1 Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL, CIVIL JURISDICTION WRIT PETITION NO. 1470 OF 2009 Vijaya Sharma )..PETITIONER Versus State of Maharashtra through the ) Secretary, Department of Social Justice and ) Cultural Activity, Sport & Ors. )..RESPONDENTS Mr. M.M. Vashi withMr. Santosh Narwade i/b. M.P. Vashi & Associates for the Petitioner. Mr. J.S. Saluja, AGP for respondent Nos. 1 to 3. Ms. Navneet Chabal i/b. R.V. Paranjpe, for respondent Nos. 4 and 5. WITH WRIT PETITION NO. 1471 OF 2009 Jyoti Dhruv )..PETITIONER Versus State of Maharashtra through the ) Secretary, Department of Social Justice and ) Cultural Activity, Sport & Ors. )..RESPONDENTS Mr. M.M. Vashi withMr. Santosh Narwade i/b. M.P. Vashi & Associates for the Petitioner. Mr. J.S. Saluja, AGP for respondent Nos. 1 to 3. Ms. Navneet Chabal i/b. R.V. Paranjpe, for respondent Nos. 4 and 5. 2 CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATE : 23RD FEBRUARY, 2010 JUDGMENT (PER FERDINO I. REBELLO, J.) Rule. Heard forthwith. 2. Both these petitions are being disposed off by this common order as the issues raised are same or similar. We will quote some of the relevant facts which are essential for the purpose of disposing of the petitions. 3. In Writ Petition No.1470 of 2009 the petitioner challenges the order dated 20th February, 2009 passed by the Special District Welfare Officer, rejecting the case of the petitioner for regularisation and absorption of the petitioner in the K.D.N. Sruti School. That order came to be passed pursuant to to the petition filed by the petitioner being Writ Petition No.1375 of 2008. We had there directed the Commissioner for Welfare and Disabled to hear the petitioner and pass necessary orders within 30 days. We find that the order has been passed not by the Commissioner, but by the Special District Social Welfare Officer, clearly contrary to the directions of this Court and the order on that count itself is liable to be quashed and set aside. 4. The petitioner was appointed as Special Teacher for deaf from open category from 16th t August, 1991 and teaching languages. The petitioner has the essential qualification. According to the petitioner normally language teachers are not 3 available in deaf schools. The petitioner has been continuously working as a special teacher for the last 18 years but on temporary basis and in continuous employment. On account of the non-approval to the petitioner’s appointment she is not getting the benefits of the post. On 31st August, 2006 Smt. Vidya Pandit from open category retired as special teacher. The petitioner made representation to the 5th respondent school to consider her appointment on a permanent post. However, that has not been considered. Another vacancy arose on 22nd April, 2009 due to retirement of Smt. Ranjana Kelkar. The petitioner made representation, which was not considered and finally the order by this Court. 5. Pursuant to the directions by this Court apart from the replies filed earlier an additional affidavit was filed by Mrs. Bhavna Shah working as the Principal dated 16th February, 2010. They had advertised on 30th July, 1991 for a special trained teacher. The petitioner applied and was selected and appointed from 16th August, 1991upto April, 1992. The appointment was thereafter continued. The post was again advertised on 14th April, 1993. The petitioner applied and was again appointed on temporary basis and renewed from time to time. On 12th March, 1996 a demand letter was sent to the Employment Exchange specifying the requirement of a Special Trained Teacher. The list of teachers was received on 3rd April, 1996. The petitioner was interviewed and was selected on 17th August, 1996 being more suitable candidate. Thus the procedure laid down in Rule 43 and 64 of the Special School Code was followed. 6. The petitioner in Writ Petition No.1471 of 2009 joined as a Special teacher in 4 deaf in open category from 1st August, 1992. She possessed the essential qualification. The petitioner also teaches languages which subject teachers are not normally available in deaf school. The petitioner’s initial appointment was temporary, but she has been working as a special teacher for the last 17 years. The petitioner has been representing and made grievance to the Principal of the School that she should be made permanent considering her experience. The petitioner also made representation to the State Authorities. According to the petitioner there is a vacancy likely to be created on 22nd April, 2009 due to retirement of one Smt. Ranjana Kelkar and apart from one more vacancy was created on account of resignation of Smt. Alka Kambale which took place on 10th June, 2008. According to the petitioner she met with the requirements and was not being considered. As the management was seeking to reappoint her afresh the petitioner preferred Writ Petition No.1376 of 2008. The petition was disposed off with a direction that the respondent No.2 to hear the petitioner and Respondent No.4 and 5 and pass order. Admittedly it is the respondent No.3 and not the Respondent No.2 who has disposed off the petitioner’s application rejecting the grant of approval on the ground that the procedure for appointment has not been followed. This order was of 20th February, 2009. Hence the present petition. 7. Pursuant to the direction the management filed additional affidavit of Mrs. Bhavana Shah wherein it is pointed out that the petitioner made an application on 14th April, 1993 for the post of Special Teacher in response to an advertisement. The petitioner was selected and appointed by letter dated 30th July, 1993 upto 30th April, 1994. Pursuant to a demand letter to Regional Employment Exchange the 5 petitioner’s name was forwarded by letter dated 3rd April, 1996. The petitioner was interviewed and selected on 17th April, 1996 being the more suitable candidate. The procedure under the School Code followed. It is also pointed out in an earlier affidavit that two teachers namely Mrs.Manda Ranpase and Mrs. Mayavati Kharat were appointed on temporary basis on directions of respondent No.3. While they were in employment they received direction of respondent No.3 to appoint them on permanent basis irrespective of the requirement though there was violation of the Roster. In so far as the State is concerned, their defence is the same as taken in Writ Petition No.1470 of 2009. 