Anil S/O Vinayak Zade vs State Of Maharashtra Through ...
2017 Latest Caselaw 1289 Bom

WP  669/13                                         1                             Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                        WRIT PETITION No. 669/2013
Anil s/o Vinayak Zade,
Resident of Bawis Chowk,
Pathanpura Road, Chandrapur.                                                   PETITIONER
                                   .....VERSUS.....

1.    State of Maharashtra,
      through its Secretary, 
      Department of Higher Education,
      Mantralaya, Mumbai-32.
2.    The Joint Director, Higher Education,
      Nagpur Region, Old Morris College 
      Campus, Sitabuldi, Nagpur.
3.    Sarvodaya Shikshan Mandal,
      through its President/Secretary,
      Sardar Patel College, Ganj Ward,
      Chandrapur.
4.    Sardar College,
       through its Principal,
      Ganj Ward, Chandrapur..                                                    RESPONDENTS

                   Shri Anand Parchure, counsel for the petitioner.
     Ms N.P. Mehta, Assistant Government Pleader for the respondent nos.1 and 2.
             Shri M.P. Khajanchi, counsel for the respondent nos.3 and 4.

                                    CORAM :SMT.VASANTI  A  NAIK AND
                                                  MRS. SWAPNA  JOSHI, JJ.    

DATE : 30 TH MARCH, 2017.

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

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

Joint Director of Higher Education, dated 05/07.10.2011 denying 100%

back wages to the petitioner for the suspension period. The petitioner

seeks a direction against the Joint Director of Higher Education to grant

100% back wages to the petitioner. The petitioner seeks a declaration

that the petitioner would be entitled to continuity of service and would

also be entitled to the benefit of time bound promotion. Certain

WP 669/13 2 Judgment

communications of the Joint Director of Higher Education denying the

said benefits to the petitioner are challenged in the instant petition.

2. The petitioner was appointed as a Stenographer in the

respondent no.4-College in 1986. An offence punishable under Sections

420, 467, 469, 471, 109, 201, 202, 203 read with Section 34 of the

Indian Penal Code and Section 7 of the Prevention of Malpractices in

Examination Act was registered against the petitioner and 21 other

employees working in various institutions. A criminal prosecution was

launched against the petitioner and the other accused. In view of the

registration of the offence, the petitioner was suspended by the

management on 15.04.1996. During the pendency of the criminal trial,

the management had tried to reinstate the petitioner but, the order of the

management was disapproved by the Joint Director of Higher Education

and the management was directed to continue the suspension of the

petitioner till the criminal trial culminated. The petitioner filed two writ

petitions bearing Writ Petition Nos.4745 of 2010 and 1066 of 2011

seeking reinstatement and back wages. The petitioner was reinstated in

pursuance of the directions issued by this Court to the Joint Director of

Higher Education to consider reinstating the petitioner. The petitioner

was reinstated in service on 01.03.2011. After the petitioner was

reinstated, the trial Court acquitted the petitioner of the charges, by the

judgment dated 25.06.2013. After his acquittal, the petitioner sought

WP 669/13 3 Judgment

100% salary for the period during which he was out of service. The Joint

Director of Higher Education refused to pay the same as the petitioner

had already received 75% of the amount that was liable to be paid to him

towards salary, as suspension allowance, the representation of the

petitioner was rejected. The petitioner has challenged the action on the

part of the Joint Director of Education rejecting the prayer of the

petitioner for grant of entire salary for the period during which he was

out of service. The petitioner has also challenged the order of the Joint

Director of Higher Education denying time bound promotion to the

petitioner on the ground that the petitioner had not worked during the

said period.

3. Shri Parchure, the learned counsel for the petitioner,

submitted that after the petitioner was acquitted in the criminal trial,

it was necessary for the Joint Director of Higher Education to

release 100% salary in favour of the petitioner. It is submitted that the

petitioner was kept out of service by the management and it is not a

case where the petitioner did not desire to work. It is submitted that

though the petitioner is granted continuity of service, the time bound

promotion is not granted to the petitioner and, hence, a direction may be

issued to the respondents to grant time bound promotion to the

petitioner.

