL, J.)

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Sanjay Nanoskar, P.S..

Shri. Arun Uttareshwar Barbole v. State of Maharashtra and Ors.

Case brief

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Shri. Arun Uttareshwar Barbole v. State of Maharashtra and Ors.

Case brief

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