wp.4578.10
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4578/2010
* Shri Ganesh s/o Wasudeorao Khule
Aged 55 years, occupation: Service
Senior Research Assistant
O/o Directorate of Research
Dr.Punjabrao Krishi Vidyapeeth,
Akola, Tq. and Dist. Akola. ..PETITIONER.
VERSUS
1) State of Maharashtra
Through the Secretary
Agriculture, Animal Husbandry,
Dairy Development Department,
Mantralaya, Mumbai-32.
2) Dr. Punjabrao Deshmukh Krishi Vidyapeeth
Akola: Through its Registrar.
3) The Chairman & Vice-Chancellor
Academic Staff Selection Committee
Dr.Punjabrao Deshmukh Krishi Vidyapeeth
Akola.
4) Shri Prakash s/o Anantrao Kahate
Aged 44 years, occupation: Service
Head of Department of Animal Husbandry
& Dairying, Dr.Punjabrao Deshmukh Krishi
Vidyapeeth, Akola ..RESPONDENTS
.
...................................................................................................................
Shri A.J. Thakkar, Advocate for the petitioner
Shri N.S. Rao, Assistant Government Pleader for respondent no.1
Shri P.B. Patil, Advocate for respondent nos.2 & 3
Shri P. S. Khubalkar, Advocate for Respondent No.4
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wp.4578.10
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 1 5 th June, 2017 ORAL JUDGMENT: (Per R.K.DESHPANDE, J.) This petition challenges the promotion of the respondent no. 4 on the post of Assistant Professor, Animal Husbandry and Dairy granted by the respondent no.2-Vice-Chairman and Vice Chancellor, Academic Staff Selection Committee of Dr. Punjabrao Deshmukh Krishi Vidyapeeth, Akola, on 27th October, 2009. The petitioner further claims that he being second in order of merit, he should be granted deemed promotion to the post of Assistant Professor with effect from 27.10.2009 along with all consequential benefits.
2. The petitioner was working as Senior Research Assistant under the Directorate of Research in Dr. Pujabrao Deshmukh Krishi Vidyapeeth, Akola with effect from 31.03.1983. The post of Assistant Professor in the subject of Animal Husbandry and Dairy was a promotional post, to the post of Senior Research Assistant required to be filled in on the basis of the criteria of merit-cum-seniority. All eligible candidates in order of seniority were considered for the post of Assistant ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 3 Professor including the petitioner and the respondent no.4-Prakash Anantrao Kahate, by the competent Selection Committee in its meeting held on 27.10.2009. Since the respondent no.4-Kahate obtained highest marks in the selection, he was promoted to the said post by an order dated 27.10.2009 though he was junior to the petitioner in the order of seniority, in the post of Senior Research Assistant.
3. It is not in dispute that the promotion in question on the basis of merit-cum-seniority was governed by Statute 73 which is reproduced below :
" Statute 73.
Qualifications of Academic Staff Members -
(a) For being appointed to any post in the University Service mentioned in Column 2 of Appendix III, a person shall possess the minimum qualification mentioned against each such post in column 3 of the Appendix III.
(b) If the Selection Committee is satisfied that candidates with prescribed qualification or experience or both are not available for Selection and makes a report to the State Government to that effect, the State Government may relax a higher basic qualifications or experience or both in making the appointments as may be necessary."::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 :::
wp.4578.10 4 Appendix III which is relevant in the present case and referred to in clause (a) of Statute 73 above, so far as it relates to the post of Assistant Professor, is reproduced below :-
Sr. Designation of the post Qualification No.
2. ASSISTANT PROFESSOR (1) Pd. D. in respective subjects or
master's degree in the respective
subject with two years experience in
teaching, research or extension
education.
(2) Evidence of published papers in
recognised journals.
