Bombay High Court
Milind Manohar Deshpande (Dead) ... vs State Of Maharashtra And 3 Ors on 16 June, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2809 OF 2003
Milind Manohar Deshpande,
since deceased, through his
legal heirs -
A) Mrs. Jayshree wd/o Milind
Deshpande, aged about 52
years and resident of Gokulpeth
Market Road, Shivaji Nagar,
Nagpur 440 010.
B) Rohan Milind Deshpande,
aged about 16 years,
occupation : Student (Minor
through mother and natural
guardian) ... Petitioner
- Versus -
1) State of Maharashtra, through
its Secretary, Education and
Employment Department,
Mantralaya, Mumbai - 32.
2) The Director of Technical Education,
3, Mahapalika Marg, Mumbai.
3) The Joint Director of Technical
Education, Government Polytechnic
Campus, Amravati.
4) The Principal, Government Polytechnic,
Yavatmal. ... Respondents
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Shri Anil S. Mardikar, Senior Advocate with Shri M.Y.
Wadodkar, Advocate for petitioner.
Shri S.B. Bissa, Assistant Government Pleader for
respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 16, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
The petition is being prosecuted by legal heirs
of original petitioner Milind, who expired during
pendency of petition.
2) In view of judgment of Division Bench of this
Court in Sachin Ambadas Dawale and others vs.
State of Maharashtra and another (2014(2) Mh.L.J.
36), Government Resolution dated 14/1/2015 and later
judgment dated 17/3/2015 delivered by Maharashtra
Administrative Tribunal in Original Application
No.1239/2013, Senior Adv. Mardikar has made
submissions in brief to point out entitlement of
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petitioner to identical treatment.
3) The judgment delivered by Maharashtra
Administrative Tribunal on 17/7/2003 in Transfer
Application No.201/1992 (Writ Petition No.307/1990)
forms subject matter of challenge in the present writ
petition. Petitioner employee Milind had approached
this Court by Writ Petition No.307/1990 for his
absorption and regularisation in Government service
and restraining respondents from terminating him in
the meanwhile. This Court after considering his long
continuation did protect his employment and it
continued till 17/7/2003 when Maharashtra
Administrative Tribunal dismissed his original
application. Thereafter in the present petition, on
21/7/2003, again ad interim order was passed and,
therefore, Milind continued in employment till his
demise on 28/11/2007. Thus, from 1/6/1984 till
28/11/2007, he put in service of over 23 years.
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4) In this background, Senior Adv. Mardikar
submits that Division Bench of this Court in the
judgment in case of Sachin Ambadas Dawale and
others vs. State of Maharashtra and another
(supra) has, in identical circumstances, granted relief
of regularisation to 62 employees, who were similarly
recruited. This judgment was questioned before
Hon'ble Apex Court and the Hon'ble Apex Court refused
leave on 6/1/2015. Hence, a Government Resolution
was issued on 14/1/2015 and services of 62 employees
working earlier on contract basis were regularized. Our
attention is invited to seniority list published later on to
show that first of such persons, who have been given
benefit of regularization, was appointed on 8/9/1992
and benefit is extended to him from that date only.
Here, as petitioner Milind was appointed on 1/6/1984
and, therefore, was senior to that person and all
other persons mentioned in the list, benefit of
regularisation should be extended to Milind also from
the date of his employment, i.e. from 1/6/1984.
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Learned Senior Adv. Mardikar points out that after this
regularisation, by Government Resolution dated
13/3/2015 similarly situated 317 Lecturers have also
been regularised. Few persons, who were left out, had
approached Maharashtra Administrative Tribunal in
Original Application No. 1239/2013 and vide judgment
dated 17/3/2015 they have also been given same
benefit.
5) Our attention is invited to the fact that after
expiry of Milind, his widow was making efforts to seek
similar relief for him and family pension in her favour.
Last such representation made by her on 7/5/2015 is
relied upon by Senior Adv. Mardikar to show that it has
been rejected only on the ground that deceased Milind
was not in service since 2007. He contends that his
unfortunate death due to leukemia cannot be held as a
circumstance to deny him same benefit.
