Nazeer Khan Sher Khan v. The State of Maharashtra and Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9152 OF 2021 Nazeer Khan s/o Sher Khan, Age-57 years, Occu:Service, (as a assistant Librarian in Moulana Azad College, Aurangabad), R/o-Rouza Baug, Aurangabad. ...PETITIONER VERSUS 1) The State of Maharashtra, Higher and Technical Education Department, Mantralaya, Mumbai, Through its Secretary, 2) The State of Maharashtra, Finance Department, Mantralaya, Mumbai, Through its Secretary, 3) The Director of Higher and Technical Education, Pune, Region, Aurangabad, 4) The Joint Director of Higher Education, Aurangabad Region, Aurangabad, 5) Moulana Azad Education Society, Rouza Baugh, Aurangabad, Taluka and District-Aurangabad, Through its President, 6) The Principal, Maulana Azad College of Arts, Science & Commerce, Rouza Baug, Aurangabad, Taluka and District-Aurangabad. ...RESPONDENTS 2024:BHC-AUG:4328-DB ... Mr. Syed Masood Chand, Advocate for Petitioner. Mr. P.S. Patil, Additional G.P. for Respondent Nos.1 to 4. Mr. P.S. Dighe, Advocate for Respondent Nos.5 and 6. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 29th FEBRUARY, 2024

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

¶1Rule. Rule made returnable forthwith. Heard learned counsel appearing for the respective parties finally, by consent.

¶2Present Petition has been filed for following reliefs:- "(B) By writ and mandamus or any other appropriate writ, order or directions in the like nature the letter / order dated 05-12-2017 issued by respondent No.4 be quashed and set aside and the respondent No.4 be directed to grant second time bound promotional benefits to the petitioner from 1-08-2014 i.e. after completion of 24 years. "(C) By writ of mandamus or any other appropriate Writ, Order or Directions in the like nature the respondents specifically respondent No.1, 2 be directed to restore the Government Resolution dated 1-04-2010 and 5-07-2010 and the Government Resolutions dated 7-12-2018 and 16-02-2019 be declare null and void."

¶3The facts leading to the Petition are that the petitioner having qualification as B.Com, B. Lib., was appointed as a Library Assistant in respondent No.6 college run by respondent No.5 after following due procedure of law and on clear and vacant post on 1st August 1990 on the pay-scale of Rs.975-1540. The petitioner was given the first time bound promotional scheme benefits on 1st August 2002 after 12 years and the pay-scale that was conferred upon him was Rs.4000-6000 as a senior scale. Thereafter the petitioner was promoted to the post of Assistant Librarian on 1st December 2008 on the pay-scale of Rs.4500-7000. The petitioner completed his 24 years service on 1st August 2014 and therefore he should have been considered for the next promotional time bond benefit as per Government Resolutions dated 1st April 2010 and 15th February 2011. Accordingly, the proposal was submitted by respondent No.6 to respondent No.4 on 21st December 2015 along with relevant documents. However, it came to be rejected by letter dated 4th April 2016. It is stated that since the promotion has been granted on 1st December 2008 and yet the further period has not been completed, the petitioner is not entitled for the said benefit. Respondent No.6 again submitted the proposal to respondent No.4 on 11th July 2016 and requested second time bound promotion to the petitioner, however, it was also rejected on 2nd November 2016 on the ground that the petitioner has been promoted to the post of Assistant Librarian on 1st December 2008 and has not completed 24 years service on one and the same post. The petitioner says that the said interpretation by respondent No.4 of the Government Resolution is wrong. As per Government Resolution dated 1st July 2011 the period of 24 years of service has to be counted as per the initial date of appointment. According to the petitioner by Government Resolutions dated 7th December 2018 and 16th December 2019 the Government Resolutions dated 15th February 2011 and 28th December 2010 came to be cancelled with retrospective effect. It is illegal. Hence for the aforesaid reliefs, the Petition has been filed.

¶4Affidavit-in-reply on behalf of respondent Nos. 1, 3 and 4 has been filed by Dr. Satish Madhavrao Deshpande, serving as Joint Director, Higher Education, Aurangabad Region, Aurangabad, giving the background in which the benefits of Assured Career Progression Scheme (for short "ACP Scheme") were given. It is reiterated that since the petitioner was promoted to the post of Assistant Librarian on 1st December 2008 and the pay-scale was higher pay-scale, he is not entitled to the relief claimed. It is further stated that the Government of Maharashtra has further issued Government Resolution dated 25th August 2022 stating that from the date of Government Resolutions dated 7th December 2018 and 16th February 2019, no benefits of revised assured career scheme shall be granted to the non-teaching staff members working in the colleges affiliated to the universities. It is the outcome of the observations of this Court in Writ Petition No. 5363 of 2021 dated 20th January 2022 (Shri Meghraj Pandit and others vs. State of Maharashtra and others).

