Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9022 OF 2022
Vivek Babu Patil
Age: 50 years, Occu: service
Residing at HN 600- ‘Kundan’, Near Hanuman Talav, Behind Hanuman Temple, Umela, Naigaon (West), Taluka Vasai
District Thane- 401202. ...Petitioner
The Secretary, Higher and Technical
Education Department, Mantralaya, Mumbai 400 032.
2. Director of Education
(Higher Education), M.S. Pune, Central Building, Pune 411001.
3. Joint Director of Education
(Higher Education)
Directorate of Education, M.S. Pune, Pune 411001.
4. University of Mumbai
Through its Registrar
M.G. Road, Fort, Mumbai 400 001.
5. Shri. Shankar Narayan Education Trust
Navghar, Mahavidyalay Marg, Bhayandar (West), District Thane 401 105.
6. Shankar Narayan College of Arts
Commerce, Mahavidya Marg, Bhayandar (West), District Thane 401 105. ...Respondents
Petitioner.
Mr. N.C. Walimbe, Addl. G.P. a/w Mr. S.P. Kamble, AGP for the
Respondent-State.
Mr. Sandesh D. Patil a/w Mr. Krishnakant Deshmukh, Mr. Chintan Shah, Mr. Prithviraj Gole i/by Ms. Divya A Pawar/Patil, Advocate for
Respondent Nos.5 and 6.
ASHWIN D. BHOBE, JJ.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The Petitioner has put forth the following prayers:- “a) That this Hon’ble Court be pleased to issue a Writ of Certiorari or any other appropriate Writ, order or direction in the nature of certiorari, to quash and set aside the impugned order dated 03.12.2021 passed by the Respondent Nos. 2 as well as impugned appointment order dated 10.12.2021 passed by the b) That this Hon’ble Court be pleased to issue an appropriate order directing the Respondent Nos. 2 to 6 to declare the date of appointment of the Petitioner as permanent aided employee (aided division) under the reservation for persons with disability with effect from 2002(being the year when the Respondent No.6 college began to receive Government aid) and to accordingly pay the Petitioner his arrears in terms of difference in salary and other consequential benefits from the year 2002 and provident fund, pension and other allowances arrears from the date of appointment i.e. 28.08.1999; c) That this Hon’ble Court be pleased to issue an appropriate order directing the Respondent Nos. 2 to 6 to promote the Petitioner to the post of ‘Senior Clerk’ Head Clerk / OS’ (aided division) under the reservation for persons with disability in the Respondent No.6 college with effect from 31.08.2012 (when the decision of Grievance Committee regarding Petitioner’s promotion was accepted by the Management Council Respondent No.4)and accordingly to pay the Petitioner his arrears in terms of difference in salary and other consequential benefits available to ‘Senior Clerk’from 2012.”
3. This Petition is filed in the light of the judgment of this Court [ Coram: Ujjal Bhuyan (as his Lordship then was) & Madhav J. Jamdar, JJ.] Dated 6th September 2021 in Writ Petition No.11627 of 2018 filed by the present Petitioner. There is no debate that since the said judgment attained finality, it is not open to any party to either try to interpret the said judgment or to add to it or dissent from the same. Suffice it to say that the prayers put forth by the Petitioner in Writ Petition No.11627 of 2018, will have to be read in tandem with certain paragraphs of the judgment, in order to ascertain the benefits that would be available to the Petitioner.
