Sudhir Madhukarrao Mankar vs The Joint Director, Higher ...
2017 Latest Caselaw 4210 Bom

WP  2700/15                                          1                              Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 2700/2015

Sudhir Madhukarrao Mankar,
aged 45, Occ. Service,
r/o Geetai Nagar, Wardha.                                                      PETITIONER

                                  .....VERSUS.....

1.    The Joint Director,
      Higher Education, Nagpur.
2.    The Principal,
      Yeshwant Mahavidyalaya, Wardha.
3.    The Chairman,
      Yeshwant Rural Education Society,
      Yeshwant Mahavidyalaya, Wardha.                                    RESPONDENTS

                                 None for the petitioner.
        Shri I.J. Damle, Assistant Government Pleader for the respondent no.1.
                Shri N.R. Saboo, counsel for the respondent nos.2 and 3.



                                     CORAM :SMT.VASANTI  A  NAIK AND
                                                    A.D. UPADHYE, JJ.                  

DATE : 7 TH JULY, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this writ petition, the petitioner seeks a direction against

the respondent nos.2 and 3 to pay the arrears of salary to the petitioner

for the period from 09.03.2013 to 10.10.2013.

2. The petitioner was appointed as a Junior Stenographer in the

respondent no.2-College. The Joint Director of Higher Education had

passed an order on 02.03.2013 directing that the services of the petitioner

WP 2700/15 2 Judgment

should be absorbed in Shivaji Science College, Nagpur as he was declared

surplus in the college run by the Yashwant Rural Education Society. The

respondent nos.2 and 3-Management and the Principal did not relieve the

petitioner and in stead served a suspension order dated 09.03.2013 on

him. The order of suspension was challenged by the petitioner in Writ

Petition No.1827 of 2013. In the said writ petition, a statement was

made on behalf of the management that the petitioner was suspended

after he was declared surplus as he would seek his repatriation in the

college run by the society, in future. Since a statement was made by the

learned counsel for the petitioner in the said writ petition that the

petitioner would not be interested in seeking his repatriation in the

college run by the respondent-Society, this Court held that there was no

question of holding a departmental enquiry against the petitioner. The

order of suspension of the petitioner was quashed and set aside in the

aforesaid background and it was held that the petitioner was entitled to

be absorbed in Shivaji Science College in terms of the order dated

02.03.2013. Though the petitioner had received the subsistence

allowance for the period during which he was placed under suspension

after he was declared surplus till the date on which he was relieved from

service, the petitioner has filed the instant petition seeking remaining

50% salary, as the suspension of the petitioner was set aside in Writ

Petition No.1827 of 2013.

WP 2700/15 3 Judgment

3. On a perusal of the order dated 24.09.2013 in Writ

Petition No.1827 of 2013 as also the affidavit-in-reply filed on

behalf of the respondent nos.2 and 3, it appears that the relief

sought by the petitioner cannot be granted. In Writ Petition No.1827 of

2013, the petitioner could have prayed for a direction against the

respondent nos.2 and 3 to pay the entire salary to the petitioner.

The petitioner, however, did not claim so and the writ petition was

disposed of by recording the statements made on behalf of the

respective parties. The petitioner has admittedly received the suspension

allowance. The claim of the petitioner for arrears of difference of

salary would be barred by the provisions akin to the provisions of

'Constructive Res-Judicata'. If the petitioner was of the view that

100% salary was payable to the petitioner by the respondent nos.2

and 3, a request in that regard should have been made, if not by

a prayer in Writ Petition No.1827 of 2013, at least at the time of

hearing of the writ petition on 24.09.2013. The petitioner has

sought the difference of arrears of salary barely for a few months.

In the circumstances of the case, the petitioner would not be entitled

to make the claim, specially when no provisions of law is pointed out

by the petitioner in the writ petition, under which the petitioner

would be entitled to receive the entire salary after he was declared

surplus.

WP 2700/15 4 Judgment

4. Since the relief sought by the petitioner cannot be granted,

the writ petition is dismissed with no order as to costs. Rule stands

discharged.

               JUDGE                                              JUDGE
APTE