Giridhar vs State of Maharashtra

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 957 OF 2017

Giridhar .. Appellant

Versus

The State of Maharashtra & Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Being aggrieved and dissatisfied with the impugned judgment and

order passed by the High Court of Judicature at Bombay, Nagpur Bench,

Nagpur dated 22.09.2016 in Writ Petition No. 5450 of 2015, by which

the High Court has restricted the grant of monetary benefits to the

petitioner with effect from 03.07.2008 only, the original writ petitioner

has preferred the present appeal.

Signature Not Verified Digitally signed by

2. The appellant-original writ petitioner was appointed as a Lecturer ASHWANI KUMAR Date: 2019.03.06 17:37:17 IST Reason:

in Respondent no. 4 College on 26.12.1989 against the post reserved for scheduled tribe category. Though he does not belong to the scheduled

tribe category, he was appointed against the said reserved post because,

despite the advertisement, no candidate from the said category was

available for appointment. As per the Government Resolution dated

25.01.1990, it was resolved that in the absence of candidates for

appointment to posts reserved for a backward class category, persons

not belonging to the said category can be appointed. The said resolution

further provided that, however, the advertisements were to be issued for

five years continuously for appointment of the reserved category

candidate. It further provided that if, despite the above, no such

candidate is available, the post be de-reserved. That, by an appointment

order dated 15.03.1990, the appointment of the appellant from

26.12.1989 to the end of session i.e. up to 20.04.1990 as Full-time

Lecturer in Chemistry stood approved. That, the Vice Chancellor of

Respondent no. 2-University issued direction No. 2/1990 to follow the

directions contained in the G.R. dated 25.01.1990, referred to

hereinabove. It appears that the appellant-original writ petitioner

continued in the said post as every year advertisement was issued for

appointment of reserved category candidate, but no such candidate

became available. That, by communication dated 16.08.1993,

Respondent no. 2 University granted onwards approval to the

appointment of the original writ petitioner and the same was

communicated by the Joint Registrar of the University to Respondent no. 4-College, where the original writ petitioner was working. Thus, the

appellant-original writ petitioner continued in first five years of his

service with technical breaks due to the requirement of advertising the

post for the reserved category. However, by order dated 06.03.1997, the

Deputy Registrar of Respondent no. 2-University condoned the said

breaks in service of the original writ petitioner. As a consequence of the

order/letter of Respondent no. 2-University dated 16.08.1003, in the

subject-wise seniority list as on 02.07.1997 issued by Respondent no.

4-College, the original writ petitioner was shown as appointed on

25.12.1989 and the post was shown as de-reserved. Therefore, the

original writ petitioner and other employees submitted an application on

08.12.1997 to the Vice Chancellor of Respondent no. 2-University

praying for de-reservation of that post in view of their continuation in

service and approval of their appointments. It is the case on behalf of

the original writ petitioner that he waited for the outcome of

representation dated 08.12.1997 and did not approach the court at that

time in view of the circular issued by the General Administration

Department of Respondent no. 1-State dated 28.07.1999 and the letter

dated 17.04.2001, which provided that if the employee directly

approaches the court without first seeking redressal of their grievances

by representation to the Government and exhausting the said process, it

would be considered violation of the service rules and disciplinary action

would be taken against them. It is the case of the original writ petitioner that as no decision was taken on the representation made by the writ

petitioner, he was compelled to approach the court by way of writ

petition which, as such, was first in the year 2011. That, in between,

and in terms of the aforesaid G.R. dated 25.01.1990, the High Court

granted relief to another employee Sanjay Kharbade in Writ Petition No.

1085 of 2004 directing the Respondent-State to de-reserve the post and

to give placement as also consequential benefits to the petitioner therein

from the date of his first appointment. Therefore, the original writ

petitioner filed another representation on 16.10.2007 before Respondent

no. 3, through Respondent no. 4, for rectification of fixation of his pay

w.e.f. 26.12.1989. It appears that, in this regard, on 16.10.2007,

Respondent no. 3 sent a letter to Respondent no. 4-College directing that

since the post on which the writ petitioner was appointed was shown in

open category in the roaster, necessary action was required to be taken

by Respondent no. 4 for the benefit of continuity of service. It appears

that vide communication dated 28.03.2008, Respondent no. 3 issued a

letter regarding grant of benefit of continuity of service and other benefits

to persons, like the writ petitioner, upon de-reservation of their posts.

