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Judgment
Surendra P. Tavade, J
Rule.
Rule made returnable forthwith by consent of parties. The petition is heard fnally.
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. He also claims salary
in grant in aid since date of his appointment.
Respondent No.3 is an educational institute registered under the provision of Maharashtra Public Trust Act, 1950. On 4 May 2009 Respondent
No.3 issued advertisement in daily newspaper for flling up the 1 / 9 post of peon in the establishment of Respondent No.4, which is the school run by
Respondent No.3. The Petitioner applied for the post of peon. After complying the procedure, he was appointed as a peon with efect from 1 July
2009. Respondent No.4 submitted proposal seeking approval to the appointment of the Petitioner to Respondent No.2 on 19 September 2009.
Respondent No. 2 replied to the said communication and directed that the Petitioner should submit his application for approval in individual camp. On 3
March 2010 in pursuance of the direction of Respondent No.2, the Petitioner submitted fresh proposal for approval to Respondent No.2 in the
individual camp. In turn Respondent No.2 informed the Petitioner that, although the Government Resolution ( for short “GR†of 2009) permits to
make appointment as per stafng pattern contemplated in GR of 2005, however, certain persons working in other schools in the district are likely to be
declared surplus and approval of the Petitioner was not granted. Since the aforesaid communication dated 6 March 2009, surplus employee was not
sent to be absorbed for the post of peon in the establishment of Respondent No.4. No surplus teacher was there, the said fact is not denied by
Respondent Nos. 1 and 2.
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 efect. Respondent No.2 has not provided surplus staf in place of the Petitioner, therefore, the action of Respondent No.2 is not
legal and valid. Hence, the Petitioner fled the present petition.
Respondent No. 2 appeared and fled afdavit-in-reply through Bhimrao D. Tonape, Deputy Education Ofcer (Secondary), Zilla Parishad Kolhapur.
It is contended that the present petition is misconceived and hopelessly bared by limitation. It is contended that Respondent No.3 and 4 had submitted
proposal dated 3 March 2010 for approval of appointment of the Petitioner as a peon. The said proposal was rejected by Respondent No. 2 on the
ground that there was availability of surplus post in Kolhapur district. The said order was never challenged by Respondent Nos. 3 and 4. Therefore,
the Petitioner cannot make fresh application for grant of approval. It is contended that following GRs are relevant for the purpose of deciding validity
of Order dated 6 March 2010 as well as Order dated 9 July 2018:-
(a) 25.11.2005 (Exhibit-1)
(b) 06.02.2009 (Exhibit-2)
(c) 13.03.2009 (Exhibit-3)
(d) 10.11.2009 (Exhibit-4)
(e) 10.06.2010 (Exhibit-5)
(f) 12.02.2015 (Exhibit-6).
It is contended that by aforesaid GRs, the Petitioner was not eligible for appointment of peon on the ground that there was excess number of peons
in respect of school run by Respondent No.4 as per the GR dated 25 November 2005. No permission was sought for giving advertisement dated 4
May 2009 for the appointment of peon by Respondent Nos.3 and 4. Hence, it is prayed that the writ petition be dismissed with costs.
Heard learned counsel on behalf of the Petitioner and learned counsel for Respondent No.2. It is the case of the Petitioner that he was appointed as
a peon in the establishment run by Respondent Nos. 3 and 4 on 30 June 2009 with efect from 1 July 2009. Respondent No.4 submitted proposal for
seeking approval to the appointment of the Petitioner by letter dated 19 September 2009. The said proposal was simply returned back with the
direction that the Petitioner should submit the proposal in individual camp. Accordingly, on 3 March 2010 the Petitioner submitted fresh proposal to
Respondent No.2 in the individual camp, the said proposal was considered by Respondent No.2 and passed order dated 6 March 2010. The said
proposal was returned to Respondent No.4 by informing that although the GR of 2009 permits to make appointment as per the stafng pattern
contemplated in the GR of 2005, however, certain persons are working in the school in the district are likely to be declared surplus and said persons
will have to be absorbed, therefore, the said approval was not granted.
In view of the above order, it is to be seen that it is not case of Respondent No.2 that in the year 2009, there was surplus staf for appointment of
peon in place of the Petitioner. It is also to be noted that Respondent Nos. 3 and 4 submitted fresh application on 1 June 2018 for approval of
appointment of the Petitioner. The same was rejected on the ground that two GRs dated 12 February 2015 and 23 October 2013 were issued and
there was status-quo order on recruitment. Hence, the facts remains on record that since 2009 till 2018, Respondent No. 2 did not send any surplus
person in place of the Petitioner as a peon in the establishment of Respondent No. 4. No material is placed on record by Respondent No.2 that there
was surplus staf in the other schools of the district at the time of appointment of the Petitioner and even subsequent to that.
