1 W.P. No. 1488/1998 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1488 OF 1998 Govind Bhimrao Datar Died – per L.Rs. : 1. Anuradha W/o Govind Datar Age : 65 Yrs., Occ. Household, R/o : 4-16-28, B/4, Anuradha Apartment, Khadkeshwar, Aurangabad. 2. Ramkrishna S/o Govind Datar Age : 32 Yrs., Occ. Service, R/o : 4-16-28, B/4, Anuradha Apartment, Khadkeshwar, Aurangabad. 3. Vaibhavi W/o Jayant Deshmukh Age : 29 Yrs., Occ. Household R/o : Plot No. 34, Shrinagar, Behind Ulka Nagar, Garkheda Parisar, Aurangabad. .... PETITIONERS VERSUS 1. The State of Maharashtra Through Govt. Pleader High Court of Bombay Bench at Aurangabad. 2 W.P. No. 1488/1998 - ( J ) 2. The Director of Technical Education, Post Box No. 1967, Maharashtra State, Mumbai. 3. The Principal Govt. Engineering College, Osmanpura, Aurangabad. .... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. H.A.Joshi, Advocate for petitioner. Mr.V.D.Rakh , Additional Govt. Pleader for State. -------------------------------------------------------------------------------------------------------- CORAM : B.R. GAVAI AND S.V. GANGAPURWALA, JJ. DATE: 03/08/2010 ORAL JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. In the year 1985, the petitioner was working in Govt. Polytechnic, Aurangabad and was transferred to Govt. Polytechnic, Beed on MES-I ( Junior ) post. Though the petitioner was promoted to Class - I post, his pay scale was reduced to Rs. 680 - 1250 /- in stead of his earlier pay scale of Rs. 700 - 1600 /-. 2. The petitioner did not join the duty on the count that the said order of transfer is illegal. The petitioner made representation. Thereafter the Corrigendum was issued and pay scale was corrected as Rs. 700 - 1600 /-. 3 W.P. No. 1488/1998 - ( J ) Thereafter the petitioner joined at Govt. Polytechnic at Beed on 01/07/1986. 3. The absence of the petitioner from the date of transfer till the date he joined on 01/07/1986, was not treated as period on duty. As such, the petitioner filed Writ Petition before this Court, which was subsequently transferred to the Aurangabad Bench of the Maharashtra Administrative Tribunal ( For short, ' Tribunal ' ) . The Tribunal directed the respondents to regularize the period of absence from 06/04/1985 to 30/06/1986. The respondents pursuant to the said order, directed the petitioner to submitted leave application for the said period. The petitioner did not submit the same and challenged the said order before the Tribunal. The Original Application of the petitioner was rejected. Aggrieved by the same, the petitioner has filed the present petition. 4. The fact that the transfer order was erroneous and not in conformity with the rules, is set at rest by the Judgment of the Tribunal in Transfer Application No. 2626 of 1991, wherein the Tribunal has specifically observed that the said order was illegal and the petitioner was not obliged to obey the said order. It further directed the respondents to regularize the period of absence. 4 W.P. No. 1488/1998 - ( J ) 5. Mr. Joshi, the learned counsel for the petitioner submits that as the Order itself was illegal, the petitioner was not bound to obey the said order and it is only when the mistake was corrected by issuing Corrigendum, the petitioner has joined. The said period has to be treated as on duty or compulsory waiting period. Mr. Joshi relied on the Judgment of the Division Bench of this Court in the case of Ramesh Motilal Khandelwsal V/s Zilla Parishad, Akola reported in 1992 ( 1 ) - Mh.L.J. - 325, wherein this Court held that, " Held, that the order of transfer being contrary to statutory rules was illegal and void, and therefore even assuming that the petitioner did not obey the same and was absent during the intervening period, he would be entitled to the wages for the period when the illegal order was set aside. Even if rule 43 of the Maharashtra Civil Services ( Leave ) Rules, 1991 did not apply the principle underlying the said rule would clearly be attracted in the present contingency. At any rate as a general principle of law it is necessary that the Zilla Parishad must make good the loss occasioned to the petitioner by reason of its illegal order. He was therefore entitled to wages in his original pay scale of the post of stenographer although he might 5 W.P. No. 1488/1998 - ( J ) have absented himself during the said period. Zilla Parishad was liable to pay to the petitioner the wages admissible to him as if the impugned order of transfer dated 6/12/1945 was not passed. The order treating part of the period as earned leave and part of the period as leave without pay was liable to be set aside ". 6. It would be clear that this Court in the aforesaid Judgment has clearly held that the order treating the part of the period as Earned Leave and part of the leave as Leave without Pay, was liable to be set aside. 7. In the present case also, as the petitioner was justified in not joining the duty pursuant to the illegal order, the petitioner can not be at fault. The Tribunal has already passed an order to regularize the services of the petitioner. As such, it was erroneous on the part of the authorities to pass the impugned order and the period from 6/4/1985 to 30/6/1986 has to be treated as the period of duty. 8. In light of the above, the impugned order and the order dated 20/12/1995 passed by the State Govt. are quashed and set aside and we direct that the said period from 6/4/1985 to 30/6/1986 shall be treated as the period on duty of the petitioner, but as the petitioner has not worked 6 W.P. No. 1488/1998 - ( J ) during the said period, we are not inclined to award him salary during the said period. However, as observed earlier, the said period from 6/4/1985 to 30/6/1986 shall be treated as the period on duty. 9. The petitioner shall be entitled for the amount of leave encashment as applicable to him on the date of retirement. 10. The Writ Petition is disposed off accordingly. However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/ WP 387.98