SOCIAL AND CULTURAL ASSOCIATION THROUGH ITS PRESIDENTversusVEDCHANDRA DIGAMBAR GAWALE AND OTHERS

2026:BHC-AUG:40288


                      IN THE JUDICATURE OF HIGH COURT AT BOMBAY
                                 BENCH AT AURANGABAD

                     905 REVIEW APPLICATION (CIVIL) NO. 225 OF 2025
                                   IN WP/1941/2023

                     Social And Cultural Association Through Its President
                                             VERSUS
                           Vedchandra Digambar Gawale And Others
                                                 ...
                Advocate for Applicant : Mr. V. D. Salunke h/f Mr. Khot Abhinay D
                        AGP for Respondents-State: Ms. R. R. Tandale
                          Advocate for Respondents No.2 : P. N. Kutti
                       Advocate for Petitioner in WP : Mr. R. I. Wakade
                                                 ...

                                   CORAM      : ROHIT W. JOSHI, J.
                                   Dated      : September 02, 2026

           ORAL ORDER :

           1.     The    present    application      for     review     is     filed   by   the

           employer/management in order to question the correctness of the

           judgment and order dated 19th August 2025 passed by this Court in

           Writ Petition No. 1941 of 2023, whereby relief of reinstatement in

           service was granted to the present respondent No. 1 / original

           petitioner with the benefit of continuity in service and other

           consequential benefits, including full back wages. This Court had

           quashed and set aside the judgment and order dated 20th November

           2022      passed   by   the   learned    University    and        College   Tribunal,

           Aurangabad, in Appeal No. KBCNMU 13 of 2021.



           2.     The contention of Mr. Hon, the learned Senior Advocate

           appearing for the review petitioner, is that this Court ought not to have

           allowed the petition preferred by respondent No. 1 by granting full

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back wages. The grievance in the application for review is restricted

to the award of back wages.



3.    The learned Senior Advocate places reliance on the judgments

of the Hon'ble Supreme Court in the cases of M.P. State Electricity

Board v. Jarina Bee, (2003) 6 SCC 141, and M.L. Singla v.

Punjab National Bank & Anr., (2018) 18 SCC 21, to contend that

the relief of back wages cannot be granted to an employee

automatically upon revocation of an order of termination. The

contention is that the employee must plead and prove that he was

not in gainful employment during the period intervening the

termination of his services and reinstatement. It is contended that

the fact of non-gainful employment is not only required to be

pleaded, but also to be proved by the employee.



4.   Apart from this, a contention is raised that although the

appointment of respondent No. 1 was in the year 2001, the post to

which he was appointed was sanctioned only in the year 2008, and

as such, the initial appointment cannot be said to be a legal

appointment. The learned Senior Advocate also relies upon a

judgment of this Court in the case of Akola Municipal Corporation

v. Secretary, Akola Zilla Nagar Parishad and Mahanagarpalika

Thekedari Sanghatana, 2026:BHC-NAG:9837, to contend that

unless an appointment is against a sanctioned post, an employee

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has no right to seek regularization on the said post.



5.    It would be appropriate to deal with the second contention

first, relating to the legality of the appointment. In the case at hand,

respondent No. 1 was appointed somewhere in the year 2001. His

services were terminated in the year 2021, that is, after a period of

20 years of continuous service. It is not in dispute that the

appointment was subsequently approved, and the salary of the

respondent employee was being disbursed by the State Government

under the Grant-in-Aid scheme. This Court observed in paragraph 18

of the judgment under review that the peculiar facts of the case give

rise to a presumption that the appointment of the respondent

employee, who continued in service for a long period of 20 years,

was a legal and valid appointment, particularly in view of the

subsequent approval granted by the State Authority.



6.    The judgment in the case of Akola Municipal Corporation

(supra) will not come to the aid of the review petitioner. In that case,

the employees were engaged through a contractor and sought

regularization based on Model Standing Orders on the premise that

they had completed more than 240 days of service in a calendar

year. This Court held that unless the employment, even if temporary

or ad-hoc, is against a sanctioned post, the right of regularization

upon completion of 240 days cannot be claimed by invoking Model

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Standing Orders. The foundation of that judgment was that the

Municipal Corporation was not legally competent to create posts, and

consequently lacked the competence to grant regularization to

persons working against non-sanctioned posts.



7.    In the present case, the institution is run by a private

management, which appointed respondent No. 1 way back in 2001

and   terminated    his   services     in     2021   without   holding       a

departmental/disciplinary inquiry. Furthermore, the termination is in

2021, by which time approval to the appointment had already been

granted in 2008. Reliance on the judgment in Akola Municipal

Corporation is, therefore, completely misplaced.



8.    As regards the contention that the burden of proof of non-

gainful employment lies upon the employee and must be proved by

him, reference must be made to the decision of the Hon'ble Supreme

Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324. While the

legal position remains that the initial burden of pleading non-gainful

employment rests upon the employee, the Supreme Court has

clarified that this is a light burden, which can be discharged merely

by making a statement that the employee was not gainfully

employed elsewhere during the relevant period.



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9.    In the case at hand, such a positive assertion of non-gainful

employment was specifically made in the memorandum of appeal

itself. The review petitioner had an ample opportunity to counter the

said statement before the learned College Tribunal, but failed to do

so. While the principles laid down in M.P. State Electricity Board

(supra) and M.L. Singla (supra) cannot be disputed, the standard of

proof required to discharge the initial burden is as prescribed in

Deepali Surwase (supra). A simple statement by the employee is

sufficient to discharge the initial burden. Once this burden is

discharged, the onus to demonstrate gainful employment shifts to

the employer. A party cannot be called upon to prove a negative.

The   positive assertion of gainful employment elsewhere must be

established by the employer. Since the employee discharged the

initial burden at the very first available opportunity in the appeal

memo, the objection raised cannot be sustained.



10.   In light of the reasons recorded above, this Court is of the

considered opinion that no case is made out to revisit the judgment

with respect to the award of back wages, particularly having regard

to the limited scope of review jurisdiction, which cannot be

converted into an appeal.



11.   The Review Application is, accordingly, dismissed.



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12.      At this stage, the learned Senior Advocate for the review

petitioner states that the order passed by this Court does not specify

the precise period for the payment of back wages. It is clarified that

back wages shall be payable from the date of termination till the

date of actual reinstatement.




                                              ( ROHIT W. JOSHI, J. )




vj gawade/-.




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