WP 669/13 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 669/2013
Anil s/o Vinayak Zade,
Resident of Bawis Chowk,
Pathanpura Road, Chandrapur. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
through its Secretary,
Department of Higher Education,
Mantralaya, Mumbai-32.
2. The Joint Director, Higher Education,
Nagpur Region, Old Morris College
Campus, Sitabuldi, Nagpur.
3. Sarvodaya Shikshan Mandal,
through its President/Secretary,
Sardar Patel College, Ganj Ward,
Chandrapur.
4. Sardar College,
through its Principal,
Ganj Ward, Chandrapur.. RESPONDENTS
Shri Anand Parchure, counsel for the petitioner.
Ms N.P. Mehta, Assistant Government Pleader for the respondent nos.1 and 2.
Shri M.P. Khajanchi, counsel for the respondent nos.3 and 4.
CORAM :SMT.VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATE : 30 TH MARCH, 2017.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.) By this writ petition, the petitioner challenges the order of the Joint Director of Higher Education, dated 05/07.10.2011 denying 100% back wages to the petitioner for the suspension period. The petitioner seeks a direction against the Joint Director of Higher Education to grant 100% back wages to the petitioner. The petitioner seeks a declaration that the petitioner would be entitled to continuity of service and would also be entitled to the benefit of time bound promotion. Certain ::: Uploaded on - 01/04/2017 ::: Downloaded on - 02/04/2017 01:07:03 ::: WP 669/13 2 Judgment communications of the Joint Director of Higher Education denying the said benefits to the petitioner are challenged in the instant petition.
2. The petitioner was appointed as a Stenographer in the respondent no.4-College in 1986. An offence punishable under Sections 420, 467, 469, 471, 109, 201, 202, 203 read with Section 34 of the Indian Penal Code and Section 7 of the Prevention of Malpractices in Examination Act was registered against the petitioner and 21 other employees working in various institutions. A criminal prosecution was launched against the petitioner and the other accused. In view of the registration of the offence, the petitioner was suspended by the management on 15.04.1996. During the pendency of the criminal trial, the management had tried to reinstate the petitioner but, the order of the management was disapproved by the Joint Director of Higher Education and the management was directed to continue the suspension of the petitioner till the criminal trial culminated. The petitioner filed two writ petitions bearing Writ Petition Nos.4745 of 2010 and 1066 of 2011 seeking reinstatement and back wages. The petitioner was reinstated in pursuance of the directions issued by this Court to the Joint Director of Higher Education to consider reinstating the petitioner. The petitioner was reinstated in service on 01.03.2011. After the petitioner was reinstated, the trial Court acquitted the petitioner of the charges, by the judgment dated 25.06.2013. After his acquittal, the petitioner sought ::: Uploaded on - 01/04/2017 ::: Downloaded on - 02/04/2017 01:07:03 ::: WP 669/13 3 Judgment 100% salary for the period during which he was out of service. The Joint Director of Higher Education refused to pay the same as the petitioner had already received 75% of the amount that was liable to be paid to him towards salary, as suspension allowance, the representation of the petitioner was rejected. The petitioner has challenged the action on the part of the Joint Director of Education rejecting the prayer of the petitioner for grant of entire salary for the period during which he was out of service. The petitioner has also challenged the order of the Joint Director of Higher Education denying time bound promotion to the petitioner on the ground that the petitioner had not worked during the said period.
3. Shri Parchure, the learned counsel for the petitioner, submitted that after the petitioner was acquitted in the criminal trial, it was necessary for the Joint Director of Higher Education to release 100% salary in favour of the petitioner. It is submitted that the petitioner was kept out of service by the management and it is not a case where the petitioner did not desire to work. It is submitted that though the petitioner is granted continuity of service, the time bound promotion is not granted to the petitioner and, hence, a direction may be issued to the respondents to grant time bound promotion to the petitioner.
