2010 ALL MR (Supp.) 180
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

F.I. REBELLO AND C.L. PANGARKAR, JJ.

Kazi Rukhsana Mohomed Vs. State Of Maharashtra & Ors.

Writ Petition No.303 of 2009

18th January, 2010

Petitioner Counsel: Mr. C. R. SADASIVAN i/by Mr. N. M. GANGULI
Respondent Counsel: Mr. M. D. NAIK, Mr. R. A. RODRIGUES

Constitution of India, Art.226 - Government of Maharashtra, Resolutions dated 25-10-1977, 15th July, 1981 and 29-4-1982 - Employment - Upgradation for Lecturership - Recruitment of petitioner as full time Demonstrator before 3-10-1975 - Petitioner failing to obtain qualification for upgradation to the post of Lecturer before 1981 - Failure would result in petitioner's not getting an increment only - Petitioner having obtained the requisite qualification in June, 1983, held, she was entitled to be upgraded to the post of Lecturer. (Paras 11, 12, 13)

Cases Cited:
Pravinsinh Nagarji Chavda Vs. S. V. Tambe, W.P. No.2012/1983, Dt.:-27.7.1990 [Para 9]


JUDGMENT

FERDINO I. REBELLO, J.:- Rule. By consent heard forthwith.

2. The Petitioner was appointed as Demonstrator (Part Time) in the Maharashtra College run by Respondent No.4 in the year 1969. At that time she possessed qualification B.Sc. Examination Second Class (Hons). In the year 1970-71 the Petitioner was appointed as Full time Demonstrator. G.R. Came to be issued dated 25.10.1977. By this G.R. Pay scales of various posts including of Demonstrators came to be revised with effect from 1.1.1973. Correspondingly revised qualifications were also set out. Posts of Demonstrators were upgraded with effect from the beginning of the academic year 1975-76 to Lecturer for persons possessing qualifications for the post of Lecturers as prescribed by the University. In other words, if they held the qualification for the post of Lecturers as then prescribed, they would be upgraded to the post of Lecturer from that of Demonstrator.

3. Para V laid down the qualifications. We are concerned with Para V(b). Para V(b) to the extent required is reproduced here below :

"(b)College Teachers :- (i) A consistently good academic record with first or higher second class (B+) at Master's degree in a relevant subject or an equivalent degree of a foreign University, and

(ii) A M.Phil. Degree or a recognized degree beyond the Master's level or published work indicating the capacity of candidate for independent research work.

The qualifications mentioned in (a)(b) above are applicable to lecturers/teachers who may be recruited hereafter, i.e. on or after the date of this revised Government Resolution. The qualifications mentioned in (a)(b) above are also applicable to lecturers/teachers recruited by Universities/Colleges during the period commencing from 4th October, 1975 till the date of revised Government Resolution, who do not possess the qualifications mentioned in (a)(b) above, will have to acquire these qualifications within a period of five years from the date this revised Government Resolution. If they are unable to do so during this period, they shall not be allowed to earn any future increments till they have satisfied this condition.

The teachers recruited on or before 3rd October, 1975 in colleges, who did not possess at the time of their initial recruitment the minimum qualifications as prescribed by the University concerned, should be required to attain the said qualifications within a period of five years from the date of this revised Government Resolution. If they are unable to do so during this period, they shall not be allowed to earn any future increment till they have satisfied this condition."

4. The Petitioner passed M.Sc. In second Class in the year 1983 and acquired 53.9%. She was discharging duty as Full time Lecturer and she retired from 1.5.2003. Though she was working as Lecturer she was paid pay scale of the Demonstrator with an intimation that she will be paid as Lecturer as soon as approval was received from the University of Mumbai for payment as Lecturer and from the Government for the said promotion from Demonstrator to Lecturer. The University approved her payment as Full time Lecturer and this was communicated to the college and Petitioner by communication dated 30.4.1994. The Respondent State however, did not address the same and on the contrary by communication of 30.10.1995 pointed out that the approval can not be granted to the Petitioner's appointment from 7.8.1983 as the approval granted by the University was not proper.

5. The Petitioner thereafter approached the Grievance Committee under the provisions of the Maharashtra Universities Act, 1994. The Grievance Committee resolved that the Principal of College be requested to send proposal of Kumari Kazi requesting the Government to relax its earlier decision of extending the benefit to the Demonstrators from 1981 to 1983. The Principal be further instructed to submit the copy of the same to the University. The University may also plead the case to the Government as it deem fit. The recommendations of the Grievance Committee were approved by the Management Council of the University and the College was intimated accordingly for compliance of the same. The State Government however, did not approve the appointment.

6. It is the case the Petitioner that considering G.R. Dated 25.10.1977 she was recruited on before 3.10.1975 assuming and considering she did not possess the required qualifications, she had to obtain the said qualifications within the period of five years from the date of the revised Government Resolution. The only consequence of not obtaining the qualifications was that she would not get any future increments till she satisfied the conditions.

