Laxman Pandurang Kulkarni vs The State Of Mah & Anr
2017 Latest Caselaw 6970 Bom

                                                         Writ Petition No.6550/2006
                                          1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                     WRIT PETITION NO.6550 OF 2006



 Dr. Laxman Pandurang Kulkarni
 Age 68 years, Occu. Pensioner,
 R/o 156, Shivram Nagar, Parbhani,
 Taluka and District Parbhani                      ...      PETITIONER

          VERSUS

 1.       The State of Maharashtra
          through its Secretary,
          Agriculture and Co-operation
          Department, Mantralaya,
          Mumbai.

 2.       Marathwada Agricultural University,
          through its Registrar,
          Parbhani, Taluka and Dist. Parbhani...            RESPONDENTS

                                  .....
 Shri   A.S. Kale, Advocate holding for
 Shri   S.B. Talekar, Advocate for petitioner
 Shri   V.M. Kagne, A.G.P. for respondent No.1
 Shri   M.N. Navandar, Advocate for respondent No.2
                                  .....

                                 CORAM:       R.D. DHANUKA AND
                                              SUNIL K. KOTWAL, JJ.

          Date of reserving judgment : 29th August, 2017
          Date of pronouncing judgment : 11th September, 2017.


 JUDGMENT (PER R.D. DHANUKA, J.)

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner has prayed for an order and

direction against the respondents to give the petitioner deemed

Writ Petition No.6550/2006

date of promotion on the post of Professor as 10/9/1976 and for

directions that the petitioner would be entitled for all

consequential benefits in pursuance to the deemed date of

promotion on the post of Professor w.e.f. 10/9/1976.

2. Some of the relevant facts for the purpose of deciding

this petition are as under :

It is the case of the petitioner that, he was appointed

by the respondent No.2 University on the post of Agricultural

Supervisor on 5/8/1960 and was promoted as Agricultural Officer

w.e.f. 21/6/1963. According to the petitioner, he was promoted

on the post of Assistant Professor on 1/1/1971 and was

promoted as Reader, which is allegedly the post equivalent to the

post of Associate Professor. According to the petitioner, he was

promoted as Associate Professor on 5/3/1976 and was promoted

as Professor on 20/11/1991. It is the case of the petitioner that,

the respondent No.1 had not finalized the seniority list and had

given promotion to Dr. M.A. Quader instead of the petitioner.

The petitioner, therefore, filed a Writ Petition No.1572/1988 in

this Court. During the pendency of the said Writ Petition, the

respondent No.2 University published a seniority list as on

1/1/1998 for the post of Associate Professor. This Court

accordingly held that the seniority was to be counted in respect

Writ Petition No.6550/2006

of the post of Assistant Professor and accordingly, dismissed the

said Writ Petition on 8/6/2001. On 1/1/1998, the respondent

No.2 published the seniority list showing the name of the

petitioner at Sr.No.4. The petitioner came to be retired on

superannuation on 31/5/1996.

3. It is the case of the petitioner that on 9/4/1976, four

persons came to be appointed by the respondent No.1 on the

post of Associate Professor, namely (1) Shri V.V. Patil, (2) Shri

V.K. Shinde, (3) Shri R.A. Patil and (4) Shri V.G. Reddy. It was

the case of the petitioner that, the petitioner was senior to those

4 persons, who were appointed to the post of Associate Professor

on 9/9/1976. On 27/10/1988, the respondent No.2 issued an

order, thereby promoting Mr. V.G. Reddy on the post of Professor

(Director of Seed) on temporary basis and as and by way of stop

gap arrangement.

4. It is the case of the petitioner that, one Dr. Ram

Pandharinath Rodge and others had filed a Writ Petition

No.269/1979 in this Court against the respondent No.1 herein.

By an order dated 26/11/1991, this Court disposed of the said

Writ Petition. The respondent No.1 had thereafter issued an

order on 17/6/1992. The said order dated 17/6/1992 was

modified by this Court in the Civil Application filed by the said

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petitioners. Pursuant to the said modification of the order passed

by this Court, the respondent No.1 placed the matter before the

Executive Council of the respondent No.1 and also before the

Legal Committee of the University regarding deemed date,

seniority and payment of arrears. The Vice Chancellor of

respondent No.1 accordingly passed an order to give seniority

with effect from the date shown against their names in the cadre

of Professor/ equivalent in their respective discipline. Those 5

petitioners were accordingly given the deemed date. Insofar as

Dr. V.G. Reddy is concerned, by the said order passed by the

Vice Chancellor of respondent No.1, in the discipline "Agricultural

Botany", the deemed date of promotion was 10/9/1976.

5. It is the case of the petitioner that, the date of the

promotion of the petitioner on the post of Associate Professor

was 5/3/1976 and thus, the petitioner was senior to the said Dr.

