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2018 DIGILAW 944 (BOM)

Sanjay Madhaorao Mahajan v. State of Maharashtra

2018-04-04

R.K.DESHPANDE

body2018
JUDGMENT : 1. The challenge in this petition is to the order dated 19.08.2002 passed by the Grievance Committee of Amravati University in Grievance No. 7 of 2001, which is accepted by the Amravati University by issuing communication dated 17.09.2002 to the petitioner rejecting his claim to count his service as Lecturer with effect from 02.07.1988 and consequently for placement in the scale of Rs.3700-5700 with effect from 02.07.2004. 2. The insistence of the petitioner before the Grievance Committee was for counting his seniority as a Lecturer in the College with effect from 02.07.1988, so that he gets fixed in the scale of Rs.3000-5000/- with effect from 02.07.1996, upon completion of 8 years continuous service and consequently fixation in the scale of Rs.3700-5700/- upon completion of 16 years continuous service with effect from 02.07.2004. The claim was on the basis of clauses (12) and (13) of the Government Resolution dated 27.02.1989, which was accepted as a Statute No. 1 of 1989 by the Amravati University. 3. The College opposed the claim on the ground that the appointment of the petitioner prior to 29.08.1992 was purely on temporary basis, without following procedure for making regular appointment and since the petitioner was appointed for the first time on probation by an order dated 29.08.1992 for a period of two years, his service was required to be counted from 29.08.1992. The stand of the University is that the College never forwarded any proposal of appointment of the petitioner prior to 29.08.1992 and upon receipt of proposal, the approval was granted on 18.09.1996 from the academic Session 1992-93 onwards. Hence, according to the University, the service of the petitioner could be counted only from 29.08.1992. 4. The entitlement of the petitioner to count his continuous service of 8 years for placement in the senior scale of Rs.3000-5000/ is required to be determined in terms of clause (12) of Statute No.1 of 1989. Sub-clause (a) of Clause (12) of the said Statute requires counting of 8 years service after regular appointment for placement in the senior scale of Rs.3000-5000/-. Clause (13) under the said Statute requires counting of 8 years service in the senior scale for the purposes of fixation of scale of lecturer in the selection grade of Rs.3700-5700/-. Thus, for placement in the selection grade of Rs.3700-500/-, the total service of a lecturer should not be less than 16 years. Clause (13) under the said Statute requires counting of 8 years service in the senior scale for the purposes of fixation of scale of lecturer in the selection grade of Rs.3700-5700/-. Thus, for placement in the selection grade of Rs.3700-500/-, the total service of a lecturer should not be less than 16 years. The respondents are counting 16 years' service of the petitioner for the purposes of his placement in the scale of Rs.3700-5700/- with effect from 29.08.1992, whereas the petitioner wanted his service to be counted from 02.07.1988. The question is, whether the regular appointment of the petitioner in terms of clause 12(a) of the said Statute is required to be considered from 02.07.1988 or 29.08.1992?. 5. In terms of Appendix-I of Statute 8 of 1979, the regular appointment of lecturers in the Colleges affiliated to the University are required to be made by a duly constituted Selection Committee comprising of the Expert nominated by the Vice Chancellor and one nominee of the Director of Education. It is not in dispute that the appointment of the petitioner on 02.07.1988 was by a Staff Selection Committee constituted, consisting of nominee of the Vice Chancellor, the Expert and the Government nominee. The petitioner was already working in the College run by the respondent and therefore, the order of appointment dated 02.07.1988 in the scale of Rs.700-1600/- states that the appointment is on continuous basis and further the petitioner was communicated on 17.01.1989 by the College that his pay as a lecturer in Civil Engineering Polytechnic College run by the management is protected. 