Bombay High Court
Shri. Giridhar S/O. Bhanudas ... vs State Of Maha., Through Its ... on 22 September, 2016
Bench: V.A. Naik
WP 5450/15 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 5450/2015
Shri Giridhar S/o Bhanudas Pachade,
aged about 58 years, Occu. Service,
R/o C/o Amolakchand Mahavidyalaya,
Godhani Road, Yavatmal, Distt. Yavatmal. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
through its Principal Secretary,
Department of Higher Education,
Mantralaya, Mumbai - 400 032.
2. The Registrar,
Amravati University,ig
Amravati, Dist. Amravati.
3. Joint Director, Higher Education,
Amravati Region, Amravati, Dist. Amravati.
4. Principal,
Amolakchand Mahavidyalaya,
Godhani Road, Yavatmal, Distt. Yavatmal. RESPONDENTS
Smt. S.W. Deshpande, counsel for the petitioner.
Shri S.M. Ukey, Additional Government Pleader for the respondent nos.1 and 3.
Shri J.B. Kasat, counsel for the respondent no.2.
CORAM :SMT.VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 22 ND
SEPTEMBER, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
By this writ petition, the petitioner seeks a direction against
the respondent no.1-State of Maharashtra to de-reserve the post of
Lecturer on which the petitioner was appointed with effect from
26.12.1989. The petitioner seeks a direction against the respondent nos.1
and 2 to fix the pay of the petitioner in accordance with law and pay the
arrears after the pay fixation within a time frame. The petitioner
WP 5450/15 2 Judgment
challenges the order of the Joint Director of Higher Education refusing to
fix the pay of the petitioner and release the benefits in his favour.
2. The petitioner was appointed as a Lecturer in Amolakchand
Vidyalaya on 26.12.1989 on a post that was earmarked for the Scheduled
Tribes. The petitioner does not belong to the Scheduled Tribes and the
caste of the petitioner falls in the Other Backward Classes. The petitioner
was, however, appointed as a Lecturer in Amolakchand Vidyalaya in the
absence of an eligible candidate belonging to the Scheduled Tribes. The
said post was advertised by Amolakchand Vidyalaya every year for the
next six years inviting the candidates belonging to the Scheduled Tribes
for appointment on the said post. Due to the unavailability of a
Scheduled Tribes candidate, the petitioner was appointed every year for
the subsequent six years in pursuance of the advertisements issued by
Amolakchand Vidyalaya. The petitioner continued to serve as a Lecturer
in Amolakchand Vidyalaya and the university approved the services of the
petitioner by an order dated 16.08.1993. The university condoned the
small break in the services of the petitioner by an order dated 06.03.1997.
The petitioner was declared surplus some time in the year 1998 and was
absorbed in Shri Shivaji Science College, Amravati vide an order dated
01.01.1999. On 01.05.2005 again, when a vacancy arose in
Amolakchand Vidyalaya, the petitioner was re-absorbed in the parent
institution. The petitioner retired on attaining the age of superannuation
WP 5450/15 3 Judgment
on 30.09.2015. Though, according to the petitioner, the petitioner's
services were liable to be regularized and it was necessary for the State
Government to de-reserve the post on which the petitioner was appointed
as the vacancy was not filled in by a Scheduled Tribes candidate despite
the issuance of the advertisements for more than six years, it is the case of
the petitioner that the respondent nos.1 and 2 did not de-reserve the post
and fix the salary of the petitioner. The petitioner filed Writ Petition
No.3694 of 2011 seeking fixation of salary and the writ petition was
disposed of with a direction to the respondent no.2 to decide the
representation of the petitioner in respect of fixation of pay and grant of
monetary benefits. The respondent no.2 has, by an order that is
impugned in this writ petition, rejected the representation of the
petitioner. The petitioner has filed the instant petition seeking a direction
against the State Government to de-reserve the post. The petitioner has
sought a direction against the respondent nos.1 and 2 to grant the
monetary benefits to the petitioner after fixing the salary of the petitioner
in accordance with law.
3. Smt. Deshpande, the learned counsel for the petitioner,
submitted that the case of the petitioner is covered by the decision of the
Division Bench of this Court, reported in 2009(3) Mh.L.J. 323
(Harshendu Vinayak Madge Versus Chembur Trombay Education Society,
Mumbai & Others). It is stated that the petitioner was appointed for more
WP 5450/15 4 Judgment
than six years after issuance of the advertisements on a post earmarked
for the Scheduled Tribes in the absence of the availability of a candidate
belonging to the Scheduled Tribes. It is stated that in the year 1999, the
services of the petitioner were approved as a Senior Lecturer. It is stated
that in view of the Government Resolutions that are issued from time to
time and specially the Government Resolutions issued in the year 1990
and 1994, the State Government was liable to de-reserve the post on
which the petitioner was appointed and to fix the salary of the petitioner
and pay the monetary benefits to him. It is stated that though several
representations were made by the petitioner to the respondents, the
respondents did not pay any heed to them. It is stated that in view of the
settled position of law, the post on which the petitioner was appointed is
liable to be de-reserved and it would be necessary for the respondents to
re-fix the salary of the petitioner and release the monetary benefits to him
in accordance with law.
