Bombay High Court
Ganesh S/O Wasudeorao Khule vs The State Of Mah. Thr. The Secty., ... on 15 June, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4578/2010
* Shri Ganesh s/o Wasudeorao Khule
Aged 55 years, occupation: Service
Senior Research Assistant
O/o Directorate of Research
Dr.Punjabrao Krishi Vidyapeeth,
Akola, Tq. and Dist. Akola. ..PETITIONER.
VERSUS
1) State of Maharashtra
Through the Secretary
Agriculture, Animal Husbandry,
Dairy Development Department,
Mantralaya, Mumbai-32.
2) Dr. Punjabrao Deshmukh Krishi Vidyapeeth
Akola: Through its Registrar.
3) The Chairman & Vice-Chancellor
Academic Staff Selection Committee
Dr.Punjabrao Deshmukh Krishi Vidyapeeth
Akola.
4) Shri Prakash s/o Anantrao Kahate
Aged 44 years, occupation: Service
Head of Department of Animal Husbandry
& Dairying, Dr.Punjabrao Deshmukh Krishi
Vidyapeeth, Akola ..RESPONDENTS
.
...................................................................................................................
Shri A.J. Thakkar, Advocate for the petitioner
Shri N.S. Rao, Assistant Government Pleader for respondent no.1
Shri P.B. Patil, Advocate for respondent nos.2 & 3
Shri P. S. Khubalkar, Advocate for Respondent No.4
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 1 5 th
June, 2017
ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
This petition challenges the promotion of the respondent no.
4 on the post of Assistant Professor, Animal Husbandry and Dairy
granted by the respondent no.2-Vice-Chairman and Vice Chancellor,
Academic Staff Selection Committee of Dr. Punjabrao Deshmukh Krishi
Vidyapeeth, Akola, on 27th October, 2009. The petitioner further claims
that he being second in order of merit, he should be granted deemed
promotion to the post of Assistant Professor with effect from 27.10.2009
along with all consequential benefits.
2. The petitioner was working as Senior Research Assistant
under the Directorate of Research in Dr. Pujabrao Deshmukh Krishi
Vidyapeeth, Akola with effect from 31.03.1983. The post of Assistant
Professor in the subject of Animal Husbandry and Dairy was a
promotional post, to the post of Senior Research Assistant required to be
filled in on the basis of the criteria of merit-cum-seniority. All eligible
candidates in order of seniority were considered for the post of Assistant
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Professor including the petitioner and the respondent no.4-Prakash
Anantrao Kahate, by the competent Selection Committee in its meeting
held on 27.10.2009. Since the respondent no.4-Kahate obtained highest
marks in the selection, he was promoted to the said post by an order
dated 27.10.2009 though he was junior to the petitioner in the order of
seniority, in the post of Senior Research Assistant.
3. It is not in dispute that the promotion in question on the
basis of merit-cum-seniority was governed by Statute 73 which is
reproduced below :
" Statute 73.
Qualifications of Academic Staff Members -
(a) For being appointed to any post in the University Service
mentioned in Column 2 of Appendix III, a person shall possess
the minimum qualification mentioned against each such post in
column 3 of the Appendix III.
(b) If the Selection Committee is satisfied that candidates
with prescribed qualification or experience or both are not
available for Selection and makes a report to the State
Government to that effect, the State Government may relax a
higher basic qualifications or experience or both in making the
appointments as may be necessary."
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Appendix III which is relevant in the present case and
referred to in clause (a) of Statute 73 above, so far as it relates to the
post of Assistant Professor, is reproduced below :-
Sr. Designation of the post Qualification
No.
2. ASSISTANT PROFESSOR (1) Pd. D. in respective subjects or
master's degree in the respective
subject with two years experience in
teaching, research or extension
education.
(2) Evidence of published papers in
recognised journals.
4. Shri Thakkar, learned counsel appearing for the petitioner
has invited our attention to the decision of the Division Bench of this
Court in the case of Mahatma Phule Krishi Vidyapeeth and others vs.
State of Maharashtra and another, delivered on 9th December 1991, in
Writ Petition No.3601/1991. He submits that clause (2) under Item 2 in
Appendix III of statute 73 regarding "evidence of published papers in
recognized journals" was struck down by this Court. He submits that
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if the marks awarded to all the candidates under the said clause are
ignored, then on the basis of the recommendations of the Selection
Committee, he would be the first candidate in the merit list and also
being the senior-most was required to be appointed by way of
promotion. He submits that this judgment delivered by the Division
Bench was circulated by the Deputy Registrar(Establishment), Dr.
Punjabrao Krishi Vidyapeeth, Akola, under his covering letter dated 20th
March,1992 to the Principal of Shivaji Agricultural University, Amravati
and the Selection Committee was well aware of the said decision. He
submits that in view of this, the Selection Committee could not have
allotted or considered the marks allotted under the head of "Academic
contribution".