4. For the sake of ready reference, we are reproducing Paragraph Nos. 2, 4, 5, 6, 21, 22,23, 31 and 32 here under: “2. By filing this petition under Article 226 of the Constitution of India, petitioner has prayed for the following reliefs:-
(i) to set aside and quash order dated 07.02.2018 passed by respondent No.2;
(ii) for directing respondent Nos.[3] to 6 to include the name of the petitioner as a permanent aided employee (Junior Clerk) in the aided division of respondent No.6 college;
(iii) for directing respondent Nos.[3] to 6 to consider the case of the petitioner for promotion to the post of Senior Clerk in respondent No.6 college as a physically disabled employee;
(iv) for directing respondent Nos.[3] to 6 to revise the salary of the petitioner in the post of Junior Clerk as per the Sixth Pay Commission and thereafter to pay the arrears etc.;
(v) for directing respondent Nos.[3] to 6 to fix the working hours of the petitioner in the establishment of Respondent No.6 as a physically disabled employee;
(vi) for a direction to respondent Nos.[5] and 6 to allow the petitioner to avail late attendance in the establishment of respondent No.6 as a physically disabled employee;
(vii) for a direction to respondent No.6 to implement recommendations of the Grievance Committee of University of Mumbai, respondent No.4;
(viii) for a direction to respondent Nos.[5] and 6 to provide the benefit of provident fund to the petitioner;
(ix) for a direction to respondent Nos.[5] and 6 not to deduct professional tax from the salary of the petitioner; and
(x) for a direction to respondent Nos.[5] and 6 to pay the petitioner special conveyance allowance at the rate of 10% of his basic pay together with arrears as a physically disabled employee.
4. It is stated that petitioner belongs to the Other Backward Class (OBC) community and also suffers from locomotor disability to the extent of 60% as per the Disability Certificate issued by the All India Institute of Physical Medicine and Rehabilitation, Mumbai. Petitioner is also a Graduate in Arts holding Diploma in Computer Software.”
5. Petitioner was appointed in respondent No.6 college as a Junior Clerk / Typist vide order dated 28.08.1999 and his service was confirmed / made permanent vide order dated 20.09.2021.
6. Respondent No.6 college began to receive grant-in-aid from the State Government from the year 2012. Resultantly respondent No.6 college was divided into aided and unaided divisions. Though petitioner’s service was made permanent, his appointment was not shown against government approved aided post whereas other non-teaching employees (some even appointed after the petitioner) were shown against government approved aided posts.
21. At this stage, we may refer to what was recommended by the Grievance Committee of respondent No.4 University. Grievance Committee had recommended amongst others that petitioner should be extended the benefit of promotion to the post of Senior Clerk. Such recommendation was made on the premise that petitioner as a person with disabilities was entitled to the benefits under the 1995 Act, including accommodation in any of the aided posts of Junior Clerk. This recommendation of the Grievance Committee was accepted by the Management Council. Further, the same was not challenged by respondent Nos.[5] and 6 before any forum. Thus, the said decision has attained finality.
22. That apart, this Court in its order dated 13.11.2017 had clarified that while taking the decision respondent No.2 should also obtain the views of the Commissioner for Persons with Disabilities. The Commissioner for Persons with Disabilities expressed the view that if no post is available for accommodating the petitioner then a supernumerary post should be created in which post petitioner should be accommodated. Notwithstanding such positive recommendations of the Grievance Committee as well as of the Commissioner for Persons with Disabilities impugned decision was taken by respondent No.2 who simply held that as per government resolution dated 04.08.2011 по reserved post was available for persons with disabilities and in any case, as vacancies in the seven posts were not available, petitioner could not be accommodated.
23. However, as we have noticed above, the position has considerably changed in view of the latest stand taken by respondent Nos.[5] and 6 in the sur-rejoinder. It is clearly stated that there are now eight aided posts of Clerk in respondent No.6 college but since all the posts are presently filled up and there being no vacancy, petitioner cannot be accommodated instantly. Whenever the next vacancy arises, respondent Nos.[5] and 6 would accommodate the petitioner in such vacancy.
31. In the light of the above discussions, we are of the view that the impugned decision of respondent No.2 dated 07.02.2018 cannot be sustained. The same is accordingly set aside and quashed. Consequently, we direct respondent Nos.2, 5 and 6 to include the petitioner as a category 'C' employee (Clerk) in the establishment of respondent No.6 as a person with disability under the aided division. Since such inclusion of the petitioner would require the dislodging of an incumbent employed either at Sr No.1 or at Sr No.8, the said respondents should provide an opportunity of hearing to the affected employee as well as to the petitioner and thereafter pass the consequential order in accordance with law having regard to the discussions made above.
32. Let the above exercise be carried out within a period of three months from the date of receipt of a copy of this order. All other consequential benefits to which petitioner is entitled as a person with disabilities including arrear dues etc. shall be made available to the petitioner.”