6. It does not lie in the mouth of the respondents to urge that – (1) the appointment of the petitioner on 02.07.1988 was temporary or adhoc; (2) it was not in clear and permanent vacancy; (3) it was against the post reserved for Scheduled Caste category; (4) it was not on probation for a period of two years after regular selection by the competent Selection Committee as per Statute and (5) that the petitioner did not acquire confirmation in service on 03.07.1990 when he completed two years continuous service on probation. All these arguments are rejected by the College Tribunal in Appeal No. A10 of 1992 filed by the petitioner challenging his termination on 29.08.1992 and decided on 11.06.1992, holding that the appointment of the petitioner on 02.07.1988 was regular appointment. All these arguments are rejected by the College Tribunal in Appeal No. A10 of 1992 filed by the petitioner challenging his termination on 29.08.1992 and decided on 11.06.1992, holding that the appointment of the petitioner on 02.07.1988 was regular appointment. This decision is binding upon the respondents and it attained the finality. 7. The University will grant its approval to such appointment only upon the proposal for regular appointment is forwarded by the College. In the present case, the College did not forward the proposal of regular appointment of the petitioner on 02.07.1988, but subsequently issued another order of appointment on probation for a period of two years on 29.08.1992, which was forwarded to the University for approval and the University granted its approval to it on 16.03.1996 from the academic year 1992-93 onwards. Failure on the part of management to send the proposal for approval to the appointment by the University, will not arrest the deemed confirmation, if otherwise appointment is in accordance with law. 8. The fact that the service of the petitioner is required to be counted from 02.07.1988 for fixation in the senior scale of Rs.3000-5000/- in terms of clause (12) of Statute1 of 1989 is recognized and accepted by all the respondents, as the petitioner is getting the benefit of senior scale of Rs.3000-5000 from 02.07.1996 on which date he completed 8 years of his continuous service from 02.07.1988. Once the service of the petitioner is counted from 02.07.1988 for the purposes of fixation of senior scale, there could not have been different date for counting the continuous service of the petitioner for a period of 16 years for the purposes of his placement in the scale of Rs.3700-5700 with effect from 02.07.2004. In fact, eight years service for such placement will have to be counted from the date of completion of eight years service in the scale of Rs.3000-5000/-. 9. The stand of the University is very clear that the management did not forward the proposal for approval to the appointment of the petitioner prior to 29.08.1992, though the petitioner was selected by the Selection Committee and appointed on 02.07.1988. The mischief appears to be at the College level to create artificial selection in the year 1992 and show the appointment of the petitioner on probation for a period of 2 years by an order dated 19.08.1992. The mischief appears to be at the College level to create artificial selection in the year 1992 and show the appointment of the petitioner on probation for a period of 2 years by an order dated 19.08.1992. The management failed to disclose the fact of appointment of the petitioner on previous dates i.e. 01.01.1987 and 02.07.1988 before the Grievance Committee and hence, the Grievance Committee proceeded to consider the appointment of the petitioner from 29.08.1992, which was approved on 18.03.1996. 10. In view of above, the order passed by the Grievance Committee and accepted by the University cannot be sustained. It will have to be quashed and set aside and the petitioner will have to be directed to be placed in the scale of Rs.3700-5700/- with effect from 02.07.2004. 11. In the result, this writ petition is allowed as under - (a) The order dated 19.08.2002 passed by the Grievance Committee and confirmed by the University on 17.09.2002 is hereby quashed and set aside. (b) The petitioner shall be entitled to placement in the scale of Rs.3700-5700/- with effect from 02.07.2004 by counting his continuous service with effect from 02.07.1988. (c) The petitioner shall be entitled to arrears arising out of difference in the pay scale and also for consequential benefits. (d) The respondent Nos. 2 and 3 to carry out the entire exercise of working out the arrears of the petitioner within a period of three months from today and the petitioner be paid all the arrears within a period of one month thereafter by the respondent Nos. 2 and 3. (e) The respondent No.4 – Joint Director and respondent No. 5 – Amravati University shall grant approval to such placement of the petitioner, if any required. (f) If the payment is not made within the stipulated period, it shall carry interest at the rate of 15% per annum from the date of such calculations till its realization. Rule is made absolute in above terms. No order as to costs.