NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 957 OF 2017

Giridhar .. Appellant

Versus

The State of Maharashtra & Ors. .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Being aggrieved and dissatisfied with the impugned judgment and

order passed by the High Court of Judicature at Bombay, Nagpur Bench,

Nagpur dated 22.09.2016 in Writ Petition No. 5450 of 2015, by which

the  High  Court  has  restricted  the  grant  of  monetary  benefits  to  the

petitioner with effect from 03.07.2008 only, the original writ petitioner

has preferred the present appeal.    

2. The appellant-original writ petitioner was appointed as a Lecturer

in Respondent no. 4 College on 26.12.1989 against the post reserved for

scheduled tribe category.  Though he does not belong to the scheduled

tribe category, he was appointed against the said reserved post because,

despite  the  advertisement,  no  candidate  from  the  said  category  was

available  for  appointment.   As  per  the  Government  Resolution  dated

25.01.1990,  it  was  resolved  that  in  the  absence  of  candidates  for

appointment to posts reserved for a backward class category, persons

not belonging to the said category can be appointed.   The said resolution

further provided that, however, the advertisements were to be issued for

five  years  continuously  for  appointment  of  the  reserved  category

candidate.   It  further  provided  that  if,  despite  the  above,  no  such

candidate is available, the post be de-reserved.  That, by an appointment

order  dated  15.03.1990,  the  appointment  of  the  appellant  from

26.12.1989  to  the  end  of  session  i.e.  up  to  20.04.1990  as  Full-time

Lecturer  in  Chemistry  stood  approved.   That,  the  Vice  Chancellor  of

Respondent no. 2-University issued direction No. 2/1990 to follow the

directions  contained  in  the  G.R.  dated  25.01.1990,  referred  to

hereinabove.  It  appears  that  the  appellant-original  writ  petitioner

continued in the said post as every year advertisement was issued for

appointment  of  reserved  category  candidate,  but  no  such  candidate

became  available.   That,  by  communication  dated  16.08.1993,

Respondent  no.  2  University  granted  onwards  approval  to  the

appointment  of  the  original  writ  petitioner  and  the  same  was

communicated by the Joint Registrar of the University to Respondent no.

4-College, where the original  writ  petitioner was working.   Thus, the

appellant-original  writ  petitioner  continued  in  first  five  years  of  his

service with technical breaks due to the requirement of advertising the

post for the reserved category.   However, by order dated 06.03.1997, the

Deputy  Registrar  of  Respondent  no.  2-University  condoned  the  said

breaks in service of the original writ petitioner.  As a consequence of the

order/letter  of  Respondent  no.  2-University  dated  16.08.1003,  in  the

subject-wise seniority list as on 02.07.1997 issued by Respondent no.

4-College,  the  original  writ  petitioner  was  shown  as  appointed  on

25.12.1989  and  the  post  was  shown  as  de-reserved.   Therefore,  the

original writ petitioner and other employees submitted an application on

08.12.1997  to  the  Vice  Chancellor  of  Respondent  no.  2-University

praying for de-reservation of that post in view of their continuation in

service and approval of their appointments.  It is the case on behalf of

the  original  writ  petitioner  that  he  waited  for  the  outcome  of

representation dated 08.12.1997 and did not approach the court at that

time  in  view  of  the  circular  issued  by  the  General  Administration

Department of Respondent no. 1-State dated 28.07.1999 and the letter

dated  17.04.2001,  which  provided  that  if  the  employee  directly

approaches the court without first seeking redressal of their grievances

by representation to the Government and exhausting the said process, it

would be considered violation of the service rules and disciplinary action

would be taken against them.  It is the case of the original writ petitioner

that as no decision was taken on the representation made by the writ

petitioner,  he  was  compelled  to  approach  the  court  by  way  of  writ

petition which, as such, was first in the year 2011.  That, in between,

and in terms of the aforesaid G.R. dated 25.01.1990, the High Court

granted relief to another employee Sanjay Kharbade in Writ Petition No.