V.G. Reddy in the cadre of Associate Professor and since the said

Dr. V.G. Reddy though junior, was given deemed date of

promotion as 10/9/1976, the petitioner shall be given deemed

date of promotion, arrears and consequential monetary benefits

of the post of professor considering the deemed date of

promotion of the petitioner also as 10/9/1976.

6. The petitioner made representations on 25/3/1998,

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7/10/2000 and 14/5/2006 to the respondents for giving the

deemed date of promotion to the petitioner as 10/9/1976 and to

provide all consequential benefits. It is the case of the petitioner

that the petitioner was under bonafide impression that his

representations would be considered on merits. However, the

respondent No.2 did not consider the representation of the

petitioner and was given an unequal treatment. It is the case of

the petitioner that, there was discrimination between the

petitioner and said Dr. V.G. Reddy, and the action on the part of

the respondent No.2 was thus, in violation of Articles 14 and 16

of the Constitution of India. The petitioner accordingly filed this

Writ Petition on 16/8/2006 in this Court, interalia praying for

various reliefs.

7. Mr. Kale, learned counsel for the petitioner invited

our attention to various annexures to the Writ Petition and would

submit that, the petitioner was promoted as Assistant Professor

on 1/1/1971 and was appointed as Associate Professor on

5/3/1976. The said Dr. V.G. Reddy was appointed as an

Associate Professor on 10/9/1976 i.e. after more than 6 months

of the promotion of the petitioner to the said post of Associate

Professor. He submits that, the said Dr. V.G. Reddy could not

have been granted deemed date of promotion in the cadre of

Professor w.e.f. 10/9/1976 he being much junior to the petitioner

Writ Petition No.6550/2006

in the seniority list. He submits that, though several

representations were made by the petitioner from time to time,

the respondent No.2 did not consider those representations. It is

submitted by the learned counsel for the petitioner that, since

the representations of the petitioner wee pending before the

respondent No.2 from last several years, the petitioner could not

file this petition earlier.

8. It is submitted that, in any event, since the right of

promotion of the petitioner is a fundamental right enshrined

under Article 16 of the Constitution of India, even if this Court

comes to the conclusion that there was any delay on the part of

the petitioner to approach this Court by filing this Writ Petition,

the fundamental right of the petitioner cannot be allowed to be

violated even if there is an alleged delay in filing this Writ

Petition. The petitioner cannot lose his fundamental right or

interest due to alleged delay in filing the Writ Petition. In

support of this submission, learned counsel for the petitioner

placed reliance on the judgment of the Supreme Court in case of

Ramchandra Shankar Deodhar Vs. The State of

Maharashtra & ors. reported in [ (1974) 1 SCC 317 ] and in

particular, para No.10 thereof. He also placed reliance on the

judgment delivered by Division Bench of this Court in case of

Baswant Devidas Nandgavali Vs. Secretary, Water

Writ Petition No.6550/2006

Resources Department reported in [ 2013 (3) Mh.L.J. 389 ],

and in particular, paras 4 to 6 thereof. He submits that, no

prejudice of any nature whatsoever is caused to the respondents

in view of any alleged delay on the part of petitioner to file this

Writ Petition.

9. Learned counsel for the petitioner also placed reliance

on the judgment of Supreme Court in case of Union of India &

anr. Vs. Hemraj Singh Chauhan & ors., reported in [ (2010)

4 SCC 290 ] and in particular, paras 35 and 36, in support of his

submissions that right of eligible employees to be considered for

promotion is part of their fundamental rights guaranteed under

Article 16 of the Constitution of India and such rights cannot be

taken away.

10. Learned counsel for the petitioner invited our

attention to the order dated 8/6/2001, passed by the Division

Bench of this Court in Writ Petition No.1572/1988, which was

filed by the petitioner, interalia praying for an order and direction

against the respondent No.2 University to finalise the seniority

list of the academic staff member as per the University Service

(Regulation of Seniority) Rules, 1987 and to fix the seniority of

the petitioner having regard to his earlier appointment as

compared to Dr. M.A. Quader. He submits that, this Court, in the

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said order, has held that, the post of Agricultural Officer was not

included in the academic staff and thus, what was relevant for

consideration was, the date of the petitioner joining in the post of

Assistant Professor. He submits that, since the petitioner was

already promoted as Assistant Professor, on 1/1/1971 whereas

the said Dr. V.G. Reddy was appointed as Assistant Professor

much later, the petitioner ought to have been given the deemed

date of promotion w.e.f. 10/9/1976 and not the said Dr. V.G.

Reddy.

11. The next submission of the learned counsel for the

petitioner is that, the post of Reader was equivalent to the post

of Associate Professor. He submits that, though the petitioner

was promoted as Assistant Professor, the petitioner was granted

pay-scale of Reader by the respondent No.2. He submits that,

the Court has to consider the pay-scale granted to an employee

and not the nomenclature of the post to which the petitioner was

granted.

