Bombay High Court
Dr. Salma Shakeel Shaikh vs State Of Maharashtra And Others on 12 October, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6814 OF 2020
WITH
CIVIL APPLICATION NO.8670 OF 2021
IN
WRIT PETITION NO.6814 OF 2020
Dr.Mrs.Salma w/o Shakeel Shaikh,
Age : 63 years, Occupation : Retired,
R/o N-4, F Sector, Plot No.139,
CIDCO, Aurangabad-431003.
...PETITIONER
-VERSUS-
1. The State of Maharashtra.
Through the Principal Secretary,
Higher and Technical Education
Department, Mantralaya Annex,
4th Floor, Mumbai-400032.
2. The Director,
Directorate of Technical Education,
3, Mahapalika Marg, Post Box No.1967,
Mumbai-400001.
3. Maulana Azad Education Society,
Through its Secretary,
Dr.Rafiq Zakaria Campus,
Post Box No.65,
Dr.Rafiq Zakaria Marg,
Rauza Bagh, Aurangabad-431001.
4. Kamala Nehru Polytechnic (Pharmacy)
Aurangabad.
Through the Principal,
Dr.Rafiq Zakaria Campus,
Post Box No.65,
Dr.Rafiq Zakaria Marg,
Rauza Bagh, Aurangabad-431001.
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...RESPONDENTS
5. Mahesh Dattopant Shivankar,
Age : 57 years, Occupation : Service
as Joint Director, Technical Education,
Aurangabad Regional office,
Osmanpura, Aurangabad.
... (No.5 is the
Non Applicant No.5 in CA)
...
Shri S.S. Bora, Advocate for the petitioner.
Shri R.N. Dhorde, Senior Advocate, special counsel a/w Shri
S.B. Yawalkar, AGP for respondent Nos.1 and 2.
Shri P.S. Dighe, Advocate for respondent Nos.3 and 4.
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 12th October, 2021
ORAL JUDGMENT (Per Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2. The petitioner has put forth prayer clauses B and
as under :-
"B. Writ of mandamus or any other appropriate writ or order or
directions be issued against the respondents directing them
to refund Rs.4,97,826/- to petitioner along with 18% p.a.
bank interest deposited by petitioner to the treasury
towards alleged excess payment to petitioners bank
account as per the office record of Kamala Nehru Poly.
(Pharmacy), Aurangabad.
C. Writ of mandamus or any other appropriate writ or order or
directions be issued against the respondents directing them
to add three non-compounded increments as awarded as
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per para No.2(D)(iv) of Government Resolution
No.2010/(34/10)/ TE-2 dated 20th August 2010 for Ph.D. to
the pay scale of petitioner from 15.06.2013 and pension be
revised as per 7th pay scale.
After revising pension of petitioner as per 7 th pay
scale, petitioner be awarded with all consequential benefits
like gratuity, leave encashment during service, etc. on
revised pay scale."
3. We have considered the strenuous submissions of
the learned advocate for the petitioner, the learned Senior
Advocate as a Special Counsel along with the learned AGP on
behalf of respondent Nos.1 and 2/ State and Directorate of
Technical Education and the learned Advocate representing
respondent Nos.3 and 4.
4. We have perused the judgment delivered by the
coordinate bench of this Court dated 02.12.2019 in identical set
of facts and circumstances, in Writ Petition No.9653/2017 filed
by Dr.Vijay Ratanchand Katariya vs. The State of Maharashtra
and others.
5. In the above backdrop, we are adverting to the
factors, germane to the cause of action before us, which are as
follows:-
(a) The petitioner acquired Ph.D. on 15.06.2013.
(b) She has completed service as a teacher from
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03.10.1985, when she joined as a lecturer and superannuated as
such, after 31 years of service.
(c) She has superannuated on 31.07.2016.
