Bombay High Court
Nagpur Bench At Nagpur vs Shri Shivaji Education Society on 10 March, 2014
Author: A. B. Chaudhari
Bench: A. B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No.1561/2012
Shri Diwakar Madhukarrao Pande,
adult, Occ. Nil, r/o Shri Vitthal Khobragade,
Ambedkar Chowk, Pauni, Tq. Pauni,
Dist. Bhandara. .....PETITIONER
...V E R S U S...
1. Shri Shivaji Education Society, Amravati
thr. its Chairman.
2. Shri Shivaji Education Society, Amravati's
Science College, Pauni, Tq. Pauni,
Dist. Bhandara, thr. Principal.
3. Nagpur University, Nagpur, Civil Lines,
Nagpur, thr. its Registrar. ...RESPONDENTS
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Mr. V. D. Raut Advocate for petitioner.
Mr. R. D. Bhuibhar, Advocate for respondent no.2.
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CORAM:- A. B. CHAUDHARI, J.
DATED :- 10.03.2014
J U D G M E N T
1. Rule. Rule returnable forthwith. Heard finally by consent of the rival parties.
2. Being aggrieved by judgment and order dated 21.06.2011 passed by Presiding Officer, University and College ::: Downloaded on - 11/03/2014 22:55:37 ::: 2 wp1561.12.odt Tribunal, Nagpur in Appeal No. N-16/97, the petitioner-original appellant, has preferred the present petition.
FACTS:
3. The petitioner with a requisite qualification of 10th standard passed was appointed as Peon with effect from 31.07.1992 by respondent nos. 1 and 2-Shri Shivaji Education Society, Amravati in its college at Paoni, Tq. Paoni, Dist. Bhandara.
However, on 13.09.1997, with effect from 01.10.1997, the employer terminated his services. The employer had, however, retained the juniors to him in service by name; Mr. Bawankar, Mr. Raut and Mr. Chikhale. The employer, thus, breached the rule of 'last come first go' in violation of the provisions of section 25-G of the Industrial Disputes Act (For short 'ID Act'). The employer also did not comply with the mandatory provisions of section 25-F of the ID Act and due to violation of statutory provisions of Parliamentary law, it was deemed that the petitioner was in employment as usual. His retrenchment was illegal and bad in law. He, therefore, challenged his termination before the University and College Tribunal under section 59 of the Maharashtra University Act, 1994 by filing appeal.
::: Downloaded on - 11/03/2014 22:55:37 :::3 wp1561.12.odt Respondent nos. 1 and 2 filed their reply and stated that the respondent-Senior College is not an industry. The provisions of ID Act are not applicable. The procedure laid down under the ID Act was not required to be followed. The petitioner was a daily wager with effect from 13.07.1992 and could not be termed as a Peon or regularly appointed person, within the meaning of section 59 of the Act of 1994. The junior employees indicated by the petitioner are permanent employees but for Mr. Bawankar, who is also a daily wager like the petitioner. A daily wager cannot have any status of permanent employee as per the statutory provisions and standard Code. The respondents thus prayed for dismissal of the appeal.
The appeal was earlier decided by judgment dated 29.01.1998 and was dismissed holding that the appointment of the appellant was not properly made in terms of the provisions of Standard Code. This Court in Writ Petition No.1512/1998 set aside the order of dismissal of the appeal and remitted the appeal to the tribunal for fresh decision on merits. After remand, the appeal was taken up for hearing by the tribunal. The tribunal dismissed the appeal.
