Bombay High Court
Dashrath Gangaram Gorme vs Honble High Court Of Bombay & Ors on 21 August, 2017
Bench: R.D. Dhanuka
Writ Petition No.3989/2004
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 3989 OF 2004
Dashrath Gangaram Gorme
Age : 43 years, occu.: service
R/o House No. 4-16-73, in
front Balaji Temple, Rohidaspura,
Aurangabad. ... PETITIONER
VERSUS
1. The Hon'ble High Court of Bombay
Through it's Registrar (Genera),
High Court (Appellate Side),
Bombay - 400 032.
2. The District and Sessions Judge,
Aurangabad.
3. Shri S.B. Gulamkar
Age : major, occ : service
R/o C/o Respondent No.2.
4. Shri V.M. Mande
Age : major, occ : service
R/o C/o Respondent No.2.
5. Shri A.B. Barwal
Age : major, occ : service
R/o C/o Respondent No.2.
6. Shri J.G. Ghorpade
Age : major, occ : service
R/o C/o Respondent No.2.
7. Smt. R.P. Bate
Age : major, occ : service
R/o C/o Respondent No.2. ... RESPONDENTS.
.....
Mr. A.S. Deshpande, Advocate for the petitioner.
Mr. C.K. Shinde, Advocate for respondent Nos.1 and 2.
Mr. A.S. Kale, holding for
Mr. S.B. Talekar, Advocate for respondent Nos.3 to 7.
.....
CORAM: R.D. DHANUKA AND
SUNIL K. KOTWAL, JJ.
::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 02:16:19 :::
Writ Petition No.3989/2004
2
RESERVED ON : 10th August, 2017.
PRONOUNCED ON : 21st August, 2017.
JUDGMENT (PER R.D. DHANUKA, J.)
1. By this petition filed under Article 226 read with
Articles 14 and 16 of the Constitution of India, the petitioner has
challenged the order dated 03/03/2004, passed by the Bombay
High Court on administrative side, allowing the representation
made by respondents No.3 to 7 and setting aside the order dated
17/01/2002, passed by the learned District Judge.
2. Some of the relevant facts for the purpose of deciding
this petition are as under :
3. On 29/12/1982, the petitioner was appointed as
English Section Writer" on the establishment of the District &
Sessions Judge, Aurangabad. It is the case of the petitioner that
the said appointment of the petitioner was preceded by selection
by the Selection Committee under the Chairmanship of the then
District Judge. 22 candidates were selected for being appointed
as "English Section Writer". The name of the petitioner appeared
at Sr.No.12 in order of merit. The petitioner belongs to
"Chambhar" community, which is a "Scheduled Caste".
4. On 27/09/1983, the petitioner had been to canteen
Writ Petition No.3989/2004
for a cup of tea along with his colleague Mr. V.V. Mande,
respondent No.4, who was also appointed as "English Section
Writer". The District Judge visited the Section of the petitioner
and noticed the absence of the petitioner and his colleague Mr.
V.V. Mande, respondent No.4 herein. By two separate orders,
both dated 27/09/1983, passed by the learned District Judge, the
services of the petitioner as well as respondent No.4 were
terminated.
5. It is the case of the petitioner that, the petitioner as
well as respondent No.4 thereafter approached the learned
District Judge and tendered apology for having visited the
canteen during duty hours and assured that it would not re-occur
in future. It is the case of the petitioner that, respondent No.2,
however, was pleased to withdraw the order of termination of the
respondent No.4 only though the petitioner as well as respondent
No.4 had tendered apology to the learned District Judge. It is the
case of the petitioner that, in order of merit in the selection list,
the petitioner being placed higher than respondent No.4 was
liable to be reinstated first in point of time than respondent No.4.
6. On 15/11/1983, the petitioner was appointed to the
post of Junior Clerk in leave vacancy of Shri T.E. Kulkarni in Civil
Court, Senior Division, Aurangabad in the pay-scale of Rs.260-495
plus usual allowances admissible as per rules. In the
Writ Petition No.3989/2004
appointment order, it was, however, mentioned that the
petitioner was selected candidate from the waiting list and was
temporarily appointed as a Junior Clerk in the leave vacancy of
Shri T.E. Kulkarni.
