Bombay High Court
Dilip Jagannath Ambilwade vs Govt. Of Maharashtra Through The ... on 30 July, 2025
Author: M. S. Karnik
Bench: M. S. Karnik, N. R. Borkar
2025:BHC-AS:32182-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9627 OF 2018
Shri Dilip Jagannath Ambilwade
Age : 57 Yrs, Occupation : Service
Designation : Chief Administrative Officer
R/o Flat No.1, Gayatri Darshan
Co-op. Housing Society
Datey Nagar, Gangapur Road,
Nashik - 422 013. ..Petitioner
vs.
1. Government of Maharashtra
Through The Principle Secretary,
Public Health Department,
G.T. Hospital Compound,
Mantralaya, Mumbai
2. Commissioner of Health Services
Arogya Bhavan, St. George
Hospital-Compound, Mumbai. ..Respondents
WITH
CIVIL APPLICATION NO.2605 OF 2018
IN
WRIT PETITION NO.9627 OF 2018
Dilip Jagannath Ambilwade
Age : 58 Yrs, Occupation : Retired
R/o Flat No.1, Gayatri Darshan
Co-op. Housing Society
Datey Nagar, Gangapur Road,
Nashik - 422 013. ..Applicant
vs.
1. Government of Maharashtra
Through The Principle Secretary,
Public Health Department,
G.T. Hospital Compound,
Mantralaya, Mumbai
PMB 1
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2. Commissioner of Health Services
Arogya Bhavan, St. George Hospital
Compound, Mumbai-400001. ..Respondents
------------
Adv. Vinod Tayade, for the Petitioner.
Mr. N. C. Walimbe, Addl.G.P. a/w Mr. S. P. Kamble, AGP, for
the Respondents-State.
------------
CORAM : M. S. KARNIK &
N. R. BORKAR, JJ.
DATE : 30th JULY, 2025
JUDGMENT (PER M. S. KARNIK, J.) :
1. The challenge in this Petition under Article 226 of
the Constitution of India is to the order dated 5 th August
2016 passed by the Maharashtra Administrative Tribunal
Bench at Mumbai ("the Tribunal", for short) in Original
Application No.972 of 2015. The Petitioner also challenges
the order dated 12th December 2014 in Miscellaneous
Application No.125 of 2013 in Original Application No.545 of
2010 passed by the Maharashtra Administrative Tribunal,
Bench at Aurangabad. The Petitioner further prays for a
direction to the Respondents to condone the break in
service from 13th October 2000 to 27th March 2005, for
grant of deemed increments for this broken period and for
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other consequential reliefs. The Petitioner next prays for
multiple reliefs in the nature of time scale promotion/benefit
of revised assured progressive scheme of the post of Joint
Director (Budget & Administration) on completion of 12
years of service, quashing of the order dated 31 st July 2017
issued by the Director, Health Services, Mumbai for
recovery of over payment of pay and allowances paid to the
Petitioner.
2. The facts of the case in brief are as under :-
The Petitioner is an Ex-serviceman who worked with
the Indian Air Force till 28th February 1992. The Petitioner
was appointed as Assistant Registrar, Group-A in the
Yashwantrao Chavan Maharashtra Open University, Nashik
on 2nd March 1992 where he worked till 12th October 2000
on government sanctioned permanent post. He was paid
from the consolidated funds of the State and his service was
pensionable. The Petitioner contends that he fulfills all the
conditions stipulated in Rule 33 of the Maharashtra Civil
Services (Pension) Rules, 1982 ("Pension Rules", for short)
for counting his past service into new service for pension.
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3. In 1998 an advertisement was issued for the post
of Chief Administrative Officer, Group-A, Class-I in Public
Health Department by Maharashtra Public Service
Commission ("MPSC", for short). The Petitioner being
eligible applied. In February 1999, the Petitioner was
informed by MPSC that he was selected for the said post
under OBC category and for further formalities was asked to
contact Public Health Department. In March 1999, Public
Health Department carried out pre-appointment formalities
such as medical examination, caste verification, verification
of experience, character verification and also sought NOC
from the University which was duly signed by Vice
Chancellor himself and sent to the Public Health
Department.
4. Despite completing the aforesaid formalities, the
Petitioner was neither given appointment order nor he was
informed regarding keeping of his appointment order in
abeyance till 23rd March 2005.
