AI Structured Summary
Not yet generated for this judgment
Judgment
T.V. NALAWADE, J.
1.The petition is filed under Article 226 of the Constitution of India for giving directions to respondent/State to permanently absorb petitioners on the
post of Instructor in Government Technical Institutions till their retirement on priority basis. By making amendment, the petitioners have mentioned
some vacancies available in few technical schools of Government Technical Institutions and they have prayed their absorption on those posts. They
want the relief of setting aside of order made by the respondent due to which they will be required to work on other posts like Clerk-cum-Typist,
Clerk-cum-Storekeeper on their parent establishments, private schools imparting technical education. Both the sides are heard.
2.The petitioners have passed S.S.C. and they have done courses like I.T.I. and it is their contention that they were qualified to work as Instructor in
technical institutions running I.T.I. courses. In the year 2009, they were declared as surplus in non Government technical institutions, which were
receiving grant-in-aid.
3.It is the contention of the petitioners that the petitioners were transferred to various technical schools of Government and after their transfer to
Government Institutions, they worked their as Instructors. It is contended that they were declared surplus due to introduction of new staffing pattern in
the year 2008 and as per the Government scheme, they were transferred to other institutions like Government Institutions. It is their contention that as
they started working with Government Institutions, they are entitled to get absorbed in Government Institutions on the post available with the
Government and so, the Government cannot recruit new persons if and when the posts are available on which the petitioners can be absorbed.
Alternatively, they contended that they are ready to return to their parent institution provided that there the posts of Instructors are given to them.
4.It appears that some posts which were available with the Government in various Government Technical Institutions were advertised and the said
advertisement was challenged in one writ petition. In the said petition, stay was granted to the recruitment, but subsequently, the said proceeding was
withdrawn. It is contended that as there was promise from the respondents to absorb them in Government Institutions, those proceedings were
withdrawn. All other petitions filed by similar persons are withdrawn.
5.Civil Application No. 608/2013 was filed in writ petition to point out some vacant posts which were available in Government Technical Schools and
the petitioners have prayed for giving appointments on those posts as Instructors.
6.In writ petition, Government has filed reply affidavit. It is contended that at no time, there was scheme to transfer or absorb the employees of
private institutions either receiving aid or not receiving aid on the establishment of Government. It is the contention of the Government that there was
no order of transfer of the petitioners and for some time, they were taken on deputation in Government Schools as their services were available. It is
contended that the Government has made it clear that after return of the petitioners to parent department, there will be pay protection to them if the
post of Instructor is not available and they are required to join on other post like Clerk.
7.The learned Senior Counsel for petitioners took this Court through the various Government Resolutions (hereinafter referred to as 'GR' for short)
and some communications of the authority like Director of Education. It is not disputed that in the year 2008-2009 due to new staffing pattern created
by the Government, some posts from private technical institutions which were receiving Government aid were declared as surplus. The petitioners are
from that surplus staff and they were working as Instructors in some private technical schools.
8.In the GR dated 22.5.2008, the Government had expressed the policy about the steps which were required to be taken in respect of surplus staff and
also steps which were required to be taken for creation of new posts as per the new staffing pattern. The GR shows that the assessment of the posts
was done in respect of 1097 private aided institutions. As per the new staffing pattern, 9543 posts were permissible to these institutions and 1006 posts
had become surplus. The Government had given permission to abolish those 1006 posts. The process which was followed for reducing the number of
posts is mentioned in the GR. In para No. 3 of the GR, it is mentioned that as per the GRs of the State Government dated 10.9.2001 and 26.3.2004
and various GRs issued by the finance department of the State, the surplus staff was to be absorbed. Further, direction was given to see that no new
recruitment was to be made unless surplus staff was absorbed. Before making any new appointment on vacant post, the authority was expected to
ascertain that there was no surplus staff who can be absorbed on those posts.
