Writ Petition No.2012 of 1990

23rd November, 2004

Petitioner Counsel: Mr. M. G. BHANGDE
Respondent Counsel: Mrs. BHARTI DANGARE,Mr. MOKADAM

JUDGMENT

JUDGMENT :- Heard the learned counsel for the petitioner as well as learned AGP for Respondent Nos.1 to 3 and learned Counsel for Respondent Nos.6 & 7.

2. Mr. Bhangde, the learned counsel for the petitioner states that both the petitioners at the relevant time possessed qualification of H.S.C. in Arts and Commerce subjects and were appointed w.e.f. 1-9-1973 in Respondent No.5 - College as non-teaching staff members. The petitioners were confirmed as Junior Clerks w.e.f. 1-4-1977 vide Resolution No.2 dated 27-8-1977 passed by the Local Managing Committee of the Respondent No.5 college.

3. Mr. Bhangde, learned counsel for the petitioners states that so far as staffing pattern in the college is concerned, the Respondent No.1 - State of Maharashtra had prescribed uniform staffing pattern vide Government Resolution dated 22-2-1980 in which the provisions are made for cadres of employees, their pay scales and creation of posts depending upon the strength of the students in the college. It is submitted that in the said Government Resolution, hierarchical structure of clerical/administrative staff of the college is mentioned, which is as follows :-

	Level of Post	Pay-Scales
1.	Junior Clerk/Typist	Rs.260-495/-
2.	Sr. Clerk/Sr. Accounts Clerk	Rs.335-680/-
3.	Head clerk/Dy. Accountant	Rs.395-800/-
4.	Superintendent/ Accountant	Rs.500-900/-
5.	Registrar..	(i) Rs.600-1150/- (ii) Rs.680-1250/-.

Mr. Bhangde, learned counsel for the petitioner, therefore, contended that so far as the clerical and administrative staff structure and hierarchy is concerned, it is fixed as above, which starts from the post of Junior Clerk and goes up to the post of Registrar as mentioned above.

4. It is further contended that employees from non-teaching staff working in the affiliated colleges are categorised as under in the State Government Resolution :-

1. Administration/Clerical Posts.

2. Accounts and Cash Section Posts.

3. Store Keeping Section Post.

4. Library Staff.

5. Laboratory Staff.

6. Typing and Short hand Staff.

7. Maintenance and Construction Staff.

8. Staff in Class-IV.

It is, therefore, submitted that as per the above referred cotegorisation, watertight compartments are created to distinguish one cadre of employees from the other in the college and their promotional channels are also described accordingly.

5. It is further contended that the pay schedule for non-teaching staff of affiliated colleges of Arts, Science and Commerce is prescribed in the Government Resolutions dated 1st August, 1979, wherein Administrative/Clerical posts are shown on one side in the Category I and pay-scales of lowest and highest posts in the Laboratory staff is shown in column - V. Mr. Bhangde, the learned counsel for the petitioner contended that since the petitioners were appointed as Junior Clerks, their posts fall within the ambit of Administrative/Clerical posts and Respondent Nos.6 & 7 were appointed though earlier in point of time than the petitioners as Laboratory Attendant, their posts fell within the ambit of Laboratory staff. It is further contended that as per the pay schedule mentioned in the G.R. of 1979, the post at base level in the category of Clerical post is Junior Clerk and equivalent post and the post at first level of promotion in this category is Senior Clerk and equivalent post. The post at second level of promotion is Head Clerk/Assistant Superintendent and equivalent posts; the post at third level of promotion is Superintendent and equivalent posts and the post at forth level of promotion is Registrar and equivalent posts at that level wherever in existence. It is contended that similar is the situation in case of Laboratory Staff.

