Writ Petition No. 11188 of 2024 · The High Court
Case Details
2025:BHC-AUG:9621-DB Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11188 OF 2024Atul s/o Vasantrao WaranguleAge 43 years, Occu. Service,R/o Mitra Nagar, KSK College Road,Beed, Taluka & District Beed… PETITIONERVERSUS1)Marathwada Shikshan PrasarakMandal, through its AdministrativeOfficer, Devgiri college Campus,Railway Station Road, Aurangabad,Tal. & Dist. Aurangabad2)Yashwantrao Chavan Institute ofPolytechnic, Beed, Near Law College,Vidhya Nagari, Barshi Road,Beed, Tq. & Dist. Beed,Through its Principal3)All India Council for Technical Education,JNU Campus, Nelson Mandela Marg,Vasant Kunj, New Delhi – 110 0704)Director of Technical Education,Maharashtra State, Mumbai5)Maharashtra State Board of TechnicalEducation, Mumbai. … RESPONDENTS.......Mr. Subodh P. Shah, Advocate holding for Mr. D.A. Madke, Advocate for petitioner Mr. N.B. Khandare, Senior Counsel with
Legal Reasoning
Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 2 ::Mr. D.J. Choudhari, Advocate for R.No.1 and 2 Mr. C.V. Dharurkar, Advocate for R.No.3. Mr. S.R. Yadav Lonikar, A.G.P. for R.No.4. Mr. S.S. Jadhavar, Advocate for R.No.5 ....…WITHWRIT PETITION NO.11176 OF 2024Nitin s/o Meghraj Gaikwad Age 38 years, occ. Service,R/o champavati Nagar, Barshi Road,Beed, Tal. & Dist. Beed… PETITIONERVERSUS1)Marathwada Shikshan PrasarakMandal, through its AdministrativeOfficer, Devgiri college Campus,Railway Station Road, Aurangabad,Tal. & Dist. Aurangabad2)Yashwantrao Chavan Institute ofPolytechnic, Beed, Near Law College,Vidhya Nagari, Barshi Road,Beed, Tq. & Dist. Beed,Through its Principal3)All India Council for Technical Education,JNU Campus, Nelson Mandela Marg,Vasant Kunj, New Delhi – 110 0704)Director of Technical Education,Maharashtra State, Mumbai5)Maharashtra State Board of TechnicalEducation, Mumbai. … RESPONDENTS Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 3 ::.......Mr. Subodh P. Shah, Advocate holding for Mr. D.A. Madke, Advocate for petitioner Mr. N.B. Khandare, Senior Counsel with Mr. D.J. Choudhari, Advocate for R.No.1 and 2 Mr. C.V. Dharurkar, Advocate for R.No.3. Mr. S.R. Yadav Lonikar, A.G.P. for R.No.4. Mr. S.S. Jadhavar, Advocate for R.No.5 ....…WITHWRIT PETITION NO.8640 OF 2024Marathwada Shikshan Prasarak MandalThrough Administrative Officer, Deogiri College Campus, Railway Station Road,Chhatrapati Sambhajinagar… PETITIONERVERSUS1)Atul s/o Vasantrao WaranguleAge 43 years, Occu. Service,R/o Mitra Nagar, KSK College Road,Beed, Tq. & Dist. Beed2)The Director of Technical Education,Maharashtra State, Mumbai3)The Joint Director,Technical Education, Regional Office,Chhatrapati Sambhajinagar, Tq. &Dist. Chhatrapati Sambhajinagar4)The Deputy Secretary andAppellate Authority,Maharashtra State Board of Technical Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 4 ::Education, Regional Office, Chhatrapati Sambhajinagar, Tq. &Dist. Chhatrapati Sambhajinagar … RESPONDENTS.......Mr. N.B. Khandare, Senior Counsel with Mr. D.J. Choudhari, Advocate for petitionerMr. Subodh P. Shah, Advocate holding for Mr. D.A. Madke, Advocate for R.No.1.Mr. S.R. Yadav Lonikar, A.G.P. for R.No.2 & 3. Mr. S.S. Jadhavar, Advocate for R.No.4....… CORAM : R.G. AVACHAT ANDSANDIPKUMAR C. MORE, JJ.DATE : 25th MARCH, 2025ORAL JUDGMENT (PER R.G. AVACHAT, J.) : Rule. Rule made returnable forthwith. With theconsent of learned counsel for the parties, heard finally.2.This group of three Writ Petitions, under Article 226of the Constitution of India, is being decided by this commonjudgment, since common questions of facts and law arisetherein. Two of the three petitions (No.11188/2024 and11176/2024) have been preferred by the employees of therespondent management, which has preferred the third WritPetition (No.8640/2024). Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 5 ::3.The petitioners/ employees seek the following mainreliefs :--A)The Hon’ble High Court may be pleased to issue anappropriate writ, order or direction in the nature of writ andthereby direct the respondent Nos.1 and 2 :i)Let the petitioner resume his duties at the respondentNo.2 Institute at Beed andii)To pay his salary according to the recommendationsmade by the 7th Central Pay Commission andiii)Also pay the arrears of difference in salary actuallypaid to him and the salary to which the petitionerwas entitled along with interest @ 12% p.a.4.The petitioners/ employees had preferred twoindependent Writ Petitions, (No.9346 and 9345/2023). ThisCourt, passed following order therein on 10/11/2023:“2. The petitioners who were serving with therespondent no. 8 college run by the respondentno.6– management are aggrieved by the fact that,they were served with back dated relieving ordersdated 30-06-2023. They seem to have submittedapplications with the respondent no. 8 who is theprincipal of the college and chairman of the Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 6 ::grievance redressal committee, putting up agrievance, however, till date no action has beentaken to redress their grievances.3. Keeping open all the issues, we direct therespondent no. 9 who is president of the grievanceredressal committee at the institutional level toconvene meeting and pass appropriate orders on thepetitioners’ grievances as expeditiously as possibleand in any case within four weeks.”5.As such, the grievance was taken up first by theLocal Grievance Redressal Committee (GRC). Thepetitioners/ employees having been unsuccessful before thesaid Committee, preferred the appeals before the GrievanceRedressal Appellate Committee (GRAC for short). Afterhearing the parties, the GRAC passed the following order : “foHkkxh; Lrjkojhy rdzkj fuokj.k vfiyh; lferhpsfujh{k.k 01-izfroknh ;kaP;k ls e/khy ekfgrhps voyksdu dsysvlrk Jh- okjaxqGs ;kaph vf/kO;k[;krk baxzth ;k inkojdj.;kr vkysyh fu;qDrh gh fuoM lferhdMwu >kysyh ulwurkRiqjR;k Lo#ikr o Bksl osrukoj dsysyh vlY;kps EgVysvkgs- R;keqGs R;kauh osruk ckcrP;k dsysY;k ekx.;k ekU;djrk ;s.kkj ukgh vls uewn dsys vkgs- rlsp laLFkkLrjkojkhy rdzkj fuokj.k lferhus Jh- okjaxqGs ;kaP;k ekx.;kQsVkGwu ykoY;kps fnlwu ;srs- ijarq R;ki`”B;FkZ R;kauk Bksl Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 7 ::osru vnk dsY;kps cWad LVsVesaV vFkok brj dkxni=s iqjkokEg.kwu lknj dsys ulY;kps fnlwu ;srs-02-vfiydkj ;kauh ekaMysys Eg.k.ks o lknj dsysY;kdkxni=kps voyksdu dsys vlrk R;kauk O;oLFkkiukus R;kapsdk;kZy;hu vkns’k dzekad 616] fn- 08-09-2009 vUo;sfu;qDrh vkns‘k fnysys vlwu R;ke/;s osruJs.khpk mYys[kvlY;kps fnlwu ;srs- rlsp Jh- okjaxqGs ;kauh lknj dsysY;kR;kaP;k cWad [kkR;kP;k LVsVesaVuqlkj R;kaP;k [kkR;koj laLFksuslgkO;k osru vk;ksxkP;k osruJs.kh uqlkj lIVsacj 2009 iklwuosru fnY;kps dkxni=ko#u fnlwu ;srs- 03-Jh- vrqy olarjko okjaxqGs ;kaph fu;qDrh laLFkkdzekad 1158& Yashwantrao Chavan Institute OfPolytechnic, Beed ;k infodk vH;kldzekrhyvf/kO;k[;krk baxzth ;k inkoj dsysyh vlwu lnj inkph‘kS{kf.kd vgZrk R;kaaP;kdMs vkgs- ijarq R;kaph cnyh nsofxjhbfULVV;wV vkWQ baftfuvjhax vWaM eWustesasV LVMht]vkSjaxkckn ;k inoh vH;kldzekrhy vf/kO;k[;krk baxzthinkoj dsyh vkgs- lnjhy inkdjhrk vko’;d vlysyhvgZrk R;kaP;kdMs ulY;kps R;kauh lkafxrys vkgs- infodkvH;kldzekrhy vf/kO;k[;krk baxzth ;k inkph ‘kS{kf.kdvgZrk o inoh vH;kldzekrhy vf/kO;k[;krk baxzth ;kinkph ‘kS{kf.kd vgZrk ;ke/;s fHkUurk vlY;kps fnlwu ;srs-04-Jh- okjaxqGs ;kaph cnyh fn- 30-06-2024 jksthdj.;kr vkyh vkgs ijarq lnjhy cnyh cnyh vkns’k gslacaf/krkl fnukad 19-07-2024 jksth bZesy+}kjs izkIr >kY;kpsdkxni=ko#u fnlwu ;srs-05infodk vH;kldzekrhy vf/kO;k[;krk baxzth ;kinkph ‘kS{kf.kd vgZrk o inoh vH;kldzekrhyvf/kO;k[;krk baxzth ;k inkph vgZrk osxosxGh vlY;kusinfodk laLFksrwu inoh laLFksr cnyh dj.ks fu;ekl /k#uulY;kps lferhph /kkj.kk vkgs- 06-Jh- okjaxqGs ;kauh laLFksdMs AICTE P;k fu;ekizek.ksosru o osrukrhy Qjd ns.;kckcrph ekx.kh laLFksdMs GRCvtkZiqohZ dsY;kps fnlwu ;sr ukgh- ijarq laLFkk LrjkojhylferhdMs lknj dsysY;k fn- 20-7-2023 P;k rdzkjhrekx.kh dsY;kps fnlwu ;srs-07-laLFkk dzekad 1158@Yashwantrao Chavan
Decision
Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 8 ::Institute Of Polytechnic, Beed ;k laLFksus egkjk”Vª jkT;ra=f’k{k.k eaMGkP;k fu;ekuqlkj f’k{kdh; inkl eaMGkphekU;rk ?ks.ks vko’;d vkgs- ijarq lnjhy laLFksus f’k{kdh;inkojhy f’k{kdkl egkjk”Vª jkT; ra=f’k{k.k eaMGkph ekU;rk(Staff Approval) ?ksryh ulY;kps fnlwu ;srs- vfiydkj rlsp izfroknh ;kaps Eg.k.ks fopkjkr ?ksÅuxBhr vfiy lferh [kkyhy izek.ks fu.kZ; nsr vkgs-Jh- vrqy olarjko okjaxqGs ;kaph laLFkk dzekad1158@Yashwantrao Chavan Institute Of Polytechnic,Beed ;k laLFksr vf/kO;k[;krk baxzth ;k inkoj laLFksusdk;kZy;hu vkns’k nsÅu osruJs.kh izek.ks fu;qDrh fnY;kpsfnlwu ;srs] rlsp laLFksus vnk dsysY;k osrukP;kfooj.ki=kuqlkj R;kauk lgkO;k osru vk;ksxkP;k osruJs.khizek.ks osru vnk dsY;kps rlsp Jh- okjaxqGs ;kauh lknjdsysY;k cWad LVsVesaVo#u fnlwu ;srs- ijarq R;kauk ns.;krvkysys osru gs fu;ekizek.ks ulY;kus Fkdhr osrukrhy Qjdns.;kl ik= vkgsr-rlsp R;kaph cnyh gh infodk vH;kldze laLFksrwuinoh vH;kldze laLFksr dsY;kps fnlwu ;sr vlwu infodkvH;kldze o inoh vH;kldzekrhy vf/kO;k[;krk baxzth ;kinkoj fu;qDrhP;k ‘kS{kf.kd vgZrse/;s Qjd vlY;kus lnjcnyh fu;ekl /k#u ulY;kps fnlwu ;srs-”So far as regards petitioner Nitin Gaikwad isconcerned, the GRAC upheld the order of his transfer.6.This is how the Writ Petitioners have now beenbefore us and the petition by the management assailing theorder of the GRAC.7.So as to avoid the repetitions, we do not propose to Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 9 ::advert to the submissions of the learned Advocates appearingfor the petitioners/ employees since those would be ourreasons in support of the judgment and order.8.Learned Senior Advocate for the managementwould submit that, the appointment of the petitioners was notin accordance with law. No advertisement was published inthe daily, inviting applications. The appointment of thepetitioners/ employees was on temporary and contractualbasis without adopting selection process. The selectioncommittee required to be constituted, was in fact notconstituted to conduct recruitment process. Theirappointments have not been approved by the MaharashtraState Board for Technical Education (MSBTE), competentauthority. The appointment was on consolidated and fixedpayment of salary. He adverted our attention to AICTERegulations to be followed by each educational institute forrecruitment of its staff (teaching and non-teaching staff). Hewould further submit that, the petitioners are not governed byAICTE (All India Council for Technical Education). Had theirappointments been lawful, they would at the most be governed Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 10 ::by the rules and regulations of MSBTE, M.S., Mumbai, butsince their appointments are illegal since its inception and nonest, they are not entitled to any kind of monetary reliefs suchas salary in terms of Pay Commission recommendations.9.Certain documents were brought to our notice. Hewould further submit that, one of the petitioners/ employeeappears to have relied on forged appointment order. TheAppellate Committee relied on it without there being original.He would further submit that, the Appellate Committee did notat all consider the case of the management. According to him,the petitioners indulged in misbehaviour. As against thepetitioner Shri Atul Warangule, a complaint was received froma girl student. Her parents did not wish to take the matter tological end. The management, however, conducted a discreetenquiry and Shri Warangule was found to have indulged inmisbehaviour. Both the petitioners, in spite of having beentransferred, did not join the transferred place. This itselfamounts to misconduct on their part. They indulged inmanipulating bio-metric attendance procedure. The learnedSenior Advocate concedes to the position that if the petitioners/ Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 11 ::employees were found to have been duly appointed in terms ofRules and Regulations approved by MSBTE, they would beentitled for the pay in terms of 5th, 6th and 7th Pay Commissionrecommendations.10.The learned Senior Advocate would further submitthat, one of the petitioners in fact was appointed in the year2012. He brought to our notice the Bank statement of thepetitioner Shri Warangule to point out that, in the year 2009,he received salary to the tune of Rs.4000/- from some othereducational institute. On the question of transfer, he wouldsubmit that, the petitioners have been indulged inmisbehaviour and hence, are not entitled to the relief. Thelearned Senior Advocate would submit that the petition filed bythe management is a complete reply to the case of thepetitioners/ employees. He took us through all the documentsrelied on in chronological order. He would submit that, amischief was played by the respondents/ employees andcertain documents which were uploaded on the website of themanagement/ institute have been obtained by them. Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 12 :: According to him, one of the Clerks in the officemight have joined hands with these petitioners/ employeesand, therefore, those documents indicating them to have beengiven notices to attend certain functions at the Collegepremises, were there. He would submit that, when thepetitioners were in fact relieved on 30 June itself, they wereexpected/ supposed to join their transferred place andthereafter they should have approached the Court of law toraise their grievance. He would further submit that, thePrincipals of the Colleges to which these petitioners weretransferred, had made a request that there was shortage ofteaching staff of concerned subjects and, therefore, services ofboth of them were required. He would submit that the transferorder was plain and simple, and, therefore, no reasons havebeen given therein. No malafides could be attributed to themanagement in regard to their transfers. These petitionerswere not on duty for little over two and half years. They would,therefore, not be entitled to any monetary claim for the saidperiod. While they approached this Court by filing writPetitions No.9345/2023 and 9346/2023, this Court did not Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 13 ::grant any interim relief. He would further submit that, themanagement had called upon the petitioners to furnish certaindocuments. He relied on the requisition dated 18/4/2024. Inresponse thereto, the petitioner Shri Warangule only submittedthree documents. He did not place before the managementany order of his appointment. He would further submit that,unless the petitioners establish to have been duly appointed tothe post, then and then only they would be entitled to thebenefits attached to the very post. He would further submitthat, the transfer is an incident of appointment/ service andjudicial review thereagainst should not be made readily unlesslack of bonafides are shown.11.The learned Senior Advocate relied on thefollowing authorities to buttress his submissions.(1)Writ Petition No.14395/2019 (Bhartiya Kamgar Sena & anr. Vs. State of Maharashtra & ors. with companion petitions, decided on 3/3/2025(2)State of Manipur & ors. Vs. Y. Token Singh & ors.(2007) 5 SCC 65(3)State of Orissa & anr. Vs. Mamata Mohanty(2011) 3 SCC 436 Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 14 ::(4)Kusheshwar Prasad Singh Vs. State of Bihar & ors.(2007) 11 SCC 447(5)Talat Shikshan Mandal & anr. Vs. Aqueela BanoMohammad Moosa & ors. [2009 SCC OnLine Bom 1131]12.We have considered the submissions advanced.Perused all the documents relied on. This Court is not sittingin appeal against the order passed by the GRAC. Thepetitions being under Article 226 of the Constitution of India,even we are not in agreement with some of the observations inoperative order passed by the Appellate Committee, thepetitioners would still be granted relief if they are found to beentitled thereto.13.Both these petitioners/ employees have beenserving with the respondent/ management since 2009 and2011 respectively. An attempt was made to point out from theBank Account statement of the petitioner Shri Warangule thathe received salary from two different educational institutes.The fact is, however, that, both the said institutes were thesister concerns working under the very management. Thelearned Senior Advocate, on instructions, came around to Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 15 ::concede the said position. As such, we have no hesitation toobserve that both these petitioners/ employees have beenserving with the management – petitioner institute (WritPetition No.8640/2024) since then respectively. The learnedSenior Advocate was candid enough to concede that if thepetitioners/ employees were duly appointed by following theprocess of law, then they would be entitled for the salarybenefits in terms of the Pay Commission recommendations.This submission curtails our reasons.14.So far as regards both the petitioners areconcerned, we do not have their original appointment orders.As regards other petitioner namely Shri Nitin Gaikwad isconcerned, learned Advocate for him placed on record copy ofthe advertisement indicating the applications were invited forthe teaching and non-teaching staff, which were to besubmitted on or before 23/6/2011. When we called upon therepresentative of the management to explain about thisdocument, no counter thereto was submitted in that regard. 