Bombay High Court
Kum. Anita Chandrasekhar Joshi vs State Of Maha., Through Its ... on 6 December, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6332 OF 2015
Ku.Anita Chandrasekhar Joshi,
Aged about 35 years, Occ.
Assistant Teacher, c/o. Pathak
Ayurvedic Pharmacy, Rail Toli,
Gondia. .......... PETITIONER
// VERSUS //
1. State of Maharashtra,
Through its Secretary,
Urban Development
Department, Mantralaya,
Mumbai-32.
2. The Education Officer
(Secondary), Zilla Parishad,
Gondia.
3. The Deputy Director of Education,
Nagpur Division, Nagpur.
4. The Municipal Council,
Gondia, Through its Chief
Officer. .......... RESPONDENTS
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____________________________________________________________
Mr.Anand Parchure, Advocate for the Petitioner.
Mr.M.K.Pathan, A.G.P. for Respondent Nos. 1 to 3.
Mr.Atul Bhawsar, Adv. for Respondent No.4.
____________________________________________________________
CORAM : B.R. GAVAI
AND
V. M. DESHPANDE, JJ.
DATE : 6.12.2016.
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Rule. Rule is made returnable forthwith. Heard
by consent.
2. By way of present petition, the petitioner has
prayed for quashing and setting aside the order
dt.9.3.2015 passed by respondent no.3 and for declaration
that the petitioner is entitled to the benefit of continuity in
service from the date of her entry into service i.e.
15.9.1993.
3. The petitioner was initially appointed on 15th
September, 1993. However, it appears that, since, at the
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relevant time, the Subordinate Staff Selection Board was
not available, appointments were made on temporary basis
and the persons were continued by giving technical breaks.
Various petitioners had approached this Court by filing
various petitions. Some of the petitions were Writ Petition
Nos. 2517 of 2000 and 2386 of 2000. The grievance of the
petitioners therein was that they were continued on adhoc
basis for years together. The present petitioner had also
filed Writ Petition No.677 of 1998. In Writ Petition
Nos.2517 of 2000 and 2683 of 2000, the Division Bench of
this Court had directed the Municipal Administration to
consider the proposal for regularisation of such teachers.
As such, vide order dt.14.11.2000, the Director of
Municipal Administration passed an order regularising
services of various teachers including the petitioner who
were working in the School. Since the petitioner's services
were regularised, the petitioner withdrew Writ Petition
No.677 of 1998 on dt.21.6.2006.
4. As the petitioner was continuously working from
the year 1993 with some technical breaks, the Municipal
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Council considered the proposal for condonation of breaks
and passed a resolution on 22.12.2009 resolving to
condone the break.
5. The Chief Officer of the Municipal Council vide
order dt.30.7.2002 passed an order directing
regularisation of the petitioner w.e.f. 15.9.1993. Municipal
Council, Gondia also passed a resolution on 22.12.2009
approving regularisation. The proposal for regularisation
was sent by Muncipal Council, Gondia to the Education
Officer (Seconday), Zilla Parishad, Gondia. He, however,
rejected the same vide order dt.9.3.2015. Hence, the
present petition.
6. Perusal of the impugned order would reveal that
the Deputy Director of Education has refused to condone
delay on the ground that, in view of Government Circular
dt.20.4.2007, the break is being condoned only for giving
enhanced pension. We find that the issue is no more res
integra. In identical facts, the Division Bench of this Court
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vide Judgment and Order dt.15.10.2008 in Writ Petition
No.1015 of 1999 has observed thus :
"10. The reasons putforth by the respondents for
not condoning the break in service of the
petitioner are (I) that the policy of the State is not
to condone the break in service in order to
enhance the pension and (ii) that the cases of Shri
B.L.Deshmukh and Shri Jagdish Khebudkar cannot
be equated with that of the petitioner, because
those two employees would not have been entitled
for any pension unless the break in their service
was condoned and hence the same was condoned
as special cases. We are unable to find any logic in
these reasons. If it is the policy of the State to give
pension to every employee on a full-time basis in
aided and recognized schools appointed before 1st
April, 1966, there is no question of any policy of
the State not to condone break in service in order
to enhance pension. If an employee is benefitted in
calculation of his pension by condoning break in
his service, there is no reason why such break
should not be considered. In fact it would be in
consonance with the pension scheme introduced
by the State. Hence, the ground for not condoning
the break in service of the petitioner does not
stand to reason."
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7. In that view of the matter, we find that rejection
of the proposal for regularisation of the petitioner's
services from 15.9.1993 would not be sustainable in law.
Undisputedly, the petitioner has been continuously
working from the said date with some technical breaks.
Resultantly, the petition is allowed. Rule is made absolute
in terms of prayer clauses (i) and (ii) of the petition.
8. However, we make it clear that though we direct
regularisation of the petitioner's services from 15.9.1993
and though the petitioner would be entitled to
consequential benefits, she would not be entitled for the
salary for the period during which she has not actually
worked. The consequential benefits be given to the
petitioner within a period of three months from today.
JUDGE JUDGE
[jaiswal]
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CERTIFICATE
I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment.
Uploaded by : Jaiswal, P.S. Uploaded on :