::: Downloaded on - 11/03/2014 22:55:37 :::4 wp1561.12.odt SUBMISSIONS:
4. In support of the petition, assailing the impugned judgment and order passed by the tribunal, counsel for the petitioner argued that the petitioner filed appeal before the tribunal since his employment was in senior college and the tribunal was created by the Act of 1994. Even if, he was appointed temporarily as a Peon, as contended by the employer, his appeal was certainly maintainable before the tribunal. He further argued that the petitioner being Peon is a 'Workman' and the Senior College in which he was working is an 'Industry'. The petitioner was entitled to canvass his grievance about violation of mandatory provisions of the ID Act namely Section 25-F and 25-G and Rule 81 of the Industrial Disputes (Bombay) Rules, 1957 since there was a breach of statutory provision of Central law. He then argued that the fact that the petitioner was working from 13.07.1992 till his termination on 13.09.1997 is not in dispute and it is not the case of the respondent that he was intermittently discharged from duty nor any record was produced to show that he was working as daily wager or that he did not receive payment for the work done by him for the period of 240 days or more than that. No record ::: Downloaded on - 11/03/2014 22:55:37 :::
5 wp1561.12.odt was produced nor the pleadings were set out by the respondent-
employer as to the period of work those five years, the petitioners did not complete 240 days as alleged. The Tribunal committed an error in relying upon decision in the case of Himanshu Kumar Vidyarthi and ors...vs..State of Bihar & ors.; AIR 1997 SC 3657, which does not have any application. The petitioner was not appointed as daily wager but he was appointed as peon though with no writing and not only that the termination order itself shows that the petitioner would be accommodated if a vacancy arises in future in the said college at Paoni. He invited my attention to the evidence filed by him before the tribunal and argued that all the documents clearly show that the duty list given to him clearly indicated that nature of his work was not of daily wager. Learned counsel then argued that in the termination order itself, it was mentioned that he would be accommodated as and when the post is available in future and post became available but the petitioner was not employed. He also invited my attention to the communication dated 31.12.2012 showing one vacancy available in the same college at Paoni and, therefore, the petitioner can be accommodated.
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5. Per contra, Mr. Bhuibhar, learned counsel for the respondents, opposed the writ petition and supported the impugned judgment and order of the tribunal. He argued that the tribunal has dealt with the aspect about compliance of provisions of ID Act and various judgments of the apex Court and the petitioner failed to prove the grounds raised by him. Counsel for the respondents then argued that the petitioner was working as daily wager and, therefore, was not entitled to any relief in terms of decision in the case of Himanshu Kumar (supra) rendered by the Supreme Court. According to him, the employment of the petitioner was contrary to the Standard Code and he could not be appointed in clear and permanent post since the petitioner belongs to open category and then on the date of his appointment and thereafter no post for open category was at all available. He, therefore, submitted that the petitioner had no legal right to be in the employment and, therefore, at any rate, no relief can be granted to him as has been done by the College Tribunal. The counsel for the respondent-employer then argued that no post for open category has been available since after termination of services of the petitioner and even as on date all the posts which were available have been filled in due to clearance of backlog as ::: Downloaded on - 11/03/2014 22:55:37 ::: 7 wp1561.12.odt per the policy of reservation. Even as of today, no post is available for accommodating the petitioner. He also submitted that in the alternative at the most compensation can be granted to the petitioner looking to the long period that has passed and hence no order of reinstatement cannot be made. Finally, he prayed for dismissal of the writ petition.
CONSIDERATION:
Upon hearing learned counsel for the parties and upon perusal of the entire record, the following findings are recorded.
6. The first question is whether the petitioner who was working according to him as a Peon and according to the respondents as daily wager is a workman or not and whether respondent no.2 is an Industry or not?
The next question is whether the petitioner could canvass the grievance before the University and College Tribunal?
7. Before terminating the services, the respondent nos. 1 and 2 did not comply with the mandatory provisions of Section ::: Downloaded on - 11/03/2014 22:55:37 ::: 8 wp1561.12.odt 25-F and 25-G of the ID Act and then claimed reinstatement on that count in the light of the position in the case of Bangalore Water Supply, 1978 AIR 548, I do not think this Court should dilate and on the issue that the respondent-College is an "Industry" and petitioner-Peon as daily wager a "Workman".
The next question is whether before University and College Tribunal, constituted under the Maharashtra Universities Act, 1994, the question about violation of provisions of ID Act can be canvassed as a ground for assailing termination. The said question has already been answered by the Hon'ble Dr. Justice D. Y. Chandrachud of this Court in the case of Owesh Alam Mohd.
Yakub ..vs.. Principal, Maharashtra College of Arts, Science and Commerce, Mumbai and ors.; 2000 III CLR 364. It would be appropriate to quote following paragraph from the said judgment.
