Sanjay Dhondu Patil vs The State Of Maharashtra And ...
2016 Latest Caselaw 7059 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD                                           




                                                     
                                                  
         WRIT PETITION NO.1379/2015




                                                    
    Sanjay S/o Dhondu Patil,
    Age:46 years,Occu.Service
    (as Warden,Govt.Hostel for 
    B.C.Students,Raver)
    Plot No.12,Gut No.106,




                                         
    Mayur Housing Soicety,
    Nimkhedi Shivar,              
    Jalgaon.
                      ...Petitioner..
                                 
        Versus

    1] The State of Maharashtra 
    Through its Secretary,
    General Administration Dept.,
      


    M.S.Mantralaya,Mumbai-32.
   



    2] The Superintendent of Police,
    Jalgaon District, Jalgaon. 
                      ...Respondents..                      
                                                          





                              .....
    Shri A.S. Deshmukh, Advocate for petitioner.
    Smt.P.V. Diggikar, AGP for respondent nos.1 & 2. 
                              .....
      





                                CORAM: S.V. GANGAPURWALA &
                                        K.L. WADANE, JJ. 

DATE: 08.12.2016

ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :

1] Heard learned counsel for the parties. Rule.

Rule made returnable forthwith and with the consent of

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learned counsel for the parties, the petition is taken up

for final disposal at this stage.

2] The petitioner assails the order of the

Maharashtra Administrative Tribunal dismissing his

Original Application whereby the petitioner had prayed to

quash and set aside the communication dated 6.10.2012 by

virtue of which the request made by the petitioner to

take back in the service of Police Constable was turned

down.

3] The petitioner was appointed as a Police

Constable on or about 5.5.2005. The petitioner had

continuously worked on the said post for about six and

half years. The petitioner came across an advertisement

issued by the Directorate of Social Welfare for the post

of Warden. The petitioner had applied for the said post.

He was selected and was appointed as a Warden on

24.7.2012. The petitioner, on receipt of the appointment

order, filed an application / resignation letter dated

19.7.2012. The same was accepted and the petitioner was

relieved.

4] It appears that within a month or so, the Social

Welfare Department issued notice to the petitioner to the

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effect that the petitioner was ineligible to apply and be

considered for the post of Warden from the ex-serviceman

category as earlier while being recruited as a Constable

in the Police Department, the petitioner had already

taken the benefit of an ex-serviceman category. The

petitioner thereafter again applied to the Police

Department to take him back in service. The same was

rejected. The petitioner had moved the Maharashtra

Administrative Tribunal by filing Original Application.

The same is dismissed.

5] Mr.A.S. Deshmukh, learned counsel for the

petitioner submits that the petitioner while discharging

his duties as a Constable was working on a substantive

post. In view of Rule 20 of the Maharashtra Civil

Services (General Conditions of Service) Rules, the

petitioner had lien on the said post and the said lien

continues till he acquires permanency or lien on the post

on which he is subsequently selected. The word

"resignation" in his application given to the Police

Department to relieve him from service was stated by

mistake, but if the contents of the said letter are

perused, it would show that the petitioner was seeking to

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be relieved from his post so as to join the post with the

Social Welfare Department under the State Government.

The learned counsel submits that the said letter be

construed as a letter given to relieve the petitioner so

as to join another Government post. The learned counsel

submits that the reliance placed by the respondents on

Rule 46(1) of the Maharashtra Civil Services (Pension)

Rules is mis-placed. The said provision of forfeiture of

service on resignation arises only if the person is not

joining other Government post. According to the learned

counsel, the Tribunal has wrongly interpreted Rule 46 of

the Maharashtra Civil Services (Pension) Rules and Rule

20 of the Maharashtra Civil Services (General Conditions

of Service) Rules. According to the learned counsel, the

petitioner had served with the Army for 16 years at

difficult postings. The post on which the petitioner

was subsequently appointed with the Social Welfare

Department could not be said to be a substantive post

inasmuch as the petitioner had not secured lien on the

said post and till the time, the petitioner gets right of

lien on the subsequently selected post, the lien on the

original post remains in force.

