Bombay High Court
Shri. Sashikant Pandharinath ... vs The State Of Maharashtra, Through ... on 9 October, 2017
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 1554 OF 2013
Sashikant Pandharinath Salkade .. Petitioner
Versus
The State of Maharashtra & Anr. .. Respondents
...................
Appearances
Mr. Rajesh M. Kolge Advocate for the Petitioner
Mr. Vishan Thadani AGP for the Respondents / State
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : OCTOBER 9, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard learned counsel for the petitioner and learned
AGP for the respondents.
2. Rule. By consent, rule is made returnable forthwith and
the matter is heard finally.
3. The petitioner preferred Original Application No. 1094
of 2002 before the Maharashtra Administrative Tribunal
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praying that directions be given to the respondents to treat
the entire period of service from 15.9.1961 to 28.2.2001 as
Government Servant and accordingly fix the pay and other
consequential benefits. The said O.A. came to be dismissed,
hence, this petition.
4. The brief facts of the case which are not in dispute are
as under:-
The petitioner was appointed as Clerk in the Publicity
Department on 15.9.1961. He was transferred to
Information Centre, Nagpur on 30.7.1964. He was posted as
Clerk-cum-Typist in District Publicity Office, Bhandara from
8.3.1966. On 19.7.1966, he was further transferred as
General Assistant in District Publicity Office, Buldhana from
January, 1967. In 1967, a public advertisement was issued
by the Director of Tourism for filling up the post of Holiday
Camp Managers. The petitioner had sent his application for
the said post through the office i.e through Regional Tourist
Office. He also sent one application directly to the Director
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of Tourism. About 29 persons were called for the interview.
The petitioner was one of them. After clearing the interview,
on 2.4.1968, the petitioner had handed over charge of his
post in the office of District Publicity Officer and took the
charge as a Manager, Holiday Camp, Nagpur on the same
day.
5. The main question which arises is whether the
petitioner satisfied that he continued to be a Government
Servant notwithstanding the fact that he was selected by the
Director of Tourism as a Manager in the year 1968. The
question, therefore, would be whether the petitioner had
ceased to be a Government employee once he was
appointed as a Manager, Holiday Camp on 8.4.1968.
6. By order dated 13.6.1977, the petitioner came to be
repatriated and relieved from the post of Manager, Holiday
Camp with immediate effect to enable him to join his posting
as a Clerk-Typist in the office of the District Information
Officer, Dhule. When the petitioner was thus repatriated, he
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filed Special Civil Application No. 1364/2017. A specific
averment was made in that application that the petitioner is
a confirmed employee in the cadre of Manager, Holiday
Camp under the Government of Tourism and he is entitled to
all the benefits of permanency in the said post and his
seniority is to be counted in the cadre of Manager,
Government Holiday Camp. Since the said order was
withdrawn by the respondents, there was no occasion to
dispose of that Civil Application on merits. Thus, from these
facts, it is clear that the petitioner wanted to continue as
Manager, Holiday Camp.
7. Thereafter, the petitioner received a notice asking him
to elect an option offered to him in the said notice. The
petitioner replied to the said notice by communication dated
3.10.1979. The communication is addressed to the Director
& Dy. Managing Director, M.T.D.C. In this communication,
the petitioner has clearly stated that he is willing to accept
the employment under the Maharashtra Tourism
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Development Corporation Limited ( for short, 'MTDC'). In this
communication, the petitioner has clearly stated that he is
willing to accept the employment under MTDC on the terms
and conditions mentioned in the notice. It is pertinent to
note that in the said communication, the petitioner has
clearly scored out the following portion which reads thus:-
I do not desire to accept the employment under
Maharashtra Tourism Development Corporation Ltd. and I desire
to continue as Government Servant till the date of option and
avail of the pensionary or terminal benefits that are admissible to
me under the Bombay Civil Services Rules.........
This shows that the desire of the petitioner was to
continue to work in MTDC.
8. The facts relating to this case shows that by letter
dated 2.4.1968, the petitioner had handed over the charge
of his post in the office of District Publicity Office and took
charge as Manager, Holiday Camp on the same day. The
appointment of the petitioner as a Manager, Holiday Camp is
a fresh appointment by nomination. The petitioner was not
sent on deputation to that post nor was he posted there on
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transfer. The fact also remains that the petitioner has also
taken all the pensionary benefits as an employee of the
Corporation.
9. As stated earlier the petitioner had preferred Special
Civil Application No. 1364/77. It was produced before the
MAT by respondent No. 2 to their affidavit-in-reply. It is seen
that in paragraph 4 of the said Civil Application, a specific
averment is made that the petitioner is confirmed employee
in the cadre of Manager, Government Holiday Camp under
the Government of Tourism and he is entitled to all the
benefits of permanency and his seniority is to be counted in
the cadre of Manager, Government Holiday Camp. Thus, at
least when the said Special Civil Application was preferred by
the petitioner, the petitioner appears to have given up or
relinquished his plea that he is a Government employee. At
least, at that time, a specific averment is made that
petitioner is confirmed employee of the Corporation and
therefore, he is entitled to all the pensionary benefits as an
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employee of the Corporation.
10. The second aspect is about the difference in pay and
allowance of the post of Clerk-cum-Typist which the
petitioner was holding prior to 8.4.1968 and the scale of
Manager, Holiday Camp to which the petitioner was posted
after 8.4.1968. The scale of Clerk-cum-Typist is 100-3-130-
EB-4-170 whereas scale of Manager is 145-8-185-10-245.
There is, therefore, an obvious reason on the part of the
petitioner to opt for the post of Manager. It is further to be
noted that at the material time, the office of the Directorate
of Publicity was situated at Mantralaya whereas the
administration of Directorate of Tourism was situated at
Foreshore Road and was separate from the Directorate of
Publicity. It is also to be noted that the petitioner has
completed the probation period on the post of Manager and
therefore, his contention that he still a Government
employee is fallacious.
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11. As stated earlier, the petitioner has exercised an option
to work under MTDC and he had also claimed that he was an
employee of the Corporation. The petitioner has taken all
pensionary benefits as an employee of the Corporation.
Thereafter, the petitioner, with oblique motive, has claimed
that he is a Government servant. The Tribunal has taken all
the facts into consideration and held that the petitioner was
not entitled to any of the reliefs claimed by him.
12. In view of the above facts, the order of the Tribunal
cannot be faulted with. No case is made out for interference.
Rule is discharged.
[ M.S. KARNIK, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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