7. Some time in the year 1992, the petitioner obtained
Degree of Law from Marathwada University. On 20/04/2000, the
petitioner made a representation to the learned District &
Sessions Judge for fixation of his seniority in the gradation list. In
the said representation, it was alleged by the petitioner that, due
to delay caused in reinstating the petitioner and due to
reinstatement of respondent No.4, even though respondent No.4
was junior to the petitioner, earlier in point of time, he was shown
senior to the petitioner in the seniority list. It was stated that
during the span in which he was out of employment, about 10
persons who were junior to the petitioner in the select list of 1982
and 1983, had been appointed and were shown as senior to him.
Names of those 10 employees were mentioned in the said
representation.
8. It was stated that, due to the alleged delay caused in
issuing appointment order to the petitioner after termination of
his service, those employees have become senior to the
petitioner though they were in fact juniors. The petitioner
requested the learned District Judge to condone the break and to
Writ Petition No.3989/2004
treat him as in service from the date of his joining i.e. 29/12/1982
and to grant all other consequential benefits and also to revise
the seniority list accordingly.
9. It is the case of the petitioner that, pursuant to the
select list dated 11/08/1983, about 4 to 5 candidates came to be
appointed and were shown senior to the petitioner. In para No.5
of the petition, it is stated that, almost 15 to 16 candidates were
placed above the petitioner as a result of his re-appointment on
16/12/1983.
10. In view of the representation made by the petitioner
on 20/04/2000, the learned District Judge sought comments of
the staff members who were likely to suffer, in the event the
representation of the petitioner was allowed. The learned District
Judge passed an order on 5/7th September 2000 condoning the
break in service of 48 days from 28/09/1983 to 14/11/1983 by
treating the said break as extraordinary leave without pay. In the
said order, it was mentioned that the petitioner was re-appointed
on 15/11/1983. It was further directed that, consequent upon
condonation of break in service, the pay of the petitioner shall be
re-fixed and the petitioner be paid the amount of difference in
cash by recording the said order in his service book.
11. The learned District Judge thereafter forwarded the
Writ Petition No.3989/2004
proposal to the Government through the High Court in the month
of November 2000. It is the case of the petitioner that, the High
Court thereafter accepted the representation submitted by the
petitioner, dated 20/04/2000 by an order dated 20/08/2000 and
granted deemed date of promotion to the petitioner to the post of
Senior Clerk having regard to the fact that the break in service of
the petitioner had been condoned by an order dated 5/7th
September 2000. It is the case of the petitioner that, respondent
No.2 thereafter promoted the petitioner to the post of Assistant
Superintendent. The petitioner was also appointed as a Special
Judicial Magistrate by the High Court, which was intimated to the
petitioner by the learned District Judge vide order dated
20/08/2001.
12. On 02/09/2002, respondent Nos.3 to 7 filed an
administrative appeal against the order of the learned District
Judge, granting deemed date to the petitioner in the cadre of
Senior Clerk, and requested to quash and set aside the order
dated 20/08/2002, granting deemed date of promotion to the
petitioner in the cadre of Senior Clerk. The said appeal filed by
respondents No.3 to 7 was allowed by the High Court on the
administrative side. The petitioner thereafter challenged the said
order passed by the High Court on the administrative side before
this Court by filing writ Petition No.5152 of 2003. By an order
dated 08/12/2003, this Court directed the High Court on
Writ Petition No.3989/2004
administrative side to afford the petitioner as also respondent
Nos.3 to 7 an opportunity of hearing and to pass a fresh order.
The petitioner submitted a reply to the said administrative
appeal.