4. Shri Thakkar, learned counsel appearing for the petitioner has invited our attention to the decision of the Division Bench of this Court in the case of Mahatma Phule Krishi Vidyapeeth and others vs. State of Maharashtra and another, delivered on 9th December 1991, in Writ Petition No.3601/1991. He submits that clause (2) under Item 2 in Appendix III of statute 73 regarding "evidence of published papers in recognized journals" was struck down by this Court. He submits that ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 5 if the marks awarded to all the candidates under the said clause are ignored, then on the basis of the recommendations of the Selection Committee, he would be the first candidate in the merit list and also being the senior-most was required to be appointed by way of promotion. He submits that this judgment delivered by the Division Bench was circulated by the Deputy Registrar(Establishment), Dr. Punjabrao Krishi Vidyapeeth, Akola, under his covering letter dated 20th March,1992 to the Principal of Shivaji Agricultural University, Amravati and the Selection Committee was well aware of the said decision. He submits that in view of this, the Selection Committee could not have allotted or considered the marks allotted under the head of "Academic contribution".
5. Shri Rao, learned Assistant Government Pleader for respondent no.1, Shri Patil, learned counsel appearing for the respondent nos. 2 and 3 and Shri Khubalkar, learned counsel for respondent no. 4, do not dispute that the post of Assistant Professor was required to be filled in on the basis of the aforesaid statute, on the principle of merit-cum-seniority. They also do not dispute that the petitioner was senior to the respondent no.4 in the post of Senior ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 6 Research Assistant. It is not the contention raised by the respondents that the decision delivered by the Division Bench of this Court in Writ Petition No.3601/1991 was not to the knowledge of the respondent nos.2 and 3 when the selection in question was conducted. According to them, the decision delivered by the Division Bench of this Court is not applicable to the facts of the present case, for the reason that the controversy involved in the said judgment pertained to possessing of minimum qualification and not to the preferential qualification in Clause No.(2) under Item No. 2 of Appendix III.
6. Page 45 of the petition reflects the criteria of marks adopted by the Selection Committee for promotion of Senior Research Assistant to the post of Assistant Professor in the meeting held on 27th October 2009, and it is reproduced below :-
"Annexure XXV Criteria of Marks adopted by the Selection Committee for promotion of Senior Research Assistant to the post of Assistant Professor in it's meeting held on Tuesday, the 27th October, 2009.
1) Confidential Reports: 30 Marks A+ A B+ B B-
30 25 20 15 10
2) Experience: 30 Marks 0-3 Years As Senior Research Assistant - Nil.
Fourth year onwards - 02 Marks for each ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 7 completed year of service as Senior Research Assistant.
3) Qualification 10 Marks - M.Sc. - 05 --- Ph.D.-10 4) Academic Contribution : 30 Marks a) Research Publication --- 1.5 Mark/Publication b) Technical Publication --- 0.5 Mark/Publication c) Extension Publication --- 0.2 Mark/ Publication d) Recommendations --- 1.0 Mark/Recommendation e) Book chapter --- 0.5 Mark/Chapter f) Courses Tought --- 1.0 Mark/Course g) Variety Developed --- 3.0 Marks/Variety h) Books --- 2.0 Marks/Book i) Awards --- 1.0 Mark/Award j) Patents --- 1.0 Mark/Patent k) Farm Experience 1.0 Mark/ Year Service at farms
(CRS/CDF/Res.Centre/A.T.School/ KVK.)"
On Page 46 of the petition, a tabulated statement of marks obtained by each of the candidate considered for selection, is reproduced and the same is as under :
Sr. Name of candidate Marks obtained by each candidate
No
Confi. Experi- Qualifi- Acad. Total Rank
Reports ence cation Contri. Marks
1 Shri G.W.Khule 20 30 5 9 64
2. Shri P.M.Bharad 21 18 5 12.5 56.5
3. Shri P.A. Kahate 21 16 5 30 72 I
4. Shri A.M.Mahajan 17.5 2 5 13.5 38
5. Shri A.W. Deshmukh 19 8 5 3.5 35.5
Recommended for Promotion under Open category is given below:
1) Shri P.A.Kahate." ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 8
It is thus apparent that all the candidates were allotted marks under the head of "Academic contribution."
7. In paragraph 9, the Division Bench of this Court, in case of Mahatma Phule Krishi Vidyapeeth, cited supra, has considered the following question :
"9. The question for consideration is as to whether the prescription of qualification of evidence of published papers in recognized journals with reference to the posts of Associate professors and Assistant Professors, regarding as the Minimum qualification is justifiable as having rational relation in the matter of selection to the post of Associate Professors?"