12. Mr. Navandar, learned counsel for the respondent

No.2 University, on the other hand, submits that, there is gross

unexplained delay and laches on the part of the petitioner to file

this Writ Petition and thus, on that ground itself the petition

deserves to be dismissed. He submitted that, the said Dr. V.G.

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Reddy was granted the deemed date by the respondent No.2 as

10/9/1976 by an order dated 19/4/1993. The petitioner stood

retired by superannuation on 30/5/1996. He submits that, till

the date of his retirement, the petitioner did not challenge the

said order of the respondent No.2 granting the deemed date to

Dr. V.G. Reddy as 10/9/1976 and not granting such deemed date

as 10/9/1976 to the petitioner.

13. The petitioner addressed a letter for the first time and

that also to the Chancellor on 31/3/1997 and thereafter sent

reminders on 25/3/1998, 7/10/2000 and 14/5/2006. The last

representation was made by the petitioner on 14/5/2006 i.e.

after expiry of six years from the date of earlier representation

dated 7/10/2000. He submits that, the petitioner has thus, after

more than 10 years from the knowledge of the petitioner that the

petitioner was not granted deemed date of promotion whereas

the said Dr. V.G. Reddy was granted the deemed date w.e.f.

10/9/1976 filed this Writ petition.

14. Learned counsel distinguished the judgments relied

upon by the learned counsel for the petitioner on the issue of

delay in filing the petition. He submits that, there is no dispute

about the propositions of law laid down by the Supreme Court

and this Court in those judgments relied upon by the learned

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counsel for the petitioner. He, however, submits that, the

petitioner has not explained the delay of more than 10 years in

this case at all. He also disputes the submission urged by the

petitioner that the respondent No.2 cannot be affected or

prejudiced in any manner whatsoever if the petitioner is granted

deemed date as 10/9/1976.

15. It is submitted by the learned counsel for the

respondent No.2 that, the claim of seniority made by the

petitioner over the seniority of Dr. M.A. Quader in Writ Petition

No.1572/1988 was turned down by this Court in the said order

dated 8/6/2001, passed by this Court. He submits that, the

petitioner did not challenge the said order passed by this Court.

16. It is submitted by the learned counsel that the

respondent No.2 itself was established on 18/5/1972. The

question of the petitioner being promoted as Assistant Professor

on 1/1/1971 by the respondent No.2 University did not arise. It

is submitted by the learned counsel that the petitioner was

allocated from the Panjabrao Krushi Vidyapeeth, Akola w.e.f.

18/5/1972 as Assistant Professor, Agriculture Botany afterwards

and not on 1/1/1971 as claimed by the petitioner. He submits

that, the post of Assistant Professor and Reader are two distinct

and separate categories. The Executive Council of the

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respondent No.2 has passed resolution on 31/8/1974, prescribing

the academic eligibility criteria for awarding the Indian Council

for Agricultural Research by pay-scales to the academic staff of

the respondent No.2. He submits that, one third of the senior

persons in the Department from the category of Assistant

professor were considered for the award of higher scale without

challenging their status, category and seniority. The post of

Reader is not provided under old Statute No.49 of the

Marathwada Krushi Vidyapeeth Statutes, 1972, which has been

repealed as well as under Statute No.71 of the Maharashtra

Agricultural universities Statutes 1990 which are in existence.

17. It is submitted by the learned counsel for respondent

University that, order dated 20/11/1991, which is annexed at

Exhibit B to the petition, clearly indicates that the petitioner was

transferred on his own and was not promoted as Professor. He

was transferred as Associate Professor against the post of

Assistant Oil Seed Specialist, Latur on administrative ground. He

submits that, this Court has already found that the petitioner was

junior to Dr. M.A. Quader in the scale of Assistant Professor and

had dismissed his petition and thus, the petitioner could not

claim any seniority in the cadre of Assistant Professor.

18. Learned counsel for the respondent No.2 submits

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that, the Executive Council had passed a resolution, bearing

No.159/75, dated 19/2/1975, prescribing the quota for

nomination of promotion as 75:25. Four persons were

nominated as Associate Professor in view of the said resolution

passed by the Executive Council on 19/2/1975. It is submitted

by the learned counsel that, those four persons including Dr. V.G.

Reddy were appointed on the recommendations of the selection

committee by an order dated 9/9/1976. The petitioner was

appointed on temporary basis as Associate Professor as per

resolution passed by the Executive Committee dated 19/2/1975

in promotion quota as per order dated 5/3/1976. The petitioner

joined as Associate Professor w.e.f. 25/1/1977 and not 5/3/1976

as canvassed by the petitioner.

19. It is submitted by the learned counsel that the said

Dr. V.G. Reddy was promoted as Associate Professor purely on

temporary basis on stop gap arrangement as he was senior to

the petitioner.

