Sunil Bajarang Kakde vs The Secretary Technical ...
2017 Latest Caselaw 10036 Bom

                                    1                WP - 2191-2005



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      WRIT PETITION NO. 2191 OF 2005

Sunil S/o Bajarang Kakde
Age : 42 years, Occu. : Service
As Senior Laboratory Technician
M.I.T. Polytechnic College,
R/o. Banjara Colony,
Aurangabad                                             .. Petitioner

        Versus
1)   The Secretary,
     Technical Education Dept.,
     Mantralaya, Mumbai

2)   Director of Tech. Education,
     Maharashtra State,
     3, Post Box No. 1967,
     Mahapallika Road,
     Mumbai - 1

3)   Joint Director of Technical Education,
     Station Road, Aurangabad

4)   The Director of Vocational Training,
     3, Mahapalika Marg,
     Mumbai

5)   The Deputy Director of Vocational Training
     Marathwada Region, Bhadkal Gate,
     Aurangabad

6)   The Member Secretary,
     All India Council for Tech. Education
     Western India Region,
     Churchgate, Mumbai

7)   The Principal,
     M.I.T. Polytechnic College,
     Satara Parisar,
     Beed By-pass Road,
     Aurangabad




::: Uploaded on - 22/12/2017                  ::: Downloaded on - 23/12/2017 02:50:43 :::
                                        2                  WP - 2191-2005




8)   The Secretary,
     Gramodyogic Shikshan Mandal
     C/o. M.I.T. Polytechnic College,
     Satara Parisar,
     Beed By-pass Road,
     Aurangabad                                           .. Respondents


                                 ...
Mr. S.R. Choukidar, Advocate for petitioner
Mrs. S.S. Raut, A.G.P. for respondent - State
Ms. Neha B. Kamble, Advocate h/f Mr. S.V. Advant, Advocate for
respondent no.6
Mr. Ajay Deshpande, Advocate for respondents no. 7 and 8
                                 ...

                               CORAM            : SUNIL P. DESHMUKH &
                                                  SANGITRAO S. PATIL, JJ.

                               RESERVED ON :           04-10-2017

                               PRONOUNCED ON : 22-12-2017



ORAL JUDGMENT (PER - SUNIL P. DESHMUKH, J.)


1.              The     petitioner   who   is   bachelor      of    science       with

Mathematics had been appointed as Instructor (Mathematics) by

respondent no. 7 in its establishment - Industrial Training Center

at Aurangabad under an order dated 04-12-1991. He was

appointed temporarily for period from 04-12-1991 to 31-05-1992

on a consolidated fixed pay of Rs. 600/-. Petitioner claims that he

continued as such and had been issued a certificate to that effect

on 06-10-1995 by respondent no. 7. Subsequently, Industrial

3 WP - 2191-2005

Training Center along with such Centers at other places were

closed down by respondents no. 7 and 8 and their winding up was

under process and services of employees were brought to an end.

2. Quite a few terminated employees had been before the

High Court in Writ Petitions requesting for their absorption in

services of other establishments of respondents no. 7 and 8 viz.

Polytechnic and Engineering colleges. Under order dated

08-08-1997 passed in Writ Petition no. 4681 of 1996, the High

Court had directed respondents - respondents no. 7 and 8 herein,

to consider petitioners for appointment in their other

establishments, if the petitioners are qualified and eligible,

whenever posts would be available. Subject to such observation,

petition had been rejected.

3. Pursuant to the same, petitioner claims to have been

appointed on 25-01-1998 as Laboratory Assistant in Marathwada

Institute of Technology, Aurangabad in the pay scale of Rs.950-

1500/-, fixing the same at Rs.950/- per month.

