1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3253 OF 1991 Mrs.Vinaya L. Pai, Hindu Inhabitant of Bombay, residing at B-13 Textila Twin Tower Lane, Prabhadevi Bombay - 400 025 .. Petitioner. V/s. 1. South Indian Education Society, a Society regi- stered under the Bombay Public Trusts Act and Society’s Registration Act, having its office at Sion (West), Bombay - 400 022 (writ to be served on the Secretary). 2. South Indian Education Society’s College of Arts, Science & Commerce, Sion (West), Bombay - 400 022 (Writ to be served on the Principal) 3. University of Bombay, University Marg, Fort, Bombay - 400 001 (Writ to be served on the Registrar) 4. State of Maharashtra Mantralaya, Bombay 400 032. (writ to be served on the Secretary Department of Education). .. Respondents. Ms.Betty D’souza i/b. M.M. Vashi for the petitioner. Ms.Nandini Menon for respondent Nos.1 and 2. Mr.B.V. Phadnis for respondent No.3. Mr.Shekhar Ingavle, AGP for respondent No.4. CORAM : R.M. LODHA & CORAM : R.M. LODHA & CORAM : R.M. LODHA & J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. 2 DATED : 1ST JULY, 2005. DATED : 1ST JULY, 2005. DATED : 1ST JULY, 2005. ORAL JUDGMENT (Per R.M. Lodha, J.) : ORAL JUDGMENT (Per R.M. Lodha, J.) : ORAL JUDGMENT (Per R.M. Lodha, J.) : Heard Ms.Betty D’souza, the learned counsel for the petitioner and Mr.Shekhar Ingavle, the learned Assistant Government Pleader. 2. The present writ petition was filed before this Court in the month of October, 1991. In the span of last 14 years, the writ petition has been amended thrice. The only prayer that now survives and is pressed by the petitioner is this : ‘That the respondents be ordered and directed to give effect to the Government Resolution dated 15.05.2000 from inception and pay the difference in salary and other benefits amounting to Rs.3,79,708.60 and interest at 15% per annum calculated at Rs.4,30,827/- upto date and costs thereof.’ 3. The brief facts may be noticed by us first. (i) The petitioner is M.Sc. First Class in Biology. She was appointed as part time demonstrator in Biology on 01.07.1968 with the respondent No.2 - college. 3 (ii) She was appointed as full time demonstrator on 01.07.1970 and she continued as such until 30.06.1975. (iii) The petitioner was upgraded as full time lecturer on 01.07.1975. (iv) That from 14.06.1976 to 31.07.1979, the petitioner worked as teacher in the Junior College in Biology. (v) On and from 01.08.1979 to 09.10.1991, the petitioner was full time lecturer in Zoology in the degree college. The petitioner claims to be having excellent record both in Biology and Zoology and before joining the second respondent college in the year 1968, the petitioner claims to have worked as Research Officer in medical colleges. 4. At the time the writ petition was filed by the petitioner in the year 1991, her grievances were multifold. (i) That her service was not counted for pay and other benefits from 14.06.1976 to 31.07.1979. (ii) That her service was not considered at all from 01.07.1968 to 31.07.1979. (iii) That she was given 4 the pay scale and other benefits as if she was appointed for the first time in the year 1979. The petitioner prayed for other reliefs as well. During the pendency of the petition, the State Government considered whether the protection be given to the lecturers in P4 category in their service from inception. The State Government passed resolution on 15.05.2000 in following terms. "GOVERNMENT RESOLUTION : Decision is taken by the Government to protect the service and place the lecturers in P-4 category for the purpose of their appointment to the post of lecturer in the senior colleges in the senior colleges in the scale of pay of 700-1600 on the following conditions : 1. They should be in the clear vacant post in the pay scale of Rs.700-1600. 2. they should have been rendered surplus in the senior college due to the implementation of 10 + 2 + 3 educational pattern. 3. On rendering surplus they should have been absorbed in the junior college of the same management. 4. they should have been appointed to the post of a Lecturer in the senior college managed by the same institution on falling vacant the post of a lecturer in the senior college; or if there is no vacancy of such a lecturer in the senior college, they must be working in the junior college of the same management. 5. Their services should not have been terminated by the management. 6. They should not have tendered the resignation of the post of Lecturer on their own. 7. They will be eligible to get the 5 increased notional pay scale due to protection in the service. However the concerned (lecturers) will not be paid the arrears on that count. Since the increased scale of pay is notional due to protection in service given to the lecturers in P-4 category, the revision in their pay scale to be ascertained will become payable from the date of issue of these orders and may be paid in cash." 5. The prayer now remains is that the respondents be ordered and directed to give effect to the Government Resolution dated 15.05.2000 from inception and pay the difference in salary and other benefits to the petitioner from inception i.e. 01.07.1975 when the petitioner became upgraded to the post of lecturer. 