1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5852 OF 2006 Ashok s/o. Dnyandev Choudhari, Age 45 years, Occ. Ex-serviceman of Army, R/o. Pandurang Pharm House, Kharwandi Road, Kangoji, Tq. Newasa, Dist. Ahmednagar. .. petitioners Versus 1] The State of Maharashtra through the Secretary Rural Development Department, Mantralaya, Mumbai-32. 2] Member Secretary, District Selection Committee & Education Officer (Primary), Zilla Parishad, Ahmednagar. 3] The Chief Executive Officer, Zilla Parishad, Ahmednagar, Tq. and Dist. Ahmednagar. 4] The Collector, Ahmednagar, Dist Ahmednagar. 5] Shri Vankat Ramrao Birasdar Age 49 years, Occ. Service, R/o. Office Address, Panchayat, Dist. Ahmendagar. 2 6] Shri N.R. Patekar, Age 48 years, Occ. Panchayat, R/o. Office Address, Panchayat Samitee, Parner, Tq. Parner Dist. Ahmednagar. .. Respondents. --- Mr. K.D. Bade Patil Advocate for petitioner. Mr. D.R. Korde, Assistant Govt.Pleader for respondent No.1 and 4. Mr. S.T. Shelke, Advocate for respondent No.3 Mr. V.D. Sapkal, Advocate for respondent Nos. 5 and 6 CORAM : A.P. DESHPANDE & N.D. DESHPANDE,JJ. DATE : 22ND JANUARY, 2010. ORAL JUDGMENT [PER A.P. DESHPANDE,J.] :- 1] Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2] The State Government has provide for horizontal reservation of 15% for Ex-defence personnel in Government service. The present petitioner and the respondent Nos. 5 and 6,competed for 2 posts of Extension Officer, to be filled in by the Zilla Parishad, from the said category of Ex-defence personnel. In response to an advertisement issued by the Zilla Parishad, the present petitioner and the respondent Nos. 5 and 6 applied for the 3 post of Extension Officer (Education). The respondent Nos. 5 and 6 came to be selected, whereas, the petitioner was not selected and was placed at Sr. No.3 in the list prepared for the said category. Being aggrieved by the selection of the respondent Nos. 5 and 6 and non-selection of the petitioner, the present petition came to be filed. 3] After filing of the petition, the same came to be amended and in the amended petition, the petitioner has given up the challenge to the selection of the respondent No.6. The learned counsel for the petitioner, even during the course of hearing has not questioned the legality or validity of selection of the respondent No.6. Thus, the controversy in this petition is restricted to the petitioner and the respondent No.5. 4] According to the learned counsel for the petitioner, the respondent No.5 could not have been considered for appointment to the post of Extension Officer, as he was not entitled to claim the benefit under the Government Resolutions dated 30/12/1991 and 8/6/1993. Truly speaking, these are not the Government Resolutions, which extend the benefit to the Ex-defence 4 personnel. The only Govt. Resolution which is placed on record is dated 8/6/1993, which goes to curtail the benefit made available earlier to the Ex-defence personnel by laying down that the benefit of reservation in Govt. Service would be available only once and after the Ex-defence personnel claims the said benefit of reservation, he would not be entitled to claim the same either while staking his claim to the higher post or some other post, in the civil service under the State. 5] From the perusal of the Govt. Resolution dated 8/6/1993 and in the light of the documents placed on record, it could be seen that the benefit of horizontal reservation is made available in Class III and Class IV services of the State, which would also include the employment under the Zilla Parishad. The Zilla Parishad is bound by the policy decision of the State , to provide reservation for Ex-defence personnel. . We have perused para. 2 of the Government Resolution dated 8/6/993 minutely, which goes to clarify that the benefit of reservation would be available only once and thereafter it would not be available to someone who is appointed in civil 5 service, for making a claim to a higher post or any other post under the State Government. 6] According to the learned counsel for the respondent No.5,at the relevant point of time, when he applied for the post of Extension Officer, he was working as Assistant Teacher, in Rajarshee Chhatrapati Shahu Sainik Vidyadaya ( military school), which is administered and management by the society named “Sanskruti Samvardhan Mandal”. The society which manages the said school, is registered under the Societies Registration Act so also the Bombay Public Trust Act. The said position is not only asserted by the respondent Nos. 5 and 6 in their affidavit in reply, but is also borne out from the letter head of the said society, whereunder, permission was granted to the respondent No.5 to apply for the post of Extension Officer, so also, other certificates, which certify the length of service, character of respondent No.5 etc. 7] The main objection of the present petitioner to the eligibility of the respondent No.5 is that, the said school is receiving 100% salary grants from the State Exchequer and thus, 6 the said post of Assistant Teacher in a private school would satisfy the test of being appointed in a civil post under the State, and hence, the respondent No.5 cannot be held eligible for being appointed to the post of Extension Officer.. 