9.The learned Senior Counsel took this Court through GR of the State Government dated 10.9.2001. This GR was issued for taking steps for
assessment of the requirement of staff in Government Department and also in the institutions which were under the Control of the Government. This
exercise was to be done by all the departments and the GR was issued by finance department. The object behind it was to see that the sanctioned
posts are reduced. Ban was imposed for creating of new posts and only after exercise of assessment of the requirement was over, the Government
was to take steps for making new recruitment. In clause (7), it was made clear that those directions were applicable to Government Officers, Zilla
Parishad Offices and also to the Local Bodies and other institutions which were receiving grant-in-aid from the Government. The learned Senior
Counsel took this Court through Annexure 3 of this GR. There is nothing in this GR indicating that the employees, who were declared surplus due to
new staffing pattern in private educational institutions which were receiving grant-in-aid, can be absorbed in Government Department or Government
Technical Educational Institutions.
10.The GR dated 25.7.2007 was issued by Higher and Technical Education Department of the State Government for approval of new staffing pattern.
This GR shows that only that part of the report which was concerning the Government Institutions was considered. There were 3374 posts available
as per the new staffing pattern and so, there was question of abolition of 984 posts. The decision was taken to continue 3374 posts as mentioned in
Annexure to the GR and some posts were declared as surplus. The work which had become available due to abolition of those posts was distributed
to other employees in this GR. Thus, this GR also does not show anything about the absorption of surplus staff from private institutions in Government
Institutions.
11.It appears that the Government had taken decision to start 34 new technical institutions, I.T.Is. in the State. The learned Senior Counsel for the
petitioners placed reliance mainly on the letter dated 27.8.2009 written by Incharge Director of Technical Education to Joint Director. This letter
shows that for the newly established 34 I.T.Is., no posts were sanctioned by the Government. It was expressed in this communication that staff which
had become surplus in Government Technical Institutions can be deputed to the new institutions. Similar staff was available in other technical
institution of the State Government and it was expressed that that staff also can be used in new 34 institutions. It was expressed that there was
surplus staff in private technical institutions which were receiving Government grant and that staff also can be deputed to work in the new 34
technical institutions. It appears that after this communication dated 27.8.2009, on 18.9.2009 and afterwards letters were issued to the petitioners by
Deputy Director of Technical Education and it was informed that the Director had given instructions to see that the staff who had become surplus in
private Government aided institutions was to be used in new technical institutions of the State Government and so, their services were transferred to
the new technical institutions. There are the appointment orders like appointment order dated 18.9.2009 issued in favour of petitioner Shri. K.R.
Kulkarni, who was working as Instructor in Saraswati Bhuvan Tantrik Vidyalaya, Aurangabad. He was shown to be transferred to Government
Technical Institution, Ambad, District Jalna. It appears that subsequently the parent institution of Shri. Kulkarni sent the name of Shri. S.R. Dawre
and so, Shri. S.R. Dawre was shown to be appointed at new institution of Government at Ambad, District Jalna. There are similar orders in favour of
Shri. M.M. Jagtap,Shri. D.D. Joshi and others. Thus, in the orders issued by the authority their services are shown to be transferred though in the
initial correspondence made by the Incharge Director, it was mentioned that services can be used on deputation basis. In any case, there was no
Government scheme to use the surplus staff of private institutions receiving Government aid in Government Institutions even on deputation basis.
When staff becomes surplus, the Rules of Employees of Private Schools (Condition of Service) Regulation Act, 1977 need to be seen in that regard
and the steps can be taken only in accordance with those rules. Rule No. 26 and 27 are relevant in this regard and it can be said that in view of those
rules, there was no provision for staking claim by the surplus staff of the private institutions on Government post or giving appointment by the
Government even on deputation basis to such surplus staff in Government Institutions. This Court has no hesitation to observe that even the Director
of Technical Education had no such authority. Due to blunder of this Incharge Director, the petitioners and probably some others came to be appointed
by issuing orders of aforesaid nature in newly created Government Technical Institutions. Thus, surplus employees of private institutions are now
claiming right on permanent posts from Government Institutions. Due to aforesaid circumstances, this Court has no hesitation to hold that there was no
question of giving appointments to the petitioners in any manner in Government Institutions and the first order made by the authority itself was illegal
and without the authority.