13. By an order dated 03/03/2004, the Bombay High
Court on the administrative side, passed an order on the said
representation which was made by respondents No.3 to 7 against
the order dated 20/08/2002 passed by the learned District Judge
and held that, in view of the fact that the services of the
petitioner were terminated, interruption caused due to such
termination could not be condoned under Rule 48(4) of the
Maharashtra Civil Services (Pension) Rules. It was held that, the
appointment of the petitioner on 15/11/1983 was a fresh
appointment since his services were already terminated w.e.f.
27/09/1983.
14. It was also held that, it was an undisputed position
that, after the said re-appointment of the petitioner on
15/11/1983, seniority list was published by the learned District &
Sessions Judge on number of occasions, wherein the petitioner
was shown below respondent Nos.3 to 7. However, for a period
of 17 years, the petitioner did not raise any objection about his
seniority and suddenly filed an application for condonation of the
so called break in the service and for the consequential reliefs. It
Writ Petition No.3989/2004
was held that, the order passed by the learned District Judge
suffered from illegality and accordingly, the said order dated
17/01/2000, passed by the learned District Judge came to be set
aside. The representation made by respondent Nos.3 to 7 came
to be allowed. Being aggrieved by the said order dated
03/03/2004, passed by the Bombay High Court on administrative
side, the petitioner filed this petition, inter alia praying for
quashing and setting aside the said order.
15. Mr. Deshpande, learned Counsel for the petitioner
invited our attention to various annexures to the Writ Petition. It
is submitted that when the petitioner had gone to the Canteen,
respondent No.4 was also with him. The learned District Judge,
who visited the said Canteen, found the petitioner as well as
respondent No.4 therein during the duty hours. He submits that
the services of the petitioner as well as respondent No.4 were
terminated by the learned District Judge. The petitioner as well
as respondent No.4 had tendered apology to the learned District
Judge. He submits that the learned District Judge, however,
withdrew the order of termination of respondent No.4 only and
reinstated him and did not withdraw the order of termination of
the petitioner though the petitioner had also tendered apology.
16. It is submitted that since the petitioner was appointed
to the post of Junior Clerk by an Office Order dated 18/11/1983 by
Writ Petition No.3989/2004
the learned District Judge, which was within 48 days of the order
of termination, the petitioner did not challenge the earlier order
of termination. He submits that there was, thus, discrimination
between petitioner and respondent No.4 while accepting the
apology of respondent No.4 and withdrawing the order of
termination of the services of respondent No.4 and at the same
time refusing to withdraw the order of termination of the services
of the petitioner.
17. It is submitted by the learned Counsel for the
petitioner that when the other employees were granted seniority
though were junior to the petitioner, the petitioner had applied
for condoning the break of 48 days and to treat the petitioner as
in-service since the date of his joining i.e. from 29/12/1982, to
grant all other consequential benefits and to revise the seniority
list. The learned Counsel submits that when the petitioner was
appointed by respondent No.2 by an Office Order dated
15/11/1983, it was clearly mentioned in the said Office Order that
the petitioner was selected from the waiting list. He submits that
it was, thus, clear that the break of 48 days granted to the
petitioner was condoned by the District Judge. He submitted that
respondent Nos.3 to 7 did not challenge the order passed by the
learned District Judge condoning break of 48 days granted in
favour of the petitioner.
Writ Petition No.3989/2004
18. It is submitted by the learned Counsel that the
impugned order passed by the High Court on the administrative
side holding that the appointment of the petitioner shall be
treated as fresh appointment w.e.f. 15/11/1983 is contrary to the
Office Order dated 15/11/1983 thereby appointing the petitioner
from the waiting list. It is submitted by the learned Counsel that
in the impugned order, it was mentioned that there was no record
to show that the petitioner had tendered apology. He submits
that at the same time respondent No.4 also had not produced any
record to show that he had also tendered apology to respondent
No.2.
