Pramod vs State Of Maharashtra And Ors

Although the seniority, qualification and eligibility of the appellant for appointment to the post of Principal was not under question before the Division Bench of the High Court, before us an attempt was made not only to oppose the appellant’s claim on the basis of impugned judgment under appeal which holds that under the law appointment is not necessarily by promotion alone, it can be also by nomination, i.e., direct recruitment, but also to contest the claim of the appellant on the ground of qualification as well as his age. The issue of age has arisen due to subsequent development. On account of passage of time, when this matter was already pending before this Court, the appellant completed 60 years and was made to superannuate on 31.3.2015. Since there was an order of status quo in appellant’s favour, contempt petition was also filed but instead of pressing the same, Mr. C.U. Singh, learned senior counsel for the appellant has preferred to argue the main matter itself. Before answering the question of law, noticed earlier, the relevant facts may be noted in brief. The appellant was appointed to the post of Assistant Lecturer in Civil Engineering Department of Dr. Punjabrao Deshmukh Polytechnic, Amravati administered by the Respondent- Shivaji Education Society on 30th July, 1977. His service was approved w.e.f. 1.7.1979. The appellant holds qualifications of Bachelor of Engineering (Civil) in first class and Master of Engineering (Structure) also in first class. On 1.4.1993 the appellant was appointed as lecturer (Selection Grade). His seniority is duly shown in the seniority list issued on 1.7.1997 by the office of the Principal of Polytechnic. The appellant worked as Project Officer between 4.2.2000 and 30.7.2007. This post is said to be equivalent to the post of Head of Department. The appellant also worked as In-charge Head of Department of Civil Engineering from 8.8.2005 to 13.2.2008 to which he was selected and appointed on regular basis also. In the meantime on 5.7.2007 the post of Principal fell vacant due to voluntary retirement of the then Principal. The appellant claimed that he should be given the charge of that post on the basis of his seniority but another person was appointed as officiating Principal on 9.7.2007. The appellant challenged such action by preferring a writ petition No.3230 of 2007 in 2007. That writ petition was dismissed on the ground that the appellant had alternative remedy of appeal under Section 9 of the MEPS Act before the School Tribunal. The appellant thereafter, preferred appeal No. 39 of 2007 before the Tribunal which dismissed the appeal as pre-mature on 11.10.2007. Against the said order of School Tribunal, the appellant preferred another writ petition bearing No. 5748 of 2007.

During the pendency of the said writ petition, the society issued an advertisement inviting applications for direct appointment to the post of Principal. The appellant challenged that advertisement dated 21.11.2007 and prayed for a direction to the society to appoint him as Principal by granting promotion. The High Court restrained issuance of final appointment order and ultimately disposed of the writ petition on 15.9.2009 by holding in favour of the appellant that he was entitled to all the benefits as officiating Principal from 9.7.2007 but did not enter into the controversy as to who should be selected and appointed as regular Principal. Since that issue was left open, the appellant preferred another writ petition No. 4235 of 2009 claiming that he was entitled to be promoted to the post of Principal under Rule 3(3) of the MEPS Rules on account of being the senior most lecturer of the polytechnic.

On 5.3.2010, the All India Council for Technical Education (for brevity ‘AICTE’) issued a notification framing the All India Council for Technical Education [Pay-scales, Service Conditions, and Qualifications of the Teachers and other Academic Staffs in Technical Institutions (Diploma)] Regulations 2010. The writ petition was disposed of on 29.7.2010. The High Court allowed the Society to approach the Director of Technical Education for permission to issue fresh advertisement and left it open to the appellant to make a representation to the Director for staking his claim of promotion to the post of Principal and to raise the issue that no advertisement was required in view of the MEPS Rules and the particular facts. The Director was given six weeks time to consider the application of the Society and also the representation of the appellant and in the meanwhile the appellant was to continue as In-charge Principal. For one reason or the other the matter remained with the respondent-Director and in the meantime on 10.9.2012 the State of Maharashtra through the Department of Higher and Technical Education notified Rules entitled- The Principal, Head of Department, Lecturer and Workshop Superintendent in Government Polytechnic and Equivalent Institutes (Recruitment) Rules 2012 (hereinafter referred to as ‘the Government Rules 2012).