20. Learned counsel for respondent No.2 invited our

attention to the order dated 19/4/1993, in which a reference was

made by the respondent No.2 to the order passed by this Court

in Writ Petition No.269/1979 filed by Dr. Ram Pandharinath

Rodge and others against the respondent No.2. He submits that,

Writ Petition No.6550/2006

the said Dr. V.G. Reddy was one of the petitioner in the said Writ

Petition. Pursuant to an order passed by this Court in the said

Writ Petition, the said Dr. V.G. Reddy along with other petitioners

were awarded the deemed date of promotion to the post of

professor. The petitioner did not fall under the grounds involved

in the said Writ Petition and thus, could not claim any benefit

under the said order passed by this Court.

21. Learned counsel for respondent No.2 submits that,

petitioner had joined as Associate Professor w.e.f. 25/1/1977.

The petitioner, however, has misled this Court by not producing

any documents to show that he was appointed on 5/3/1976. He

submits that, the petitioner was temporarily promoted to the

post of Associate Professor vide order dated 5/3/1976 and was

not promoted to the said post on 8/3/1976 as inadvertently

stated by the respondent No.2 in the affidavit-in-reply.

22. Learned counsel for respondent No.2 invited our

attention to the order of reversion, dated 9/9/1976, annexed to

the affidavit in sur-rejoinder, and would submit that, the

petitioner was demoted from the post of Associate Professor

which was held by him on temporary basis vide order dated

5/3/1976, in view of maintaining nomination quota and selection

of candidates for the Associate Professor cadre. The officers who

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were officiating on promotion in Associate Professor cadre purely

on temporary basis were reverted to the post of Assistant

Professor. The name of the petitioner was at Sr.No.1 in the said

order of reversion.

23. It is submitted by the learned counsel that, for the

first time on 25/1/1977, the petitioner was promoted to the post

of Cotton Seed Production Specialist, equivalent to Associate

Professor in the pay-scale of Rs.700-50-950 in the newly

sanctioned scheme for Integrated Cotton Development project,

Cotton Seed Production and Processing Unit with the Headquarter

at Parbhani. He invited our attention to the copy of the

promotion order dated 25/1/1977 issued to the petitioner. He

submits that, thus, it is clear that the petitioner was granted

promotion on 25/1/1977 on the post of Associate Professor -

equivalent and thus, the question of granting any deemed date

to the petitioner as 9/9/1976 does not arise. It is submitted that

the said Dr. V.G. Reddy and 3 others were not promoted, but

were nominated on the post of Associate Professor on the

recommendation of the Selection Committee vide order dated

9/9/1976 and in view of the order passed by this Court.

24. Learned counsel for the University invited our

attention to the Government Resolution dated 6/2/2002 and

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would submit that, under the said Government Resolution, it is

specifically provided under clause (2) that, the employee to

whom deemed date has to be granted, he should be equally

promoted to the said post and not otherwise. The petitioner,

however, was entitled for promotion to the post of Associate

Professor for the first time on 25/1/1977, which was granted to

him

25. It is submitted by the learned counsel that the

petitioner was temporarily appointed to the post of Assistant Oil

Seed Specialist vide order dated 25/3/1993 for a period of not

exceeding one year or for lesser period or till the suitable

substitute was appointed, whichever was earlier. He submits

that, the petitioner was appointed temporarily vide order dated

28/4/1994 and was posted to discharge the duties against the

post of Assistant Cotton Seed Specialist - equivalent to Professor

on temporary basis.

26. It is submitted by the learned counsel that, pursuant

to an order dated 31/5/1996, the petitioner has already stood

retired on attaining the age of superannuation on the post of

Associate Professor and was, therefore, granted pensionary

benefits by the respondent No.2 by order dated 10/7/1996. He

submits that, the petitioner was also granted revised pensionary

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benefits as per 5th Pay Commission vide order dated

31/10/2000. Petitioner was not appointed or promoted as

Professor on regular basis at any point of time nor could be

appointed as Professor at any time before his retirement.

27. Learned counsel for the University also produced the

Service Book of the petitioner and in particular, pages 22 and 23

thereof, showing that the petitioner was relieved from

Horticulturist Fruit Research Station from 20/7/1971 due to

transfer vide order from Registrar, P.K.V., Akola. Page 23 of the

Service Book indicates that on 28/1/1973, due to appointment by

promotion to the post of Assistant Professor, Botany, vide order

dated 29/1/1973, the petitioner joined on 29/1/1973.

28. Learned counsel for respondent No.2 placed reliance

on the judgment of Supreme Court in case of State of Orissa

Vs. Pyarimohan Samantaray reported in [ 1976 AIR (SC)

2617 ] and in particular, para 6, and would submit that, merely

because the so called representations made by the petitioner

were pending before respondent No.2 University, the petitioner

was never prevented from filing a Writ Petition for redressal of

his grievance immediately. He submits that, since there is no

satisfactory explanation of the inordinate delay, the petition

deserves to be dismissed on that ground itself.

