1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2267 OF 2009 Meeta H. Phadke, Age 46 years, B/22, Geetanjali C.H.S. Ltd, Jai Bhavani Mata Road, Amboli, Andheri West, Mumbai 400 058 ... Petitioner Versus 1. Sathaye (Junior) College, through the Principal, Dixit Road, Vile Parle, Mumbai 400 057. 2. Parle Tilak Vidyalaya Association, through the Secretary, Sathaye Junior College, Dixit Road, Vile Parle, Mumbai 400 057. 3. Deputy Director of Education, Jawahar Bhavan, Marine Drive, Mumbai. 4. State of Maharashtra, through the Secretary, Education and Employment Department, Mantralaya Annexe, Mumbai 400 032. ... Respondents WITH WRIT PETITION NO. 2268 OF 2009 Sanjyot Joshi, aged 40 years, 61, Shubhashis, Tejpal Scheme Road No. 2, Vile Parle East, Mumbai 400 057. ... Petitioner Versus 1. Sathaye (Junior) College, through the Principal, Dixit Road, Vile Parle, Mumbai 400 057. 2. Parle Tilak Vidyalaya Association, through the Secretary, Sathaye Junior College, Dixit Road, Vile Parle, Mumbai 400 057. 3. Deputy Director of Education, Jawahar Bhavan, Marine Drive, Mumbai. 4. State of Maharashtra, 2 through the Secretary, Education and Employment Department, Mantralaya Annexe, Mumbai 400 032. ... Respondents WITH WRIT PETITION NO. 2280 OF 2009 Swati Wagh, aged 42 years, residing at Rosewood Apartments, 2nd Floor, Mahatma Phule Cross Road, Vile Parle East, Mumbai 400 057 ... Petitioner Versus 1. Sathaye (Junior) College, through the Principal, Dixit Road, Vile Parle, Mumbai 400 057. 2. Parle Tilak Vidyalaya Association, through the Secretary, Sathaye Junior College, Dixit Road, Vile Parle, Mumbai 400 057. 3. Deputy Director of Education, Jawahar Bhavan, Marine Drive, Mumbai. 4. State of Maharashtra, through the Secretary, Education and Employment Department, Mantralaya Annexe, Mumbai 400 032. ... Respondents WITH WRIT PETITION NO. 2281 OF 2009 Sucheta Hemant Save, aged 40 years, residing at 301, Sheetal Smruti, Gulmohar Road, Vile Parle West, Mumbai 400 056 ... Petitioner Versus 1. M.L. Dahanukar College of Commerce, Dixit Road,Vile Parle, Mumbai 400 057. 2. Parle Tilak Vidyalaya Association, through the Secretary, Sathaye Junior College, Dixit Road, Vile Parle, Mumbai 400 057. 3. Deputy Director of Education, Jawahar Bhavan, Marine Drive, Mumbai. 4. State of Maharashtra, through the Secretary, Education and 3 Employment Department, Mantralaya Annexe, Mumbai 400 032. ... Respondents Mr. Mihir Desai for Petitioner. Mr. M.D. Naik, A.G.P. For R. Nos. 3 and 4. Mr. Anirudh Jsohi with Mr. Neel Helekar for R. Nos. 1 and 2. CORAM : FERDINO I. REBELLO & R.V. MORE, JJ. DATED : JUNE 17, 2010 ORAL JUDGMENT (Per FERDINO I. Rebello,J.): Rule in all the petitions. By consent of the parties, heard forthwith. 2. Petitioner in Writ petition No. 2267 of 2009 was appointed for the first time on 8.7.1994. Petitioner in W.P. No. 2268 of 2009 was appointed for the first time on 11.10.1991. Petitioner in Writ Petition No. 2280 of 2009 was appointed for the first time on 6.7.1992. Petitioner in Writ Petition No. 2281 of 2009 was appointed for the first time on 8.7.1991. First three petitioners were appointed in Sathya College (Junior College) and fourth Petitioner was appointed in M.C. Dhanurkar College of Commerce (Junior College) and admittedly their initial appointments were against posts reserved for reserved category candidates and their appointments have been continued from time to time. 3. Petitioners had approached this court earlier by filing petitions in the 4 year 1998 in which this court by an identical order in all petitions dated 15.9.1998 was pleased to direct respondent (State Government) to continue the Petitioners in service in the post they hold in junior colleges and not to terminate their services and to pay salary and other consequential benefits. Petitions had been directed against the order of Deputy Director of Education refusing to grant approval to their appointments. These petitions came to be disposed of by order dated 20.8.2009 whereby the petitions were withdrawn with a liberty to adopt appropriate remedy. In the meantime, it appears that regular vacancies have arisen for open category candidates. 4. Petitioners thereafter have approached this court by way of these petitions. It is the case of the Petitioners they they were appointed pursuant to the advertisement which appeared no doubt for reserved category candidates. As the reserved category candidate was not available they were interviewed by the committee in terms of the law prevailing and were selected and thereafter appointed by the Management. They have been continuing in the services ever since and have been receiving pay of the post pursuant to the orders of this court which have been paid by the State Government. In all these petitions, an ad interim order was granted that the services of the Petitioners would not be terminated if not terminated on 23.11.2009. Admittedly services of the Petitioners were not terminated and they continued in service and have been paid salary of the post. It may also be mentioned that the Petitioner has been receiving yearly increments 5 approved by the respondent State. 5. Relief sought for by the Petitioners in the present petition is to grant approval to the Petitioners on probation firstly and thereafter as confirmed teachers, on completion of two years probation from the date of their initial appointments. They have further sought a declaration that the Petitioners be appointed in the post meant for open category candidate and for any other consequential reliefs. The respondent State has filed an affidavit by Mr. Naru Chavan, Assistant Director of Education. It is pointed out that the Deputy Director of Education refused to grant approval to the appointment of the Petitioners on the ground that the Management had not filled in reserved quota and appointed petitioners to the reserved quota on temporary basis. The Petitioners belong to open category. It is also pointed out that the Petitioners were working pursuant to the orders of this court. In the affidavit it is also set out that the backlog which was available. Computation of backlog as worked out both on the basis of 52% based on administrative instructions as also 34% based on M.E.P.S. Rules. It is set out worked out either way there was a backlog. Considering the judgment of this court, what is to be considered are the rules. Earlier reservation in terms of the rules was 34%. The rules as sanctioned were amended in the year 2010 approving for 52% reservation. 