5. Having considered the submissions of the learned Advocates and the leaned AGP in the light of the pleadings put forth, we find that the first lapse has occurred on the part of the Director, Higher Education, Maharashtra State (Dr. Dhanraj Mane, at the relevant time) vide the order dated 3.12.2021. When the judgment of this Court dated 6th September, 2021 (paragraphs from which have been reproduced herein above) clearly specified in Paragraph Nos. 31 and 32 that the Petitioner would be entitled for all consequential benefits to which a person with disabilities would be entitled to, including arrears dues etc., the said Authority had no reason to observe in Clause (b) and (c) of the communication dated 3rd December, 2021 as under: "ब. वादी यांची कायम विवना अनुदाविनत सेवा विदनांक ०१/०९/१९९९ पासून, अनुदाविनत तुकडीमध्ये नेमणुकीपयन्तची सेवा कोणत्याही आर्थि"क फायदयासाटी ग्राहय धरली जाणार नाही. क. वादी यांचे नांव वर्ग-३ सेवाज्येष्ठता यादीमध्ये अंतितम राहील. त्या अनुषंर्गाने वादी हे कायम विवना अनुदाविनत तत्वावरील नोकरीचे कोणतेही सेवाफायदे किंकवा लाभासाठी पात्र राहणार नाही.”
6. The meaning that flows from the above reproduced clauses indicates that initially the Petitioner’s service would be considered on no grant basis with effect from 1st September, 1999 and then grant in aid basis, without any monetary benefits. This is squarely in contradiction to the directions of this Court set out in Paragraph No. 32 reproduced above.
7. In view of the above, Clause (b) reproduced above from the impugned order is quashed and set aside.
8. In so far as Clause (c) is concerned, the Director, Higher Education had directed that the Petitioner shall be placed in Class-III seniority list and he would be permanently on no grant basis and he would not receive any monetary service benefits. This also runs contrary to the observations of this Court in Paragraph Nos.31 and 32. Hence, Clause (c) reproduced above also stands quashed and set aside.
9. In Clause (a) of the impugned order, the Director, Higher Education has directed as under: "अ. वादी यांची नेमणूक रिरक्त असलेल्या कविनष्ट र्लािलापक या पदावर विदव्यांर्ग प्रवर्गांतून रिरक्त असलेल्या विदनांकापासून सातव्या वेतन आयोर्गाच्या वर्ग ३ मूळ श्रेणीमध्ये करण्यात यावी.”
10. The meaning that flows from Clause (a) is that the Petitioner would be absorbed on a vacant post of a Junior Clerk from the disabled category and he would be entitled to the 7th Pay Commission benefits for Class-III. The learned Advocate for the management submits on the basis of the Affidavit-in-Reply that earlier, all eight posts were filled in. However, one Mr. Hitendra Patil, who was first in seniority list in the Class-III category, opted for a voluntary retirement and he was released by the college on 31st October, 2020. With this factual position, he refers to Paragraph No.31 of the judgment of this Court reproduced above which indicates that if the present Petitioner is to be accommodated, one of the eight candidates will have to be dislodged and this should not be done without granting an opportunity of hearing to the affected employees. Thereafter, the consequential order of absorbing the Petitioner could be passed.
11. We find that the learned Advocate for the Management is well placed in reading Paragraph No.31 of the judgment in the backdrop of Mr. Hitendra Patil opting for voluntary retirement and stepping out of one post. Consequentially, other seven employees were not required to be heard since they were not to be affected. He is also right in submitting that the Petitioner will have to be absorbed on such a post with effect from 1st November, 2021 when the said post fell vacant due to the exit of Mr. Patil.
12. In this backdrop, Clause (a) of the impugned order stands interpreted accordingly. Consequentially, the order of appointment issued by the management dated 10th December, 2021 recording that the Petitioner would be entitled for 7th Pay Commission Pay Scale for Class III, is sustainable.
