Meena Ramchandra Puranik v. Principal, Sir Parshurambhau College

1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

2. The Petitioner has put forth prayer clauses (a) to (d), as under:- “a) Rule be issued and record and proceedings be called for. b) To issue a writ of mandamus or any other writ, order of direction in the nature of writ, directing the Respondents to confirm the Petitioner to the post of Accountant with the Respondent No. 1-College. c) To issue a writ of mandamus or any other writ, order of direction in the nature of writ under Articles 226 and 227 of the Constitution of India for quashing and setting aside the order passed by Respondent No. 3 bearing No. एनजी सी /२००१/१७३५९/पुवि /मवि -२ dated Nil received on 19.04.2002 by the Petitioner at Annexure ‘V’ of the Petition. d) Pending the hearing and final disposal of the present Petition, the impugned order passed by Respondent No. 3 bearing No. एनजी सी /२००१/१७३५९/पुवि /मवि -२ dated Nil dated Nil received on 19.04.2002 by the Petitioner at Annexure ‘V’ of the Petition, may please be stayed.”

3. By an order dated 4th June, 2002, this Court protected the Petitioner against the recovery of an amount of Rs. 90,000/-. The said interim relief was continued after the Petition, which was dismissed for default, was restored. On 5th April, 2005, this Petition was admitted and the ad-interim relief granted, was continued.

4. The dates and sequence of the events in this matter can be summarized as under:a) The Petitioner joined as a Clerk with the University of Pune in July 1970 and continued till December 1976. b) The Petitioner joined Respondent No. 1 College affiliated to the University of Pune, as an Accounts Clerk on 7th January, 1977. c) The Petitioner was promoted as an Assistant Accountant vide Office Order dated 28th December, 1979 w.e.f. 1st June, 1979. d) From 16th December, 1979 till 15th February, 1980, the Petitioner was working as an Accountant in officiating capacity. e) From 1st April, 1980, the Petitioner claims to be working as an Accountant till the filing of this Petition. f) By the Government Resolution (GR) dated 22nd February, 1980, a Uniform Staffing Pattern in respect of the Non-teaching Staff in the Educational Institutions, was introduced. g) Only one post of Office Superintendent/Accountant was sanctioned. h) The effect of the GR dated 22nd February, 1980 was examined by the High Court in Writ Petition Nos. 5028 of 1988 to 5043 of 1988 and by order dated 8th November, 1989, it was held that until the statutes are framed, the GR can not come into effect. i) The order of this Court was confirmed by the Hon’ble Supreme Court vide order dated 20th January, 1992 in SLP NO. 18459 to 73 of 1991 and the said SLP was dismissed. j) The Standard Code Rules of 1984 were introduced on 6th March, 1985 under Section 77(A) of the Pune Universities Act,

1974. Clause 3 of the Standard Code makes the rules effective from 1st May, 1985. k) By a report dated 27th July, 1992, a Committee constituted by the authorities, submitted a report to the College Management stating that the Petitioner was selected to the post of Accountant on the basis of the report dated 7th April, 1980 of the Selection Committee. l) On 12th May, 1997, Respondent No. 4 informed Respondent No. 1 College that the salary of Petitioner for the post of Accountant, can not be sanctioned since the post is not created by the State Government. m) On 26th May, 1997, Respondent No. 1 College informed the Petitioner that it can not pay the salary of the Petitioner. n) Respondent No. 3, Director of Higher Education, State of Maharashtra issued a direction on 3rd May, 1999 mentioning that the post of Accountant is approved till the retirement of Petitioner and the salary of the Petitioner shall be paid through the Salary Grants extended by the State Government. o) Respondent No. 1 College confirmed the appointment of Petitioner on the post of Accountant on 7th June, 1999 after receiving a communication from Respondent No. 4, Joint Director of Education, that the post occupied by the Petitioner is sanctioned. p) On 1st July, 2000, Respondent No. 3, Director of Higher Education, State of Maharashtra noticed some irregularities and directed an inquiry into the allegations made by Respondent No. 6, Secretary, Pune Zilla-Pune University, Shikshaketar Sevak Sangh, which is a Union of the Non-teaching Employees. q) The Petitioner filed a Writ Petition No. 2356 of 2001 in April 2001 for challenging the order of Respondent No. 1 College dated 28th February, 2001. The said Writ Petition was allowed by the judgment dated 6th July, 2001 and the competent authority was directed to pass a fresh order. r) On 5th February, 2002, the Petitioner filed a detailed representation before Respondent No. 3 and a personal hearing was granted to her on 22nd February, 2002. By an order dated 19th April, 2002, Respondent No. 2 concluded that the Petitioner’s post was not sanctioned by the Government and, therefore, the salary amounting to Rs. 90,000/- (As in April 2002), was to be recovered from the Petitioner since the said amount was paid to her through the Salary Grants.

