Case Note & Summary
The Petitioner, Prathamesh Nayan Mulye, was appointed as a Laboratory Assistant on 11 July 2012 by Respondent No. 5 School, managed by Respondent No. 4, an aided institution. The post fell vacant due to superannuation of the previous incumbent on 31 May 2012. After inquiring with the Education Officer about surplus employees and receiving none, the school published an advertisement in the newspaper 'Sakal' on 21 June 2012. The Petitioner was selected and appointed. However, the Education Officer (Respondent No. 3) refused to grant approval to the appointment by order dated 20 October 2022 on three grounds: (a) failure to obtain prior permission under G.R. dated 6/2/2012; (b) advertisement not published in two newspapers as per the G.R.; and (c) existence of backlog of reserved category. The Petitioner challenged this order by way of a writ petition. The High Court examined the grounds of rejection. It held that the requirement of prior permission and publication in two newspapers under G.R. dated 6/2/2012 is directory and not mandatory; non-compliance is an irregularity that can be condoned by imposing costs. The court noted that 'Sakal' is a widely circulated newspaper, and the advertisement contained relevant details. Regarding the backlog of reserved category, the court observed that the post in question was in the open/general category, and the existence of backlog does not invalidate the appointment. The court also considered that the Petitioner had been working uninterruptedly for over 10 years, and disturbing his employment would cause prejudice. Accordingly, the court allowed the petition, set aside the impugned order, and directed Respondent No. 3 to grant approval within 30 days. However, the court imposed costs of Rs. 50,000 on Respondent Nos. 4 and 5 (the school management) to be deposited with Kirtikar Law Library, and kept open the obligation of the school to fill backlog of reserved category in future appointments.
Headnote
A) Service Law - Appointment Approval - Condonation of Irregularities - G.R. dated 6/2/2012 - The requirement of prior permission and publication in two newspapers under G.R. dated 6/2/2012 is directory, not mandatory; non-compliance is an irregularity that can be condoned by imposing costs, especially when the advertisement was published in a widely circulated newspaper like 'Sakal' (Paras 11-13). B) Service Law - Backlog of Reserved Category - Open Category Appointment - The existence of backlog in reserved category does not render an appointment to an open/general category post illegal; the employer is obliged to fill backlog in future appointments (Paras 14-15). C) Service Law - Long Uninterrupted Service - Equitable Relief - A candidate who has served uninterruptedly for over 10 years should not be disturbed on technical grounds; the court may direct approval with costs to balance equities (Paras 13, 16).
Issue of Consideration
Whether the refusal to grant approval to the appointment of the Petitioner as Laboratory Assistant on grounds of non-compliance with G.R. dated 6/2/2012 and backlog of reserved category is sustainable in law
Final Decision
Writ Petition allowed. Impugned order dated 20/10/2022 set aside. Respondent No. 3 directed to grant approval to the appointment of the Petitioner as Laboratory Assistant within 30 days. Respondent Nos. 4 and 5 directed to pay costs of Rs. 50,000 to Kirtikar Law Library within 30 days.
Law Points
- Prior permission under G.R. dated 6/2/2012 is not mandatory
- advertisement in a newspaper with wide circulation is sufficient
- backlog of reserved category does not invalidate open category appointment
- long uninterrupted service justifies condonation of irregularities
