1 wp3193.09 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3193 OF 2009 Dattatraya S/o Kishanrao Kumbhar, Age : 43 years, Occ : Service, R/o Satara Parisar, Near Tirupati Complex, Gat No. 88, Plot No. 117, Aurangabad, Tq. & Dist. Aurangabad. ..PETITIONER -VERSUS- 1. The Registrar, Dr. Babasaheb Ambedkar Marathwada University Aurangabad in his capacity as Ex- Office Secretary of Management Council of University. 2. Gramodhyog Shikshan Mandal Aurangabad through its General Secretary, M.I.T. Engineering College Campus Satara Village road, Aurangabad, Tq. and Dist. Aurangabad. 3. The Principal, M.I.T. Engineering College, Satara Village Road, Aurangabad, Tq. and Dist. Aurangabad. 4. The State of Maharashtra, through Secretary Higher and Technical Education, Mantralaya, Mumbai-32. ..RESPONDENTS ..... Shri Prashant Deshmukh, Advocate for petitioner. Shri S.V. Kurundkar, A.G.P. for respondent/State. Shri Ajay Deshpande, Advocate for respondent no.2. ..... (CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATED : 13th July, 2011. 2 wp3193.09 ORAL JUDGMENT (PER SMT. MHATRE, J.) 1. Rule. Rule made returnable forthwith, by consent of the parties. 2. The petitioner has filed the present Petition, contending that respondent nos. 1 to 3 be directed to comply with the decision of the Grievance Committee, dated 6th September, 2008. 3. The petitioner had approached this Court earlier in Writ Petition no. 729 of 2002. According to him, this Court, while disposing of that Writ Petition, has directed the respondents to reinstate him in the post of Carpenter Instructor and to pay him the consequential benefits attached to that post. The petitioner claims that this order of the Court has not been implemented, completely. According to the petitioner, although he has been reinstated in the service, he has not been granted the pay scale, which is applicable to the Carpenter Instructor. Therefore, he approached the Grievance Committee constituted under the Maharashtra Universities Act. The Grievance Committee has directed the respondent-Management to pay him the salary in accordance with the pay scale applicable to the post of Carpenter Instructor. Despite that order, the respondent-Management has not implemented the order and hence, the present Petition. 4. The respondent-Management has filed Writ Petition no. 7304 of 2010, challenging the order passed by the Grievance Committee which was to be heard by a learned single judge of this Court. That Writ 3 wp3193.09 Petition is placed before us because of the orders passed by the Hon'ble the Chief Justice. 5. The Division Bench, while disposing of the Writ Petition no. 729 of 2002 has in paragraph nos. 5 and 6 stated thus : "5. The petitioner has made averments assailing the Petitioner's transfer from Aurangabad to Buland Shahar (U.P.) as tainted with malice both, is fact and in law, and it is the submission of the Petitioner that the said transfer was as a result of decision by the School Tribunal in favour of the petitioner. Be it as it may, pending the instant petition, an affidavit in reply to the amendment petition as placed on record by the Respondent no.1/Management. Perusal of the said affidavit clearly reveals that the Respondent no.1 is ready and willing to reinstate the Petitioner in the post of Carpenter Instructor in the Respondent No.2/M.I.T. Engineering College at Aurangabad, wherein the petitioner was working prior to his transfer from Engineering College to Polytechnic. The respondent no.1 has further categorically stated that the Petitioner would be granted continuity of service and his pay shall be protected as Carpenter Instructor. It is further stated in the affidavit that the transfer order dated 12/2/2002 seeking to transfer the Petitioner from M.I.T. Engineering College to the Polytechnic is already withdrawn by the Respondent No.1, with a further statement, that the Petitioner would be continued in M.I.T. Engineering College at Aurangabad. The learned Advocate appearing for the Respondent nos. 1 and 2 also makes a statement that the petitioner would be paid his due arrears of salary for the month of January 2002, till 4 wp3193.09 date, within a period of one month from today. 6. In this view of the matter, we pass the following order; We direct the Respondent nos. 1 and 2 to permit the petitioner to resume duties in the Respondent no. 2/M.I.T. Engineering College at Aurangabad, forthwith. We declare that the Petitioner will be entitled to continuity of service and his pay in the post of Carpenter Instructor shall be protected. No service conditions which is adverse to the Petitioner and which is contained in the alleged settlement shall operate to the detriment of the Petitioner. In view of the Statement made by the learned advocate for the Respondent nos. 1 and 2, that the petitioner would be paid his due arrears of salary for the month of January, 2002, till date, within a period of one months from today, no orders are passed in this respect." 6. It is obvious, therefore, that besides directing the respondent- Management to reinstate the petitioner to the post of Carpenter Instructor with continuity of service, the Division Bench had also directed that he should be paid the pay scale applicable to that post. 7. The learned Advocate for the Respondent-Management has argued before us that the petitioner is not qualified to hold the post of Carpenter Instructor. He has placed before us the Job Description required for the post. According to him, therefore, all that the Division Bench had granted, while disposing of the Writ Petition no. 729 of 2002 5 wp3193.09 was that the petitioner be reinstated in the post of Carpenter Instructor and his pay was protected. He submits that the order of this Court has not directed the Management to fix the petitioner's pay in the pay scale applicable to the post of Carpenter Instructor. 8. In our opinion, on a plain reading of the impugned order, it is evident, that the Court had accepted the statements and averments in the affidavit filed on behalf of the respondent-Management stating that they were ready and willing to reinstate the petitioner in the post of Carpenter Instructor. Respondent no.1 in that Writ Petition i.e. the Management, had stated that it would grant continuity of service and his pay as Carpenter Instructor would be protected. This obliviously means that the pay scale applicable to the post of Carpenter Instructor would be protected. In fact, the Court while disposing of the aforesaid Writ Petition has directed that no service conditions which are adverse to the petitioner shall operate to the detriment of the petitioner. 9. In these circumstances, we are not impressed with the submissions of the learned Counsel for the respondent-Management. In fact, once the order has been passed by this Court considering the pleadings before it, it is not necessary for us to go behind that order and to consider whether the petitioner is qualified to hold the post of Carpenter Instructor. Had the respondent-Management any reservation about his qualifications or reinstating him to the post of Carpenter Instructor, the Respondent-Management ought to have stated so in the 6 wp3193.09 aforesaid Writ Petition. Rather than doing that the respondent- Management, has conceded and accepted the reinstatement of the Petitioner with continuity of service and further had stated that his pay as Carpenter Instructor would be protected. 10. In our opinion, therefore, the Petition deserves to be allowed. Consequently, the Respondent-Management shall fix the pay of the petitioner and pay him all the arrears within three months from today. Rule made absolute in terms of prayer `B'. (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) ga s/wp3193.09