19. The learned Counsel invited our attention to the
representation (Administrative Appeal) dated 02/09/2002 filed by
respondent Nos. 3 to 7 and, in particular paragraph No.4 thereof,
in support of the submissions that in the said representation it
was categorically averred by respondent Nos.3 to 7 that the
petitioner had offered an unconditional apology and had
submitted an undertaking that he would not indulge in any
misconduct in future and had requested to reinstate him. The
learned District Judge had accordingly taken a sympathetic view
and appointed the petitioner as a Junior Clerk in leave vacancy of
Shri T.E. Kulkarni in Civil Court (S.D.), Aurangabad. He submits
that respondent Nos.3 to 7, who would have been aggrieved by
the application filed by the petitioner for condoning break of 48
Writ Petition No.3989/2004
days, having admitted that the petitioner had also tendered an
unconditional apology and had given an undertaking that he
would not indulge in any misconduct in future and had requested
to reinstate him, the High Court on administrative side could not
have taken a different view holding that there was nothing on
record to show that the petitioner had given an unconditional
apology to the learned District Judge.
20. The learned Counsel for the petitioner submits that in
the impugned order of the High Court on administrative side, Rule
48 of the Maharashtra Civil Services (Pension) Rules has been
referred which was not invoked by the petitioner while making an
application for condonation of break in service of 48 days. He
submits that reliance thus placed by the High Court on the
administrative side in the impugned order on Rule 48 could not
have been placed. He submits that as on today the petitioner is
not in service and thus the petitioner would be entitled to the
consequential benefits arising out of the seniority of the
petitioner above respondent Nos.3 to 7 in view of the order of
condonation of break in service of 48 days which was rightly
granted by the learned District Judge considering the facts in
right perspective.
21. Mr. C.K. Shinde, learned Counsel for the High Court
(administrative side) and District and Sessions Judge, on the
Writ Petition No.3989/2004
other hand, submits that by the said Office Order dated
29/12/1982, the petitioner was appointed as "English Section
Writer" temporarily from the waiting list at Sr. No. 12 and was
posted in District Court, Aurangabad. He submits that
respondent No.4 was also appointed on temporary basis as
"English Section Writer" from waiting list at Sr. No. 18 and was
posted in the Court of Civil Judge (S.D.). He submits that the
petitioner had not tendered any apology to the learned District
Judge and on the contrary misbehaved with him. The learned
District Judge had considered the unconditional apology given by
respondent No.4 and had withdrawn an order of termination and
had reinstated him. The petitioner, however, did not tender any
apology for the misconduct committed by him.
22. It is submitted by the learned Counsel that on the
contrary the petitioner accepted the order of termination of his
service dated 27/09/1983 and did not challenge the said order at
any point of time till date. He submits that the petitioner was
appointed on temporary basis vide Office Order dated 15/11/1983
as a Junior Clerk in leave vacancy of Shri T.E. Kulakarni in Civil
Court (S.D.), Aurangabad. He submits that the petitioner
accepted the said fresh appointment to the said post without any
protest. The petitioner was thereafter made permanent in the
said post. The petitioner was also granted various promotions
during the period between the date of his appointment and the
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date of his application made to the learned District Judge on
20/04/2000 for condonation of break in service of 48 days.
23. It is submitted that the petitioner neither impugned
the said termination order dated 27/09/1983 nor made any
representation for about 17 years. The petitioner accepted the
order of termination and acted upon the said order and thus
could not have applied for condonation of break in service of 48
days or any other period. It is submitted that the learned District
Judge could not have condoned the break in service of 48 days in
view of the fact that the services of the petitioner were already
terminated by order dated 27/09/1983. In support of this
submission, the learned Counsel for respondent Nos.1 and 2
placed reliance on Rule 48 of of the Maharashtra Civil Services
(Pension) Rules and more particularly Rule 48 (3) and (4).