¶5Heard learned Advocate Mr. Syed for the petitioner, learned Additional Government Pleader Mr. Patil for respondent Nos. 1 to 4 and learned Advocate Mr. Dighe for respondent Nos. 5 and 6.

¶6At the outset, it is to be stated that as regards the different Government Resolutions which were initially made applicable, then withdrawn and then again another Resolution came to be passed on 25th August 2022, now further Government Resolution has been issued on 31st May 2023 stating that the Government Resolutions dated 7th December 2018, 16th February 2019 and 25th August 2022 in respect of ACP Scheme to be granted to the non-teaching staff members working in the colleges affiliated to the universities stands cancelled and the scheme as per Government Resolutions dated 28th December 2010 and 15th December 2011 are to be continued as before. In view of the latest Government Resolution dated 31st May 2023, the prayer clause (C) above-said, has become infructuous, as now the Government Resolutions dated 28th December 2010 and 15th February 2011 are available to the petitioner and other employees working in the colleges affiliated to the universities.

¶7Now the question only remains, as to whether the petitioner would be entitled to get the second time bound promotional benefits from 1st August 2014, which is the date on which he has completed 24 years of service. Therefore, we, once again take the facts into consideration. The date of appointment of the petitioner is 1st August 1990 in the pay-scale of Rs.975-1540. The first time bound promotional benefit was given to the petitioner on 1st August 2002 i.e. after 12 years of service and the pay-scale conferred was Rs.4000-6000. The fact is that the petitioner, thereafter was promoted to the post of Assistant Librarian on 1st December 2008 on the next higher pay-scale i.e. Rs.4500-7000. The copy of the service book of the petitioner is also placed on record.