8] According to the respondent No.5, the military school wherein he was working under the private management, was a school regulated by the MEPS Act and rules framed thereunder, falling within the definition of private school. It is the contention of the learned counsel for the respondent No.5, that at no stretch of imagination could a private employment debar an Ex-defence personnel from claiming an employment under the State, which is otherwise available. The Government is regulating horizontal reservation only qua the civil post under the Government and the same does not in any manner regulate the private employment. The submission thus, on behalf of the respondent No.5, is that the Ex-defence personnel cannot be said to be ineligible to apply for a public employment and claim reservation therein. The reservation provided for by the State Government is in respect of employment under the State, and it needs to be understood in the context of Article 16 of the Constitution of India. 7 9] The learned counsel for the respondent NO.5 has two preliminary objections to the maintainability of the present petition. The first objection is, that the petition suffers from suppresio veri and suggestio falsi, inasmuch as, the petitioner did not disclose the fact that at the fime of filing of this petition, the petitioner was gainfully employed as Shikshan sevak in the employment of the same Zilla Parishad and was appointed by extending benefit of reservation for Ex-defence personnel. The learned counsel for the petitioner in all fairness does not dispute the fact that the petitioner came to be appointed as Shikshan Sevak, prior to filing of this petition in 15 % horizontal reservation quota, provided for Ex- defence personnel. If this be the position, the petitioner ought to have made the said statement in the petition because in the terms of the Govt. Resolution, it is doubtful, as to whether the petitioner could have claimed the post of Extension Officer, though he was made available the benefit of reservation, while being appointed to the post of Shikshan Sevak. 10] Facts which are not stated in the petition have a substantial bearing on the issue raised in the petition and to say 8 the list, the petitioner is not justified in not stating the said facts, which could be termed as suppression of material fact. 11] The next objection is, that the petitioner himself was not eligible for being considered for appointment to the post of Extension Officer, as according to the advertisement, candidates who were in employment of primary school or higher secondary school were expected to submit the approval order issued by the Education Officer or Administrative Officer. It is submitted that requirement of submission of approval order was to ascertain as to whether a candidate had the requisite experience of teaching in an approved and sanctioned post in a private school. It does appear that the petitioner, though claims to have worked in a private school and gained experience, he did not submit the approval order of the Education Officer or the Administrative Officer. 12] One more intervening event need to be stated before the issue raised in the petition is taken up for consideration and the said event is, that on account of a complaint made by the present petitioner, and communication issued by the authorities 9 pursuant thereto, the respondent No.5 has been placed under suspension by the Zilla Parishad, possibly awaiting the outcome of this petition. 13] Reverting back to the objection raised by the petitioner about the eligibility of respondent No.5, suffice it to state that the respondent No.5 was gainfully employed as Assistant Teacher in a school administered by a society and a public trust and thus, the employment therein would be a private employment, as opposed to a public employment under the State or local authority, such as, Zilla Parishad. 14] The Govt. Resolution, dated 8/6/1993, which clarifies that the benefit of reservation will not be available to a candidate belonging to Ex-defence personnel, claiming a civil post second time under the State, cannot be read so as to dis-entitle a candidate, who is employed in a private school from claiming the same under services of the State. The object and policy of the State Government clearly goes to only restrict the candidates from Ex-defence personnel from claiming the benefit for the second time, be it for the promotional post or any other post under the 10 State Government. Thus, we are of the clear view that the respondent No.5 was very much eligible and qualified for applying for the post of Extension Officer. His then appointment as Assistant Teacher in a private school, does not debar him from claiming the benefit once, in the employment of the State. 15] The appointing authority has rightly considered the claim of the respondent No.5 as eligible candidate having been found more meritorious than the present petitioner. The respondent No.5 came to be selected in the process of selection and legally appointed in the services of the Zilla Parishad. No fault can be found with the appointment of the respondent No.5 to the post of extension Officer, as claimed in the petition. 16] In that view of the matter, there being no merit in the petition, the same deserves to be dismissed. Before we conclude, it will not be out of place to mention that though we have proceeded to decide the petition on merit, the same ought to be also dismissed, being bad for suppresio veri and suggestio falsi. 17] In the result, writ petition deserves to be dismissed. The Zilla Parishad, Ahmednagar shall take appropriate decision in 11 regard to revocation of suspension of respondent No.5, in the light of the observations made in this judgment. The writ petition is dismissed with no orders as to costs. Rule discharged. [N.D. DESHPANDE,J.] [A.P. DESHPANDE.J.] grt/-