1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6244 OF 2009 Smt. Vaishali Walmikrao Bagul, Age 29 yers, Occu. Service, r/o plot No. 3, Peshvenagar Satara Parisar, Aurangabad Tq. & Dist. Aurangabad. ....Petitioner. Versus 1] The Secretary, Prerna Trust, Aurangabad In front of Subedari Guest House Near Rangeen Darwaja Aurangabad Ta. & Dist. Aurangabad. 2] The Social Welfare Officer Group-A Zilla Parishad Aurangabad, Tq. & Dist. Aurangabad. 3] The Competent Authority And Commissioner of Handicap Welfare Maharashtra State, Pune Tq. & Dist. Aurangabad. 4] Raosaheb S/o Govind Ghate, Age 40 years, Occu. Nil, r/o Parvati Nivas, Tareshwar Galli, Begumpura, Aurangabad Tq. & Dist. Aurangabad. ....Respondents. Shri. V.D. Salunke, Advocate for the appellant. Shri. B.R. Kaware & R.P. Bhomkar, Advocates for the respondent No. 1 . Shri S.B. Talekar, Advocate for respondent No. 4. WITH WRIT PETITION No. 8139 of 2009 2 Prerna Trust, (through its Secretary) Opp. Subhedari Gust House, Near Gangin Darwaja, Aurangabad. ....Petitioner. Versus 1] Raosaheb S/o Govind Ghate, Age 40 years, Occu. Nil, r/o Parvati Nivas, Tareshwar Galli, Begumpura, Aurangabad Tq. & Dist. Aurangabad. 2] The District Social Welfare Office (through its Group-A Officer), Zilla Parishad, near Aurangpura Aurangabad. 3] Vaishali Walmik Bagul Age 26 yeras, Occupation Nil, R/o Peshwenagar, Satara Parisar, Aurangabad. ....Respondents. Shri. B.R. Kaware & R.P. Bhomkar , Advocate for the Petitioner. Shri. S. B. Talekar,, Advocate for the respondent No. 1. CORAM : R.K. DESHPANDE, J. DATE OF RESERVING JUDGEMENT :-. 18th JUNE, 2010. DATE OF PRONONOUNCEMENT :- 25.th JUNE, 2010. JUDGEMENT 1. Both these Writ Petitions challenge the order dated 10/08/2009 passed by the Commissioner for Handicap Welfare Tribunal, 3 in exercise of his powers under Section 62 and 63 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Here-in-after referred as “said Act”). By the impugned order, the said Tribunal has directed the Management i.e. Prerna Charitable Trust which is the petitioner in Writ Petition NO. 8139/2009, to appoint the respondent No. 4 i.e. Shri Raosaheb Ghate in both these Writ Petitions, on the post of Tailoring Instructor from the handicapped quota, by following due procedure within a period of 30 days from the date of receipt of the order. Pursuant to the said order of the Tribunal, the employer Prerna Chaitable Trust has passed order dated 01/09/2009, terminating the services of the Petitioner Smt. Vaishali Bagul in Writ Petition No. 6244 of 2009. Hence in addition to the order dated 10/08/2009 passed by the said Tribunal, Writ Petition No. 6244 of 2009 also challenges the order of termination of the petitioner from the post of Tailoring Instructor. 2. The relevant facts which are not disputed giving rise to the controversy involved in both these Writ Petitions are stated below. The Respondent No. 4 Shri Raosaheb Ghate belongs to physically handicapped category and was initially appointed by the Prerna Chaitable Trust i.e. Petitioner in Writ Petition No. 8139 of 2009 as Instructor Tailoring, by an order dated 24/11/1997. It was stated in the order that the appointment was on purely temporary basis till April, 4 1998. Accordingly, he joined the post on 24/11/1997. Thereafter, by another order dated 27/06/1998, the respondent No. 4 was again appointed from 11/06/1998 till 30/04/1999, on purely temporary basis. The District Social Welfare Officer, Aurangabad however, refused to grant approval to the appointment of respondent No. 4 by his order dated 21/01/1999, on the ground that he was not possessing requisite qualifications. Hence, the services of the respondent No. 4 were terminated by an order dated 09/03/1999, with effect from 24/04/1999. 3. The afore said termination was challenged by the respondent No. 4 by filing an appeal before the Divisional Social Welfare Officer and the appellate authority under Section 86 of the Special Code for physically handicapped persons. By an order dated 30/06/1999, it was held in that appeal that the post of Instructor Tailoring has been cancelled and hence the order of reinstatement cannot be passed. However, direction was given to the Management that in the event of such post being approved by the Director of Social Welfare, then the claim of the respondent No. 4 should be considered while making selection and appointment in the said post on its own merits and in accordance with the Rules. Subsequently by an order dated 31/07/2000, the appointment of the respondent NO. 4 also approved and this fact was communicated to the District Social Welfare Officer by the management, under its covering letter dated 16/09/2000 (Exhibit R-2 in Writ Petition No. 8139/2009). The aforesaid order dated 30/06/1999 5 passed in appeal under clause 86 of the Special Code was not challenged either by the management or any other persons and the said order become final. 