5. We have perused the Inquiry Report tendered by Respondent No. 3, Director of Higher Education, State of Maharashtra in pursuance to the order of the High Court. A personal hearing was given to the Petitioner on 11th January, 2002 and 22nd February, 2002. The following aspects are set out in the said report:i. The College Management appointed the Petitioner on the post of Accounts Clerk on 7th January, 1977. ii. The College Management, vide Item No. 310, passed a Resolution No. 505 in the meeting dated 2nd December 1979, and created 2 posts of Assistant Accountant, without the sanction of the State Government, from 1st iii. The Petitioner was appointed on one such post created by the College Management on 1st iv. By Circular No. 270 issued by the Pune University, the said creation of the posts was held to be illegal. v. By the GR dated 22nd February, 1980, the staffing pattern was made applicable to the Arts, Science and Commerce Colleges (Non-government) in the State of Maharashtra with reference to the Non-teaching Staff. vi. The post of Accountant occupied by the Petitioner in Respondent No. 1 College, was not sanctioned under the staffing pattern and it was declared as ‘Surplus’ after Smt. Nanal, who occupied the said post, preferred a reversion to the post of Accounts Clerk, on 31st March, 1980. vii. It was held that the Petitioner was occupying the post of Accountant, which was abolished on 31st March, 1980. viii. The post occupied by the Petitioner was not extended Salary Grants, as it had become surplus. ix. After Smt. Nanal preferred a reversion on 31st March, 1980 and her position became vacant, Respondent No. 1 College appointed the Petitioner w.e.f. 1st April, 1980, without advertising the post, without competition from the public at large and in the absence of conducting any selection process. x. The payment of salary made to the Petitioner in view of an erroneous approval granted earlier by Respondent No. 4 Joint Director of Education, Maharashtra State, Pune Region, was faulted in the said Inquiry Report. xi. The sanction to the post of Accountant was erroneously granted vide communication dated 3rd May 1999, after 19 years of service by the Petitioner. xii. No approval can be granted to a non-existing post in the light of the staffing pattern and the salary can not be paid to such a candidate from the Salary Grants generated by the State Government.

6. It is in the above circumstances, that the Petitioner approached this Court vide this Petition. This Court only protected the Petitioner against recovery and not against the cancellation of her approval concluding that the post was not sanctioned by the State Government. Such interim relief was granted by this Court on 4th June, 2002.

7. We have perused the Affidavit-in-Reply filed by the Secretary of the Pune Zilla-Pune University, Shikshaketar Sevak Sangh (Respondent No. 6 Union), wherein it is reiterated that the Petitioner could not have been paid salary from the Salary Grants and her appointment could not have been approved in the absence of creation of a post by the State Government, in the absence of any advertisement published by the College Management and in the absence of any selection process. It is also pointed out that the Petitioner was surreptitiously appointed by the College Management on 1st April, 1980 without any advertisement and without subjecting her to a selection process. Her appointment was illegal.

8. It is true that the said Union of Non-teaching Employees led to the constitution of the Inquiry Committee and under the orders of the High Court, a fresh order was directed to be passed by the competent authority. The said competent authority considered the report, to which we have adverted to herein above and concluded that the College Management had illegally appointed the Petitioner when the post was abolished on 31st March, 1980, by issuing the Appointment Order on 1st April, 1980.

9. We have perused the Affidavit-in-Reply filed by Respondent No. 4 Joint Director of Higher Education, Pune Region dated 20th February, 2002. It is stated that the College Management appointed the Petitioner as a Junior Clerk from 7th January, 1977. On 1st April, 1980, she was appointed as an Accountant after the said post became vacant on 31st March, 1980 (one day earlier) as the incumbent Accountant Smt. Nanal preferred a reversion. The said post was automatically declared surplus in the light of the staffing pattern effected vide GR dated 22nd February, 1980. The College Management could not have appointed the Petitioner on the said post on 1st April, 1980 without any selection process. Because it was noticed that an Officer from the Education Department erroneously granted approval to the appointment of the Petitioner, the said aspect was exposed by the Union leading to the Petitioner approaching this Court. Hence the inquiry was conducted, is the submission of the learned Additional Government Pleader.

10. The issue before us is restricted to the prayers put forth by the Petitioner, as are reproduced hereinabove.

11. It is a matter of record that the staffing pattern was introduced on 22nd February, 1980 and the post of Accountant occupied by Smt. Nanal, was declared to be abolished, effective after she vacated the post. Within 8 days of her appointment, Smt. Nanal chose to seek reversion and vacated the post forenoon of 31st March, 2002. Even if this aspect is ignored, the undisputed fact is that the Petitioner was quietly appointed by the Management, without advertising the said post. There was no selection committee constituted and no applications were invited from the public at large.

12. It is undisputed on the basis of the record that the said post was not to be filled in by promotion since it fell vacant due to the reversion voluntarily sought by Smt. Nanal. It is also a matter of record that the College Management did not issue any advertisement, did not call for applications from the public at large, there was no University Selection Committee constituted under the statutes and no selection process was conducted. Instantaneously on 1st April 1980, the Petitioner was appointed on the vacant post by the College Management. The said post was non-existent. We, therefore, do not find any fault in the impugned order refusing to grant approval to the appointment of the Petitioner.

13. It is well settled that the Salary Grants are generated from the tax payers’ money. Such Salary Grants are available to the posts, which are sanctioned by the State Government under the staffing pattern. Any post beyond the staffing pattern is neither the liability of the Government, nor its responsibility to pay salary from the State Exchequer to such a candidate occupying such post. Apparently, there has been some mischief vide which the Petitioner was initially granted approval and she started earning her salary through the State Government’s Salary Grants. The Union of Non-teaching Employees noticed the mischief and raised a dispute compelling the University to conduct an inquiry. This led to the finding on facts, which we have adverted to hereinabove. Since 2002, the Petitioner was without any approval and this Court did not protect her on this aspect of cancellation of approval.

14. It is also well settled that if a candidate is appointed by the Management of a College disregarding the staffing pattern and nonavailability of a sanctioned post and without conducting a valid selection process, the State Government does not have to pay the salary through the Salary Grants. If such a candidate is continued by the College Management, it would be the Management which would have to pay the salary to such candidate. Moreover, the Management created the said post without any sanction or approval from the State Government. Such a post then has to be funded from the Management’s coffers. Non grant of approval may not always be a reason for termination of an employee if the Management intends to continue such employee, in the light of the law laid down by the Full Bench of this Court in the case of St. Ulai High School and Another v/s. Devendraprasad Jagannath Singh and Another[1].