Sau. Nanda Satish Deshpande Alias ... vs Joint Director Higher Education ...
2017 Latest Caselaw 2993 Bom

WP  5301/13                                            1                           Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                 WRIT PETITION No. 5301/2013
Sau.Nanda Satish Deshpande,
Alias Nanda Gopalrao Taware,
Age - 48 yrs, Occ- Service,
R/o-A.V. Joshi Colony, Camp Road,
Mangilal Plot, Amravati.                                                      PETITIONER
                                    .....VERSUS.....
1.    Joint Director of Higher Education,
      Amravati Division, Amravati,
      Office at Government Vidarbha 
      Mahavidyalaya Premises, Amravati,
      Tq. And Dist. Amravati.
2.    Shri Shivaji Education Society, Amravati,
      through its Secretary,
      Shivaji Nagar, Amravati,
      Tq. And Dist. Amravati.
3.    Dr.Panjabrao Deshmukh College of Law,
      through its Principal,
      Morshi Road, Amravati.
4.    Y.D.V.D. Arts and Commerce College,
      Tiwasa,
      Through its Principal,
      Tq. Tiwasa, Dist. Amravati.                                              RESPONDENTS

                       Shri P.S. Patil, counsel for the petitioner.
   Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondent no.1.
              Shri Abhay Sambre, counsel for the respondent nos.2 and 4.
Shri R.Bende, Advocate holding for Shri R.D. Wakode, counsel for the respondent no.3.

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

                                                             9                  JUNE,     2017.
                                      DATE        :            TH


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

By this writ petition, the petitioner challenges the order of the

respondent no.1-Joint Director of Higher Education, Amravati dated

23.08.2013 informing the management and the principal of the college

that salary should not be released in favour of the petitioner from the

Government Exchequer as the petitioner was overaged at the time of her

initial appointment on 01.10.1999.

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The petitioner was appointed as a Clerk-cum-Typist on

temporary basis by the respondent no.2-Management in the respondent

no.3-College in the year 1987. The petitioner continued to work in the

respondent no.3-College till her services were confirmed on 01.10.1995.

The petitioner was transferred from the respondent no.3-College to the

respondent no.4-College in the year 2006. After she was transferred, it

was realized by the petitioner that in her service book, the date of her

confirmation in service was wrongly recorded as 01.10.1999 in stead of

01.10.1995. The petitioner made a grievance vide representations, in this

regard. By the impugned order dated 23.08.2013, the Joint director of

Higher Education, directed the principal of the respondent no.4-College

that the salary of the petitioner should not be released from the grants

received from the Government as the petitioner was overaged at the time

of her confirmation in service on 01.10.1999.

Shri Patil, the learned counsel for the petitioner, submitted

that the action on the part of the Joint Director of Higher Education to

direct the principal of the college not to release the salary in favour of the

petitioner from the government grants as she was overaged at the time of

her confirmation on 01.10.1999 is arbitrary and illegal. It is submitted

that at the time of her initial appointment in the year 1987 and thereafter

at the time of her confirmation on 15.07.1996, the petitioner was not

barred by age for seeking the appointment or confirmation. It is

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submitted that by harping upon a wrongful entry in the service book in

regard to the date of confirmation being 01.10.1999, the Joint Director of

Higher Education has erroneously passed the impugned order on the

ground that the petitioner was age barred at the time of her initial

appointment on 01.10.1999. It is submitted that such an action cannot

be taken by the Joint Director of Higher Education after nearly twenty

years when the petitioner had started receiving salary from the

government exchequer from the year 1995 till the impugned order was

passed in the year 2013. It is submitted that the fact whether the

petitioner was overaged or not should have been confirmed by the

education authorities before granting approval to her appointment. It is

submitted that in any case, since the petitioner was not overaged at the

time of her appointment in 1995, the impugned order is liable to be

quashed and set aside.