15.There are host of documents to indicate the Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 16 ::management has represented before the Government andother authorities that they have appointed these petitioners byfollowing due process of law. They were shown to have beenpaid salary in terms of 5th Pay Commission recommendations.The documents at Page Nos.38 to 41 of Writ PetitionNo.11188/2024 are the documents submitted to the FeesRegulatory Authorities (FRA) for the year 2016-2017 to 2021.Then comes another document at Page 42, indicating thesepetitioners/ employees to have been regularly appointed andtheir appointment has been approved. According to us, byrepresenting such status before the concerned authority wouldnothing short of mischief (so to say committed by themanagement, if they want to say that the petitioners/employees have not been duly appointed by following theprescribed procedure). One another document was brought toour notice indicating the management had directed the Bank inthe year 2011 to credit the amount in the Bank Account ofthese employees/ petitioners salary in terms of 6th PayCommission recommendations. This makes all the difference.If at all the appointments of these petitioners have not been Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 17 ::made by following due procedure, the management shallblame to itself. These petitioners have been admittedlyserving with the management since 2009 and 2011. After agap of 16-17 years, we are not inclined to unsettle the position.It is true that in the case of Y. Token (supra), the Apex Courthas observed :16.The offers of appointment issued in favour of therespondents herein were cancelled inter alia on the premisethat the same had been done without the knowledge of theRevenue Department of the State. No records therefor wereavailable with the State. As noticed hereinbefore, an inquiryhad been made wherein the said Shri Tayeng, the thenCommissioner of Revenue stated that no such appointmenthad been made to his knowledge. The State proceeded on thesaid basis. The offers of appointment were cancelled not onthe ground that some irregularities had been committed in theprocess of recruitment but on the ground that they had beennon-est in the eye of law. The purported appointment letterswere fake ones. They were not issued by any authoritycompetent therefor.18.Moreover, it was for the respondents who had filed thewrit petitions to prove existence of legal right in their favour.They had inter alia prayed for issuance of a writ of or in thenature of mandamus. It was, thus, for them to establishexistence of a legal right in their favour and a correspondinglegal duty in the respondents to continue to be employed.With a view to establish their legal rights to enable the HighCourt to issue a writ of mandamus, the respondents wereobligated to establish that the appointments had been madeupon following the constitutional mandate adumbrated inArticles 14 and 16 of the Constitution of India. They havenot been able to show that any advertisement had been issued Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 18 ::inviting applications from eligible candidates to fill up thesaid posts. It has also not been shown that the vacancies hadbeen notified to the employment exchange. 21.The appointing authority, in absence of any delegationof power having been made in that behalf, was the StateGovernment. The Government Order dated 12.01.1998 didnot delegate the power of appointment to the Commissioner.He, therefore, was wholly incompetent to issue theappointment letters.23.We, as noticed hereinbefore, do not know as to underwhat circumstances the orders of appointments were issued. 