Bombay High Court
Shirish Suresh Thatte vs The State Of Maharashtra And Others on 26 November, 2014
Author: V.K. Jadhav
Bench: S. V. Gangapurwala, V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4578 OF 2013
Shirish Suresh Thatte,
Age 40 years, Occ. Service,
R/o. Plot No.126, Ramkrushna Nagar,
Basmat Road, Parbhani ...Petitioner
versus
1.
The State of Maharashtra
Through the Secretary,
Home Department,
Mantralaya, Mumbai 400 032
2. The Director of Prosecution,
Barracks No.6, Free Press Marg,
Near Manora MLA Hostel,
Nariman Point, Mumbai 400 021
3. The Assistant Director and
Public Prosecutor
C/o. Advocate Shri P.K. Shirsath,
Nehru Nagar, Risala Naka,
Hingoli,
4. The Principal District and
Sessions Judge, Parbhani
5. The High Court of Bombay,
Through the Registrar General,
High Court Building,
Fort, Mumbai ...Respondents
.....
Mr. Ajay S. Deshpande, advocate for the petitioner
Mr. K.G. Patil, A.G.P. for respondents 1 to 3
Mr. R.J. Godbole, advocate for respondent Nos. 4 and 5
.....
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CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
Date of Reserving
the Judgment : 12.11.2014
Date of pronouncing
the Judgment : 26.11.2014
JUDGMENT (PER V.K. JADHAV, J.) :-
1. Rule. Rule made returnable forthwith. By consent, heard finally at admission stage.
2. In May 2005, the petitioner came to be appointed as a junior clerk on the establishment of respondent No.4 - the District and Sessions Court, Parbhani, after undergoing the due selection process consisting of written test and oral interview both. Since then the petitioner continued to work substantially on the establishment of respondent No.4.
3. According to the petitioner, while he was working on the establishment of respondent No.4 as a junior clerk, respondent No.3
- The Assistant Director of Public Prosecutor, published an advertisement for filling up various posts. One of the post advertised was of Stenographer (Lower Grade) English, which was shown unreserved. However, in the advertisement, the preference has been stated to be given to the candidate from the category of Ex-
::: Downloaded on - 27/11/2014 23:47:43 :::wp4578.13 -3- serviceman for the said post. The petitioner has submitted his application in response to the said advertisement for the post of Stenographer (L.G.), which was having substantially higher pay scale qua the post, which the petitioner was holding i.e. junior clerk. The petitioner had submitted his candidature through proper channel to respondent No.3 for being considered for appointment on the post of Stenographer (L.G.) English. Though the petitioner was selected and placed at Sr. No.1 in the order of merit for the post of Stenographer (L.G.) English, however, he was not offered appointment by respondent Nos. 2 and 3. Consequently, the petitioner had approached the Maharashtra Administrative Tribunal, Bench at Aurangabad for asserting his right to the said post. It was for the first time, respondent No.3 asserted before the Tribunal that the post in question is earmarked for Ex-serviceman although in the advertisement mere preference was stated. However, the Tribunal had directed respondent Nos. 2 and 3 to appoint the petitioner to the post of Stenographer (L.G.) English till the availability of Ex-
serviceman candidate. The respondent Nos. 2 and 3 assailed the said decision of the Tribunal before this Court, however, the said challenge was failed. Thereafter, respondent No.2 had issued an order of appointment dated 25.2.2011 thereby appointing the petitioner as a Stenographer (L.G.) English by highlighting a covenant in the order of appointment that as per the decision of the ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -4- Tribunal, the post since been reserved for Ex-serviceman category, the services would be continued till the availability of Ex-serviceman candidate and soon upon availability of ex-serviceman candidate, petitioner's services shall be brought to an end without notice. The respondent No.4 was thus to relieve the petitioner for joining pursuant to the said appointment vide communication dated 4.3.2011 and in furtherance thereof, respondent No.3 issued an office order on 5.3.2011 thereby allowing the petitioner to join the duty as Stenographer (L.G.) English. Accordingly, the petitioner had joined on 5.3.2011 itself on the establishment of respondent No.3 as Stenographer (L.G.).
It is further case of the petitioner that hardly after 9 months of his joining, he came to be removed from service by respondent No.2 vide order dated 1.12.2011. The petitioner had preferred departmental appeal to the Government and after great persuasions he came to be reinstated in service on 17.4.2013 by respondent No.3 vide office order dated 15.4.2013.
4. In the meantime, after joining the service of respondent Nos. 2 and 3 on 5.3.2011 the petitioner had submitted an application to respondent No.4 for keeping his lien on the post of junior clerk vide application dated 14.6.2011. Respondent No.4 vide communication dated 16.6.2011, declined the petitioner's request of keeping lien by ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -5- referring to Rule 20, 21 and 22 of the Maharashtra Civil Services (General Conditions of Service) Rules 1981 (hereinafter for the sake of brevity referred to as "the said Rules"). A representation submitted in that behalf to respondent No.5 by the petitioner also came to be rejected and the same was communicated to the petitioner on 30.7.2012.
