The action of filling the post of junior clerk by direct recruitment without considering the claim of lower grade staff is illegal and contrary to law.

JUDGMENT :

Abhay Ahuja, J.

Rule. Rule made returnable forthwith. By consent of learned counsel for appearing parties, finally heard.

2. The petitioner No. 1 was appointed on the post of peon by petitioner No. 2 society school management on 1-9-2005, which is stated to be made on clear and sanctioned post as per prescribed procedure. On the school having received 100% grant, second respondent Education Officer accorded approval to the appointment of first petitioner as peon with effect from the said date. Petitioner No. 1 was promoted to the post of junior clerk w.e.f. 13-2-2015 and is presently serving in the petitioner No. 3 school run by petitioner No. 2 society. However, the proposal dated 16-2-2018 by petitioner No. 3 seeking approval to the said appointment/promotion was rejected by 2nd respondent by order dated 24-7-2018 and therefore, this writ petition.

3. Brief background is that since a junior clerk serving in the school came to be promoted as senior clerk, the post of junior clerk was rendered vacant. Having regard to the placement of petitioner No. 1 in the common seniority list and the roster, so also on giving sympathetic consideration to the 1st petitioner being 50% handicapped, the petitioner school management resolved to promote petitioner No. 1 to the said vacant post of junior clerk in its meeting on 1-3-2015, pursuant to which, petitioner No. 1 was appointed as junior clerk vide order dated 13-2-2015 issued by the secretary of the petitioner No. 2.

4. Thereafter, the petitioner management submitted proposal dated 16-2-2018 to the respondent No.2 Education Officer on 23-2-2018 seeking approval to the said appointment/promotion. The said proposal was rejected by 2nd respondent vide order dated 24-7-2018 on the ground that the post of junior clerk is liable to be filled in by direct recruitment under Government Resolution dated 28-10-2004.

5. Shri M.A. Patil holding for Mr. C.K. Shinde, learned counsel for the petitioners, submits that the Government Resolution dated 28-10-2004 has no application to the present facts and circumstances. He submits that the said Government Resolution refers to implementation of reservation policy for Group-C and Group-D cadres of non-teaching staff engaged in recognized private schools. The said Government Resolution does not speak about the post of junior clerk being only available for direct recruitment and therefore, the application of the said Government Resolution is misplaced. It is not a case of respondents that the post of junior clerk had ever been reserved. He submits that first petitioner suffers of 50% physical disablement that he has been serving as a peon with effect from 1-9-2005. That the benefits of higher pay scale in lieu of promotion have been denied by petitioner No. 1 with a hope that he will get the promotional post as he is the only candidate among the lower grade staff in the institution who is possessing the qualifications required for the promotional post of junior clerk. Petitioner No. 1 is also the senior most lower grade staff member. The channel of promotion provides for promotion to the post of junior clerk from amongst the lower grade staff members and therefore, also deserves to be approved by 2nd respondent.

6. It is submitted that 2nd respondent did not even consider that first petitioner is possessing requisite qualifications for the post of junior clerk. Petitioner No. 1 has passed B.A., MSCIT course and has also passed the Marathi and English typewriting examinations. Petitioner No. 1 has been promoted in accordance with the provisions of M.E.P.S. Act and the Rules. The promotion is not contrary to the provisions of the Act, the Rules or the reservation policy. Even the roster maintained in the school is not affected. The post of the junior clerk is to be filled in as per the provisions of the M.E.P.S. Act and the Rules and the Government Resolution dated 28-10-2004 is not applicable. In any event the Government Resolution cannot override the stat