WP 669/13 4 Judgment

4. Ms Mehta, the learned Assistant Government Pleader

appearing for the Joint Director of Higher Education, has opposed the

prayer made by the petitioner. It is submitted that the petitioner has

received 75% of the amount to which the petitioner would be entitled

towards salary, for the period during which he was out of service. It is

submitted that the order is rightly passed by the Joint Director of Higher

Education under Rule 72(1) of the Maharashtra Civil Services (Joining

Time) Rules, 1981. It is submitted that since the petitioner had not

worked for the period during which he was under suspension, the

petitioner would not be entitled to time bound promotion, as it is

necessary to consider whether the services of an employee are satisfactory

while granting time bound promotion to him/her. It is submitted that the

petitioner was granted all the benefits that could have been granted to

the petitioner after he was reinstated in service. It is submitted that the

criminal Court has acquitted the petitioner by extending the benefit of

doubt to him.

5. Shri Khajanchi, the learned counsel for the respondent

no.4-Management has disputed the claim of the petitioner. It is

submitted that while reinstating the petitioner, the management had

passed a resolution that the petitioner should not claim the back wages

from the management and the petitioner had also given an undertaking

in writing that the petitioner would not claim the arrears of salary from

WP 669/13 5 Judgment

the management. It is submitted that in the circumstances of the case, a

direction may not be issued against the management to pay the arrears of

difference of salary to the petitioner.

6. On hearing the learned counsel for the parties, it appears

that there is no scope for interference with the impugned orders in

exercise of the writ jurisdiction. The petitioner along with several

others was accused of serious offences and the criminal prosecution

continued for a long time. The petitioner was finally acquitted in the year

2013 on benefit of doubt. The management had, however, reinstated the

petitioner two years before his acquittal, on the basis of the order of the

Joint Director of Higher Education, that was passed in pursuance of an

order passed by the High Court. There is no dispute that the petitioner

has received 75% of the amount that he could have received as salary,

towards suspension allowance. The claim pertains only to the extent of

25% of the salary. The Joint Director of Higher Education has rightly

held that in the circumstances of the case, the petitioner was not entitled

to entire salary in view of the provisions of Rule 72(1) of the Rules of

1981. A specific order was passed by the Joint Director of Higher

Education that the provisions of Rule 72(1) of the Rules of 1981 were

applicable to the petitioner and, hence, the petitioner would not be

entitled to the entire salary, for the period during which he was out of

service. We do not find that the Joint Director of Higher Education has

WP 669/13 6 Judgment

committed any error in the circumstances of the case in rejecting the

prayer of the petitioner for grant of 100% salary. Admittedly, the

petitioner has not worked for a long time, i.e. 13 to 14 years, barring a

few months when he was reinstated in service but, was again suspended

in view of the orders of the Joint Director of Higher Education.

Normally, in such circumstances, the principle of 'No Work No Pay' is

applied but, this is a case where the petitioner has already received 75%

of the salary to which he was entitled to, towards suspension allowance.

The petitioner should have been satisfied with the amount that was paid

to him towards suspension allowance as the said allowance was to the

extent of 75% of the salary that was payable to the petitioner. The

petitioner was rightly granted continuity of service but, not time

bound promotion as the petitioner had not worked for nearly thirteen

years and there was no occasion for the respondents to consider

whether the services of the petitioner were satisfactory, during the said

period. When the petitioner had not actually worked, the petitioner

cannot claim the benefit of time bound promotion as of a right, as there is

no occasion for the concerned authorities to consider the confidential

reports of the petitioner for the said period. In the circumstances of the

case, we do not find that the Joint Director of Higher Education has

faulted in refusing to grant the benefit of time bound promotion in favour

of the petitioner.

WP 669/13 7 Judgment

7. Hence, for the reasons aforesaid, we dismiss the writ petition

with no order as to costs. Rule stands discharged.

              JUDGE                                    JUDGE

APTE