"6. The third submission which was urged before the Tribunal and which has been reiterated before me was that the petitioner was a workman, since he was employed as Hamal-cum-sweeper. As a workman, the petitioner was within the purview of the provisions of section 2(s) of the Industrial Disputes Act, 1947. The termination of his services without ::: Downloaded on - 11/03/2014 22:55:37 :::
9 wp1561.12.odt complying with the provisions of section 25-F of the Industrial Disputes Act, 1947 rendered the termination invalid. I find substance in this submission. The Presiding Officer of the Tribunal was of the view that the provisions of the Industrial Disputes Act, 1947 would not be attracted. This view is erroneous. The University and College Tribunal was constituted under the provisions of section 58 of the Maharashtra Universities Act, 1994. Section 59(1) of the Act is a non obstante provision and enunciates that notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a teacher or other employee) in any University, affiliated college or recognised institution, who is dismissed or removed or whose services are otherwise terminated shall have a right of appeal to the Tribunal. Section 61 sets out the powers of the Tribunal and sub-section (2) thereof empowers the Tribunal to inter alia reinstate an employee if it comes to the conclusion that the order of dismissal, removal or termination was "in contravention of any law contract or conditions of service for the time being in force or was otherwise illegal or improper". These are words of a wide amplitude which were designedly used by the legislature. The University and College Tribunal is a specialised Forum which has been constituted for dealing with grievances of the teaching and non teaching employees of Universities governed by the Act ::: Downloaded on - 11/03/2014 22:55:37 ::: 10 wp1561.12.odt and their affiliated Colleges and Institutions. Section 59 confers a right of appeal upon the class of employees referred to therein. Consequently, the remedy of an employee covered by the provisions of Section 59 of approaching the Labour of Industrial Court has now been vested in the Tribunal. That is why the Tribunal has been given an extraordinarily wide power to determine as to whether the termination of service was "in contravention of any law, contract or conditions of service or was otherwise illegal or improper". The protection conferred upon employees of Universities and their affiliated colleges or institutions must be given full amplitude. The protection is intended to subserve a public purpose and ought not to be whittled down by a narrow construction. The remedy conferred by section 59 empowers the Tribunal to test the validity of an order of termination on the anvil of the provisions of the Industrial Disputes Act, 1947 where, as in the present case, the non teaching employee was a workman within the meaning of section 2(s). In the present case, the employee was admittedly a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. The termination of his service was in violation of the provisions of the Industrial Disputes Act, 1947. That being the position, the employee was clearly entitled to relief on this ground."
::: Downloaded on - 11/03/2014 22:55:37 :::11 wp1561.12.odt In the light of the pronouncement made in the aforesaid judgment, I respectfully agree and I have no difficulty in holding that the tribunal has the power to determine the validity of termination, if it is in contravention of any law including the provisions of the ID Act.
8. The next question is about the plea of the petitioner about the violation of Section 25-F of the ID Act. As stated earlier, he averred in the memo of appeal that he was appointed with effect from 13.07.1992 and his services came to be terminated w.e.f. 01.10.1997. Thus, he worked for more than 5 years from 13.07.1992 till 01.10.1997. The reply to this averment filed by respondent nos. 1 and 2 is that the petitioner had actually worked on daily wages w.e.f. 13.07.1992 for the period excluding Diwali Holidays, Summer vacation, Sundays and other holidays. Since the termination order dated 13.09.1997 is in writing that cannot be disputed by respondent nos. 1 and 2. To repeat, respondent nos. 1 and 2 have admitted that the petitioner worked from 13.07.1992 till the date of his termination namely 01.10.1997 but according to them, he was on daily wages excluding the Diwali holidays, summer vacation, Sundays and other holidays. It is not ::: Downloaded on - 11/03/2014 22:55:37 ::: 12 wp1561.12.odt stated by respondent nos. 1 and 2 whether the payment of wages or salary was paid to him on weekly basis or monthly basis.
