Bombay High Court
Shri Harishyam Pandey vs State Of Maharashtra And Ors on 8 December, 2021
Author: R. N. Laddha
Bench: R. D. Dhanuka, R. N. Laddha
6_WP10104_15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10104 OF 2015
WITH
INTERIM APPLICATION NO.3856 OF 2021
Harishyam Pandey ... Petitioner
Vs.
State of Maharashtra and others ... Respondents
Mr. Vagish Mishra a/w. Mr. Siddhesh Rajput and Mr. Varad Dubey i/b.
Law Counsellors for Petitioner / Applicant.
Mr. N. K. Rajpurohit, AGP for Respondent Nos.1 and 4-State.
Mr. Aseem Naphade a/w. Mr. Nikhil Mehta i/b. KMC Legal Venture for
Respondent Nos.2 and 3.
Mr. S. P. Thorat for Respondent No.5.
Mr. Swapnil S. Jadhav i/b. Mr. Abhijeet A. Joshi for Respondent No.7.
CORAM : R. D. DHANUKA &
R. N. LADDHA, JJ.
DATE : DECEMBER 08, 2021 P.C. :-
Learned counsel for the petitioner seeks liberty to delete respondent No.7 from the cause title of the petition in view of the objection raised by Mr. Jadhav, learned counsel for respondent No.7. Leave to amend is granted. Amendment to be carried out forthwith. Re- verification is dispensed with.
2. The controversy that arises in this petition is whether petitioner has been fully paid salary, D.A., gratuity, arrears and other legal benefits or not according to the post held by him.
3. It is the case of the petitioner that he was appointed as a full time Lecturer in Mathematics though initially on ad-hoc basis vide letter of appointment dated 13th May 1997 annexed at page 99, the petitioner was thereafter appointed on probation vide letter of appointment dated 7th July 1997 (annexed at page 100) and thereafter as a Lecturer on permanent basis on a substantive sanctioned post.
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4. In support of the submissions, learned counsel for the petitioner invited our attention to the documents annexed at pages 99, 100, 105, 109, 111, 113 and 117. He also invited our attention to the service certificate issued by the respondent college on 27 th February 2015 certifying that the petitioner was working in their institute as a Senior Lecturer and HOD in the Department of Applied Mathematics of their college on regular basis with effect from 29 th July 1997 and as an Assistant Professor with effect from academic year 2011 to 27 th February 2015. He had been heading the department since joining and retired on 28th February 2015.
5. On the other hand, Mr. Naphade, learned counsel for respondent Nos.2 and 3 invited our attention to the undertaking dated 17 th February 2001 and the undertaking taken on the stamp paper dated 30 th April 2010 and would submit that in view of the said undertakings, the respondents are entitled to recover the excess amount paid, if any, to the petitioner.
6. Perusal of the documents referred to in the aforesaid paragraphs as also the service certificate would clearly indicate that the petitioner was appointed on regular basis as a Lecturer and subsequently as a Senior Lecturer which appointment continued till the date of his retirement. The respondents thus cannot calculate the amount of salary payable to the petitioner on the basis of ad-hoc appointment. The undertakings relied upon by learned counsel for respondent Nos.2 and 3 are the undertakings given by the petitioner at the stage of granting revised pay-scale and to the effect that if any excess payment is found to have been made to him as a result of incorrect fixation, the same would be refunded by the petitioner to the college either by adjustment against future payments due to him or otherwise. It is not the case of the respondents that the petitioner has been paid any excess payment due to the revised pay-scale effective from 1 st January 1996. The reliance thus placed by learned counsel for respondent Nos.2 and 3 on the said undertakings is totally misplaced.
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7. Mr. Naphade, learned counsel for respondent Nos.2 and 3 does not dispute that the payment made to the petitioner has been made on the basis of ad-hoc appointment though the record would indicate otherwise. We, therefore, direct the respondents to re-calculate the salary payable to the petitioner on the basis of the finding rendered by this Court in the earlier paragraphs of this order on or before the next date with a copy to be served upon petitioner's advocate.
8. At this stage, Mr. Naphade, learned counsel for respondent Nos.2 and 3 submits that he has filed Writ Petition (St.) No.22777 of 2021 impugning the order passed by the Appellate Controlling Authority dated 15th July, 2021. He states that the outcome of this petition will have some bearing on the outcome of the said writ petition being Writ Petition (St.) No.22777 of 2021 and thus, his clients would apply for the administrative order from the Hon'ble the Chief Justice for clubbing Writ Petition (St.) No.22777 of 2021 with this petition. Statement is accepted.
9. If the said writ petition is assigned to this Division Bench, both the matters would be heard together.
10. Place both the matters First on Board on 20 th December 2021 subject to the order of Hon'ble the Chief Justice clubbing Writ Petition (St.) No.22777 of 2021 with this petition.
11. If there is no order of clubbing Writ Petition (St.) No.22777 of 2021 filed by the management with this petition, this Court would proceed with Writ Petition No.10104 of 2015 on the next date.
12. Re-calculation of the salary of the petitioner as aforesaid directed shall be placed before the Court on the next date without fail to enable this Court to pass further orders.
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