5. According to the petitioner, respondent Nos. 2 and 3 by illegally selecting the candidate in place of the petitioner claimed to be from Ex-serviceman category, hatched a plot to oust the petitioner from employment. The petitioner thus felt it more appropriate to submit an application for relieving him to join the establishment of District Court, Parbhani as a junior clerk.
Accordingly, the petitioner had submitted an application on 22.4.2013 for relieving him to join on the post of junior clerk on the establishment of respondent No.4. Accordingly, respondent No.2 has issued an office order dated 3.5.2013 and a follow-up office order issued by respondent No.3 on 6.5.2013 thereby instantaneously relieving the petitioner on 6.5.2013 itself. Thus, though the petitioner had requested respondent Nos. 3 and 4, copy of the said relieving order is not marked to respondent No.4. The petitioner has submitted various representations to respondent No.1 requesting therein to forward copy of his relieving order to ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -6- respondent No.4.
6. It is further case of the petitioner that in the meantime, he has submitted representation to respondent No.4 on 6.5.2013, interalia, requesting to allow him to resume on the post of junior clerk on which he was working prior to joining the services under respondent No.2.
However, the petitioner has not received any communication.
According to the petitioner, he was holding the post of junior clerk on the establishment of respondent No.4 in substantive capacity and it was indeed a permanent post. The petitioner therefore, continued to hold the lien on the said post and no further compliance is required to be made on his part for acquiring the lien on the said permanent post to which he was regularly appointed.
7. The petitioner is therefore, constrained to file present writ petition seeking appropriate direction to respondent Nos. 2 to 4 to permit the petitioner to join him as junior clerk by declaring that the petitioner holds lien on the post of junior clerk. The petitioner has also prayed to quash and set aside the communication dated 18.6.2011 by respondent No.4 and the communication issued in the month of July, 2012.
8. By filing affidavit in reply, respondent Nos. 2 and 3 contend that as per order of Maharashtra Administrative Tribunal, the ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -7- petitioner's appointment was to be continued till the candidate from Ex-serviceman category is available for the post of Stenographer (L.G.). Accordingly, the candidate has been selected and the petitioner himself submitted an application for reliving himself.
Accordingly, the petitioner was relieved by respondent No.3 by relieving letter dated 6.5.2013. It was also communicated to respondent Nos. 2 and 3 by respondent No.4 that the application of the petitioner for keeping lien was rejected and his further representation against it also came to be rejected. Respondent Nos.
2 and 3 are not concerned in respect of the lien on the post of junior clerk on the establishment of respondent No.4.
9. By way of affidavit in reply filed on behalf of respondent Nos. 4 and 5, it has contended that the petitioner had made an application on 20.6.2011 to respondent No.5 for grant of lien against the post of junior clerk on the establishment of respondent No.4, however, it has been subsequently rejected vide administrative order dated 17.7.2012. It is specifically denied that the petitioner was holding the post of clerk on the establishment of respondent No.4 for the substantiative capacity and was working against a permanent post.
The petitioner was temporarily appointed on the establishment of respondent No.4. The petitioner has not passed Lower Standard Departmental examination during the tenure of his service as a junior ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -8- clerk on the establishment of respondent No.4. The petitioner is not permitted to keep lien on the post of junior clerk because the petitioner does not fulfill the condition as contemplated under Rules 20, 21 and 22 of the said Rules and the Government Resolution dated 19.9.1975. The petitioner is therefore, not entitled to resume duties as a junior clerk on the establishment of respondent No.4. In the light of above, it is contended the writ petition filed by the petitioner is devoid of any merit and the same is liable to be dismissed with costs.
10. Mr. Deshpande, learned counsel for the petitioner submits that it is a matter of record that the Government servants are continued in service for years together and at times are made to retire without conferring them permanency. However, it does not mean that their status continued to be as that of a temporary. The petitioner was holding the post of junior clerk on the establishment of respondent No.4 in substantive capacity and it was indeed permanent post. He was appointed against a permanent post by following due procedure prescribed for making regular appointment. The petitioner's appointment was preceded by an advertisement and the selection process, including the written test and interview. The petitioner therefore, continued to hold the lien on the post of junior clerk on the establishment of respondent No.4 and no further compliance is ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -9- required to be made on his part for acquiring lien on the said post.
The petitioner therefore, is eligible and entitled to have his lien on the post of junior clerk on the establishment of respondent No.4, especially in view of the scheme of law involved in Rule 22 of the said Rules r.w. definition clause under Rule 9(30) wherein the word "lien" has been defined. The learned counsel further submitted that the acquisition of lien is by an operation of law and incumbent concerned is not required to do anything to retain the lien on the post which he held. Learned counsel for the petitioner in order to substantiate his submissions, placed reliance on the judgments rendered by the Hon'ble Supreme Court in the case of Ramesh K. Sharma and another vs. Rajasthan Civil Services and others, reported in AIR 2001 SC 362 as well as in the case of Commissioner, Karnataka Housing Board vs. C. Muddaiah, reported in 2008 (1) Mh.L.J. 546.