4. Petitioner was later transferred to Marathwada Institute

of Technology Center at Ambajogai, Beed district under order

dated 29-09-2000. Said transfer order had been subject matter of

4 WP - 2191-2005

challenge in Writ Petition no. 2537 of 2001. Thereafter, an

understanding had been reached between union of employees and

respondent - management and the transfer order had been

withdrawn by management on 07-08-2001. Petitioner's services

were dis-continued from end of September, 2004. Before the

same, the petitioner had purportedly sent representation to the

authorities demanding proper pay scale, continuity of service and

other service conditions on the basis of his appointment as

Instructor from 04-12-1991 and consequential, incidental benefits

arising therefrom.

5. Since the representation did not bring about desired

effect, present Writ Petition had been filed. Petitioner contends

that the Industrial Training Centers were being closed down,

ostensibly with permission of the authorities, was an action in

collusion. According to petitioner, as a matter of fact, posts were

available for absorption of the employees in other establishments

run by respondents no. 7 and 8, yet, their services were brought

to an end by issuing termination orders.

6. Petitioner contends that he had been taking up,

espousing cause of employees and pursuing for payments and

conditions of service, as are required according to law and

5 WP - 2191-2005

directions issued in those respect by authorities concerned from

time to time.

7. Petitioner further contends that while petitioner could

have been absorbed in the posts available in other establishments

run by respondents no. 7 and 8, petitioner's services were

continued in Polytechnic which had been virtually closed down with

a view to bring his services to an end and had accordingly, dis-

continued the services of the petitioner end September, 2004.

8. Petitioner contends that he had been entitled to pay

scale of Rs.1400-2600/- from the date of his appointment as

Instructor on 04-12-1991 and to the revised pay scale according to

fifth pay commission recommendation, of Rs.5500-9000/- and the

pay scale made applicable to Instructor working with Government

and Government aided institutions, whereas he had been paid only

Rs.3,42,883/-.

9. Petitioner contends that the pay scales for his post are

governed by the provisions of Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act, 1977 (for short

"M.E.P.S. Act") Schedule C Part IV and he is entitled to the same

along with the revision. It is contended that payment of proper

pay scale was also obligation under circular issued dated 29-09-

6 WP - 2191-2005

1995. Petitioner purports to contend that his demands and

representations with the management for grant of proper pay

scale, regularization of service, promotional post and payment of

arrears did not produce any result. Thus, the petitioner has

prayed for declaration that denial by management of giving

benefits to regularization in service, continuity and payment of

arrears of pay is unjust, illegal and unconstitutional with a

direction to respondent - management to fix salary of the

petitioner in the pay scale of Rs.1400-2600/- from 04-12-1991

along with allowances, increments and revision in the same with

effect from 01-06-1996 to Rs.5500-9000/- with other benefits and

to pay to the petitioner a sum of Rs.7,13,658/- till end of

September, 2004 being unpaid amount towards arrears of salary

and in case of failure, recognition and approval to establishment of

Engineering college be withdrawn.

10. In support of his submissions, the petitioner has

annexed copy of his appointment order dated 04-12-1991,

certificate issued by Marathwada Institute of Technology Center,

Aurangabad on 06-10-1995. Order of this Court dated 08-08-

1997 passed in Writ Petition no. 4681 of 1996, order dated 25-01-

1998, appointing petitioner as Laboratory Assistant in Marathwada

7 WP - 2191-2005

Institute of Technology Center, Aurangabad. Transfer order dated

29-09-2000 and then order of withdrawal of the transfer order and

Government resolution dated 17-01-2004 and communication

dated 29-09-1995 issued by Director of Technical Education,

Maharashtra State, Mumbai to non-aided Engineering, Technical,

Pharmaceutical, Archeology, Management, Cookery, Computer,

Canteen and Diploma courses, communicating that the salary and

allowances and other benefits are obligatory to be paid in

accordance with the instructions issued by Government from time

to time. He has also annexed decision of this Court dated 03-07-

2001 in Writ Petition no. 364 of 1999 and a table of calculations for

period from December, 1991 to September, 2004, claiming

difference of salary of Rs.7,14,054/- and notice by counsel for the

petitioner dated 03-10-2003 seeking action as per the relevant

claim.

