Devanand Bajirao Sawarkar vs Joint Director, Higher And ...
2022 Latest Caselaw 4284 Bom

                                                                                   J WP-1197-2021.odt
                                                   1

  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR.
                   WRIT PETITION NO.1197 OF 2021

             PETITIONER                  :          Devanand Bajirao Sawarkar,
                                                    Age 48 yrs, Occ. Service, R/o.204,
                                                    Padam Apartment, Desai Layout,
                                                    Behind Ganesh Colony, Amravati,
                                                    Tq. and Dist. Amravati.

                                                    ..VERSUS..

             RESPONDENTS : 1. Joint Director,
                              Higher and Technical Education,
                              Amravati Division Amravati, office
                              at V.M.V. Premises, Amravati, Tq.
                              and Dist. Amravati.

                                                 2. Shri. Hanuman Vyayam Prasarak
                                                    Mandal          through      its
                                                    President/Secretary     Hanuman
                                                    Nagar, Amravati, Tq. and Dist.
                                                    Amravati.

                                                 3. Degree     College    of   Physical
                                                    Education Amravati through its
                                                    Principal     Hanuman        Nagar,
                                                    Amravati, Tq. and Dist. Amravati.
-------------------------------------------------------------------------------------------
             Shri. P. S. Patil, Advocate for Petitioner.
             Shri. N. S. Rao, AGP for Respondent No.1.
------------------------------------------------------------------------------------------------------------

                        CORAM                :     SUNIL B. SHUKRE AND
                                                   SMT. M. S. JAWALKAR, JJ.

DATE : 25th APRIL, 2022.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

Heard.

J WP-1197-2021.odt

2. Rule. Rule made returnable forthwith. Heard

finally by consent of the parties.

3. The brief facts of the case are that the

Petitioner was appointed as a Lecturer in the year

1999 by Respondent No.2 and he was posted to

Respondent No.3-College. The Petitioner was made

Assistant Professor in the year 2012 and his such

appointment initially as Lecturer and later on as

Assistant Professor, received approval from the

Competent Authorities. When a proposal was sent by

the Management i.e. Respondent No.2 for granting

pay protection to the Petitioner from the year 1999, it

was turned down by the Respondent No.1 vide his

order dated 24.07.2020. The Respondent No.1 found

that the Petitioner did not possess necessary

qualification as prescribed under the Government

Resolution dated 23.10.1992 and that there was no

provision found anywhere regarding granting pay

protection to the Petitioner from the date from which,

it was sought under the proposal sent by the

Management.

J WP-1197-2021.odt

4. Shri. N. S. Rao, learned Assistant

Government Pleader representing the Respondent

No.1 contends that the Petitioner did not possess one

of the essential qualifications of clearance of NET or

SET, and therefore, the pay protection could not be

granted to the Petitioner from the year 1999. He

further submits that it was in the year 2008 that the

Petitioner cleared the NET, and therefore, if at all the

Petitioner is to be granted any pay protection, it

would not be anytime before the year 2008.

5. The contention is fallacious as these are not

the grounds taken in the impugned order dated

24.07.2020, for flatly refusing to grant pay protection

to the Petitioner from the year 1999, when the

Petitioner was initially appointed as a Lecturer. It is

pertinent to mention here that what the Petitioner is

seeking now is only his notional pay protection and

he is not claiming any arrears of pay as a Lecturer.

But, even these benefits have been denied to the

Petitioner not on the ground that the Petitioner did

not clear any NET or SET in 1999, but on two other

grounds namely, the Petitioner did not possess the J WP-1197-2021.odt

educational qualifications as prescribed in the

Government Resolution dated 23.10.1992 and that

there is no provision made anywhere enabling the

Respondent No.1 to grant pay protection to the

Petitioner from the date of his initial appointment.

Both these grounds, however, have been seen by us

to be not tenable in law for the reasons given in the

ensuing paragraphs.

6. The Government Resolution dated

23.10.1992 has been superseded by the Government

Resolution dated 27.11.1992. In paragraph 2 of the

GR dated 27.11.1992, it is clearly stated that the

earlier orders contained in the GR dated 23.10.1992

are superseded and in their place, new orders have

been issued. While rejecting the proposal of the

Management, the Respondent No.1, however, took

recourse to the provisions of a GR, which was already

superseded, which was not permissible. The first

ground taken by Respondent No.1 for rejecting the

Management's proposal, therefore, is illegal.

J WP-1197-2021.odt

7. About the second ground taken in the

impugned order, we must say that specific provisions

are already made for granting pay protection in the

GR dated 11.02.1994. The paragraph 1 of this GR

clearly reflects this position. For the sake of

convenience, it is reproduced as below :

"1) Previous service without any break as a Lecturer or equivalent in a University, College, National Laboratory or other scientific organisations (CSIR, ICAR DRDO, UGC etc.) and as a UGC Research Scientist, should be counted for placement of Lecturers in Senior Scale/Selection Grade provided that :

a) the post was in an equivalent grade/ scale of pay as the post of a Lecturer;

b) the qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer;

c) the Lecturers concerned possessed the minimum qualification prescribed by the UGC for appointment as Lecturer;

d) the post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government J WP-1197-2021.odt

e) the appointment was not ad-hoc or in leave vacancy of less than one year duration.

2) These services should be counted for the purposes of placement in Sr. Scale and Selection Grade only and not for any other purposes.

3) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (Private / local body / Government) if the above criteria are satisfied."

8. So, there already exist provisions on the

basis of which pay protection could be granted to the

Lecturers like the Petitioner, provided the conditions

of the GR dated 11.02.1994 are satisfied. This would

make the second ground mentioned in the impugned

order as without substance.

9. In the result, we find that the impugned

order is illegal and it deserves to be quashed and set

aside.

10. Accordingly, the petition is allowed. The

impugned order is hereby quashed and set aside.

J WP-1197-2021.odt

Matter is remanded back to the Respondent No.1 to

consider the issue of grant of pay protection to the

Petitioner, in terms of the GR dated 11.02.1994.

Decision in this regard shall be taken at the earliest

and in any case within a period of eight weeks from

the date of receipt of this order.

11. Rule is made absolute in the above terms.

No costs.

                      (JUDGE)                (JUDGE)




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        TAMBE      Date: 2022.04.27
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