24. In so far as the submission of the learned Counsel for
the petitioner that the petitioner had not invoked Rule 48 (3) of
the Maharashtra Civil Services (Pension) Rules in his application
for seeking condonation of break in service of 48 days to the
learned District Judge is concerned, it is submitted by the learned
Counsel for respondent Nos. 1 and 2 that there was no other
provision for condonation of break in service. He also invited our
attention to the letter dated 26/04/2001 addressed by the Desk
Officer, Law & Judiciary Department to the learned District Judge
Writ Petition No.3989/2004
in response to the letter addressed by the learned District Judge
seeking directions from the Law & Judiciary Department, referring
to Rule 48 of the Maharashtra Civil Services (Pension) Rules. He
submits that since the order passed by the learned District Judge
condoning the break in service of 48 days was in the teeth of Rule
48 (3) and (4) of the Maharashtra Civil Services (Pension) Rules,
the High Court on the administrative side, rightly set aside the
order dated 17/01/2002 passed by the learned District Judge and
holding that the petitioner was re-appointed after his termination
and in view of Rule 48 (4) of the Maharashtra Civil Services
(Pension) Rules and thus the interruption caused by resignation,
dismissal or removal could not be condoned.
25. In so far as the submission of learned Counsel of the
petitioner that there was also no record to show that respondent
No.4 had tendered apology is concerned, it is submitted by
learned Counsel for respondent Nos.1 and 2 that the petitioner
has not alleged any malice or bias against the learned District
Judge in not recording the unconditional apology alleged to have
been tendered by the petitioner or for withdrawing the order of
termination of respondent No.4 and not that of the petitioner.
He submits that the impugned order passed by the High Court on
administrative side being not perverse, cannot be interfered by
this Court in this petition filed under Article 226 of the
Constitution of India.
Writ Petition No.3989/2004
26. Learned Counsel Mr. A.S. Kale for respondent Nos.3 to
7 submits that after this Court remanded the matter back to the
High Court on administrative side to consider the representation
made by respondent Nos. 3 to 7, his clients had made an
application for seeking amendment to include the challenge to
the order of the learned District Judge allowing condonation of
break in service of 48 days in favour of the petitioner. He submits
that the said amendment was allowed by the High Court on the
administrative side and was not challenged by the petitioner.
27. It is submitted by learned Counsel for respondent
Nos.3 to 7 that the petitioner did not challenge the order of
termination of his services vide order dated 27/09/1983 even till
today alleging any discrimination between the petitioner and
respondent No.4 or on the ground that though he had also
tendered apology, his services were wrongfully terminated.
28. It is submitted by the learned Counsel for the
respondent Nos.3 to 7 that the petitioner had not only accepted
his fresh appointment, but had also accepted the order making
him permanent and granting various promotions unconditionally.
29. Mr. Deshpande, learned Counsel for the petitioner, in
his re-joinder, submitted that the petitioner had not appeared
before the Selection Committee when the petitioner was
Writ Petition No.3989/2004
appointed on 15/11/1983 to the post of Junior Clerk, which would
clearly indicate that Rule 45 of of the Maharashtra Civil Services
(Pension) Rules was not invoked by respondent Nos.1 and 2. He
submits that there is no provision in the Maharashtra Civil
Services (Pension) Rules for making an application for
condonation of break in service within a specified time. He
submits that when the seniority of the petitioner was affected,
the petitioner applied for condonation of break in service in the
year 2000.
30. It is not in dispute that the petitioner was appointed
as "English Section Writer" vide order dated 29/12/1982 issued
by the learned District and Sessions Judge, Aurangabad on
temporary basis from the waiting list at Sr. No.12. By the same
order, respondent No.4 was also appointed on temporary basis as
"English Section Writer" from waiting list at Sr. No.18. The
petitioner and respondent No. 4 were found in the Canteen of the
District Court at Aurangabad on 27/09/1983 when the learned
District and Sessions Judge took a round in District Court during
duty ours. By an order dated 27/09/1983 the learned District and
Sessions Judge terminated the services of the petitioner as well
as respondent No.4.
31. A perusal of the record indicates that the learned
District Judge thereafter withdrew the order of termination in so
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far as respondent No.4 is concerned, vide order dated 28/09/1983
recording that respondent No.4 had tendered apology. It is not in
dispute that no such order was passed in case of the petitioner.
On the contrary, the petitioner was appointed on 15/11/1983 by
an Office Order issued by the learned Joint Judge and Additional
Sessions Judge, Aurangabad appointing the petitioner temporarily
as a Junior Clerk in leave vacancy of Shri T.E. Kulkarni in Civil
Court (S.D.), Aurangabad.