12.It appears that after the advertisement dated 8.8.2011 published by the Government Department to make recruitment of Instructors in Government
Institutions, the persons like petitioners filed writ petitions like Writ Petition No. 7159/2011 in this Court and some interim orders were made.
Subsequently, those petitions were withdrawn. The petitioners of the present proceedings are still feeling that they are entitled to get Government
posts due to the orders issued in their favour in the past, in the year 2009 as mentioned above. It appears that due to some interim orders made by this
Court in various proceedings, some appointments were continued, but the record like minutes of meeting of the year 2012 shows that when the
persons like petitioners created dispute, filed litigations, the authority took it seriously and directions were given to parent institutions to see that the
persons like petitioners were absorbed on the available posts and if the posts of Instructors were not available, they were absorbed on other posts like
Clerks. It is already mentioned that the Government had taken decision to see that their pay as Instructor was to be protected though they were to
work on the post of Clerk. Accordingly, orders were issued against the petitioners also and they were expected to join the parent institutions. The
order was made on 31.12.2012. After that the petitioners came to this Court.
13.The record shows that on the first date itself, this Court admitted the petition, but refused the interim relief. Then Civil Application No. 608/2013
came to be filed on 16.1.2013. Prayer was made to see that no appointments are given by nomination to anybody as per the advertisement published
by the respondent on 8.8.2011. It is already mentioned that in other petitions the process of recruitment was stayed. Submission was made that only
due to the orders made by this Court in many proceedings, the persons like petitioners were continued in Government Technical Schools on the post of
Instructor and the Government was required to spend more than Rs.2.5 Crore due to such appointments. Every Instructor was paid around
Rs.40,000/- to Rs.50,000/- p.m. The learned AGP made a statement that as the petitioners were of no use, they collected salary without practically
doing any work in Government Institutions. This contention is disputed by the learned Senior Counsel, who represented petitioners. The fact remains
that due to orders made by this Court the persons like petitioners continued to work in Government Technical Institutions. This Court has no hesitation
to observe that those posting were in contravention of Articles 14 and 16 of the Constitution of India. In ordinary course, serious action ought to have
been taken against those officers who were responsible for giving appointments to persons like petitioners in Government Technical Institutions. The
nature of orders issued in favour of persons like petitioners is already mentioned and that circumstance was sufficient to initiate departmental action
against those officers. Petitioners cannot be treated as 'innocent persons' when such orders are there.
14.The submissions made show that in accordance with the decision taken by the authority and directions given by the authority, few of the petitioners
subsequently returned to parent institutions. The submissions made show that out of the present petitioners 3-4 petitioners have returned to parent
department. The office note also shows that few petitioners filed pursis and submitted that they were withdrawing the petition. The record shows that
by giving one or other excuse, the proceedings were protracted. Only when the learned AGP took initiative and insisted early hearing of the matter,
this Court realised the seriousness of the matter and this Court saw that proceedings are argued. In view of the aforesaid observations, this Court
holds that the petitioners are not entitled to continue on any post in Government Technical Institutions. For that matter, not for a single day interim
relief can be granted in their favour. If the petitioners do not want to work on lower post even when Government is assuring that their pay scales will
be protected, then they will have to wait and follow the procedure laid down in the rules of Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977.
15.In the result, the petition stands dismissed. All civil Applications are disposed of. The learned Senior Counsel requested for granting interim relief
for some period. But, in view of the aforesaid circumstances and as the Government has already sustained huge loss mainly because of the orders
made by this Court in various proceedings, this Court holds that it is not possible to give interim relief even for a single day. So that request is also
rejected.