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Judgment
(Per Abasaheb D. Shinde, J.)
Rule. Rule made returnable forthwith. With the consent of the parties, writ petition is heard finally at the admission stage.
FACTUAL MATRIX :-
By way of this writ petition, filed under Article 226 of the Constitution of India, the petitioner has put forth following substantive prayers :-
“A. The Record and Proceedings in respect of appointment, approval, sanction to the post and salary of petitioner and attendance register and the total amount of salary and arrears of the petitioner given by the respondent nos.4 to 7 to respondent nos.1 to 3 be called from the respondents.
B. The writ petition may be allowed with costs :-
1.The Respondents may be directed to pay his regular salary as per the pay scale prescribed for the post of Librarian i.e. in the scale of Rs.5,200-20,200/- with grade pay of Rs.2,800/- alongwith all consequential benefits, by depositing the said amount in the bank account of the petitioner i.e. (SBI branch, IFSC SBIN020049, Nanded in S.A/c No.6205883396).
2.To direct the respondents to deposit arrears of salary of the petitioner in this Hon’ble High Court i.e. more than Rs.50 Lacs.
3.To direct the respondents to deposit the amount of P.F. and Gratuity in the respective account of petitioner.
4.To direct the respondents to regularize the services of the petitioner by giving him all consequential benefits.
5.To direct the respondent nos.4 to 7 to make inquiry of the Jijamata Ashram School, Hassapur, run by Jay Malhar Shikshan Prasarak Mandal and to take necessary action against them.
6.To direct the respondent no.7 to take action against the responsible officer who are paying the amount of salary of the employees of Ashram School directly to the management i.e. respondent nos.1 to 3.
7.To direct the respondent nos.4 to 7 to make the inquiry against the respondent nos.1 to 3 for their act of misappropriation of the Government funds and to prosecute them and also to take departmental action.
F. That the order dated 13.9.2017 passed by Regional Deputy Commissioner, Social Welfare Region, Latur may be quashed and set aside and respondents may be directed to give approval to the petitioner as Part Time Librarian (2005-2009) and Full Time Librarian (from 2009 onwards) in the Ashram School of respondent nos.1 to 3. and They may also be directed to pay his regular salary and arrears of salary in the prescribed pay scale as part time librarian from 2005-2009 and as full time librarian from 2009 onwards and to give all consequential benefits.”
It is case of the petitioner that respondent no.1 is an Educational Institution registered under the Societies Registration Act, it runs respondent no.3-Ashram School. Respondent nos.1 to 3 issued an advertisement on 03.06.2005 for filling up the post of Part-Time Librarian. Pursuant to said advertisement, he participated in the selection process. Since he possesses requisite qualification of B.A., M.A., B.P. Ed and Bachelor of Library, he was selected for the said post. Accordingly, respondent nos.1 to 3 appointed him on 20.06.2005. Respondent no.4 approved his services on 25.03.2008 as a Part-Time Librarian. On 1.5.2010 he was appointed as Full-Time Librarian. Despite having rendered services, respondent nos.1 to 3 did not pay his regular salary nor have deposited the provident fund, gratuity and other benefits in his account. It is further contended that, since he was persistently requesting to pay his regular salary as well as the arrears thereof, respondent nos.1 to 3 threatened to discontinue his services. Petitioner, therefore, has approached this Court. In the interregnum period, respondent no.4, by order dated 13.09.2017 cancelled the approval to the appointment of the petitioner as a Part-Time Librarian on the ground that the said post was not admissible as per staffing pattern of 2013-2014. The petitioner therefore amended the Writ Petition thereby challenging the said order.
SUBMISSIONS :-
Learned senior counsel appearing for the petitioner submits that the appointments of the petitioner both Part-Time as well as Full-Time Librarian are made after following due procedure of law. However, the petitioner is not paid his salary as well as other service benefits till date. He would submit that, the appointment of the petitioner as Part-Time Librarian was approved on 25.03.2008 after verifying the record. He further submits that, Respondent No.5 while cancelling the approval, lost sight of the fact that, the post of Part-Time Librarian in academic year 2013-2014 was very much available. He, therefore, urges that Writ Petition deserves to be allowed.
Per contra, learned AGP relying on the affidavit-in-reply filed by respondents no.4 to 7 submits that as per the provisions of Secondary School Code and the recommendation of Chiplunkar Committee, the post of Librarian in the Ashram School having less than 1000 students was not admissible. The respondent nos.1 to 3 without seeking prior permission from respondent no.5 and without adhering to the provisions of section-5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short MEPS Act) appointed the petitioner. Respondent no.5, therefore, has rightly cancelled the approval to the appointment of the petitioner as a part-time Librarian. He, therefore, urged that writ petition being devoid of any substance deserves to be dismissed.
Learned senior counsel representing respondent nos.1 to 3 supported case of the petitioner inter-alia contending that respondent nos.1 to 3 have followed the due procedure of law while appointing the petitioner initially as a part-time librarian and thereafter as a full-time librarian. He would submit that it is on account of non-grant of approval, the petitioner is not being paid his regular salary as well as other consequential benefits. He further submits that as per revised Government Policy, the posts of Part-Time Librarian are now upgraded as Full-Time Librarian. He would urge that this Court may pass an appropriate order.
CONSIDERATION :-
We have heard learned senior counsel for the petitioner, learned A.G.P. for respondent-State, learned senior counsel for respondent nos.1 to 3, and with their able assistance we have perused the record.
