Smita Pramod Patil vs State Of Maha & Ors
2016 Latest Caselaw 7486 Bom

                                                                       WP 5351/03 
      
                                         - 1 -




                                                                         
                         
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                 
                         BENCH AT AURANGABAD                                       

                                                 
                     WRIT PETITION NO.5351/2003




                                                
    Sau.Smita W/o Pramod Patil,
    Age 39 years,Occu.Service,
    R/o C/o Pramod B.Patil,
    6/4,Amrut Apptt.Gajanan Hosg.Society,




                                       
    Jalgaon,Dist.Jalgaon.  
                           ...Petitioner..
                                  
               Versus

    1] The State of Maharashtra,
                                 
    Through Secretary,
    Education Department,
    Mantralaya, Mumbai-32.

    2] North Maharashtra University,
      


    Through its Registrar, Jalgaon,
    Dist.Jalgaon.
   



    3] The Grievance Committee,
    North Maharashtra University,
    Jalgaon.





    4] The Vice Chancellor,
    North Maharashtra University,
    Jalgaon. 
                            ...Respondents... 





                                                             
                               .....
    Shri A.G.Talhar, Advocate for Petitioner.
    Ms.S.S.Raut, AGP for the State.
    Shri   A.B.Girase,   Advocate   h/f   Shri   R.B.Raghuwanshi, 
    Advocate for Respondent No.2.
    Respondent Nos.3 to 14 served.
    Shri S.R.Barlinge, Advocate for Respondent Nos.7,8,9 and 
    11. 
                               .....




         ::: Uploaded on - 23/12/2016            ::: Downloaded on - 24/12/2016 00:52:32 :::
                                                                         WP 5351/03 
      
                                          - 2 -

      




                                                                          
                                        CORAM: S.V. GANGAPURWALA &
                                                K.L. WADANE, JJ. 

DATE: 20.12.2016

ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :

1] Mr.Talhar, learned counsel for the petitioner

submits that pursuant to the advertisement issued in the

year 1991 for the post of Assistant, Laboratory

Attendant, Peon, the petitioner is selected as an

Assistant and was at Sr.No.29 of the wait list. Whereas

the respondents were below the petitioner in the wait

list as per the merit. The learned counsel submits that

the seniority list maintained is against the rules and

the Standard Code of the University. According to the

learned counsel, as per Clause 14 of the Standard Code

Rules, 1984, the seniority of the employee in cadre under

the University shall be determined on the basis of the

date of service in the cadre. If more than one employee

is appointed by open competition, the seniority of the

candidate selected at the same interview shall be in the

order in which they are ranked by the selection committee

irrespective of the dates of their joining or the dates

of their confirmation. The learned counsel submits that

WP 5351/03

- 3 -

the petitioner was ranked at Sr.No.29 and all the

respondents were ranked below the petitioner. As such,

the petitioner has to be considered senior to all the

respondents. The impugned order does not refer to the

said aspect. According to the learned counsel, grave

error has been committed. Even the record is not

properly maintained by the University.

2] Mr.Girase, learned counsel for the University

submits that in the year 1991, the advertisement was

issued to prepare the wait list of various posts as the

posts were not sanctioned. As and when the posts were

sanctioned, effective orders were passed of appointing

those persons on probation. Till that time, these

persons were working on temporary / contract basis.

According to the learned counsel, as and when vacancy

arose and the posts were sanctioned, the eligible

candidates were taken on probation. The University has

given the details of the same in the affidavit filed. No

illegality has been committed. The order passed by the

authority is explicitly clear.

3] Mr.S.R. Barlinge, learned counsel for the respondent

nos.7,8,9 and 11 submits that these respondents were also

WP 5351/03

- 4 -

appointed as Assistants and their names appeared in the

list of Assistants. They were confirmed in service and

some of them are subsequently promoted as Senior

Assistants. The learned counsel submits that the

criteria for promotion to Senior Assistant post is

seniority-cum-merit. The petitioner herein was

terminated in the year 2009. The appeal was allowed by

the College Tribunal, however, with a rider that as a

punishment, four increments of the petitioner were

stopped. The learned counsel submits that the authority

has rightly relied upon Sub-rule (2) of Rule 3.

4] We have considered the submissions canvassed by the

learned counsel for the parties.

5] There is no dispute of the fact that the petitioner

and the respondents herein were all selected as

Assistants pursuant to the selection process conducted

vide advertisement of the year 1991. The University has

filed affidavit stating that on the date when

advertisement was issued, the posts were not sanctioned

and the posts of Assistants were sanctioned phase-wise.

