Vaidya Bhaurao Eknath Borkar vs Vaidya Vikas Mahadevrao Ghutke ...
2017 Latest Caselaw 9267 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                      WRIT PETITION NO. 3149 OF 2011


          Vaidya Bhaurao s/o Eknath Borkar,
          Age 52 years, Occupation : Service
          as Professor, Department of Anatomy
          (Sharir Rachana), Govt. Ayurvedic
          College, Osmanabad                         .. Petitioner

                           versus

 1.       Vaidya Vikas s/o Mahadevrao Ghutke,
          Age : 48 years, Occupation : Service,
          R/o House No. 1-9-78, Jaisingpura,
          Near University Gate, Aurangabad

 2.       The State of Maharashtra

 3.       The Maharashtra State Public Service
          Commission, Bank of India Building,
          Hutatma Chowk, Mahatma Gandhi
          Road, Mumbai - 400 001, through
          its Secretary.

 4.       The Secretary, Medical Education &
          Drugs Department, Govt. of
          Maharashtra, Mantralaya,
          Mumbai-400032                              ..Respondents

                      ------
          Mr. R. K. Ashtekar, Advocate   for petitioner
          Mr. Avinash S. Deshmukh with Mr. R.S. Deshmukh,
          Advocate for respondent no. 1
          Ms. S.S. Raut, Assistant Government Pleader
          for respondents no. 2 and 4.




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

DATE : 04-12-2017

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

1. The petition assails the decision rendered by the

Maharashtra Administrative Tribunal, Aurangabad Bench,

dated 16-03-2011 in Original Application No. 475 of 2003.

Original Application No. 475 of 2003 had been filed by present

respondent no. 1 challenging the appointment of petitioner

as Reader pursuant to the selection process employed by

Respondent No. 3 - Maharashtra Public Service Commission,

inter alia, laying down eligibility criterion of three years

experience as a Lecturer.

2. It has been the case of present respondent no. 1 before

the Tribunal that there is fallacy in consideration of petitioner

possessing requisite experience since the petitioner had not

been a post graduate in the concerned subject till 1997 and

after 1997 till March, 2000, he falls short of requisite

experience of three years. The Tribunal had considered that

since petitioner is short of requisite experience of three years,

he does not qualify to the post of Reader and, as such, had

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allowed Original Application no. 475 of 2003, holding the

appointment of petitioner to be invalid and further directing

respondent no. 1 to consider the case of petitioner for the

post of Reader in Anatomy, if found fit.

3. During the course of hearing of writ petition, it

transpired that while the petitioner had been demoted

pursuant to the order of the Tribunal, he has now been

promoted as Reader under regular course.

4. Learned counsel for the petitioner refers to that the

decision had been rendered by the Tribunal in the absence of

counsel for the petitioner and, as such, the Tribunal could not

notice vital aspects and had been oblivious of the same.

5. The factual aspects which may be germane from the

point of view of decision in the matter are, the petitioner had

been appointed as Demonstrator on 21-10-1987 in

Government Ayurvedic College, Nagpur. On 10-12-1990, a

resolution had been issued by the Government treating and

re-designating the Demonstrator appointed before

01-07-1989 as Lecturers with effect from 10-12-1990. Said

resolution had been the subject-matter of challenge before

High Court at Nagpur Bench in which operation of said

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resolution had been stayed. Subsequently, writ petition

pending before Nagpur Bench was withdrawn around 1997.

On 28-08-2017, a modified resolution had been issued by the

Government ratifying earlier decision of treating the

Demonstrators not possessing post graduate qualification as

Lecturers with effect from 10-12-1990.

6. petitioner in 1997 acquired M. D. post graduate

qualification. On 11-01-1999, respondent no. 2 Maharashtra

Public Service Commission, published an advertisement for

filling up, inter-alia, post of Reader in Anatomy (शरीर रचना). In the

selection process, the petitioner and respondent no. 1 were

interviewed. Respondent no. 1 having not been recommended

by respondent no. 2 for Reader's post in anatomy, had filed

representations to various authorities which purportedly had

been turned down in October, 2002 and thereafter Original

Application referred to above had been filed.

7. Mr. Ashtekar, learned counsel appearing on behalf of the

petitioner vehemently submits that when a decision has been

taken by the State Government to treat the Demonstrator as

Lecturer with effect from 10-12-1990, the consideration which

apparently has carried away the Tribunal about teaching

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experience of three years after acquisition of qualification is

an imposition not intended by the State Government and is

not borne out from the qualifications prescribed for Reader's

post, for making appointments.