(d) All India Council for Technical Education (AICTE)
has issued the notification dated 04.01.2016, which was
published on 06.01.2016 in the Gazette of India part-III/ Section
4 and introduced a clarificatory clause related to incentive/ non
compounded advance increments, relevant portion of which
reads as under :-
Sl. No. Issue Clarification
25 Admissibility for Non- (i) There shall be no increments on
compounded advance completion of PDF/D.Sc. Fellowship
increments/ Non programs.
compounded increments (ii) There shall be no advance
for higher qualifications increments for acquiring M.Tech./
(Degree and Diploma M.Phil or Ph.D. degree to those who
Institutions) as a are already working as a regular faculty
incentive for Ph.D./ with lower qualification and where such
M.Tech. And other higher higher basic qualifications are/ were
qualifications. essential for the post.
(iii) Non- compounded advance
increments (Three / Two/ One) on
acquiring Ph.D./ M.Phil./ M.Tech. And
other equivalent qualifications, while in
service, wherever applicable tin AICTE
Regulations, 2010 shall be granted in
PB-3 (Rs.15600-39100) only. The
advance increments for those who
acquired Ph.D./ M.Phil./ M.Tech. And
other equivalent qualifications, while in
service are not allowed in the PB-4
(Rs.37400-67000).
(e) The Director/ respondent No.2 herein issued the
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communication dated 03.02.2016 to the Divisional Offices of the
Education Department indicating as under :-
"तसेच पदवी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन पदवी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन व्या वेतन
आयोगामधी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतनल सहाय्यक प्राध्यापक हे सहाव्या वेतन सहाय्यक प्राध्यापक हे सहाव्या वेतन प्राध्यापक प्राध्यापक हे सहाव्या वेतन हे सहाव्या वेतन
आयोगामध्ये सहयोगी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन प्राध्यापक प्राध्यापक हे सहाव्या वेतन आहेत व सहाव्या
वेतन आयोगानुसार सहयोगी प्राध्यापकासाठी सहयोगी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन प्राध्यापक प्राध्यापक हे सहाव्या वेतनासाठी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन Ph.D. हिह
शैक्षणि(क प्राध्यापक हे सहाव्या वेतन अह) ता आवश्यक प्राध्यापक हे सहाव्या वेतन आहे. त्यामुळे हिदनांक प्राध्यापक हे सहाव्या वेतन
१/१/२००६ नंतर ज्या सहयोगी प्राध्यापकांनी नंतर सहयोगी प्राध्यापकासाठी ज्या सहयोगी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन प्राध्यापक प्राध्यापक हे सहाव्या वेतनांनी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन Ph.D.
हिह शैक्षणि(क प्राध्यापक हे सहाव्या वेतन अह) ता धार सहयोगी प्राध्यापकासाठी ( क प्राध्यापक हे सहाव्या वेतनेल सहाय्यक प्राध्यापक हे सहाव्या वेतनी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन असेल सहाय्यक प्राध्यापक हे सहाव्या वेतन त्यांना ३
अतितरिर सहयोगी प्राध्यापकासाठी क्त वेतनवाढी देण्यात येऊ नयेत वेतनवाढी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन देण्यात येऊ नयेत नयेत. अशा प्रक प्राध्यापक हे सहाव्या वेतनार सहयोगी प्राध्यापकासाठी च्या
वेतनवाढी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन आपल्या स्तर सहयोगी प्राध्यापकासाठी ावर सहयोगी प्राध्यापकासाठी हिदल्या गेल्या असती अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतनल सहाय्यक प्राध्यापक हे सहाव्या वेतन तर सहयोगी प्राध्यापकासाठी
त्यांच्या त्या वेतनवाढी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन क प्राध्यापक हे सहाव्या वेतनाढू न घेऊ नयेतन त्यांच पदवी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतनी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन पुनः
वेतनहिनति=ती अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन क प्राध्यापक हे सहाव्या वेतनर सहयोगी प्राध्यापकासाठी ण्यात यावी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन व झाल सहाय्यक प्राध्यापक हे सहाव्या वेतनेल्या अतितप्रदानाच पदवी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतनी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन
वसुल सहाय्यक प्राध्यापक हे सहाव्या वेतनी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन संबंतिधतांक प्राध्यापक हे सहाव्या वेतनडून क प्राध्यापक हे सहाव्या वेतनर सहयोगी प्राध्यापकासाठी ण्यात यावी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतन. व त्याबाबतच पदवी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतना
अहवाल सहाय्यक प्राध्यापक हे सहाव्या वेतन एक प्राध्यापक हे सहाव्या वेतनहिBत क प्राध्यापक हे सहाव्या वेतनरून या संच पदवी अभ्यासक्रमाच्या संस्थांमध्ये ५ व्या वेतनाल सहाय्यक प्राध्यापक हे सहाव्या वेतननाल सहाय्यक प्राध्यापक हे सहाव्या वेतनयास पाठहिवण्यात
यावा."
