Bombay High Court
Dr Kashinathrao Dadaji Dhokrat vs State Of Maha & Ors on 23 June, 2017
Bench: T.V. Nalawade
1 WP-6318-2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6318 OF 2004
Dr. Kashinathrao s/o. Dadaji Dhokrat,
Aged : 74 years, Occ. Nil,
r/o. 1-4-36, Gurudatta Nagar,
Begampura, Aurangabad ..Petitioner
Vs.
1. The State of Maharashtra,
through the Secretary to the
Government of Maharashtra,
Department of Higher Education,
Mantralaya, Ford, Mumbai
2. The Director of Higher Education,
Maharashtra State,
Pune
3. The Assistant Director of Higher
Education, Aurangabad Region,
Aurangabad
4. Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad,
through its Registrar ..Respondents
--
Mr.S.S.Choudhari, Advocate for petitioner
Mr.A.S.Shinde, AGP for respondent nos.1 to 3
Mr.P.B.Shirsath, Advocate for respondent no.4
--
CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
DATE : JUNE 21, 2017
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JUDGMENT (PER SANGITRAO S. PATIL, J.) :
Heard.
2. The petitioner has sought directions
against respondent nos.1 to 3 for condoning the
break in service for a period of 3 years, 9 months
and 18 days so as to enable him to claim
pensionary benefits treating his continuous
service with effect from 27.01.1951 to 30.11.1961
i.e. (for a period of 10 years, 10 months and 4
days). It is the case of the petitioner that he
was constrained to resign from that post due to
his domestic problems. Thereafter, he completed
his post-graduation in 1963. He then applied, in
response to an advertisement, to the then
Marathwada University, Aurangabad, for the post of
Secretary of Board of Sports. He came to be
selected and appointed to that post on 20.09.1965.
He retired on attaining the age of superannuation
on 31.10.1990. He got pensionary benefits of his
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service with effect from 21.09.1965 to 31.10.1990
(i.e. for 24 years, 11 months). The previous
service of the petitioner from 27.01.1951 to
30.11.1961 was not taken into consideration.
3. He, therefore, made representations to
respondent no.3 Assistant Director of Higher
Education on 25.09.1998 with a request to condone
his break in service for 3 years 9 months 18 days.
He claimed that one B.S.Khadkekar was given the
benefits of condonation of break in service of 5
years, 1 month and 28 days and he also should be
given the said same benefit. Respondent no.3
rejected that application as per the order dated
13.10.1999. He then made a representation to the
higher authorities of respondent no.3 for
condonation of break in service, but it was of no
use. Therefore, he filed the present Writ
Petition.
4. The learned Counsel for the petitioner
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submits that as per the Government Resolution
dated 12.08.1999, break in service of the
petitioner is liable to be condoned. He submits
that though the similarly situated persons were
given benefit of the said Government Resolution,
the petitioner has been discriminated and has been
refused that relief. He, therefore, submits that
the respondents may be directed to condone the
break in service of the petitioner.
5. The learned AGP appearing for the
respondents submits that while considering the
question of condonation of break in service, each
individual case needs to be scrutinised in view of
the conditions laid down in the Government
Resolution dated 12.08.1999. He submits that the
petitioner had resigned from his earlier service
of teacher without any justifiable reason. There
is break of more than 3 years and 9 months in his
service. As such, the case of the petitioner does
not fall under the conditions laid down in the
5 WP-6318-2004
said Government Resolution. Moreover, according to
him, the claim of the petitioner for condonation
of break in service has been rightly rejected.
6. As per Clause 4 of the Government
Resolution dated 12.08.1999, the break in service
should not be continuously for more than one year
and the total period of breaks (more than one)
shall not be more than two years. Moreover, such
break should have been caused for the reasons
beyond the control of the employee. The conditions
laid down in Rule 41 of the Maharashtra Civil
Services (Pension) Rules, 1982, are required to be
fulfilled for getting pension for the period of
break in service.
7. In the present case, the petitioner
resigned from his earlier service as a teacher
because of his domestic problems. The reason for
the resignation cannot be said to be beyond the
control of the petitioner. There is absolutely no
6 WP-6318-2004
justification given by the petitioner for his
resigning from the earlier service. Thus, the case
of petitioner does not fulfill the conditions laid
down in the Government Resolution dated
12.08.1999. Consequently, he cannot claim parity
with the other employees whose breaks in service
have been condoned considering the merits of their
individual cases. In view of the conditions
mentioned in the said Government Resolution, the
claim of the petitioner for condonation of break
in service has been rightly rejected by the
respondents. On merits, we do not find any reason
to interfere with the decision of the respondents
in rejecting the claim of the petitioner for
condonation of delay.
8. There is one more hurdle in the way of
the petitioner in getting any relief from this
Court i.e. delay and laches. The petitioner
claimed condonation of break in service with
effect from 01.12.1961 to 20.11.1965 for the first
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time in the year 1998, that too, after he retired
from the service on attaining the age of
superannuation on 31.10.1990. No reason has been
assigned for this inordinate delay in seeking the
relief of condonation of break in service. It is
well settled that the Courts extend assistance to
the vigilants and not to the dormants. In that
view of the matter also, the Writ Petition is
liable to be dismissed.
9. In view of the above facts and
circumstances of the case, we dismiss the Writ
Petition and discharge Rule accordingly. No
costs.
[SANGITRAO S. PATIL, J.] [T.V. NALAWADE, J.]
kbp