32. It is not in dispute that the petitioner accepted the
said temporary appointment made by the learned Joint Judge and
Additional Sessions Judge, Aurangabad and took charge of the
said post. The said Shri T.E. Kulkarni, Junior Clerk, Civil Court
(S.D.), Aurangabad was granted commuted leave on medical
ground w.e.f. 10/11/1983 to 19/12/1983, for 40 days under the
provisions of the Maharashtra Civil Services (Leave) Rules of
1981. The petitioner was admittedly thereafter made permanent
in the said post. The petitioner admittedly did not challenge the
said order of termination of services of the petitioner vide order
dated 27/09/1983 and accepted the fresh appointment.
33. Several seniority lists were prepared from time to
time by respondent No.2 showing the names of respondent Nos.3
to 7 as senior to the petitioner. The petitioner did not challenge
the said seniority list for 17 years and accepted the same. The
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petitioner also accepted the promotions granted to the petitioner
from time to time during the period of 17 years and thereafter
made an application to the learned District Judge on 20/04/2000
inter alia requesting to condone the break in service of 48 days.
Learned Counsel for the petitioner does not dispute that the
petitioner did not challenge the termination at any point of time
and was not only made permanent after the petitioner accepted
order dated 15/11/1983 appointing him temporarily as Junior
Clerk in leave vacancy of Shri T.E. Kulkarni, but was also granted
promotions based on such seniority list prepared on the basis of
his fresh appointment dated 15/11/1983.
34. In so far as the submission of learned Counsel for the
petitioner that the appointment of the petitioner made on
15/11/1983 as a Junior Clerk was made from the waiting list is
concerned, a perusal of the averments made in paragraph No.4 of
the Writ Petition indicates that the petitioner has admitted that
vide order dated 15/11/1983 he was appointed again, however,
against leave vacancy of Shri T.E. Kulkarni. It is the case of the
petitioner in the Writ Petition that since he was in dire need of
service and belonging to Scheduled Caste family below the
poverty line, he though it appropriate not to agitate and was not
able to conceive the fact of appointment against leave vacancy
at the relevant point of time. There is, thus, no merit in the
submission of learned Counsel for the petitioner that his client
Writ Petition No.3989/2004
was appointed from the waiting list or without following the
procedure of appointment through Selection Committee or that it
was a case of reinstatement of the petitioner when he was
appointed on 15.11.1983.
35. A perusal of the petition further indicates that
pursuant to the selected list dated 11/08/1983, 22 candidates
were appointed by respondent No. 2 and were shown senior to
the petitioner. Petitioner, however, never challenged the
seniority list till 20/04/2000, for a period of 17 years. In our view,
merely because in the order dated 15/11/1983 it was mentioned
that the petitioner, was selected from the waiting list and was
temporarily appointed, it would not indicate that the termination
of the services of the petitioner vide order dated 27/09/1983 was
withdrawn.
36. In so far as the submission of learned Counsel for the
petitioner that respondent No.1 could not have referred to Rule
48 of the Maharashtra Civil Services (Pension) Rules since the
same was not invoked by the petitioner in his application for
condonation of break in service is concerned, Mr. Deshpande,
learned Counsel for the petitioner could not dispute that only
provision for condonation of break in service was under Rule 48 of
the Maharashtra Civil Services (Pension) Rules. A perusal of the
letter addressed by the Desk Officer from the Law & Judiciary
Writ Petition No.3989/2004
Department to the learned District Judge dated 16/04/2001 also
clearly indicates that Rule 48 of the Maharashtra Civil Services
(Pension) Rules was invoked. It is not the case of the petitioner
that the said application for condonation of break in service made
by the petitioner was outside the provisions applicable to the
petitioner. In our view, there is thus no substance in the
submission of the learned Counsel for the petitioner that the High
Court on the administrative side could not have invoked Rule 48
(4) of the Maharashtra Civil Services (Pension) Rules.