6. In para 24 F and 24 G, the petitioner has set up the following plea. "24 F. The Petitioner submits that the Government Resolution dated 15th May 2000 was issued with regard to protection of services and for the purpose of payment of scale of Rs.700-1600 to the Lecturers in P4 Category. The Circular however, says that the revision will be made applicable only with effect from the date of the issue of the orders i.e. 15th May 2000 thus denying the arrears from the date of Petitioner’s upgradation as a lecturer on 01.07.1975 upto 15th May 2000. The Petitioner came to know that there was also an earlier Government Resolution dated 27th November 1991 issued with regard to lecturers in the ‘Rest Category’. ‘Rest Category’ are lecturers (in the scale of Rs.700-1600) who were appointed after 07.02.1975, who were rendered surplus in the Senior College and 6 absorbed in Junior College in the scale of pay of Rs.500-900. The above Circular says that the pay of such lecturers in the ‘Rest Category’ in the scale of Rs.700-1600 be protected from the inception. Petitioner belongs to P4 Category who are lecturers upgraded on 01.07.1975. She was also rendered surplus in Senior College and was absorbed in Junior College in the scale of Rs.500-900 (as in the case of ‘Rest Category’ lecturers). Petitioner submits that if the ‘Rest Category’ lecturers were given the protection of pay scale of Rs.700-1600 and consequential benefits from the very inception, there is no reason why the Petitioner should not be given the same scale and benefits from the inception. In fact the ‘Rest Category’ lecturers were the persons who were appointed after the year 1975. In other words, they were junior to the Petitioner. If the juniors got the higher scale and the payment of difference in salary from the inception, the Petitioner is also entitled to the same treatment and she should have been given the difference in the salary from the very inception and not a notional scale as is now contended by the Government. Hereto annexed and marked Exhibit H-3 is the said circular dt.27.11.1991 issued by the Dy.Secretary, Education & Employment Dept., Govt. of Maharashtra. 24G. The Petitioner submits that the Government should have considered the Petitioner’s case in 1991 itself and she was unnecessarily denied the said scale and benefits with the result that she is still struggling for the same. The treatment given to the Petitioner by the Government is rank discriminatory, unjust and contrary to the rules, and there is no rationale in the distinction made." 7. The aforesaid averments of the writ petition remain untraversed despite the opportunity given to the Assistant Government Pleader for filing reply to the amended writ petition. 7 8. The learned AGP submits that despite many letters sent to the concerned department of the State Government, no instructions have been received nor anyone from the State Government chose to contact the office of the Government Pleader for preparation of reply. The AGP is not in a position to deny the Government Resolution dated 27.11.1991 concerning the Rest Category (category other than five categories P1, P2, P3, P4 and P5). 9. The Government Resolution dated 27.11.1991 that relates to Rest Category may be reproduced by us as the plea of discrimination is founded on the said resolution. It reads thus : "INTRODUCTION In the year 1975-76 the new educational pattern of 10+2+3 was started in Maharashtra State. Because of this new pattern one academic year in the College was reduced. Therefore for absorbing such teachers who became surplus, according to guiding principles they were divided into five categories and were treated as in five categories called P-1, P-2, P-3, P-4 and P-5. 2. After the above categories the teachers in P-1 to P-3 categories were eligible according to the university rules and were in service before 07.02.75. They have been absorbed in the scale of pay of Rs.700-1600 according to the Government Policy. P-4 category consists of the posts of Tutor, Demonstrator and they were holding the required educational qualifications for the post of a lecturer. The P-5 category consisted of Tutor, Demonstrator, Method Masters and were in service on 07.02.05 but 8 they had no educational qualifications required as per the University Rules for the post of a lecturer. 3. After the implementation of the new educational pattern after 07.02.05 some teachers joined degree colleges. As the teachers mentioned in the above categories were not included, they were called as remaining i.e. ‘Rest Category’ teachers. 4. Because of the implementation of the new educational pattern from 1975-76, such of the ‘Rest Category’ teachers in the College became surplus and to avoid becoming unemployed, they were absorbed in the Junior College. As they were not in the above five categories, instead of the pay scale of Rs.700-1600 in the Junior College, they were placed in the scale of Rs.500-900/-. 5. As the ‘Rest Category’ teachers had become surplus because of the implementation of the new educational pattern of the Government, the 5-member committee appointed by the Government for studying this problem had recommended that the pay of such teachers be protected from the inception in the scale of pay of Rs.700-1600/-. This question as to whether the ‘Rest Category’ teachers can be granted protection in the pay scale of Rs.700-1600/- from the inception as recommended by the said committee was under the consideration of the Government. Now therefore the Government issues the orders that the pay scale of Rs.700-1600/- granted to such teachers who were absorbed in the junior colleges and who had become surplus in the Senior College due to the new educational pattern will be protected from their initial appointment in the degree college under the following terms and conditions. 1. They should be in the clear vacant post in the scale of pay of Rs.700-1600/-. 2. Due to the application of the 10+2+3 pattern of education, they should have become surplus in the degree college. 3. On becoming surplus in such manner, they should have been absorbed in the junior college conducted by the same management immediately. 4. They should have been appointed to 9 the post of a lecturer in the senior college managed by the same institution in the scale of pay of Rs.700-1600/-, on falling vacant the post of a lecturer in the senior college, or if there is no vacancy of a lecturer in the senior college, they must be working in the junior college run by the same management. 5. Their services should not have been terminated by the management. 