Nitin Rajesh Makwana vs S.N.D.T.Women And University And ...
2023 Latest Caselaw 3941 Bom

2023:BHC-OS:3171-DB                            Nitin Rajesh Makwana v SNDT Women's University
                                                                                        & Ors.
                                                                        2-oswp-1156-2021-J.doc




                 Gaikwad RD




                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION
                                    WRIT PETITION NO. 1156 OF 2021


                 Nitin Rajesh Makwana,
                 c/o SNDT Women's University, Non-
                 Teaching Employees Union, 1, Nathibai
                 Thakersey Road, New Marine Lines,
                 Churchgate, Mumbai-20                                     ...Petitioner

                         ~ versus ~

                 1.    SNDT Women's University,
                       through its Registrar, 1, Nathibai
                       Thackersey Road, Mumbai,
                       Maharashtra 400020.
                 2.    Joint Director of Higher
                       Education,
                       Elphinstone Technical School, Dhobi
                       Talao, Mumbai.
                 3.    Director,
                       Higher Education, Central Building,
                       Pune - 411001.
                 4.    State of Maharashtra,
                       Through its Department of Higher
                       Education, Mantralaya Annexe,
                       Mumbai 400 032                                  ...Respondents


                 A PPEARANCES
                 For the Petitioner                  Mr Chetan Mali.



                                                   Page 1 of 9
                                                 20th April 2023


                ::: Uploaded on - 20/04/2023                       ::: Downloaded on - 22/04/2023 09:44:41 :::
                                Nitin Rajesh Makwana v SNDT Women's University
                                                                        & Ors.
                                                        2-oswp-1156-2021-J.doc




 For Respondent No.1 Ms Disha Vardhan, with Sanjivani
                          Jadhav.
 For Respondent-                     Mrs Uma Palsuledesai, AGP.
 STATE



                               CORAM : G.S.Patel &
                                       Neela Gokhale, JJ.

RESERVED ON : 11th April 2023 PRONOUNCED ON : 20th April 2023 ORAL JUDGMENT (Per Neela Gokhale J):-

1. Rule. The Respondents have filed Affidavits in Reply. The Petitioner has filed the Rejoinder Affidavit. By consent, Rule made returnable forthwith.

2. The Petitioner is seeking approval of his appointment as Peon-Cum-Hamal with effect from the date of his appointment being 3rd August 2009. He is challenging the order dated 3rd November 2018 passed by the 3rd Respondent granting permission to his appointment with effect from 3rd November 2018 instead of the date of his actual appointment in 2009.

3. The Petitioner is an employee of the 1st Respondent University. He is working on the post of Peon-Cum-Hamal on a permanent basis. The 1st Respondent is the SNDT Women's University. The Respondents No.2 and 3 are the Joint Director and Director respectively of the Higher Education Department of the 4th Respondent State.

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

4. The Petitioner's father was an employee of the 1st Respondent University. After his demise, the Petitioner was granted compassionate appointment on the post of Peon-Cum-Hamal on 3rd August 2009, on a probation period of two years. The Petitioner was fully qualified and eligible for the appointment. His salary has been released right from the date of his appointment and entries in his Service Book were also annually approved by the 2nd Respondent since 2009.

5. It is the contention of the Petitioner that the Respondents No. 2 and 3 approved fixations of his pay as per the recommendation of 6th Pay Commission from the date of his appointment. The State education department disbursed his salary as per related scale till July 2017 with all increments. However, the Respondents stopped disbursing his salary from August 2017, after which the 1st Respondent started paying him a fixed salary of around Rs.8,000/- to Rs.9,000/- per month. He was informed that the Respondents No.2 to 4 had not decided the proposal sent by the 1st Respondent for approval and it was for this reason that his salary was stopped.

6. Mr Mali, learned Counsel for the Petitioner contends that the proposal for approval was sent to the 1st Respondent as early as in the year 2009 but the Education Department failed to take any decision. Neither was the proposal rejected. Even after successive reminders, the Department neither replied to the communication of the University nor took any decision on the proposal.

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

7. Mr Mali further contends that the SNDT Women's University Non-Teaching Employees' Union & Ors approached this Court by way of Writ Petition (L) No. 646 of 2018 with the same grievance as that of the Petitioner. By order dated 20th April 2018 the Division Bench of this Court recorded the submissions of Mr Kedar Dighe, the learned AGP that the University was required to resubmit the proposal in view of Government Resolution ('GR') dated 21st September 2017. This Court therefore directed the University to resubmit the proposal as per the new GR and directed the competent authority of the State Government to consider the proposal within four weeks from the date of receipt of the same.

8. Pursuant to the order dated 20th April 2018 passed by this Court, the 1st Respondent University sent a fresh proposal to the Education Department for approval. By order dated 3rd November 2018 the 3rd Respondent granted approval to the appointment of the Petitioner albeit, with effect from 3rd November 2018 instead of 3rd August 2009, which was the date of his initial appointment in the University. It is this order which is assailed in the present Writ Petition.

