1 wp2851-09.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2851/2009 1] Vilas S/o Bhagwanrao Salve Age 40 years, Occ-Service [working as Jr. Clerk] in Nutan Mahavidyalaya,Sailu, Tq.Sailu Dist.Parbhani. .. PETITIONER VERSUS 1] The State of Maharashtra Through Secretary, Higher Education Department, Maharashtra State, Mantralaya Mumbai. [Copy to b served on Govt. Pleader, High Court, Bench At Aurangabad]. 2] The Director of Higher Education Pune, Maharashtra State, Pune 2 wp2851-09.odt 3] The Director, Vidyapith, Mahavidyala Vikas Mandal Swami Ramanand Tirth Marathwada University, Nanded. 4] Joint Director [Higher Education] Regional Office, Nanded Region, Nanded. 5] The Secretary Nutan Mahavidyalaya Shikshan Sanstha, Sailu, Dist.Parbhani. 6] The Principal Nutan Mahavidyalaya Shikshan Sanstha, Sailu, Dist.Parbhani. 7] Ku.Kadam U.R. Nutan Mahavidyalaya Shikshan Sanstha, Sailu, Dist.Parbhani. .. RESPONDENTS .... Shri N.N.Shinde,Advocate for petitioner. 3 wp2851-09.odt Shri S.K.Kadam,AGP for Respondents 1,2 and 4. Shri A.R.Joshi, Adv.for Respondents 5 and 6. Shri S.V.Natu, Adv.for Respondent no.7. .... CORAM : NARESH H.PATIL AND T.V.NALAWADE,JJ. ORDER RESERVED ON : 25/8/11 ORDER PRONOUNCED ON : 6/9/11 ORDER [PER NALAWADE,J.]: 1] This Writ Petition is filed under Article 226 of the Constitution of India for the relief of direction to respondent no.6 – Educational institution for giving promotion to the higher post to the petitioner with effect from 1995-96. The petitioner has also claimed financial benefits which he may get due to such promotion. He has also prayed for setting aside of the decision given by University Tribunal on 23/1/2007 and he has also prayed for setting aside of the decision given by this Court in Writ Petition No.2863/07 on 3/7/2007. Petition came to be filed on 21/4/09. Heard both sides. 2] The petitioner joined as a Peon – Class-IV employee with 4 wp2851-09.odt respondent no.6 on 28/1/93. It is his case that as he had passed 12th standard examination and also Typing Test held by G.C.C. for Marathi and English languages, he was eligible for promotion to the post of Junior Clerk. It is his case that he came to be confirmed on the post of Peon on 8/3/1995 and so the employer ought to have given him promotion in view of the policy of the State Government. He has contended that he belongs to Scheduled Caste. 3] It is the case of petitioner that in the year 1995, one Junior Clerk Shri Saraf resigned and so one post of Junior Clerk was available in the year 1995-96. He has contended that instead of giving him promotion to this post, one Kum. Kadam was directly appointed on this post. He has contended that in respect of this action of the employer, he had filed proceedings [U.L.P.] in Industrial Court in the year 2003. He has contended that due to threats given by the employer and also due to the promise of giving promotion, he withdrew that proceeding. He has contended that in the year 2002, there was one post of Junior Clerk vacant and he was given promotion to the post of Junior Clerk in the year 2003. He has contended that in the year 2004, there was one post of Senior Clerk vacant and he ought to have been promoted on this post as he belongs to reserved category. It is his case that this post of Senior Clerk was reserved for reserved category. 5 wp2851-09.odt 4] It is the case of petitioner that for respondent no.6- institution, two posts of Senior Clerk are sanctioned and one of them is reserved for Scheduled Caste. It is contended that instead of giving him promotion, the employer gave promotions to one Shri Joshi and one Kum.Kadam to the post of Senior Clerk, who are from open category. Writ Petition No.7844/05 was filed by the petitioner due to promotion given to Kum.Kadam. He has contended that due to fear of employer, he withdrew the Petition. He has contended that as the promotion was not given to him, he again filed Writ Petition [Writ Petition No.2963/07] but this Petition came to be dismissed. He has contended that as the High Court observed that the petitioner was at liberty to approach proper forum, he filed proceeding before University Tribunal but this proceeding came to be dismissed on 23/1/2008 and so he has filed present petition. 5] For petitioner, a copy of decision given in L.P.A.No.14/02 [om W.P.No.30/02] decided by this Court is produced in this case. Roaster system and the policy of the State Government published by various resolutions starting from 1994 is discussed. There cannot be dispute on the propositions made but for the use of that policy, decision first needs to be taken on the facts which are disputed in the present case. If petitioner had approached the proper forum constituted under Universities Act, the forum could have conducted inquiry on the facts. One case reported as 2008 AIR SCW 3282 between A. Satyanarayan & Anr. V/s S. Purushotham & Ors. is cited. In this case, power of judicial 6 wp2851-09.odt review with regard to fixation of quota in promotion is discussed and it is observed that quota as also guidelines for working of roaster can be provided by Government. There cannot be dispute about this proposition but for using the