7. A reply on behalf of the State Government has been filed by Dr. Shantikumar Gupta, In charge Joint Director. It is set out therein that in terms of the Government Resolution dated 25.10.1977 those lecturers who did not have prescribed qualifications were continued as Demonstrators/Tutors with a condition that such Demonstrators may acquire the lecturership qualification as prescribed by the U.G.C. within the period of five years and till such time they would be receiving the pay in the revised scale of Rs.500-20-700-25-900. As the Petitioner acquired requisite qualification in the month of July, 1983, she did not fall within the Government Resolution dated 23.10.1977 and therefore, was not considered for upgradation for Lecturership. Reference is then made to the G.R. dated 20.2.1982 whereby the Demonstrators/Tutors Method, Masters in Government and non Government affiliated Colleges of Arts, Science, Commerce, Education and Law in the State who have acquired lecturers minimum qualification as prescribed by the concerned University during the period from 1st July, 1975 to 31st March, 1980 should be upgraded to those of lecturers in the scale of Rs.700-1600 with effect from 1.7.1981, failing which their services would be liable to be replaced by recruiting persons possessing the University Grant Commission prescribed qualification. The petitioner had to acquire the qualifications as prescribed by the G.R. As the petitioner acquired the qualification in July, 1983, the post was not upgraded from Demonstrator to Lecturer. The Petitioner could not have been upgraded to the post of Lecturer prior to 1.7.1981. The University decision to upgrade the Petitioner from 1983 cannot be accepted by the State. A reference is then made to Writ Petition No. 1973 of 2006 filed by the petitioner which was disposed of on 25.6.2007. By that order, the submission on behalf of the Respondents that the claim would be considered, was disposed of. As there was no compliance, contempt petition was filed on 11.8.2008. The contempt was however, disposed of by the directions as set out therein that if the Petitioner was aggrieved, he was free to take recourse to law.

8. An additional affidavit came to be filed on 5.12.2009 wherein it is set out that the Petitioner apart from B.Sc. and M.Sc. Higher Second Class is required to have qualification of M.Phil degree in addition. Basically earlier averments have been reiterated.

9. The question is whether the Petitioner on passing M.Sc. Examination in June, 1983, the post of Demonstrator was liable to be upgraded and Petitioner paid in the said pay scale of lecturer with effect from 8.7.1983 and consequently further scales i.e. Senior scale and selection grade. The Petitioner has relied on the judgment oft the learned Single Judge of hits Court in Pravinsinh Nagarji Chavda Vs. S. V. Tambe and Others in Writ Petition No.2012 of 1983 decided on 27.7.1990 an unreported judgment.

10. We have heard the learned counsel for the parties. We have perused the Government Resolution dated 25.10.1977 and the G.R. of 15th July, 1981 and 29.4.1982.

In the first instance, Para V(b) to which we had earlier referred to requires that persons recruited before 3rd October, 1975 only on obtaining the qualification for the post could be upgraded to the post of Lecturer. There is no provision for removal for not obtaining qualifications. The only consequence is that they would remain in the same pay scale. The Petitioner admittedly was recruited on or before 3.10.1975. The Petitioner did not possess the then qualifications for the post of Lecturer. These qualifications were to be acquired by the teacher to be upgraded to the post of Lecturer.

In respect of the teachers recruited on or after 4.10.1975 but before 25th October, 1977 who did not have the qualification prescribed by proviso (b), they were to obtain the said qualifications within the period of five years from the date of revised Government resolution and if they do not do so, they were not be allowed to earn any future increment till they have satisfied this condition.

11. The Petitioner when recruited, admittedly had necessary qualifications prescribed by the University for the post of Demonstrator. However, considering that the post of Demonstrators were to be upgraded from the academic year 1975-76, in respect of the persons possessing qualifications to the post of Lecturers, the Petitioner has to have the qualifications of Lecturer. The petitioner acquired the qualification in June, 1988. A conjoint reading of the two of course therefore would show that in so far as the teachers recruited on or before 3.10.1975, in the event they did not possess requisite revised Government Resolution within five years at the highest were not entitled to any future increments till they had satisfied the conditions. The Petitioner therefore having been recruited before 3.10.1975 would continue to draw pay in the pay scale of Demonstrator as Petitioner did not have the qualifications for being upgraded to the post of Lecturer.

12. The Petitioner in the relief clause, has claimed the post of Lecturer with effect from 8.7.1983 on attaining the desired qualifications. The University also approved the appointment of the Petitioner as Lecturer by their communication of 30.4.1994. In other words, in so far as University was concerned, the Petitioner was eligible. The Respondent state however, proceeded on the footing that the Petitioner had not obtained qualifications before expiry of period of five years and as such was not eligible. In our opinion, this is a total misreading of the G.R.s placed before us. No other G.R. has been placed which can result to take a view contrary to what we have taken. In terms of the G.R. the Petitioner was to continue to hold the post of Demonstrator and draw in the said pay scale in the revised pay scale of Demonstrator as Petitioner had not obtained necessary qualification for upgradation to the post of Lecturer. Failure to obtain qualification before 1981 only resulted in the Petitioner not getting an increment. Since the Petitioner in June, 1983 obtained qualification, Petitioner was entitled to be upgraded to the post of Lecturer and paid for the post of Lecturer and also on consequential grades which would be entitled to on completion of the requisite periods. The Government earlier had refused to sanction the scale as the Petitioner had not obtained M.Sc. within five years. There was no such requirement for those appointed before 3.10.1975. The refusal to sanction therefore, was clearly arbitrary.

13. The Government in its reply had raised one more objection that the Petitioner did not possess M.Phil. The revised G.R. of 25th October, 1977 required M.Phil from persons recruited on or after 4th October, 1975. The Petitioner was recruited much earlier and consequently this objection has also no merit.

Considering the above, in our opinion, the action of the Respondent State in denying upgradation to the Petitioner and the scale of Lecturer from 8.7.1983 is arbitrary.

14. In the light of that, Rule made absolute in terms of Prayer Clauses (b)(i), (ii), (iii), (iv), (v). In so far as interest is concerned, we find that in the earlier petition before this court Respondent had made a statement that claim of the Petitioner would be considered and appropriate orders would be passed within four weeks. In the light of that, Petition was disposed of. Hence, we direct simple interest at the rate of 8% p.a. From 1.7.2008 till payment of the amount to which the petitioner is entitled to.

In the circumstances of the case, parties to bear their own costs.

Ordered accordingly.