The State Of Maharashtra Through ... vs Prakash Chandulal Rathod And The ...
2006 Latest Caselaw 166 Bom

JUDGMENT

Nishita Mhatre, J.

Page 711

1. The Petitioners have challenged the judgment and order dated 10th July 2003 passed by the Maharashtra Administrative Tribunal, Mumbai in Original Application No. 56 of 2003 which directs them to permit Respondent No. 1 to resume duty as Assistant Draftsman-cum-Under Secretary. The Tribunal has allowed the Original Application filed by Respondent No. 1 mainly on the ground that he continued to have a lien on the post of Assistant Draftsman-cum-Under Secretary during the period he was appointed as a Judge of the Page 712 Labour Court, Mumbai. The Tribunal was of the view that since a similarly placed person was permitted to continue his lien on the post of Assistant Draftsman-cum-Under Secretary, Respondent No. 1 should have not been terminated from service but ought to have been repatriated to his original post.

2. Respondent No. 1 was appointed on 1st February 1990 on probation as an Assistant Draftsman-cum-Under Secretary. He continued to be on probation for a further period of six months as his work was not found to be satisfactory. Thereafter, he was appointed to officiate on a long term basis on the same post from 1st August 1992. Respondent No. 1 appeared for the Maharashtra Public Service Commission examinations held and was appointed to the post of a Judge of the Labour Court, Mumbai. By an order dated 9th February 1993, he was relieved from the post of Assistant Draftsman-cum-Under Secretary, Law and Judiciary Department with effect from 10th February 1993 while informing him that he could not retain lien on the post. Thereafter, Respondent No. 1's service as a Judge of the Labour Court, Mumbai was found wanting. Marital disputes resulting in a Criminal Complaint filed against him, reports of his relations with the bar and his colleagues on the bench reflected poorly on his conduct as a Judge and, therefore, a report was sent for appropriate action in that regard. The services of Respondent No. 1 as a Judge of the Labour Court were terminated on 5th July 1997. Respondent No. 1, therefore, sought reinstatement on the post of Assistant Draftsman-cum-Under Secretary by his application dated 21st August 1997. This application was made on the footing that Respondent No. 1 retained lien on his original post. The Petitioners having rejected the representation, Respondent No. 1 filed Original Application No. 56 of 2003 before the Maharashtra Administrative Tribunal Mumbai.

3. The Tribunal allowed the Original Application by holding that Respondent No. 1 continued to retain lien on his post as Assistant Draftsman-cum-Under Secretary. The Tribunal was of the view that the Petitioners ought to have given same relief to Respondent No. 1 as was extended to one Mr. M.B. Bhosale who was relieved from the post of a Judge of the Labour Court and was repatriated to the original post since he continued to retain a lien over that post.

4. The grievance of the Petitioners against the impugned judgment and order is that the Tribunal has lost sight of the fact that Respondent No. 1 was on probation as an Assistant Draftsman-cum-Under Secretary and was officiating in that post. Therefore, there was no question of him retaining lien on the post in which he had not been confirmed. According to the Petitioners, Mr. Bhosale was specifically permitted to retain lien on his original post while being appointed as a Judge of the Labour Court by an order dated 25th November 1993 and, therefore, no comparison could be drawn. Reliance is placed on the judgments in the case of Parshotam Lal Dhingra v. Union of India and Triveni Shankar Saxena v. State of U.P. and Ors. AIR 1992 SC 196, in support of the submissions made.

Page 713

5. Undisputedly, the order appointing Respondent No. 1 as a Judge of the Labour Court does not permit him to retain lien on the post of Assistant Draftsman-cum-

Under Secretary. Respondent No. 1 was not confirmed in that post at any point of time. It was while Respondent No. 1 was officiating on that post on a long term basis that he appeared for the Maharashtra Public Service Commission examinations and was selected as a Judge of the Labour Court. Therefore, once the service of Respondent No. 1 had been terminated as a Judge of the Labour Court, he could not, in law, demand reinstatement as an Assistant Draftsman-cum-Under Secretary. The judgment in the case of Parshotam Dhingra (supra) clearly lays down the law that a Government servant has no right to the post, whether permanent or temporary, when he is appointed on probation or on an officiating basis which has not ripened into a quasi-permanent service as defined in the Temporary Service Rules. The termination of his employment does not deprive him of any right. Therefore, the termination of service of Respondent No. 1 as a Judge of the Labour Court would not entitle him to continue in service as he was neither a permanent employee as an Assistant Draftsman-cum-Under Secretary nor had his service ripened into a quasi-permanent one.

6. In the case of Triveni Saxena (supra), the Apex Court while relying on the judgment in Parshotam Dhingra (supra) case, observed that an employee acquires lien on a post only when he has been confirmed and made permanent on that post and not earlier. Therefore, in our opinion, the finding of the Tribunal that Respondent No. 1 continued to retain lien over his original post is erroneous.

7. Furthermore, a bare perusal of the Maharashtra Civil Services Rules, indicates that only a Government servant on a substantive appointment to any permanent post acquires a lien on that post under Rule 20. Unfortunately, although the Tribunal has set out the Rules applicable and has also considered the case of Parshotam Dhingra (supra), the law has not been correctly interpreted and applied to the facts in the present case. The Tribunal's finding that there is discrimination between Respondent No. 1 and Mr. Bhosale also is incorrect as Mr. Bhosale was clearly permitted to retain his lien on the post of Assistant Draftsman-cum-Under Secretary while he was appointed as a Judge of the Labour Court.

8. In such circumstances, the impugned judgment and order dated 10th July 2003 passed by the Maharashtra Administrative Tribunal, Mumbai in Original Application No. 56 of 2003 is set aside. Petition allowed. Rule made absolute. No order as to costs.