Case Note & Summary
The petitioner, Mr. Shrikrishna Bhikaji Bondge, filed a writ petition before the Bombay High Court challenging an order dated 9 July 2018 passed by Respondent No.2 (the Education Department) refusing to approve his appointment as a peon in the school run by Respondent No.3 (an educational trust) and Respondent No.4 (the school). The petitioner had been appointed as a peon with effect from 1 July 2009 after an advertisement and selection process. The school submitted a proposal for approval on 19 September 2009, but the Education Department directed the petitioner to apply individually. On 3 March 2010, the petitioner submitted a fresh proposal, but the Department informed him that although the Government Resolution of 2009 permitted appointments as per the staffing pattern of 2005, certain persons in other schools might be declared surplus, and therefore approval was not granted. However, no surplus employee was ever sent for absorption. The petitioner contended that the Government Resolutions of 2013 and 2015, which were relied upon by the Department, were not retrospective and could not be applied to his appointment made in 2009. The court agreed, holding that the impugned order was unsustainable. The court quashed the order and directed Respondent No.2 to grant approval to the petitioner's appointment as a peon with effect from 1 July 2009 and to pay salary in grant-in-aid from that date. The petition was allowed with no order as to costs.
Headnote
A) Service Law - Appointment Approval - Government Resolution - Retrospectivity - The court considered whether Government Resolutions of 2013 and 2015 could be applied retrospectively to deny approval of an appointment made in 2009 - Held that these GRs are not retrospective and cannot be applied to appointments made prior to their issuance (Paras 5-6).
B) Service Law - Surplus Employees - Absorption - The court examined whether approval of appointment can be denied on the ground that surplus employees from other schools might be available for absorption - Held that when no surplus employee was actually sent for absorption, the mere possibility of surplus cannot be a valid ground to deny approval (Paras 4-6).
C) Service Law - Salary - Grant-in-Aid - The court addressed the claim for salary in grant-in-aid from the date of appointment - Held that the petitioner is entitled to salary from the date of his appointment i.e., 1 July 2009, as the appointment was made in accordance with the staffing pattern and no valid reason existed for denial of approval (Paras 3, 6).
Issue of Consideration
Whether the impugned order dated 09 July 2018 refusing approval to the appointment of the petitioner as a peon is sustainable in law, and whether the petitioner is entitled to salary in grant-in-aid from the date of his appointment.
Final Decision
The impugned order dated 09 July 2018 is quashed and set aside. Respondent No.2 is directed to grant approval to the appointment of the petitioner as a peon on the establishment of Respondent No.4 with effect from 1 July 2009 and to pay salary in grant-in-aid from that date. The petition is allowed. No order as to costs.
Law Points
- Government Resolution not retrospective
- approval of appointment cannot be denied on hypothetical surplus
- appointment made in accordance with staffing pattern
- right to salary from date of appointment
Case Details
2021 LawText (BOM) (01) 39
WRIT PETITION NO. 3525 OF 2019
S. C. GUPTE, SURENDRA P. TAVADE
Mr. Chetan G. Patil, Mr. Mandar G. Bagkar (for Petitioner), Mr. Abhijit B. Kadam (AGP for Respondent Nos. 1 and 2), Mr. Bhooshan Mandlik (for Respondent Nos. 3 and 4)
Mr. Shrikrishna Bhikaji Bondge
State of Maharashtra & Ors.
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Nature of Litigation
Writ petition challenging the order of the Education Department refusing to approve the appointment of the petitioner as a peon.
Remedy Sought
Quashing of the impugned order dated 09 July 2018 and direction to grant approval to the petitioner's appointment as a peon with effect from 1 July 2009 and to pay salary in grant-in-aid from that date.
Filing Reason
The Education Department refused to approve the petitioner's appointment as a peon on the ground that surplus employees from other schools might be available for absorption, even though no surplus employee was actually sent.
Previous Decisions
The Education Department had earlier directed the petitioner to apply individually for approval, and later refused approval citing potential surplus employees.
Issues
Whether the impugned order refusing approval to the appointment of the petitioner is sustainable in law.
Whether the Government Resolutions of 2013 and 2015 can be applied retrospectively to deny approval of an appointment made in 2009.
Whether the petitioner is entitled to salary in grant-in-aid from the date of his appointment.
Submissions/Arguments
The petitioner argued that the Government Resolutions of 2013 and 2015 are not retrospective and cannot be applied to his appointment made in 2009.
The petitioner contended that no surplus employee was ever sent for absorption, so the ground of potential surplus is invalid.
The respondents argued that the approval was denied because of the possibility of surplus employees from other schools.
Ratio Decidendi
Government Resolutions of 2013 and 2015 are not retrospective and cannot be applied to appointments made prior to their issuance. Approval of appointment cannot be denied on the hypothetical ground that surplus employees might be available when no surplus employee was actually sent for absorption. The petitioner is entitled to salary from the date of his appointment as the appointment was made in accordance with the staffing pattern.
Judgment Excerpts
The Petitioner is seeking relief that the impugned order passed by Respondent No.2 dated 09 July 2018 be quashed and set aside and to grant approval to his appointment as a peon on the establishment of Respondent No.4 since date of his appointment i.e on 1 July 2009.
It is contended that the GR dated 12 February 2015 and 23 October 2013 are not applicable to the facts of the present case. Those GRs are not having retrospective effect.
No surplus teacher was there, the said fact is not denied by Respondent Nos. 1 and 2.
Procedural History
The petitioner was appointed as a peon on 1 July 2009. The school submitted a proposal for approval on 19 September 2009. The Education Department directed the petitioner to apply individually. On 3 March 2010, the petitioner submitted a fresh proposal. The Department refused approval citing potential surplus employees. The petitioner filed the present writ petition challenging the order dated 09 July 2018.
Acts & Sections
- Maharashtra Public Trust Act, 1950:
