1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6283 OF 2004 Dr Ashok Kumar Sadanand Banait ...Petitioner v/s The Principal, Loknete Vyankatrao Hire College, Panchavati, Nashik and others ...Respondents Mr S.S. Kulkarni for Petitioner. Mr Anilkumar Patil for Respondent Nos.1 and 2. Mr S.K. Nair, AGP for Respondent Nos.3 to 5. CORAM : D.K. DESHMUKH AND K.K. TATED JJ. DATE : 1ST DECEMBER 2009. 2 P.C. :- 1] The petitioner, by this petition, seeks a direction to the respondents to release salary of the petitioner for the period from 29th October 1999 to 7th March 2001 with interest. The learned counsel appearing for petitioner stated that the date 29th October 1999 in prayer clause (a) of the petition is wrong, the date should be 23rd December 1999. The relevant facts are that the petitioner was in service of the respondent No.1. The petitioner was by order dated 25th October 1999 transferred to a College at Malegaon of the same management. The petitioner challenged that transfer order before the College Tribunal. During the pendency of those proceedings, a corrigendum dated 27th October 1999 was issued to the transfer order. On 22nd December 1999 the College Tribunal dismissed the appeal. On 12th January 2000, the petitioner challenged that order before this Court by filing writ petition No.372 of 2000. The petition was dismissed by order dated 11th October 2000. Against that order, a letters patent appeal 3 was filed. That letters patent appeal was dismissed on 5th March 2001. The petitioner, after dismissal of his letters patent appeal, it appears, joined the place of transfer on 8th March 2001. The case of the petitioner is that he was actually working because of interim order passed by this Court from 22nd December 1999 to 7th March 2001 in the College at Panchavati, Nashik and therefore he is entitled to salary for this period. It is common ground that the petitioner was relieved from the Panchavati College, Nashik on 22nd December 1999 and salary upto that date has admittedly been paid to him. The College Tribunal had dismissed the appeal of the petitioner on that very date i.e. 22nd December 1999. Writ petition No.372 of 2000 was filed in this Court on 12th January 2000. Thus, from 22nd December 1999 till 12th January 2000 no proceedings were pending in relation to the transfer order in any Court or Tribunal. On 28th January 2000, this Court granted interim order in terms of prayer clause (b) of that petition. Prayer clause (b) reads as under :- 4 (b)pending the hearing and final decision of this petition, the execution and operation of the impugned order of transfer dated 25.10.1999/27.11.1999 issued by the respondent No.2, transferring the petitioner from respondent No.1 College to Smt Pushpatai Hiray Arts, Science and Commerce College, Malegaon Camp, Malegaon as Professor and Head of the Department of Commerce may kindly be stayed. On 28th January 2000, the day on which interim relief was granted, the petitioner was not working anywhere. There was no interim order operating in his favour and the transfer order had already taken effect. Obviously therefore, the ad- interim order passed by the learned Single Judge of this Court on 28th January 2000 will not result in reinstating the petitioner in Panchavati College, Nashik. Therefore in law, the petitioner will not be entitled to work in Panchavati College, Nashik 5 and will also not be entitled to salary for that period. The case of the petitioner is that though he was not allowed to sign the muster roll of that College, he actually worked in that college but except for bare statement in the petition, there is no evidence on record to support the contention. The petitioner was working as Professor in Panchavati College, Nashik, therefore, if the petitioner has actually worked in Panchavati College, Nashik, he must be taking periods, his name must be in the time table. Therefore, even assuming that the petitioner was not allowed to sign the muster roll, had the petitioner been really working, it was possible for the petitioner to produce other evidence such as time table of the College for the relevant period etc. No evidence is produced on record. Therefore, it is difficult to believe that the petitioner actually worked in the said College after 28th January 2000 till his petition was dismissed on 11th October 2000. From 11th October 2000 even the interim order dated 28th January 2000 came to an end. It is nobody s case 6 that during the pendency of letters patent appeal, there was any interim order operating. Thus, so far as the period after 11th October 2000 is concerned, there was no interim order. On 5th March 2001 the letters patent appeal was also dismissed. Thus, the petitioner was not entitled to work at Panchavati College, Nashik during the aforesaid period and there is no evidence on record to show that he was actually working in the said College from 22nd December 1999 to 7th March 2001. The petitioner is not entitled the direction prayed for from this Court. 2] The learned counsel appearing for petitioner submits that a direction should be issued to the respondents to release two increments of the petitioner which according to the averments in paragraph 33 of the petition, the petitioner was entitled since 1997 after having obtained the degree of Ph.D. The learned counsel appearing for petitioner is not able to show us anything which will even indicate that on obtaining the degree of Ph.D., the petitioner is entitled to release of two 7 increments. Therefore, no relief in that regard can be granted. There is a prayer made in the petition that the petitioner should be directed to be given continuity in service for all purposes including pension for the aforesaid period. In our opinion, whether to condone the break in service or not is normally in the domain of the employer. There is nothing placed on record to indicate as to in whom the power to condone break in service is vested and how that power is to be exercised. In the absence of any material placed on record, even that direction cannot be made. The petition is therefore rejected. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE K.K. TATED )