Respondent nos. 1 and 2 also did not disclose in their reply nor filed any documents, muster roll, vouchers to show that as to whether payments were made on monthly or weekly basis or consolidated salary was paid or on daily basis for the entire period of 5 years. Respondent nos. 1 and 2 being custodian of the records in that connection, were required to give data about the same and also produce the documents relating thereto before the tribunal since the petitioner did not have any access to those documents. Respondents being party before the tribunal were clearly in a position to produce all the documents, evidence but the respondents did not disclose the data nor produced any documents to show the number of days the petitioner worked with them for the said period of five years. The contention raised by learned counsel for respondent nos. 1 and 2 that it was for the petitioner to prove that he had worked for 240 days in one year of continuous service or that he worked for five years in the above factual background does not appeal to me. In other words, there is no explanation on the part of respondent nos. 1 and 2 why disclosures were not made before the tribunal or why muster rolls, ::: Downloaded on - 11/03/2014 22:55:37 ::: 13 wp1561.12.odt vouchers etc. about payments were not produced before the tribunal. On the contrary, they have admitted that he worked from 1992-97 and it is not their case that the services of the petitioner were discontinued for any reason during the said period of 5 years either orally or in writing which clearly means that the period of 5 years spent by the petitioner with respondent nos. 1 and 2 was continuous. Even testing the case of respondent nos. 1 and 2 about the non working of the petitioner during Diwali or Summer holidays or Sundays and holidays in the college, it has not been shown by respondent nos. 1 and 2 that the petitioner did not complete 240 days in one year of continuous service preceding the date of termination of services because entire records were with respondent nos. 1 and 2. However, the contention about the Sundays and holidays or Diwali or Summer holidays also will have to be rejected since in Diwali and Summer Holidays, the College is closed but then that is not the fault of the petitioner that he could not work. It is well settled legal position that even if the workman has not worked on Sundays and Holidays with hammer or sickle, such period of Sundays and holidays are required to be computed for the purpose of calculating 240 days. All the more so since the petitioner claims to have worked on fixed monthly salary. The ::: Downloaded on - 11/03/2014 22:55:37 ::: 14 wp1561.12.odt document nos. R-1 and R-2 filed by respondent nos. 1 and 2 before the College Tribunal for showing that he was working on daily wages cannot be said to be the proof for the entire period of his work and at the most he can be treated as daily wager only for September-1997. Even otherwise, since Diwali and Summer holidays are compulsory holidays in the Colleges, the said period also will also have to be taken into account for calculating 240 days on the same analogy. However, even if the said period is deleted, the petitioner having continuously worked from 1992 to 1997 as admitted by respondent nos. 1 and 2 and in the absence of production of documents by them as aforesaid, it will have to be held that he completed 240 days in one year of continuous service.
That apart, in para 4 of the rejoinder filed by the petitioner, to the reply to the appeal before the tribunal, copy of which was served on the counsel for respondent nos. 1 and 2, prayer was made for production of documents in the custody of respondent nos. 1 and 2 i.e. register-cum-wage register, seniority list, list of employees appointed after October-1997 but nothing was produced. It is, thus, clear that the petitioner had taken all steps to get the records before the Court but the respondent nos. 1 and 2 did not produce the same.
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9. It is, therefore, noteworthy that the petitioner was given a duty-list. Perusal of the duty-list in respect of the petitioner clearly shows that the nature of his work was of full time from 10.30 a.m to 5.30 pm. The duty list shows that he was even supposed to do the works at Nagpur and Bhandara offices of the Government as directed by Principal and the nature of works are to reach the letters, communications and even works relating to the Treasury office of the Government at Nagpur and Bhandara.
Looking to the said duty, in my opinion, by no stretch of imagination, the petitioner could be said to have been on daily wages for all those five years.
10. The issue about burden of proof in respect of proof of completion of 240 days has been decided by this Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education, Amravati and anr. ..vs.. Sanjay Krishnarao Shrungare, Amravati, 2008 II CLR 301, it would be appropriate to quote para 10 from the said decision, which reads thus:
"10. First, it has to be noted that this cross- examination also does not dislodge the veracity of the word of the respondents which has been relied on by the ::: Downloaded on - 11/03/2014 22:55:37 ::: 16 wp1561.12.odt courts below. Secondary, while there is no doubt that the burden did not lie on the appellants to disprove that the respondents had worked for 240 days, if the appellants were in possession of some evidence in respect of the services rendered by the respondents, there is no reason why it should not have tendered such evidence.
In these appeals charts showing the number of days for which the respondent in each of the appeals worked have been annexed by the appellant itself. They do not show that the appointment was sporadic or seasonal in nature. The charts annexed by the appellant itself in these appeals would demonstrate that the appellant could have tendered this evidence before the Labour Court. If the appellant chose to keep from the Court the best evidence it had in respect of respondents' employment, the appellant must blame itself."
11. The next contention that there is no retrenchment within the meaning of section 25-F of the ID Act, in the case of the petitioner, as he was working on daily wages also will have to be rejected in the light of the observations of the apex Court in para
(ii) in the case of Santosh Gupta ..vs.. State Bank of Patiala,;
1980 AIR 1219. Para 5 reads thus:
::: Downloaded on - 11/03/2014 22:55:37 :::17 wp1561.12.odt "11. In State Bank of India v. Shri N. Sundaramoney (1976) 3 SCR 160: (AIR 1976 SC 1111) a Bench of three judges of this Court consisting of Chandrachud J. (as be then was), Krishna Iyer, J., and Gupta, J., considered the question whether s. 25F of the Industrial Disputes Act was attracted to a case where the order of appointment carried an automatic cessation of service, the period of employment working itself out by efflux of time and not by an act of employer, Krishna Iyer, J. who spoke for the Court observed.
