1 W.P. 504/1998 ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 504 OF 1998 Raosaheb Yellappa Patil Age : 61 Yrs., Occ. Retired Professor, R/o : 1763, Rajarampuri, Kolhapur, Dist. : Kolhapur. .... PETITIONER VERSUS 1. The State of Maharashtra Through the Govt. Pleader, High Court of Bombay Bench at Aurangabad. 2. The Mahatma Phule Krishi Vidyapeeth, Rahuri Dist. Ahmednagar. 3. Director of Agriculture ( Commissioner Agriculture ) Maharashtra State, Central Building, Pune. 4. Shri. M.B.Kibey Age : 63 Yrs., Occ. Retired Professor R/o : Shilaban Apartment, Paud Phata (Road), Pune Dist. Pune. 5. Shri. S.S.Bajaj Age : 62 Yrs., Occ. Retired Professor R/o : Shriram Niwas, Kisan Bank Colony, Yeshwant Nagar, Latur, Dist. Latur. 6. Dr. V.M.Rade Age : 55 Yrs., Occ. Retired Professor 2 W.P. 504/1998 ( J ) Professor of Agricultural Extension College of Agriculture, Pune. 7. Shri. M.D.Pawar Age : 65 Yrs., Occ. Retired Professor R/o : Sharad Co-op. Housing Society, Opp. Bharati Vidyabhavan Chhabriya School, Gokhale Road, Pune. 8. Dr. L.P.Kambale Age : 56 Yrs., Occ. Service, Associate Dean (Lower Education), Mahatma Phule Krishi Vidyapeeth Rahuri, Dist. Ahmednagar. 9. Dr. K.R. Kadam Age : 57 Yrs., Occ. Service, Director of Communication, Mahatma Phule Krishi Vidyapeeth, Rahuri, Dist. Ahmednagar. 10. Dr. H.S.Bhoite Age : 59 Yrs., Occ. Retired Professor, Krishi Co-Operative Housing Society, Krishinagar, New Gokhale Nagar, Pune. 11. Shri. V.M.Chavan Age : 58 Yrs., Occ. Service - Professor of Agricultural Extension, Mahatma Phule Krishi Vidyapeeth, Rahuri, Dist. Ahmednagar. .... RESPONDENTS Mr. A.D.Rajput , Advocate for petitioner. Mr. R.K.Ladda, Additional Govt. Pleader for State. Mr. M.N.Navandar, Advocate for respondent no. 2. Mrs. M.A.Kulkarni, Advocate for respondent no. 6. 3 W.P. 504/1998 ( J ) CORAM : B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE : 06/07/2010 ORAL JUDGMENT : [ PER – S.V. GANGAPURWALA, J. ] 1. The petitioner vide the present petition seeks directions against respondent nos. 1 to 3 to give the deemed date of seniority w.e.f. 27/7/1964 in the cadre of Assistant Professor, of Associate Professor w.e.f. 1/4/1970 and subsequently as Professor w.e.f. 29/8/1972, so also seeks relief to quash the seniority list published by respondent no. 2 – University. 2. The petitioner herein was initially appointed in Class – III as an Agricultural Supervisor and was posted as a Demonstrator in Agricultural Extension at the College of Agriculture , Pune on 11/4/1963. As the petitioner passed M.Sc. (Agri.) in the year 1963, he was promoted temporarily as Assistant Professor vide Order dated 17/7/1964. The said appointment was approved by the Government vide its Order dated 30/9/1964. Thereafter, the services of the petitioner were allocated to the respondent no. 2 – University. The petitioner continued to work there as Assistant Professor. The petitioner was then promoted as Associate Professor on 1/1/1973. 3. The petitioner claims that though he was working as Assistant Professor prior in point of time to that of respondent nos. 4 to 11, he has been shown as junior to them. Further, as he was working as Assistant Professor since 27/7/1964, he has to be given deemed date of promotion to the post of 4 W.P. 504/1998 ( J ) Assistant Professor w.e.f. 27/7/1964. But, in the seniority list, the deemed date is wrongly mentioned as 9/5/1968. According to him, the same is illegal. His appointment as Assistant Professor as on 27/7/1964 is not disputed. 4. We have heard Mr. A.R. Rajput, the learned counsel for the petitioner, Mr. M.N.Navandar, the learned counsel for respondent no. 2, Mrs. M.A. Kulkarni, the learned counsel for respondent no. 6 and Mrs. R.K.Ladda, the learned Assistant Govt. Pleader for respondent no. 1 – State. 5. Mr. Rajput, the learned counsel for the petitioner submitted that vide order dated 30/9/1964, the petitioner was appointed as Assistant Professor in Class-II cadre though on temporary basis, the same was approved by the Government and he continuously worked on the said post. He was never removed nor reverted. Hence, his date of appointment has to be considered in the cadre of Assistant Professor as 27/7/1964. He relied on the Judgment delivered by this Court at its Nagpur Bench in Writ Petition No. 996 of 1981 in case of Dr. P.A. Varade V/s Punjabrao Krishi Vidyapeeth, Krishi Nagar, Akola . He contended that the facts of the said case are similar to the facts of the present case. In the said case also, the petitioner therein was appointed on stop-gap arrangement and thereafter he was continued. The Division Bench considered the date of appointment in the cadre of Assistant Professor with effect from the initial date of appointment i.e. the date when the petitioner was appointed on stop-gap arrangement. As such, he submits that he should be given a deemed date as 27/7/1964. 