6) Shri Bissa, learned Assistant Government
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Pleader for respondents, is relying upon stand taken in
return. He points out that on the date on which benefit
of regularisation has been extended, i.e. on 31/1/2015,
Milind was not in employment. Those who had put in
three years or more service on 31/1/2015 have only
been given benefit of regularisation and during said
past period ofig three years, Milind was not in
employment. He further points out that as per
recommendations received by State Government from
All India Council of Technical Engineers in 1990,
incumbent like Milind was obliged to possess degree of
Bachelor of Engineering (Electronics) and as Milind did
not possess that degree, he could not have been
regularised even otherwise. He adds that deceased
Milind was continued only due to various interim orders
passed by this Court.
7) Senior Adv. Mardikar, in reply, invites our
attention to documents on record to urge that
qualification of Milind, i.e. post graduation degree in
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Physics with specialization in Electronics is found
sufficient by employer.
8) We find that qualifications of petitioner are not
in dispute. Even in interview call sent to him on
23/3/1984 it is specifically mentioned that M.Sc.
(Physics) with specialization in Electronics only would
be considered as eligibility qualification. The petitioner
accordingly appeared for interview and on 1/6/1984
was given an order of appointment.
9) Shri Bissa, learned Assistant Government
Pleader has pointed out that appointment of Milind was
on temporary basis as he was not selected by
Maharashtra Public Service Commission. He has
further stated that Milind failed once in selection
process.
10) The fact that Milind continued in service from
1/6/1984 till his death on 28/11/2007 is not in dispute.
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Division Bench of this Court in Sachin Ambadas
Dawale and others vs. State of Maharashtra and
another (supra) has considered the condition of
passing M.P.S.C. examination and fact that such
candidates were not available. Thereafter it has
ordered regularisation and that judgment is also upheld
by Hon'ble Apex Court. ig Not only this, the position is
also acquiesced to by the State Government by issuing
Government Resolutions dated 14/1/2015 and
13/3/2015. In this situation, contention that Milind did
not pass M.P.S.C. examination or he had failed once in
examination is not very relevant.
11) Hon'ble Apex Court has in Constitution Bench
judgment in the case of Secretary, State of
Karnataka and others vs. Umadevi and others
(AIR 2006 SC 1806) specifically held that while
considering aspect of regularization, continuation of
employee due to interim protection given by the Court
cannot be looked into. We are aware of this direction.
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However, here in view of judgment of Division Bench
mentioned supra, which has been upheld by Hon'ble
Apex Court and policy decision in the shape of
Government Resolutions, we find that this judgment
delivered in 2006 cannot be used to deny Milind same
treatment. The benefit has been extended initially to
62 Lecturers employed on contract basis because of
judgment of this Court as per Government Resolution
dated 14/1/2015. It has been thereafter extended to
about 353 Lecturers in March 2015. Thus, all Lecturers
recruited after deceased Milind have been regularized
and given benefit.
12) This brings us to contention that Milind did not
possess B.E. (Electronics) degree. The interview call
dated 23/3/1984 specifically accepts M.Sc. (Physics)
with specialization in Electronics as sufficient
qualification. Accordingly, on 1/6/1984 with full
knowledge, appointment order came to be issued to
Milind. Had any selection process been conducted by
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Maharashtra Public Service Commission before 1990
and petitioner succeeded in it, he would have been
appointed as a regular/permanent Lecturer in
Electronics by respondents. The seniority list to which
our attention has been invited contains several names
and in paragraph 3 of the judgment of Maharashtra
Administrative Tribunal delivered on 17/3/2015, there is
a chart of qualification of 14 Lecturers, who had
approached it. Several of them are seen possessing
post graduate qualification. Again few questions arise
because they are holding qualification of M.Sc. in
Physics, Chemistry or Organic Chemistry. At serial
no.8, there is name of C.P. Bhole who has been shown
appointed as Lecturer in Physics with qualification M.Sc.
Physics (Electronics).
13) In the impugned order, only reason to deny
benefit communicated to widow of deceased Milind is
his death in 2007. It has not been pointed out that he
was not qualified to hold the post. Hence, here when
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all other Lecturers have been regularized, we are not
inclined to accept the contention that as Milind did not
possess B.E. (Electronics) degree, he could not have
been regularized.
14) In this situation, following earlier judgments
and Government Resolutions, we direct respondents to
treat deceased Milind as regularized with his date of
entry into service as 1/6/1984. Consequently, all
terminal/retiral benefits payable to him shall be worked
out and shall be released to his heirs/dependents as
per law within a period of six months from today. If
widow or any other dependent is entitled to receive
family pension, necessary exercise shall also be
completed within this period.
15) The writ petition is thus partly allowed. Rule is
made absolute accordingly. No costs.
JUDGE JUDGE
khj
