Capt. Dinesh S/O Narayan ... vs State Of Mah., Through Its ...
2017 Latest Caselaw 2193 Bom

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

                                 WRIT PETITION NO.299/2015

     PETITIONER:                Capt. Dinesh s/o Narayan Tatwawadi, 
                                Aged about 64 years, Occ. retired, 
                                R/o Shri Ram, Tilakwadi, Yavatmal.

                                               ...VERSUS...

     RESPONDENTS:     1.  State of Maharashtra,
                           through its Secretary General 
                           Administration Department, 
                           Maharashtra State, Mumbai. 

                                2.  The Director, Department of Sainik 
                                     Welfare, Government of Maharashtra, 
                                     Bungalow No.9, Shastrinagar, Yerwada, Pune. 

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                        Ms N.P. Mehta, AGP for respondents
     --------------------------------------------------------------------------------------------------

                                                    CORAM  :  SMT. VASANTI  A  NAIK, AND
                                                                      MRS. SWAPNA JOSHI, JJ.

DATE : 04.05.2017

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

By this petition, the petitioner challenges the order of the

Maharashtra Administrative Tribunal, dated 9.9.2014, dismissing the

original application filed by the petitioner.

The petitioner was appointed in the services of Army as a

Short Service Commissioned Officer and worked in the said capacity in

the said services till 22.9.1979. After the discharge from Army services, he

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applied for the post of Secretary, Zilla Sainik Welfare Board as the

Maharashtra Public Service Commissioner had advertised the said post on

28.1.1983. The petitioner was selected for the said post and was actually

appointed on the same on 30.6.1983. While working as a Secretary, Zilla

Sainik Welfare Board, he got early increments for completing nine years

of service in the Army. A representation was made by the petitioner to the

higher authorities for condoning the break in service between 22.9.1979,

when he was discharged from the Army services till 30.6.1983, when he

was appointed as the Secretary of Zilla Sainik Welfare Board. The

application of the petitioner was rejected and it was informed that the

break in service could not be condoned. The petitioner challenged the said

decision before the Maharashtra Administrative Tribunal. The

Maharashtra Administrative Tribunal rejected the original application

filed by the petitioner.

On hearing the learned Assistant Government Pleader for

the respondents and after perusing the petition and the impugned order,

it appears that there is no scope for interference with the impugned order,

in exercise of the writ jurisdiction. There was a break in the services of the

petitioner for more than three years, inasmuch as he had worked in the

Army till 29.9.1979 and he was appointed as a Secretary of Zilla Sainik

Welfare Board on 30.6.1983. Under Rule 40 of the Maharashtra Civil

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Services (Pension) Rules, 1982, the break in service could be condoned

after recording special reasons, if the break in service is more than one

year and less than three years. The Tribunal rightly held that apart from

the said rule, the Maharashtra Released Defence Service Personnel

(Fixation of Pay and Seniority) Rules, 1974 apply to the case of the

petitioner and as per Rule 9 of the Rules, the break in service between the

military service and civil service could be condoned, if the break does not

exceed one year and under special orders of the State Government the

break could be condoned, if it does not exceed more than three years. As

per Rules 40 and 41 of the Maharashtra Civil Services (Pension) Rules,

1982 as well as the Rules of 1974, which would govern the case of the

petitioner, there is no power or authority even in the State Government to

condone the break in service, if the break is of more than three years.

Admittedly, in this case, the petitioner had worked in the Army till

22.9.1979 and was appointed as a Secretary of Zilla Sainik Welfare Board

on 30.6.1983. This clearly showed that the break was of more than three

years. Between the intervening period the petitioner had worked with a

private Company, namely, Central Pulp Mills, Songad (Gujarat). The

Tribunal found and rightly so that the case of the petitioner and the case

of Captain Purohit on which great reliance was placed by the petitioner

for seeking the relief was not identical. In the case of Captain Purohit

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immediately after he was discharged from Army he was selected by the

M.P.S.C. for the civil post and due to the fault on the part of the

Government, the appointment order came to be issued in favour of

Captain Purohit a little later. In the peculiar set of facts in the case of

Captain Purohit, the break was condoned. However, in the instant case,

since the break could not have been condoned in view of Rule 40 of the

Maharashtra Civil Services (Pension) Rules and Rule 9 of the Rules of

1974, the Tribunal rightly held that there was no fault on the part of the

State Government in not condoning the break in the services of the

petitioner. The order appears to be just and proper and calls for no

interference.

Since the order of the Tribunal is just and proper, we

dismiss the writ petition with no order as to costs. Rule stands discharged.

                     JUDGE                                                             JUDGE



     Wadkar