4. Thus, although the services of the respondent No. 4 were terminated with effect from 09/03/1999 and subsequently his appointment made on earlier occasion so also approved, the respondent No. 4 was not in employment with effect from 28/04/1999., as the post was not sanctioned. However, the right of respondent No. 4 for being considered for the said post was recognised by an order dated 30-06-1999. 5. It seems that one Smt. Malanbai B. Suryawanshi was appointed as Instructor Tailoring by the management and her services were terminated on 07/11/1997, prior to the appointment of respondent No. 4. The stand of the management is that the appointment of the respondent No. 4, was in the vacancy occurred due to the termination of said Smt. Suryawanshi. Smt. Suryawanshi had preferred an appeal that was allowed by the Divisional Social Welfare Officer on 20/12/1999 and inspite of the fact that her appeal was allowed, she was not permitted to join the duties nor paid with the salary. Hence, she filed Writ Petition No. 1399/2002 before this Court. The Division Bench by its order dated 07/08/2002 allowed the said Writ Petition by making certain strictures against the management and directed reinstatement of Smt. 6 Surayawanshi in service, along with arrears of salary and cost of Rs. 10,000/-. Pursuant to this judgment and order, Smt. Suryawanshi was reinstated on 07/08/2002 and she was ultimately relieved from service on 30/06/2006, on attaining her age of superannuation. 6. The management issued an advertisement dated 01/02/2008 in the newspaper, inviting applications for the post of Instructor Tailoring and it was specifically reserved for Scheduled Caste candidate. In response to the said advertisement the petitioner Smt. Vaishali Bagul in Writ Petition No. 6244/2009, applied as a candidate belonging to Scheduled Caste category. There is no dispute about the fact that she belongs to Scheduled Caste category. Similarly it was also not disputed that the respondent No. 4 Ghate belongs to open category. However, knowing fully well, the post is reserved for SC candidate, the respondent No. 4 also applied for the said post, for selection and appointment. The minutes of the meeting of Selection Committee held on 09/05/2000, are placed on record. The Petitioner Smt. Vaishali Bagul was shown to be selected for the post, whereas there is an endorsement that the respondent NO. 4 is ineligible for the post, as he belongs to open category. Accordingly, the petitioner Smt. Vaishali Bagul was appointed on 26/03/2008, on purely temporary basis for a period of one year by the management. Her appointment was from reserved category of SC and the same was approved by the Social Welfare Officer, by his order dated 23/01/2009 for the period from 24/06/2008 to 30/04/2009, on purely 7 temporary basis. Subsequently, her appointment was also approved by another order dated 04/08/2009 by the Social Welfare Officer, for the period from 15/06/2009 to 30/04/2010. 7. The Respondent No. 4 Shri Ghate invoked the jurisdiction of the Commissioner for Handicap Welfare Tribunal, under Section 62 and 63 of the said Act by filing an application dated 10/07/2008, seeking direction to the management to appoint him, in the quota of physically handicapped persons. In this application, the management was party non applicant No.1, whereas Social Welfare Officer, Zilla Parishad was non applicant No. 2. The management filed its detail reply dated 28/11/2008, in response to this application under Section 62 and 63 of the said Act. The said Tribunal, after hearing the parties to the application passed an order, directing the management to appoint the respondent No. 4, in the vacant post of Instructor of Tailoring, against the quota reserved for physically handicapped persons in terms of the provisions of the said Act. Thus, this order is the subject matter of challenge in both these Writ Petitions. 8. In the impugned order, a finding is recorded that the sanctioned post of Instructor Tailoring is a single isolated post and hence the reservation is not applicable to the post, as per the decision of General Administration Department (Here-in-after referred as “GAD”) dated 21/09/1998, which has been communicated by the office of 8 Divisional Commissioner, by his letter dated 05/05/2008. It is the further finding recorded that as per the instructions issued by the GAD on 10/11/2004, three posts of Instructors are sanctioned and if the posts are more than 1 and less than 34, then one post is required to be reserved for physically handicapped persons. It is further finding recorded that as per the Rules framed under the Said Act, minimum 3% reservation is required to be made for physically handicapped persons, however, the