Allowed

Mulibai Charkha Shikshan Prasarak Mandal, Washim Thr. President Haribhau N. Kshirsagar and Others v. State of Maharashtra through Its Secretary Ministry of Vocational and Training Department and Other

Bombay HC16 Sept 2022WP/3775/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition involving the appointment of a Lecturer in English. The Court held that the post was isolated within the cadre and non-interchangeable with other subjects. Consequently, the rule of reservation under Section 3 of the Maharashtra Reservation Act did not apply. The appointment standing approved with retrospective reliefs.

What did the court decide?

Petition allowed; Impugned order dated 26/3/2014 quashed; Appointment of petitioner approved w.e.f. 30/6/2010; Direction to pay salary and apply pension scheme.

Mulibai Charkha Shikshan Prasarak Mandal… — Pension and Retirement Benefits | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Writ Petition No.3775 of 2014

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1.Mulibai Charkha Shikshan Prasarak Mandal,
Washim,
through its President,
Shri Haribhau Nathobaji Kshirsagar,
Aged about 75 years,
R/o Washim,
Tah. & Distt. Washim.

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2.Smt. Sawitribai Phule Kanya Kanishtha Mahavidyalaya, Washim (MCVC), Risod Road, Lakhala, Distt. Washim.

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3.Ku. Sarika D/o Lunkaran Sharma,
Aged about 36 years,
Occu.: Service,
R/o Chandak Layout, Lakhala,
Washim, Tah. & Distt. Washim.… Petitioners

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Versus

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1.State of Maharashtra,
through its Secretary,
Ministry of Vocational and Training
Department,
Mantralaya,
Mumbai-32.

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2.Director of Vocational Education
and Training,
3, Mahapalika Marg,
P.B. No.10036,
Mumbai-400 001.

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3.Joint Director of Vocational Education and Training, Morshi Road, Amravati.

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4.District Vocational and Training Officer, Girls ITI College Premises, Akot Stand, Akola. ... Respondents

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Shri R.L. Khapre, Senior Advocate, for Petitioners.
Shri K.L. Dharmadhikari, Assistant Government Pleader for
Respondents.

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CORAM: SUNIL B. SHUKRE & G.A. SANAP, JJ.
DATE : 16th SEPTEMBER, 2022

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ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :

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1.Heard Shri R.L. Khapre, learned Senior Advocate for the
petitioners; and Shri K.L. Dharmadhikari, learned Assistant
Government Pleader for the respondents.

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2.The only ground on which the approval to the appointment of
petitioner No.3 as Lecturer in English in petitioner No.2-College,
which conducts MCVC Course, has been rejected on the ground that
the appointment could not have been made without applying the rule
of reservation, as is mandated by the Maharashtra State Public
Services (Reservation for Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes) Act, 2001, particularly under
Section 3 of the said Act.

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3.This issue has been dealt with in previous rounds of litigations
and finally the matter was left to the discretion of respondent No.3-
Joint Director of Vocational Education and Training, who was directed

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to take a decision after granting hearing to the petitioners and
applying his mind to the applicable law. The issue was reconsidered
by the Joint Director of Vocational Education and Training and
ultimately he came to the conclusion that since there were more than
one post in the cadre of Lecturer, the post of Lecturer in English could
not be treated as single and isolated post and, therefore, he found that
the rule of reservation as per Section 3 of the aforestated Act was
applicable to the appointment of petitioner No.3 and the said rule
having not been followed, it was further decided that the appointment
of petitioner No.3 could not have been approved by the Government.

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4.Section 3 of the said Act lays down that the Act shall apply to

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all appointments made in public services and posts except to the
appointments made in categories (a), (b) (c) and (d) prescribed in the
said Section. Category (d) is of the post which is single (isolated) in
any cadre or grade. So, the question is whether the post of Lecturer in
English could be treated as single (isolated) post in the cadre of
Lecturer. The answer to this question has already been given by
prescribing the test of inter-changeability of posts in different
disciplines in the same cadre, in the case of State of Karnataka and
others Vs. K. Govindappa and another1. The Apex Court held that in
the cadre of Lecturers, single and isolated posts in respect of different
disciplines can exist as a separate cadre. It further held that in order

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1 AIR 2009 SC 618

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to apply the rule of reservation within a cadre, there has to be plurality
of posts. It also observed that since there is no scope of
inter-changeability of posts in the different disciplines, each single post
in a particular discipline has to be treated as a single post for the
purpose of reservation within the meaning of Article 16(4) of the
Constitution. It further held that isolated and separate posts can exist
within a cadre and in case of such a post, if there was only one post,
the same could not be set apart for a reserved candidate.

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5.In the present case, it is not the case of the State Government
that the posts of Lecturer in English, Lecturer in Marathi, Lecturer in
Crop Science, etc., are inter-changeable. It is also not the case of the
State Government that a Lecturer appointed for teaching English can
also teach the subjects of Crop Science or Marathi or any other subject,
and the Lecturer appointed for teaching other subjects can also teach
the subject of English. Thus, there is no inter-changeability of posts
nor is there any duality of posts. That means, even though, broadly
speaking, cadre of Lecturer is one within the same cadre of Lecturer,
there can exist single and isolated post within the cadre, such as the
post of Lecturer in English. This is the position of law settled by the
Apex Court in K. Govindappa’s case (supra). We find from the
impugned order dated 26-3-2014 that this law has not been applied at
all to the case of the petitioners and the result is erroneous,

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warranting interference by this Court in the matter.

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6.In the result, we are inclined to allow the petition and
accordingly, it is allowed in terms of prayer clauses (1), (2) and (3),
which read as under :

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“(1)Quash and set aside the clarification issued by
Respondent no.1 dated 20/12/2013 by further declaring that
any isolated post in any cadre cannot be reserved by
respondents in view of provisions of Section 3 of The
Maharashtra State Public Services Reservation for Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Bakward Category and Other
Backward Classes Act, 2001;

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(2)This Hon’ble Court further be pleased to quash and
set aside order dated 26/3/2014 and further be pleased to
grant approval to the appointment of petitioner from the date
of her appointment i.e. w.e.f. 30/6/2010;

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(3)This Hon’ble Court further be pleased to direct
respondents to pay salary to the petitioner from 12/6/2006 to
29/6/2010 as full-time temporary teacher since petitioner has
worked for the said period on full-time basis.”

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7.We also direct the respondents to consider the request of
petitioner No.3 to pay her salary in accordance with the Seventh Pay
Commission’s Recommendations and by applying the Defined

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Contribution Pension Scheme (DCPS), in accordance with law.

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8. Rule is made absolute in above terms. No costs.

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9. With the aforesaid direction, Civil Application (CAW) No.2038

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of 2022 filed in this petition also stands disposed of.

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 (G.A. SANAP, J.) (SUNIL B. SHUKRE, J.)

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Lanjewar

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Digitally Signed By :P D LANJEWAR Signing Date:19.09.2022 10:50

Mulibai Charkha Shikshan Prasarak Mandal, Washim Thr. President Haribhau N. Kshirsagar and Others v. State of Maharashtra through Its Secretary Ministry of Vocational and Training Department and Other

Case brief

What is this about?

What did the court decide?

Mulibai Charkha Shikshan Prasarak Mandal, Washim Thr. President Haribhau N. Kshirsagar and Others v. State of Maharashtra through Its Secretary Ministry of Vocational and Training Department and Other

Case brief

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What did the court decide?

What the court decided

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