13. One issue now crops up for which the Petitioner may have to approach the State Government for a decision. The issue is that the Grievance Committee under Section 57 of The Maharashtra Universities Act, 1994 of the University of Mumbai, passed an order on 31st August, 2012 conveying to the Petitioner that in the meeting of the Grievance Committee held on 28th June, 2012, it was resolved as under: “ Shri Vivek Babu Patil has attended the Meeting of the Grievance Cell on three occasions, the committee decided that he be given Vith Pay scale, Provident fund deductions should be regularized for all the years. Promotion to be granted in the post of Senior Clerk. Management was given a hearing. Matter is now disposed off.”
14. The Management Council accepted the recommendation of the Grievance Committee. Same is not challenged and has attained finality. Considering the same, the Petitioner may be justified in canvassing that he is deemed to be a Senior Clerk with effect from 31st August, 2012. This submission is referable to Paragraph No.31 of the judgment of this Court reproduced above, wherein the Petitioner was to be included in Category C (Clerk) in the establishment of Respondent No.6, as a person with disability, under the said division. This inclusion would occur only after one of the eight candidates from Category C, would be dislodged. Mr. Patil, who opted for voluntary retirement, was a Superintendent and the Petitioner, would be entitled to become a Senior Clerk in the light of the order of the Grievance Committee. In the service hierarchy, above the Senior Clerk, is a Head Clerk and above him, is the Superintendent. Therefore, though Mr. Patil has opted for VRS, the scale available to his post as a Superintendent, cannot be made available to the Petitioner.
15. It is in this context that this Court made the said observation in Paragraph No.31 of its judgment reproduced above.
16. None of the seven candidates, like Junior Clerks, Senior Clerks and Head Clerks, are before the Court. So also, this issue can be advantageously looked into by the Director of Higher Education, Maharashtra State, Pune. In so far as making one post of Senior Clerk available for absorbing the Petitioner and allocating grants for payment of his salary as a Senior Clerk, we cannot ignore that if this is to disturb or dislodge a long settled Senior Clerk, who is not at fault, the Government may have to take a decision as to whether a supernumerary post could be created for the position of Senior Clerk to accommodate the Petitioner and after his retirement, the said post would naturally lapse.
17. In view of the above, this Writ Petition is partly allowed in the light of the conclusions set out in the foregoing paragraphs and with further directions as follows:- (a) The arrears of wages as per the scale of a Junior Clerk with effect from 1st September, 2021 when Mr. Hitendra Patil opted for VRS and arrears of such scale would be payable from the salary grants of the Government. (b) Let such arrears be calculated and be paid to the Petitioner within a period of 120 days. The respective calculations put forth by the Petitioner as well as the management, shall be considered (before arriving at the above decision), within 30 days from today. The Director, Higher Education would independently decide this issue.
(c) The statement of the management which is conveyed to the learned Advocate through Mr. Vishnu Nivrutti Yadav, that a lump sum Rs. 5 lakhs would be paid to the Petitioner as a gesture towards redressing his grievance as against the management, is recorded. The learned Advocate for the Petitioner submits on instructions, since the Petitioner is present in the Court, that he is agreeable to accept the said amount and close the issue.
(d) In so far as the monetary effect of occupying the post of
Senior Clerk, though notionally, the Petitioner would be entitled to fall in the category of Senior Clerk with effect from 31st August, 2012 due to the order of the Grievance Committee of the Mumbai University. (e) We grant liberty to the Petitioner to make a detailed representation to the Director, Higher Education within a period of 30 days. The Director, Higher Education would invite the Petitioner as well as the management and conduct a hearing on the said issue. Considering that two candidates senior to the Petitioner are working as Senior Clerks from 1994 and 1996 onwards, and cannot be dislodged to accommodate the Petitioner, that we direct the Director, Higher Education to consider recommending to the Government, if convinced, for the creation of a supernumerary post of Senior Clerk. However, if it is revealed that any of these seven candidates is a Senior Clerk who has been promoted in 2021, the said candidate may have to be dislodged in order to accommodate the Petitioner and from the date of such dislodgment, the Petitioner would be entitled for the salary scale of a Senior Clerk. We caution that if this be the situation, a decision would be taken on this count only after granting reasonable opportunity of hearing to that particular candidate.
18. Rule is made absolute in the above terms. [ASHWIN D. BHOBE, J.] [RAVINDRA V. GHUGE, J.]