management has not complied with this requirement. On the basis of instructions dated 10/11/2004 issued by the GAD, and directions issued on 30/06/1999 in appeal filed by respondent No. 4, the management has been directed to appoint the respondent NO. 4 Shri Ghate, on the post reserved for physically handicapped category, within 30 days. 9. Shri V.D. Salunke, the learned counsel appearing for the petitioner in Writ Petition No. 6244/2009 filed by Smt. Vaishali Bagul has urged that the petitioner was not made party to the application filed under Section 62 and 63 of the said Act, before the Handicap Welfare Tribunal and it is pursuant to the direction issued in the said application by the said Tribunal, on 10/08/2009, that the petitioner is displaced, by notice of termination dated 01/09/2009. He submits that the order impugned is liable to be quashed and set aside on the ground of the breach of principles of natural justice. He further submits that section 62 and 63 of the said Act, no where confers jurisdiction upon the said Tribunal, to entertain and decide the challenge to the selection and 9 appointment of the employees in the Trust. He further submits that the respondent NO. 4 was knowing well that the post on which the petitioner was appointed, was reserved for SC candidates in the advertisement dated 01/02/008 and inspite of it, applied for the post, took chance of selection and having became unsuccessful has preferred application under section 62 and 63 of the said Act. Hence, according to him, estoppel operates against the respondent No. 4 to challenge the selection and appointment of the petitioner. For this proposition following authorities are relied upon. 1] Notes of Cases of 1977, Maharashtra Law Journal, page 39 in the case of Chandrashekhar V. Manager, Central Jail. 2] 2,000, Law Suit (SC) 319, eauivalent to 2000 A.I.R. (SC), 1058. It is further urged that the finding recorded in the impugned order that the post of Instructor Tailoring in the said Trust was lying vacant, is not based upon the factual aspect. The petitioner was appointed on the said post by an order dated 26/03/2008 and on the date of filing application under Section 62 and 63 of the said Act and also on the date of the decision, the petitioner was occupying the said post. According to him, the order of the said Tribunal proceeds on this factual wrong premise that the post is vacant and hence needs to be set aside. 10 10. Shri B.R. Kaware, learned counsel appearing for the management has urged that the respondent No. 4 was not qualified to hold the said post of Instructor Tailoring. The post was reserved for SC candidate as per the direction issued by the office of Divisional Commissioner i.e. the competent authority. The post was occupied and there was no vacancy for appointment of respondent No.4. He further submits that the respondent No. 4, was at any rate, appointed on temporary basis having no right to the post. He further urged that the Handicap Welfare Tribunal had no jurisdiction to hold that the posts should not be reserved for SC category. He further adopted the contentions raised by Shri V.D. Salunke and submitted that for all these reasons the impugned order liable to be set aside. 11. Shri S.B. Talekar, the learned counsel appearing for the respondent No. 4 refuted the contentions raised by the learned counsel for the petitioners in both the Writ Petitions. He submits that the respondent No.4 was appointed initially as a candidate belonging to physically handicapped category by an order dated 24/11/1987 and 17/06/1998. The said appointment was approved by the competent authority, not only that but the salary grants were also released and the respondent NO. 4 was paid with all his salary, from the grants made available to the Trust. According to him, upon termination of his service he had filed an appeal, which was allowed on 30/06/1999, directing the management to consider the case of respondent NO. 4, on 11 its own merits in accordance with Rules, as a candidate belonging to physically handicap category, as and when, post becomes vacant. He submits that the reinstatement was not granted only for the reason that the post was not sanctioned. However, after sanction of the post, it was incumbent upon the management to comply with this order dated 30/06/1999 and the same has not been complied with. He further urged that the respondent No. 4 has neither challenged the appointment of petitioner Smt. Vaishali in Writ Petition No. 6244/2009 nor has claimed any relief against her, in the application filed under Sec. 62 and 63 of the said Act. According to him, he has asked for implementation of the provisions of the said Act, Rules and instructions issued by the Government from time to time, for reservation in the employment for physically handicapped persons, by