25.In Shrilekha Vidyarthi (supra), this Court was dealingwith a question in regard to continuance of the Law Officers.The question which arose herein was not raised. It was held:"34. In our opinion, the wide sweep of Article 14undoubtedly takes within its fold the impugnedcircular issued by the State of U.P. in exercise ofits executive power, irrespective of the precisenature of appointment of the Government Counselin the districts and the other rights, contractual orstatutory, which the appointees may have. It is forthis reason that we base our decision on theground that independent of any statutory right,available to the appointees, and assuming for thepurpose of this case that the rights flow only fromthe contract of appointment, the impugnedcircular, issued in exercise of the executive powerof the State, must satisfy Article 14 of theConstitution and if it is shown to be arbitrary, itmust be struck down. However, we have referredto certain provisions relating to initialappointment, termination or renewal of tenure toindicate that the action is controlled at least bysettled guidelines, followed by the State of U.P.,for a long time. This too is relevant for decidingthe question of arbitrariness alleged in the present Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 19 ::case. 35. It is now too well settled that every Stateaction, in order to survive, must not be susceptibleto the vice of arbitrariness which is the crux ofArticle 14 of the Constitution and basic to the ruleof law, the system which governs us. Arbitrarinessis the very negation of the rule of law. Satisfactionof this basic test in every State action is sine quanon to its validity and in this respect, the Statecannot claim comparison with a private individualeven in the field of contract. This distinctionbetween the State and a private individual in thefield of contract has to be borne in the mind." 31.In Kendriya Vidyalaya Sangathan (supra), it was held:"It is clear that if after the termination of servicesof the said Dr. K.C. Rakesh, the orders ofappointment are issued, such orders are not valid.If such appointment orders are a nullity, thequestion of observance of principles of naturaljustice would not arise" 16. While in case of Mamata Mohanty (supra), theApex Court observed :-35.At one time this Court had been of the view that callingthe names from Employment Exchange would curb to certainextent the menace of nepotism and corruption in publicemployment. But, later on, came to the conclusion that someappropriate method consistent with the requirements ofArticle 16 should be followed. In other words there must be anotice published in the appropriate manner calling forapplications and all those who apply in response thereto Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 20 ::should be considered fairly. Even if the names of candidatesare requisitioned from Employment Exchange, in additionthereto it is mandatory on the part of the employer to inviteapplications from all eligible candidates from the openmarket by advertising the vacancies in newspapers havingwide circulation or by announcement in Radio and Televisionas merely calling the names from the Employment Exchangedoes not meet the requirement of the said Article of theConstitution. (Vide: Delhi Development HorticultureEmployees’ Union v. Delhi Administration, Delhi & Ors. AIR1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors.,AIR 1992 SC 2130; Excise Superintendent Malkapatnam,Krishna District, A.P. V. K.B.N. Visweshwara Rao &ors.,(1996) 6 SCC 216; Arun Tewari & Ors. v. Zila MansaviShikshak Sangh & Ors., AIR 1998 SC 331; Binod KumarGupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR2006 SC 2319; Telecom District Manager & Ors. v. KeshabDeb, (2008) 8 SCC 402; State of Bihar v. Upendra NarayanSingh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh& Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214). 