(f) In view of the above communication, the Joint
Director of Technical Education issued a communication to
several colleges including respondent Nos.3 and 4/ college vide
letter dated 01.04.2016, reproducing the above portion in his
order.
(g) Misinterpreting the said order, the Principal of the
respondent College, by computing interest on the amount,
directed the petitioner to deposit the amount of Rs.4,97,826/-,
which she had earned by virtue of the addition of three additional
increments on completion of her Ph.D..
(h) The respondent/ Principal submits, by offering an
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apology, that he misunderstood the meaning and import of the
reproduced portion from the notification issued by the AICTE
and the communications issued by respondent No.2 as well as the
Deputy Director, Technical Education, Aurangabad Division.
Because of such misunderstanding, the said provision introduced
by the AICTE, which was not applicable to the case of the
petitioner, was made applicable to her.
(i) Subsequently, this Court dealt with an identical issue
in which, the present respondent Nos.3 and 4 are respondent
Nos.4 and 5, in Writ Petition No.9653/2017, decided on
02.12.2019.
6. We, therefore, find it appropriate to reproduce
paragraphs 2 to 9 from the order dated 02.12.2019 as under :-
"2. Petitioner, who has been employed in respondent
No.5 pharmacy college after following due process
is before us since a communication had been
issued by the Principal seeking recovery of
Rs.2,82,756/- in respect of three additional
increments (three non-compoundable increments)
in 18 installments at the rate of Rs.15,600/-.
3. Learned counsel for the petitioner submits that
petitioner had acquired degree in pharmacy in
1994. By virtue of introduction of government
resolution in 2010, petitioner had requested for
three non compoundable increments in view of
acquisition of doctorate of philosophy (Ph.D.) in
pharmacy. Pursuant to the same his case had been
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forwarded by respondent No.5 and accordingly
three non compoundable increments were given to
the petitioner. It appears that subsequently some
instructions with respect to acquisition of M.
Pharmacy had been issued to the effect that the
professors who have acquired Ph.D. after 1 st
January, 2006 would not be eligible to have three
non-compoundable increments in institutions
imparting bachelor level education. It appears that
under some misapprehension, thereafter, impugned
communication dated 14th October, 2016 has been
issued.
4. In response to the writ petition, respondents No. 1,
2 and 3 have submitted affidavit in reply and have
stated in Paragraph No.4 thus:-
"4. I say and submit that Respondent No.2
i.e. Directorate of Technical Education, Mumbai
and Respondent No.3 i.e. Joint Director, Technical
Education, Regional Office, Aurangabad have not
issued any letter to Respondent No.5 i.e. Kamla
Neharu Polytechnic (Pharmacy), Aurangabad to
stop three non compoundable advance increments
given to the petitioner acquiring Ph.D. degree as he
is drawing PB-4 pay scale. Also Respondent No.2
and 3 have not issued any letter to recover the
excess amount paid to the petitioner on account of
three non compoundable advance increments as
petitioner is drawing scale in PB-4 pay scale.
Instead Respondent No.3 i.e. Joint Director,
Technical Education, Regional Office, Aurangabad
informed Respondent No.5 by its letter dated 07-
01-2017 that he last para of letter of Respondent
No.2 dated 03-02-2016 is only applicable for
Degree institutes and it is not applicable for
Diploma institutes. Copy of the letter dated 03-02-
2016 issued by Respondent No.2 and letter dated
07-01-2017 issued by Respondent No.3 are
annexed as Exhibit R-1 (Colly)."
5. In view of the aforesaid it appears that impugned
communication dated 14th October, 2016 has been
rendered untenable as the same is based on
instructions not relatable to petitioner's case. The
impugned communication, therefore, is set aside.