6. Mr. Bhangde, learned counsel for the petitioner contended that the Director of Education issued letter to the Principal of the Respondent No.5 College to prepare the common seniority list of non-teaching staff by including Laboratory Assistants in the Clerical cadre in view of the Government letter dated 22nd January, 1982, wherein the Government was pleased to direct for the time being that incumbents of the posts of Laboratory Assistants who have minimum basic qualifications (S.S.C.) may be held eligible for promotion prospectively to the available vacancies in the posts of Senior Clerks or such other equivalent higher posts which he is eligible to hold on the basis of the prescribed minimum qualification and seniority. Mr. Bhangde, the learned counsel for the petitioner contended that this letter of State Government dated 22nd January, 1982, cannot over-ride the Government Resolution dated 22-2-1980 referred to herein above. Similarly the letter of Director dated 29-10-1988 being inconsistent with the Government Resolution, cannot be sustained in law. Mr. Bhangde, learned counsel for the petitioner further contended that Respondent No.5 College in view of the above referred letter dated 29th October, 1988, issued by the Director of Education, prepared the common seniority list of the Laboratory Assistants and the Junior Clerks and since the Respondent Nos.6 & 7 were appointed as Laboratory Assistants earlier to the petitioner were shown senior to the petitioners in the common seniority list and were granted promotion vide order of promotion dated 13-2-1989. It is submitted that the order of promotion based on the above referred facts and circumstances is also invalid in law atleast to the extent of the claim of the petitioner.

7. Mr. Bhangde, learned Counsel for the petitioner further states that though the petitioners are at the later point of time granted promotions to the higher posts, however, by virtue of the common seniority list prepared by the Respondent No.5 College in view of the above referred Government letter as well as letter of Director delayed the issuance of promotion order to the petitioners to which the petitioners were legally entitled to and therefore, prayed quash and set aside the impugned letter dated 29-10-1988 as well as Government letter dated 22-1-1982 and to give direction to the Respondent Nos.4 & 5 - Management to consider the case of the petitioners for grant of promotions as per the eligibility in the clerical cadre and grant consequential benefits accrued accordingly.

8. Mrs. Bharti Dangare, learned AGP appearing for Respondent Nos.1 to 3 does not dispute the factual aspect of the Govt. Resolution dated 22-2-1980, however, she tried to canvass before us that the non-teaching staff has been categorised into 4 categories only for the convenience of the administration though the cadre for respective posts is one and the same. It is further contended that so far as the G.R. dated 1st August, 1979, is concerned, same only indicates the pay schedule for non-teaching staff of affiliated colleges of Arts, Science and Commerce, however, does not provide the promotional channels and therefore, it is contended that the said G. R. cannot be the basis for holding that the channels of promotion in the Administrative/Clerical posts and Laboratory Staff are different and separate. Mrs. Dangre, learned AGP further submitted that there was a demand made to the Government by the representatives of the Maharashtra Rajya Mahavidyalayin Karmachari Mahasangh for providing promotional channels to the incumbents of the post of Laboratory Assistants in the affiliated non-Government Colleges since they have to stagnate for a considerable long time. The proposal for laying down revised norms for sanctioning non-teaching posts to non-Government Colleges was already under consideration of the Government. The question of providing promotional channels to the Laboratory Assistants was also being considered along with the aforestated proposal. It is submitted by the learned AGP that pending finalisation of the staffing pattern or without prejudice to the decision that the Government may eventually take on this point, the Government issued the following directions to the Registrars of the Non-Agricultural Statutory Universities in the State vide communication dated 22nd January, 1982 and directed that for the time being the incumbents of the post of Laboratory Assistants who have minimum basic qualification (S.S.C.) may be held eligible for promotion prospectively to the available vacancies in the posts of Senior Clerks or such other equivalent higher posts which he is eligible to hold on the basis of the prescribed minimum qualification and seniority. It is, therefore, contended that the impugned letter dated 22nd January, 1982, cannot be said to be inconsistent with that of the G.R. dated 22-2-1980. Similarly the directions issued by the Deputy Director of Education vide impugned letter dated 29th October, 1988, also for the same reasons cannot be said to be bad in law or inconsistent with the policy enumerated in the G.R. dated 22-2-1980.