5. In the month of October 2000, departmental
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enquiry was initiated by the University against the Petitioner
and this resulted in termination of his services by the
University. The Petitioner challenged his termination in this
Court by filing writ petition No.6768 of 2000. In the
meantime, the Petitioner filed Civil Application No.843 of
2002 in this Court and requested to direct the Public Health
Department to issue his appointment order.
6. It is the contention of learned counsel for the
Petitioner that he was deprived of the appointment till 23 rd
March 2005. He was not even informed anything regarding
the delay in issuing the appointment order. The Petitioner
made several representations from April 1999 till March
2005 which were never replied. Learned counsel submitted
that two candidates namely Mr. Manikrao Shelke and Mr.
Satish Bagal who were selected along with the Petitioner
were given appointment orders in May 1999 itself.
7. Writ Petition No.6768 of 2000 was finally heard on
24th September 2004. This Court set aside the order of
termination of the Petitioner. The Petitioner's request to
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resign from the University was accepted to enable him join
another government job. The Petitioner was considered as
having resigned from the University with effect from 12 th
October 2000 i.e. the date of his termination.
8. In terms of the orders passed by this Court, the
Petitioner resigned from the University under Rule 46(2) of
the Pension Rules. An entry to this effect is made in the
service book of the Petitioner. It is therefore the contention
of learned counsel for the Petitioner that his past service is
liable to be counted for all purposes into the new service as
per Rule 48(1) of the Pension Rules.
9. It is submitted by learned counsel that the
Petitioner's University service, as well as Public Health
Department's service, both being State Government
permanent employments in the same pay scale are paid
from the consolidated funds of the State and also
pensionable. It is submitted that the fault for the break
between two services of the Petitioner from 13 th October
2000 to 27th March 2005 entirely lies with the Public Health
Department and hence this break is liable to be condoned
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under Rule 48 of the Pension Rules. It is submitted that the
Respondents ought to have condoned the break in service
and issued office order accordingly, but they deliberately did
not do so. It is submitted that the Directorate of Health
also made several communications to issue orders of break
in service of the Petitioner, but the Public Health
Department did not do so.
10. Learned counsel for the Petitioner then gave an
instance of one Mr. Dnyaneswar Igave who was working in
Yashwantrao Chavan Maharashtra Open University and later
joined the Information and Public Relations Department of
the State Government. According to learned counsel, the
said Mr. Igave was granted the benefits of counting his
former service into new service for the purpose of pension
which was not done in the case of the Petitioner. This action
of the Respondents according to learned counsel is
completely unjustified and discriminatory in nature. It is
submitted that as the Petitioner's past service was a
government pensionable service and in the same pay scale,
the then Director of Health requested the University to send
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the Petitioner's original service book and last pay certificate.
The Petitioner's last basic pay drawn was protected by the
Public Health Department. The very same original service
book was continued till the superannuation of the Petitioner.
11. It is further pointed out by learned counsel for the
Petitioner that the Petitioner's date of joining the University
service i.e. 2nd March 1992 was also considered as first date
of joining the government service and it also reflects in the
Sevaarth record maintained by the Public Health
Department. The Petitioner's last basic pay drawn in the
University as on 12th October 2000 was protected and
subsequent annual increments were also paid to the
Petitioner from 2005 to 2017. Besides this, the Petitioner's
pay was also fixed as per the 6th Pay Commission and his
pay and allowances due and drawn were also got duly
verified from the Pay Verification Unit of the Auditor
General. Certificate of its correctness was also stamped in
the service book of the Petitioner. It is then submitted by
learned counsel for the Petitioner that in 2017, when he
refused to work hand in glove with the then Director Dr.
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Satish Pawar, that he issued confidential office order under
his own signature dated 31st July 2017, and directed the
office head of the Petitioner to make reduction in basic pay
of the Petitioner and also make recovery from pay and
allowances of Rs.13 lakhs and also withdraw the increment
granted on 1st July 2017. A proposal of suspension of the
Petitioner to the Additional Chief Secretary, Public Health
Department was sent and the Petitioner was suspended
without any enquiry or without application of mind.