The Director-Respondent No.2 by his order dated 17.10.2012 placed reliance on the Government Rules 2012 and rejected the appellant’s prayer by holding that the post of Principal had to be filled up by nomination, i.e., direct recruitment. The appellant preferred writ petition No. 652 of 2013 for quashing of Director’s order and for directions to the concerned authorities to promote the appellant to the post of Principal with all benefits. The writ petition was dismissed on 10.10.2014 giving rise to the Special Leave Petition and the present appeal. While issuing notice on 21.11.2014 in the special leave petition, this Court directed for maintenance of status quo as regards the service of the petitioner- appellant.

Although the seniority, qualification and eligibility of the appellant for appointment to the post of Principal was not under question before the Division Bench of the High Court, before us an attempt was made not only to oppose the appellant’s claim on the basis of impugned judgment under appeal which holds that under the law appointment is not necessarily by promotion alone, it can be also by nomination, i.e., direct recruitment, but also to contest the claim of the appellant on the ground of qualification as well as his age. The issue of age has arisen due to subsequent development. On account of passage of time, when this matter was already pending before this Court, the appellant completed 60 years and was made to superannuate on 31.3.2015. Since there was an order of status quo in appellant’s favour, contempt petition was also filed but instead of pressing the same, Mr. C.U. Singh, learned senior counsel for the appellant has preferred to argue the main matter itself. Before answering the question of law, noticed earlier, the relevant facts may be noted in brief. The appellant was appointed to the post of Assistant Lecturer in Civil Engineering Department of Dr. Punjabrao Deshmukh Polytechnic, Amravati administered by the Respondent- Shivaji Education Society on 30th July, 1977. His service was approved w.e.f. 1.7.1979. The appellant holds qualifications of Bachelor of Engineering (Civil) in first class and Master of Engineering (Structure) also in first class. On 1.4.1993 the appellant was appointed as lecturer (Selection Grade). His seniority is duly shown in the seniority list issued on 1.7.1997 by the office of the Principal of Polytechnic. The appellant worked as Project Officer between 4.2.2000 and 30.7.2007. This post is said to be equivalent to the post of Head of Department. The appellant also worked as In-charge Head of Department of Civil Engineering from 8.8.2005 to 13.2.2008 to which he was selected and appointed on regular basis also. In the meantime on 5.7.2007 the post of Principal fell vacant due to voluntary retirement of the then Principal. The appellant claimed that he should be given the charge of that post on the basis of his seniority but another person was appointed as officiating Principal on 9.7.2007. The appellant challenged such action by preferring a writ petition No.3230 of 2007 in 2007. That writ petition was dismissed on the ground that the appellant had alternative remedy of appeal under Section 9 of the MEPS Act before the School Tribunal. The appellant thereafter, preferred appeal No. 39 of 2007 before the Tribunal which dismissed the appeal as pre-mature on 11.10.2007. Against the said order of School Tribunal, the appellant preferred another writ petition bearing No. 5748 of 2007.

During the pendency of the said writ petition, the society issued an advertisement inviting applications for direct appointment to the post of Principal. The appellant challenged that advertisement dated 21.11.2007 and prayed for a direction to the society to appoint him as Principal by granting promotion. The High Court restrained issuance of final appointment order and ultimately disposed of the writ petition on 15.9.2009 by holding in favour of the appellant that he was entitled to all the benefits as officiating Principal from 9.7.2007 but did not enter into the controversy as to who should be selected and appointed as regular Principal. Since that issue was left open, the appellant preferred another writ petition No. 4235 of 2009 claiming that he was entitled to be promoted to the post of Principal under Rule 3(3) of the MEPS Rules on account of being the senior most lecturer of the polytechnic.

On 5.3.2010, the All India Council for Technical Education (for brevity ‘AICTE’) issued a notification framing the All India Council for Technical Education [Pay-scales, Service Conditions, and Qualifications of the Teachers and other Academic Staffs in Technical Institutions (Diploma)] Regulations 2010. The writ petition was disposed of on 29.7.2010. The High Court allowed the Society to approach the Director of Technical Education for permission to issue fresh advertisement and left it open to the appellant to make a representation to the Director for staking his claim of promotion to the post of Principal and to raise the issue that no advertisement was required in view of the MEPS Rules and the particular facts. The Director was given six weeks time to consider the application of the Society and also the representation of the appellant and in the meanwhile the appellant was to continue as In-charge Principal. For one reason or the other the matter remained with the respondent-Director and in the meantime on 10.9.2012 the State of Maharashtra through the Department of Higher and Technical Education notified Rules entitled- The Principal, Head of Department, Lecturer and Workshop Superintendent in Government Polytechnic and Equivalent Institutes (Recruitment) Rules 2012 (hereinafter referred to as ‘the Government Rules 2012).