11. Respondent no.8 had resisted the claims under the

Writ Petition stating that petitioner has been given all the benefits

according to the settlements arrived at with his union from time to

time. It is contended that for 15 long years, the petitioner has not

made any grievance in respect of pay scale, regularization etc. and

had accepted the employment without any demur. The petitioner

8 WP - 2191-2005

had accepted appointment on consolidated pay as he did not

possess requisite qualification and as he lacked eligibility criteria.

The requisite qualification for the post of Instructor is contended to

be diploma in engineering. The claim about petitioner having been

a permanent employee pursuant to the provisions of M.E.P.S. Act

and particularly section 5 thereof is denied for want of requisite

qualification for the post of Instructor. It is purportedly contended

that provisions of M.E.P.S. Act and rules therein would not be

applicable to Industrial Training Center where petitioner had been

working.

12. The Industrial Training Centers, including where the

petitioner was working, had been self-funded establishment having

been rendered unviable and it was not feasible to run the same

with change in the policy of the Government. It is submitted that

the observations of the High Court under its order categorically

refer to accommodation to persons possessing qualification and

eligibility and subject to availability of posts.

13. It is contended that the petitioner had been required to

be transferred for want of requisite students at the Center at

Aurangabad. However, subsequently, the transfer order had been

9 WP - 2191-2005

withdrawn and the petitioner was asked to join services at

Aurangabad. In the interregnum, there has been time lag of about

10 months constituting break in service. It is contended that

though National Council for Vocational Training had recommended

2/3rd of salary be paid to faculty/staff members of private

Industrial Training Institutes, yet, said amount is payable to

persons holding qualifications prescribed for the post. According

to the management, Government resolution dated 17-01-2004 has

no significance which does not cover unaided and non-funded, self-

funding institutions.

14. It is contended that claim of petitioner is barred by

limitation having not been made within statutory period of

limitation and in the circumstances, petitioner cannot claim any

relief invoking extra-ordinary jurisdiction conferred upon this

Court.

15. Along with the reply, annexed are, extract of manual

about qualifications, the communication dated 07-01-1997 to the

President and Principals of Non-Government Industrial Training

Centers / Institutions depicting that non-Government Industrial

Training Center teaching and non-teaching staff shall be paid at the

rate of 2/3rd of salary of Government employees, the

10 WP - 2191-2005

communication by Joint Director, Technical Education has been

dated 10-02-2002 is stated to be issued in accordance with the

settlement between the employees of respondent - management

and the employee's union as also the document depicting

settlement dated 03-03-2000 and certain other documents with

respect to complaints against the petitioner and the union

members.

16. In the rejoinder, the petitioner purports to append copy

of Rules of 1962 setting forth the qualifications for the post of

Instructor.

17. Learned counsel for petitioner Mr. Choukidar submits

that management had been absolutely unfair to its employees in

respect of payment of salary, pay scale as well as other service

conditions. It is emphasized that for the post of Instructor, while

petitioner had been appointed in 1991, the pay scale of Rs.1200/- -

2600/- and upon revision, the same has been Rs.5500/- - 9000/-.

Looking at that the petitioner had been employed from 1991

continuously, he had been entitled not only to claim permanency

but also continuity of service and with reference to the same,

further promotions in the hierarchy in the natural course, were due

to him legitimately, yet, under the unfair employment practices,

11 WP - 2191-2005

the petitioner and similarly situated employees have been

deprived of such benefits. Constrained and compelled, the

petitioner and his union was required to take up the cause of

employees with the management. However, taking interest and

espousing the cause of employees and union members has

developed grudge against him by the management and, as such,

his services were discontinued. He was not properly absorbed and

not granted proper pay scale. He was transferred. Transfer order

was cancelled. Settlements were entered into and yet, his services

were discontinued after September, 2004.

18. He submits that pursuant to decision of this Court in

Writ Petition no. 333 of 2002 dated 19-12-2003, the benefit of fifth

pay commission recommendation are due and payable to the non-

teaching staff.

