Bombay High Court
Satish vs The State Of Maharashtra on 18 December, 2013
Bench: R.M. Borde, A.I.S. Cheema
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
***
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
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.
4 WP NO.1919 of 2013
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
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
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
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
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.
9 WP NO.1919 of 2013
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:
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
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
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
