Ram Rajaram Kewte vs The State Of Maharashtra And ...
2022 Latest Caselaw 8316 Bom

                                                                          927.wp.3851.19.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.3851 OF 2019

         Ram Rajaram Kewte,
         Age : 47 years, Occu: Service
         R/o. Rahul Nagar, Parbhani,
         Tq. & Dist. Parbhani                                 ...        PETITIONER

                 VERSUS

1.       The State of Maharashtra,
         through the Secretary,
         Higher & Technical Education,
         Mantralaya, Mumbai - 400 032.

2.       The Director,
         Higher & Technical Education
         Department, Pune.

3.       The Joint Director,
         Higher & Technical Education
         Department, Nanded Region,
         Nanded.

4.       The Director,
         Board of College & University Development,
         Swami Ramanand Teerth Marathwada
         University "Dnyanteerth" Vishnupuri,
         Tq. & Dist. Nanded.

5.       Swami Ramanand Teerth Marathwada
         University "Dnyanteerth" Vishnupuri,
         Tq. & Dist. Nanded
         through its Registrar.

6.       Shri Jagdamba Vidya Prasarak Mandal's
         Purna, Tq. Purna, Dist. Parbhani
         through its Secretary

7.       Rajashri Shahu Mahavidyalaya,
         Tq. Paithan, District Parbhani
         through its Principal                        ...       RESPONDENTS

                                          ...

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Advocate for Petitioner: Mr. Y.P. Deshmukh h/f. Mr. Anand D. Kawre
AGP for Respondent Nos.1 to 3 : Ms. Vaishali N. Patil Jadhav
Advocate for Respondent No.6 : Mr. V.J. Dhage h/f. Mr. Santosh B. Bhosale
Advocate for Respondent No.7 : Mr. Vivek J. Dhage
                                      ...
                       CORAM            :   MANGESH S. PATIL AND
                                            SANDEEP V. MARNE, JJ.

                                Reserved on     :   18.08.2022
                                Pronounced on       24.08.2022

JUDGMENT : (MANGESH S. PATIL, J.)

Heard. Rule. Rule is made returnable forthwith. Learned AGP

waives service for respondent Nos.1 to 3. At the joint request of the parties,

the matter is heard finally at the stage of admission.

2. The petitioner is seeking Writ of Mandamus directing the

respondent Nos.6 and 7, which are the Management and the College being

run by it, to forward his salary bills from the date of his appointment i.e.

30.06.2009 to the respondent No.3 the Joint Director of Higher and

Technical Education and take necessary steps for payment of arrears.

3. The petitioner claims to have been appointed as a lecturer of

Library and Information Science from scheduled caste category pursuant to

an advertisement dated 01.06.2009 and the appointment order dated

29.06.2009. He avers about having joined on 30.06.2009. He further avers

that the respondent No.5 University has also granted approval to his such

appointment. In spite of his several representations to the respondent No.3

the Joint Director, he was not paid any salary. The college failed to forward

the bills. Hence this writ petition.

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4. The learned advocate for the petitioner would vehemently

submit that he was duly appointed by following all the rules and regulations

and his appointment was also approved by the University. It was

preliminarily duty of the respondents, the Management and the College, to

forward the pay bills but they have failed to do so. He had moved the

respondent No.3 the Joint Director but in vain. The learned advocate would

point out the copy of the advertisement, appointment order, order of

approval and more importantly the communication dated 25.06.2009 and

31.03.2010 whereby the respondent No.3 the Joint Director had informed

the respondent College that the course was approved as partially grant-in-

aid basis. He would, therefore, submit that the petitioner is entitled to

receive his hard earned salary at the earliest.

5. The learned advocate Mr. Dhage for respondent No.7 College

referring to the affidavit-in-reply would submit that the post for these

subjects for which the appointment was made was on non-grant basis. The

respondent No.3 the Joint Director had specifically informed the petitioner

about it and therefore salary bills could not have been forwarded. He would

further point out that respondent No.3 has specifically informed the College

that the post was on permanent non-grant basis and therefore the petitioner

was not entitled to seek any direction for forwarding the bills.

6. Mr. Dhage holding for Mr. Santosh Bhosale for the respondent

No.6 Management also submitted that the petitioner's appointment was on

non-grant basis. There was no sufficient strength of students at any point of

927.wp.3851.19.odt

time till 2015-16 whereas the petitioner claims to have been appointed in

the year 2009 when there was absolutely no student for the course of B.A.

(Library and Information Science). He would submit that the petitioner was

appointed on the post which was not receiving any grant and the

Management was paying him Rs.10,000/- per month. It was also an

understanding that no sooner the post would start receiving the grant, the

amount would be adjusted.

7. The learned AGP would submit that the approval to start these

course in subject 'Library and Information Science' was granted inter alia

subject to the condition that it would be run on permanent non-grant basis.

