Marathwada Krishi Vidyapeeth, ... vs Mohammad Fayazuddin Wahiduddin
2016 Latest Caselaw 7163 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                        
                         WRIT PETITION NO.8158 OF 2015
                                     WITH
                   CIVIL APPLICATION STAMP NO.37259 of 2016




                                                       
    Marathwada Krishi Vidyapeeth,
    Parbhani
    (Now Vasantrao Naik Marathwada Krishi
    Vidyapeeth, Parbhani)




                                            
    Through its Registrar,
    Tq. and Dist.Parbhani                                    -- PETITIONER 

    VERSUS
                              
    Mohammad Fayazuddin Wahiduddin,
                             
    Age-60 years, Occu-Nil,
    R/o Yusuf Colony, Waheb Saheb,
    (Physical Instructor)
    Parbhani, Tq. and Dist. Parbhani                         -- RESPONDENT 

Mr.S.G.Sangale, Advocate for the petitioner. Mr.S.S.Bora, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 13/12/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner is aggrieved by the judgment and order dated

28/08/2014 by which the Industrial Court, Jalna has allowed

Complaint (ULP) No.601/1994 (Old No.173/1991).

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3. The strenuous submissions of Mr.Sangale, learned Advocate for

the petitioner and considering the affidavit in rejoinder as well as the

civil application tendered across the bar, can be summarized as

under :-

[a] The respondent was appointed as a 'daily wager' when he was

31 years old on 01/11/1976 in the Class IV category. [b] Pay scale available to him was Rs.2,550-3,200 per month.

[c] The scale available to a Compounder who falls in Class III category is 4,500-7,000 per month.

[d] Though he was appointed as a Compounder on 15/03/1978 by the Registrar of the University, he was not qualified since he was not matriculate (S.S.C.).

[e] Though the Registrar, by order dated 06/05/1978 granted the

wages of skilled labour as a Compounder to the respondent, he was not qualified to continue as a Compounder. [f] He acquired S.S.C. qualification on 22/06/1985.

[g] The rules reproduced in the impugned judgment would indicate that the respondent could not be appointed or continued as a Compounder.

[h] On 15/01/1975, the special meeting of the Executive Council

settled the qualifications of the Ministerial Staff and prescribed the qualifications of a Compounder, which indicate that the respondent was not qualified to work as a Compounder even in 1975.

[i] On 26/07/1991, new Rules were prescribed for a Compounder / Compounder-cum-Dresser and minimum

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qualification was S.S.C. with Compounder's examination. [j] On 28/09/1999, during the pendency of the ULP complaint,

the respondent was not selected as a Compounder on Ad-hoc basis and he therefore was not to be continued as a Compounder.

[k] Owing to the interim orders of the Industrial Court dated 26/04/1991, the petitioner was directed to maintain status-quo by continuing the respondent as a Compounder.

[l] He was appointed as a "Watchman" during the pendency of the

complaint and therefore he retired on 01/05/2003 as a "Watchman".

[m] The respondent can be held entitled for retiral benefits as a daily wager or as a Watchman and not as a Compounder. [n] He was once held guilty of grave offences and though he could have been dismissed from service, the Vice Chancellor imposed

a fine of Rs.500/- by order dated 10/06/1996.

4. Mr.Bora, learned Advocate on behalf of the respondent submits

that the impugned judgment is a finding on facts. In 1985, since the

respondent acquired the S.S.C certificate and by which time he had

put in more than 7 years in the hospital of the petitioner/University,

he had acquired the requisite qualification of S.S.C. and one year

experience in a hospital. Under the interim orders of the Industrial

Court, he continued as a Compounder till his retirement on

01/05/2003.

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5. His non selection in 1999 was with regard to an ad-hoc

appointment. Nevertheless, he continued as a Compounder and was

eventually retired on attaining the age of 58 by order dated

30/04/2003.

6. Having considered the submissions of the learned Advocates, I

have gone through the record available as well as the contents of the

rejoinder and the civil application filed by the petitioner.

