High Court
Legal Reasoning
5 WP 925 OF 2018.odtby the University. Therefore, petitioner is not entitled forfixation of the salary or payment of wages in terms of theGovernment Regulations. We find that the aforesaid orderpassed by the respondent no.2 is not in tune with thedirections given by this Court.7. It can be gathered that there are certainundisputed facts surfaced during course of hearing of this writpetition. Admittedly, the petitioner was appointed w.e.f.1.9.2016 and he tendered notice of resignation dated5.12.2017 and proposed to demit his office w.e.f. 5.3.2018.Admittedly, there is no reply to the aforesaid correspondencefrom management. Although, it is sought to be contended onbehalf of respondent no.4 that the petitioner never turned tothe College since 30.8.2017. Such contention is not supportedby the record. On the other hand, the petitioner has madecommunication on 4.9.2017 to treat his absence from 4.9.2017as leave till he joins. Communication dated 29.8.2017 issuedby respondent no.4 indicates that the petitioner was givenbreak in service from 30.8.2017 to 9.9.2017. In absence of anyreply to the resignation notice dated 5.12.2017 tendered by thepetitioner, there is no reason to discard contention of thepetitioner that he served with the respondent at least till5.12.2017. The observations in the report of inquiry byrespondent no. 2 dated 10.12.2019 shows that Managementcould not produce any record to indicate that they have repliedto the notice of resignation submitted by the petitioner orrejected such notice. 6 WP 925 OF 2018.odt8.Apparently, the respondent Management in theiraffidavit-in-reply is coming with a case that in meeting dated14.3.2019 committee decided to terminate services of thepetitioner w.e.f. 29.8.2017 and such an order is issued to thepetitioner on 16.3.2019. Pertinently, such decision of theManagement is coming during pendency of this petition andafter more than 15 months of notice of resignation tendered bythe petitioner. Therefore, such a decision of the Managementis invalid and ineffective. In this background, whenrespondent no.4 Management has failed to reply the notice ofresignation dated 5.12.2017, it shall be presumed that, onexpiry of three months period, resignation of the petitioner isdeemed to have been accepted.9.Turning back to appointment order of thepetitioner, it is apparent that the petitioner was appointed onthe post of ‘Principal’ and his appointment was subject toprevailing rules and regulations of AICTE of Dr. B.A.M.U.University, the Trust. Minimum service period was twoacademic years. The resignation of appointee was oncondition that he shall deposit three months salary beforebeing relieved. The appointment was in pay scale ofRs.37,400-67,000/- with basic pay Rs.52,210/- and academicgrade pay of Rs.10,000/- with DA, HRA and other allowancesas per rules of Government of Maharashtra. One month salarywas required to be kept in deposit with respondent no.4. Atthis stage, Mr. Karad, learned advocate appearing for therespondent no.4 would submit that services of any employeeduring probation or extended period of probation are liable to 7 WP 925 OF 2018.odtbe terminated by the Managing Committee without assigningany reason. We may give reference to clause nos.4 and 5 ofservice rules for Staff framed by respondent no.4.“4.Services of an employee duringprobation or extended period of probationmay be terminated by the ManagingCommittee without assigning any reason begiving one months notice in writing or onemonths salary including all allowances in lieuof the notice period.5.If any employee desires to be relievedduring the period of probation, it will benecessary for him to give three months noticein writing or three months salary including allallowances unless and otherwise theManaging Committee permits relaxationunder special circumstances.”10.The harmonious interpretation of the aforesaidservice rules alongwith the terms incorporated in theappointment order issued to the petitioner makes it clear thatthe employee on probation is entitled to resign from service bygiving three months