"'Termination .. for any reason whatsoever' are the key words. Whatever the reasons every termination spells retrenchment. So the sole question is-has the employee's service been terminated ? Verbal apparel apart, the substance is decisive: A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer but the fact of termination howsoever produced. True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract s. 25F and automatic extinguishment of service be effluxion of time cannot be sufficient. Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and ::: Downloaded on - 11/03/2014 22:55:37 ::: 18 wp1561.12.odt intransitive senses are covered in the current context.
Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite orders one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A preemptive provision to terminate is struck by the same vice as the post- appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision".
12. But then even in the case of daily wagers or persons working intermittently, it has been held by the Supreme Court in the case of The State of Bombay and ors. ..vs.. The Hospital Mazdoor Sabha and ors; AIR 1960 SC 610 that the provisions of Section 25-F are mandatory in the nature and any non compliance will render the impugned retrenchment invalid and inoperative.
13. The next submission is about the decision of the Supreme Court in the case of Himanshu Kumar (supra). This decision cannot be applied without reading the same carefully. In the first place, the said decision is of the two Hon'ble Judges of the Supreme Court and secondly, the case was decided with reference to the Department of the Government not being treated as an ::: Downloaded on - 11/03/2014 22:55:37 ::: 19 wp1561.12.odt Industry which is not the case at hand. The question was about the appointment to the post in Government service, which is not the case at hand.
14. As stated earlier, it was not the case of respondent nos.
1 and 2 that the petitioner was intermittently discharged from the service during the tenure of five years nor any such material was produced before the tribunal. The case of respondent nos. 1 and 2 is not that they have complied with the provisions of Section 25-F of the ID Act by giving notice and retrenchment compensation nor it is their case that they had published seniority list as required and that there was no violation of Section 25-G of the ID Act in the context of the clear averment in the memo of appeal in paragraph 2 that the juniors to him namely Mr. Bawankar, Mr. Raut and Mr. Chikhale were appointed as Peon though it was the defence of the respondents that they were brought on transfer from some other college but then it is not shown that the seniority list was maintained for the respondent no.2-College. That being so, there is reason to hold that there was violation of Section 25-F and 25-G on the part of respondents in not following the rule of 'last come first go.' ::: Downloaded on - 11/03/2014 22:55:37 ::: 20 wp1561.12.odt
15. The next question is about grant of relief to the petitioner. The petitioner belongs to 'Brahmin' caste in Open category. His termination took place w.e.f. 01.10.1997. The termination order itself shows that in future, upon availability of vacancy, he would be given preference while making appointment.
The petitioner came to know about the intention of respondent nos. 1 and 2 of filling up the vacancy pursuant to the advertisement in March-2003 and, therefore, he had rushed to the Industrial Court by filing Complaint ULP No. 88/2003, alleging breach of Section 25-H of the ID Act for giving him preference.
The Industrial Court dismissed his complaint. But in respect of the said issue about the reemployment under section 25-H of the ID Act the defence of respondent nos. 1 and 2 is that the services of petitioner were terminated because the Joint Director of Higher Education, Nagpur Region, Nagpur issued communication dated 27.08.1997 about non payment of grants to the persons working on consolidated salary or daily wages. But then, the said circular did not ask the respondents to terminate services of the petitioner.
That apart, respondent nos. 1 and 2 have filed an affidavit on 14.02.2014 in this Court and have stated therein that in 2003 two ::: Downloaded on - 11/03/2014 22:55:37 ::: 21 wp1561.12.odt posts of Peon were advertised but both of them were reserved for SC and ST category. Thereafter, advertisement for appointment on 16 posts of Peon was issued on 03.03.2005 but not a single post was kept for open category amongst those 16 posts. On 18.10.2006 another advertisement was issued for filling up two posts but the said posts were again reserved for physically handicapped candidates. By order dated 25.06.2013, a peon by name Mr. B. H. Deshmukh from Teosa College of respondent nos.
