Syed Fayazuddin Syed Zainuddin vs The State Of Maharashtra And Anr
2022 Latest Caselaw 11303 Bom

                                           (1)                    19 wp 2162.19

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                            WRIT PETITON NO. 2162 OF 2019

      Syed Fayazuddin s/o Syed Zainuddin,
      Age 48 years, Occ. Service,
      R/o H.No.1-11-152/2, New Nehru
      Bhavan, Buddilane, Aurangabad.
      Tq. & District Aurangabad.                             ..       Petitioner

               Versus

1.    The State of Maharashtra,
      Through its Secretary,
      Drugs & Medicine Department,
      Mantralaya, Mumbai-32.

2.    The Dean,
      Government Medical College &
      Hospital, Aurangabad.
      (MS)-431001.                                         ..     Respondents
                                         ...
                 Mr. R.S. Mubashir Ali, Advocate for the Petitioners.
                  Mr. A.S. Shinde, AGP for the respondent-State.
                                         ...

                                CORAM :    SMT. VIBHA KANKANWADI &
                                           Y.G. KHOBRAGADE, JJ.

DATE : 9th November, 2022

ORAL JUDGMENT:-

Rule. Rule made returnable forthwith. With the consent of the

parties taken up for final disposal at admission stage.

2. Heard Mr. R.S. Mubashir Ali learned counsel for the petitioner

and Mr. A.S. Shinde learned AGP for the respondents.

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3. The petitioner by invoking the constitutional powers of this Court

under Article 226 has prayed for issuing directions to the respondent nos.1

and 2 to include his name in the seniority list and appoint him as Class-IV

Servant in Govt. Medical College and Hospital, Aurangabad.

4. From the papers those have been produced it can be seen that the

petitioner was a temporary employee employed with the Govt. Medical

College Hospital, Aurangabad for a period of 29 days by order dated

03.06.1985, certificate to that effect has been produced. Thereafter, it appears

that he was not appointed. Similarly situated persons had approached this

Court by way of filing writ petition no.2595/1991 which was decided by the

Single Bench of this Court on 13.08.2010. Earlier in the same petition the

Court had directed the respondent no.1-State to furnish proper seniority list

and accordingly compliance was made by the Dean of the Govt. Medical

College and Hospital, Aurangabad and then the Court by order dated

05.08.1996 had observed that the said seniority list produced before the Court

is approved by the advocates from both the sides. In view of the fact that the

grievance as regards the seniority list was concerned did not remain in dispute

and thereafter the subsequent developments were taken into consideration

with directions that all the applicants before the Industrial Court have been

absorbed in the regular service / employment nothing remains to be

(3) 19 wp 2162.19

adjudicated and accordingly the said writ petitions came to be disposed of.

It will not be out of place to mention here that the present petitioner had tried

to file an intervention application to the said writ petition, however, it came to

be disposed of for non removal of the office objections and then the

registration itself was refused. In the same writ petition, it was then observed

that the other intervenors should approach the respondent-Govt. Medical

College and Hospital, Aurangabad and satisfy the authority to include their

name in the seniority list and thereafter if it is found that they are in the

seniority list and then they be absorbed but that order was in respect of the

other intervenors and not the present petitioner. Learned advocate for the

present petitioner submits that the petitioner could not arrange for the

money / fees to be given to the lawyer due to which he could not persuade his

rights. We cannot go into the past and observe anything in respect of the

registration that came to be refused on 13.04.1998. Even after the decision

by Single Bench of this Court on 13.08.2010, it appears that the petitioner had

not approached the Dean, Govt. Medical College and Hospital, Aurangabad

immediately. His first application appears to be of 09.06.2016 and the second

was on 02.01.2017. In the affidavit in reply filed by Dr. Venukumar Rangu,

Assistant Professor, Govt. Medical College and Hospital, Aurangabad he has

raised the objection that the petitioner had not approached the Industrial

Court nor even persuaded his intervention application and then there is long

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gap of about 30 years. Therefore, the petitioner cannot take disadvantage of

his 29 days appointment on temporary basis to have regularisation or even to

be included in the seniority list. Reliance has also been placed on the

Government resolution dated 25.08.2005 which was in respect of the non

regularisation of the temporary posts in view of the Apex Court's decision.

5. Additional affidavit / rejoinder has been filed by the petitioner

stating that the intervention application filed by him was rejected on technical

grounds, his appointment order was temporary and he is not seeking relief for

regularisation but only submitting that the temporary appointment of 29 days

on leave vacancy or any other such type of temporary appointment should be

continued. Accordingly, it appears that even orally the learned advocate

appearing for the petitioner has modified the prayer in his submissions.

6. It can be seen that the petition suffers from delay and laches. The

appointment of the petitioner was only for a period of 29 days starting from

03.06.1985. He never approached the Industrial Court and after the refusal

of registration of his intervention application in 1998 even till 13.08.2010

there was no attempt made by him to get his application restored and then

again approach this Court or to join the petitioners therein. Even after the

said order was passed in respect of another intervenor on 13.08.2010, yet

taking a similar approach also the petitioner had not made any application till

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09.06.2016 to the Dean. When at each and every stage the petitioner has

caused delay then his action cannot be justified only on the ground that he is

a poor illiterate person. Definitely he could have approached the Legal

Services Authority of this Court to have redressal of his grievances and could

have sought legal aid. A person cannot seek employment as of right. There is

a procedure prescribed for appointment in Government service and therefore

there cannot be a short cut to the same. As regards the modified relief is

concerned also when there are procedures those have been prescribed, no

directions can be given that the petitioner be considered even for temporary

appointment.

7. As the petition suffers from delay and laches, it deserves to be

dismissed. So also as regards the prayer clause-B is concerned it has been

submitted by learned AGP that the seniority list was prepared in the year 1996

itself which cannot be now disturbed. No relief can be so granted. The

petition therefore stands dismissed. Rule discharged.

[Y.G. KHOBRAGADE, J.]                              [SMT. VIBHA KANKANWADI, J.]




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