advance notice. The resignation letterdated 5.12.2017 given by the petitioner is sufficientcompliance of the aforesaid clause. Resultantly, in absence ofany contrary material on record, it will have to be presumedthat the petitioner rendered his services with respondent no.4during period from September, 2016 to 5th March, 2018.11.It is not in dispute that the petitioner has receivedsalary from September, 2016 till August, 2017. The petitionerhas not raised any grievance in respect of the amount of salarytill his resignation. Therefore, we are not inclined to entertaincontentions of the petitioner that payment of salary till August, 8 WP 925 OF 2018.odt2017 was not in accordance with rules and, therefore, anydifference is payable to him for that period. However, sincethe petitioner is not in receipt of salary from September, 2017onwards, we are inclined to accept case of the petitioner toissue directions against respondent no.4 to release his salarytill 5th March, 2018 as per pay scales that is applicable to thepost of Principal. The payment of the salary shall be inaccordance with the AICTE Rules and Government Resolutionsholding the field as on 1.9.2017. We are, therefore, inclined todirect respondent no.2 to undertake the exercise to work outthe exact amount of the salary payable to the petitioner from1.9.2017 till 4.3.2018 treating services of the petitioner to becontinuous without any break. We find that, although, there isobjection regarding alternate efficacious remedy, in view of theundisputed facts on record and the fact that present petition ispending since 2018, We deem it proper to exercise our writjurisdiction under Article 226 of the Constitution of India forthe purpose of issuing appropriate directions against therespondents. Accordingly, we proceed to pass the followingorder.O R D E R i.Writ Petition is hereby partly allowed.ii.The respondent no.2 Joint Director ofTechnical Education, Aurangabad is herebydirected to work out the salary payable to thepetitioner for the period from 1.9.2017 to4.3.2018 in terms of appointment ordercoupled with Rules and Regulations governing 9 WP 925 OF 2018.odtpayment of salary to the post of ‘Principal’within the period of two (2) months from thedate of this order.iii.The petitioner as well as respondentno.4 shall appear before the respondent no.2on 11 th March, 2024 and submit necessaryrecord/requisite documents for quantificationof salary dues of the petitioner. iv.The respondent no.4 after receipt ofquantification of the dues from respondentno.2, release such amount to the petitioneralongwith the interest @ 6% p.a. from6.3.2018 till realization of the amount.v.Rule is made absolute in the aforesaidterms.( S. G. CHAPALGAONKAR, J. ) ( SMT. VIBHA KANKANWADI, J. )…aaa/-(f)
Arguments
1 WP 925 OF 2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 925 OF 2018...Sabir Hussain s/o Fazal Hussain Attar,age 60 yrs, Occ. Service as Principal ofShri Bhagwan College of Pharmacy,R/o Plot No.27-B, N-12, Professor Colony,Opposite Himayat Baugh, Aurangabad.Petitioner Versus1.The State Of Maharashtrathrough its Principal Secretary,Technical Education, Mantralaya,Mumbai – 32.2.The Joint Director,Technical Education,Office at adjacent to Government Polytechnic, Usmanpura,Aurangabad.3.Dr. Babasaheb Ambedkar,Marathwada University,Aurangabad throughIt’s Vice Chancellor,4.Bhagwan Shikshan Prasarak Mandal,Through it’s Secretary, Dr. Y.S. Khedkar,Office at Dr. Y.S. Khedkar Marg,N-6, Cidco, Aurangabad.Respondents…..Petitioner : Mr. Party In PersonAGP for Respondent nos. 1,2 : Mr. P.S. PatilAdvocate for Respondent no.3 : Mr. A.N. KakadeAdvocate for Respondent no.4 : Mr. A.M. Karad….. 2 WP 925 OF 2018.odtCORAM : SMT. VIBHA KANKANWADI & S. G. CHAPALGAONKAR, JJ.…..Reserved on : 08th February, 2024Pronounced on : 22nd February, 2024.