1085 of 2004 directing the Respondent-State to de-reserve the post and

to give placement as also consequential benefits to the petitioner therein

from  the  date  of  his  first  appointment.   Therefore,  the  original  writ

petitioner filed another representation on 16.10.2007 before Respondent

no. 3, through Respondent no. 4, for rectification of fixation of his pay

w.e.f.  26.12.1989.   It  appears  that,  in  this  regard,  on  16.10.2007,

Respondent no. 3 sent a letter to Respondent no. 4-College directing that

since the post on which the writ petitioner was appointed was shown in

open category in the roaster, necessary action was required to be taken

by Respondent no. 4 for the benefit of continuity of service.   It appears

that vide communication dated 28.03.2008, Respondent no. 3 issued a

letter regarding grant of benefit of continuity of service and other benefits

to persons, like the writ petitioner, upon de-reservation of their posts.

According to the writ petitioner, the said letter clearly stated that such

Lecturers were to be given annual increments and other benefits from

the dates of their first appointments.  That, thereafter, Respondent no. 4

passed confirmation order dated 04.03.2009 in favour of 13 employees,

including the writ  petitioner,  wherein he was shown as confirmed on

26.12.1991, on completion of two years’ service from the first date of his

appointment  i.e.  26.12.1989.   That,  the  writ  petitioner  made

representation to Respondent no. 1-State and proposal for his placement

in selection grade which was also forwarded by Respondent no. 4.   The

writ petitioner prayed for placement, as also, proper fixation of pay scale

from the date of his appointment i.e. 26.12.1989, along with grant of

arrears as per the Fourth, Fifth and Sixth Pay Commissions.  As nothing

was done, the writ petitioner issued a legal notice dated 04.06.2011 and,

thereafter, filed Writ Petition No. 3694 of 2011 before the High Court.

That by order dated 17.07.2013, the High Court disposed of the said writ

petition  directing  Respondent  no.  3  to  take  decision  and  pass

appropriate order on the representation of the writ petitioner.   That by

order dated 06.09.2013, Respondent no. 3 rejected the representation of

the writ petitioner on the ground that there was break in service of 314

days.  That, thereafter, there were number of representations made by

the original writ petitioner explaining the so-called break in service and

sought  for  an  approval  as  senior  lecturer  and  placement  in  senior

selection grade w.e.f. 26.12.1989, on the basis of his first appointment

i.e. 26.12.1989.  It appears that, in between, there were correspondences

between Respondent no. 4 and Respondent no. 3 regarding payment of

arrears to the writ petitioner.   However, no relief was granted to the

original writ petitioner and as his grievances were not being redressed by

the respondent, the writ petitioner preferred the present Writ Petition No.

5450  of  2015  before  the  High  Court  praying  for  his  placement  and

fixation of pay from the date of his first appointment i.e. 26.12.1989,

direction to Respondent nos. 1 and 2 to pay his entire arrears due from

26.12.1989  onwards  with  interest  and  to  quash  the  order  dated

06.09.2013 passed by Respondent no. 3.

3. That by impugned judgment and order dated 22.09.2016, the High

Court has held that the case of the writ petitioner is fully covered by the

judgment of the High Court in the case of Harshendu Vinayak Madge

v.  Chembur  Trombay  Education  Society and  held  that  the  writ

petitioner  is  entitled  to  all  benefits  treating  his  appointment  w.e.f.

26.12.1989.  However, thereafter, the High Court held that the benefits

would be payable to the original writ petitioner only w.e.f. 03.07.2008 as

he could be granted the benefits from the period commencing from three

years prior to Writ Petition No. 3694 of 2011 filed by the writ petitioner.   

4. Feeling aggrieved and dissatisfied with the impugned judgment and

order  passed  by  the  High  Court  insofar  as  restricting  the  period  of

benefit to the writ petitioner from 03.07.2008 only and not from the date

of his first appointment i.e. 26.12.1989, the original writ petitioner has

preferred the present appeal.

