The State Of Mah And Ors vs Ambadas Shadeo Yedwar And Anr
2016 Latest Caselaw 6720 Bom

                                                                         4wp5700-07.odt
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD
                             4 WRIT PETITION NO. 5700 OF 2007




                                                                              
    1. The State of Maharashtra
       Through its Secretary,




                                                      
       (Medical Education & Research),
       Mantralaya, Mumbai 400 032

    2. The Dean,




                                                     
       Bhausaheb Hire Medical College 
       and Hospital, Dhule

    3. The Director,




                                               
       Medical Education & Research,
       Mumbai                     
    4. The Collector, Dhule                               ...       Petitioners
                                 
           VERSUS

    1. Ambadas Shadeo Yedwar,
       Age: Major, Occu: Nil,
       R/o Dhule Chalisgaon Road,
      


       June Naka, Dhule
   



    2. Nandini Pandurang Shegaonkar,                      ...       Respondents
       Age: Major, Occu: Nil,
       R/o Behind Manohar Talkies, 





       Dhule

    Mrs. M. A. Deshande, Addl. G.P. for the petitioners
    Mr. A. D. Sugdare, Advocate for respondents 1 and 2.





                                        CORAM   :  S. V. GANGAPURWALA & 
                                                    K. L. WADANE, JJ.
                                         DATE   :   28th November,  2016


    JUDGMENT:                             

1. Heard the learned counsel for the parties.

2. The judgment delivered by the Maharashtra

4wp5700-07.odt Administrative Tribunal is assailed in the present Writ

Petition.

3. Mrs. Deshpande, the learned Addl. G.P. for the

petitioners submits that the Tribunal has failed to

consider the Government policy and the judgment of the

Apex Court in the case of A. Umarani Vs. Registrar,

reported in AIR 2004 SC 450, wherein, the Apex Court

has specifically directed that the persons whose

appointments are without following due procedure of law

are not entitled for regularization in service. The

learned Addl. G.P. submits that a Circular has been

issued on 25th August, 2005 by the Government thereby

directing not to regularize illegal appointments. The

learned Addl. G.P. further submits that on the date

when the respondents were appointed for the first time

i.e. on 6th February, 2002, they were age barred.

respondent No.1 was 34 years of age and respondent No.2

was 33 years of age. The respondents could not have

been indicted in service as, on the date of their

appointment on temporary basis, they were over aged.

4. Mr. Sugdare, the learned counsel for the

respondents submits that in fact the order impugned in

the present writ petition is based on the order dated

4wp5700-07.odt 18th October, 2004 in Original Application No. 235/2003

and Misc. Application No. 158/2005. Under the said

order, the present respondents were duty bound to

maintain the seniority lists in Part-I and Part-II. In

the IInd seniority list, the respondents are at Serial

Nos. 1 and 2. The petitioners had appointed five

persons on compassionate ground without following the

seniority list as directed by the Tribunal. As the

other persons were appointed, the respondents moved the

Tribunal and the Tribunal has rightly considered the

earlier order passed. No illegality has been committed

by the Tribunal while passing the impugned order.

5. We have considered the submissions.

6. We could have considered the case of the present

respondents, had, at the time of their initial

appointment, they would have been eligible to be

appointed. The respondents herein had crossed the upper

age limit at the time of their initial appointment. The

same is not disputed. Had the present respondents being

eligible to be appointed initially itself, then in that

case, the respondents could seek regularization. It is

submitted by the petitioners that those five persons

who were appointed, were belonging to backward classes

4wp5700-07.odt and were appointed on compassionate ground as per the

roster.

7. As observed, above, we could have considered the

length of services of the respondents and would have

considered their case as per the Lad Committee

recommendations, had the respondents being eligible to

be appointed at the first instance. As the respondents

were not eligible to be appointed at the first

instance/initial dates, the Tribunal ought not have

passed the impugned order. The impugned order is

quashed and set aside.

8. It would be seen that the respondents are given

work as and when the work is available. There are about

9 vacancies of Safai Kamgar. At present,the respondents

are allowed to work by issuing orders from time to

time. The petitioners shall issue orders in favour of

the respondents from time to time as per availability

of the work.

9. Rule is made absolute accordingly. There shall

be no order as to costs.

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