37. Rule 45 of the Maharashtra Civil Services (Pension)
Rules clearly provides that dismissal or removal of a Government
servant from service entails forfeiture of his past services. It is
thus clear that the period between the date of termination and
fresh appointment could not be considered as past service. The
relationship of an employer and an employee cease to exist
during that period and thus question of any condonation of break
in service did not arise. A perusal of Rule 48 of the Maharashtra
Civil Services (Pension) Rules clearly indicates that that an
interruption caused by the resignation, dismissal or removal from
service cannot be automatically condoned under Rule 48 (3) nor
would fall under Rule 48 (1). In our view, since the services of the
petitioner were terminated by a specific order dated 27/09/1983
and the petitioner was given fresh appointment on 15/11/1983,
the question of condonation of any break in service did not arise.
Writ Petition No.3989/2004
The petitioner had accepted the order of termination of his
services and had accepted the fresh appointment.
38. A perusal of Rule 48 (4) of the Maharashtra Civil
Services (Pension) Rules clearly indicates that Rule 48 (3) shall
not apply to the interruption caused by resignation, dismissal,
removal from the service. Since the services of the petitioner
were terminated, the petitioner could not invoked Rule 48 (3) of
the Maharashtra Civil Services (Pension) Rules by alleging break
in service between 27/09/1983 and 15/11/1983.
39. In our view, since the provision for condonation of
break in service in this case could not have been invoked by the
petitioner at all, the learned District Judge could not have
condoned the alleged break in service on any ground whatsoever.
In our view, the High Court on the administrative side rightly
considered the provisions under Rule 48 of the Maharashtra Civil
Services (Pension) Rules and rightly rendered a finding that the
appointment of the petitioner on 15/11/1983 being a fresh
appointment after the services of the petitioner were terminated
w.e.f. 27/09/1983 under Rule 48 (4) of the Maharashtra Civil
Services (Pension) Rules, interruption caused by the dismissal
could not be condoned. Respondent No.1, in the impugned order,
has also rightly considered an admitted fact that for a period of
17 years the petitioner did not raise any objection about his
Writ Petition No.3989/2004
seniority and had suddenly filed a grossly belated application for
condonation of so called break in service and for consequential
reliefs. In our view, though no specific period is provided in the
Rules for making an application for condonation of break in
service, it has to be made within a reasonable period.
40. In so far as the submission of learned Counsel for the
petitioner that in the representation made by respondent Nos.3 to
7 it was admitted by them that the petitioner also had tendered
unconditional apology and had given an undertaking not to
repeat such acts in future, respondent No.1 could not have
rendered a finding that no apology was tendered by the petitioner
or that if there was no record to show that petitioner had
tendered an unconditional apology, there was also no record to
show that respondent No.4 had tendered an apology is
concerned, in our view, there is no merit in this submission of the
learned Counsel for the petitioner. The petitioner did not
challenge the order of termination of services of the petitioner
and also the order of respondent No.2 withdrawing the order of
termination of services of respondent No. 4 recording that he had
tendered an unconditional apology, for more than 17 years. The
petitioner, on the other hand, accepted the order of termination
of his services and also his fresh appointment after gap of 48
days unconditionally, including the order of appointing him on
permanent basis and thereafter granting various promotions to
Writ Petition No.3989/2004
him from time to time based on the date of his fresh appointment
dated 15/11/1983.
41. We do not find any infirmity in the impugned order
passed by the High Court on the administrative side. The High
Court on the administrative side also rightly considered the
admitted fact that for a period of 17 years the petitioner had not
applied for condonation of break in service. The learned Counsel
for the petitioner could not justify or explain gross delay of 17
years in making application for condonation of break in service.
In our view, the petitioner is thus totally devoid of merit. We,
therefore, pass the following order.
ORDER
1. Writ Petition No. 3989 of 2004 is dismissed.
2. Rule is discharged.
3. Interim relief granted by this Court to stand
vacated.
4. There shall be no order as to cost.
(SUNIL K. KOTWAL) (R.D. DHANUKA)
JUDGE JUDGE
VDD/
