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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4198 OF 2019
Dr. Shobha Bhargava.
Age-59 years, Having address at Shirine Garden, G-Block, Flat No. 36, ITI Road, Aundh, Pune- 411007. … Petitioner.
Through its Principal Secretary, Higher & Technical Education
Department, Mantralaya Annex,
3. The Joint Director of Higher Education, 17, Dr. Ambedkar Road, Near St. Mathew Marathi Church, Camp, Pune – 411 001.
4. Savitribai Phule Pune University, Pune,Ganeshkhind, Pune, Maharashtra 411007. … Respondents.
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Mr. Mihir Desai, Senior Advocate i/b. Ms. Devyani Kulkarni, for the
Petitioner.
Mr. Vikas M. Mali, AGP for Respondent Nos. 1 to 3/State.
Mr. Rajendra Anbhule a/w. Ms. Pooja Pall, Ms. Nisha Ahire, for
Respondent No. 4.
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TALWALKAR
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The Petitioner has put forth prayer clauses (a), (b), (d) & (e) (iii), (iv), (v), which read as under: a. For a Writ of Certiorari or a writ, order or direction in the nature of Certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned letter/decision dated 25.06.2018 which has been marked and annexed hereto as Exhibit L. b. For a Writ of Certiorari or a writ, order or direction in the nature of Certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned letter/decision dated 05.01.2016 which has been marked and annexed hereto as Exhibit Q. d. For a writ of Mandamus of a writ, order or direction in the nature of Mandamus or any other appropriate writ, order of direction directing the Respondents to grant the Petitioner the benefits of pension and all other subsequent benefits considering the service of the Petitioner as commencing from 22.06.2000. e. For a Writ of Mandamus or a writ, order or direction in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondents to-
(iii) grant the senior scale to the Petitioner and thereby re-fix the salary of the Petitioner, pay the arrears of the salary to the Petitioner and all other subsequent benefits. iv. re-fix the pension of the Petitioner calculating her service as commencing from 22.06.2000 and considering the placement of the Petitioner in the senior scale under CAS. v. apply the old pension scheme to the Petitioner. All other prayers are not pressed by the Petitioner.
3. The dates and consequences of events in this matter can be summarised as under: (a) The Petitioner possesses the qualification of M. Sc. and has been conferred with the Ph. D. (b) On 15.10.1997, she was appointed as a Pool Officer(equivalent to Senior Research Officer equivalent to lecturer) with the University.
(c) On 22.6.2000, she was appointed as a Lecturer in Zoology against a reserved category through the prescribed procedure.
(d) After completing one year on 22.6.2001, the Petitioner was given a gap/break in service and was again appointed on the same post on 19.7.2001 till 19.7.2002. (e) Again a break in service was introduced and she was appointed on 25.9.2002, for a period of one year on the same post. (f) On 3.12.2003, she was appointed on contractual basis as per the UGC plan till 31.3.2007 and was paid salary from the UGC funds. (g) She was continued on the same basis till 4.12.2008, vide order dated 15.6.2006. (h) She was appointed on probation as a Lecturer after being selected by the Competent Selection Committee.
(i) She was informed by communication dated 17.4.2009, by the
University of Pune, stating therein that the proposal for condonation of breaks has been forwarded by the State Government. (j) The In-charge Registrar of the University addressed a communication dated 20.4.2011, to the Director and Deputy Director of Higher Education, State of Maharashtra, seeking condonation of breaks in service. (k) By a communication dated 3.4.2013, the State Government condoned the breaks in service and the Petitioner was deemed to be in regular employment from 2000 onwards. On 3.12.2003, she was appointed on a UGC post with the University under the 10th plan of the UGC, for 5 years. She superannuated from employment on 31.1.2019.
(l) On 25.6.2018, after 5 years, the Director of Higher Education,
State of Maharashtra, concluded that the employment of the Petitioner for the academic years from 2000-2001 till 2002-2003 was for 365 days and was not more than one year, meaning that her engagement was not for 366 days or more. Hence, by the impugned order dated 25.6.2018, he unilaterally cancelled the earlier order of condonation of breaks dated 3.4.2013, without issuing notice of hearing to the Petitioner, much less, granting an opportunity of hearing to her.
4. The learned Advocate representing the University submits that during the appointment of the Petitioner in between 2000-2001 upto 2002-2003, she was engaged for imparting education for the concerned 3 academic years. Considering breaks in service, the University requested the Department of Higher Education to condone the breaks which request was accepted by the order dated 3.4.2013. He further submits that the State Government did not call upon the University to grant an opportunity of hearing to the Petitioner before cancelling the order dated 3.4.2013. The State itself passed an order on 25.6.2018 withdrawing the earlier order of condonation of breaks dated 3.4.2013, without granting any opportunity of hearing to the Petitioner.
