1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5153 OF 2008 1. Shankar S/o Bhaurao Pawar, Age : 47 Years, Occu. : Service, R/o At Post Andhari, Tq. Sillod, Dist. Aurangabad. 2. Manwarkhan S/o Sardarkhan Pathan, Age : 47 Years, Occu. : Service, R/o At Post Nanegaon, Tq. Sillod, Dist. Aurangabad. 3. Habib Abdar Pathan, Age : 46 Years, Occu. : Service, R/o At Post Borgaon Kasari, Tq. Sillod, Dist. Aurangabad. 4. Bhagwan S/o Shenphad Wagh, Age : 48 Years, Occu. : Service, R/o At Post Khupta, Tq. Sillod, Dist. Aurangabad. 5. Yunuskhan Noorkhan Pathan, Age : 46 Years, Occu. : Service, R/o At Wangi (Bk), Post Bharadi, Tq. Sillod, Dist. Aurangabad. 6. Ganesh S/o Pandit Jadhav, Age : 46 Years, Occu. : Service, R/o At Post Dhontra, Tq. Sillod, Dist. Aurangabad. 7. Yadav S/o Sandu Bidwe, Age : 47 Years, Occu. : Service, R/o At Dhanori Post Bharadi, Tq. Sillod, Dist. Aurangabad. 2 All are working on the establishment of respective Gram Panchayat. .. .. .. PETITIONERS Versus 1. The State of Maharashtra 2. The Divisional Commissioner, Aurangabad Division, Aurangabad. 3. The Chief Executive Officer, Zilla Parishad, Aurangabad. 4. Gawanaji S/o Bhagaji Sananse, Age : Major, Occu.: Service, R/o Animal Husbandry Hospital, Mhasla, Tq. Sillod, Dist. Aurangabad. 5. Sk. Amir S/o Sk. Bannu, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Nachanwel, Tq. Kannad, District Aurangabad. 6. Bhaurao S/o Punjaji Suryawanshi, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Deolana, Tq. Kannad, District Aurangabad. 7. Narayan S/o Mahadu Katkar, Age : Major, Occu. : Service, R/o Primary Health Center, Aland, Tq. Phulambri, District Aurangabad. 8. Narayan S/o Baburao Thorat, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Dahegaon, Tq. Vaijapur, Dist. Aurangabad. 3 9. Sk. Supdu Sk. Fattu, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Sawaladbara, Tq. Soyagaon, District Aurangabad. 10. Sk. Nijam Sk. Abdul, Age : Major, Occu. : Service, R/o Primary Health Center, Borsar, Tq. Vaijapur, Dist. Aurangabad. 11. Rajendra S/o Bajirao Parkhe, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Fardapur, Tq. Soyagaon, District Aurangabad. 12. Sanjay S/o Bibhishan Patil, Age : Major, Occu. : Service, R/o Primary Health Center, Nagad, Tq. Kannad, Dist. Aurangabad. 13. Shamrao S/o Daulat Tawre, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Wasadi, Tq. Kannad, Dist. Aurangabad. 14. Sudam S/o Rangnath Wagh, Age : Major, Occu. : Service, R/o Primary Health Center, Shivur, Tq. Vaijapur, Dist. Aurangabad. 15. Pundlik S/o Sakharam Tandale, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Anwi, Tq. Sillod, Dist. Aurangabad. 4 16. Janardan S/o Sonaji Bhalke, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Palshi, Tq. Sillod, Dist. Aurangabad. 17. Pralhad S/o Pandurang Patil, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Gondegaon, Tq. Soyagaon, District Aurangabad. 18. Ganpat S/o Sandu Sonwane, Age : Major, Occu. : Service, R/o Animal Husbandry Hospital, Panwadod, Tq. Sillod, District Aurangabad. .. .. .. .. RESPONDENTS Shri F. R. Tandale, Advocate for the Petitioners. Shri S. K. Tambe, A.G.P. for the Respondent No. 1 and 2. Shri V. R. Sonwalkar, Advocate for the Respondent No. 3. Shri S. P. Urgunde, Advocate for the Respondents No. 4 to 18. CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. Date on which the judgment is reserved : 02.09.2009. Date on which the judgment is pronounced : 18.09.2009. JUDGMENT [Per N. D. Deshpande, J. ] : 1. Heard both the sides. 2. Perused the order dated 30th July, 2009 passed by this Court for final disposal of writ petition at admission stage, in the mean 5 time, directing the Zilla Parishad to maintain status quo in respect of appointments of Class III and Class IV posts from the cadre of Gramsevak. 3. Rule. Rule made returnable forthwith. Heard finally with consent of both the parties. 4. The petitioners No. 1 to 7 have filed this petition under Article 226 of the Constitution of India for a writ of mandamus and the directions to respondent No. 3/Chief Executive Officer, Zilla Parishad, Aurangabad for quashing the appointment orders dated 16.12.2007, 18.12.2007, 28.12.2007 and 03.05.2008 issued to respondents No. 4 to 18 and further directions to make the appointments of Gram Panchayat employees as per seniority list prepared by respondent No. 3 and approved by respondent No. 1. 5. The petitioners are presently working at various places in Sillod taluka, District Aurangabad on the establishment of the respective gram panchayat and all of them have put in more than 10 years of service. 6. The petitioners felt aggrieved when respondent No. 3/The Chief Executive Officer, Zilla Parashid had issued appointment orders to respondents No. 4 to 18 by superseding them against the relevant Rules of the appointment and the petitioners are senior to them in the seniority list approved and published by the Government, and as such, their appointment orders are impugned in this petition. 6 7. The petitioners alleged claim is on the foot of office circular dated 06th April, 2005 informing that, if the posts of Class III and Class IV employees are to be filled up by direct recruitment, at that time 10 per cent seats from the respective categories are to be kept reserved for the appointment of employees working on the establishment of Gram Panchayat for more than 10 years and those who are not above the age of 45 years as on 28.03.2005 and possess required qualification as per seniority. It was further informed that, the respondent No. 2 will issue the necessary notification in due course in that behalf. 