The learned counsel for Respondent No. 2 heavily relied on the GRs dated 12 February 2015 and 23 October 2013 mentioned in the reply. On this
point, learned counsel for the Petitioner submits that the Petitioner was appointed in the post of peon on 1 July 2009, impugned order was passed on
the basis of GRs namely, 12 February 2015 and 23 October 2013. He also submitted that GRs relied by Respondent No. 2 in paragraph No. 6 of the
reply are subsequent to the appointment of the Petitioner.
Learned Counsel on behalf of the Respondents submits that, in view of GRs dated 12 February 2015 and 23 October 2013, there was status-quo
order on recruitment of non-teaching staf in the establishment of school, therefore, said GRs are squarely applicable to the facts of the present case.
The factual position on record accordingly shows that the Petitioner was appointed as a peon on the establishment of Respondent No. 4 on 1 July
2009. Respondent Nos. 3 and 4 submitted the proposal for approval of appointment of the Petitioner on 19 September 2009. The said proposal was not
rejected by Respondent No. 2, it was simply returned back with direction to submit it in individual camp. There was no averment in the letter issued by
Respondent No. 2 that there was surplus employees in the cadre of peon in the year 2009. Respondent Nos. 3 and 4 submitted second proposal on 3
March 2010. The said proposal was rejected on the ground that certain persons working in the school in the district are likely to be surplus and said
persons will have to be absorbed. If that was the case, then it was expected from Respondent No. 2 to send proposal of any surplus person on the
establishment of Respondent No. 4 till 2018, but no steps are taken by Respondent No. 2 for supplying surplus person in the place of the Petitioner. So
it appears that there was not surplus persons in any school in the district
Learned counsel for the Respondent No.2 to invite out attention GRs dated 12 February 2015 and 23 October 2013. GR dated 23 October 2013 is
regarding stafng pattern however clause-4 of the said GR specifcally mentions that the guidelines which was existing with respect to non-teaching staf
as per the GR dated 25 November 2005 will not comply after 23 October 2013. As per GR dated 12 February 2015 concerns it stipulates that status
quo to be maintained with respect to appointment and new posts and vacant posts should not be flled in any circumstances. It is thus clear that status
quo was directed to be maintained from 12 February 2015 directing that no posts or vacant posts should be flled in. By no stretch of imagination it
could be said that the post of the peon occupied by the Petitioner since 1 July 2009 was either vacant or new post as contemplated under GR dated 12
February 2015. Be that as it may that these GRs which are subsequently to the appointment of the Petitioner are not applicable to the case of the
Petitioner.
Learned counsel on behalf of the Petitioner as relied on the Judgment of this Court in the case of Suman Shriram Kakad (supra) V/s. State of
Maharashtra and others reported in 2011 (1) Mh.L.J. In the said case also the question was whether the GR dated 5 August, 2010 would apply with
retrospective efect. This Court has held that it is a cardinal principle of construction of statute that every statute is prima facie prospective unless it is
expressly or by necessary implication made to have retrospective operation. It is further held that unless there are words in the statute sufcient to
show the intention of the legislature to afect existing rights, it is deemed to be prospective. As a logical corollary of general rule, retrospective
operation is not taken to be intended unless that intention was manifested by express words or necessary implication. Another principle flowing from
presumption against retrospectivity is that one does not expect rights conferred by the statute to be destroyed by events which took place before it
was passed.
It is the case of Respondent No.2 that Respondent Nos. 3 and 4 have submitted that there is a delay in submitting second proposal of the
Petitioner. The said delay is not explained, hence, the petition is not maintainable. On this point, it is already observed that, in the second order it is
reported that there is possibility of surplus persons in others schools of district. Therefore, permission for approval was not granted. The second order
was passed on 6 March 2010, it appears that Respondent Nos. 3 and 4 waited for appointment of surplus person for about eight years but Respondent
No. 2 did not send any surplus person in place of the Petitioner. Hence, Respondent Nos. 3 and 4 has submitted fresh proposal on 1 June 2018. It
appears that there was no surplus persons in the non-teaching staf, therefore, the post of peon in the establishment of Respondent No.4 was not flled
up by Respondent No. 2, therefore, there is no substance in the ground of delay. Respondent No. 2 itself had not taken steps for flling the vacant post
in the place of the Petitioner. In view of the above discussion, we are of the opinion that the impugned order passed by Respondent No.2 is not legal
and valid. Hence, the same is quashed and set aside. The petitioner is in continuous service since 1 July 2009 on vacant post. Hence, his approval for
his appointment is required to be granted. With this, we pass the following order.
ORDER
Impugned order dated 9 July 2018 is hereby quashed and set aside.
The Respondent No. 2 is hereby directed to grant approval to the appointment of the Petitioner as peon in the establishment of Respondent No. 4,
since date of his appointment i.e 1 July 2009 forthwith.
We direct Respondent No. 2 to release grant in aid for payment of salary of the Petitioner since date of his appointment with all consequential
benefts.
No order as to costs.