Disposed

Babu Thawara Chavan v. State of Maharashtra and Others

Bombay HC5 Sept 2018WP/2875/2015

Case brief

AI extract

What is this about?

The High Court examined the Recruitment Rules governing the education department regarding the vacancy for the post of Office Superintendent. The court held that appointments must be made through a 50:50 ratio of promotion and nomination. It directed respondents to decide within three months whether to fill the post by promotion or nomination, with the petitioner being considered eligible for both

What did the court decide?

Respondents directed to decide within three months whether the vacant post is to be filled by promotion or nomination; petitioner to be considered for both if applicable.

Babu Thawara Chavan Vs State of Maharashtra… — Pension and Retirement Benefits | Bombay HC (2018)

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(1)

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WP-2875-2015

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.2875 OF 2015

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Babu S/o Thawara Chavan
Age:- 50 years, Occu:- Service
R/o. Kumar Niwas, Tilak Nagar Road,
Peer Nagar, Nanded...PETITIONER

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VERSUS

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(1) The State of Maharashtra, Through Secretary Higher and Technical Education Department, Mantralaya, Mumbai;

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(2) The Director of Technical Education, 3, Mahapalika Marga, VT, Mumbai – 400 001;

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(3) The Deputy Director of Higher and Technical Education, Divisional office at Aurangabad;

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(4)Principal,
Sharda Bhavan Education Society's,
Nanded Pharmacy College, Sham Nagar,
Nanded...RESPONDENTS

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Ms. Prakashsingh B. Patil, Advocate for the
Petitioner.
Mr. K. N. Lokhande, AGP for Respondent Nos.1 to 3.

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CORAM : S. V. GANGAPURWALA &
 SUNIL K. KOTWAL, JJ.

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Closed for Orders on :30.07.2018.

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Order Pronounced on :05.09.2018.

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(2) WP-2875-2015

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FINAL ORDER (Per S. V. Gangapurwala, J.) :-

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1.The petitioner assails the order dated
21.04.2014 passed by Respondent No.2 thereby
directing that the post of Office Superintendent
shall be filled in by nomination and not by
promotion.

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2.The petitioner claims to be working as an
Account Clerk with effect from 01.04.1996 with
Respondent No.4-Institution. In the year 2014, the
post of Office Superintendent became vacant on
account of the retirement of the person working on
the said post. The petitioner seeks promotion to
the post of Office Superintendent.

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3.Mr. Patil, learned counsel for the
petitioner submits that the petitioner possess the
educational qualification for the post of Office
Superintendent. The post of Office Superintendent
is available for promotion to the petitioner, but
the Respondent No.2 has given directions to
Respondent No.4-College to fill up the said post by
direct recruitment under order dated 21.04.2014,
the same is illegal. The learned counsel submits
that employees of other institutions who were
working as an Account Clerk have been promoted as
Office Superintendent, while petitioner is deprived
of the same. According to the learned counsel the
pay scale of an Account Clerk and Junior Clerk cum
Typist is same. The Office Superintendent would be

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(3) WP-2875-2015

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promotional post for the persons working as Clerk
cum Typist and/or Account Clerk. According to the
learned counsel, a person namely Mr. Laxman
Kulkarni was working as an Account Clerk and was
promoted as Office Superintendent on 25.04.2007 in
Shivaji Institute of Pharmacy. The Petitioner is
discriminated.

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4.The learned A.G.P. submits that the
petitioner was initially appointed as a Peon and
was promoted as an Account Clerk on 01.04.1996, as
he acquired a prescribed educational qualification.
The petitioner is given benefit of time bound
promotion scheme after completing 12 years service
on the post of Account Clerk. The staffing pattern
in the Government Aided Diploma Pharmacy Institute
has been revised under Government Resolution dated
01.04.2004. In the revised staffing pattern, the
posts of Senior Clerk are abolished and instead of
that Office Superintendent Class-III post is newly
created. The post of Office Superintendent with
Respondent No.4 is vacant. The post of Office
Superintendent is single post. When the post was
newly created, it was filled by senior most
employee on the post of Senior Clerk, who possessed
the required qualification as well as seven years
experience on the post of Clerk. He was
superannuated, then alternatively the post of
Office Superintendent is required to be filled by
nomination. The petitioner is not working on the
supervisory post. The post of Office

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(4) WP-2875-2015

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Superintendent is to be filled alternatively by
promotion and nomination. The promotion of Mr.
Kulkarni with Shivaji Institute of Pharmacy was as
a special case, wherein the persons of other posts
were required to be absorbed. The learned A.G.P.
further submits that the appointment to the post of
Office Superintendent is governed by the
Recruitment Rules, 1964 and the feeder cadre for
the post of Office Superintendent is provided in
those Rules. As the Petitioner is just an Account
Clerk and the same is equivalent to Junior Clerk,
he cannot be considered for the promotion of Office
Superintendent.