5. Shri Rao, learned Assistant Government Pleader for
respondent no.1, Shri Patil, learned counsel appearing for the
respondent nos. 2 and 3 and Shri Khubalkar, learned counsel for
respondent no. 4, do not dispute that the post of Assistant Professor was
required to be filled in on the basis of the aforesaid statute, on the
principle of merit-cum-seniority. They also do not dispute that the
petitioner was senior to the respondent no.4 in the post of Senior
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Research Assistant. It is not the contention raised by the respondents that
the decision delivered by the Division Bench of this Court in Writ Petition
No.3601/1991 was not to the knowledge of the respondent nos.2 and 3
when the selection in question was conducted. According to them, the
decision delivered by the Division Bench of this Court is not applicable to
the facts of the present case, for the reason that the controversy involved
in the said judgment pertained to possessing of minimum qualification
and not to the preferential qualification in Clause No.(2) under Item No.
2 of Appendix III.
6. Page 45 of the petition reflects the criteria of marks adopted
by the Selection Committee for promotion of Senior Research Assistant
to the post of Assistant Professor in the meeting held on 27th October
2009, and it is reproduced below :-
"Annexure XXV
Criteria of Marks adopted by the Selection Committee for promotion of Senior Research
Assistant to the post of Assistant Professor in it's meeting held on Tuesday, the 27th October,
2009.
1) Confidential Reports: 30 Marks A+ A B+ B B-
2) Experience: 30 Marks 0-3 Years As Senior Research Assistant - Nil.
Fourth year onwards - 02 Marks for each
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completed year of service
as Senior Research Assistant.
3) Qualification 10 Marks - M.Sc. - 05 --- Ph.D.-10
4) Academic Contribution : 30 Marks
a) Research Publication --- 1.5 Mark/Publication
b) Technical Publication --- 0.5 Mark/Publication
c) Extension Publication --- 0.2 Mark/ Publication
d) Recommendations --- 1.0 Mark/Recommendation
e) Book chapter --- 0.5 Mark/Chapter
f) Courses Tought --- 1.0 Mark/Course
g) Variety Developed --- 3.0 Marks/Variety
h) Books --- 2.0 Marks/Book
i) Awards --- 1.0 Mark/Award
j) Patents --- 1.0 Mark/Patent
k) Farm Experience 1.0 Mark/ Year Service at farms
(CRS/CDF/Res.Centre/A.T.School/ KVK.)"
On Page 46 of the petition, a tabulated statement of marks
obtained by each of the candidate considered for selection, is reproduced
and the same is as under :
Sr. Name of candidate Marks obtained by each candidate
No
Confi. Experi- Qualifi- Acad. Total Rank
Reports ence cation Contri. Marks
2. Shri P.M.Bharad 21 18 5 12.5 56.5
3. Shri P.A. Kahate 21 16 5 30 72 I
4. Shri A.M.Mahajan 17.5 2 5 13.5 38
5. Shri A.W. Deshmukh 19 8 5 3.5 35.5
Recommended for Promotion under Open category is given below:
1) Shri P.A.Kahate."
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It is thus apparent that all the candidates were allotted
marks under the head of "Academic contribution."
7. In paragraph 9, the Division Bench of this Court, in case of
Mahatma Phule Krishi Vidyapeeth, cited supra, has considered the
following question :
"9. The question for consideration is as to whether the
prescription of qualification of evidence of published papers in
recognized journals with reference to the posts of Associate
professors and Assistant Professors, regarding as the Minimum
qualification is justifiable as having rational relation in the
matter of selection to the post of Associate Professors?"
After recording the reasons the Division Bench of this Court in
paragraph 21, held as under :
"21. For all these reasons, we hold and declare that the
condition no.(2),namely, "evidence publishing papers in
recognized journals" for selection to the post of Associate
Professor or Assistant Professor, be struck down, and
consequently direct the respondents no.2 and 3 to consider all
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the persons who have applied in pursuance to the
advertisement (Exhibit C) for the posts of Associate Professors
or Assistant Professor including those who do not have the
qualification of evidence of published papers in the recognised
journals. The alleged selection in the post in Selection
Committee held on November 19,1991, quashed and set aside
and, the Selection Committee (respondent no.3) is hereby
directed to consider the question of the concerned appointments
by considering all the persons who have applied in pursuance to
the advertisement (Exhibit C) for the posts of Associate
Professors including those who do not have the qualification
of "evidence of published papers in the recognized journals"
afresh. Rule is accordingly made absolute. However, on the facts
and circumstances of the case, there shall be no order as to
costs."
8. In view of the aforesaid law laid down by this Court, it was
not permissible for the respondents to have allotted the marks to the
candidates under the head "Academic contribution" mentioned in the
criteria of marks adopted by the Selection Committee, which is referable
only to Clause No.(2) in Item No.2 of Appendix III in Statute 73 framed
by the University.