6 At the hearing of these petitions, we are informed that in the year 2005-06, there are four posts available for open category candidates. It is also pointed out that the backlog has also been filled in. 6. Two questions arise for consideration before us. Firstly is it open to the State not to permit the Managements to fill in the open category seats because there is backlog of reserved category candidates and secondly on the facts and circumstances of case, whether these petitioners can be regularized against the post which have since become available for open category candidates. 7. In so far as first contention is concerned, in our opinion, it may be open to the State in the absence of any statutory bar under the M.E.P.S. Act and Rules to withhold regular appointment to open category posts in the event the Management does not take steps to fill in the posts for backward category candidates. In other words, persistent default on the part of the management. If on the other hand, Managements take steps by advertising to fill in the post, for reserved categories, and pursuant to the advertisements, no candidate become available and or no candidates are available or unfit to be appointed, then in that event it will not be open to the State to take a contention that because Management has not filled in the posts for reserved category, open category candidates, should not be appointed on the regular basis on vacancies available in open category. Regular appointment confers 7 on the appointee a status which entitles him to various benefits including seniority and pensionary benefits and the like. The constitutional scheme of equality cannot result in denying equality to the open category candidates merely because reserved category candidates have not been appointed. The test would be the conduct of the management. If the conduct is such that it is on account of deliberate omission on their part that the reserved category candidates have not been appointed. If the Management however, has taken steps as earlier set out and by following the procedure, then in that event respondents cannot deny to the management the right to fill in the posts against open category candidates on the regular basis. Failure to do so would result in arbitrariness and violation of the equality principle. Neither the M.E.P.S. Act or rules permit this. 8. The next question is in so far as present petitioners are concerned. It is not disputed that they were selected by the committee which was duly constituted. Also in the advertisement it was duly mentioned that if reserved category candidates were not available as notified in the advertisement, the appointments will be made from the open category candidates but on temporary basis. It is true that the advertisement was not to fill in the post on regular basis. However, the fact remains that as the Petitioners herein have approached between the year 1991 and 1994. In other words, each of the petitioners herein have put in between 16 to 19 years of service. The Petitioners also are fully qualified. They were receiving their pay from the 8 State Government pursuant to the orders of this court all these years. On these peculiar facts of the case, we are clearly of the opinion both justice and equity requires that their services be regularized from the date the posts are available to be filled up by open category candidates from the academic year 2005-06. The Management therefore, to take steps to regularize petitioners against the posts which have become available and in the order of seniority in which they were appointed. In other words, Petitioners who were appointed first to be regularized first. For the purposes the petitioners be treated as regular from the date the post became available and the Management issues respective letter of appointment. The respondent State to treat the petitioners as regularly appointed from the said date. The Management to inform the department of their regular appointments and thereafter to submit their pay bills on the basis that they are regularly appointed. The respondent state to accept the same and pay them accordingly. 9. Another issue which arises would be the pay to which the Petitioners would be entitled to and their status considering Shikshan Sevek Scheme that has come thereafter. The Shikshan Sevak scheme came into force pursuant to Government Resolution of 13.4.2000. The scheme as sanctioned became part of the provisions of M.E.P.S. Act. Section 2(24A) has been introduced under M.E.P.S. Act by Maharashtra Act No. 14 of 2007 which defines Shikshan Sevek as also the definition incorporates the terms and conditions as contained in the Government Resolution published in the Maharashtra Government 9 Gazette No. 12 Part I dated 15.2.2007. In terms of Para 16 of the Annexure to the Resolution, that resolution would not be applicable to the teachers appointed against the posts meant for reserved category candidates, in the event such persons were appointed when the said G.R. did not apply. Our attention is also invited to the Higher Secondary School (Junior colleges) Rules wherein the teachers appointed on temporary basis are entitled to increments during the period of their appointment. Our attention is also invited to circular dated 7.2.2002 bearing No. 1301/4733/09. In terms of these circular services put in as temporary teacher can be counted for the purpose of time bound promotional scale. Considering these aspects, in our opinion, a teacher appointed and thereafter regularly appointed would be entitled to protection of the pay drawn including increments which were earlier drawn. In these circumstances, the Petitioners would be entitled to protection of their pay scale and other consequential benefits. 10. In the light of that this petition will have to be allowed by issuing the following directions : (1)Petitioners be regularized in terms of our directions. The respondent state to accept the said appointments on regular basis. (2) Petitioners be paid and continued tobe paid on the basis of salary which they are presently drawing and are entitled to increments and any revision in pay scales. 10 (3)Consequent on their regularization if they are entitled to any other consequential benefits, the Management to consider the same and put their cases before the Respondent State and it is for the State to take steps in the matter. Rule made absolute accordingly. No order as to costs. (R.V. MORE,J.) (F.I. REBELLO,J.)