Bombay High Court
State Of Maharashtra Thr The ... vs Dr. Sanjayrao S/O Namdeorao ... on 24 April, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.9/2011
PETITIONERS: 1. State of Maharashtra, through the Secretary
to Government of Maharashtra, Medical
Education and Drugs Department, Mantralaya,
Mumbai - 400032.
2. Director, Medical Education and Research,
Near Chhatrapati Shivaji Terminus, Mumbai.
3. State of Maharashtra, through the Secretary to
Government of Maharashtra, Ministry of Health,
Public Health Department, Mantralaya,
Mumbai - 400032.
4. Government Medical College, through its Dean,
Nagpur.
(Original Respondents 1 to 4 before the
learned Maharashtra Administrative
Tribunal, Nagpur Bench, Nagpur in
Original Application No.134/2006)
...VERSUS...
RESPONDENT : Dr. Shri Sanjay s/o Namdeorao Puriji,
Aged about 51 years, Occupation : Physician
in Employees State Insurance Scheme
Hospital, r/o Plot No.224, Ram Nagar,
Nagpur.
(Original Applicant in O.A. No.134/2008)
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Mrs. K.S. Joshi, Additional G.P. for petitioners
Shri M.M. Sudame, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 24.04.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this Writ Petition, the petitioner-State of Maharashtra
and others challenge the order of the Maharashtra Administrative
Tribunal, Nagpur, dated 9th June 2010, allowing the Original Application
filed by the respondent and directing the petitioners to condone the
artificial/ technical breaks in the services of the respondent, as a Lecturer
in Medicine in Government Medical College Nagpur from 19.08.1981 till
he was regularly selected and appointed by the State Government. By the
impugned order, the petitioners are further directed to release the
increments in favour of the respondent, by considering his appointment
from 19.08.1981.
The respondent was appointed as a Lecturer in the
Department of Medicine in the Government Medical College, Nagpur, on
ad-hoc basis, on 19.08.1981.The respondent no.1 was duly qualified to
hold the post of Lecturer at the time of his appointment, inasmuch as he
possessed the qualification of M.B.B.S. and MD (Medicine). From time to
time, the respondent was appointed on ad-hoc basis till he was regularly
selected and appointed on the recommendations of the Maharashtra
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Public Service Commission on 4th June,1985. Since there was a technical
break of two to three days of service in between each of his appointments
till he was regularly appointed, the respondent applied to the State
Government for condonation of the break in service and for grant of
increments. The respondent sought continuity of his service with effect
from 19.08.1981. The State Government, however, rejected the
application, in view of Rule 48 (1) (b) of the Maharashtra Civil Services
(Pension) Rules, 1982. The order of the State Government was challenged
by the respondent before the Maharashtra Administrative Tribunal. The
Maharashtra Administrative Tribunal allowed the Application filed by the
respondent and directed the petitioners, as aforesaid. The petitioners are
challenging the order of this Tribunal in this Writ Petition.
Mrs. Joshi, the learned Additional Government Pleader
appearing for the petitioners supported the order of the State Government
and submitted that the Tribunal was not justified in reversing the order of
the State Government and holding that the respondent was entitled to
continuity of service with effect from 19.08.1981 as also the increments. It
is submitted that the State Government had refused to condone the breaks
in the services of the respondent, by referring to the provisions of
Section 48 (1) (b) of the Rules. It is submitted that the condonation of
interruption in service could be ordered under Rule 48 of the Rules on the
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fulfillment of the conditions as are provided therein. It is stated that in the
circumstances of the case, the breaks in the service of the respondent
were rightly not condoned.
Shri Sudame, the learned counsel for the respondent,
supported the order of the Tribunal. It is submitted that in almost similar
set of facts, the Maharashtra Administrative Tribunal had allowed the
Original Applications filed by similarly situated employees and the orders
of the Tribunal in those cases, have attained finality, inasmuch as the Writ
Petitions filed against the said orders have been dismissed. It is submitted
that in the circumstances of the case, especially when the relief is granted
to several such employees, like the respondent, the respondent cannot be
singled out. It is submitted that the rejection of the claim of the
respondent by referring to Rule 48 of the Rules, is incorrect.
On hearing the learned Counsel for the parties and on a
perusal of the order of the Tribunal, it appears that though the State
Government had specifically rejected the application made by the
respondent for condonation of the technical and artificial breaks in his
services by referring to Rule 48 (1) (b) of the Maharashtra Civil Services
(Pension) Rules, 1982, the Tribunal has not considered the said provision
at all. The Tribunal has not considered whether the State Government
could have rejected the application made by the respondent under the
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provisions of Rule 48 (1) (b) of the Rules. Sub Rule 1 (b) of Rule 48 of
the Rules provides that the interruptions in the service of a Government
servant could be condoned provided the total service pensionery benefits
that would be lost is not less than five years duration, excluding one or
two interruptions, if any. The provisions of Rule 48 (1) (b) of the Rules
are not considered by the Tribunal while deciding the original application
filed by the respondent. It would be necessary in the circumstances of the
case to remand the matter to the Tribunal to decide the original
application afresh in accordance with law.
Hence, for the reasons aforesaid, the writ petition is partly
allowed. The impugned order is quashed and set aside. The matter is
remanded to the Tribunal for deciding the original application filed by
the respondent, as early as possible in accordance with law.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Sahare and
Wadkar