9. Mr. Mokadam, learned counsel appearing for the Respondent Nos.6 & 7 states that the common seniority list was prepared by the College on the basis of the directions issued by the Director of Education under letter dated 29th October, 1988, which is based on the Government direction issued in the letter dated 22nd January, 1982 and in the common seniority list the Respondent Nos.6 & 7 were shown senior to the petitioners and therefore, the order of promotion dated 13-2-1989 effected by the Management in favour of the Respondent Nos.6 & 7 is just and proper.

10. We have considered the contentions canvassed by the respective counsel and perused the relevant Government Resolution dated 22-2-1980 as well as 1st August, 1979. It is not in dispute that both these G.Rs. are holding field and either not modified, altered or superseded by another G.R. and therefore, they are relevant to consider the controvery in issue. The Government Resolution dated 22-2-1980 prescribed categorisation of the staff in four categories.

(a) Clerical/administrative staff for the Administrative Officer (proper)of the College;

(b) Staff required for the maintenance of, and work in the library of the College;

(c) Staff required for the maintenance of, and the work in the Laboratories for Science Colleges or composite Colleges with Science faculty; and

(d) General purpose Class IV staff.

Similarly in Clause (6) of the said G.R., the hierarchical structure of the clerical/administrative staff of the College is provided, which reads thus :-

1.	Junior Clerk/Typist	Rs.260-495/-
2.	Senior Clerk/Sr. Account Clerk	Rs.335-680/-
3.	Head Clerk/Dy. Accountant	Rs.395-800/-
4.	Superintendent/ Accountant	Rs.500-900/-
5.	Registrar	Rs.600-1150/- or Rs.680-1250/-

11. It is no doubt true that so far as Laboratory Staff is concerned, in the Government Resolution of 1980, it is only mentioned that for every 150 students in the Science faculty, one Laboratory Assistant shall be admissible. However, for a College with the strength of more than 1,500 students in its Science faculty, one additional Laboratory Assistant shall be admissible for every 300 students in excess of 1500 students. The prescribed qualification for the post of Laboratory Assistant is also given in the said G.R. which is S.S.C. (with Science). It is also mentioned in the G.R. that against each admissible post of Laboratory Assistant, four posts of Laboratory Attendants shall be admissible and for Colleges with Science Faculty, having students in excess of 500 for Biology (Botany and Zoology) at the Junior College and Degree levels, two of the admissible posts of Laboratory Attendants may be upgraded to one post of Field Collector and one of Plant Collector, each carrying a scale of Rs.205-355/-.

12. On the back drop of the above referred facts, it is evident that the hierarchical structure of the Clerical/Administrative staff is independent and distinct than that of the Laboratory Staff. The promotional channels, pay scales applicable from the lowest post to highest post is also different and the designations are also distinct and different in the case of Administrative staff. It will be relevant for us at this stage to refer to the G.R. dated 1st August, 1979, which provides pay schedule for the non-teaching staff of affiliated colleges. In Column-1 of the said G.R. the category of Administrative/Clerical Posts are mentioned. The lowest post at the base level is that of Junior Clerk and the first level promotion is to the post of Senior Clerk, second level promotion is to the post of Head Clerk, third level promotion is to the post of Superintendent and the forth level promotion is to the post of Registrar. Column No.3 of the said G.R. of 1979 shows the different revised pay-scales applicable to these posts. It is, therefore, evident that the promotional channel in the administrative/clerical cadre undoubtedly is distinct and separate and is also treated to be so in view of the Government Resolution dated 22-2-1980 as well as pay-scales shown in this regard in Government Resolution dated 1st August, 1979. In the scheme of the above referred G.R., there is no scope for any employee of the College who is not holding the feeder post to get the promotional post. For example, unless you are a Junior Clerk, you cannot be a Senior Clerk and unless you are Senior Clerk, it is not possible for you to get the promotion of Head Clerk. If that is the purport and intention of the legislature, the Administrative/clerical posts are kept separate and their promotional avenues are also independent and distinct.