Writ Petition No.6550/2006

29. Mr. Kale, learned counsel for the petitioner, in

rejoinder, submits that, the respondent No.2 has not produced

any proof in support of the submission that the petitioner has

joined the service on 25/1/1977. Insofar as quota of nomination

and promotion or for recruitment of the staff is concerned, it is

submitted that the earlier quota of 75:25% was modified and

was made 50:50. In support of this submission, the learned

counsel for the petitioner invited our attention to the resolution

dated 5/9/1972, passed by the respondent No.2. He submits

that, the respondent No.2 University had published a seniority

list of the academic staff as on 31/7/1986, showing the name of

the petitioner at Sr.No.8 and showing the name of Dr. V.G.

Reddy at Sr.No.16. It is submitted that, the respondent No.2

thus cannot be allowed to contend that the said Dr. V.G. Reddy

was senior to the petitioner and thus, cannot be granted deemed

date in the cadre of Professor w.e.f. 10/7/1976.

30. The petitioner filed an affidavit dated 29/8/2017

before this Court to demonstrate that the Executive Council of

the respondent No.2 had passed a resolution on 17/10/1974 and

had resolved that the post of Assistant professor was equivalent

to the post of Reader having pay-scale of Rs.700-50-1250. He

submits that, since the petitioner was promoted as Reader vide

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appointment order dated 18/5/1972, his services were equivalent

to that of the Assistant Professor since 18/5/1972 and thus, the

petitioner was senior to Dr. V.G. Reddy, according to he said

resolution dated 17/4/1974.

31. Learned counsel for the petitioner placed reliance on

the judgment of this Court, delivered on 8/6/2001 in case of Dr.

Sharad Vitthal Mahajan Vs. Marathwada Agricultural University,

in Writ Petition No.2023/1988, in support of his submission that

the post of Associate Professor was equivalent to post of Reader

and thus, petitioner was entitled to the deemed date of

promotion as 10/9/1976.

32. Mr. Navandar, learned counsel for the University

distinguished the judgment of this Court in case of Dr. Sharad

Vitthal Mahajan on the ground that the facts before this Court in

the said judgment were totally different. He would submit that,

in this case, the petitioner has already retired as Associate

Professor and thus, cannot be granted deemed date of promotion

on the post of professor as 9/9/1976.

33. It is not in dispute that the respondent No.2,

University came to be established with effect from 18th May

1972. In so far as the petitioner is concerned, it was his case that

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on 1st January, 1971 he came to be promoted as Assistant

Professor. There was a seniority dispute between the petitioner

and Dr. M.A. Quader in the cadre of Assistant Professor. The

petitioner had filed a writ petition bearing No.1572/1988 in this

Court challenging the seniority of Dr. M.A. Quader. By an order

dated 8th June 2001 passed by Division Bench of this Court in

the said writ petition, this Court held that in so far as seniority of

the petitioner above Dr. M.A. Quader was concerned, the

petitioner came to be appointed in the post of Assistant Professor

with effect from 23rd July, 1971 whereas Dr. M.A. Quader was

appointed in the said post from 30th April 1968.

34. The petitioner claimed seniority above Dr. M.A.

Quader only based on his date of appointment in the post of

Agriculture Officer, on which his appointment was with effect

from 21st June, 1963 whereas Dr. M.A. Quader was appointed in

the said post with effect from 5th September, 1964. This Court

held that the post of Agriculture Officer was not included in the

academic staff and what was relevant for consideration was the

date of joining of the post in the post of Assistant Professor. This

Court accordingly rejected the claim of seniority of the petitioner

in the post of Assistant Professor over the seniority of Dr. M.A.

Quader and dismissed the said writ petition. It is thus clear that

the date of the petitioner's joining the post of Assistant Professor

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was relevant and not the date of joining in the post of Agriculture

Officer.

35. It is not in dispute that the deemed date of promotion

to Dr. V.G. Reddy, who was one of the petitioners in Writ Petition

No.269/1979, was granted pursuant to an order passed by this

Court on 26th November, 1991 and modified on 23rd November,

1992 in the post of Professor. The Executive Council of the

respondent No.2 University had passed a resolution on 15th

March, 1993 and granted deemed date of seniority to the said

Dr. V.G. Reddy with effect from 10th September 1976. The

petitioner did not challenge the said order passed by the

respondent No.2 University or did not apply for any relief in

favour of the petitioner for granting the deemed date of

promotion till 16th August, 2006. The petitioner only has alleged

that the petitioner had made representation to the respondents

firstly on 25th March, 1989 to the Chancellor of respondent No.2,

thereafter on 7th October 2000 and lastly on 14th May, 2006

which was made after about six years of the representation dated

7th October 2000. The petitioner already stood retired in the

year 1996. It is thus clear that this writ petition has been filed

after about 10 years of the petitioner having retired from service.