36.Therefore, it is a settled legal proposition that noperson can be appointed even on a temporary or ad hoc basiswithout inviting applications from all eligible candidates. Ifany appointment is made by merely inviting names from theEmployment Exchange or putting a note on the Notice Boardetc. that will not meet the requirement of Articles 14 and 16of the Constitution. Such a course violates the mandates ofArticles 14 and 16 of the Constitution of India as it deprivesthe candidates who are eligible for the post, from beingconsidered. A person employed in violation of theseprovisions is not entitled to any relief including salary. For avalid and legal appointment mandatory compliance of thesaid Constitutional requirement is to be fulfilled. The equalityclause enshrined in Article 16 requires that every suchappointment be made by an open advertisement as to enableall eligible persons to compete on merit. 37.It is a settled legal proposition that if an order is bad in Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 21 ::its inception, it does not get sanctified at a later stage. Asubsequent action/development cannot validate an actionwhich was not lawful at its inception, for the reason that theillegality strikes at the root of the order. It would be beyondthe competence of any authority to validate such an order. Itwould be ironic to permit a person to rely upon a law, inviolation of which he has obtained the benefits. If an order atthe initial stage is bad in law, then all further proceedingsconsequent thereto will be non est and have to be necessarilyset aside. A right in law exists only and only when it has alawful origin. (vide: Upen Chandra Gogoi v. State of Assam& Ors., AIR 1998 SC 1289;17.It needs no mention that, the observations orfindings recorded by the Apex Court are to be read in thesetting of the facts of the respective case. The facts in case ofY. Token (supra) indicate that the appointment letters werefake and those were non est in the eye of law. The contentionof the management in that case was upheld by the Apex Court.When the appointment was on the basis of fake appointmentorder, such appointment would necessarily be non est in theeye of law. So is not the case in hand. The petitioners/employees have worked with the institute admittedly for littleover 15 years. As was rightly submitted by the learnedAdvocate for the petitioners/ employees that it would not lie intheir mouth to turn around and now to say that the Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 22 ::appointments were not in accordance with law, themanagement, for such illegalities, if any, is liable for penalconsequences.18.In the facts and circumstances, we find thepetitioner Shri Nitin Gaikwad was duly appointed. Themanagement did not place on record any document, whichmust be in its possession, indicating what procedure wasfollowed for appointing the petitioner Shri Warangale. Even weaccept the case of the management that the appointment waswithout following due process of law and was on aconsolidated pay, with the passage of time i.e. after thepetitioners to have continued to serve the management,unabated, the management now cannot resile from grantingthem the benefits of the pay-scale as recommended by the 5th,6th and 7th Pay Commission recommendations. More so whenthe measurement informed in writing the FRA the petitioners tohave been appointed by due process of law and mere paidsalary in terms of Pay Commission recommendations. It ismade clear that, in the facts and circumstances of this caseonly we are observing so. So far as regards monetary benefits Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 23 ::to be paid to the petitioners as they have claimed in thepetition, we restrict their claim for a period of three years nextbefore they first made complaint before the GrievanceCommittee, which was mandatory for them to first raise thegrievance as regards their service conditions.19.Since, in any case, the petitioners are entitled toreceive salary in terms of the Pay Commissionrecommendations, we did not dwell at length on the issue as towhether they were governed by the Rules and Regulationsapproved by AICTE or MSBTE. We, however, prima facie findthem to have been governed by the Rules and Regulationsapproved by AICTE. We did not accept the contention of thelearned Senior Advocate that for technical education, languagewas not the subject. The record