7. There is no dispute that the petitioner did not lead any oral and

documentary evidence and closed its evidence by purshis Exh.C-12

despite the fact that this Court had remitted the complaint for a

decision afresh by its judgment dated 09/04/2014 in WP

No.1458/2001.

8. There is no dispute that as in 1975, the prescribed qualification

for appointment of a Compounder was S.S.C examination and one

year experience in a hospital. There is no dispute that the

respondent had neither of these qualifications. Yet, by order dated

15/03/1978, the Registrar of the petitioner/University directed the

Medical Officer to allot work on skilled wages to the petitioner who

was appointed as a Compounder. Though the actual appointment

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order of Compounder is not placed on record, the said

communication indicates that the respondent was appointed as a

Compounder.

9. By a further communication by the Registrar dated

06/05/1978, the Medical Officer of the Health Center of the

University was informed that the proposal regarding rate of wages to

be paid to the respondent has been approved. The communication

dated 10/12/1991, which is an inter-office note signed by the

Registrar, would indicate that the respondent was working as a

Compounder. Since the Industrial Court had granted him an interim

order, he was continued as a Compounder until the final decision of

the complaint.

10. The order of relieving the respondent dated 30/04/2003, upon

his retirement, also indicates that he was treated as a Compounder

on temporary basis.

11. In the light of the above and keeping in view that the

respondent/ University did not choose to render any assistance to the

Industrial Court as it refrained from leading oral or documentary

evidence despite the complaint having been remanded for a

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rehearing, led the Industrial Court to conclude that these documents

indicate that the respondent was working as a compounder on

temporary basis from 1976 till his retirement in 2003. Despite the

strenuous submissions of Mr.Bora that the respondent has proved

his continuous service as a Compounder from 01/11/1976 till his

retirement, I am not inclined to accept the said submissions to the

extent of the period from 1976 to 1985.

12. There can be no dispute that the length or duration of service

of an illegal appointee, cannot legalize or legitimize such an

appointment. As has been concluded by the Hon'ble Apex Court in

paragraph Nos. 43 and 44 of its judgment in the matter of State of

Karnataka & Ors. vs. Uma Devi (3) & Ors., 2006(4) SCC 44 that

irregular appointments could be regularized, though illegal

appointments cannot be legalized.

13. On 22/06/1985, the respondent passed his S.S.C. and by

which time he had spent about 7 years and 3 months as a

Compounder in the medical facility of the petitioner. The rules

applicable as in 1985 for appointment of a Compounder indicate that

the candidate must possess qualification of S.S.C. and one year of

training in a hospital. In 1985, he had acquired S.S.C. and had put

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in 7 years in the said medical faculty. As such, from 22/06/1985, it

can be concluded that the respondent was eligible and qualified to

work as a Compounder.

14. In the above backdrop, the respondent continued as a

Compounder and he retired as a Compounder on 01/05/2003 as is

evidenced by the order dated 30/04/2003 issued by the Medical

Officer of the Health Center of the petitioner.

15. In the light of the above, this petition partly succeeds and is

partly allowed to the extent of modifying the directions of the

Industrial Court granting benefits to the respondent/employee from

01/11/1976. The said direction stands substituted with the direction

that the service of the respondent shall be considered as being an

appointment as a Compounder from 22/06/1985 till his retirement

on 01/05/2003. His gratuity and pensionery benefits shall be

calculated on the basis of the scale available to a Compounder as on

01/05/2003 and subject to the Rules as may be applicable.

16. In so far as the direction to extend monetary benefits and

difference of wages is concerned, the said direction will stand

modified and shall be operative only from 22/06/1985 considering

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that the respondent has worked as a compounder from the said date.

17. Rule is made partly absolute in the above terms. Pending civil

application stands allowed as the documents placed on record vide

the same have been considered by this Court while deciding this

petition.

                                  ig                      ( RAVINDRA V. GHUGE, J.)
                                
      
   






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