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2019 DIGILAW 2136 (BOM)

Gautam Jaideo Sarkar v. State of Maharashtra

2019-09-16

R.K.DESHPANDE, VINAY JOSHI

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JUDGMENT : R.K. Deshpande, J. Rule. Rule made returnable forthwith. 2. Learned counsels and learned AGP appearing for the respective respondents waives service of notice. 3. Heard finally by consent of the learned counsels appearing for the parties. 4. The petitioners in all these writ petitions were working on the Class -IV post of peon under the services of Zilla Parishad, Amravati. Their claim is for promotion to the post of Junior Assistant in District Service (Class -IV) of Zilla Parishad. 5. In exercise of powers conferred by clause XXXIX of Sub Section (2) of Section 274 of the Maharashtra Zilla Parishads and Panchayat Samitis Act,1961, the Recruitment Rules called as the Maharashtra Zilla Parishads District Services (Recruitment) Rules,1967 are framed and the same are operating till this date. Appendix IX under Rule 5 deals with District Service (Clause-III) (Sub ordinate Ministerial) Grade-1 including posts of (1) Jr. Assistant (2) Stores Assistant (3) Store keeper and (4) Computer. The appointment to this post is to be made by way of promotion of suitable member of District Service (Class-IV) of Zilla Parishad, who has passed Secondary School Certificate or equivalent examination and has put in three years of continuous service in District Service (Class-IV). All the petitioners have fulfilled this criteria for promotion prescribed under the Recruitment Rules. 6. The petitioners in Writ Petition No.3958 of 2018 and 4257 of 2018 are denied the promotion on the ground that they do not possess the graduation degree, which is the requirement prescribed under the Government Resolution dated 04.06.2018 issued by the Rural Development Department of the State Government and the Notification dated 06.06.2017 issued by the General Administrative Department. The Government Resolution dated 04.06.2018 introduces additional criteria of possessing graduation degree for promotion to Class-III post of Jr. Assistant under the Zilla Parishad. This Government Resolutions at the end specifies that steps shall be taken to amend the concerned Recruitment Rules subsequently, but the Government Resolution is made applicable with effect from 04.06.2018 itself. The Notification dated 06.06.2017 issued by the General Administrative Department is in exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India framing the Rules called as the Clerk-Typist, Group-'C' in the Government Offices outside Greater Mumbai (Recruitment) Rules 2017, applicable to the posts which are not within the purview of Maharashtra Public Services Commission. Proviso below Sub Rule (2) of Rule 1 clearly states that these Rules shall not be applicable to such post of Clerk-typist, Group-'C' in the Government Offices, outside Greater Mumbai, for which the concerned Administrative Department had separately framed the Recruitment Rules. These Rules also specify the additional criteria of possessing graduation degree for promotion to the class-III post of Clerk-cum-Typist under the services of State Government equivalent to the Jr. Assistant working in Zilla Parishad. 7. On 09.07.2018 this Court had issued notice for final disposal of the matter and an interim relief was granted in terms of prayer clause (iii) of the petition, restraining the respondents from proceeding with the process of promotion as per the Government Resolution dated 04.06.2018. It is because of the order passed by this Court that the Rural Development Department of the State Government by its communications dated 11.12.2018 informed the Chief Executive Officer of the all Zilla Parishads that this Court has stayed the Government Resolution dated 04.06.2018 and therefore, the recruitment shall take place in accordance with the old Rules. Hence, this communication is the subject matter of challenge in Writ Petition No.56 of 2019 and 48 of 2019. The petitioners in Writ Petition No.56 of 2019 and 48 of 2019 are the persons possessing the graduation degree and they are opposing the claim of the petitioners in Writ Petition No.3958 of 2019 and 4257 of 2018, who are only matriculate having three years' experience as required under the Recruitment Rules framed by the Zilla Parishad. 8. We need not have a detailed discussion on the matter, except expressing that we are of the clear view that the Recruitment Rules framed in exercise of the powers conferred by Section 274 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, which are in force since 14.12.1967, cannot be amended either by the Government Resolution dated 04.06.2018 or 06.06.2017. It is also not the case of the respondents that these Government Resolutions amend the provisions of the Recruitment Rules of Zilla Parishad. In view of this, the recruitment to Class-III post in the District Service shall remain uninfluenced by the Government Resolutions dated 04.06.2018 and 06.06.2017. The recruitment has to be as per the Recruitment Rules framed under the Zilla Parishad and Panchayat Samitis Act. In view of this, the recruitment to Class-III post in the District Service shall remain uninfluenced by the Government Resolutions dated 04.06.2018 and 06.06.2017. The recruitment has to be as per the Recruitment Rules framed under the Zilla Parishad and Panchayat Samitis Act. The petitioners in Writ Petition Nos.3958 of 2019 and 4257 of 2018 cannot be denied consideration for the promotion to Class-III post on the ground that they do not possess the graduation degree. Obviously, the petitioners in other two writ petitions, if are possessing the requisite qualification in terms of the Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967, then they also cannot be denied the opportunity of promotion in accordance with the Rules. 9. Our attention is also invited to the Notification published in the Maharashtra Government Gazette on 11.06.2019 clarifying that the persons, who are holding the post in Group-D and who have passed the Secondary School Certificate Examination and possesses qualification mentioned in Sub clause (iii) of Clause (b), before the date of publication of these Rules in the Maharashtra Government Gazette, shall also be considered for promotion under Clause (a) for the next five years from the date of publication of these Rules. In view of this Notification also, the recruitment governed by the criteria prescribed under the Notification dated 06.06.2017 stands clarified and those not possessing the graduation degree prior to 06.06.2017 are also held eligible for promotion. 10. In view of above, all these Writ petitions are disposed of by an order as under:- The recruitment to Class-III posts including the post of Junior Assistant under the District Service shall be governed by the Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967 and the Government Resolutions dated 04.06.2018 and 06.06.2017 shall not be applicable to their recruitment. Rule is made absolute in the above terms. No order as to costs.