invoking the jurisdiction of the said Tribunal under Section 62 and 63 of the said Act. According to him, the Petitioner Smt. Vaishali was not at all necessary party in the said application and her selection and appointment has not been set aside by the impugned order. The impugned order, according to him, merely directs the management to appoint respondent No. 4 from the category of physically handicapped persons and to comply with the provisions of said Act, Rules and instructions issued thereunder. According to him, this is the jurisdiction vested in the said Tribunal. He further submits that the question of operating estoppel does not arise for the reason that the advertisement itself makes respondent No. 4 ineligible to apply the post, and although he appeared for the interview, his case was not at all 12 considered on the ground that he belongs to open category and the post was reserved for SC category. According to him, he sought compliance of the order dated 30/06/1999, passed by the competent authority even before the issuance of advertisement on 01/02/2008. 12. The first question which is required to be considered is the jurisdiction of the Commissioner for Handicap Welfare Tribunal under Section 61 and 62 of the said Act and the powers conferred upon him under Section 61 of the said Act. The provisions of Section 61, and 62 being relevant are reproduced below. ‘SECTION :-61:- Powers of the Commissioner :- The Commissioner within the State shall (a) co-ordinate with the departments of the State Government for the programme and schemes for the benefit of persons with disabilities; (b) monitor the utilisation of of funds disbursed by the State Government. (c) take steps to safeguard the rights and facilities made available to persons with disabilities; (d) submit reports to the State Government on the implementation of the Act at such intervals as the Government may prescribe and forward a copy thereof to 13 the Chief Commissioner.” “SECTION :- 62:- Commissioner to look into complaints with respect to matters relating to deprivation of rights of persons with disabilities, - Without prejudice to the provisions of section 61, the Commissioner may of his own motion or or the application of any aggrieved person or otherwise look into complaints with respect to matters relating to - (a) deprivation of rights of persons with disabilities; (b) non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Government and the local authorities for the welfare and protection of rights of persons with disabilities., and take up the matter with the appropriate authorities. “ Bare perusal of the afore said provisions reveal that it is the duty of the Commissioner to look into the complaints in respect to the matters relating to the deprivation of rights of persons with disabilities and non implementation of laws, rules, regulations, executive orders,guide lines or instructions made or issued by the appropriate Government and the local authorities for the welfare and protection of 14 rights of persons with disabilities. The power is also conferred upon the Commissioner to take all such steps to safe guard rights and facilities made available to the persons with disabilities. 13. The findings recorded by the Commissioner in the impugned order, clearly indicate that the provisions of Government Resolution dated 10/11/2004, issued by the GAD and the order dated 30/06/1999 passed by the Divisional Social Welfare Officer, are sought to be enforced or implemented. These instructions dated 10/11/2004 and the order directing the reservation of posts for physically handicapped category have been issued in exercise of the power conferred by the provisions of the Act . The finding of fact is recorded in the impugned order that the requirement of law is, to reserve not less than 3% posts for physically handicapped categories. Such reservation is required to be made, where there are more than one post available. Further finding is recorded that there are three posts available with the management and one post was therefore required to be reserved, to implement the provisions of the said Act, Rules and instructions issued thereunder, however, such reservation was not made. Further finding is recorded that the respondent No. 4 was appointed on the said post and hence to safeguard his rights and facilities in terms of order dated 30/06/1999, such direction was issued. All these findings of facts are not challenged in any of the petitions and hence it cannot be said that the order impugned is without jurisdiction or beyond the powers conferred 15 under Section 62 and 63 of the said Act. Hence, the contentions raised by the petitioners in both the petitions is rejected. 