12. Learned counsel for the Petitioner submitted that
the vindictive action of the Respondents can be inferred
from the following circumstances. It is submitted that the
Petitioner challenged his illegal suspension in the Tribunal
which suspension was revoked on completion of 90 days
period with effect from 10th January 2018. The Respondents
then passed an order of compulsory retirement of the
Petitioner as a result of another departmental enquiry that
took place in the year 2015. The Tribunal stayed the order
of compulsory retirement. The Petitioner was due to retire
on 31st October 2018 on superannuation but without
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reinstating him in service, the Petitioner was forced to retire
by humiliating him. The next point urged in this regard is
that though he was issued with the charge sheet on 21 st
February 2018, but the actual departmental enquiry
commenced on 4th February 2021 and concluded on 6th
August 2021. It is submitted that though the Enquiry Officer
fully exonerated the Petitioner of all the charges, no
decision was taken by the Respondents on the said
departmental enquiry. The retirement benefits of the
Petitioner were withheld. It is therefore prayed that the
Respondents be directed to condone the break in service of
the Petitioner from 13th October 2000 to 27th February 2005
and he may be given deemed increments for this period and
his pay may be fixed accordingly.
13. Learned AGP for the Respondents on the other hand
invited our attention to the findings recorded by the Tribunal
in the impugned order and also the various orders passed
by this Court as well as the Tribunal in multiple proceedings
filed by the Petitioner. It is submitted that the Petition is
completely misconceived and lacks merit.
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14. Heard learned counsel. Relevant to a decision in
the present case only the following facts need to be noticed
at the cost of repetition. The Petitioner was working with
the University from 2nd March 1992 to 12th October 2000. In
February 1999, the Petitioner was informed by MPSC that
he was selected for the post of Chief Administrative Officer,
Group-A. In March 1999, NOC for appointing the Petitioner
duly signed by the Vice Chancellor was sent to the Public
Health Department. In October 2000, departmental enquiry
was initiated by the University against the Petitioner and
this resulted in his termination which was challenged by the
Petitioner by way of filing a Writ Petition No.6768 of 2000 in
this Court. The Petitioner filed Civil Application No.843 of
2002 in this Court for a direction to the Public Health
Department to issue his appointment order. In Civil
Application No.843 of 2002 in Writ Petition No.6768 of 2000
this Court on 30th April 2004 passed the following order :-
"The reliefs as prayed for cannot be granted
in view of say of respondent state if they are so
advised, petitioners may be appointed provisionally.
With above order, application stands disposed of."
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15. It is pertinent to note that the Petitioner was not
appointed pursuant to the orders passed in the Civil
Application. This Court decided the Writ Petition No.6768 of
2000 on merits by the judgment and order dated 24 th
September 2004. Some of the observations therein are
relevant. On 3rd January 1995, a charge sheet was issued to
the Petitioner. On 7th January 1995, the services of the
Petitioner came to be terminated by the University pursuant
to the enquiry proceedings. By an interim order dated 7 th
September 1995 in Writ Petition No.3279 of 1995, this
Court stayed the order of termination and directed the
Petitioner be continued in service pending the disposal of
the Petition. Consequently, the Petitioner was taken back in
job but was transferred to the Registration Section. On 11th
December 1997, a police complaint was filed against the
Petitioner as one of the accused involved in a racket of
granting admission by accepting money. On the same day,
the Petitioner was arrested and search was carried out at
his house. The Petitioner was suspended on 15 th December
1997. On 21st January 1998, a charge sheet was issued to
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the Petitioner. The departmental enquiry resulted in the
charges being proved against the Petitioner and on 12 th
October 2000 the services of the Petitioner were
terminated. The Petitioner therefore filed Writ Petition
No.6768 of 2000. This Court determined the question
whether the enquiry proceedings initiated and continued by
the authorities i.e. the University is so illegal and bad in law
that it calls for an interference by this Court in its writ
jurisdiction under Article 226 of the Constitution of India.
This Court did not find any merit in the contention of the
Petitioner that there is breach of principles of natural justice
in the enquiry proceedings and accordingly rejected the
contention. So far as the perversity in the findings of the
Enquiry Officer is concerned, this Court considered the main
evidence of Principal A. K. Kukade who had been a party the
malpractice in getting students admitted to B.Ed.
Programme of the University through the Petitioner. The
Petitioner had contended that his termination of service,
mainly on the basis of evidence of A. K. Kukade, is not just
and proper and the order of punishment should be quashed
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and set aside. The University contended that the Petitioner
should not be put back in service at all because the
Management lost confidence in the Petitioner and therefore,
it has not desirable for this Court to interfere with the
punishment of termination and put him back in service with
the Respondent Management. This Court agreed with the
contention of the University as regards loss of confidence in
the Petitioner in the light of the past history of the dispute
between the parties and therefore, this Court felt is not
desirable to place back the Petitioner in service.