19. He submits that even for temporary employees,

principle of equal pay and equal work has been made applicable

giving them the minimum of pay scale of regularly engaged

government employees holding the same post.

20. It is further submitted with reference to decision in the

case of Teachers Association for Non-Aided Polytechnics and others Vs. Hindi

Seva Mandal, Bhusaval, Through its President and others annexed to the

12 WP - 2191-2005

petition and also reported in 2003 Supp. (1) B.C.R. 846 that a belated

approach would not dis-entitle petitioner from claiming benefits.

21. He submits that while the question of granting of sixth

pay recommendation had arisen in Writ Petition preferred, the

benefits were granted to the petitioner therein and while the

matter was taken to Apex Court, the Apex Court had referred to

that as far as non-teaching staff is concerned, there has been a

settlement, referring to paragraph no. 55 from said decision.

22. Learned counsel for respondent Mr. Deshpande submits

that since the petitioner does not hold basic qualifications for

appointment to the post of Instructor, his claims based on his

appointment as Instructor are fragile and friable. He submits that

though ostensibly, the appointment order had been as Instructor

but the same also was temporary and particularly had been for a

specific period on a consolidated pay which he had accepted

without demur, since petitioner was aware, he is not qualified to

hold said post. He had, thereafter, at any point of time till he filed

Writ Petition in 2004, not made any grievance in respect of pay

scale to his such appointment. Moreover, petitioner's appointment

as Instructor had come to an end in 1995. He had, not before his

termination order, or at any point thereafter, till he filed Writ

13 WP - 2191-2005

Petition, made any grievance in respect of the pay scale or

consequent claims / benefits. Thus, almost 10 years down

thereafter, to make such a claim is not only outside the period of

limitation but also hit by principle of estoppel. Petitioner had

subsequently accepted fresh appointment as Laboratory Assistant

and had continued as such till end of September, 2004, and not on

a single occasion, such a request with reference to the pay scale of

Instructor had been made by him. He further submits that

petitioner claims benefits only on the basis of his appointment on

04-12-1991 and no other. Therefore, the claim made with

reference to same in Writ Petition in 2004, is barred by law of

limitation and is hit by laches. Apart from aforesaid, he submits

that the entitlement claimed to the pay scale and revision pursuant

to the M.E.P.S. Act, the same shall fall flat on the ground for want

of requisite qualification. Pay scale demanded are meant for the

employees possessing requisite qualifications, which the petitioner

does not hold at all. It is not the petitioner' case that he holds

diploma in engineering which is the requisite qualification,

referring to the qualification prescribed in the manual, extract of

which is stated to have been produced along with the affidavit-in-

reply. Learned counsel on instructions submits that so far as

balance amount as may be payable to petitioner from the

14 WP - 2191-2005

settlement entered into between union employees and the

management, the same would be paid by management to the

petitioner, however, the other claims and the declaration sought by

the petitioner are absolutely untenable and do not deserve to be

considered at all. He submits that circular relied on would not hold

the petitioner's case for want of qualification and he submits that

the decision relied on does not meet the aspect with respect to

qualification for the post of Instructor. As such, demand only

based on judgment is de hors qualification.

23. Learned counsel on either side have made their

submissions in respect of qualifications for the post of Instructor,

the rules which are purportedly relied on of 1962, depict that

Instructor (Mathematics) has been referred to and, educational

qualifications are Graduate in Science faculty with technical

training background, whereas the extract of manual relied on

shows that for the post of Instructor (Workshop calculation and

science), the qualification is Diploma in Engineering.

24. Rule 6 about qualification placed reliance on behalf of

petitioner reads thus :-

" 6. Recruitment Rule for the post of Instructor (Mathematics)

Appointment to the post shall be made by nomination from amongst candidates who:

15 WP - 2191-2005

(i) unless already in the service of the Government of Maharashtra, are not more than 35 years of age;

(ii) hold Bachelor's degree or have passed Intermediate Examination of recognized University with good technical background and experience in the subject or possess good general education with systematic Training in Engineering shop practices class sound practical experience subsequent to training and preferably some experience of teaching the subject.

