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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, ABHAY AHUJA, JJ.
Vijay Pandurang Sawant – Petitioner
Versus
Savitribai Phule, Pune University – Respondent
Writ Petition No. 3831 of 2019
Decided On : 14-12-2021
Constitution of India - Article 226 - Regularization of the services-pay-scale equivalent to the posts and work rendered by the petitioners to the respondents-consider the petitioners’ experience on priority basis if at all the advertisement is issued by the respondents for filling up in the posts already occupied by the petitioners-whether any of the petitioners were appointed on any of the regular posts sanctioned either by the University or by the Government for a period of ten years on the date of the judgment of the Hon’ble Supreme Court in case of Umadevi i.e. on 10th April, 2006 or not and is entitled to be regularized or not.
Finding of the Court:
In view of this admitted position also, the question of the petitioners claiming any absorption in permanent posts or sanctioned posts did not arise. There is no question of relaxation of age bar in favour of such employees. Sections 5(11), 5(12), 134(1) (b) and 134(5)(a) of the University Act would not assist the case of the petitioners and would not apply to the appointments of the petitioners.
Result: Writ Petition dismissed.
JUDGMENT :
R.D. DHANUKA, J.
1. Rule. Mr. Desai, learned senior counsel for the respondent nos. 1 to 3 waives service. Ms. Kavita N. Solunke, learned A.G.P. waives service for the respondent no. 4. By consent of parties, writ petition is heard finally.
2. By this writ petition filed under Article 226 of the Constitution of India, the petitioners have prayed for an order and direction against the respondents to regularize the services of the petitioners and shall be provided with the prescribed pay-scale equivalent to the posts and work rendered by the petitioners to the respondents. The petitioners also seek an order and direction to consider the petitioners’ experience on priority basis if at all the advertisement is issued by the respondents for filling up in the posts already occupied by the petitioners. The petitioners also seek an order and direction that the petitioners shall not be removed from the service of the respondent nos. 1 to 3 without following the process of law. Some of the relevant facts for the purpose of deciding this petition are as under.
3. It is the case of the petitioners, that the petitioners are employed with the respondent no. 1-University on various posts such as peon, assistant, accounts assistant, assistant librarian etc. for the period from 5 years to 17 years as per their respective appointments with the respondent no. 1. In paragraphs 2 to 8, the petitioners have made their averments in respect of the petitioner nos. 1, 2, 6, 9, 12, 15, 17 and 18 who according to the petitioners are working with the respondent no. 1 for several years on various posts. Some of the petitioners have crossed the age of appointment as per service norms and are quite eligible for appointment as per their present posting in the employment of the respondent no. 1. The respondent no. 1 however is not filling up these posts only with intent to save the money and get the services of the petitioners by providing them a fixed monthly salary which is lesser than the prescribed rate of salary to be paid according to the post and qualification similar to that of the petitioners. It is the case of the petitioners that the regular employees working on the similar post are getting almost double the salary than that of the petitioners which amounts to discrimination so far as the petitioners are concerned.
4. Mr. Anturkar, learned senior counsel for the petitioners tendered brief written propositions of law. He relied upon the judgment of the Hon’ble Supreme Court in case of Secretary, State of Karnataka and Others vs. Umadevi and Others, 2004 (7) SCC 132 (hereinafter referred to as Umadevi), judgment of the Hon’ble Supreme Court in case of Secretary, State of Karnataka and Others vs. Umadevi and Others, 2006 (4) SCC 44 (hereinafter referred to as Umadevi), judgment of the Hon’ble Supreme Court in case of Secretary, State of Karnataka and Others vs. Umadevi and Others, 2006 (4) SCC 1 (hereinafter referred to as Umadevi) and would submit that by the judgment in case of Umadevi, after noticing the conflicting opinions between the three Judges Bench, decisions in case of Ashwani Kumar and Others vs. State of Bihar and Others, 1997 (2) SCC 1 on one hand and State of Himachal Pradesh vs. Suresh Kumar Verma and Another, AIR 1996 SC 1565 on the other hand and other connected matters, the Hon’ble Supreme Court was of the view that those cases are required to be heard by a Bench of Five learned Judges.
5. It is submitted that by the judgment of the Hon’ble Supreme Court in case of Umadevi, the matter was required to be heard by a Bench of Five learned Judges, Constitution Bench. He invited our attention to the judgment of Hon’ble Supreme Court in case of Umadevi and more particularly paragraphs 53 and 54 and would submit that it is clear that if a person has worked for ten years or more without the intervention of orders of Courts and Tribunals, the said person is entitled to be absorbed in the service. It is submitted that in this case, out of
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