Shri Dharmadhikari, the learned Assistant Government

Pleader appearing on behalf of the Joint Director of Higher Education,

has supported the order of the authority. It is submitted that it is clear

from the entry in the service book of the petitioner that the petitioner was

confirmed on 01.10.1999 and she was overaged at the time of her

appointment. It is submitted that apart from the said aspect, the

impugned order could be sustained on one more ground, i.e. that the

appointment of the petitioner was not made after following the due

WP 5301/13 4 Judgment

procedure for selection. It is submitted that in the circumstances of the

case, the writ petition is liable to be dismissed.

Shri Sambre, the learned counsel for the management, has

supported the action on the part of the management and also the case of

the petitioner. It is submitted that the petitioner had not only worked in

the college from 15.07.1996, the date on which she was confirmed but,

she had rendered service as a Clerk-cum-Typist on temporary basis in the

respondent no.3-College. It is submitted that after several years of the

services of the petitioner, the Joint Director of Higher Education could not

have passed the impugned order refusing to release the salary in favour of

the petitioner.

On hearing the learned counsel for the parties, we find that

the Joint Director of Higher Education was not justified in passing the

impugned order. Even assuming that there is a dispute in regard to the

date of confirmation of the services of the petitioner as a Clerk-cum-

Typist, it would be necessary to note that the petitioner had worked with

the respondents on temporary basis from the year 1987. Apart from the

said position, the Joint Director of Higher Education had approved the

services of the petitioner in the respondent no.3 and the respondent no.4-

Colleges, inasmuch as the salary of the petitioner was released from the

government exchequer for the period during which the petitioner worked

WP 5301/13 5 Judgment

in the respondent nos.3 and 4-Colleges that are run by the same

management. After the petitioner completed nearly twenty years of

regular service in the colleges run by the respondent-management, the

Joint Director of Higher Education woke up to find that the petitioner was

overaged at the time of the confirmation of her services on 01.10.1999

though it is the case of the petitioner that she was confirmed in July-

1996. It is an admitted position that for nearly twenty years, the

petitioner was considered to be a permanent employee of the

management in the respondent nos.3 and 4-Colleges and the petitioner

had received the salary from the government grants. If that be so, the

action on the part of the Joint Director of Higher Education of stopping

the salary of the petitioner from the government grants on the ground

that she was overaged at the time of her initial appointment is clearly

arbitrary and unreasonable. We are not inclined to accept the submission

made on behalf of the Joint Director of Higher Education that there is an

additional ground for passing the impugned order. Firstly, it was not the

case of the Joint Director of Higher Education in the impugned order that

the selection of the petitioner was not made by following the due

procedure. It is well settled that an impugned order cannot be

supplemented by reasons that do not find place in the same. It would be

worthwhile to refer to the judgment of the Hon'ble Supreme Court,

reported in AIR 1978 SC 851 (Mohinder Singh Gill & Another Versus

The Chief Election Commissioner, New Delhi & Others) in this regard. It

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is well settled that reasons cannot be added to an order to support the

same by an affidavit-in-reply. Apart from the aforesaid, we are unable to

gauge as to why the Joint Director of Higher Education did not examine

this aspect while releasing the salary in favour of the petitioner from the

year 1996 onwards. It was the duty of the Joint Director of Higher

Education to consider whether the appointment of the petitioner was

made in accordance with law before granting approval to her

appointment and/or before releasing the salary in her favour from the

government exchequer. When the petitioner was paid the salary from the

government exchequer for nearly twenty years, the Joint Director of

Higher Education cannot raise an additional ground in the affidavit-in-

reply that does not find place in the impugned order that the appointment

of the petitioner was not made by following the due procedure for

selection, specially when there is no dispute that the petitioner was duly

qualified to hold the post since the date of her appointment. In our

view, the impugned order is clearly arbitrary and the same cannot be

sustained.

Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order is quashed and set aside.

Rule is made absolute in the aforesaid terms with no order as

to costs.

               JUDGE                                             JUDGE

APTE