¶8We would like to reproduce the relevant part of the Government Resolution dated 1st April 2010, by which the scheme was applied after making improvements:- " ¼d½ ;kstuspk nqljk ykHk %& ¼1½ ifgY;k ykHkkuarj 12 o"kkZph fu;fer lsok iw.kZ dsysY;k deZpk&;kl inksUurhP;k inkph osrjlajpuk nwljk ykHk Eg.kwu eatwj dj.;kr ;sbZy- rFkkfi] ;k ;kstusrhy ifgyk ykHk Eg.kwu T;k inkph osrjlajpuk eatwj dj.;kr vkyh vkgs R;k inkyk foof{kr laokdkyko/khuarj] R;k inkP;k drZO;s o tckcnk&;kar ok< u gksrk] vdk;kZRed ok rRle mPp osrulajpuk ewtwj dj.;kr ;sr vlsy rj rh vdk;kZRed ok rRle mPp osrulajpuk nqljk ykHk Eg.kwu eatwj dj.;kr ;sbZy-¼2½ nqljk ykHk eatwj dsY;kuarj ifgY;k ykHkkizek.ksp inksUurhP;k fu;ekauqlkj fodYi ns.;kph eqHkk nsÅu osrufuf'prh dj.;kr ;sbZy] inksUurhuarj iqUgk osrufuf'prhpk ykHk vuqKs; vl.kkj ukgh-¼3½ &&&&&&&&&&&&&&&&&&&&&&&&&&& ¼M½ ;kstusP;k nql&;k ykHkklkBh ik?=rsP;k vVh o 'krhZ %& ¼1½ ifgyk ykHk ?ksrysY;k o R;kuarj izR;{k inksUurh feGkysY;k deZpk&;kl nqljk ykHk eatwj djrkuk rks ifgY;k ykHkkizek.ksp fnukad 20 tqyS 2001] P;k vkns'kke/khy o ;klaca/kh osGksosGh fuxZfer dj.;kr vkysY;k Li"Vhdj.kkRed vkns'kkarhy rjrqnhP;k vf/ku eatwj dj.;kr ;kok-Eg.ktsp] T;k inkph osrulajpuk eatwj dj.;kr ;s.kkj vkgs] R;k inkoj izR;{k inksUurh feG.;klkBh fofgr dsysY;k vVh o 'krhZph iwrZrk dj.ks vko';d jkghy-¼2½ ifgY;k ykHkkarxZr inksUurhP;k T;k inkph osrulajpuk eatwj dj.;kr vkyh vkgs R;k inkoj izR;{k inksUurh u feGkysY;k deZpk&;kaP;k ckcrhr] nqljk ykHk eatwj dj.;klkBh] R;kyk T;k inkph osrulajpuk eatwj dj.;kr ;s.kkj vkgs R;k inkojhy inksUurhlkBh fofgr dsyys h xksiuh; vgokykph fdeku ljkljh izrokjh izkIr dj.ks vko';d jkghy-¼3½ ,d izR;{k inksUurh feGkY;kuarj ;k ;kstus[kkyh inksUurhP;k inkP;k osrjlajpuspk ifgyk YkkHk feGkyk vlsy vkf.k R;kuarj inksUurh lk[kGhr (Hierarchy) iq<hy inksUurhpk laoxZ miyC/k ulys fdaok ;k ;kstusvarxZr ,d ykHk feGkY;kuarj ,d izR;{k inksUurh feGkyh vlsy vkf.k R;kuarj inksUurh lk[kGhr (Hierarchy) iq<hy inksUurhpk laoxZ miyC/k ulsy] fdaok deZpk&;kl ;k ;kstus[kkyh inksUurhP;k inkP;k osrulajpuspk ifgyk ykHk feGkyk vkgs o R;kuarj inksUurhlk[kGhr (Hierarchy) iq<hy inksUurhpk laoxZ miyC/k ulys rj & ;k frUgh izdj.kh & rks T;k inkP;k osrjlajpusr osru ?ksr vkgs rs in t.kwdkgh ,dkdh in vkgs vls letwu R;k osrulajpusrhy ,dkdh inkyk ;kstusP;k ifgY;k ykHkkarxZr vuq?s; vl.kkjh osrulajpuk nqljk ykHk Eg.kwu eatwj dj.;kr ;sbZy- ;k ;kstuspk ifgyk ykHk feGkY;kuarj deZpk&;kl ifgY;k ykHkkP;k inkoj izR;{k inksUurh feGkyh vlsy vkf.k R;kuarj ;kstuspk nqljk ykHk feG.;kiwohZp R;kiq<hy inksUurhP;k inkoj izR;{k inksUurh feGkyh vlsy o R;kuarj inksUurh lk[kGhr iq<hy inksUurhpk laoxZ miyC/k ulsy rj] rks T;k inkP;k osrulajpusr osru ?ksr vkgs rs in t.kwdkgh ,dkdh in vkgs vls letwu R;k ,dkdh inkyk ;kstusP;k ifgY;k ykHkkarxZr vuw?s; vl.kkjh osrulajpuk nqljk ykHk Eg.kwu eatwj dj.;kr ;sbZy-¼4½ deZpk&;kl ;k ;kstsus[kkyh dks.krkgh ykHk feG.;kiwohZ ,d izR;{k inksUurh feGkyh vlsy o R;kuarj inksUurhlk[kGhr (Hierarchy) iq<hy inksUUkrhPks in miyC/k ulsy vkf.k R;kyk ojhy miifjPNsn ¼Ck½ ¼4½ uqlkj ;kstuspk ifgyk ykHk eatwj dj.;kr vkyk vlys rj] R;kyk ,dkdh inkl T;kizek.ks ;k ;kstuspk nqljk ykHk eatwj dj.;kr ;srks R;kizek.ks nqljk ykHk eatwj dj.;kr ;sbZy-¼5½ ifgyk ykHk eatwj dsY;kuarj lacaf/kr deZpkjh izR;{k inksUurhl vik= Bjyk vFkok R;kus inksUurh ukdkjyh rj v'kk izdj.kh ifgyk ykHk dk<wu ?ksryk tkr vlY;kus v'kk deZpk&;kapk FksV nql&;k ykHkklkBh fopkj djrk ;s.kkj ukgh-ek= R;kus R;kuarj inksUurh LohdkjY;kP;k fnukadkiklwu 12 o"kkZP;k fu;fer lsosuarj R;kyk vU; vVh o 'krhZaP;k v/khu jkgwu nqljk ykHk eatwj djrk ;sbZy- "

¶9Thus, it can be seen that the Government has laid down that if in the hierarchy there is promotional post available but the post is not vacant then the next i.e. second time bound benefit can be given. The very purpose for which the said scheme was made applicable was that for years together the employee would be at the stagnation and the promotional post is not vacant. But then while considering the eligibility criteria, it will have to be considered that there is no increase in the responsibility and duties. If such employee is getting the next pay-scale in a next cadre then he will not be entitled to get the benefit within the next 12 years from grant of such benefit. Herein this case, as aforesaid, the first time bound benefit was given to the petitioner on 1st August 2002 when he was serving as Library Assistant, as in that cadre he had put in 12 years of service. But later on the petitioner was promoted on 1st December 2008 as Assistant Librarian, which is a different cadre and his pay-scale also got changed at higher side. Thus, when first time bound benefit was granted to the petitioner, the same was in the pay-scale of Rs.4000-6000 and thereafter the petitioner was promoted to the post of Assistant Librarian on 1st December 2008, in the pay-scale of Rs.4500-7000. Therefore, for becoming eligible for the next benefit i.e. second benefit, the petitioner ought to have put in 12 years of service from 1st December 2008 in the same cadre. The proposals, therefore, forwarded by respondent No.6 on 21st December 2015, 11th July 2016 and 5th May 2017 have been rightly rejected by respondent No.4. We do not find any merit in the present Petition. It deserves to be dismissed.

¶10Accordingly, the Writ Petition stands dismissed. Rule stands discharged. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/FEB24