36. A perusal of the averments made in the writ petition

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indicates that the petitioner has not explained the gross delay

and laches in filing this writ petition. The objection raised by the

respondents about the gross delay in filing this writ petition is

thus justified.

37. In so far as the judgment of the Supreme Court in

the case of Union of India And Another Vs. Hemraj Singh Chavan

(supra) relied upon by the learned counsel for the petitioner is

concerned, it is held by the Supreme Court that right of eligible

employees to be considered for promotion is virtually a part of

their fundamental right guaranteed under Article 16 of the

Constitution. This right of fair consideration guaranteed in the

matter of promotion under Article 16 virtually flows from

guarantee of equality under Article 14 of the Constitution.

38. The Supreme Court in the case of Ramchandra

Shankar Deodhar and Others v. State of Maharashtra (supra)

relied upon by the learned counsel for the petitioner while

rejecting the plea of the respondents of gross delay of the

petitioner in filing the writ petition, held that it must be

remembered that the rule which says that the Court may not

inquire into belated and stale claims is not a rule of law, but a

rule of practice based on sound and proper exercise of discretion,

and there is no inviolable rule that whenever there is delay, the

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Court must necessarily refuse to entertain the petition. Each case

must depend on its own facts. It is held that it will all depend on

what was the breach of the Fundamental Right and the remedy

claimed are and how the delay arose.

39. In the said judgment, the Supreme Court had

rejected the plea of the delay raised by the employer on the

ground that the Commissioner, Aurangabad Division, the

employer and also the then Secretary of the Revenue

Department had informed the petitioner therein that on 18th

October, 1960 and in January, 1961 respectively that the rules of

recruitment to the posts of Deputy Collector in the reorganized

State of Bombay had not yet been unified and that the

petitioners continued to be governed by the rules of Ex-

Hyderabad State and the Rules of July 30th, 1959 had no

application to the petitioners. Accordingly, the petitioner therein

proceeded on the assumption that there were no unified rules of

recruitment to the posts of Deputy Collector and the promotions

that were being made by the State Government were only

provisional to be regularized when unified rules of recruitment

were made.

40. The petitioners in that matter however came to

know only when in another matter this Court accepted the

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statement made by the State Government that the Rules of 30th

July, 1959 were the unified rules for recruitment to the posts of

Deputy Collector applicable throughout the reorganized State of

Bombay. The petitioners had then immediately filed a writ

petition in this Court. With these facts in hand, the Supreme

Court took a view that the delay was liable to be condoned.

41. In our view, the facts of this case, however, are

totally different. In this case the claim of the seniority of the

petitioner over Dr. M.A. Quader was rejected by this Court on

8th June, 2001. The respondent No.2 had even given effect to

the order passed by this Court in the writ petition filed by Dr.

V.G. Reddy on 19th April, 1993 much prior to the date of

retirement of the petitioner. The petitioner, however, did not

challenge the said order passed by the respondent No.2 granting

deemed date to Dr. V.G. Reddy as 10th September, 1976 in the

cadre of Professor. The cause of action in our view, if any, to

challenge the appointment Dr. V.G. Reddy and four others and

for seeking deemed date of promotion as Professor in favour of

the petitioner, if any, was in the month of April 1993 whereas the

petitioner had filed this petition only in the year 2006.

42. In so far as the submission of the learned counsel for

the petitioner that the right of eligible employees to be

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considered for promotion is virtually a part of their fundamental

right guaranteed under Article 16 of the Constitution is

concerned, there is no dispute about this proposition of law.

However, no person has a right to be promoted but has only a

right to be considered for promotion provided he fulfills the terms

and conditions of the employment. The promotion is governed by

the conditions of employment and is not based on any general

principles of justice and fair play. No person has vested right to

be promoted.

43. In so far as the judgment of this Court in the case of

Basawant Devidas Nandgavali Vs. Secretary, Water Resources

Department (supra) relied upon by the learned counsel for the

petitioner is concerned, this Court adverted to the judgment of

the Supreme Court in the case of State of Uttar Pradesh Vs.

Harish Chandra, [AIR 1996 SC 2173] in the said judgment

and also the judgment of the Supreme Court in the case of N.

Balakrishnan Vs. M. Krishnamurthy, [ JT 1998 (6) SC 242 ]

holding that the applicant seeking condonation of delay is duty

bound to explain the reasons for the delay but as has been held

by the Supreme Court in several cases, the very manner in which

the bureaucratic process moves, if the case deserves merit the

Courts are to consider the question of condonation from that

perspective.