8. It was also directed that, Chief Executive Officers of the respective Zilla Parishad shall prepare the list of full time employees of the Gram Panchayat who have put in more than 10 years of continuous service. The prescribed proforma was also sent for collecting information with a direction to prepare the list of eligible candidates for the approval of the Government. Thus, as per the Government decision, 10 per cent seats are to be filled in from the Gram Panchayat employees. 9. As per the guide lines given by the respondent No. 1, the respondent No. 3 has prepared the list of candidates for the appointment on the establishment of Zilla Parishad. The said list is annexure 'D' to the petition. It is relied by the petitioners who are at Serial No. 3, 5, 6, 8, 11, 13 and 23 respectively. Their names were considered in the list of the eligible candidates prepared by the respondent No. 3 authority amongst others. So they had approached 7 respondent No. 3 on number of occasions during the period 2005 to 2007 to consider their candidature as per the seniority list aforesaid, but it was invain. 10. A joint representation was also made to respondent No. 3 on 05.02.2008. It is annexure 'E' to the petition. The relevant information was also gathered and sought under the Right to Information Act by the petitioners. It was in respect of letter and notification dated 19.08.2005 regarding eligibility for the appointment of Gram Panchayat employees. According to the petitioners, they are eligible for the appointment on the establishment of district services of Zilla Parishad and, therefore, they relied on relevant correspondence and the letters issued by respondent No. 1 aforesaid and the relevant Rules which are at Exhibit 'G' collectively, page 70 to 73 of the paper book. 11. We have examined the petition and the relevant correspondence and the Rules, in the light of affidavit in reply of the respondent No. 3 dated 04.03.2009 and the affidavit in reply of respondent No. 1 and 2 dated 02.05.2009 and the arguments advanced by the parties. In their affidavit in reply it is categorically stated that, the petitioners had cross their age limit of 45 years at the relevant time of entry in the service as per Rule 3(3) of the Maharashtra Z. P. District Services (Appointments) (improvement) Rules 2005, regarding the recruitment from the Gram Panchayat employees on any post of Class III and Class IV of district services. The copy of relevant notification dated 19.08.2005 is also annexed 8 with the petition. The relevant Rules of the above said Act are reproduced as under : 3) After Rule 10 of the Principal/Main Rules, the rules hereinafter will be added : Eligibility prescribed for appointments of Panchayat Employees on the post of Class III and Class IV of District Services as per Rule 10-A : (1) ........... (2) .......... (3) Whatever is provided in the Rules, any recruitment from the Gram Panchayat Employee on any post of Class-III and Class-IV of District Services, the age limit fixed as per prescribed appointment Rules of District Services will be relaxed to 45 years. However, the appointment of Gram Panchayat Employee will be made as per the eligibility prescribed in schedule 1 to 13 for the appointments and procedure of appointments for the post of District Services and post there below in respect of necessity of Educational Qualification, Experience etc. (4) ............ (5) The Gram Panchayat Employee has to resign from his post prior to joining of District Services. 9 12. There appears no dispute about the seniority list prepared as per communication dated 06.04.2005 and those employees who have completed 10 years of their service in respective Gram Panchayat on the relevant date 28.03.2005. In short, the respondent No. 3 contended that, the petitioners are age barred and hence not eligible for appointments at the time of actual appointments and filling of the posts in December, 2007, and, therefore, their contention needs consideration. It is seen that, the petitioners who are at Serial No. 3, 5, 6, 8, 11, 13 and 23 respectively have crossed 45 years. In the seniority list their date of birth is mentioned which is undisputed. The respondents further contended that, the petitioners have no legal right to question them, as to why the posts were not filled in, in a particular year and according to them posts are required to be filled in by adopting due procedure of law and Rules. They have followed seniority list strictly while giving the appointments to those who were found eligible on the date of appointment and urged for dismissal of the petition. The respondents No. 1 and 2 in their affidavit have supported the contention of respondent No. 3. 13. Upon consideration of record and after hearing both the sides, we find considerable force in the submissions of the respondents. Most of the facts are admitted and they are matter of record and dispute is about the interpretation of the relevant rules and the validity of the said Rules have not been challenged in this petition. 14. Thus we do not find any illegality committed by the 10 respondent No. 3 while appointing the respondents No. 4 to 18 and denying the appointment to the petitioners and further find that the recruitment was done by following due procedure and taking into consideration the seniority list. The petition is devoid of substance and deserves to be dismissed. The petition stands dismissed with no order as to costs. Rule is discharged. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/Sept. 09