Mrs.Santosh Ganesh Jaiswal vs The State Of Mah. & 2 Ors
2017 Latest Caselaw 2998 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                   Writ Petition No.2845 of 2000


  Mrs. Santosh w/o Ganesh Jaiswal,
  Aged about 45 years,
  Occupation - Nil,
  R/o C/o Shri S.H. Sanishchandra,
  Advocate, Chhota Bazar,
  M.G. Road, Chandrapur,
  Dist. Chandrapur.                                ... Petitioner

       Versus

  1. The State of Maharashtra,
     through its Secretary,
     Law and Judiciary Dept.,
     Mantralaya,
     Mumbai-400 032.

  2. The Chairman,
     District Legal Service Authority,
     District Court, Chandrapur.

  3. The Member-Secretary,
     District Legal Service Authority,
     District Court, Chandrapur.                   ... Respondents


  Shri Atul Pande, Advocate for Petitioner.
  Ms Geeta Tiwari, Assistant Government Pleader for Respondents.




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                Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.

th Dated : 9 June, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The petitioner was working on temporary basis until

further orders, initially on the post of Clerk-cum-Typist and

thereafter on the post of Administrative Assistant in the District

Legal Services Authority at Chandrapur from 16-1-1990. She

was terminated by an order dated 1-7-2000 on the ground that

there is no vacancy to continue her on the post. This is the

subject-matter in this petition.

2. Shri Pande, the learned counsel appearing for the

petitioner, has vehemently urged that at the time of initial

appointment on 16-1-1990, the petitioner was possessing the

qualifications of M.A., LL.B., and though the order appoints her

on temporary basis until further orders, she was continued on

different posts till the date of her termination on 1-7-2000. He

submits that not only that, but there was a proposal for

promoting the petitioner to the higher post of Superintendent

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under the District Legal Services Authority. He further submits

that upon constitution of the District Legal Services Authority

with effect from 31-1-1998, the petitioner was absorbed in the

service on the basis of Rule 12(4) of the Maharashtra State Legal

Service Authority Rules, 1998 framed in exercise of the powers

conferred upon the State Government under Section 28 of the

Legal Services Authorities Act, 1987. He further submits that the

other similarly situated persons, who were also appointed on

temporary basis until further orders, have been continued in

service even till this date. A reference is made in the petition,

specifically to the case of one Shri M.M. Janbandhu, who was

absorbed as Clerk-cum-Typist.

3. It is the stand taken by the respondent Nos.2 and 3, viz.

the Chairman and the Member-Secretary of the District Legal

Services Authority, by filing an affidavit that at the time of initial

appointment on 16-1-1990, the petitioner was aged about

35 years and 5 days and was not within the age limit, as was

fixed for appointment. It is also the stand taken that the

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appointment of the petitioner was not in accordance with the

recruitment rules framed by the High Court and the Government.

Though it is not disputed that the petitioner was continued in

service upon establishment of the District Legal Services

Authority on 13-1-1998, her continuation was only as a

temporary employee. There was no post available for continuing

the petitioner in service, and hence the termination has taken

effect. In the case of Shri M.M. Janbandhu, it is stated that at the

time of his initial appointment, he was within the age limit and

there was only one post of Clerk-cum-Typist, in which

he was absorbed.

4. We have gone through the documents placed on record.

We find that the petitioner was appointed on temporary basis

until further orders in the erstwhile District Legal Aid and Advice

Committee, which is undisputed position. It is well settled that a

temporary employee does not possess any right to the post, and

the absorption of the petitioner upon establishment of the District

Legal Services Authority under sub-rule (4) of Rule 12 of the

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Maharashtra State Legal Services Authority Rules, 1998 was as a

temporary employee. We do not find any clinching evidence on

record to establish that there existed any vacancy to continue the

petitioner in service. Assuming that there existed any such

vacancy, the petitioner does not possess any right of being

continued on the post, particularly when at the time of initial

appointment, she was above the age limit prescribed for

employment.

5. Upon coming into force of the said Rules, the

recruitment should have been done by following the procedure,

and it is not the case of the petitioner that her recruitment was as

per the recruitment rules. If the absorption of Shri Janbandhu

was without following due process of law, that would not furnish

any legal right to the petitioner to claim employment in breach of

the recruitment rules. There cannot be equality in the matter of

illegalities.

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5. In view of above, we do not find any substance in this

petition. The same is dismissed. Rule stands discharged. No

order as to costs.

                         JUDGE                                        JUDGE



   Lanjewar