The impugned recovery, accordingly is not to be
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effected from petitioner.
6. Learned counsel for petitioner, at this stage,
submits that since 2016 salary is not being paid to
the petitioner with non compoundable increments.
7. In the circumstances, all the legitimate dues be
restituted to the petitioner according to position as
would have been if such communication had not
been issued.
8. Learned counsel for respondent No. 5 submits that
Respondent No. 5 would give all possible
assistance for such restitution.
9. Rule is made absolute accordingly. The writ
petition is allowed in the aforesaid terms and
stands disposed of."
7. Admittedly, the notification issued by the AICTE as
well as the communications issued by respondent No.2/ Director
and the Deputy Director, would be applicable to the institutes
imparting education for the degree courses and the same are not
applicable to the institutes which impart education for diploma
courses. Moreover, the said notification would apply from the
date it has been published, which is 06.01.2016 covering cases
who have acquired Ph.D. or higher educational qualifications
thereafter.
8. It is, therefore, obvious from the notification of the
AICTE as well as the judgment delivered by this Court in the
case of Dr.Vijay Katariya (supra), that three increments earned
by the petitioner will have to be computed for calculating her
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pensionary benefits and the same will have to be added
accordingly.
9. Considering the above, the issue is that the petitioner
was made to deposit an amount of Rs.4,97,826/-, inclusive of
interest and had to suffer mental agony. The stand taken by the
Management before us clearly indicates that the Management is
apologetic and the cause of action compelling the petitioner to
approach us, arose prior to the judgment delivered by this Court
in the case of Dr.Vijay Katariya (supra). We, therefore, do not
find an element of deliberate or willful act on the part of the
Principal, inasmuch as, the petitioner does not allege bias and
prejudice against the Principal. Hence, we are of the view that as
the amount was deposited in the Treasury and is with the
Government, nominal interest could be directed to be paid on the
said amount to balance the equities. The said amount was
deposited on 01.08.2018 with the Treasury at Aurangabad.
10. In view of the above, we are of the view that the
respondent Principal has not acted deliberately or willfully so as
to cause any harassment to the petitioner. We do not find any
allegation of bias and prejudice against the Management. We do
not find that the Management had any antipathy towards the
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petitioner. As such, no interest is required to be paid by
respondent Nos.3 and 4.
11. The learned Senior Advocate has strenuously
opposed the Civil Application filed by the petitioner seeking
action for perjury. We have perused the affidavit filed by the non
applicant No.5 Mahesh Shivankar, who is the Joint Director of
Technical Education. In the backdrop of his affidavit, we have
perused his communication dated 01.04.2016, which is a general
instruction issued to various institutions including respondent
No.3/ Institution. Those institutions who have been served with
such communication include those who impart education for the
diploma courses. Non applicant No.5 has not kept the petitioner
in focus, by any stretch of imagination, so as to harass her. He
does not even know the petitioner and as such, there cannot be a
deliberate act on his part to cause any injury to her.
12. We find that the submissions of the learned Senior
Advocate are well placed. The element of deliberately and
intentionally misleading this Court with the aid of a purported
false affidavit, which is likely to cause a legal injury to the
petitioner, does not appear to be borne out, in our view.
13. As such, this Writ Petition is allowed in terms of
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prayer clauses B and C, save and except, the quantum of interest
amount, which we quantify at the rate of 6% per annum w.e.f.
01.08.2018, to be paid through the State Exchequer. The amount
of Rs.4,97,826/- along with 6% interest per annum from
01.08.2018, shall be paid till 31.01.2022.
14. Respondent No.4/ Principal shall forward a proper
proposal as well as the corrected/revised pension proposal
including the three increments, to respondent No.2 so as to
ensure that it reaches the said authority on or before 30.10.2021.
Respondent No.2 shall ensure that the said proposal is cleared
expeditiously so as to ensure that the amount along with interest
as directed above is paid to the petitioner, on or before
31.01.2022. Needless to state, respondent No.2 would forward
the revised pension papers to the Auditor and Accountant
General at Nagpur, on or before 15.12.2021.
15. Rule is made partly absolute in the above terms.
16. The Civil Application filed by the petitioner would
not survive and stands disposed off.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