6. They should not have tendered the resignation on their own. These orders are issued with the concurrence of the Finance Department after unofficial consultation vide Ref.No.1647/91/Exp-5 dt. 20.11.91". 10. For want of traverse to the pleadings set out in para 24F and 24G of the writ petition and the aforenoticed Government Resolution dated 27.11.1991, we find merit in the plea of discrimination set up by the petitioner. The petitioner belongs to P4 category who were upgraded to the scale of P4 from 01.07.1975. The petitioner was rendered surplus in senior college and was absorbed in the junior college in the scale of Rs.500-900. Exactly as was the case of Rest Category lecturers. From the Government Resolution dated 27.11.1991 it is apparent that the Rest Category lecturers were given the pay scale of Rs.700-1600 and consequential benefits from the very inception. There is no reason much less justifiable reason emanating from the Government Resolution dated 15.05.2000 or the material available as to why P4 category lecturers are being denied the protection of pay scale and consequential benefits from the very 10 inception. From the Government Resolution dated 15.05.2000 itself it would be apparent that wrong was done to the category P4 lecturers by not protecting their scale from 01.07.1975 and that is why that resolution. But that injustice ought to have been rectified from inception. Mere grant of notional benefit of increased pay scale from 01.07.1975 until issuance of Government Resolution dated 15.05.2000, the injustice done to P4 category lecturers like the petitioner has been perpetuated. By Government Resolution dated 27.11.1991 the rest category lecturers were given protection of pay scale of Rs.700-1600/- and other consequential benefits from the date of inception. The lecturers in P4 categories also deserve the same treatment. 11. The learned AGP sought to contend that para 7 of the Government Resolution dated 15.05.2000 is a policy matter and, therefore, the Court should not interfere in the matter. The preamble of the Government Resolution dated 15.05.2000 in this connection is relevant and we reproduce the same. "In the year 1975-76 the new educational pattern of 10+2+3 was stated in Maharashtra State. Because of this new pattern one academic year in the college was reduced. Therefore for absorbing such teachers who became surplus and who were required to be absorbed in the service, they were divided into five categories as per the guiding principles and were required to be 11 called as P-1, P-2, P-3, P-4 and P-5, the terminology (definition) for the teachers in the P-4 category was as under :- (quotation in English) ‘College tutors/demonstrators and persons in equivalent grade (Rs.250-400) who were either confirmed in clear vacancies or who had completed two years of service in clear vacancies in a college or colleges under the same management on or before 7th February 1975 and who fulfil the qualifications prescribed by the University concerned for appointment as Lecturers and are, therefore, entitled to deemed date of 1st July, 1975’. According to this terminology those tutors or demonstrators in the colleges who were holding the educational qualifications required for a Lecturer, were given the deemed date of 1.7.1975 for the said post. On starting of the 10+2+3 educational pattern from 1975-76, those lecturers who had become surplus because of the reduction of classes in the colleges, were absorbed for some time in the junior colleges of the same institution. On the availability of the required work road in the degree college, out of the above lecturers, some were taken in the degree college, out of the above lecturers, some were taken in the decree (senior colleges. The subject about continuation of period of such service of the lecturers rendered by them in the junior college for the post of Lecturer in the senior college was under consideration of the Government for some time. The 5-member committee appointed by the Government under the chairmanship of Director of Education (Higher Education) on 15-10-1987 had also recommended for treating the service rendered by such lecturers in the junior college as continuous service. However, this recommendation had not been accepted by the government previously. On the requests made from time to time by the Lecturers in the Category P-4 the Government decided to re-consider the matter and after giving full thought the Government has decided as a special case to treat the period of service rendered by the Lecturers in P-4 category in the Jr. Collect for the 12 protection of pay and continuity of service in the senior college to be eligible." 12. In the backdrop of what we have noticed above, the State Government decided to continue the service and place of the lecturers in P4 category in the pay scale of Rs.700-1600. Having protected the pay scale of Rs.700-1600 and that was done for Rest Category lecturers as well, there is no justification for the State Government to deny the benefit of protection of pay scale of Rs.700-1600 from the date of inception on fulfilment of the conditions stated in para 1 to 6 of the Government Resolution dated 15.05.2000. 13. We, accordingly, declare that the petitioner is entitled to the protection of pay scale of Rs.700-1600 as has been directed in the Government Resolution dated 15.05.2000. However, that protection shall be from the date of inception on fulfilment of condition Nos.1 to 6 of the said Government Resolution. Sub-clause 7 of the Government Resolution dated 15.05.2000 is declared bad in law. The respondents are directed to calculate the amount of pay-scale as per the Government Resolution dated 15.05.2000 (excluding clause 7 thereof) and pay the difference in the salary and other benefits to the petitioner within 13 two months from today. 14. Rule is disposed of as aforestated. No costs. (R.M. LODHA, J.) (J.P. DEVADHAR, J.)