14. So far as the breach of principle of natural justice is concerned, it is also not in dispute that bare perusal of the orders of appointment of Smt. Vaishali shows that the same are only for a period of one year. Initially, the approval was granted by an order dated 23/03/2009 for a period from 24/03/2008 to 31/04/2009 and the second approval dated 04/08/2009, was for the period from 15/06/2009 to 10/04/2010. The appointment order dated 23/06/2008 clearly stipulates that it is for the period of one year. In view of this, the petitioner being a temporary appointee has no right to the post. It is true that in the application under Section 62 and 63 filed by respondent No. 4, the petitioner Smt. Vaishali was not party and she was not heard in the matter. However, the appointment of respondent No. 4 was prior in point of time and what order the Commissioner has passed under Section 62 and 63 of the said Act, is to implement the provisions of the said Act, Rules and instructions dated 10/11/2004 issued by GAD and the order dated 30/06/1999, passed by the competent authority, in the appeal challenging the termination by the respondent No. 4, even before selection and appointment of petitioner Smt. Vaishali. Neither the selection nor appointment of petitioner Smt. Vaishali has been touched in the impugned order. If the termination of her services, is the result of the order passed by the commissioner having jurisdiction under Section 16 62 and 63 of the said Act, then no fault can be found with it, on the ground that the principle of natural justice have not been followed. The question of observing the principle of natural justice would arise only in cases where a persons are deprived their right to a post or that the selection and appointment to the post is set aside. The Petitioner Smt. Vaishali had no right to post. Her selection and appointment has not been set aside. Hence, the contention of the petitioners in both the petitions that the impugned order is vitiated on the account of breach of principles of natural justice, is therefore, rejected. 15. The contention that the post of Instructor Tailoring was not laying vacant when the proceedings were initiated under Section 62 and 63 of the said Act cannot be also accepted. The post become vacant upon superannuation of Smt. Suryawanshi . In terms of the order dated 30/06/1999, passed by the District Social Officer, in appeal filed by the respondent No. 4, the respondent No. 4 was required to be considered for the post which became vacant.. However, the post was advertised and it was shown that it was reserved for SC candidate, with a view to defeat the right and claim of the respondent No. 4. Similarly, the grievance that the proceedings under Section 62 and 63 of the said Act were initiated after lapse of nine years of his termination by the respondent No. 4 also cannot be accepted. The right of the respondent No. 4 was recognised in 1999 itself by holding his termination be illegal, however, the order of reinstatement was not 17 passed only because the post was not sanctioned. After termination of the respondent NO. 4 on 09/03/1999 the post was laying till 07/08/2002. Smt. Suryawanshi was reinstated in service in terms of the judgment and order by the Division Bench of this Court in Writ Petition No. 1399/2002, as a result though the post was sanctioned, the respondent No. 4 could not be accommodated inspite of the fact that, the order dated 30/06/1999 was subsisting. Even after retirement of Smt. Suryawanshi on 30/06/2006, the post was laying vacant till the appointment of petitioner Smt. Vaishali was made on 23/06/2008. Hence, the question of delay in challenging the termination of respondent No. 4 does not at all arise. 16. The first judgment cited by the learned counsel for the petitioner is reported in 1977, M.L.J., page 39, Notes of Cases, Chandrashekar V. Central Jail. This judgment no where disclose the facts of the case in detail and it is not possible to accept notes of cases as laying down the law of proceeding. The Second judgment relied upon by the learned counsel for the petitioner in Sunita Agrawal’s case, turns upon the facts of that case and hence the same is not applicable. The appellant Sunita Agrawal did not challange order of the Vice-Chancellor declining to accord approval to her selection, but on the contrary, applied a fresh to the post in response to the advertisement, without any kind of protest. She took chance before the selection committee without protest and on the same day filed Writ Petition challenging the order of 18 Vice-Chancellor declining to accord his approval. The Apex Court has held that the appellant was estopped by her conduct from challenging order of the Vice-Chancellor and hence, the High Court was right in dismissing the Writ Petition. In the instant Writ Petition, the respondent No. 4 had challenged his termination order, and order was passed dated 30/06/1999,