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5.We have considered the submissions
canvassed by the learned counsel for the respective
parties.

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6.The appointment of a suitable person for
the post of Office Superintendent is governed by
the Recruitment Rules framed and sanctioned by
Government under Resolution dated 09.10.1964. The
said Rules reads thus:-

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“Recruitment Rule for the post of
Superintendent in the office of the
Directorate of Technical Education.

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Appointment to the post shall be made
either

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(a)by promotion of a suitable person from
the clerical staff under the department of
Technical Education as a whole.

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OR

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(b)By nomination from among candidates who:

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(5) WP-2875-2015

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(i)Unless already in the service of the
Government of Maharashtra are not more than
28 years of age and

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(ii)Possess bachelor's degree in Arts,
Sciences, Commerce or Law of a recognized
University and have experience for not less
than three years in administrative matters
and/or accounts work in a Government office
or Undertaking or a big commercial
establishment.

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OR

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(iii)have passed S.S.C. Examination of
the Maharashtra State, S.S.C. Examination
Board or a qualification recognized
equivalent to it by the Government of
Maharashtra or higher qualification and
experience for not less than seven years in
noting and drafting in clerical post
preferably in a Government Department.

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2.The ratio of appointment by promotion and
nomination shall be 50:50.”

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7.The ratio for appointment by promotion and
nomination to the post of Office Superintendent
shall be 50:50 as per Clause '2' of the said Rules
reproduced (supra). The petitioner is functioning
as an Account Clerk with Respondent No.4 since
1996. In the affidavit filed by Respondent, it is
stated that the post of an Account Clerk is
equivalent to Junior Clerk. The Petitioner can be
considered in the clerical cadre. The petitioner
is working in the clerical cadre since the year
1996. If there is conflict between the Rules and
Executive Instructions, certainly the Rules would
prevail.

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(6) WP-2875-2015

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8.The Rules provide that the ratio of
appointment by promotion and nomination for the
post of Office Superintendent shall be 50:50. The
Rules will have to be followed.

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9.We had called for the information from the
Respondent regarding the feeder cadre for the post
of Office Superintendent. The Administrative
Officer in the office of Joint Director, Technical
Education, Regional Office, Aurangabad in its
affidavit has replied the same as under:

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“I say that so far as first point (a) is
concerned, the feeder cadre for the post of Office
Superintendent is as follows:-

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(1)Junior Clerk in Pay Band 5200-20200/- with
Grade Pay 1900/-.

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(2)Senior Clerk in Pay Band 5200-20200/- with
Grade Pay 2400/-.

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(3)Head Clerk in Pay Band 9300-34800/- with Grade
Pay 4200/-.

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(4)Office Superintendent in Pay Band 9300-34800/-
with Grade Pay 4300/-.”

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10.It is submitted that the post of Account
Clerk held by the petitioner is equivalent to
Junior Clerk. The petitioner can be considered in
clerical cadre and has 7 years experience in the
clerical cadre. The Rule only prescribes that
appointment to the post of Office Superintendent
shall be made by promotion of a suitable person
from the clerical staff under the Department of
Technical Education or by nomination. The
petitioner can be considered to be in the clerical

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(7) WP-2875-2015

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staff. It is for the Respondents to consider
whether the petitioner is a suitable person, of
course, if the said post is to be filled in by
promotion as per the Rules.

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11.The Respondents will have to consider as
to the post which has become vacant in the year
2014 upon superannuation of a person has to be
filled in by promotion or nomination.

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12.Considering the above, we pass the
following order:

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ORDER

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(1) Respondent Nos.2 and 3 shall take decision as to whether the post of Office Superintendent lying vacant with Respondent No.4 can be filled in by promotion and/or nomination considering the Recruitment Rules for the post of Office Superintendent sanctioned by the Government under Resolution dated 09.10.1964 annexed at Exhibit “R1” with the affidavit-in-reply of the Administrative Officer in the Office of Joint Director, Technical Education, Regional Office, Aurangabad. The said decision shall be taken within (03) three months.

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(2) If, Respondent Nos.2 and 3 take decision to fill in post by nomination, then petitioner

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(8) WP-2875-2015

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can participate in the said process, if he is
qualified and permissible. If, Respondent
Nos.2 and 3 take a decision that the said
post is to be filled in by promotion, then
Respondent Nos.2 and 3 shall consider the
case of the petitioner for promotion to the
said post.

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13.Writ Petition accordingly disposed of with
aforesaid observations and directions.

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(SUNIL K. KOTWAL) (S. V. GANGAPURWALA) JUDGE JUDGE

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Devendra/July-18

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Devendra Nandkumar Kale

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Digitally signed by Devendra Nandkumar Kale Date: 2018.09.06 10:04:20 +0530

Babu Thawara Chavan v. State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Babu Thawara Chavan v. State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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