Indisputably, petitioner was appointed as a Part-Time Librarian on 20.6.2005 and his appointment as a Part-Time Librarian was approved by respondent no.4 on 25.3.2008. Petitioner, thereafter has been appointed as a Full-Time Librarian on 1.5.2010. Pursuant to the proposal submitted by respondent no.1 to 3 seeking approval to the appointment of the petitioner as Full-Time Librarian, respondent no.4 vide communication dated 14.5.2013 recommended the said proposal. Respondent No.5 however instead of considering the said proposal, cancelled the approval to the appointment of the petitioner as Part-Time Librarian vide impugned order dated 13.9.2017 on the ground that the post of Part-Time Librarian was not sanctioned as per the Staffing Pattern of 2013-2014.
By virtue of revised Government policy promulgated by Respondents vide Government Resolution dated 01.08.2024, the posts of Part-Time Librarian have now been upgraded to Full-Time Librarian. It is pertinent to note that, the name of the petitioner figures at Sr. No. 19 in the list of the employees whose services from Part-Time Librarian are being upgraded to the Full-Time Librarian as per the said Policy.
This Court in Writ Petition No.6677 of 2021 in case of Sanjaykumar S/o. Prataprao Wagh Vs. The State of Maharashtra and Others decided on 26.07.2022, in Writ Petition No.2074 of 2020 in the case of Raju Kishanrao Pawar Vs. The State of Maharashtra and Others with connected Writ Petitions decided on 01.10.2022 and Writ Petition No.12902 of 2018 in the case of Punjahari Baburao Dighe and Others Vs. The State of Maharashtra and Others with connected Writ Petitions decided on 06.05.2022 has taken a consistent view that, Part-Time Librarians are entitled for up-gradation as Full-Time Librarian. The relevant observations of this court in case of Punjahari Baburao Dighe (Supra) reads thus:-
57.In our view, the State Government while issuing Government Resolution dated 3rd August 2006 could not have been taken away the benefits granted under the Government Resolution dated 28th June 1994 which were granted pursuant to the acceptance of Shri V. V Chiplunkar Committee Report. The said Government Resolution dated 3rd August 2006 could not have been issued inconsistent with the provisions of Secondary School Code. In our view, by the said Government Resolution dated 28th June, 1994 there was only up-gradation of approved part time posts of part time librarians to the post of full time librarians and such up-gradation was automatic once the strength of students had become 1000 or above. The respondents were thus obliged to grant status of full time librarian to the petitioners on the date of strength of the students had become 1000 or more WP No.12902/18 & Ors. alongwith all consequential benefits, pay fixation from due date.
60.There is no substance in the submission of the State Government that there would be any discrimination between the part time librarian given status of full time librarian on the date of the strength of the students having reached 1000 or more and the full time librarian appointed after D. C. P. S. scheme came into force. The said Government Resolution dated 03.08.2006 taking away the rights vested in employees under G. R. dated 28.06.1994 is illegal, arbitrary and in violation of Article 14 of the Constitution of India. The judgments relied upon by the learned Additional Government Pleader are distinguishable on facts and would not assist the case of the State Government.
In light of the aforesaid decisions as well as having regard to the revised Government Policy vide Government Resolution dated 01.08.2024 where the petitioner’s post from Part-Time Librarian to Full-Time Librarian has been upgraded, and in view of the fact that the petitioner is in continuous service, we are of the considered view that the impugned order cancelling the approval to the appointment of the petitioner as Part-Time Librarian is unsustainable and hence deserves to be quashed and set aside by directing respondent no.5 to grant approval to the appointment of the petitioner as a Part-Time Librarian as well as Full-Time Librarian. Needless to state that, the petitioner would be entitled for the consequential benefits flowing from the said approvals.
Before parting, we may observe that, the petitioner is claiming arrears of salary for the period from 2005 to 2009, whereas the writ petition has been filed in the year 2019. In view thereof, the petitioner would be entitled for arrears of salary for the period preceding three years of filing of the Writ Petition and not prior to that. A support can be drawn from the judgment of the Hon’ble Apex Court in the case of Gas Authority of India Limited v. Indian Petrochemicals Corporation Limited reported in (2023) 3 SCC 629 , wherein it is held that,
28.We, however, now turn to whether the whole amount is to be refunded. The alternative argument of the learned Solicitor General was that the period of limitation, in any case, could not have been expanded in granting the refund. No doubt the issue of loss of transportation charges was flagged by IPCL in various communications exchanged inter se the parties subsequent to the signing of the contract. That, however, cannot grant a license to IPCL to approach the court as and when it considers proper. Thus, while upholding the quashing of the clauses, we are of the view that the refund should be restricted to a period of three years prior to the date of the filing of the writ petition on account of IPCL's delay in approaching the court. Here we draw strength from judgment in Lipton India Limited and Ors.1 case referred to aforesaid, which observed that the writ petition was entertained because of the plea of discrimination but then the relief was restricted to what would have been claimed in the suit. (Emphasis Supplied)
We, however, are of the considered view that 50% of the services rendered by the petitioner as a Part-Time Librarian from 2005 would be considered for the purpose of pensionable service. In this view of the matter, we proceed pass the following order.
O R D E R
Writ petition is partly allowed.
The impugned order dated 13.09.2017 passed by Respondent No.5-The Regional Deputy Commissioner, Social Welfare Region, Latur is hereby quashed and set aside.
Respondent No.5, the Regional Deputy Commissioner, Social Welfare Region, Latur is directed to grant approval to the appointment of the petitioner as Part-Time Librarian as well as Full-Time Librarian with consequential benefits flowing from it.
The respondents shall pay arrears of the salary of the petitioner for the period Three (3) years prior to the date of filing of the Writ Petition within six (6) months from the date of uploading of this order.
The respondents are directed to consider 50% of the services rendered by the petitioner as a Part-Time Librarian for the purpose of pensionable services.
Rule is thus made absolute in the above terms with no order as to costs.