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9. Perusal of the tabulated statement of marks reproduced
above clearly indicates that the petitioner who was Sr. No.1 had obtained
64 marks and if nine marks allotted to him under the heading of
"Academic contribution" are deducted his total marks would be 55. The
respondent no.4 is at Sr.No.3 and he is shown to have obtained 72
marks which include 30 marks under the heading of "Academic
contribution". If those 30 marks are ignored the respondent no.4 would
be getting 42 marks. The petitioner being a meritorious candidate having
secured 55 marks ought to have therefore been selected and appointed
to the post of Assistant Professor on the basis of merit-cum-seniority. We
do not find any justifiable reason for denying this claim to the petitioner
but, on the contrary, we find that inspite of knowing the judgment
delivered by this Court, the respondent nos.2 and 3 have, in exercise of
their discretion, allotted the marks under the head of 'academic
contribution' on the basis of which the respondent no.4 was appointed.
10. When the petition was filed, the petitioner was aged about
55-years in 2010. He was superannuated from the post of Senior
Research Officer on attaining the age of 58-years with effect from
30.09.2012. In view of this, the question of granting actual promotion
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to the petitioner to the post of Assistant Professor, by disturbing the
respondent no.4 from the said position, does not at all arise.
11. Shri Thakkar, learned counsel appearing for the petitioner
has relied upon the decision of the Hon'ble Apex Court, in the case of
Ramesh Kumar vs. Union of India and others, reported in 2015 (14)
SCC 335. Paragraph Nos. 14 to 16 of the said judgment being relevant,
are reproduced below :
"14. In normal circumstances when retrospective
promotions are effected, all benefits flowing therefrom,
including monetary benefits, must be extended to an
employee who has been denied promotion earlier. So far as
the monetary benefits with regard to retrospective
promotion are concerned that depends upon case to case. In
State of Kerala v. E.K. Bhaskaran Pillai (2007) 6 SCC 524
this Court held that the principle of "no work no pay"
cannot be accepted as a rule of thumb and the matter will
have to be considered on a case-to-case basis and in para
4, it was held as under :(SCC p.527)
4........We have considered the decisions cited on behalf
of both the sides. So far as the situation with regard to
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monetary benefits with retrospective promotion is
concerned, that depends upon case to case. There are
various facets which have to be considered. Sometimes in
a case of departmental enquiry or in criminal case it
depends on the authorities to grant full back wages or
50 per cent of back wages looking to the nature of
delinquency involved in the matter or in criminal cases
where the incumbent has been acquitted by giving
benefit of doubt or full acquittal. Sometimes in the
matter when the person is superseded and he has
challenged the same before court or tribunal and he
succeeds in that and direction is given for consideration
of his case from the date persons junior to him were
appointed, in that case the court may grant sometimes
full benefits with retrospective effect and sometimes it
may not. Particularly when the administration has
wrongly denied his due then in that case he should be
given full benefits including monetary benefit subject to
there being any change in law or some other
supervening factors. However, it is very difficult to set
down any hard-and-fast rule. The principle 'no work no
pay' cannot be accepted as a rule of thumb. There are
exceptions where courts have granted monetary benefits
also."
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15. We are conscious that even in the absence of
statutory provision, normal rule is "no work no pay". In
appropriate cases, a court of law may take into account all the
facts in their entirety and pass an appropriate order in
consonance with law. The principle of "no work no pay"
would not be attracted where the respondents were in fault in
not considering the case of the appellant for promotion and not
allowing the appellant to work on a post of Naib Subedar
carrying higher pay scale. In the facts of the present case when
the appellant was granted promotion w.e.f. 1.1.2000 with the
ante-dated seniority from 1.8.1997 and maintaining his
seniority along with his batchmates, it would be unjust to
deny him higher pay and allowances in the promotional
position of Naib Subedar.
16. The impugned orders passed by the High Court
are set aside and this appeal is allowed. The respondents shall
release the arrears of pay and allowances to the appellant for
the period from 1.8.1997 till the date of his actual promotion
that is 13.11.2000 in the promotional post of Naib Subedar
within eight weeks from today. No order as to costs."
12. Merely because this petition is pending since 2010 for
adjudication, we cannot deny the consequential benefits available to the
petitioner of granting deemed date of promotion along with all
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consequential benefits.
13. In the result, the Writ Petition is partly allowed. It is held
that the petitioner shall be entitled to deemed date of promotion of
27.10.2009 in the post of Assistant Professor of Animal Husbandry and
Dairy, in the service of respondent nos. 2 and 3 and he shall be entitled
to all consequential benefits, including the difference in the scale of pay
between the post of Senior Research Assistant and the Assistant Professor
from 27.10.2009 till the date of his superannuation i.e. 30.09.2012.
14. Rule is made absolute in the aforesaid terms, with no order
as to costs.
JUDGE JUDGE
sahare
