Smt.Asha D/O.Govindrao ... vs State Of Mah.Thr.Ministry Of ...
2017 Latest Caselaw 3418 Bom

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

WRIT PETITION NO.935/2002

Asha D/o Govindrao Sonkamble Aged about 50 years, occu: Service R/o Plot No.167, Gandhi Nagar, Nagpur. ..PETITIONER

v e r s u s

1) The State of Maharashtra Through Secretary Ministry of Homes, Mantralaya, Mumbai-32.

2)        The Regional Transport Officer
          Civil Lines, Nagpur.                                                                 ..RESPONDENTS

...........................................................................................................................

Dr. R.S. Sundaram, Advocate for the petitioner Mr. S.M. Ukey, Additional Government Pleader for Respondents ............................................................................................................................

                                                     CORAM:    R.K.DESHPANDE &
                                                                    MRS . SWAPNA JOSHI, JJ
                                                                                          . 
                                                     DATED :       21st June, 2017

ORAL JUDGMENT: (PER R.K.DESHPANDE,  J.)

The petitioner was appointed as a Clerk in the services of the

respondent no.2-Regional Transport Office at Nagpur, as a candidate belonging

to the Scheduled Caste category, by an order dated 21.01.1985. On 2 nd January

1987, the State Government refused to grant its approval to the appointment

of the petitioner on the ground that on the date of her interview she was over-

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aged. The respondent no.2, therefore, terminated the service of the petitioner

by an order dated 21.01.1987, which was the subject-matter of challenge

before the Maharashtra Administrative Tribunal at Nagpur in Transferred

Application No.972/1991, which was dismissed by the Division Bench, on

10.01.2002. The petitioner is before this Court challenging the said decision.

2. Initially on 11.03.2002, notice was issued to the

respondents and the parties were directed to maintain status quo. By

virtue of the order of status quo, the petitioner was continued in service

and she attained the age of superannuation i.e. 58-years on 30.07.2009.

The provisional pension was released to her till January, 2011 and

thereafter it was stopped.

3. The competent Selection Committee constituted by the

respondent no.1 found the petitioner qualified to be appointed to the

post of Junior Grade Clerk and though it found that the petitioner was

above the upper age-limit prescribed for recruitment of the candidate

belonging to Backward Class category, it selected the petitioner and

consequently appointed by an order dated 21.01.1985 on the post in

question. This appointment, of course, was subject to the approval of the

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respondent no.1-State Government which has refused to grant it, by

communication dated 02.01.1987. Though the stand of the respondent

no.2 is that the respondent no.1-State Government refused to condone

the age-limit, there is nothing before us to show any such consideration

by the State Government.

4. In view of above, we have to examine the case of the

petitioner on the basis of the provisions contained in the Maharashtra

Civil Services(Provision of Upper Age-Limit for Recruitment by

Nomination) Rules,1986. Rule 3 of the said Rules being relevant, are

reproduced below :

"3. Notwithstanding anything contained in any rule, order or instrument for the time time being in force relating to recruitment by nomination to any Posts, cadre or service in Class I, Class II, Class III and Class IV, the upper age-limit for the purpose of recruitment by nomination to the said post, cadre or service in Class I, Class II, Class III or Class IV shall be 28-years and in respect of persons belonging to Backward Classes, it shall be 33 years :

Provided that, where a recruitment rule for any

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particular post, cadre or service in Class I, Class II, Class III or Class IV provides the upper age-limit above 28-years, then the upper age-limit shall be as prescribed in that recruitment rule for that particular post, relaxable by 5 years in respect of persons belonging to Backward Classes.

Rule 3 begins with non-obstante clause giving overriding

effect to any rule, order or instrument for the time being in force

relating to the recruitment by nomination to any Class III post (with

which we are concerned in the present case). The upper age-limit

prescribed for recruitment to Class III post was of 28-years for candidates

belonging to Open category, whereas it was of 33-years in respect of the

candidates belonging to Backward Classes. The proviso below Rule 3

has to be read as an exception which confers the power of relaxation in

upper age-limit by five years in respect of the persons belonging to

Backward Classes.

5. The date of birth of the petitioner in the present case is

17.07.1951. It is the stand of the respondent no.2 that a requisition was

sent to the Employment Exchange and the Social Welfare Department on

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1st October 1984, inviting names of eligible and qualified candidates

belonging to Backward Classes category for selection and appointment

to the post of Junior Grade Clerk in the service of the respondent no.2.

In response to such a requisition, the petitioner was one amongst all

others, whose name were forwarded to the respondent no.2 for

consideration. The petitioner was interviewed by the competent

Selection Committee on 11.01.1985 and on being found qualified for the

post, was appointed by an order dated 21.01.1985.

6. Though the respondent no.2 has stated on affidavit that

the respondent no.1 has refused to condone the upper age-limit in

respect of the petitioner for appointment on the post in question, the

State Government has not filed any reply till this date in response to this

petition, which was filed in the year 2002. No such order is placed on

record refusing to condone the upper age-limit said to have been passed

by the State Government. We are also unable to find out any reason

whatsoever for refusing to condone the upper age-limit in respect of the

petitioner. In our view, proviso to Rule 3 clearly confers a power upon

the State Government to condone the upper age-limit in case of

candidates belonging to Backward Class category, by five years. In the

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light of the recommendations made by the respondent no.2 for

condonation of upper age-limit, we do not find any justifiable reason for

refusing to condone such upper age limit.

7. The petitioner worked for a period of two years when she

was terminated on 21.01.1987. Thereafter she has actually worked on

the post for a period of almost 22-years, may be by virtue of the interim

order granted by this Court or by the Maharashtra Administrative

Tribunal during the pendency of the proceedings. Once we do not find

any justifiable reason on the part of the respondents to refuse to condone

the upper age-limit in the light of the recommendations of the

respondents, we cannot maintain the order of termination passed on

21.01.1987.

8. In the result, we quash and set aside the order of

termination dated 21.01.1987 and grant a declaration that the petitioner

continued to be in service till she attained the age of superannuation on

30.07.2009. Obviously, she will be entitled to all consequential benefits,

including the fixation of pension, gratuity etc. with interest as prescribed

under the Rules or the relevant provisions of the Act on the unpaid

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amount of such arrears. The entire exercise be carried out within a

period of four moths from today.

9. Rule is made absolute in the aforesaid terms, with no order

as to costs.

                         JUDGE                              JUDGE

sahare