8. From the material on record it would be clear that as and upto the year 1995 the sanctioned strength of approved post was 15. The sanctioned strength was increased to 18 some time in the year 1996-97. Considering the reservation in terms of law determined by the Supreme Court not more than 50% of the posts are to be reserved and rest can be filled from the candidates from open category. As of 1995 there was one candidate excess in open category and there was a backlog of one O.B.C., in 1997. After creation of additional posts there were two excess S.C. Candidates and correspondingly backlog of one O.B.C., and one V.J. & N.T. It may be mentioned that the excess S.C., candidates is basically amongst craft teachers and correspondingly amongst teachers there was one teacher in excess in open category. From the year 2001 there was only one excess in so far as S.C. Special Teacher. We also find that from the year 1997 two teachers Maya Deshmukh who was a S.T. candidate and Jagruti Upadhyay were appointed pursuant to directions issued by the Court. 6 9. In the year 2007 position shows that there was a backlog of two open category candidates and there were three excess S.C., candidates and there was one vacancy of special teacher. One vacancy in open category arose on 1st September, 2006. Against the requirement of nine open candidates there were only eight open candidates. These vacancies arose out of one employee retiring and another resigning. Similarly in the year 2008 there was a backlog of two open and there were two vacancies. In other words one more vacancy was available for open category teacher from 1st July, 2006 and one vacancy from 1st July, 2008. The position so remained till 2010, where now there are backlog of 3 open and excess of 2 S.C. Candidates. 10. At the time of hearing our attention was invited to the Circular dated 21st April, 2007 where it was set out that the posts which have fallen vacant after 29th July, 2004 the management concerned cannot fill the same directly so also in the case of vacancy arising due to resignation, termination of service, retirement, death, etc. This purportedly was based on orders passed by this Court at its Aurangabad Bench in Writ Petition No.4744 of 2003 and Writ Petition No.43 of 2004. 11. We have obtained the orders passed in the two Writ Petitions. In the order dated 20th July, 2004 interim direction was given to maintain the Register at District level within a week as the Court noted that there was non-compliance by the State with the requirement of Rule 25A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The Register was to be prepared based on the date of recognition and closure of the school. On 30th August, 2004 as the petitioner 7 therein was already absorbed and list has been prepared the petition was disposed off. 12. Another Petition came to be filed namely Writ Petition No.43 of 2004. The petitioner therein had been appointed in a school which had been de-recognised with effect from 5th August, 2003 and termination notices had been issued to the staff with effect from 11th January, 2004. Further contention was that the petitioners were entitled to protection. By order dated 24th June, 2004 a statement was made that the names of the relevant staff will be maintained in the register. The petition has been disposed off as there were disputed questions of fact. 13. In our opinion, considering both the petitions have been disposed of the order to be passed now will not in any way affect the conditions of services of any of the teachers or would be in violation of the orders passed by this Court in the other petitions which have been disposed off nor has it been pointed out that in the relevant District there are teachers on the register who teach the subject the petitioners are teaching. 14. We find from the record that the respondent Nos. 2 and 3 have been issuing directions and have appointed persons and granted permission even though the S.C. Quota had been exhausted and even without following the procedure. Similarly, persons were appointed in terms of the directions of the Court. The question is whether we can grant any reliefs to the petitioners herein. 8 15. In our opinion, the petitioners were selected in anticipation of vacancy which were to arise on account of additional sanctioned posts and their names had been forwarded by the Employment Exchange. Regular procedure was followed for the appintment. For some reason or the other the petitioners appointment was neither approved nor were they regularised. Two teachers who were appointed were in terms of the Court’s order, one against an open category seat and another against S.C. It is not as if the Respondent Nos. 2 and 3 have been strictly following the Roster in granting approval. It is also on the facts cannot be a case that the petitioners are not qualified and/or that they were recruited without following the procedure. The affidavit of the School Principal will show that the procedure in fact was followed while appointing both the petitioners. The only obstacle in the petitioners way at this stage would be their age. In our opinion, considering that both the petitioners have worked for over 17 years must weigh in their favour as in-house candidates. They they were selected by following due procedure. They were, however, not regularised or their appointment made regular. In these circumstances considering the several facts and the equity of the matter, in our opinion, the direction can be issued for regularising the appointment of both the petitioners. The petitioner in Writ Petition No.1470 of 2009 having joined earlier wold be regularised against the vacancy which arose in 2006 and the petitioner in Writ Petition No.1471 of 2009 wold be regularised in the vacancy arose in 2008. The respondent No.5 and/or the management to send a proposal for regularization of the appointment of the two petitioners. The respondent Nos. 2 and 3 to grant approval to the said appointments. Both the petitioners would be paid the pay scale as and from 9 the date which would be 1st September, 2006 and 1st July, 2008 respectively. The petitioners will be paid in the said pay scale from those two dates respectively with all consequential benefits. 16. Rule made absolute accordingly in both the petitions. There shall be no order as to costs. ( J.H. BHATIA, J.) (FERDINO I. REBELLO, J.)