13. So far as the Laboratory staff is concerned, in G.R. dated 1st August, 1979, different pay-scales are provided for lowest as well as promotional posts and therefore, it is apparent that this category is treated to be distinct and separate. Composite reading of the G.R. dated 22-2-1980 as well as 1st August, 1979, makes it evident that there is no scope for assimilating/merging the cadre of Laboratory Assistant in Clerical cadre, which is neither the intention of the legislature nor the purpose of these two G.Rs. and therefore, the directions given by the Government in the impugned letter dated 22nd January, 1982 in our view cannot be sustained. The Government in the letter dated 22nd January, 1982, directed the Registrars of the Non-Agricultural Statutory Universities for time being to grant promotion prospectively to the Laboratory Assistants who have minimum basic qualification (S.S.C.) in the available vacancies in the post of Senior Clerks or such other equivalent higher posts. The direction which is inconsistent with the scheme of staffing pattern enumerated in the G.R. dated 22-2-1980 as well as pay schedule prescribed for the various posts in G.R. dated 1st August, 1979, and therefore, cannot be sustained in law. Similarly, the direction given by the Director of Education vide letter dated 29th October, 1988, to the Principal of the Respondent No.5 - College to prepare the common seniority list of Laboratory Assistants and Junior Clerks is also, therefore, inconsistent with the G.Rs. dated 22-2-1980 as well as 1st August, 1979, and therefore, cannot be sustained in law.

14. Since we have already held that the letter dated 29th October, 1988 issued by the Director of Education as well as letter dated 22nd January, 1982, issued by the Deputy Secretary to the Government to the Registrar being bad in law, we are of the view that the promotion to which the petitioners were otherwise entitled to has wrongly been denied to the petitioners.

15. Mr. Bhangde, the learned counsel for the petitioner has brought to our notice the Rule 3(III) of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-Teaching Employees) Rules, 1984, which contemplates that appointments to the senior posts except those carrying the lowest scale of pay in the various Departments of the Universities and the Colleges and like the Superintendent, Accountant, Head Clerk, Senior Clerks, Store-Keeper, Senior Laboratory Assistants, Senior Assistants, Senior Steno-graphers, Senior Library Assistants etc. where the recruitment qualifications, required for the Junior Posts in the same Department or Section are the same as prescribed for the Senior posts, shall be made by promotion only on the basis of seniority-cum-merit from amongst the persons who are working in the Universities or affiliated colleges and who possess the minimum qualifications prescribed for the lower posts and the minimum experience of 3 years in the lower posts.

16. In the instant case, the petitioners were appointed on the post of Junior Clerk in the year 1973 and they became eligible for consideration to the promotional post of Senior Clerk after completion of 3 years experience in the cadre of Junior Clerk in view of the above referred Rule. Therefore, in the normal course they ought to have been considered for the promotional post of Senior Clerk after completion of 3 years experience in the feeder post of Junior Clerk. However, there is nothing on the record to show as to why their claims were not considered at the relevant time and therefore, we do not propose to find out the reasons for the same. However, in our view, the case of the petitioners for promotion to the post of Senior Clerk atleast ought to have been considered in the year 1989 when the Respondent Nos.6 & 7 were promoted after the common seniority list of Laboratory Assistants and the Junior Clerks was prepared by the College. It is brought to the notice of this Court that the petitioners were granted promotions to the post of Senior Clerk w.e.f. 1-11-1990 and 1-6-1996 respectively and therefore, the question which now falls for our consideration is in respect of deemed date of promotion to the petitioners in the cadre of Senior Clerk.

In view of the facts and circumstances and the reasons stated herein above, we are of the view of the petitioners are entitled for grant of deemed date of promotion in the cadre of Senior Clerk w.e.f. 13-2-1989 and we direct the Respondent Nos.2 to 5 to grant the incidental ancillary monitory benefits accrued to the said post as well as further promotional post accordingly.

Rule is made absolute in the above terms.

No order as to costs.

Petition allowed.