In the facts noticed above and since there is some confusion and lack of assistance on the issue of age of superannuation from the side of respondents and also because there is no discussion on this issue in the judgment under appeal, we refrain to lay down the law in this regard. But in the interest of justice, we deem it proper to direct for immediate reinstatement of the appellant within two weeks from today. Ordinarily we would have directed Management of the respondent society to consider the appellant’s case for promotion and pass appropriate orders in accordance with law but from the materials on record as well as from the submissions in the course of hearing, we have gathered an impression that the Management of the Respondent Society cannot be presumed to be just and fair to the appellant and expected to act in accordance with law. Hence, instead of relegating the appellant to the mercy of the Management, we direct the concerned respondents to issue order of reinstatement and also appointment of the appellant by promotion to the post of Principal of the respondent polytechnic within four weeks from today. The appellant shall be treated to have been appointed by such promotion to the post of Principal w.e.f. 1st December, 2012 as this in normal course should have been the time taken for such promotion if the respondent- Director had not passed a wrong order on 17.10.2012. The appellant shall also be entitled to all consequential benefits on the basis of such promotion. Since the appellant’s service was disturbed by superannuating him w.e.f. 31.3.2015 contrary to our interim order, he shall be deemed to have continued in service without interruption even after 31.3.2015 with entitlement to full salary and other permissible emoluments for the entire period till reinstatement.

Appeal is allowed in the aforesaid terms with cost of Rs.50,000/-. The cost shall be payable by the Respondent No.4-Society to the appellant alongwith other arrears within two months.

The Director-Respondent No.2 by his order dated 17.10.2012 placed reliance on the Government Rules 2012 and rejected the appellant’s prayer by holding that the post of Principal had to be filled up by nomination, i.e., direct recruitment. The appellant preferred writ petition No. 652 of 2013 for quashing of Director’s order and for directions to the concerned authorities to promote the appellant to the post of Principal with all benefits. The writ petition was dismissed on 10.10.2014 giving rise to the Special Leave Petition and the present appeal. While issuing notice on 21.11.2014 in the special leave petition, this Court directed for maintenance of status quo as regards the service of the petitioner- appellant.

In the facts noticed above and since there is some confusion and lack of assistance on the issue of age of superannuation from the side of respondents and also because there is no discussion on this issue in the judgment under appeal, we refrain to lay down the law in this regard. But in the interest of justice, we deem it proper to direct for immediate reinstatement of the appellant within two weeks from today. Ordinarily we would have directed Management of the respondent society to consider the appellant’s case for promotion and pass appropriate orders in accordance with law but from the materials on record as well as from the submissions in the course of hearing, we have gathered an impression that the Management of the Respondent Society cannot be presumed to be just and fair to the appellant and expected to act in accordance with law. Hence, instead of relegating the appellant to the mercy of the Management, we direct the concerned respondents to issue order of reinstatement and also appointment of the appellant by promotion to the post of Principal of the respondent polytechnic within four weeks from today. The appellant shall be treated to have been appointed by such promotion to the post of Principal w.e.f. 1st December, 2012 as this in normal course should have been the time taken for such promotion if the respondent- Director had not passed a wrong order on 17.10.2012. The appellant shall also be entitled to all consequential benefits on the basis of such promotion. Since the appellant’s service was disturbed by superannuating him w.e.f. 31.3.2015 contrary to our interim order, he shall be deemed to have continued in service without interruption even after 31.3.2015 with entitlement to full salary and other permissible emoluments for the entire period till reinstatement.

Appeal is allowed in the aforesaid terms with cost of Rs.50,000/-. The cost shall be payable by the Respondent No.4-Society to the appellant alongwith other arrears within two months.

December 29, 2015.