1 WP NO.1919 of 2013
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1919 of 2013
Satish s/o Shahaji Fand,
Age 40 yrs., Occu. Service,
r/o Ter, Tq. & Dist. Osmanabad.
...PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary
Rural Development and Water
Resources Department,
Mantralaya, Mumbai 32
2. The Chief Executive Officer
Zilla Parishad
Osmanabad, Dist. Osmanabad.
3. The Deputy Chief Executive Officer ( C.W.)
Zilla Parishad, Osmanabad,
Dist. Osmanabad.
...RESPONDENTS
...
Mr. Sanjay A.Wakure, Advocate for the petitioner.
Mr. K.J.Ghute Patil, Advocate for respondent nos.
2 and 3.
Mr.S.K.Kadam, AGP for respondent no.1.
Respondent No.3 served.
...
CORAM: R.M.BORDE
AND
A.I.S.CHEEMA, JJ.
DATE : DECEMBER 18th, 2013 *** ::: Downloaded on - 23/12/2013 20:36:01 ::: 2 WP NO.1919 of 2013 JUDGMENT: (Per A.I.S.Cheema, J.)
1. Heard. Rule. Rule made returnable forthwith and heard with the consent of learned Counsel for the parties.
2. The writ petitioner - Satish Shahaji Fand - who was earlier appointed as Class IV employee, as PARICHAR with respondent no.2 Zilla Parishad was, later on, appointed in Class III, as Junior Assistant, and on his failure to submit certificate of typing examination in time prescribed, has been terminated from service.
Thus, this petition.
3. FACTS:
(A) Petitioner has filed copy of appointment order dated 17.1.2005 whereby he was appointed by respondent no.2 on compassionate grounds as PARICHAR in Class IV category on pay scale as mentioned against a vacant post. Condition No.4 of the appointment order mentioned that looking ::: Downloaded on - 23/12/2013 20:36:01 ::: 3 WP NO.1919 of 2013 to the educational qualification of petitioner, he is to be appointed against Group C posts but, at the relevant time, vacancy in Group C category was not there and so, he was being appointed in Group D post, and in future on availability of post in Group C he will be considered for direct appointment in said post on compassionate ground as per seniority.
(B) By order dated 30.7.2011, making reference to the earlier order dated 17.1.2005, petitioner came to be appointed in Group C post as Junior Assistant as Class III employee.
(C) As per Government resolution dated 23.8.1996 read with resolution dated 6.12.2010, it was necessary for the petitioner to pass examination of English and Marathi typing within six months from the date of appointment, and to submit certificate to that effect. Respondent no.2 Zilla Parishad issued show cause notice with reference to the requirement of petitioner submitting the certificate.
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D) As the petitioner was unable to
produce certificate regarding typing, he came to be terminated on 20.6.2012. He filed Writ Petition No.5359/2012 before this Court. The order of termination was found as not sustainable and respondents were directed to reinstate the petitioner with continuity in service subject to outcome of his performance in the examination which was conducted in July, 2012.
E) The petitioner was reinstated, and later, on 21.12.2012, respondent no.2 again issued show cause notice to the petitioner calling explanation regarding the typing examination. Petitioner was asked to submit certificate. The petitioner gave explanation mentioning reasons as to why petitioner could not submit certificate, claiming that he was over-
burdened with work and so, could not pass examination of July, 2012. According to petitioner, he had given the explanation and claimed that non passing of typing examination ::: Downloaded on - 23/12/2013 20:36:01 ::: 5 WP NO.1919 of 2013 was not having impact on his work and so, further time may be given to him. Respondent no.2, without giving further time, terminated the service of the petitioner vide order dated 27.2.2013. The appointment was cancelled. Thus, the petition challenging termination order dated 27.2.2013. The petitioner claims that the order should be set aside and impugned resolution dated 6.12.2010 requiring passing of the examination should be declared as null and void.
4. Respondent nos. 2 and 3 have filed affidavit in reply. The defense is that, the appointment of the petitioner was conditional and subject to acquiring requisite qualification.
Inspite of opportunities, petitioner failed to acquire the requisite qualification. Petitioner had applied for the post of Junior Engineer as per his qualification but, he had been earlier appointed to the post of Class IV - PARICHAR.
