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1979 Supreme(Bom) 199
IN THE HIGH COURT OF BOMBAY
(Nagpur BENCH)
Kanade M.p. And Jamdar M.S., J.
Dinkar Sakharam Kulkarni.... Appellant.
Versus
District And Sessions Judge, Akola And Others.... Respondents.
Writ Petition No. 1650 of 1979, decided on 12-9-1979.
Advocates appeared:
S.N. Kherdekar, S.D. Deshpaude, M. S. Deshpande, for petitioner.
S.S. Deshpandeand N.S. Kherdekar.
D.P. Jaiswal, A.G.P., for respondent No 2.
C.G. Madkholka, for respondent No. 3 .
The re-employment of a retired employee under Rule 330 of the Bombay Civil Services Rules, 1959, must be on public grounds and in a purely temporary capacity. The determination of whether an appointment is made on public grounds is a matter of subjective satisfaction of the appointing authority and is not justiciable by the Court.
Headnote:
RE-EMPLOYMENT - PUBLIC GROUNDS - RULE 330 BOMBAY CIVIL SERVICES RULES, 1959 - APPOINTMENT OF RETIRED EMPLOYEE - INTERPRETATION - PUBLIC INTEREST - DISCRETIONARY POWERS - JUDICIAL REVIEW - APPOINTMENT OF ADDITIONAL CLERK OF COURT - JURISDICTION OF DISTRICT JUDGE - PROMOTION - DIRECT RECRUITMENT.
Fact of the Case:
The petitioner, a senior clerk in the District Court, challenged the order of the District Judge re-employing respondent No. 3, a retired Additional Clerk of the Court, for one year under Rule 330 of the Bombay Civil Services Rules, 1959. The petitioner claimed that the re-employment was not on public grounds and violated his right to promotion to the post.
Finding of the Court:
The Court held that the re-employment of respondent No. 3 was on public grounds as the District Judge had considered the relevant facts and circumstances, including the experience and efficiency of respondent No. 3, the need for his services in the District Court, and the lack of qualified personnel to fill the post. The Court also held that the District Judge had the jurisdiction to re-employ respondent No. 3 to the post of Additional Clerk of the Court, as he had the authority to appoint an employee to the said post by way of promotion.
Issues: 1. Whether the re-employment of respondent No. 3 was on public grounds as required by Rule 330 of the Bombay Civil Services Rules, 1959? 2. Whether the District Judge had the jurisdiction to re-employ respondent No. 3 to the post of Additional Clerk of the Court?
Ratio Decidendi: 1. The Court interpreted Rule 330 of the Bombay Civil Services Rules, 1959, and held that the re-employment of a retired employee must be on public grounds and in a purely temporary capacity. The Court further held that the determination of whether an appointment is made on public grounds is a matter of subjective satisfaction of the appointing authority and is not justiciable by the Court. 2. The Court held that the District Judge had the jurisdiction to re-employ respondent No. 3 to the post of Additional Clerk of the Court, as he had the authority to appoint an employee to the said post by way of promotion.
Final Decision: The Court dismissed the petition and upheld the order of the District Judge re-employing respondent No. 3.
2. Respondent No. 3 T.P. Harkare was working as an Additional Clerk in the District Court, Akola and he was due to retire on June 30, 1979.
3. It appears that the respondent No. 3 applied to the District Judge, Akola for giving him further continuance in the service and has requested that he may be employed in the same post or he may be re-appointed as a Junior Clerk, which, according to him, is his substantive post. Nearly twenty other persons had also applied to the District Judge, Akola for the
said post of Additional Clerk of the Court. Those twenty applicants also opposed the application of respondent No. 3 for further extension in service
on the ground that the service or re emyloyment of respondent No. 3 in the same post would affect their promotions.
4. It further appears that one S.L. Nandurkar and R.M. Alkari who were also Senior Clerks (Higher Grade) and who were also to retire on June 30, 1979 had also applied to the District Judge, Akola for further extension or re-employment in the service.
5. The learned District Judge, Akola heard Mr. Nandurkar and Mr. Alkare. Their applications for re-employment were rejected. The learned District Judge, however, allowed the application of Shri T.P. Harkare, respondent No. 3 and he has been re-employed in the same cadre and the
post of Additional Clerk of the Court for one year, commencing from July 2, 1979. According to the petitioner, the appointment of respondent No.3 in the same post as Additional Clerk of the Court has barred the promotion of the petitioner because he was the next incumbent to be promoted to that post.
6. The order of re-appointment of respondent No. 3 is challenged by the petitioner in this application on the ground that respondent No.3 was
not entitled to re-employment and that too in the same post, as the said appointment was not on the public grounds. It is further contended by the
petitioner that the re employment of respondent No. 3 and posting him in the same post of Additional Clerk of the Court is illegal, unjust and violative of the right of equality guaranteed to the citizen of India under Articles 14 and 16 of the Constitution of India.
7. In paragraph 8 of the petition, it is further contended by the petitioner that the order of re-employment of respondent No. 3 seems to have been passed by the District Judge under the powers vested in him under Rule 330 of the Bombay Civil Services Rules, 1959. The petitioner further contented that even if the powers of the District Judge to grant re-employment is conceded, the District Judge has no power to retain respondent No. 3 as Additional Clerk of the Court and therefore the said re-employment of the respondent No. 3 will be illegal and without jurisdiction and contrary to the provision of Rule 330 of Bombay Civil Services Rules, 1959. It is further contended that t here is no public purpose involved in the re-employment of respondent No. 3 and that the appointment of respondent No. 3 is nothing but an act of favouritism shown towards respondent No. 3.
8. The application filed by the petitioner is resisted by respondent Nos. 1 and 2 contending inter alia that the petitioner is not entitled to the
promotion to the post which is held by respondent No. 3 as Additional Cl