8. He submits that even otherwise, after acquisition of post

graduate qualification, the petitioner had almost completed

three years experience, may not be with mathematical

precision and as such, respondent no. 2 by applying the

criteria as prescribed had recommended appointment of

petitioner according to which the petitioner had been

appointed. Not only that he had started working as Reader

but also during pendency of Original Application before the

Tribunal, he had further been promoted as Professor and had

been working as such till the order had been passed by the

Tribunal in 2011. Thus, possession of qualification and

performance of duty, balancing the situation, would show that

so called consideration which had weighed with the Tribunal

had not affected performance in duty of petitioner as Reader

or for that matter Professor. Moreover, petitioner's

performance as a Reader was a major consideration when he

came to be promoted as Professor. He submits that the

view taken by the Tribunal is a classic example of its decision

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being tending to be too pedantic. He submits, even the same

is not tenable in view of resolutions passed by the State, one

on 10-12-1990 and the other on 28-08-1997.

9. In support of his submissions, Mr. Ashtekar refers to and

relies on decision in the case of Ramesh Vithal Padhye vs. State vs.

State of Maharashtra, 2006 Mh.L.J. 803. He submits that the

reasoning which has gone into making of said decision applies

on all fours to present facts and circumstances and therefore

applying analogy therefrom, present writ petition deserves to

be allowed.

10. Mr. Deshmukh, learned counsel appearing on behalf of

respondent no. 1 states that with the subsequent events after

passing passing order in the Original Application, his client is

no longer interested in prosecution of present writ petition

and gracefully states that he leaves it to the court to decide

the matter in accordance with facts and law.

11. Learned Assistant Government Pleader supports the

order impugned and submits that the resolutions by the

Government depict that as Demonstrators appointed before

1990 are re-designated as Lecturer and that the

Demonstrators who would not possess requisite qualification

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would perform duties as Demonstrators. In view of the same,

the Tribunal has taken a decision that since the petitioner is

not possessing requisite experience after 1997, he is not

entitled to relief sought by him. Learned Assistant

Government Pleader, however, is not in a position to show

that so-called shortfall of fraction of experience of three years

had affected performance of the petitioner as Reader or for

that matter thereafter as Professor.

12. While the government had taken a decision to re-

designate Demonstrators as Lecturers and while making

recruitments pursuant to advertisement prescribing three

years experience as a lecturer, it did not make any other

distinction between Lecturer with teaching experience and

person designated as Lecturer. While the petitioner, indeed,

would be required to be treated as Lecturer since 1990

pursuant to Government Resolutions of 1990 and 1997 and

also having regard to that performance by him in duty had

not been affected by shortfall of fraction of experience for

completion of three years after acquisition of post graduate

degree by him, the view taken by the Tribunal in the Original

Application tends to be rather too hypothetical and pedantic.

 This may have to be seen on the background also                      that so





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 called lack         of    experience     as considered by the tribunal

would not be in keeping with the intention of the State

Government and the position as appearing under the

resolutions issued by the State Government.

13. Having regard to the position as would be revealed by

the resolutions dated 10-12-1990 and 28-08-1997, the post

of Demonstrator had been re-designated as Lecturer, further

stipulating that the persons who do not possess post graduate

qualification would continue to discharge same duties as

Demonstrator so long as they do not acquire necessary

qualification. This position had not only been ratified but had

been clarified that the persons appointed before 01-07-1989

and not possessing post graduate qualification will be treated

as Lecturers with effect from 10-12-1990. Such a treatment

had not been restricted for any specific purpose and appears

to be applicable to all the purposes.

14. In the present case, petitioner's services pursuant to

aforesaid resolutions will have to be treated as of a Lecturer

having undergone change in designation with effect from

10-12-1990, and as such, the intention underlying the

Government Resolutions will have to be given its due

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and more so while the petitioner has acquired post graduate

qualification in 1997. The petitioner appears to have had vast

experience in service since 1987 onwards till he had been

appointed as Reader in 2002. His performance in service

thereafter does not appear to have been affected by so-called

deficiency in experience which had weighed with Tribunal.

Even otherwise, while there has been a decision by the State,

treating Demonstrators appointed before 1989 as Lecturers,

requirement of teaching experience after acquisition of post -

graduate qualification as considered by the Tribunal appears

to be rather overreaching the decision by the State

Government.

15. Besides, the position is that petitioner's career after

2002 as Reader till he had been working had been blemish-

less having regard to the submissions on behalf of the parties

and the affidavits filed by the respondents. In the

circumstances, we feel that the approach of the Tribunal had

been rather over-imposing, overbearing, overreaching and too

pedantic affecting service career of the petitioner. Even

otherwise, it appears that pursuant to the directions of the

Tribunal, respondent no. 1 has not been able to secure the

post held by the petitioner. Petitioner, in fact and

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indisputably, had been working as Professor while he had

been demoted pursuant to impugned order passed by the

Tribunal.

16. In view of the same, we allow the writ petition in terms

of prayer clause (B) and dispose it of.

17. We direct the respondents to grant to the petitioner all

concomitant benefits arising from his appointment as Reader

with effect from 31-10-2002. Rule made absolute accordingly.

 SANGITRAO S. PATIL,                        SUNIL P. DESHMUKH,
     JUDGE                                       JUDGE




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