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6] Learned AGP submits that the letter given by the

petitioner for being relieved from service was a clear

resignation letter. Acting upon the said resignation

letter, the petitioner was relieved from the service and

the formalities subsequent to resignation from the post

were followed. Now the petitioner cannot turn around and

contend otherwise. The learned AGP submits that the

application filed by the petitioner was not in consonance

with the Government resolution dated 2.12.1997. The said

Government resolution states that if another Government

post is to be joined, it is not necessary for the person

to resign. The learned AGP further relies on the

Government resolution dated 30.12.1991 to contend that

the person can take the benefit of ex-serviceman category

only once and that benefit the petitioner had already

taken when he had joined the service with the Police

Department. Second time the petitioner could not have

availed the benefit of ex-serviceman category. The

learned AGP further submits that in view of Rule 46(1) of

the Maharashtra Civil Services (Pension) Rules, once

resignation has been given, the same entails forfeiture

of earlier service. The learned AGP also relies on Rule

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46 (5) of the said Pension Rules to contend that the

petitioner would not be entitled for any relief.

7] WE have considered the submissions canvassed by

the learned counsel for the respective parties so also

have perused the order of the Tribunal and the documents

placed on record.

8] It is not disputed that the petitioner had

become permanent while serving with the Police Department

on the post of Constable having served with them for six

and half years. The appointment of the petitioner was on

a substantive post is also not a disputed fact. It is

also not disputed that the petitioner through proper

channel had applied pursuant to the advertisement issued

by the Social Welfare Department for the post of Warden

while discharging the duties as a Constable with the

Police Department. It is also a fact that the petitioner

was selected for the post of Warden on or about

24.7.2012. Pursuant thereto, the petitioner had also

given an application with the Police Department for

relieving him from service. The moot question is

construing the said application dated 27.7.2012. The

subject mentioned in the said letter is about

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resignation. The contents of the letter state that for

appearing in the selection process for the post of Warden

issued by the Social Welfare Department, he had sought

permission of the authorities. He has been selected.

As such, for joining the said services, he may be

relieved.

9] Reading Rule 20 of the Maharashtra Civil

Services (General Conditions of Service) Rules, it is

abundantly clear that a person holding a substantive post

acquires a lien till he is appointed on another permanent

post. In the present case, the petitioner had worked

with the Social Welfare Department, however, as

submitted, he was never confirmed in service nor his

probation period was shown to have been completed. Till

the petitioner is confirmed with the Social Welfare

Department, his lien on the original post would subsist.

10] Rules 46(2) and 46(5) of the Maharashtra Civil

Services (Pension) Rules read thus:

"46. Forfeiture of service on resignation :

(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent under the

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Government where service qualifies.

(5) Request for taking him back in service shall not be accepted by the appointing

authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial

company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled

or financed by the Government."

11] Reading these rules conjointly, it is manifest

that a resignation shall not entail forfeiture of past

service if it has been submitted to take up, with proper

permission, another appointment, whether temporary or

permanent, under the Government where service qualifies.

The petitioner with the proper permission had taken up

the employment with another department under the

Government itself. In view of that, even the contention

of the respondents that resignation would entail

forfeiture of the past service would not hold ground.

12] Be that as it may. We would be more guided with

the contents of the letter issued by the petitioner

asking the department to relieve him. The word

"resignation" appearing in the subject in the said letter

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appears to be a misnomer. In fact, from the tenor of the

letter itself, it appears that the petitioner had

intended to say that he be relieved so as to join the

services with the Social Welfare Department under the

State Government itself. The benefit of lien as such

ought to be extended to the petitioner. The literal word

used in the subject could not be read in isolation vis-a-

vis the contents of the letter. The letter in its

entirety will have to be read so as to construe the

intention of the person writing the said letter to the

authority. Going through the contents of the letter, the

only irresistible conclusion that can be drawn is that

the petitioner wanted to convey that he has got

employment with the Social Welfare Department under the

Maharashtra State and wants to join the said post, as

such should be relieved. We would give the benefit to

the petitioner.

13] In the light of the above, the impugned order

dated 6.10.2012 issued by the respondent - authorities to

the petitioner relying upon Rule 46(1) of the Maharashtra

Civil Services (Pension) Rules so also the order of the

Tribunal is set aside. The respondents shall give the

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benefit of Rules 20 to 22 of the Maharashtra Civil

Services (General Conditions of Service) Rules to the

petitioner and shall restore the petitioner on his

original post, however, without any back wages. The

petitioner would be entitled for continuity in service.

14] Rule is accordingly made absolute in above

terms. No costs.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)

ndk/c8121617.doc