Provided that age limit may be relaxed in the cases of candidates possessing and/or experience."

whereas, Sr. no. 7, in the extract of Manual referred to by

respondent - management reads thus :-

               Sr. Name of Post and                   Qualifications
               No. its status

-------------------------------------------------------------------------

...

7. Workshop Calculation A person with diploma in engineering and Science Instructor may be appointed for the above post to teach both the subjects.

--------------------------------------------------------------------------

25. It is not the case of the petitioner that the petitioner

apart from Graduation in Science, holds the further requisite

training or proficiency or skill, or had been trained in those

respect. He appears to have chosen to go on with the

consolidated pay of Rs.600/- for quite some time. It appears that

the establishment which is stated to had been rendered unviable,

had been closed down, and his services had been brought to an

end. The High Court under its order, had directed absorption

16 WP - 2191-2005

subject to the possession of qualification and eligibility. Thereafter,

the petitioner had been appointed as Laboratory Assistant. None

of the parties have brought before this Court the qualifications

required for said post and the petitioner had accepted such

appointment without any demur, which appears to be a fresh

appointment. The petitioner thereafter had continued as such, for

quite some time with some interlude, upon an order of transfer.

All the while during this period, he had not made any grievance in

respect of his pay scale nor has submitted along with the Petition,

any document in respect of the same. It is only in 2003, he

purported to have made grievance in respect of the pay scale of

the post of instructor by issuing notice and then a writ petition has

been filed.

26. Thus things which clearly emerge are, there is no

dispute that establishment where petitioner had been appointed,

had been closed down and that he had not made any grievance

during his tenure about the pay scale much less based on the

qualification with respect to the rules now being referred to nor

any representation had been filed with reference to the Circular of

1995 or for that matter, Government resolution issued in 2004

while he had been still in employment.

17 WP - 2191-2005

27. Though learned counsel for the petitioner has referred

to the case of Teachers Association for Non-Aided Polytechnics and others Vs.

Hindi Seva Mandal, Bhusaval, Through its President and others, 2003 Supp. (1)

B.C.R. 846 (supra), the observations relied on by learned counsel for

petitioner are from paragraph no.7 therein, which are reproduced

hereinbelow :-

" 7. So far as the point of belated approach to this Court is concerned, we note that the said ground is unsustainable as the petitioners have sought directions to implement the instructions given by the Government of Maharashtra vide circular dated 29th September, 1995 and, thereafter, representations have been made to the management as well as to the respondent No.4 in 1998. As there was no response from either of them, the petitioners approached this Court."

The fact situation in the present matter appears to be quite apart

from one that was considered while observing as aforesaid. As

such, the observations therein may not carry forward the case on

that count for the petitioner.

28. The petitioner claims benefits be given to him

considering him as a full-fledged instructor having qualifications to

hold said post with effect from 04-12-1991 onwards continuously

including all incidental and consequential benefits, promotion and

the pay scale. While the petitioner had referred to definite pay

scale as applicable at the time of his appointment i.e. Rs.1200-

18 WP - 2191-2005

1600 yet, he has not given details as to how and when he would

have been qualified and eligible to further promotion and what was

said post and what was pay scale of said post prevailing then and

whether such a post had been available with the management

where he had been employed after his appointment. Further, while

he had been terminated and had been appointed again in 1998 as

laboratory assistant, he has not referred to in the petition as to

what were the qualifications for said post and whether he

possessed such eligibility / qualification to hold on to such post

and what was pay scale attached to said post under the circulars

issued from time to time by the government or under the M.E.P.S.

Act or for that matter on application of pay scales under the 5 th

Central Pay Commission. He has vaguely demanded all the

benefits only based on his appointment as instructor in 1991.