5 W.P. 504/1998 ( J ) 6. Mr. Navandar, the learned counsel for respondent no. 2 submitted that though the petitioner had requisite qualification and he was working as Assistant Professor before he was allocated to respondent no. 2 – University, but he was on temporary basis and that he had not worked on the post of Agricultural Supervisor and as such his seniority could not be considered from 27/7/1964. According to him, the petitioner has not challenged the decision of the Government and the Resolution of the University fixing the interse seniority and as such contends that the petition is bad in law. He submits that the University is bound by the seniority fixed by the State Government, the University has fixed the seniority as per the list forwarded by the Government and the University can not be faulted with. 7. Mrs. M.A. Kulkarni, the learned counsel for respondent no. 6 submitted that respondent no. 6 was directly appointed and was selected through M.P.S.C. and as such is rightly shown as senior to the petitioner. 8. There is no doubt that the petitioner was appointed to the post of Assistant Professor on 27/7/1964 and continuously officiated on the said post without any break. The bone of contention of the respondent is that the petitioner was appointed only on temporary basis as Assistant Professorand as such his appointment on temporary basis can not be considered for giving him a deemed date as 27/7/1964. 9. The Division Bench of this Court in the Judgment referred to supra relying on the Judgment of the Apex Court has observed, thus : 6 W.P. 504/1998 ( J ) “ In this context, we may refer to the observation of the Supreme Court in D.R. Nim. V. Union of India (A.I.R. 1967 S.C. 1301 ). The Supreme Court was concerned with a stop-gap arrangement, which lasted for 8 years and it was observed that such a stop-gap arrangement can not last for 8 years and since it has been shown that the appellant was appointed temporarily in place of some persons and subsequently he had never been reverted. The Supreme Court further observed that the fact that he was appointed to the post at the time when there was vacancy negatived that it was merely a temporary arrangement. Shri. Khamborkar for the respondent no. 1, however, urged that the present case was not a case of a clear, vacancy, but it is difficult to accept this submission because of the petitioner’s tenure and the return of the respondent no. 1 which unequivocally show that the post was of a permanent nature though petitioner’s appointment thereto may have been a stop-gap or temporary. In fact, the scheme of sub section (3) of Section 53 of the Act shows that the employees should be given an option by giving a notice either to retire or to be permanently absorbed or to be permitted to revert of Govt. service without any reciprocal option to the University to do away with the services of the employee. Since he could not be sent back at the option of the University and had to be permanently absorbed, it is difficult to accept the submission on behalf of the respondent no. 1 that there is no permanent vacancy in the present case to which the petitioner could lay a claim. As we 7 W.P. 504/1998 ( J ) have pointed out the order passed by the Govt. on 26/5/1966 (Annexure VI) clearly continued the petitioner in an officiating capacity and in view of Section 52 (3) of the Act, past service which he rendered either with the Govt. or with the Maharashtra Krishi Vidyapeeth until he was allocated on 20/10/1969 to the respondent no. 1 had to be considered and the consequential benefits made available to the petitioner ”. 10. As such, it has been succinctly held by the Division Bench of this Court that when a person continued in the officiating capacity though appointed on the stop-gap arrangement, in view of Section 52 (3) of the Act, the past services which he rendered either with the Govt. or with the Maharashtra Krishi Vidyapeeth until he was allocated to the respondent no. 2 had to be considered and the consequential benefits to be made available to the petitioner. 11. In the present case also, as there is no dispute about the factum of the appointment of the present petitioner on the post of Assistant Professor on 27/7/1964, though on temporary basis, it will have to be held that the petitioner is entitled to be considered in the cadre of Assistant Professor right since 27/7/1964. On the date on which the petitioner was appointed as Assistant Professor, the petitioner was duly qualified and none of the petitioner had acquired that qualification. It is not in dispute that one of the essential requirements for appointment on the post of Assistant Professor was that the candidate should possess M.Sc. ( Agri.) Degree and none of the 8 W.P. 504/1998 ( J ) respondents herein on the said date i.e. 27/7/1964 had acquired the said qualification so also all the respondents were officiating as Assistant Professor subsequent to the present petitioner. 12. In the light of above, we have no hesitation to hold that the petitioner is entitled to be given deemed date as 27/7/1964 as Assistant Professor and the consequential benefits pursuant thereof. 13. As we have held that the petitioner is entitled to be given a deemed date of 27/7/1964 as Assistant Professor and that he is above the respondents, the seniority list of Associate Professor and Professor should also be corrected accordingly. We direct the respondents to correct the seniority list and to give all the benefits pursuant to this order to the petitioner within the period of six months from today. 14. In light of above, we allow the petition and make Rule absolute in terms of prayer clause ‘ B ’. However, there shall be no order as to costs. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 504.98