According to the writ petitioner, the said letter clearly stated that such

Lecturers were to be given annual increments and other benefits from

the dates of their first appointments. That, thereafter, Respondent no. 4

passed confirmation order dated 04.03.2009 in favour of 13 employees,

including the writ petitioner, wherein he was shown as confirmed on 26.12.1991, on completion of two years’ service from the first date of his

appointment i.e. 26.12.1989. That, the writ petitioner made

representation to Respondent no. 1-State and proposal for his placement

in selection grade which was also forwarded by Respondent no. 4. The

writ petitioner prayed for placement, as also, proper fixation of pay scale

from the date of his appointment i.e. 26.12.1989, along with grant of

arrears as per the Fourth, Fifth and Sixth Pay Commissions. As nothing

was done, the writ petitioner issued a legal notice dated 04.06.2011 and,

thereafter, filed Writ Petition No. 3694 of 2011 before the High Court.

That by order dated 17.07.2013, the High Court disposed of the said writ

petition directing Respondent no. 3 to take decision and pass

appropriate order on the representation of the writ petitioner. That by

order dated 06.09.2013, Respondent no. 3 rejected the representation of

the writ petitioner on the ground that there was break in service of 314

days. That, thereafter, there were number of representations made by

the original writ petitioner explaining the so-called break in service and

sought for an approval as senior lecturer and placement in senior

selection grade w.e.f. 26.12.1989, on the basis of his first appointment

i.e. 26.12.1989. It appears that, in between, there were correspondences

between Respondent no. 4 and Respondent no. 3 regarding payment of

arrears to the writ petitioner. However, no relief was granted to the

original writ petitioner and as his grievances were not being redressed by

the respondent, the writ petitioner preferred the present Writ Petition No. 5450 of 2015 before the High Court praying for his placement and

fixation of pay from the date of his first appointment i.e. 26.12.1989,

direction to Respondent nos. 1 and 2 to pay his entire arrears due from

26.12.1989 onwards with interest and to quash the order dated

06.09.2013 passed by Respondent no. 3.

3. That by impugned judgment and order dated 22.09.2016, the High

Court has held that the case of the writ petitioner is fully covered by the

judgment of the High Court in the case of Harshendu Vinayak Madge

v. Chembur Trombay Education Society and held that the writ

petitioner is entitled to all benefits treating his appointment w.e.f.

26.12.1989. However, thereafter, the High Court held that the benefits

would be payable to the original writ petitioner only w.e.f. 03.07.2008 as

he could be granted the benefits from the period commencing from three

years prior to Writ Petition No. 3694 of 2011 filed by the writ petitioner.

4. Feeling aggrieved and dissatisfied with the impugned judgment and

order passed by the High Court insofar as restricting the period of

benefit to the writ petitioner from 03.07.2008 only and not from the date

of his first appointment i.e. 26.12.1989, the original writ petitioner has

preferred the present appeal.

5. Learned counsel appearing on behalf of the appellant has

vehemently submitted that, in the facts and circumstances of the case, the High Court has materially erred in restricting the period of benefits

to the appellant-writ petitioner from 03.07.2008 only and not from the

date of his first appointment i.e. 26.12.1989.

5.1 It is vehemently submitted by the learned counsel appearing on

behalf of the appellant that by restricting the period from 03.07.2008

only, the High Court has not at all considered the fact that right from

1997 onwards, the appellant-original writ petitioner was making

representations for redressal of his grievances to grant him benefits from

26.12.1989 and to de-reserve the post.

5.2 It is further submitted on behalf of the appellant that, as such, as

far back in 1990, the G.R. was issued by the State to deal with situations

where in the absence of candidate for appointment to posts reserved for

backward classes category, persons not belonging to the said category

can be appointed. It is submitted that the resolution further provided

that such reserved post where persons other than the reserved category

stood appointed, advertisements were to be issued for five years

continuously. It is submitted that it further provided that if such

candidate is not available despite the continuous advertisements, the

said post is to be de-reserved. It is submitted that, in the present case,

despite number of advertisements, the reserved category candidate was

not available and, therefore, the appellant- original writ petitioner was

continued and worked continuously from 26.12.1989. It is submitted

that G.R. dated 25.01.1990 based on which the appellant was appointed and working, was required to be de-reserved. It is submitted that, as

such the High Court has accepted the same while passing the impugned

judgment and order, however, erroneously has restricted the benefits

from 03.07.2008 only.

5.3 It is vehemently submitted on behalf of the appellant that, as such,

in the case of Harshendu Vinayak Madge v. Chembur Trombay

Education Society, the Bombay High Court has granted the similar

relief and directed to grant all benefits from the date of the first

appointment of the petitioner therein. It is submitted that, therefore,

as a model employer, the State Government ought to have granted the

similar benefits to all the employees without even waiting for the

representation and/or filing the writ petition.

5.4 It is further submitted on behalf of the appellant that, as such,

there is no delay at all on the part of the appellant-original writ petitioner

in raising the dispute and/or approaching the court. It is submitted

that the appellant waited for the outcome of the representation and,

therefore, having failed to get any result, only thereafter the appellant

filed the writ petition. It is submitted that only in a case where the delay

is attributable to an employee/writ petitioner, the benefits can be

restricted. It is submitted that, in the present case, the delay in filing

the writ petition is not attributable to the appellant and, therefore, the

impugned judgment and order passed by the High Court restricting the

benefits w.e.f. 03.07.2008 only, deserves to be quashed and set aside and the appellant is entitled to the reliefs and other benefits from the

date of his first appointment i.e. 26.12.1989.