1 and 2 was transferred to Paoni College in the vacant post of Peon instead of giving appointment to the petitioner as assured in the termination order. The communication dated 31.10.2012, Annexure AA, issued by the Secretary of the Society shows one post of peon vacant at Paoni College and it is stated that this one post was also reserved. It is thus, clear from the above facts that after termination of the petitioner' services, who was promised to give preferential treatment in future for appointment till date i.e. even after 17 years, not even one post has been kept for the open category candidate though two posts in 2003, 16 posts in 2005, two posts in 2006, one post to which aforesaid B. H. Deshmukh was appointed by transfer and last one post available in Paoni College were available. Learned counsel for the respondent nos.
::: Downloaded on - 11/03/2014 22:55:37 :::22 wp1561.12.odt 1 and 2 informed this court that it is because of the policy of the State Government to clear backlog, not a single post could be kept for the persons belonging to the open category and in this case, the petitioner, who belongs to Brahmin caste and is in open category. One wonders how a single post could be reserved despite availability of several posts as aforesaid in which the petitioner could be accommodated, the only reason for depriving him of employment is according to respondent nos. 1 and 2 the policy of the State Government to go on reserving posts even though a single post of peon was available in Paoni college as communicated in the said letter dated 31.10.2012 issued by the Secretary of the Society.
16. The above situation is tale telling and shows how the persons falling in the open category are treated by the Government. It must be kept in mind that the earth is mother of all people, and all people should have equal right upon it. The policy of removal of backlog and reservation must be implemented with human face and with due regard even to the open category persons like the petitioner.
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17. The petitioner has been diligently prosecuting his cause for the last 17 years, but without any success. In view of the findings given by me above, violation of section 25-F and 25-G of the ID Act which are mandatory, it will have to be held that the termination of the petitioner is illegal and void ab initio. It will have to be also held that since the termination order itself shows that he would be appointed in future vacancy and since in the last 17 years, not a single post is kept for open category candidate and even one post came to be reserved, the petitioner must be given relief. The statement made by Mr. Bhuibhar, learned counsel for respondents nos. 1 and 2 that respondent nos. 1 and 2 are ready to pay Rs.30,000/- by way of compensation since 17 years has passed but reinstatement should not be ordered, does not appeal to me. It is not the case of respondent nos. 1 and 2 that no work or no posts are available. On the contrary, the data produced above shows that several posts were available but then by making 100% reservation, the petitioner was, for the last 17 years, unjustly denied employment. Even now, several posts have been advertised by the society recently as contended by counsel for the petitioner. The respondent no.1-Society is a State wide society.
To deny reinstatement, as per reliance placed by the learned ::: Downloaded on - 11/03/2014 22:55:37 ::: 24 wp1561.12.odt counsel for respondent nos. 1 and 2, only because period of 17 years has passed is to punish the petitioner for no fault of him but merely because this court first remanded the appeal and the tribunal and this court took 17 years to decide the lis, the litigant like the petitioner cannot be made to understand that delay on the part of courts in deciding the cases would affect his right to get reinstatement. Actus curiae neminem gravabit.
18. In that view of the matter, I pass the following order:
O R D E R
(i) Writ Petition No. 1561/2012 is allowed.
(ii) Respondent nos. 1 and 2 shall appoint the petitioner in the next vacancy regular post of Peon and send a proposal for approval to the Joint Director of Education concerned who shall then grant his approval to the first post of Peon falling vacant in any of the colleges run by Shivaji Education Society, Amravati. Till then, the Jt.
Director of Education shall not grant approval to any appointment of Peon in Shivaji Education Society, Amravati for Amravati or Nagpur region.
(iii) Appointment shall be made on or before 31.05.2014. Till the approval is not granted by the ::: Downloaded on - 11/03/2014 22:55:37 ::: 25 wp1561.12.odt Jt. Director of Education, salary of the petitioner shall be paid by the respondent nos. 1 and 2, with effect from 01.06.2014.
(iv) The petitioner shall be granted continuity of service as if he was in the employment as on 30.09.1997 but shall not be granted any amount of back-wages for the period of unemployment till 31.05.2014.
(v) Respondent nos. 1 and 2 shall pay cost of litigation to the petitioner in the sum of Rs.30,000/- within a period of four weeks from today.
Rule made absolute in the above terms.
No order as to costs.
JUDGE kahale ::: Downloaded on - 11/03/2014 22:55:37 :::