Writ Petition No.6550/2006

44. It is held in the said judgment that, rules of limitation

are not meant to destroy the right of the parties. In every case of

delay, there can be some lapse on the part of the litigant

concerned. That alone is not enough to turn down his plea and to

shut the door of substantial and real justice against him so as to

render him remediless. The Division Bench of this Court held that

liberal, reasonable, and justice oriented approach is necessary

under the circumstances when lapse of time was not solely

attributable to the petitioner, who was merely seeking to rectify

what according to him was 'grave injustice' done to him, by

examination of his case on the basis of evidence & merits. In this

case the petitioner, however, has not blamed the respondents for

the delay caused in filing this petition after more than 12 years.

45. The Supreme Court in the case of State of Orissa v.

Pyarimohan Samantaray (supra) has held that since there was no

satisfactory explanation of the inordinate delay for making of

repeated representations after rejection of one representation

could not be held to be a satisfactory explanation of the delay. In

our view, the petitioner has not satisfactorily explained the delay

of more than 12 years in filing this writ petition. Admittedly,

there was no follow up action by the petitioner between 7th

October, 2000 and 13th May, 2006. We are not inclined to accept

Writ Petition No.6550/2006

the submission of the learned counsel for the petitioner that,

even if there was delay on the part of the petitioner in filing this

petition, no prejudice of any nature whatsoever would be caused

to the respondent No.2.

46. Be that as it may. We shall now deal with the rival

contentions of both the parties on merit.

47. A perusal of the record indicates that the petitioner

was allocated from Punjabrao Krishi Vidyapeeth Akola with effect

from 18th May, 1972 as Assistant Professor, Agriculture, Botany.

The respondent No.2 University came to be established with

effect from 18th May, 1972. The Executive Council of the

respondent No.2-University had passed a resolution on 31st

August, 1974 prescribing the academic eligibility criteria for

awarding the Indian Council of Agricultural Research (ICAR) by

pay scales to the academic staff of the respondent No.2. One-

third of the senior persons in the department from the category

of Assistant Professor are considered for the award of higher

scale without changing their status, cadre and seniority. We are

inclined to accept the submission of the respondent-University

that the post of Reader was not provided under the old Statute

No.49 of Marathwada Krishi Vidyapeeth Statutes, 1972 as well as

under the Statute No.71 of Maharashtra Agricultural Universities

Writ Petition No.6550/2006

Statutes 1990.

48. A perusal of the order dated 20/11/1991 passed by

the respondent No.2, which is at Exhibit B to the petition, clearly

indicates that the petitioner was transferred by the said order

against the post of Assistant Oilseeds Specialist, Latur and was

not promoted. The petitioner was transfered as Associate

Professor against the said post of Assistant Oilseeds Specialist,

Latur.

49. A perusal of the record further indicates that the

Executive Council had passed a resolution on 19th February,

1975 prescribing the quota for nomination and promotion as

75:25. Mr. V.V. Patil, Mr. V.K. Shinde, Mr. R.A. Patil and Mr.

V.G. Reddy were nominated as Associate Professor in view of the

Executive Council Resolution dated 19th February, 1975. Those

four persons were appointed on the recommendation of the

selection committee by an order dated 9th September, 1976. In

so far as the petitioner is concerned, the petitioner was promoted

as Associate Professor as per resolution dated 19th February,

1975 in promotion quota as per order dated 5th March, 1976.

The petitioner, however, joined as Associate Professor withe

effect from 25th January, 1977.

Writ Petition No.6550/2006

50. The learned counsel for the respondent No.2

produced for perusal and consideration of this Court the service

book of the petitioner and in particular pages 22 and 23 thereof

showing that the petitioner was relieved from the office of the

Assistant Horticulturist, Fruit Research Station Aurangabad on

20th July, 1971 due to transfer vide order from the Registrar,

Punjabrao Krishi Vidyapeeth, Akola. The said service book further

indicates that on 28th January, 1973 due to appointment on

promotion to the post of Assistant Professor, Botany by order

dated 29th January, 1973, the petitioner joined on 29th January,

1973. The respondent No.2 also filed a sur-rejoinder before this

Court placing such documents on record.

51. In our view, since the actual date of promotion of the

petitioner thus could be considered only as 25th January, 1977

for the post of Associate Professor and equivalent, the petitioner

could not claim deemed date as 9th September 1976 which was

granted in favour of Dr. V.G. Reddy and few others. A perusal of

the record indicates that said Dr. V.G. Reddy and few others

were not promoted but were nominated on the post of Associate

Professor on the recommendation of the selection committee vide

order dated 9th September 1976.

