Bombay High Court
Shankar Tukaram Kamble vs The State Of Mah And Ors on 28 July, 2017
Bench: T.V. Nalawade
1 WP 1309 & 1331 of 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.1309 of 2009
* Hirachand s/o Kasturchand Mahajan,
Age 48 years,
Occupation: Assistant Teacher,
R/o Chausalkar Colony,
Opp. Bus Depot, Ambajogai,
District Beed. .. Petitioner.
Versus
1) The State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai.
2) The Deputy Director of Education,
Aurangabad Region, Aurangabad.
3) The Education Officer (Secondary)
Zilla Parishad, Parbhani.
4) The Deogiri Shikshan Prasarak
Mandal, Parbhani,
Through its Secretary. .. Respondents.
----
Smt. R.K. Ladda, Advocate, for petitioner.
Shri. S.D. Ghayal, Assistant Government Pleader, for
respondent Nos.1,2 and 3.
Shri. P.N. Sonpethkar, Advocate, for respondent No.4.
----
With
Writ Petition No.1331 of 2009
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 02:00:00 :::
2 WP 1309 & 1331 of 2009
* Shankar Tukaram Kamble,
Age 56 years,
Occupation: Service,
R/o Bardapur, Taluka Ambajogai,
District Beed. .. Petitioner.
Versus
1) The State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai.
2) The Deputy Director of Education,
Aurangabad Region, Aurangabad.
3) The Education Officer (Secondary)
Zilla Parishad, Parbhani.
4) The Deogiri Shikshan Prasarak
Mandal, Parbhani,
Through its Secretary. .. Respondents.
----
Smt. R.K. Ladda, Advocate, for petitioner.
Shri. S.D. Ghayal, Assistant Government Pleader, for
respondent Nos.1,2 and 3.
Shri. P.N. Sonpethkar, Advocate, for respondent No.4.
----
Coram: T.V. NALAWADE &
SUNIL K. KOTWAL, JJ.
Date : 28 July 2017
JUDGMENT (Per T.V. Nalawade, J.):
1) Both the petitions are filed for giving directions
to the respondents, Government to pay arrears of salary to
3 WP 1309 & 1331 of 2009
the petitioners for the period from August 2004 to March
2005 and from August 2004 to June 2005 respectively
with interest. Both the sides are heard.
2) It is the case of the petitioners that during the
aforesaid period they were working in Yogeshwari
Mahavidyalaya Ambejogai and in Renuka Higher
Secondary School Bardapur respectively as they were
declared as surplus staff of respondent No.4. It is
contended that in respect of this period salary was not
paid. It is secondary high school.
3) The Deputy Director of Education has filed
reply affidavit and it is contended that the petitioners
were in service till March 2004 in respondent No.4
institution but after that the institution was derecognised
due to want of students and so the petitioners were
declared as surplus. It is contended that subsequently the
petitioners were absorbed and presently they are working
with Renuka High School Bardapur and they are
receiving regular salary there. It is contended that as for
the aforesaid period the petitioners did not work in the
4 WP 1309 & 1331 of 2009
institution which was receiving grant, they are not
entitled to get salary in respect of the said period. It is
also contended that the petitions are filed after 4 years
from the date of cause of action, no relief can be granted
to them.
4) Learned counsel for the petitioners placed
reliance on some correspondence made with the authority
and also letters written by the authority to take action and
give decision on the representations. The learned counsel
for the petitioners submitted that at least direction needs
to be given to respondent-authority to consider the
representations and give decision. The learned Assistant
Government Pleader opposed this prayer also by
contending that when the institution was not in existence
and when the petitioners did not work in such institution
there is no point in giving such direction.
5) There are aforesaid circumstances and the
decision given by this Court in Writ Petition No.5219 of
2005 (Subodh Suryawanshi v. The State of Maharashtra
& Others) to the effect that salary cannot be paid to such
5 WP 1309 & 1331 of 2009
employee for the period during which he was not
absorbed. Other main contention of the respondent is
that the proceeding is filed after more than four years
from the date of cause of action. This circumstance does
not give rise only to the ground of laches or delay but it
involves point of limitation also. It can be said that for
proving that the petitioners had worked during aforesaid
period, the petitioners could have gone to Civil Court for
getting the salary in respect of the said period. Thus there
was a right if they had actually served and there was also
remedy available to go to Civil Court. As present petitions
are filed after more than four years from the date of cause
of action it can be said that it was not possible to go to
Civil Court to enforce the right. Thus due to law of
limitation no relief was available. This Court cannot ignore
that circumstance. Writ jurisdiction cannot be used when
relief is not available under civil law. In the result, both
petitions stand dismissed. Rule discharged.
Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (T.V. NALAWADE, J.)
rsl
