1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 133 OF 1996 Shri Abdus Sattar Ramzanali Shaikh : Petitioner versus The Vice Chancellor of the University of Bombay & ors. : Respondents. Mr. K Y Mandlik i/by Shubha Mandlik for the Petitioner Mr R A Rodrigues for the Respondent No.1 and 2. Mr. S S Joshi for the Respondent No.3. CORAM : J N PATEL & C L PANGARKAR, J DATED : 2nd March 2010 ORAL JUDGMENT [PER C.L.PANGARKAR,J] 1. This Petition has been filed by the Petitioner for seeking direction to the Respondents to fix the seniority of the Petitioner on the basis of initial date of appointment i.e. with effect from 16-5-1979 and to fix the pay at Rs.335/- in the grade of Rs. 335-680 with effect from 16-5-1979 and to regularise the pay of the Petitioner by granting him normal increments in the grade of Rs.335-680. The Petitioner also seeking direction to the Respondent Nos. 1 and 2 to transfer the Petitioner to the post and department where the service is stated to be qualified for 2 pensionary benefits and to pay the arrears of pay with 12% interest to the Petitioner. 2. The facts giving rise to this Petition in brief are as under :- On 16-5-1979 the Petitioner was appointed as senior clerk on the basic pay of Rs.335/- for a period of three months in the university of Bombay. His appointment was from Employment Exchange. On 8th August 1979 the appointment of the Petitioner was further extended by a period of three months with effect from 16-8-79 to 15-11-1979 however his basic pay was reduced at Rs. 260/-. By letter dated 12th February 1985, the University informed the Petitioner that he has been appointed on purely temporary basis as a clerk with effect from 4-7-1984 on basis pay of Rs.260/- 3. The Petitioner contended that the Respondent No.2 issued circular dated 19th June 1991 informing the decision of the Executive Council that Executive Council has agreed to extend the benefit of giving initial date of appointment to the employees appointed in the year 1957 and thereafter, and the difference shall be paid separately to the employees and the amount so arrived at shall not be held qualified for the purpose of pension or other post- retirement benefits. 4. The Petitioner contended that he made representation to the Respondent No.2 for fixation of his seniority on the basis of 3 date of his initial appointment. He requested the respondents that his seniority should be fixed on the date of his initial appointment and not on the basis of actual number of working days. The Respondent Nos. 1 and 2 informed the petitioner that he is not entitled to seniority and other benefits. Hence this Writ Petition. 5. We have heard the learned counsel for the Petitioner and the Respondents. 6. The Petitioner seeks mainly three reliefs one that his seniority be fixed from the date of his initial appointment and secondly he be transferred to his original department and his pay be re-fixed. He contends that he is liable to be re-transferred to his parent department and his pay should be fixed from the date of his initial appointment in accordance with the resolution of executive council. He has also contended that the seniority has to be reckoned from 1-5-1979. He contends that due to transfer to present department there is lose of pensionary benefits. 7. The learned counsel for the Respondents contend that the transfer was effected at the request of the petitioner and his initial appointment was made in wrong pay scale and he was therefore subsequently reappointed in appropriate pay scale and seniority is already fixed. 4 8. The learned counsel for the Petitioner submits that against the wish of the Petitioner he was transferred to the present department. Shri Rodrigues the learned counsel appearing for the Respondent Nos.1 and 2, on the other hand, submits that this transfer was effected upon the petitioner’s own request. He brings to our notice the letter addressed by the Petitioner on 25-1-1995 to the Vice Chancellor of University of Bombay, requesting him to transfer him to any department of Registrar’s office to enable him to prosecute his studies in post graduate degree course. Apparently, therefore, it is at the request of the Petitioner himself, the department was changed. No malafides can therefore be attributed to the Respondents at all. 9. As far as pay fixation is concerned, there is no doubt that initially the petitioner came to be appointed in May 1979 and normally he should be entitled to pay fixation and seniority from that date in accordance with the circular of the University dated 19-6-1991. However, the appointment orders of May 1979, August 1979 and 12-2-1985 clearly go to show that initially he was appointed in the wrong pay scale of Rs.335/- and the next appointment was in the pay scale of Rs.260/- The Petitioner himself accepted these appointments subsequently in the pay scale of Rs.260/- and never challenged his appointment letter in this pay scale until filing of this petition. The Petitioner having accepted his appointment in pay scale of Rs.260/- cannot now resile from it. His pay and seniority are rightly fixed from the date of his 5 appointment in this scale of Rs.260/- We, therefore, see no merit in this writ petition and the same is dismissed. Rule discharged. (J N Patel, J) (C L Pangarkar, J)