The petitioner was not qualified for such appointment since he was not

possessing NET/SET qualification. There was an error in the

communications addressed to the respondent Management. It was

erroneously mentioned that the courses to be started were on partially

grant-in-aid basis. It has been specifically mentioned by the respondent

No.3 in the affidavit-in-reply about such error. In fact, the order issued by

the State Government dated 19.06.2008 granting permission to various

Colleges to start courses specifically contained a stipulation that the

Management would submit an undertaking that the Managements will not

demand any grant for running such courses/branches/classes. They were

also put to notice that they shall not start such courses/branches/classes

without furnishing such undertaking to the respondent No.3 the Joint

Director. The learned AGP, therefore, would submit that since the petitioner

927.wp.3851.19.odt

was appointed on non-grant post, the Government is not under any

obligation to pay salary to him and it is wholly the responsibility of the

Management.

8. We have considered the rival submissions and perused the

papers. We are surprised to note at the out set that the stand of respondent

Nos.6 and 7 i.e. Management and the College is self contradictory. In one

breath they admit that the petitioner's appointment was on non-grant basis

and that they were paying him Rs.10,000/- per month but at the same time

they are contending that there were no students for number of years for the

course for which the petitioner was allegedly appointed which stand is

suggestive of the fact that they are even bold enough to deny the

appointment of the petitioner in the first place. The conduct deserves to be

deprecated.

9. Be that as it may, the fact of issuance of advertisement and

issuance of appointment order has not been specifically controverted by the

respondent Management and the College. Rather they admit about such

appointment and he having worked on the post and they having paid him

Rs.10,000/- per month.

10. The respondent State has emphatically denied that the

petitioner was appointed to a post which was receiving grant-in-aid. Rather

it has produced the order dated 19.06.2008 issued under Section 82 (4) of

the Maharashtra Universities Act, 1994. It is in respect of granting

permission to various colleges to run new courses or impart education in

927.wp.3851.19.odt

new branches/fields. The name of the respondent No.7 College appears at

serial No.36 and reads that it was accorded permission to run the course of

Bachelor of Arts in Library and Information Science. The first condition

subject to which such permission was granted required the concerned

colleges to furnish an undertaking not to demand grants at any time for

running such courses. In view of such an order, it is quite evident that the

respondent Nos.6 and 7 had started the courses of Bachelor of Arts in

Library and Information Science subject to such terms and conditions by

undertaking not to demand grants.

11. True it is that in couple of communications, dated 25.06.2009

and 31.03.2010 (Exhibit-H), which are the letters addressed by the

respondent No.3 the Joint Director to the Headmaster of the Respondent

No.7 College, the words 'अं शत: अनु दानिनत' (partially grant-in-aid) appeared.

We have no hesitation to conclude that indeed it was an error in as much as

the very source for starting a course of Bachelor of Arts in Library and

Information Science was the order dated 19.06.2008 which contained the

aforementioned stipulation as a condition for starting the course. We,

therefore, proceed on the premise that though the petitioner was appointed

by the respondent No.6 Management and was serving in the respondent

No.7 College as a lecturer from 30.06.2009, the post was on non-grant basis

and consequently there was no question of forwarding any salary bill to the

Government since it would be wholly the responsibility of the respondent

Management to pay the salaries, as has been laid down in the following

927.wp.3851.19.odt

decisions :

i. Dr. Suresh Baliram Gajbhare Vs. The State of Maharashtra and Ors.

(WP No.8388/2014, dated 21.09.2019)

ii. Syed Waseem Syed Sahab Vs. The State of Maharashtra and Ors.

(WP No.9962/2017 dated 17.04.2018)

iii. Abasaheb Eknath Solanke Vs. The State of Maharashtra and Ors.

(WP No.1848/2017 dated 10.09.2018)

12. Consequently, the petitioner is not entitled to seek any

mandamus directing the respondents to forward and process his salary bills

since the State has not been under any statutory obligation to pay the salary.

However, as has been laid down in the aforementioned decisions, it is the

primary responsibility of the respondent No.6 Management and the

respondent No.7 College to pay the salary of the petitioner since they had

appointed him by following recruitment process in spite of being aware that

the course for which he was appointed was not entitled to receive any grant-

in-aid.

13. Resultantly, the petitioner is entitled to claim salary from

30.06.2009 and the respondent Nos.6 and 7 are under obligation to pay it.

However, since the petitioner is approaching this Court after a lapse of

number of years, we deem it appropriate to restrict such claim for arrears to

a period of three years next before the petition which is filed on 21.02.2019.

As far as the scale of salary is concerned, since the petitioner was appointed

as a lecturer, he would be entitled to receive the salary as has been held in

the matter of Dr. Dr. Suresh Baliram Gajbhare (supra) in the pay scale of

927.wp.3851.19.odt

Rs.8000-275-13500 which is the pay scale of a full time lecturer.

14. The petition is partly allowed. The prayer seeking direction to

the respondent to forward/process pay bills of the petitioner is dismissed.

15. However, the respondent Nos.6 and 7 shall pay to the petitioner

regular salary in the pay scale of Rs.8000-275-13500. All arrears for a

period of three years next before the filing of the petition i.e. from

21.02.2016 till date shall be paid within a period of 12 weeks from today.

16. The Rule is made absolute in above terms.

   (SANDEEP V. MARNE, J.)                                 (MANGESH S. PATIL, J.)




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