There is no sufficient material placed on record with further

augmentation either in the post or the pay scale albeit he has

claimed entitlement to certain pay scale pursuant to circulars

issued by State government and with reference to M.E.P.S. Act and

the rules thereunder. Yet, we may have to take into account that it

is undisputed position by petitioner himself that his services as

instructor were brought to an end and terminated around 1995.

Thereafter he had never claimed said post at any point of time as

19 WP - 2191-2005

is apparent from record in the writ petition till he has issued notice

in 2003. As a matter of fact, record bears out that petitioner had

accepted post of laboratory assistant in one of the establishments

of the management. He has not given clear picture as to whether

any post equivalent to instructor had been available for his

appointment based on his qualification; as to whether he had

demanded the same at any time after 1998.

29. Thus, we are not in a position to grant the request.

The petitioner appears to have acquiesced in the pay as had been

paid to him till his termination as instructor. It may be a case that

he had been forced to accept the post of laboratory assistant yet,

he does not appear to have been aggrieved by the same till he

filed writ petition.

30. Learned counsel Mr. Deshpande appearing for the

petitioner during the course of his hearing has shown willingness

for payment to the petitioner of difference of pay which has not

been paid to him which according to the settlement with the

management.

31. While, the petitioner purports to rely on 1962 rules as

appended along with the affidavit-in-rejoinder which appears to

20 WP - 2191-2005

prescribe bachelors degree with good technical background and

experience in the subject or posses good general education with

systematic training in Engineering shop practices class sound

practical experience subsequent to training and preferably some

experience of teaching the subject, whereas the one relied on from

the manual by respondents is "Instructor (Workshop calculation

and science)" and qualification prescribed is the person shall

possess diploma in engineering. Neither party has adequately and

properly addressed this issue with regard to qualification for the

post of Instructor.

32. As such, the dispute about the entitlement to pay scale

and the incidental, consequential benefits has been raised with

reference to the qualifications held by the petitioner. The situation

in the Writ Petition based on the material as available, appears to

be rather ambiguous.

33. Further, it may have to be noted that a claim for pay

scale and benefits arising from continuation in service including

augmentation in the posts are being demanded by issuing notice in

2003 and then filing Writ Petition in 2004. Petitioner claims benefit

of appointment as Instructor which stood terminated in 1995/96.

What possibly can now be granted to him is only compensation in

21 WP - 2191-2005

monetary form. The petitioner has not challenged termination

from said post. As such, claim with regard to the post of

Instructor and augmentation in the same is reduced to a monetary

claim based on the post of Instructor. Apart from that, the

demand of corresponding pay scale is being made after a huge gap

and long after acceptance of the post of Laboratory Assistant in

1998, i.e. in 2004 in writ petition or for that matter by

representations in 2003 does not appear to be a claim which can

be supported on the ground of limitation. It is far too belated and

the payment for said post and consequential further post appears

to be obstructed by limitation therefor, for recovery, as a money

claim.

34. So far as the claim which would be based for

appointment on the post of Laboratory Assistant in 1998 is

concerned, the petitioner has not referred to the pay scales

applicable to said post or for that matter qualifications for the

same. The petitioner claims to have been dis-continued from end

of September, 2004, however, for want of requisite material in

respect of said post, it is difficult to form any judgment with

reference to the scanty documentation available. His claim for pay

scale for said post for preceding three years therefrom may be

having some substance. As such, it is open for for the petitioner

22 WP - 2191-2005

to make such a request, supporting the same with material along

with applicable rules, instructions, guidelines, resolutions etc. to

the management as well as with the concerned authorities to

whom representations can be made.

35. So far as claim based on the post of Instructor is

concerned, the same is not accepted and Writ Petition is disposed

of with observations as contained in paragraph no. 34.

36. Rule stands discharged.

           [SANGITRAO S. PATIL]            [SUNIL P. DESHMUKH]
                  JUDGE                           JUDGE

arp/