4. Shri Ukey, the learned Additional Government Pleader
appearing on behalf of the respondent nos.1 and 3, does not dispute the
position of law as laid down in the judgment reported in 2009(3) Mh.L.J.
323 (Harshendu Vinayak Madge Versus Chembur Trombay Education
Society, Mumbai & Others). It is stated that though the petitioner has not
clearly averred in this petition about the issuance of the advertisements
for more than six years after his appointment in the year 1989, the said
WP 5450/15 5 Judgment
fact appears to have been averred in the previous petition filed by the
petitioner and the copies of all the advertisements appear to have been
annexed to the earlier petition. It is stated that since the petitioner has
filed the earlier petition only in the year 2011, the petitioner would not
be entitled to the monetary benefits for a period of more than three years
preceding the date of filing of the previous petition on 03.07.2011. It is
stated that the monetary benefits may be granted to the petitioner only
with effect from 03.07.2008. In the circumstances of the case, it is stated
that an appropriate order may be passed.
5. Shri Kasat, the learned counsel for the respondent no.2,
admitted that the services of the petitioner were approved and the break
in the services of the petitioner was also condoned by an order dated
06.03.1997. It is not disputed that the petitioner was receiving the salary
from the State Exchequer during his services in Amolakchand Vidyalaya
and Shivaji Science College, Amravati.
6. On hearing the learned counsel for the parties, it appears that
the relief sought by the petitioner needs to be granted. The petitioner
was admittedly appointed in the year 1989 in Amolakchand Vidyalaya
and it appears that the appointment of the petitioner was made only after
issuance of the advertisement and in the absence of the availability of a
candidate belonging to the Scheduled Tribes. It appears that for more
WP 5450/15 6 Judgment
than six years after the appointment of the petitioner on 26.12.1989,
Amolakchand Vidyalaya issued advertisements inviting applications from
the candidates belonging to the Scheduled Tribes but, such candidates
were unavailable and as such the petitioner was continuously appointed
for six years and thereafter was continued in the services of Amolakchand
Vidyalaya till he was absorbed in Shri Shivaji Science College, Amravati
on 01.01.1999 and was re-absorbed in Amolakchand Vidyalaya on
01.05.2005. The petitioner continued to serve in the two institutions till
30.09.2015 and received the salary from the State Exchequer though the
salary was not fixed as is required to be fixed in respect of a permanent
employee. The benefits of increments and the other benefits to which the
petitioner was entitled, were not released in favour of the petitioner after
fixation of his pay. In the circumstances of the case, the respondent no.1
was liable to de-reserve the post on which the petitioner was appointed
and fix the pay of the petitioner. The case of the petitioner stands fully
covered by the judgment reported in 2009(3) Mh.L.J. 323 (Harshendu
Vinayak Madge Versus Chembur Trombay Education Society, Mumbai &
Others) and several other judgments that are rendered from time to time.
Though the petitioner would be entitled to the aforesaid benefits, the
actual monetary benefits flowing from the order of fixation of salary
would be payable to the petitioner only with effect from 03.07.2008, as
submitted on behalf of the respondent nos.1 and 3.
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7. Hence, for the reasons aforesaid and for the reasons recorded
in the judgment reported in 2009(3) Mh.L.J. 323 (Harshendu Vinayak
Madge Versus Chembur Trombay Education Society, Mumbai & Others),
the writ petition is partly allowed. The respondent no.1 is directed to de-
reserve the post on which the petitioner was appointed, within two
months. The respondent no.4 should prepare the necessary papers for
grant of the benefits to the petitioner and submit the same to the
concerned authority so that all the benefits should be released in favour
of the petitioner as early as possible and positively within four months.
The respondent nos.1 and 3 are directed to fix the salary of the petitioner
and pay the arrears of the monetary benefits to the petitioner with effect
from 03.07.2008, within four months. It is needless to mention that the
respondents should release all the other benefits including the retiral
benefits in favour of the petitioner as early as possible.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
WP 5450/15 8 Judgment
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copy of original signed Judgment.
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