proposition, the facts need to be ascertained first. In the last case cited for petitioner and reported in 2006 AIR SCW 5482 [M. Nagraj & Ors V/s Union of India] there is discussion about the reservation policy included in Constitution of India. It is observed that it is upto the Parliament to prescribe proper policy for accelerated promotion to reserved candidates. The reservation by using roaster is also discussed. This proposition also cannot be disputed but as already observed, the facts need to be ascertained first in such cases, which cannot be done in the present case. 6] The Principal of the college run by respondent no.6 has filed affidavit in reply. The respondent has contended that the petition suffers from latches and as no explanation is given in respect of the delay of 2 years caused in challenging the decision given by University Tribunal, no relief can be granted to the petitioner. The employer has contended that on 1/12/2002, post of Lab Assistant was offered to the petitioner but he refused to accept this promotion. 7] It is the case of the employer that the petitioner was given promotion to the post of Junior Clerk on 1/11/2003. It is contended that as per the Government policy, even reserved category candidate is required to complete 2 years of service on 7 wp2851-09.odt the post of Junior Clerk for getting promotion to the post of Senior Clerk. It is contended that Shri Joshi was working as Junior Clerk since 2/7/1979 and so he was promoted to the post of Senior Clerk on 1/11/2003. It is contended that Kum.Kadam was given posting as Junior Clerk in the year 1997 on compassionate ground as her father died while in service. It is contended that as Kum.Kadam was working as Junior Clerk since 1997, she was given promotion to the post of Senior Clerk on 1/12/2004. It is contended that on the relevant dates, when the promotions were given to Shri Joshi and Kum.Kadam, the petitioner was not eligible to get promotion and so, no relief can be given to him. 8] It is the case of employer that on 26/10/10, the petitioner was given promotion to the post of Senior Clerk and this appointment is approved by Deputy Director of Education. It is the case of employer that at no time, promotion was denied to the petitioner and he was considered when he was eligible for getting promotion. It is contended that since 2005 till the promotion given to the petitioner to the post of Senior Clerk, there was no vacant post of Senior Clerk and so no promotion could be given to him. 9] The petitioner has heavily relied on Government Resolution dated 22/9/2003. This G.R. is in respect of giving of promotions to Class-III employees of reserved category. In the past even reserved category employee was required to complete 3 years of service on the post of Junior Clerk for getting promotion to the 8 wp2851-09.odt post of Senior Clerk and this period came to be reduced in the G.R. In view of this G.R., it can be said that the petitioner became eligible for getting promotion to the post of Senior Clerk on 1/11/2005. The petitioner has produced copies of letters issued by University. They show that as per Government policy published in 1997, one post of Junior Clerk was available in the year 2003 and one post of Senior Clerk was available in the year 2005 [14/10/2005]. The reply filed by employer shows that on the dates on which promotions were given to Shri Joshi and Kum.Kadam, petitioner was not eligible to get promotion. They were senior to the petitioner. Further the petitioner has not produced record in respect of exact date when such post became available. It can be said that there is dispute over facts. Petitioner never approached the appropriate forum created under Universities Act. On this single ground, petition can be dismissed. 10] The petitioner filed the first proceeding against the employer in the year 2003 but he withdrew it. He accepted the post of Junior Clerk in the year 2003 after withdrawal of the proceedings. Thus, about the seniority in the cadre of Junior Clerk, he had not raised grievance in the past. Writ Petition No.3386/06 was also withdrawn by the petitioner. Thus, there was no grievance left to the petitioner in respect of promotions given to Shri Joshi and Kum.Kadam. Thus, in the past, he did not file and prosecute appropriate proceedings for getting the reliefs. Though in Writ Petition No.2863/07 this Court had observed that the petitioner ought to have approached proper forum, not much can be made 9 wp2851-09.odt out due to this observation as the petitioner had already withdrawn the previous Writ Petition and he had not approached proper forum in the past. 11] It is not disputed that the petitioner came to be promoted to the post of Senior Clerk on 26/11/2010 and he is given promotion w.e.f. 1/12/10. Petitioner has accepted this promotional post and copies of the letters show that he did not raise any grievance about seniority while accepting this post. In view of these circumstances, this Court observes that no relief can be given to the petitioner and the extra ordinary jurisdiction cannot be invoked. So Petition stands dismissed. [T.V.NALAWADE,J.] [NARESH H. PATIL,J.] umg/wp2851-09