…..JUDGMENT :- (Per S.G. Chapalgaonkar, J.)1.Rule. Rule made returnable forthwith. Withconsent of the parties, heard finally at admission stage.2.The petitioner impugns the order of break in hisservice w.e.f 30.8.2017 to 9.9.2017 and seeks further directionsagainst respondent no.4 to treat the said break in service as“spent in service”. The petitioner further seeks directionsagainst respondent no.4 to accept his resignation dated5.12.2017 and relieve him from the post of Principal ofBhagwan College of Pharmacy, Aurangabad w.e.f. 5.3.2018 andrelease salary by treating his service on probation w.e.f.1.9.2016 to 31.8.2017 and further services till acceptance ofhis resignation. The petitioner has also prayed for declarationthat the communication dated 16.3.2019 issued by therespondent no.4 is null and void in view of his notice forresignation.3.The petitioner-party in person submits that he isqualified as M.Pharm, Ph.D and served as Principal of KamalaNehru Poly-Technique (Pharmacy) College, Aurangabad andPrincipal of Y.B. Chavan College of Pharmacy. In view of vastexperience and qualification, he was appointed by respondentno.4 as Principal at Shri Bhagwan College of Pharmacy, 3 WP 925 OF 2018.odtAurangabad w.e.f 1.9.2016 on adhoc basis in the pay scale ofRs.37,400 to 67,000/- with basic of Rs.52,210 and academicgrade pay of Rs.10,000/- with DA, HRA and other allowances.The petitioner joined his service on 1.9.2016. He dischargedhis duties with great sincerity and commitment. However, videcommunication dated 29.8.2017 the Secretary of Respondentno.4 declared break in service of the petitioner for the periodfrom 30.8.2017 to 9.9.2017. The petitioner made severalrepresentations and requests to withdraw the saidcommunication, however, no reply was given. On 4.9.2017,the petitioner forwarded reminder. Thereafter, petitioner hascontinuously served as Principal till he tendered notice ofresignation dated 5.12.2017 and made request to theSecretary of Respondent no.4 to relieve him from the post ofPrincipal w.e.f. 5.3.2018. However, his correspondence wasnot replied. The petitioner discharged his duties till 5.3.2018.4.The petitioner contends that although he has beenpaid salary from October, 2016 till August, 2017, it is not inaccordance with pay scale prescribed or applicable as perGovernment Resolutions regarding fixation of salaries. Hewould further submit that since September, 2017 till 5.3.2018no amount is paid towards his salary.5.Respondent no.4 filed affidavit-in-replycontending that the petitioner was appointed as a Principalvide order dated 29.8.2016. During his tenure, acommunication was issued from respondent no.2 on 3.6.2017indicating that the petitioner has made communications to his 4 WP 925 OF 2018.odtoffice, which were not happily worded. Further, his conductwas not up to the mark for the post of Principal. Therefore, hewas warned vide letter dated 29.8.2017 and given break inservice for the period from 30.8.2017 to 9.9.2017. Although,petitioner made representation dated 4.9.2017 to theManagement, after 9.9.2017 he did not turn up to the Collegeand filed present petition. It is further contended that servicesof the petitioner have been terminated w.e.f. 29.8.2017 as perdecision in the meeting of the Executive Committee dated14.3.2019. It appears that one more affidavit-in-reply hasbeen filed on behalf of respondent no.4 thereby raisingobjection to maintainability of this petition, in view of alternateefficacious remedy to redress his grievances.6.We have heard the petitioner party-in-person, Mr.A.M. Karad, learned advocate appearing for the respondentno.4 as well as learned AGP appearing for respondent nos.1and 2. Record of the proceedings in this case shows that videorder dated 12.3.2019 and 12.4.2019 alongwith the orderdated 18.9.2019 the parties were permitted to approach theJoint Director of Technical Education, Aurangabad/respondentno.2 to examine grievance of the petitioner for payment ofarrears of salary. The respondent no.2 was directed to hear thepetitioner and Management and take decision upon grievanceof the petitioner on it’s own merit. In pursuance of theaforesaid directions, hearing was conducted before therespondent no.2. But, he did not ascertain actual salary duesof the petitioner. In conclusion he recorded that appointmentof the petitioner was on ad-hoc basis and it was not approved