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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.9/2011
PETITIONERS: 1. State of Maharashtra, through the Secretary
to Government of Maharashtra, Medical
Education and Drugs Department, Mantralaya,
Mumbai - 400032.
2. Director, Medical Education and Research,
Near Chhatrapati Shivaji Terminus, Mumbai.
3. State of Maharashtra, through the Secretary to
Government of Maharashtra, Ministry of Health,
Public Health Department, Mantralaya,
Mumbai - 400032.
4. Government Medical College, through its Dean,
Nagpur.
(Original Respondents 1 to 4 before the
learned Maharashtra Administrative
Tribunal, Nagpur Bench, Nagpur in
Original Application No.134/2006)
...VERSUS...
RESPONDENT : Dr. Shri Sanjay s/o Namdeorao Puriji,
Aged about 51 years, Occupation : Physician
in Employees State Insurance Scheme
Hospital, r/o Plot No.224, Ram Nagar,
Nagpur.
(Original Applicant in O.A. No.134/2008)
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Mrs. K.S. Joshi, Additional G.P. for petitioners
Shri M.M. Sudame, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 24.04.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) By this Writ Petition, the petitioner-State of Maharashtra and others challenge the order of the Maharashtra Administrative Tribunal, Nagpur, dated 9th June 2010, allowing the Original Application filed by the respondent and directing the petitioners to condone the artificial/ technical breaks in the services of the respondent, as a Lecturer in Medicine in Government Medical College Nagpur from 19.08.1981 till he was regularly selected and appointed by the State Government. By the impugned order, the petitioners are further directed to release the increments in favour of the respondent, by considering his appointment from 19.08.1981.
The respondent was appointed as a Lecturer in the Department of Medicine in the Government Medical College, Nagpur, on ad-hoc basis, on 19.08.1981.The respondent no.1 was duly qualified to hold the post of Lecturer at the time of his appointment, inasmuch as he possessed the qualification of M.B.B.S. and MD (Medicine). From time to time, the respondent was appointed on ad-hoc basis till he was regularly selected and appointed on the recommendations of the Maharashtra ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:34:07 ::: wp9.11.odt 3 Public Service Commission on 4th June,1985. Since there was a technical break of two to three days of service in between each of his appointments till he was regularly appointed, the respondent applied to the State Government for condonation of the break in service and for grant of increments. The respondent sought continuity of his service with effect from 19.08.1981. The State Government, however, rejected the application, in view of Rule 48 (1) (b) of the Maharashtra Civil Services (Pension) Rules, 1982. The order of the State Government was challenged by the respondent before the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal allowed the Application filed by the respondent and directed the petitioners, as aforesaid. The petitioners are challenging the order of this Tribunal in this Writ Petition.
Mrs. Joshi, the learned Additional Government Pleader appearing for the petitioners supported the order of the State Government and submitted that the Tribunal was not justified in reversing the order of the State Government and holding that the respondent was entitled to continuity of service with effect from 19.08.1981 as also the increments. It is submitted that the State Government had refused to condone the breaks in the services of the respondent, by referring to the provisions of Section 48 (1) (b) of the Rules. It is submitted that the condonation of interruption in service could be ordered under Rule 48 of the Rules on the ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:34:07 ::: wp9.11.odt 4 fulfillment of the conditions as are provided therein. It is stated that in the circumstances of the case, the breaks in the service of the respondent were rightly not condoned.
Shri Sudame, the learned counsel for the respondent, supported the order of the Tribunal. It is submitted that in almost similar set of facts, the Maharashtra Administrative Tribunal had allowed the Original Applications filed by similarly situated employees and the orders of the Tribunal in those cases, have attained finality, inasmuch as the Writ Petitions filed against the said orders have been dismissed. It is submitted that in the circumstances of the case, especially when the relief is granted to several such employees, like the respondent, the respondent cannot be singled out. It is submitted that the rejection of the claim of the respondent by referring to Rule 48 of the Rules, is incorrect.
On hearing the learned Counsel for the parties and on a perusal of the order of the Tribunal, it appears that though the State Government had specifically rejected the application made by the respondent for condonation of the technical and artificial breaks in his services by referring to Rule 48 (1) (b) of the Maharashtra Civil Services (Pension) Rules, 1982, the Tribunal has not considered the said provision at all. The Tribunal has not considered whether the State Government could have rejected the application made by the respondent under the ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:34:07 ::: wp9.11.odt 5 provisions of Rule 48 (1) (b) of the Rules. Sub Rule 1 (b) of Rule 48 of the Rules provides that the interruptions in the service of a Government servant could be condoned provided the total service pensionery benefits that would be lost is not less than five years duration, excluding one or two interruptions, if any. The provisions of Rule 48 (1) (b) of the Rules are not considered by the Tribunal while deciding the original application filed by the respondent. It would be necessary in the circumstances of the case to remand the matter to the Tribunal to decide the original application afresh in accordance with law.
Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order is quashed and set aside. The matter is remanded to the Tribunal for deciding the original application filed by the respondent, as early as possible in accordance with law.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Sahare and
Wadkar
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