16. At this juncture, it is now relevant to reproduce the
observations of this Court in the order dated 24th September
2004 in Writ Petition No.6768 of 2000 which are significant.
The same read thus :-
"We agree with the contention of the respondent
university that they having lost confidence in the
petitioner in light of the past history of the dispute
between the parties, and, therefore, it is not
desirable to place back the petitioner in service. At
this stage, the Petitioner appearing in person has
made a request that if the Respondent no.1 has lost
confidence in him and is not willing to place the
Petitioner back in employment then in place of order
of termination, the Petitioner should be permitted to
tender his resignation. He has also made a
statement that he withdraws all charges levelled
against the Vice Chancellor with immediate effect.
He has also given an undertaking to this Court that
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he shall not make any monetary claim as against
respondent no.1. He has however, pleaded that in so
far as his provident fund is concerned the same
should be released. We are of the opinion that in the
circumstances of the present case, it would be
desirable that the order of termination dated
12.10.2000 issued by Respondent should be set
aside and in place of that Petitioner should be
treated as resigned from the services with effect
from the said date of 12.10.2000. We accept the
undertaking given by the Petitioner not to make any
monetary claim and also accept the statement that
he withdraws all charges against the Vice Chancellor
and other officers. In the aforesaid circumstances,
we direct Respondent no.1 to pay the Petitioner his
provident fund dues including the employer's
contribution. However, the Petitioner will not be
entitled to claim any other amount of any nature
whatsoever either towards his retirement dues or
any other claim."
17. It is only pursuant to the order passed by this Court
the Petitioner was issued his appointment by the State
Government to the post of Chief Administrative Officer on
23rd March 2005. The Petitioner joined as Chief
Administrative Officer, General State Services, Group-A,
Class-I at Civil Hospital, Nashik on 27th March 2005. From
2007 onwards the Petitioner made several representations
for condonation of break in service.
18. The Petitioner filed OA No.545 of 2010 before the
Maharashtra Administrative Tribunal, Bench at Aurangabad
for seniority and counting of his service for the purpose of
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pension. OA No.545 of 2010 was rejected by the Tribunal on
12th December 2014 on the ground that the Petitioner had
resigned from his last service observing that as regards
counting of his former service nothing is mentioned in the
order of this Court in Writ Petition No.6768 of 2000. It is
pertinent to note that in OA No.545 of 2010 filed before the
Tribunal, Bench at Aurangabad, the Petitioner had
specifically prayed for a relief directing the Respondents to
count previous service rendered by him with the University
for the purpose of pension and all other service benefits.
Not only this but it will be material to reproduce other
reliefs prayed by the Petitioner in the OA No.545 of 2010
which read thus :-
"A)This Original Application may kindly be allowed
thereby quashing & setting aside the impugned
Communication dtd 11/11/2009 (Annex. L) issued by
Resp. No.1.
B) This Original Application may kindly be allowed
thereby holding & declaring that the condition No.2(f)
incorporated by Resp. No.1 in applicant's appointment
order as Chief Administrative Officer dtd 23/03/2005
(Annex. I) was void ab-initio and illegal per-se and
hence inoperative as against him.
C) This Original Application may kindly be allowed
thereby directing the Respondents to count applicant's
seniority in the cadre of Chief Administrative Officers on
the basis of the inter-se seniority of all selectees (viz.
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Shri. Shelke, Shri Bagal and the applicant himself)
selected in same batch of 1999 according to their
respective ranks/merit position in the order of
preference arranged by the MPSC.
D) This Original Application may kindly be allowed
thereby directing the Respondents to count, to take into
consideration the previous service rendered by
applicant under "Yashwantrao Chavan Maharashtra
Open University, Nashik" for the purposes of pension
and all other service benefits.
E) This Original Application may kindly be allowed
thereby directing the Respondents to extend to the
applicant all the consequential benefits to which he
would become entitled in view of the grant of Prayer
Clauses "A" to "E" in his favour."
19. The following observations of the Tribunal, Bench at
Aurangabad are relevant and need to be reproduced which
read thus :-
"7. It is material to note that in the appointment
order dated 23.03.2005 (Annexure-I) at page nos.37
to 39 it has been specifically mentioned in condition
No.(F) para 2 that though the applicant was at the Sr.
