State Of Maharashtra Thr.Secty. ... vs Krishna Khanduji Surkar
2016 Latest Caselaw 1217 Bom

       wp3595.03                                                                     1



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                               NAGPUR BENCH

                        WRIT PETITION  NO. 3595  OF  2003




                                                    
      1. The State of Maharashtra
         through its Secretary, Medical




                                                   
         Education & Drugs Department,
         Mantralaya, Mumbai 400 032.

      2. The Director of Medical Education




                                         
         & Research, St. George's Hospital,
         Campus, Fort, Mumbai.ig                      ...   PETITIONERS

                        Versus
                            
      Krishna s/o Khanduji Surkar,
      aged about 58 years, occupation -
      Service, Lecturer in Physiotherapy,
      Government Medical College,
      Nagpur.                                         ...   RESPONDENT
      
   



      Shri N.S. Rao, AGP for the petitioners.
      Shri P. Dharaskar, Advocate for the respondent.
                         .....





                                    CORAM :     B.P. DHARMADHIKARI &
                                                P.N. DESHMUKH, JJ.

APRIL 05, 2016.

ORAL JUDGMENT : (PER P.N. DESHMUKH, J.)

The State of Maharashtra has assailed the

judgment and order passed by the learned Maharashtra

Administrative Tribunal (MAT), Nagpur, dated 14.03.2003 in

the present petition. The application was taken out by the

respondent being O.A. No. 93 of 1993, praying to hold that the

respondent is entitled for the senior scale of Rs.3000-5000

w.e.f. 01.01.1986 and for selection grade of Rs.3700-5700

w.e.f. September 1989 as per Government Resolution dated

26.02.1991.

2. We have heard Shri Rao, learned Assistant

Government Pleader for the petitioners. Though, the name of

Shri Anand Parchure, learned counsel for the respondent

appears on record, it is informed by Shri Dharaskar that Shri

Parchure is not appearing for the said respondent as on date.

3. We have heard Shri Rao, learned AGP and perused

the record. This Court by interim orders dated 03.11.2003

had ordered to maintain status quo earlier, which order was

subsequently on 16.08.2004 vacated, prima facie, observing

that the respondent was granted promotion, subject to the

condition that he acquires the necessary qualification within

the stipulated period. It is further observed that the

respondent has worked till his attaining the age of

superannuation on the post of Lecturer and as such it was

found that the impugned judgment and order passed by the

MAT ought not to be stayed. Having considered as above,

interim relief granted was vacated.

4. According to the learned AGP, the reliance is

placed on Government Resolution dated 26.02.1991 governing

the conditions for placement of Lecturers in Senior Scale and

Selection Grade. The conditions are reproduced hereinbelow :

"1. Every Lecturer in the existing scale of Rs.700- 1600 will be placed in senior scale of Rs.3000-5000 if he/ she has

(a) Completed 8 years of service after regular

appointment.

(b) The Lecturer will have to participate

within a period of four years commencing from the date of issue of these orders, in two refresher courses of approximately 4 weeks duration or engage in other appropriate continuing education programmes of

comparable quality prepared and approved by the Director of Medical Education & Research / Director of Ayurveda. Failure to participate in Refreshing Courses of requisition duration within a period of four years shall entail stoppage with permanent effect of increment occurring after the said period until the requirement is fulfilled, whereupon the next

increment will be released. Persons placed in the

senior scale by virtue of the above concession and who

complete service of 16 years, in their respective posts during the said period of four years, will be promoted to selection grade only after they fulfill the

requirement of participating in two refresher courses/ summer institutes of approximately four weeks duration.

(c) ig Consistently satisfactory performance appraisal report."

5. The petitioners submitted that the respondent had

failed to satisfy these conditions and as such was not entitled

for the relief sought as the respondent is not a regular

appointed employee of the petitioners and as he failed to

participate in Refresher Courses within the required period of

four years.

6. Having considered the submissions advanced by

the learned AGP and conditions as have been stipulated in the

Government Resolution dated 26.02.1991 and on perusal of

record and the impugned judgment and order, we find that the

respondent was initially appointed as Physiotherapist with the

petitioners on 16.01.1962 and was promoted as Lecturer on

18.05.1971 and continued on said post till he retired on

31.12.1993 on attaining the age of 60 years.

7. The petitioners had issued Government Resolution

dated 26.02.1991 stipulating conditions for placement of

Lecturers in the existing scale of Rs.700-1600 to senior scale of

Rs.3000-5000 and in Selection Grade pay scale of Rs.3700-

5700. Since the respondent was not considered for said pay-

scale, he had made a representation with the department.

However, the same was not replied and as such he has

approached the learned Maharashtra Administrative Tribunal

for redressal of his grievance by filing O.A. as aforesaid.

8. From the contents of O.A., we have noted that it is

the case of the respondent that he was promoted as Lecturer in

Physiotherapy in May 1971 and thereafter worked till his

retirement. It is also the case of the respondent that one of the

conditions for grant of Senior pay-scale of Rs.3000-5000/- is

to complete two refresher course of approximately four weeks

duration. The respondent had completed one refresher course

and thereafter till the date of retirement, no refresher course

was at all held and hence, there was no question of his

completing second refresher course. It is also relied upon by

the respondent that the University Grants Commission had

relaxed the condition for participation of Lecturers in refresher

course for placement in Senior pay-scale up to 31.12.1995.