Vide Government resolution dated 8.7.1991, 6 posts of

Assistant were sanctioned. Thereafter, vide Government

WP 5351/03

- 5 -

resolution dated 31.10.1991, 31 posts of Assistant were

sanctioned. Under the Government resolution dated

2.11.1993, 16 posts of Assistant were sanctioned and

under the Government resolution dated 9.12.1994, 30 posts

of Assistant were sanctioned i.e. Total 76 posts of

Assistant are sanctioned phase-wise. The recruitment,

seniority, promotion of the candidates is governed by the

Standard Code Rules, 1984. Rule 14 of the said Rules is

relevant and the same reads as under:-

14. Seniority :

1] The seniority of the employee in a cadre under the University or the College under same

Management shall be determined on the basis of

date of continuous service in that cadre. The date of joining the service on probation or as the case may be the date of promotion shall be

taken as the date of continuous service for this purpose. The service rendered by an employee in other recognised institution or

affiliated college under the same management whether aided or unaided or in the office of the management shall be treated as foreign service and the same shall be counted for seniority.

2] The employee confirmed in a permanent post shall rank higher to that appointed in

WP 5351/03

- 6 -

officiating capacity. The seniority of the

employee confirmed in a cadre shall be determined on the basis of the date of

confirmation in that cadre.

3] If more than one employee is appointed by open competition or on recommendation of the

Selection Committee and if they complete their probation within normal uniform probationary period, the seniority of the candidates

selected at the same interview shall be in the

order in which they are ranked by the Selection Committee, irrespective of the dates of the

joining the duties or the dates of their confirmation:

Provided that, in case the probationary

period of the employee appointed on probation

is extended beyond the normal period of probation and his date of confirmation having been postponed to any subsequent date his

seniority shall be determined with reference to the date from which he completes his probationary period.

4] The employees promoted to a post in higher

cadre shall rank below those employees in that cadre on the date of his promotion irrespective of their interse-seniority in the lower cadre. The employee promoted to a post in higher cadre earlier shall be considered senior to the employee promoted to that cadre at a later date irrespective of their respective seniority in

WP 5351/03

- 7 -

the lower cadre or the pay drawn.

Explanation: If the promotion of junior employee to the post in higher grade is ordered

temporarily because the senior employee is not immediately available for taking the charge of the post in a higher cadre either on medical

grounds or on other personal grooms he shall not loose his original seniority."

6] Reading the said Rules, it is explicitly clear that

if more than one employee is appointed by open

competition or on recommendation of the selection

committee and if they complete the probation within

normal uniform probationary period, the seniority of the

candidate selected at the same interview shall be in the

order in which they are ranked by the selection committee

irrespective of the dates of their joining or the dates

of their confirmation. The petitioner herein was

appointed on 8.6.1993 for the first time and joined the

duties on 11.6.1993. The date of appointment as 8.6.1993

as Assistant was on direct appointment basis. However,

pursuant to the said advertisement of the year 1991, the

petitioner was appointed on probation on 3/4-1-1995.

7] It is not disputed that the petitioner and the

respondents belong to OBC category and in the list

WP 5351/03

- 8 -

maintained by the University the petitioner was at

Sr.No.29 and above the respondents of the present

petition. Naturally, when the sanctioned posts for OBC

candidates became available, the petitioner is required

to be considered prior to the respondents for the said

post and the seniority will have to be maintained

considering the said aspect.

8] The present petition is restricted to the extent of

maintaining the seniority list. As observed above, in

the wait list, the petitioner was above the present

respondents and so naturally the date of appointment of

the petitioner on probation ought to be prior to the

respondents. We are observing this more particularly in

view of the fact that save and except the selection

process pursuant to the advertisement of 1991, there was

no other selection process pursuant to which the

petitioner and the respondents were appointed as

Assistants. The University is required to follow the

said course.

9] In the result, we pass the following order.

O R D E R

i] The seniority of the petitioner shall be

WP 5351/03

- 9 -

considered for the post of Assistant from OBC

category considering her rank at Sr.No.29 in

the wait list and the same would be above the

present respondents.

ii] In the present petition, we are not

disturbing the position as existing today as

far as promotion to the post of Senior

Assistant is concerned. The criteria is

seniority-cum-merit, which the departmental

promotion committee or such other authority

under the statute is required to consider by

applying the applicable norms.

iii] Writ petition is accordingly disposed

of. Rule is accordingly disposed of. No

costs.

iv] The petitioner may move the authorities

with regard to the seniority in view of the

aforesaid observations and for any such other

claim as may be permissible in law.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.) ndk/c20121620.doc