No.5, his seniority will be counted from the date of his
joining. Though it is brought on the record that the
applicant objected for said condition vide his
representation, the same was not accepted by the
respondent. We have perused the judgment and order
passed by the Hon'ble High Court in W. P. No.6768 of
2000. It is material to note that the Departmental
Enquiry was pending against the applicant and he was
recommended for the post of Chief Administrative
Officer (C.A.O.) by the University, the applicant
however, claimed bias against the University. The
Hon'ble High Court observed :-
"We therefore do not find any substance
in the argument advanced by the
petitioner in respect of the said
allegation bias as against the enquiry
officer."
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8. The Hon'ble High Court agreed to the stand
taken by the respondent University that they have lost
confidence in the petitioner in the light of the past
history of the dispute, and, therefore, it was not
desirable to place back the petitioner in service. From
the observations of the order it is clear that there was
no other way left for the University but to terminate
applicant's service. However, liberty was given to the
petitioner to submit undertaking in the form of
resignation and the said relevant observations are as
under :-
"At this stage, the petitioner appearing
in person has made a request that if
the Respondent no.1 has lost
confidence in him and is not willing to
place the petitioner back in
employment then in place of order of
termination, the Petitioner should be
permitted to tender his resignation. He
has also made a statement that he
withdraws all charges levelled against
the Vice Chancellor with immediate
effect. He has also given an
undertaking to this Court that he shall
not make any monetary claim as
against respondent no.1. He has
however, pleaded that in so far as his
provident fund is concerned the same
should be released. We are of the
opinion that in the circumstances of the
present case, it would be desirable that
the order of termination dated
12.10.2000 issued by Respondent
should be set aside and in place of that
Petitioner should be treated as resigned
from the services with effect from the
said date of 12.10.2000. We accept the
undertaking given by the Petitioner not
to make any monetary claim and also
accept the statement that he withdraws
all charges against the Vice Chancellor
and other officers."
9. We have also noted directions given by the
Hon'ble High Court while disposing W.P. No.6768/2000
which as under :-
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"In the aforesaid circumstances, we
direct Respondent no.1 to pay the
petitioner his provident fund dues
including the employer's contribution.
However, the petitioner will not be
entitled to claim any other amount of
any nature whatsoever either towards
his retirement dues or any other claim.
We dispose of the present petition
accordingly. However, there shall be no
order as to costs."
10. The plain reding of aforesaid directions will make
crystal clear that the Hon'ble High Court had shown
mercy on the petitioner and instead of upholding order
of termination his undertaking was treated as
resignation with effect from 12.10.2000. It was made
clear that the petitioner will not be entitled to claim
any other amount of any nature whatsoever either
towards his retirement dues or any other claim except
Provident Fund dues.
11. We are of the considered opinion that the
applicant is trying to get the benefits which are in
unequivocal terms denied by the Hon'ble High Court.
We are also satisfied that the Government was
justified in waiting for the decision by the Hon'ble High
Court in W.P. No.6768/2000 before issuing
appointment order in favour of the applicant. Since the
petitioner resigned the earlier service of University the
same service cannot be counted for any other purpose
including seniority, pensionary benefits or any other
monitory benefits as claim by the applicant.
12. This Original applicant has been filed on
29.06.2010 The appointment order which the
application has received in his favour is of 23.05.2005
and the applicant is asking for setting aside condition
no.2(F) of the said order. It is contended on behalf of
the applicant that he made number of representations
from May 2005 in November 2009 and ultimately his
request was rejected by respondent no.1 on
11.11.2009 and therefore there was in fact no delay
and even if it is treated as delay the same be
condoned in the interest of justice.
13 . We are of the opinion that mare filing of
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representation is not sufficient and as per Section 19
of Maharashtra Administrative Tribunal Act, 1985 the
application should have waited for the period for 6
months for the decision on his representation and
thereafter should have filed application within one
year. However, it has come on record that he was
communicated by the letter dated 11.11.2009 that his
request was rejected and therefore in the interest of
justice the delay caused in filing original application is
required to condoned and accordingly it is condoned.
In view of the discussions in forgoing paras, we
therefore, pass following order :-
ORDER
The M.A. stands allowed and O.A
stands dismiss with no order as to
costs."
