Dr. Shobha W/O Suraj Paliwal vs The Mahatma Gandhi Antarrashriya ...
2022 Latest Caselaw 790 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR.

                  WRIT PETITION NO. 1725 OF 2020

Dr. Shobha w/o Suraj Paliwal
Aged about 63 years, Occ.: Service,
R/o. Qtr. No. VA-3, Professor Residence
Adhneya Sankul, Mahatma Gandhi
Antarrashtriya Hindi Vishwavidyalaya
Compound, Gandhi Hills,
Wardha - 442201 (Maharashtra)
E-mail: [email protected]       .... PETITIONER

                             // VERSUS //

The Mahatma Gandhi Antarrashtriya
Hindi Vishwavidyalaya, Gandhi Hills,
Wardha - 442001, Through its Registrar,
E-mail: [email protected]                  .... RESPONDENT

Mr. Firdos T. Mirza, Advocate for Petitioner.
Mr. A.C. Dharmadhikari, Advocate for Respondent.
________________________________________________________________
s




              CORAM        : SUNIL B. SHUKRE, AND
                             ANIL L. PANSARE, JJ.

Date of reserved: 06.01.2022.

Date of Pronouncement: 20.01.2022

ORAL JUDGMENT: [PER: Anil L. Pansare, J.]

Heard Shri F. T. Mirza, learned counsel for the

Petitioner and Shri A. C. Dharmadhikari, learned counsel for the

Respondent.

WP 1725 OF 2020-J.doc

2. Rule. Rule made returnable forthwith. The matter is

heard finally by the consent of the learned counsel for the parties.

3. Fate of this petition rests upon the answer to the

question, "Whether the Petitioner was appointed by the Respondent,

in the cadre of teaching post or non-teaching post?".

4. It is the case of the Petitioner that since she was

appointed in the cadre of teaching post, her age of retirement would

be 65 years and not 62 years, as against which the Respondent

contends that the appointment of Petitioner was in the cadre of non-

teaching post and therefore, her age of retirement would be 62

years.

5. Petitioner further contends that; the University Grants

Commission has approved creation of various teaching and non-

teaching posts with the Respondent-University including the post of

Academic Co-Ordinator in the cadre of Reader. The said post

according to the Petitioner, is a teaching post.

6. The trigger point herein is the appointment order dated

27.05.2013. It would show that the Petitioner was offered the post WP 1725 OF 2020-J.doc

of Academic Co-Ordinator/Associate Professor in the school of

literature at Mahama Gandhi Antarrashtriya Vishwavidyalaya,

Wardha, subject to certain terms and conditions. One of the

important conditions was Condition No.5 which reads as under:

"She will be governed by the rules and regulations applicable to

the Academic Staff (non-vacational) of Mahatma Gandhi

Antarrashtriya Vishwavidyalaya, Wardha".

7. The appointment order was in the form of offer, as it

concludes with the condition that if the offer is acceptable to the

Petitioner on the terms and conditions mentioned in the order, she

should report herself on duty to the Deputy Registrar. Admittedly,

she has reported to the duty, meaning thereby that she has accepted

the offer which includes the offer with the terms and conditions,

one of which is Condition No.5 mentioned above.

8. It is an admitted position that the Petitioner was

appointed as Academic Co-Ordinator/ Associate Professor and that

the said post was non-vacational. Thus, according to the

Respondent, the Petitioner was well aware that her appointment is

made in the category of non-teaching post being a non-vacational

post, as against post of teachers being a vacational post.

WP 1725 OF 2020-J.doc

9. Thus, the basic document i.e., appointment order dated

27.05.2013 indicates that the Petitioner was appointed in the

category of non-teaching post. Learned counsel for the Petitioner

could not satisfactorily counter the aforesaid inductive inference on

the basis of the said condition that Petitioner was appointed in non-

teaching post.

10. Another reason why Petitioner's claim of being

appointed at the teaching post could not be accepted is because the

Petitioner has not averred anywhere in the petition that she was

discharging duty assigned to teaching post. There is nothing on

record to show that she has taught any subject in her tenure. She

has not annexed any document in support of her claim that she was

appointed to the teaching post. However, the Respondent has filed

purshis along with two documents. The first document is order

dated 21.06.2013 informing Petitioner of her nature of duties. The

duties so assigned do not include any duty of teaching post but are

the duties of non-teaching post. The second document is extract of

the meeting of Executive Council held on 31.07.2013, which

indicates approval of nature of duties of the Petitioner. The said WP 1725 OF 2020-J.doc

duties, as said earlier belongs to non-teaching post. The Petitioner

has not filed any affidavit denying aforesaid documents.

11. Further, the Petitioner has not filed any

affidavit/rejoinder to the reply filed by the Respondent. In the

affidavit/rejoinder, Respondent has asserted that the Petitioner has

neither pleaded anywhere about her nature of job nor has annexed

any list of duties assigned to the petitioner to show that she was

appointed to the teaching post. Respondent further asserted that

petitioner's appointment was governed by the rules and regulations

applicable to Academic Staff (non-vacational) and that the use of

word 'non-vacational' in the appointment order of Petitioner is

applicable only to non-teaching post, as the teaching post is always

entitled to vacations. The Petitioner further also failed to counter

the assertion of Respondent that the Petitioner has never been

appointed at any job which pertains to teaching.

12. The above status would clearly show that Petitioner was

appointed on the non-teaching post and hence her age of retirement

would be 62 years. As such, the issue would not have cropped up if

the Respondent had been diligent in taking timely action. The WP 1725 OF 2020-J.doc

Petitioner was due to retire on 31.07.2018, on superannuation.