contrary to the submissionsmade by learned Advocate was pointed out to our notice. Bethat as it may, since the petitioners/ employees are held to beentitled for pay-scale in terms of Pay Commissionrecommendations, and the last one being therecommendations made by 7th Pay Commission, being invogue, we direct the management to pay the petitioners/ Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 24 ::employees salary/ difference of salary in terms of the 7th PayCommission recommendations with effect from the period ofthree years next before their presenting the complaint to GRCi.e. from 12/7/2023.20.Needless to mention, the right to receive intereston delayed payment has been recognised as a constitutionalright. A reference in that regard can be made to the ApexCourt judgment in case of S.K. Dua Vs. State of Haryana &anr. (2008) 3 SCC 44. We, therefore, direct the respondent-management to pay the arrears of salary to the petitioners withinterest thereon at the rate of 6% p.a. from the date of thepetitions to the date of actual payment. The management shallcontinue to pay each month’s salary to the petitioners as well.21.So far as regards question of transfer of both thepetitioners/ employees are concerned, we are conscious of thefact that Court should not readily interfere with the same.Although the submission was that there was a discreet enquiry.The petitioner Shri Warangale was found to have misbehaved,it appears that, the report of the Discreet Committee has not Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 25 ::seen the light of the day. No tangible proof of havingconducted the discreet enquiry was placed on record. It is truethat there are documents to indicate that after transfer orderwas passed, these employees/ petitioners were informed tojoin their respective place of transfer. They did not join there.During this period, they did not report on duty. They appear tohave reported on duty at their earlier station only. There is norecord to indicate that they were on duty during this period. Itis but natural that while the management was not allowingthem to join and they were transferred, they cannot and theywere not expected to be working at the station at which theywere working before the transfer orders were issued. It is alsotrue that this Court did not pass any interim order in WritPetitions No.9346 and 9345/2023.22.The record indicates that the petitioners haveraised grievance about having not been paid the salary interms of the Pay Commission recommendations and they haveraised number of grievances with the management andthereafter only the transfer orders have been issued. Thetransfer orders are silent to state any reason for their transfer. Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 26 ::Although the same are said to be plain and simple, we findthose orders lack bonafides. We are, therefore, inclined tointerfere with the transfer orders as well and set aside thesame.23.It is reiterated that, both the petitioners/ employeeswere agitating their grievance and, therefore, the managementtransferred them. The reason that there was shortage ofEnglish Teacher was only on paper but nothing to that effectwas shown indicating necessity and shortage of staff serving atthe College at Aurangabad, whereat Shri Warangale has beentransferred. This is one of the reasons for us to set aside histransfer. 24.For all the aforesaid reasons, the Writ PetitionNo.8640/2024 fails. It is dismissed. Rule discharged. 25.Writ Petitions No.11188/2024 and 11176/2024 areallowed. Transfer of both the petitioners/ employees arehereby set aside. The respondent- management shall allowthem to resume duties on the post they held before theirtransfer. The management shall pay the petitioners/ Writ Petition No.11188/2024 with8640/2024 & 11176/2024:: 27 ::employees salary in terms of 7th Pay Commissionrecommendations from the period from 12/7/2023 till date andshall continue to pay the same. The respondent- managementshall pay interest at the rate of 6% p.a. on the quantum ofarrears of salary from the date of petition to the date of actualpayment. Rule made absolute in above terms. (SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.) fmp/-