20. Thus, in the Original Application No.545 of 2010 a
specific finding has been recorded that since the Petitioner
resigned the earlier service of University, the same service
cannot be counted for any other purpose including seniority,
pensionary benefits or any other monetary benefits as
claimed by the Applicant. This order of the Tribunal, Bench
at Aurangabad is not challenged and had thus attained
finality.
21. It is interesting to note that the Petitioner then filed
OA No.972 of 2015 before the Tribunal, Bench at Mumbai
seeking condonation of break in service between the service
as Assistant Registrar in the University and his appointment
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as Chief Administrative Officer with the State Government.
Thus, the very same relief which was the subject matter of
OA No.545 of 2010 before the Aurangabad Bench, covered
in different words, was prayed for before the Mumbai Bench
of the Tribunal in OA No.972 of 2015 covered in a different
manner. The Tribunal, Bench at Mumbai in the order
impugned in this petition observed that the Petitioner had
suppressed information about the earlier OA No.545 of
2010. The Tribunal on merits as well as applying the
principle of res-judicata and as the Applicant had not
disclosed full information dismissed the OA. The Tribunal
observed that the Applicant tried to mislead and deceive the
Tribunal and hence a cost of Rs.5,000/- is imposed on the
Applicant for abusing the process of law.
22. We have no hesitation in agreeing with the findings
of the Tribunal that the Petitioner firstly ought to have
disclosed the order of the Tribunal at the Aurangabad Bench
in the subsequent OA that was filed before the Mumbai
Bench. Secondly, for the very same relief which was the
subject matter of the OA before the Aurangabad Bench the
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subsequent Original Application before the Mumbai Bench
was not tenable. The Aurangabad Bench had on merits held
that since the Petitioner resigned from the earlier service of
the University the same service cannot be counted for any
other purpose including seniority, pensionary benefits or
any other monitory benefits as claimed by the Applicant.
The State Government appointed the Petitioner only after
the Writ Petition No.6768 of 2000 was disposed of by this
Court.
23. Moving back a little, so far as the order dated 30 th
April 2004 in the Civil Application No.843 of 2002 is
concerned, the State Government did not proceed to
provisionally appoint the Petitioner, as this Court had left it
to the discretion of the State Government whether to make
the provisional appointment or not. In our view the
approach of State Government cannot be faulted. The
State Government had good justification in issuing the order
of appointment after the Writ Petition No.6768 of 2000 was
decided by this Court. The appointment of the Petitioner in
the year 2005 by the State Government will have to be
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regarded as a fresh appointment in the facts and
circumstances of the present case. Once the Tribunal, Bench
at Aurangabad held that the Petitioner is not entitled to the
benefit of the services rendered with the University for
counting for any purpose, mere filing of a fresh OA before
the Mumbai Bench of the Tribunal seeking the same relief of
condonation of break in service between the service as
Assistant Registrar in the University and as a Chief
Administrative Officer with the State Government cannot be
said to give rise to a fresh cause of action to the petition.
The appointment order as a Chief Administrative Officer will
have to be regarded as a fresh appointment.
24. In this context let us consider Rule 46 of the
Pension Rules which deals with forfeiture of service on
resignation. Sub-rule (1) and (2) of Rule 46 of the Pension
Rules are relevant which read thus :-
"46. Forfeiture of service on resignation.
(1) Resignation from a service or a post entails
forfeiture of past service.
(2) A resignation shall not entail forfeiture of past
service if it has been submitted to take up, with proper
permission, another appointment, whether temporary
or permanent under the Government where service
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qualifies."
25. Sub-rule (1) of Rule 46 of the Pension Rules thus
contemplates that resignation from a service or a post
entails forfeiture of past service. However, sub-rule (2) of
Rule 46 of the Pension Rules says that a resignation shall
not entail forfeiture of past service if it has been submitted
to take up, with proper permission, another appointment,
whether temporary or permanent under the Government
where service qualifies. Sub-rule (2) is an exception carved
out to sub-rule (1), for otherwise the resignation from a
service or a post entails forfeiture of past service. The
Petitioner's services were terminated by the University after
holding the charges against the Petitioner as proved. The
charges were serious. This Court found the enquiry to be
fair and proper and did not interfere with the findings of the
Enquiry Officer proving the charges. On the aspect of
punishment however, a lenient view was taken so as not to
destroy the career of the Petitioner and hence the Petitioner
was permitted to resign from the services. The Petitioner
was held not entitled to any pay and allowances during this
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period.
