Bombay High Court
State Of Maharashtra & 2 Ors vs Dr.Medha K. Badwaik on 25 January, 2018
Bench: B.P. Dharmadhikari
Judgment wp4349.02
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4349 OF 2002.
1. State of Maharashtra
through Department of Medical Education
and Drugs, Mantralaya,
Mumbai - 32.
2. The Director of Medical Education
and Research, State of Maharashtra
Dental College Building, 4th Floor,
St. George Hospital Compound,
V.T. Bombay.
3. The Dean,
Indira Gandhi Medical College and
Hospital, Nagpur. ... PETITIONERS.
VERSUS
Dr. Medha K. Badwaik,
Registrar in Anaesthetic,
Post partum programme, Indira
Gandhi Medical College,
Nagpur. ... RESPONDENT
.
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Ms. N.P. Mehta, A.G.P. for Petitioners.
None for Respondent.
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Judgment wp4349.02
2
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : JANUARY 25 2018
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Ms. N.P. Mehta, learned Assistant Government
Pleader for petitioners. None appears for the respondent, though
served.
2. Maharashtra Administrative Tribunal has by its order
dated 13.12.2001, partly allowed Original Application No.774/2000
filed by the respondent. It has directed petitioners - State
Government to take necessary steps to obtain approval of M.P.S.C.
for recruitment of employee and her service need to be regularized.
It has also directed that she is entitled to benefits of leave,
increments, insurance, G.P.F. etc., as specified in letter of State
Government dated 27.02.1996.
3. In this petition, Rule has been issued on 11.12.2002. This
Court has then passed the following order :-
" Heard learned counsel appearing for both
Judgment wp4349.02
the parties.
Rule.
Hearing expedited.
Impugned order of the Tribunal is stayed.
However, it is directed that the petitioners shall not
terminate the services of the respondent without prior
permission of this Court.
The petitioners are directed to extend the
benefit under the letter of Directorate of Medical
Education and Research dated 27.02.1996 and
Government Resolution dated 01.03.1997 to the
respondent, if the same is extended to similarly
situated adhoc employees."
4. Learned A.G.P. submits that accordingly the benefits
flowing from letter dated 27.02.1996 and government resolution
dated 01.03.1997 are extended to the respondent.
5. Her submission is, Maharashtra Administrative Tribunal
has decided the controversy in the light of judgment of Hon'ble
Supreme Court reported at AIR 1992 SC 2130 (State of Haryana
.vrs. Piara Singh). Because of the later Constitution Bench
judgment of Hon'ble Supreme Court reported at AIR 2006 SC 1806
Judgment wp4349.02
(Secretary, State of Karnataka .vrs. Umadevi), the said judgment
cannot be said to be laying down a good law. Even otherwise, she
points out that though respondent was employed first on
18.12.1990, it was on adhoc basis for four months. This
appointment was continued thereafter from time to time and she can
continue only because of interim orders of Maharashtra
Administrative Tribunal.
6. Perusal of the facts as mentioned in order of Maharashtra
Administrative Tribunal reveals that the respondent joined as
Registrar, Anaesthesia post Partum program in Indira Gandhi
Medical College and Hospital, Nagpur w.e.f. 18.12.1990 on adhoc
basis for four months. This appointment continued upto 17.12.1991.
She along with her 4 colleague then approached the Maharashtra
Administrative Tribunal in Original Application which was decided
on 03.12.1991. Maharashtra Administrative Tribunal then ordered
respondents to continue them in service till substituted by regularly
selected candidates sent by the M.P.S.C.
7. This situation continued till she approached the
Maharashtra Administrative Tribunal in Original Application
Judgment wp4349.02
No.774/2000. Prayer in that Original Application was to regularize
her services. Grievance before Maharashtra Administrative Tribunal
was that the post was not advertised since 1990 till she approached
the Maharashtra Administrative Tribunal, and hence, she did not get
opportunity to participate in any of competitive process conducted
by the M.P.S.C. She then pointed out that she may also grow
overage. State Government in their reply pointed out that the post
was advertised on 2/3 occasions and employee did not avail that
opportunity and did not apply. This was disputed by the employee.
Maharashtra Administrative Tribunal has accepted the contention of
the employee that post held by her was not advertised right from the
year 1990 till the date it heard the matter.
8. In paragraph no.13 of its judgment, the Maharashtra
Administrative Tribunal has looked into the order of the Allahabad
High Court reported at 2000 (II) CLR 576 (Shamshad Ahmad and
others .vrs. State of U.P. and others), and accepted it. Maharashtra
Administrative Tribunal found that it would be appropriate to direct
respondents to take necessary steps to secure approval of M.P.S.C. to
regularize the services of the applicant before it. In paragraph no.8,
Judgment wp4349.02
it has also relied upon judgment of Hon'ble Supreme Court in case of
State of Haryana .vrs. Piara Singh (supra).
9. The Constitution Bench judgment of Hon'ble Supreme
Court in case of State of Karnataka .vrs. Umadevi (supra), has
categorically observed that regularization in government service is an
exceptional exercise, and has permitted it as one time exercise in
that matter. However, then its benefit was directed to be extended to
those who had completed 10 years of service without any interim
orders from any Court.
10. Here the respondent has put in services only because of
interim orders or then final orders of the Maharashtra Administrative
Tribunal in her favour. Those orders were by following the law then
in vogue i.e. an adhoc employee cannot be substituted by another
adhoc employee. As rightly pointed out by learned A.G.P., this law
does not remain valid after above mentioned Constitution Bench
Judgment.
11. This Court has on 11.12.2002, protected the employment
of respondent / employee. It is obvious that by now she has
Judgment wp4349.02
definitely become age barred. Hence, if she is not already
regularized, we direct petitioners to serve upon her a advance notice
of two months before putting end to her services, if occasion
therefor arises, because of this judgment.
12. Subject to this direction, we quash and set aside the
judgment and order of Maharashtra Administrative Tribunal,
Nagpur dated 13.12.2001 passed in Original Application
No.774/2000 to the extent it directs regularization of respondent
employee and ask petitioners to take approval from M.P.S.C. Writ
Petition is thus, partly allowed. Rule is made absolute in aforesaid
terms, with no order as to costs.
JUDGE JUDGE
Rgd.