52. A perusal of the Government Resolution dated 6th

Writ Petition No.6550/2006

June, 2002 annexed by the respondent No.2 in its sur-rejoinder

clearly indicates that unless an employee is actually promoted to

a particular post, he cannot be granted any deemed date. In our

view, the learned counsel for the University is thus right in his

submission that since the petitioner was granted promotion and

had joined on 29th January, 1977, the question of granting any

deemed date of the promotion as 9th September, 1976 did not

arise. The petitioner could not produce any material on record

before this Court to show that the petitioner was promoted as

Professor on regular basis. The comparison of the petitioner

himself with Dr. V.G. Reddy and others was thus itself ex facie

incorrect and without any basis.

53. Be that as it may, the petitioner neither impleaded

the said Dr. V.G. Reddy and others nor sought any relief against

the promotion granted to Dr. Reddy and others in this writ

petition. A perusal of the record further indicates that by an

order dated 9th September, 1976, the petitioner was already

reverted from the post of Associate Professor which was held by

him temporarily vide order dated 5th March, 1976. By the said

order, in view of the maintaining nomination quota of the

selected candidates for the Associate Professor cadre, the

persons who were officiating on promotion in the Associate

Professor cadre purely on temporary basis were reverted and

Writ Petition No.6550/2006

were posted in the cadre of Assistant Professor. A perusal of the

said order of reversion indicates that the name of the petitioner

was at Sr.No.1 in the said order. The petitioner has not

challenged the said order of reversion dated 9th September,

1976 at any point of time.

54. A perusal of the order dated 23rd March, 1993 issued

by the respondent No.2 clearly indicates that by the said order,

the Vice Chancellor of the respondent No.2 ordered that until

further orders, the petitioner who was then working against the

post of Assistant Oilseeds Specialist, O.R.S., Latur was appointed

as Assistant Oilseeds Specialist in the scheme for "Estt. of Res.

on spreading varieties of groundnut at O.R.S. Latur" in the pay

scale of Rs.4500-150-5700-200-7300 temporarily for a period

not exceeding one year or for lesser period or till the suitable

substitute was appointed, whichever was earlier, under the

control of the Director of Research, MAU, Parbhani. It is thus

clear that the petitioner was not appointed to the said post on

permanent basis.

55. In so far as the deemed date of promotion to the post

of Professor granted to Dr. V.G. Reddy is concerned, it is not in

dispute that the said Dr. V.G. Reddy was one of the petitioners in

Writ Petition No.269/1979. Pursuant to the order passed by this

Writ Petition No.6550/2006

Court in the said writ petition, the said Shri. Dr. V.G. Reddy

along with other petitioners were granted deemed date of

promotion to the post of Professor. The petitioner did not satisfy

those conditions on which this Court had granted the deemed

date of promotion to the post of Professor to Dr. V.G. Reddy.

The petitioner, thus could not claim parity with the case of Dr.

V.G. Reddy. The judgment and order in Writ Petition

No.269/1979 thus was not applicable to the case of the

petitioner.

56. In our view, the Academic Council Resolution dated

3rd September, 1974 annexed at Exhibit R-1 to the short

affidavit filed by the petitioner on 29th August, 2017 will not

advance the case of the petitioner.

57. In so far as the judgment delivered by this Court on

8th June 2001 in Writ Petition No.2032/1988 filed by Sharad

Vithal Mahajan against the Marathwada Agricultural University

and others is concerned, in our view the learned counsel for the

respondent No.2 is right in distinguishing that judgment on the

ground that in this case the petitioner had already retired as

Associate Professor and thus cannot be granted deemed date of

promotion on the post of Professor as 9th September 1976. In

view of such facts, the University in that matter had not

Writ Petition No.6550/2006

controverted the case of the petitioner that he was entitled for

deemed date of promotion in the post of Associate Professor

withe effect from 18th November, 1973 and, therefore, this Court

considered the prayer of the petitioner therein for deemed date

as prayed by the petitioner therein.

58. This Court in the said judgment had also considered

an admitted position that the petitioner was not subsequently

promoted to the post of Professor and he had filed the writ

petition for consequential benefits in the post of Professor. With

these facts in hand, the Division Bench of this Court allowed the

said petition filed by the petitioner therein and held that the

petitioner therein was entitled for deemed date of promotion in

the post of Associate Professor with consequential benefits. In

this petition, however, the petitioner has not been able to

demonstrate before this Court that he was promoted to the post

of Professor on permanent basis. In our view the judgment of

this Court in the case of Dr. Sharad Vithal Mahajan (supra) is

clearly distinguishable to the facts of this case and would not

assist the case of the petitioner.

59. In our view, even on merit, the petitioner has not

made out any case for any relief as sought in the petition. The

petition is devoid of merit. We, therefore, pass following order :

Writ Petition No.6550/2006

ORDER

Writ Petition No.6550/2006 is dismissed. Rule is

discharged. There shall be no order as to costs.

          (SUNIL K. KOTWAL)                    (R.D. DHANUKA)
               JUDGE                                 JUDGE




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