26. The Petitioner resigned from the services of the
University as a consequence of the order passed by this
Court in Writ Petition No.6768 of 2000. Taking a
sympathetic view this Court was of the opinion that it would
be desirable that the order of termination dated 12 th
October 2000 issued by the University should be set aside
and in place of that the Petitioner should be treated as
resigned from the services with effect from the said date of
12th October 2000. The undertaking of the Petitioner was
recorded that he will not make any monetary claim and also
accepted the statement that the Petitioner withdraws all
charges against the Vice Chancellor and other officers. This
Court further observed that the Petitioner would be entitled
to his provident fund dues including employer's contribution
however, the Petitioner will not be entitled to claim any
other amount of any nature whatsoever either towards his
retirement dues or any other claim.
27. The State Government though had selected the
Petitioner, did not actually appoint the Petitioner till the
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conclusion of the proceedings before this Court. It is well
settled that merely because the Petitioner is selected does
not confer an indefeasible right on the candidate to seek
appointment. The State Government had justifiable reasons
for not issuing the order of appointment though the
Petitioner was selected. This distinguishes the case of the
Petitioner from those who were appointed in the year 2000
itself as they did not have any pending disciplinary
proceedings nor an order of such a nature as passed by this
Court was existing in their case. Even the claim of the
Petitioner that he ranked senior to other appointees
selected in the same batch of 1999 was rejected by the
Tribunal in OA No.545 of 2010. Thus, the Petitioner's case in
our considered opinion will not fall within the ambit of sub-
rule (2) of Rule 46 of the Pension Rules as mere grant of
NOC by the University in the present facts cannot be said to
be a proper permission within the meaning of sub-rule (2)
to claim the benefit of counting the services rendered with
the University. Mercy or sympathy shown by this Court in
allowing the Petitioner to resign cannot be read dehors the
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circumstances under which such a resignation is accepted to
claim the benefit of sub-rule (2) of Rule 46 of the Pension
Rules.
28. It is further pertinent to mention that so far as the
other reliefs prayed for in this Petition are concerned, the
same are completely misconceived. Having held that the
Petitioner is not entitled to condonation of break in service,
the relief in terms of prayer clause (b) of this Petition
cannot be granted. Paragraph 5 of the impugned order
dated 5th August 2016 of the Tribunal reproduces the reliefs
prayed for in the Original Application. The relief in terms of
prayer clause (d) in this Writ Petition is not a relief prayed
for in the Original Application. It is therefore not possible for
us to entertain the Petitioner's request for granting relief in
terms of prayer clause (d) as it is for the Petitioner to
approach the Tribunal for seeking relief in terms of prayer
clause (d) in the first instance.
29. The only aspect we are persuaded is as regards the
observations made by this Court in paragraph 20 of the
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order dated 24th September 2004 in Writ Petition No.6768 of
2000 where this Court recorded its appreciation about the
manner in which the Petitioner in person has conducted
himself and has succinctly placed his argument for Their
Lordships consideration. This Court expressed its
appreciation for the same. The Petitioner filed the Original
Application No.972 of 2015 in person. Though the Petitioner
failed to mention about the decision of the Aurangabad
Bench of the Tribunal in Original Application No.545 of
2010, we are persuaded to take a view that this may have
happened because the Petitioner was appearing in person
and we are inclined to give the benefit to the Petitioner that
the same was not intentional. It is for this reason that we
are inclined to quash and set aside the observations of the
Tribunal in paragraph 8 of the impugned order dated 5 th
August 2016 to the effect "He has tried to mislead and
deceive this Tribunal. On that count also, this Original
Application is liable to be dismissed. A cost of Rs.5,000/- is
imposed on the Applicant for abusing the process of law."
This part of the order of the Tribunal is quashed and set
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aside. The rest of the order of the Tribunal is sustained. The
cost of Rs.5,000/- if deposited be refunded to the Petitioner.
30. We therefore do not find any reason to interfere
with the order of the Tribunal except to the limited extent
indicated above.
31. Consequently, the Writ Petition fails and is
dismissed with no order as to costs.
32. Civil Application No.2605 of 2018 is disposed of
accordingly.
(N. R. BORKAR, J.) (M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 30/07/2025 18:31:01