5. Learned  counsel  appearing  on  behalf  of  the  appellant  has

vehemently submitted that, in the facts and circumstances of the case,

the High Court has materially erred in restricting the period of benefits

to the appellant-writ petitioner from 03.07.2008 only and not from the

date of his first appointment i.e. 26.12.1989.   

5.1 It  is  vehemently  submitted by the learned counsel  appearing on

behalf of the appellant that by restricting the period from 03.07.2008

only, the High Court has not at all considered the fact that right from

1997  onwards,  the  appellant-original  writ  petitioner  was  making

representations for redressal of his grievances to grant him benefits from

26.12.1989 and to de-reserve the post.  

5.2 It is further submitted on behalf of the appellant that, as such, as

far back in 1990, the G.R. was issued by the State to deal with situations

where in the absence of candidate for appointment to posts reserved for

backward classes category, persons not belonging to the said category

can be appointed.   It is submitted that the resolution further provided

that such reserved post where persons other than the reserved category

stood  appointed,  advertisements  were  to  be  issued  for  five  years

continuously.   It  is  submitted  that  it  further  provided  that  if  such

candidate  is  not  available  despite  the  continuous advertisements,  the

said post is to be de-reserved.   It is submitted that, in the present case,

despite number of advertisements, the reserved category candidate was

not available and, therefore, the appellant- original writ petitioner was

continued and worked continuously from 26.12.1989.   It is submitted

that G.R. dated 25.01.1990 based on which the appellant was appointed

and working, was required to be de-reserved.    It is submitted that, as

such the High Court has accepted the same while passing the impugned

judgment  and order,  however,  erroneously  has  restricted the  benefits

from 03.07.2008 only.

5.3 It is vehemently submitted on behalf of the appellant that, as such,

in  the  case  of  Harshendu  Vinayak  Madge  v.  Chembur  Trombay

Education Society,  the  Bombay High Court  has  granted the  similar

relief  and  directed  to  grant  all  benefits  from  the  date  of  the  first

appointment of the petitioner therein.     It is submitted that, therefore,

as a model employer, the State Government ought to have granted the

similar  benefits  to  all  the  employees  without  even  waiting  for  the

representation and/or filing the writ petition.

5.4 It  is  further submitted on behalf  of  the appellant  that,  as such,

there is no delay at all on the part of the appellant-original writ petitioner

in raising the dispute and/or approaching the court.   It is submitted

that  the  appellant  waited for  the  outcome of  the  representation and,

therefore, having failed to get any result, only thereafter the appellant

filed the writ petition.  It is submitted that only in a case where the delay

is  attributable  to  an  employee/writ  petitioner,  the  benefits  can  be

restricted.   It is submitted that, in the present case, the delay in filing

the writ petition is not attributable to the appellant and, therefore, the

impugned judgment and order passed by the High Court restricting the

benefits w.e.f.  03.07.2008 only, deserves to be quashed and set aside

and the appellant is entitled to the reliefs and other benefits from the

date of his first appointment i.e. 26.12.1989.

6. The  present  appeal  is  vehemently  opposed  by  Shri  Karthika,

learned  advocate  appearing  on  behalf  of  the  respondent-State  of

Maharashtra.

6.1 It is submitted that, as such, in the present case, the court order is

a consent order and, in fact, the learned counsel appearing on behalf of

the appellant-original  writ  petitioner agreed before  the Court  that  the

benefits be restricted from 03.07.2008 only.    

6.2 It is submitted by the learned counsel appearing on behalf of the

State of Maharashtra that, even otherwise, as the appellant-original writ

petitioner for the first time approached the Court by way of writ petition

in the year 2011, which was earlier disposed of by directing the State to

take  an appropriate  decision on the  representation made by  the  writ

petitioner, the High Court has rightly restricted the grant of arrears and

other benefits from 03.07.2008.

6.3 Making the above submissions, it is prayed to dismiss the present

appeal.