After recording the reasons the Division Bench of this Court in paragraph 21, held as under :
"21. For all these reasons, we hold and declare that the condition no.(2),namely, "evidence publishing papers in recognized journals" for selection to the post of Associate Professor or Assistant Professor, be struck down, and consequently direct the respondents no.2 and 3 to consider all ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 9 the persons who have applied in pursuance to the advertisement (Exhibit C) for the posts of Associate Professors or Assistant Professor including those who do not have the qualification of evidence of published papers in the recognised journals. The alleged selection in the post in Selection Committee held on November 19,1991, quashed and set aside and, the Selection Committee (respondent no.3) is hereby directed to consider the question of the concerned appointments by considering all the persons who have applied in pursuance to the advertisement (Exhibit C) for the posts of Associate Professors including those who do not have the qualification of "evidence of published papers in the recognized journals" afresh. Rule is accordingly made absolute. However, on the facts and circumstances of the case, there shall be no order as to costs."
8. In view of the aforesaid law laid down by this Court, it was not permissible for the respondents to have allotted the marks to the candidates under the head "Academic contribution" mentioned in the criteria of marks adopted by the Selection Committee, which is referable only to Clause No.(2) in Item No.2 of Appendix III in Statute 73 framed by the University.
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9. Perusal of the tabulated statement of marks reproduced above clearly indicates that the petitioner who was Sr. No.1 had obtained 64 marks and if nine marks allotted to him under the heading of "Academic contribution" are deducted his total marks would be 55. The respondent no.4 is at Sr.No.3 and he is shown to have obtained 72 marks which include 30 marks under the heading of "Academic contribution". If those 30 marks are ignored the respondent no.4 would be getting 42 marks. The petitioner being a meritorious candidate having secured 55 marks ought to have therefore been selected and appointed to the post of Assistant Professor on the basis of merit-cum-seniority. We do not find any justifiable reason for denying this claim to the petitioner but, on the contrary, we find that inspite of knowing the judgment delivered by this Court, the respondent nos.2 and 3 have, in exercise of their discretion, allotted the marks under the head of 'academic contribution' on the basis of which the respondent no.4 was appointed.
10. When the petition was filed, the petitioner was aged about 55-years in 2010. He was superannuated from the post of Senior Research Officer on attaining the age of 58-years with effect from 30.09.2012. In view of this, the question of granting actual promotion ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 11 to the petitioner to the post of Assistant Professor, by disturbing the respondent no.4 from the said position, does not at all arise.
11. Shri Thakkar, learned counsel appearing for the petitioner has relied upon the decision of the Hon'ble Apex Court, in the case of Ramesh Kumar vs. Union of India and others, reported in 2015 (14) SCC 335. Paragraph Nos. 14 to 16 of the said judgment being relevant, are reproduced below :
"14. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as the monetary benefits with regard to retrospective promotion are concerned that depends upon case to case. In State of Kerala v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 this Court held that the principle of "no work no pay" cannot be accepted as a rule of thumb and the matter will have to be considered on a case-to-case basis and in para 4, it was held as under :(SCC p.527)
4........We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 12 monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for consideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 :::
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15. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of "no work no pay" would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 1.1.2000 with the ante-dated seniority from 1.8.1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar.
16. The impugned orders passed by the High Court are set aside and this appeal is allowed. The respondents shall release the arrears of pay and allowances to the appellant for the period from 1.8.1997 till the date of his actual promotion that is 13.11.2000 in the promotional post of Naib Subedar within eight weeks from today. No order as to costs."
12. Merely because this petition is pending since 2010 for adjudication, we cannot deny the consequential benefits available to the petitioner of granting deemed date of promotion along with all ::: Uploaded on - 04/07/2017 ::: Downloaded on - 28/08/2017 06:15:06 ::: wp.4578.10 14 consequential benefits.
13. In the result, the Writ Petition is partly allowed. It is held that the petitioner shall be entitled to deemed date of promotion of 27.10.2009 in the post of Assistant Professor of Animal Husbandry and Dairy, in the service of respondent nos. 2 and 3 and he shall be entitled to all consequential benefits, including the difference in the scale of pay between the post of Senior Research Assistant and the Assistant Professor from 27.10.2009 till the date of his superannuation i.e. 30.09.2012.
14. Rule is made absolute in the aforesaid terms, with no order as to costs.
JUDGE JUDGE
sahare
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