However, neither Petitioner nor Respondent took any action to

process her file for retirement on or prior to 31.07.2018. Usually,

the process of documentation commences six months prior to

retirement. Resultantly, the Petitioner continued her services beyond

the period of 31.10.2018.

13. It is only on 05.03.2020, the Respondent realized that it

has committed a mistake and therefore, issued a letter bearing No.

006/ACD/103/11-Vol.II/248 of the even date i.e., 05.03.2020

mentioning therein that the Petitioner stood retired on 31.10.2018

at the age of 62 years on superannuation. Yet another letter bearing

No. 006/ACD/103/11-Vol.II/249 was issued on the same date i.e.,

05.03.2020 by the Respondent, calling upon the Petitioner to

deposit the amount received by her after 01.11.2018. The Petitioner

has challenged these two communications so also the

communication of even date i.e., 05.03.2020 bearing No. 006/ACD/

103/11-Vol.II/251 wherein the Respondent has informed Petitioner

that her seniority cannot be included in the list of teachers as her

appointment was on the post of academic post (non-vacational).

The said challenge has been made by the petitioner presuming that WP 1725 OF 2020-J.doc

the Petitioner was appointed on the teaching post. In our view such

presumption in the facts and circumstances of the case, was not

available to the Petitioner particularly when the appointment order

dated 27.05.2013 was with a specific condition that her services will

be governed by rules and regulations applicable to Academic staff

(non-vacational). The Petitioner ought to have sought declaration of

her appointment on the teaching post.

14. The Petitioner, it seems, is seeking continuation of the

said mistake by contending that her service was continued beyond

the period of 31.08.2018 because she was appointed on teaching

post and therefore her retirement age was 65 years. We are not able

to accept such plea. Mistakes cannot be directed to be continued. If

it is the case of the petitioner that it was not a mistake, the

petitioner must build her case on her own footing, which she has

not. So, what remains is a mistake committed by Respondent, for

which the Petitioner can also be blamed for not seeking clarification

at appropriate time.

15. Mr. Mirza, learned counsel for the Petitioner has relied

upon certain documents to argue that the Petitioner was appointed WP 1725 OF 2020-J.doc

on the teaching post. It includes the old notice calling upon

candidate to fill-up teaching and non-teaching post. The post of

Academic Co-Ordinator/Reader was advertised under the head of

teaching post. However, this advertisement was published in the

year 2010. The Petitioner has not been appointed pursuant to this

advertisement. The Petitioner has been appointed in the year 2013

as Academic Co-Ordinator/Associate Professor with a categorical

condition that her services will be governed by the rules and

regulations applicable to Academic Staff (non-vacational).

Therefore, the previous advertisement in which the post of

Academic Co-Ordinator/Reader had been shown under the head of

teaching post will not be of any help to the Petitioner. Similarly, the

name of Petitioner having been shown in the combined provisional

seniority list of Associate Professors/Regional Director/Academic

Co-Ordinator cannot be said to be a document describing the post of

the Petitioner in the cadre of teaching post. Mr. Mirza, learned

counsel further contends that the Petitioner was nominated as

member of Vidya Parishad for two years. In our view, such

nomination is not conclusive evidence of the status of Petitioner on

the teaching post.

WP 1725 OF 2020-J.doc

16. Thus, what emerges is that the Petitioner was

appointed as Academic Co-Ordinator/Associate Professor on the

condition that her service will be governed by the rules and

regulations applicable to Academic Staff (non-vacational). The

fundamental document, therefore, is against the Petitioner. Further,

the failure of Petitioner to plead or file any document showing that

she has discharged her duty as teacher or such other duties that are

performed by being at the teaching post would show that the

Petitioner was aware that she was appointed on non-teaching post.

Such status is further substantiated by the fact that the duty list for

the post of Academic Co-Ordinator/Associate Professor filed by

Respondent along with purshis would show that none of the duties

assigned to Petitioner was belonging to teaching post. In such

circumstances, merely because her service was continued after the

age of superannuation would not convert her appointment from

non-teaching post to teaching post. The mistake committed by the

Respondent cannot be taken advantage of to make out a case which

otherwise is known to the Petitioner to be flawed.

17. What best could be done in the circumstances is that

the payment made to the Petitioner after the age of superannuation, WP 1725 OF 2020-J.doc

which the Respondent has directed her to deposit with the

respondent, can be protected by setting aside the communication

dated 05.03.2020 bearing No.006/ACD/103/11-Vol.II/249

(Annexure K). However, the impugned order dated 05.03.2020

bearing No.006/ACD/103/11-Vol.II/248 (Annexure J) and the

communication dated 05.03.2020 bearing No.006/ACD/103/11-

Vol.II/251 (Annexure N) cannot be set aside.

In view of the above, Rule is made absolute in the

following terms.

(i) The petition is partly allowed. The communication of the

respondent dated 05.03.2020 bearing No. 006/ACD/103/11-

Vol.II/249 (Annexure K) seeking from the petitioner to

deposit payment received after superannuation, is set aside.

(ii) Pending civil applications, if any, stand disposed of, as do not

survive

(iii) Parties to bear their own costs.

                                        (ANIL L. PANSARE, J)                (SUNIL B. SHUKRE, J)


                  Prity/KHUNTE
Signed By:GHANSHYAM S
KHUNTE


Signing Date:20.01.2022 15:48