9. Ms Palsuledesai, learned AGP appears for the State Education Department. She resists the Petition by contending that firstly, the Petitioner has concealed that he was part of the SNDT Women's University Non-Teaching Employees' Union petition filed earlier before the Division Bench of this Court; secondly, the University failed to send the proposal in proper format; thirdly, the proposal was sent only in the year 2016; fourthly, the Petitioner's

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

appointment was without prior sanction of the Education Department; fifthly, the entry in the Service Book of the Petitioner was made by the Department inadvertently and ought to be cancelled and lastly the State Government in the General Administration Department had issued GR dated 21st September 2017 compiling all earlier GRs/Circulars on compassionate ground appointments and all compassionate appointment are to be in aid of the 2017 GR.

10. Ms Disha Vardhan, learned Counsel appears for the 1st Respondent University and supports the claim of the Petitioner. She has in fact placed on record a plethora of correspondence between the Respondents inter-se corroborating her submissions that the University had repeatedly sought approval for the Petitioner's appointment and the Education Department had neglected to take any decision on the same. She also supports the Petitioner's prayer for granting approval for his appointment with effect from 3rd August 2009.

11. After perusal of the documents on record and considering the submissions canvassed by the parties, it is quite evident that the Petitioner was in service of the University since 2009 and was being paid salary regularly. There is no complaint regarding his work. The annual entries in the Service Book also indicate approval of his appointment by the Education Department. Letter dated 3rd November 2009 at Exhibit 'F' clearly shows that the University was prompt in seeking approval of the Petitioner's appointment. A reminder dated 6th August 2013 at Exhibit 'G' augments the

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

statement of the University that various reminders were sent to the Education Department for approval. Aggrieved by the failure of the Education Department to grant approvals to the appointments, the SNDT Women's Non-Teaching Employees' Union collectively approached this Court by filing a Writ Petition. It was only after this Court passed an order dated 20th April 2018 that the Education Department broke its slumber and asked the University to re-submit the proposals as per the new format in pursuance of the GR dated 21st September 2017. The University has resubmitted the proposals.

12. The conditions of the GR cannot be applied retrospectively to the appointments already made prior to the issuance of the GR. It is a cardinal principle of construction of statute that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. It is also settled law that unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, the statute is deemed to be prospective. As a logical corollary of the general rule, retrospective operation is not taken to be intended unless that intention was manifested by express words or necessary implication. There is nothing in the GR to indicate any such retrospective application. The University was only required to re-submit the proposals in the new format as per the GR, which has been so done. The substantive effect of the original proposals is not rendered redundant by the ministerial act of re-submission of the proposals in the new format.

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

13. It is nobody's case that the Petitioner was not working in the University since 3rd August 2009. It is on account of the failure and neglect by the authorities concerned in the Education Department that the proposals sent by the University were kept pending without any action. Admittedly, there is no objection even now, from the Education Department in respect of the appointment of the Petitioner, since the approval has now been accorded.

14. It is pertinent to note that the Department has now resorted to denying its own approval in the service book annual entries of the Petitioner by terming them as an 'inadvertent error.' The explanation has been advanced only as a rebuttal to the Petitioner's contention and has never before been conveyed to the University nor any attempt was made to cancel the entries. This merely shows the willingness of the Department to go to any length to cover up its mistakes and deny the Petitioner his entitlements. This is completely unacceptable and the Department cannot be permitted to take advantage of its own wrong.

15. The decision of the Department to treat the Petitioner's appointment from 3rd November 2018 once again on a probation period is completely untenable and cannot be sustained. The Petitioner has already completed his probation period satisfactorily on 2nd August 2011 itself and cannot be compelled to undergo the same again. He cannot be compelled to suffer loss in service and salary merely because the Department took its own time in considering the proposal for approval of his appointment and there is no justification for the same.

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

16. It is also an admitted fact that the University receives grants from the State Government out of which salary is paid to the employees. The University is required to furnish a monthly statement to the State Government pertaining to the allocation and utilisation of the grant amounts. The salary of the Petitioner has always been paid from the said grant and the State Government was very much aware of the same. The Department has never taken any objection to the salary of the Petitioner being paid out of the said grant. It is thus, totally unjustifiable for the Department to arbitrarily cease the payment of salary to the Petitioner from 2017. Admittedly no notice was given to the Petitioner prior to stoppage of his salary. There was no opportunity of hearing afforded to the Petitioner. This is against all principles of natural justice.

17. In view of the foregoing, the decision of the Department to grant approval to the Petitioner's appointment with effect from 3rd November 2018 instead of 3rd August 2009 is arbitrary and cannot be sustained in law. Thus, the impugned letter dated 3rd November 2018 issued by the 3rd Respondent and letter dated 18th November 2018 issued by the University, pursuant to the decision of the 3rd Respondent is quashed and set aside. The Respondents No. 2 and 3 are directed to release the salary of the Petitioner withheld from August 2017 within a period of two weeks from the date of this order. The Respondents are further directed to continue to pay his salary as per the related pay scale.

20th April 2023

Nitin Rajesh Makwana v SNDT Women's University & Ors.

2-oswp-1156-2021-J.doc

18. Rule is made absolute in terms of prayer clauses (a) and (b). The Writ Petition is allowed. There will be no order as to costs.

 (Neela Gokhale, J)                                          (G. S. Patel, J)





                                 20th April 2023