9. A perusal of Government Resolution dated

26.02.1991, on the basis of which the respondent is claiming

salary w.e.f. September 1989 in the pay-scale of Rs.3700-

5700/- reveals that the conditions as aforesaid are required to

be fulfilled. In view of said Government Resolution, case of

the respondent is required to be considered, as to whether the

respondent satisfies the conditions mentioned in the above

dated Government Resolution so as to make him entitled for

selection grade.

10. Admittedly, the respondent was appointed as

Physiotherapist as Class III employee on 16.01.1961 and

promoted as Lecturer on 18.05.1971 and continued on this

post till he retired on 31.12.1993. It is also admitted that the

petitioner - department on 23.08.1988 by issuing Government

Resolution had recommended pay-scale for the University

teachers by the University Grants Commission to the teachers

working in the Occupational/ Physiotherapy Schools with

effect from 01.10.1977, which was made applicable and

granted to the respondent initially in the pay-scale of Rs.700-

1600 and thereafter pay-scale of Rs.2200-4000 which was then

admissible to the Lecturers. In this situation, we find it

difficult to accept the case of the petitioners that the

appointment of the respondent was neither in a regular cadre

nor it was a regular appointment, as the respondent has

worked as Lecturer for more than 22 years and as such cannot

be deprived of benefits to which he is otherwise entitled for,

on the ground that his appointment as Lecturer on promotion

was not regular appointment. In that view of the matter, we

find that the respondent satisfies the first condition of the

Government Resolution relied upon by the petitioners which

contemplates completion of eight years of service prescribed

for placement of a Lecturer in the Senior scale.

11. Second condition is with reference to placement of

respondent in Senior scale on participating in two refresher

courses of about four weeks duration which, according to the

petitioners, are not completed by the respondent. However,

from the record we find that such courses were never arranged

on regular basis by the petitioners, for the reasons that no

teachers were available. On this aspect, we further find that

the respondent has in his affidavit on record, has specifically

stated that he has completed one refresher course and

thereafter till he attended the age of retirement, no refresher

course was held. The petitioners have not denied said fact

except for stating in affidavit dated 14.11.2002 that refresher

course was in force during Vacation period according to the

availability of the teachers. However, we again find that the

petitioners have failed to establish the fact that refresher

courses were organized and the respondent has not

participated in it though an opportunity was granted to him. In

that view of the matter, we do not find submissions advanced

on behalf of the petitioners, on this ground, to deny senior

scale to the respondent that, he failed to participate in the

second refresher course.

12. Third ground in Government Resolution is with

reference to consistent satisfactory performance with the

petitioners - department. On this aspect, it is the specific case

of the respondent that he has been doing his duty regularly

and diligently and there is no stigma attached to his services

nor any adverse remarks are given to him at any point of time

during long tenure of his service. In view of the specific stand

of the respondent, we do not find anything placed on record

nor it is advanced on behalf of the petitioners that the

performance of the respondent was not satisfactory.

13. Having considered above stated facts in the

petition and requirements for getting senior scale of Rs.3000-

5000 and Selection grade pay-scale of Rs.3700-5700, we find

that the respondent qualifies the required conditions.

14. Lastly, after going through the recruitment rules

prescribed by the petitioners vide Government Resolution

dated 29.10.1973, we find that the post of Lecturer can be

filled in by promotion or nomination, by a person holding the

post of Physiotherapist and can be promoted as a Lecturer

provided he possesses the qualifications and experience

prescribed for an appointment by nomination. The

qualification prescribed as per Government Resolution dated

29.10.1973 requires the following conditions to be fulfilled for

appointment by nomination.

"(a) Possess a degree in Physiotherapy of a

statutory University or an equivalent qualification; or

B.Sc. Degree in any subject with a diploma in Physiotherapy; and

(b) Possess practical and/ or teaching experience in Physiotherapy in a Department attached to a Medical College for not less than three years;"

15. It would thus be seen that for an appointment to

the post of Lecturer in Physiotherapy in Medical College

Hospital, Nagpur, no Post Graduate degree in this field is

required. Admittedly, the respondent is possessing B.Sc.

Degree in Physiotherapy and also possess the necessary

experience and, therefore, he was appointed as Lecturer. On

this count also, we find no substance in the petition and

finding the same to be devoid of merits, dismiss the claim of

the petitioners by holding that the respondent is entitled for

Senior pay-scale of Rs.3000-5000 from 01.01.1986 and for

Selection Grade in the pay-scale of Rs.3700-5700 from

01.09.1989 onwards along with arrears, pensionary benefits

on account of fixation of pay in Senior scale and Selection

Grade along with other retiral benefits.

16. The respondent is accordingly held entitled for the

reliefs claimed for. Writ Petition is accordingly dismissed.

Rule discharged, however, with no order as to costs.

               JUDGE                                                      JUDGE
   



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      *GS.