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WP 669/13 4 Judgment
4. Ms Mehta, the learned Assistant Government Pleader appearing for the Joint Director of Higher Education, has opposed the prayer made by the petitioner. It is submitted that the petitioner has received 75% of the amount to which the petitioner would be entitled towards salary, for the period during which he was out of service. It is submitted that the order is rightly passed by the Joint Director of Higher Education under Rule 72(1) of the Maharashtra Civil Services (Joining Time) Rules, 1981. It is submitted that since the petitioner had not worked for the period during which he was under suspension, the petitioner would not be entitled to time bound promotion, as it is necessary to consider whether the services of an employee are satisfactory while granting time bound promotion to him/her. It is submitted that the petitioner was granted all the benefits that could have been granted to the petitioner after he was reinstated in service. It is submitted that the criminal Court has acquitted the petitioner by extending the benefit of doubt to him.
5. Shri Khajanchi, the learned counsel for the respondent no.4-Management has disputed the claim of the petitioner. It is submitted that while reinstating the petitioner, the management had passed a resolution that the petitioner should not claim the back wages from the management and the petitioner had also given an undertaking in writing that the petitioner would not claim the arrears of salary from ::: Uploaded on - 01/04/2017 ::: Downloaded on - 02/04/2017 01:07:03 ::: WP 669/13 5 Judgment the management. It is submitted that in the circumstances of the case, a direction may not be issued against the management to pay the arrears of difference of salary to the petitioner.
6. On hearing the learned counsel for the parties, it appears that there is no scope for interference with the impugned orders in exercise of the writ jurisdiction. The petitioner along with several others was accused of serious offences and the criminal prosecution continued for a long time. The petitioner was finally acquitted in the year 2013 on benefit of doubt. The management had, however, reinstated the petitioner two years before his acquittal, on the basis of the order of the Joint Director of Higher Education, that was passed in pursuance of an order passed by the High Court. There is no dispute that the petitioner has received 75% of the amount that he could have received as salary, towards suspension allowance. The claim pertains only to the extent of 25% of the salary. The Joint Director of Higher Education has rightly held that in the circumstances of the case, the petitioner was not entitled to entire salary in view of the provisions of Rule 72(1) of the Rules of 1981. A specific order was passed by the Joint Director of Higher Education that the provisions of Rule 72(1) of the Rules of 1981 were applicable to the petitioner and, hence, the petitioner would not be entitled to the entire salary, for the period during which he was out of service. We do not find that the Joint Director of Higher Education has ::: Uploaded on - 01/04/2017 ::: Downloaded on - 02/04/2017 01:07:03 ::: WP 669/13 6 Judgment committed any error in the circumstances of the case in rejecting the prayer of the petitioner for grant of 100% salary. Admittedly, the petitioner has not worked for a long time, i.e. 13 to 14 years, barring a few months when he was reinstated in service but, was again suspended in view of the orders of the Joint Director of Higher Education. Normally, in such circumstances, the principle of 'No Work No Pay' is applied but, this is a case where the petitioner has already received 75% of the salary to which he was entitled to, towards suspension allowance. The petitioner should have been satisfied with the amount that was paid to him towards suspension allowance as the said allowance was to the extent of 75% of the salary that was payable to the petitioner. The petitioner was rightly granted continuity of service but, not time bound promotion as the petitioner had not worked for nearly thirteen years and there was no occasion for the respondents to consider whether the services of the petitioner were satisfactory, during the said period. When the petitioner had not actually worked, the petitioner cannot claim the benefit of time bound promotion as of a right, as there is no occasion for the concerned authorities to consider the confidential reports of the petitioner for the said period. In the circumstances of the case, we do not find that the Joint Director of Higher Education has faulted in refusing to grant the benefit of time bound promotion in favour of the petitioner.
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WP 669/13 7 Judgment
7. Hence, for the reasons aforesaid, we dismiss the writ petition with no order as to costs. Rule stands discharged.
JUDGE JUDGE
APTE
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