7. Heard the learned counsel  appearing on behalf  of  the  respective

parties at length.   At the outset, it is required to be noted that the only

issue in the present appeal is whether, in the facts and circumstances of

the case, the High Court is justified in restricting the grant of arrears

and  other  benefits  from  03.07.2008,  and  not  from  the  date  of  first

appointment of the writ petitioner i.e. 26.12.1989?   

7.1 Having  heard  the  learned  counsel  appearing  on  behalf  of  the

respective parties and considering the facts narrated above and the fact

that,  right  from  1997  onwards,  the  appellant-original  writ  petitioner

made representations for his grievances and requested to de-reserve the

post, which was made in view of the G.R. dated 25.01.1990, it cannot be

said  that  the  appellant  had  slept  over  his  rights.  In  fact,  when  the

representations were made, it was for the appropriate authority to deal

with the same expeditiously.  From the material on record and, as per

the case of the appellant, in view of the circular dated 28.07.1999 and

letter  dated 17.04.2001,  the employees were restrained from going to

Court  straightaway,  without  first  seeking  the  redressal  of  their

grievances by representation to the Government and exhausting the said

process.   Therefore,  it  is  the  case  on  behalf  of  the  appellant  that,

therefore, the appellant-original writ petitioner waited for the outcome of

his representation and did not prefer the petition earlier.  It is submitted

that,  even  thereafter,  when the  appellant-original  writ  petitioner  filed

representation in the year 2011, the High Court directed the State to

decide the representation at the earliest.  It is submitted that, therefore,

the delay is not attributable to the appellant at all.  The appellant was

vigilant from the very beginning.  In fact, the State and the appropriate

authority/College/University ought to have taken the decision earlier to

de-reserve the post on which the appellant was working, in view of G.R.

dated 25.02.1990 and the subsequent communications.  Therefore, the

delay cannot be attributed to the appellant and the High Court is not

justified in restricting the  benefits  with effect  from the  preceding last

three years’ only. Only in a case where the delay is attributable to the

employee the benefit can be restricted. That is not the case here.

7.2 Now,  so  far  as  the  submission  made  on  behalf  of  the

respondent-State that the impugned order is a consent order and the

learned counsel appearing on behalf of the appellant agreed to restrict

the  monetary benefits  w.e.f.  03.07.2008 i.e.  the  period of  three years

preceding the last date of filing of the previous petition is concerned, the

aforesaid has no substance.   First of all, there is no such concession

made by the learned counsel appearing on behalf of the appellant.  What

is pointed out in paragraph 4 is the submission made by the learned

Additional Government Pleader.  As such, there is no concession given as

sought  to  be  canvassed  on  behalf  of  the  respondent  State.     Even

considering  the  order  passed  by  the  High  Court  in  the  case  of

Harshendu Vinayak Madge v. Chembur Trombay Education Society,

though the said case is of termination, the High Court while quashing

and setting  aside  the  order  of  termination,  has  directed to  grant  the

benefits with effect from the initial appointment.

7.3 Therefore, in the facts and circumstances narrated above and, more

particularly, that the delay is not attributable to the appellant-original

writ petitioner at all,  the High Court is not justified in restricting the

monetary benefits  w.e.f.  03.07.2008 only.   The appellant-original  writ

petitioner shall  be entitled to all  the monetary benefits,  including the

arrears  etc.  treating  his  appointment  from  26.12.1989  and  all  such

consequential benefits accordingly.    

8. In view of the above and for the reasons stated hereinabove, the

present appeal succeeds.  The impugned judgment and order passed by

the High Court restricting the monetary benefits w.e.f. 03.07.2008 only

is hereby quashed and set aside and it is held that the appellant shall be

entitled  to  the  arrears/monetary  benefits  from  the  date  of  his  first

appointment i.e. 26.12.1989 and the appellant shall  be paid all  other

consequential benefits accordingly, to be paid within a period of three

months from today.  The present appeal  is  allowed accordingly.    No

costs.

……………………………………J. (L. NAGESWARA RAO)

……………………………………J. (M. R. SHAH)

New Delhi, March 6, 2019.