5. The learned AGP has vehemently opposed this Petition by contending that there were breaks in service of the Petitioner for the first 3 years. Hence, a reasoned order has been passed by the Director of Higher Education, Maharashtra Government, Maharashtra State, Pune on 25.6.2018 and the earlier order of condonation of breaks dated 3.4. 2013, was set aside. On the basis of the record, he submits that no notice of hearing was issued by the State to the Petitioner. From the record, he is unable to indicate that the University was directed to hear the Petitioner before withdrawing the order dated 3.4.2013, after 5 years, vide order dated 25.6.2018.
6. The principle of ‘Audi Alteram Partem’ is well embedded in service jurisprudence. For any reason, if an adverse order is to be passed and an employee is to be unsettled from a settled position, an opportunity of hearing is considered to be decisive when it comes to assessing whether the principles of natural justice have been followed.
7. We find fault with the impugned order dated 25.6.2018, for reasons more than one. On artificial breaks, the Hon’ble Supreme Court has crystalised the law in the following Judgments:
(i) H.D. Singh Versus Reserve Bank of India & Others reported in
(ii) State of Haryana & Others Versus V. Piara Singh & Others reported in AIR 1992 SC 2130.
8. As such, it is quite obvious that the Petitioner was prevented from working beyond 365 days by virtue of the orders passed by the University, though she was a lecturer in of Zoology on a substantive post in the University. It is undisputed that she was appointed against a post which was reserved for a backward category. Hence, the post had to be advertised every year and until a candidate belonging to the reserved category is selected, the Petitioner was to be continued in employment. However, that would not mean that the Petitioner should be discontinued, as if she is to be treated as a workman in Industrial jurisprudence by preventing her to complete 240 days in a period of 12 calendar months preceding the date of reference for the purpose of avoiding the applicability of Standing Order 4(C) and 4(D) under the Model Stand Orders framed under the Industrial Employment (Standing Orders) Act, 1946. In the absence of any dispute that she was appointed on a post which was reserved for backward category, she would not have been eligible to seek regularisation. However, subsequently she was appointed as a regular lecturer, selected by a legally constituted Committee. It is on account of the introduction of minor artificial breaks in service that the issue has cropped up in this Petition as to whether she would be entitled to the old pension scheme benefits.
9. Another reason for disapproving the impugned order dated 25.6.2018, is that the Petitioner was not granted an opportunity of hearing before such adverse order could be passed. The Director of Higher Education unilaterally passed the order dated 25.6.2018, thereby setting aside the earlier order dated 3.4.2013, by which the condonation of breaks in service was granted. Whether the Petitioner had an arguable case on the aspect of condonation of breaks, is a different issue altogether. The fact remains that the said issue was addressed to by the Competent Authority on the proposal forwarded by the Pune University and it was concluded that the breaks deserved to be condoned. Hence, there was no reason for the said Authority to unilaterally reopen the case after 5 years and conclude that the earlier order of condonation of breaks was bad in law. It is for the above reasons that we conclude that the impugned order dated 25.6.2018, deserves to be quashed and set aside.
10. It undisputed that, the foundation for granting the benefits of the Career Advancement Scheme(CAS), was the service rendered by the Petitioner for 3 academic years between 2000 to 2003. The Petitioner was interviewed on 14.1.2019 and was granted the Career Advancement to the post of Professor with effect from 5.12.2018. By a communication dated 28.2.2019, after the Petitioner superannuated on 31.1.2019, she was granted annual grade pay of Rs.10,000 with effect from 5.12.2018, which is the effective date for grant of the CAS benefit. The Petitioner was thereafter, appointed as Professor Emeritus for a period of 3 years with effect from 15.11.2019, though this would not be an issue relevant for deciding this Petition.
11. The benefit of CAS granted to the Petitioner was unequivocally on account of reckoning the service of the Petitioner for 5 years from 3.12.2003 to 4.12.2008, on the UGC post that was granted for the Pune University under the 10th Plan floated by the UGC. It is also undisputed that thereafter, the Petitioner continued on the said post and was in employment of the University until her superannuation on 31.1.2019. This period of 5 years from December, 2003 to December, 2008 on UGC post was considered by the University as well as by the State Government, which has extended the monetary benefits under the CAS to the Petitioner.
12. In view of the above, this Petition is allowed. The impugned letter dated 25.6.2018 and the communication dated 5.1.2016, stand quashed and set aside. The order of condonation of breaks dated 3.4.2013, issued by the State Government, stands restored. The Petitioner would be entitled for the benefits of the old pension scheme. Follow-up action in order to grant her such benefits with effect from the date of superannuation, except the difference considering the pay received by the Petitioner as Professor Emeritus from 31.1.2019 for a period of 3 years until January, 2022.
13. Let such pensionary benefits be calculated by taking into account the continuous service of the Petitioner by re-fixing her pay scale from her engagement as a Lecturer from the year 2000. The arrears of pension/ retirement benefits along with statutory rate of interest shall be paid within a period of 75 days.
14. Rule is made absolute in the above terms. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)