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2014 DIGILAW 503 (BOM)

Minakshi Prakash Akhare v. State of Maharashtra, through its Secretary, Higher and Technical Education

2014-02-25

B.P.DHARMADHIKARI, Z.A.HAQ

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Judgment B.P. Dharmadhikari, J. 1. Heard Advocate Shri Shrivastava for the petitioner and Shri Fulzele learned Assistant Government Pleader for the respondents. Looking to the nature of controversy, matter is heard finally by issuing rule and making it returnable forthwith. 2. After matter was heard for some time, learned AGP wanted an adjournment to enable him to secure further instructions in the matter. However, we have rejected that request. 3. The petitioner joined on 15/10/1984 as a Typist. On 11/9/1989 she voluntarily opted for the post of Junior Clerk. The pay scale of Typist then was Rs.975 – 1660 while that of Junior Clerk Rs.950 – 1500. Accordingly, she became Junior Clerk and thereafter has been promoted further as Senior Clerk on 12/9/1996. 4. In the meanwhile, on 26/11/1990 the State Government issued a Government Resolution and created a common cadre of Typist, Clerks and Junior Clerks in the pay scale of Rs.950 – 1500. Typists were given liberty to exercise option and failure to exercise the option also resulted in their absorption in joint cadre from 1/1/1986. The combined seniority list was thereafter published for the first time in 2008. The petitioner objected to that combined seniority list and made representation. She sought her seniority from the date on which she joined as Typist i.e. from 15/10/1984. The said representation has been rejected on 24th January, 2012. Thereafter she approached the Maharashtra Administrative Tribunal in Original Application No.714/2012 and vide order dated 19th August, 2013 that original application has been rejected. That adjudication is questioned in the present writ petition. 5. Advocate Shrivastava submits that the prejudice experienced by the petitioner in 1989 forced her to shift from the cadre of Typist to cadre of Junior Clerk which was initially to her detriment as ultimately she had avenue of further promotions from the said post of Junior Clerk. He submits that the Government realizing the plight of the Typists came up with a new policy. Had that policy been in existence on 9/10/1989, the petitioner would not have been required to opt for the post of Junior Clerk. He contends that thus injustice sought to be remedied by the State Government in case of Typists is perpetrated in the case of the petitioner by rejecting her representation on 24th January, 2012. He contends that there is no question of prospective or retrospective application of the Government Resolution dated 26/11/1990. He contends that thus injustice sought to be remedied by the State Government in case of Typists is perpetrated in the case of the petitioner by rejecting her representation on 24th January, 2012. He contends that there is no question of prospective or retrospective application of the Government Resolution dated 26/11/1990. In this situation, the Maharashtra Administrative Tribunal has failed to consider the aim and object, with which the said policy decision has been taken. 6. Learned AGP submits that policy decision dated 26/11/1990 was not in question before the Maharashtra Administrative Tribunal and therefore, Government has no option but to implement it as per its letter and spirit. He points out that petitioner already had severed her link with the cadre of typist after 4/10/1989 and as such, she could not have relied upon the Government Resolution in an effort to obtain benefits of her earlier service from 15/10/1984. He also points out that a joint cadre has been created w.e.f. 1/1/1986. Lastly without prejudice to these arguments and in alternative, he contends that if the petitioner wanted any benefits of said Government Resolution, she should have made representation within a reasonable period from 21/6/1990 and filing of the representation in 2008 or approaching the Maharashtra Administrative Tribunal in 2012 cannot therefore, be viewed as within limitation. He, therefore, prays for dismissal of the writ petition. 7. After hearing respective counsel, we find that only to do away the injustice suffered by the Typists prior to 26/11/1990, the State Government has constituted a joint cadre. The joint cadre has been brought into existence from 1/1/1986. It is, therefore, obvious that had the petitioner not voluntarily sought appointment as Junior Clerk on 9/10/1989, she could have been benefited and as per said Government Resolution, she could have been treated as a person born on the said common cadre on 1/1/1986 and not prior to that date. Hence, her demand of seniority from 1/1/1984 cannot be granted. However, overall objective of the State Government in issuing Government Resolution dated 26/11/1990 cannot be overlooked. Hence, her demand of seniority from 1/1/1984 cannot be granted. However, overall objective of the State Government in issuing Government Resolution dated 26/11/1990 cannot be overlooked. The mischief sought to be redressed by State had prompted the petitioner to shift from the cadre of Typist to the cadre of Junior Clerk and she did so to her detriment because as a Typist she was in a better pay scale and after shifting to the post of Junior Clerk, she received salary in a lower pay scale. She accepted the lower pay scale because of promotional prospects enjoined by the post of Junior Clerk. Thus, mischief which the petitioner thought would remain unredressed, has been ultimately redressed by the State Government after about 13 months of her becoming Junior Clerk. 8. If this object of the State Government behind issuing Government Resolution dated 26/11/1990 is kept in mind, we find that the act of the petitioner in shifting to the cadre of Junior Clerk cannot be used to deny her benefits of said Government Resolution dated 26/11/1990. Decision to shift was due to desire to better her position in service and life and also on account of lack of promotional avenue as a Typist. Her junior colleagues who continued as Typists only, cannot become senior to her. The Maharashtra Administrative Tribunal has overlooked this aspect. 9. Only question before this Court is whether the petitioner has approached the Maharashtra Administrative Tribunal within a reasonable period or not. The contention that seniority list was published for the first time in 2008 has remained unrebutted. Shri Shrivastava also points out that the Maharashtra Administrative Tribunal had condoned the delay in filing the original application and that order has attained finality. In this situation, we find that ends of justice can be met with by properly moulding the reliefs. 10. Accordingly, we direct the respondents to treat the petitioner as Junior Clerk from 1/1/1986 in accordance with Government Resolution dated 26/11/1990. However, on said count no amount shall become payable to her. Her entitlement to present salary shall be arrived at by releasing the increments notionally for the entire period and salary payable to her from 1st April, 2014 shall be accordingly stepped up. Thus, by adding suitable increments, the correct salary shall be fixed as on 1st April, 2014 and the petitioner shall get said salary from 1st April, 2014. Her entitlement to present salary shall be arrived at by releasing the increments notionally for the entire period and salary payable to her from 1st April, 2014 shall be accordingly stepped up. Thus, by adding suitable increments, the correct salary shall be fixed as on 1st April, 2014 and the petitioner shall get said salary from 1st April, 2014. For the period prior to 1st April, 2014 she should not get any arrears but her seniority in the cadre of Junior Clerk shall be computed from 1/1/1986. It is also made clear that grant of such seniority shall not have effect of disturbing the promotions already made to the prejudice of the incumbents holding the promotional posts. 11. Rule made absolute in above terms. Writ petition is thus partly allowed and disposed of. No costs.