The compassionate appointment claim is to be considered on available vacancy and so, he was appointed as PARICHAR. He was appointed from ::: Downloaded on - 23/12/2013 20:36:01 ::: 6 WP NO.1919 of 2013 Class IV category to Class III as Junior Assistant by way of direct recruitment on 30.7.2011. As per the Government Resolution dated 6.12.2010, a candidate appointed on compassionate appointment is also required to have the requisite qualification of typewriting certificate. The Government resolution has been made applicable to Zilla Parishad vide communication dated 28.12.2010. Since the certificate was not produced, the petitioner was given opportunities but, he failed to comply and he was removed from service from 20.6.2012. He then filed Writ Petition No.5359/2012 and in view of the orders, he was reinstated. Petitioner's continuation in service was subject to outcome of his performance in the examination which was to be conducted in July, 2012. Still, the petitioner did not produce the passing certificate of Typewriting examination and notice was given to him on 23.1.2013. Petitioner gave reply on 31.1.2013 and informed that he had failed in the examination. The writ petitioner could not comply the condition laid down in the ::: Downloaded on - 23/12/2013 20:36:01 ::: 7 WP NO.1919 of 2013 order dated 25.9.2012 passed by the High Court, and order dated 20.10.2012 issued by the Zilla Parishad.
5. We have heard learned Counsel for both sides. In the earlier Petition No.5359/2012, in the order dated 25.9.2012, it was mentioned that in case the petitioner fails in the said examination, which was conducted in July, 2012, the respondent authorities are at liberty to take appropriate action in accordance with law.
6. It is apparent that, inspite of opportunities, the petitioner could not produce the necessary certificate regarding Typewriting.
The Government Resolution dated 23.8.1996 read with Resolution dated 6.12.2010 require even those who are appointed against compassionate grounds, to submit certificate regarding passing of typing within six months of appointment.
There does not appear to be any error on the part of the respondents to insist that, on appointment to the post of Junior Assistant, petitioner was ::: Downloaded on - 23/12/2013 20:36:01 ::: 8 WP NO.1919 of 2013 required to produce the certificate regarding Typing examination as per requirement and, in default, he was liable to be proceeded against.
The appointment order dated 30.7.2011 was subject to the Government Resolutions referred in the order. The Government Resolution dated 23.8.1996, read with the Government Resolution dated 6.12.2010, clearly provide that if the necessary Typewriting certificate is not produced, the service was liable to be terminated.
7. Attention of the learned Counsel of the respondents was drawn to the provisions of 'lien'. Learned Counsel for respondent no.2 was asked as to why petitioner was not reverted back to the earlier post of PARICHAR. Learned Counsel for respondent no.2 has then, relying on a communication dated 11.12.2013 from Chief Executive Officer of Zilla Parishad, stated that petitioner can be appointed afresh to Group D post and that at present there were vacancies available.
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8. Rule 20 of Maharashtra Civil Services (General Conditions of Services) Rules, 1981, refers to acquiring and ceasing of a lien. The Rule reads as under:
"20. Acquiring and ceasing of a lien.
Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post."
Looking to the above, if the appointment order order of the petitioner is seen, he was appointed on compassionate ground in Group D as PARICHAR against a vacant post vide order dated 17.1.2005.
He worked on the post till 30.7.2011 when as per Government Resolution dated 23.8.1996 order dated 30.7.2011 was issued of direct appointment in Group C. It is not the case of the respondents that the earlier appointment was temporary or that it was not a substantive appointment or that the post was not permanent.
9. Rule 25 of the above Rules reads as under:
::: Downloaded on - 23/12/2013 20:36:01 :::10 WP NO.1919 of 2013 "25. When a lien or a suspended lien cannot be terminated.
(1) Except as provided in sub-rule (2) below, a Government servant's lien on a post may in no circumstances be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.
(2) A Government servant's lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or State Government) outside the cadre on which he is borne."
10. It is clear that once a lien has been acquired, the same cannot be terminated even with the consent of the employee if the result would be to leave him without a lien or suspended lien upon a permanent post. The petitioner was appointed vide orders dated 17.1.2005 as a Class IV employee with one of the conditions mentioning that he would be accommodated in Group C posts when the same becomes available. Later, vide order dated 30.7.2011, he was appointed to Class III post. In the facts and circumstances and looking to the length of service, Petitioner's lien on earlier Class D post will have to be accepted and retained till he could acquire lien ::: Downloaded on - 23/12/2013 20:36:01 ::: 11 WP NO.1919 of 2013 in the Class C post. If he was unable to pass the examination, the respondents could not have terminated the service itself. There is no question of appointment afresh. Respondents were required to post the petitioner back again in his earlier post of PARICHAR. When he already had a lien to that post, he could not have been terminated from higher post in the manner in which it has been done. If this is not accepted it would be always possible to lure an employee to higher post and later weed him out on the plea of not complying the requirement.
11. For the above reasons, the order dated 27.2.2013 passed by respondent no.2 is not maintainable.
12. The impugned order dated 27.2.2013 is quashed and set aside. The petitioner shall be reinstated in service as PARICHAR w.e.f.
27.2.2013 with continuity in service. Back-wages ::: Downloaded on - 23/12/2013 20:36:01 ::: 12 WP NO.1919 of 2013 shall be paid accordingly.
Rule is made absolute in above terms.
(A.I.S.CHEEMA) (R.M.BORDE)
JUDGE JUDGE
...
AGP/1919-13wp
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