6. The present appeal is vehemently opposed by Shri Karthika,

learned advocate appearing on behalf of the respondent-State of

Maharashtra.

6.1 It is submitted that, as such, in the present case, the court order is

a consent order and, in fact, the learned counsel appearing on behalf of

the appellant-original writ petitioner agreed before the Court that the

benefits be restricted from 03.07.2008 only.

6.2 It is submitted by the learned counsel appearing on behalf of the

State of Maharashtra that, even otherwise, as the appellant-original writ

petitioner for the first time approached the Court by way of writ petition

in the year 2011, which was earlier disposed of by directing the State to

take an appropriate decision on the representation made by the writ

petitioner, the High Court has rightly restricted the grant of arrears and

other benefits from 03.07.2008.

6.3 Making the above submissions, it is prayed to dismiss the present

appeal.

7. Heard the learned counsel appearing on behalf of the respective

parties at length. At the outset, it is required to be noted that the only

issue in the present appeal is whether, in the facts and circumstances of

the case, the High Court is justified in restricting the grant of arrears and other benefits from 03.07.2008, and not from the date of first

appointment of the writ petitioner i.e. 26.12.1989?

7.1 Having heard the learned counsel appearing on behalf of the

respective parties and considering the facts narrated above and the fact

that, right from 1997 onwards, the appellant-original writ petitioner

made representations for his grievances and requested to de-reserve the

post, which was made in view of the G.R. dated 25.01.1990, it cannot be

said that the appellant had slept over his rights. In fact, when the

representations were made, it was for the appropriate authority to deal

with the same expeditiously. From the material on record and, as per

the case of the appellant, in view of the circular dated 28.07.1999 and

letter dated 17.04.2001, the employees were restrained from going to

Court straightaway, without first seeking the redressal of their

grievances by representation to the Government and exhausting the said

process. Therefore, it is the case on behalf of the appellant that,

therefore, the appellant-original writ petitioner waited for the outcome of

his representation and did not prefer the petition earlier. It is submitted

that, even thereafter, when the appellant-original writ petitioner filed

representation in the year 2011, the High Court directed the State to

decide the representation at the earliest. It is submitted that, therefore,

the delay is not attributable to the appellant at all. The appellant was

vigilant from the very beginning. In fact, the State and the appropriate

authority/College/University ought to have taken the decision earlier to de-reserve the post on which the appellant was working, in view of G.R.

dated 25.02.1990 and the subsequent communications. Therefore, the

delay cannot be attributed to the appellant and the High Court is not

justified in restricting the benefits with effect from the preceding last

three years’ only. Only in a case where the delay is attributable to the

employee the benefit can be restricted. That is not the case here.

7.2 Now, so far as the submission made on behalf of the

respondent-State that the impugned order is a consent order and the

learned counsel appearing on behalf of the appellant agreed to restrict

the monetary benefits w.e.f. 03.07.2008 i.e. the period of three years

preceding the last date of filing of the previous petition is concerned, the

aforesaid has no substance. First of all, there is no such concession

made by the learned counsel appearing on behalf of the appellant. What

is pointed out in paragraph 4 is the submission made by the learned

Additional Government Pleader. As such, there is no concession given as

sought to be canvassed on behalf of the respondent State. Even

considering the order passed by the High Court in the case of

Harshendu Vinayak Madge v. Chembur Trombay Education Society,

though the said case is of termination, the High Court while quashing

and setting aside the order of termination, has directed to grant the

benefits with effect from the initial appointment.

7.3 Therefore, in the facts and circumstances narrated above and, more

particularly, that the delay is not attributable to the appellant-original writ petitioner at all, the High Court is not justified in restricting the

monetary benefits w.e.f. 03.07.2008 only. The appellant-original writ

petitioner shall be entitled to all the monetary benefits, including the

arrears etc. treating his appointment from 26.12.1989 and all such

consequential benefits accordingly.

8. In view of the above and for the reasons stated hereinabove, the

present appeal succeeds. The impugned judgment and order passed by

the High Court restricting the monetary benefits w.e.f. 03.07.2008 only

is hereby quashed and set aside and it is held that the appellant shall be

entitled to the arrears/monetary benefits from the date of his first

appointment i.e. 26.12.1989 and the appellant shall be paid all other

consequential benefits accordingly, to be paid within a period of three

months from today. The present appeal is allowed accordingly. No

costs.

……………………………………J. (L. NAGESWARA RAO)

……………………………………J. (M. R. SHAH)

New Delhi, March 6, 2019.