11. Mr. Godbole, learned counsel for respondent Nos. 4 and 5 submits that it was made clear in the appointment order of the petitioner that his appointment as a junior clerk was on purely temporary basis and can be terminated at any time without issuing any notice and assigning any reason. Learned counsel submits that as per provisions of Rules 20 to 26 of the said Rules, the Government servant on substantive appointment on any permanent ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -10- post acquires a lien on the post and ceases to hold any lien previously acquired on any other post. Since the appointment of the petitioner was not in substantive and permanent post, he does not acquire lien on the post of junior clerk on the establishment of respondent No.4. Learned counsel further submits that the petitioner has not challenged the administrative order dated 17.7.2012 before the appropriate forum. Further more, the petitioner has not fulfilled required condition to extend the benefits of permanency. Learned counsel also submits that the petitioner has preferred an appeal on 20.6.2011 to the administrative side of this Court against the order passed by respondent No.4 on his request application dated 14.6.2011. However, the said appeal also came to be rejected by order dated 20.7.2012. The petitioner's request to allow him to join on the establishment of respondent No.4 cannot be accepted and thus the writ petition, being devoid of any merit, is liable to be dismissed with costs.
12. We have also heard the learned AGP for the respondent Nos.
1 to 3.
13. In view of the aforesaid contentions, it would be necessary to reproduce herein below the provisions of Rule 9(30) of the said Rules, which defines "lien", :-
::: Downloaded on - 27/11/2014 23:47:43 :::wp4578.13 -11- "9(30). 'Lien' means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively."
It would also be necessary to reproduce herein below the Rule 20 of the said Rules:-
"20.
Acquiring and ceasing of a lien. - Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.
14. The petitioner came to be appointed as a junior clerk on the basis of advertisement, due process of selection and in order of merit, on the establishment of respondent No.4- District Court, Parbhani. In order to appreciate whether the petitioner acquires lien on that post, the phrase "substantive appointment to any permanent post" appearing in Rule 20 of the said Rules, as aforesaid, require to be understood.
15. The word "permanent post" is defined by Rule 9(40) of the said Rules, which is reproduced herein below:-
::: Downloaded on - 27/11/2014 23:47:43 :::wp4578.13 -12- "9(40). 'Permanent post' means a post carrying a definite rate of pay sanctioned without limit of time."
16. So far as the definition "substantive appointment" is concerned, though the same is not directly defined in the said Rules, a reference has been given to the same in a note while defining the term "temporary post" in Rule 9(53) of the said Rules.
As per note to the above stated Rule 9(53), the substantive appointment can be made to a temporary post in a limited number of cases only and in all other cases, the appointments on temporary posts are required to be made in officiating capacity only. The Government servant officiates on a post when he performs duties of the post on which another person holds lien. It would also not be out of place to mention herein that the Government servant can also be appointed to officiate on a vacant post on which no other Government servant holds the lien.
17. We have carefully gone through the advertisement dated 18.8.2004 issued by the respondent No.4, wherein a definite rate of pay scale is mentioned for the post of junior clerk as Rs.3050-75- 3950-80-4590 plus other admissible allowances. It appears from the contents of the advertisement that the applications are invited for 50 posts of junior clerk, carrying definite rate of pay scale without limit of ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -13- time. The appointment order which is placed alongwith the writ petition at Exh. A, shows that the petitioner has been temporarily appointed on the post of junior clerk in the Court of C.J.S.D. Hingoli.
It is not mentioned in the appointment order that the petitioner is appointed to perform duties on the post on which any other person holds a lien. In other words, the petitioner's appointment is not shown to have been made in an officiating capacity only.
18. It is a well settled that "lien" is not word of Art. It just speaks about the right of Government servant to hold the post substantively to which he is appointed. So far as the temporary and permanent posts are concerned, the posts have great importance with regard to career of the Government servants. There can be no justification for keeping the post temporary for long period and denying the claim thereby to the incumbent employee on that basis. If the post is temporary in its real nature, the employee appointed on such post knows that his tenure cannot exceed beyond the period prescribed in his appointment and in that view of the matter, there cannot be any injustice in clothing him with no rights.
19. Mr. Deshpande, learned counsel for the petitioner has placed reliance on the judgment in the case of Ramesh K. Sharma (supra) The relevant portion of para 3 of the said judgment is reproduced as under:-
::: Downloaded on - 27/11/2014 23:47:43 :::wp4578.13 -14- "The only question, therefore, requires adjudication is whether these private respondents were in continuous substantive service with effect from 1.3.1974 or they would be held in continuous substantive service only after they were made permanent with effect from 27.2.1981. In the Service Jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-
gap basis then such an appointment cannot be held to be on substantive basis. The expression substantive basis is used in the Service Jurisprudence in contra-distinction with ad hoc or purely stop-
gap or fortuitous......"
20. In the case in hand, the petitioner was appointed as a junior clerk on the establishment of respondent No.4 on 24.5.2005 and he had worked on the said post till 5.3.2011 i.e. for near about 5 years and 10 months on regular pay scale with yearly increments and all other admissible allowances. The substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. It is not necessary that the appointment should be to a permanent post. It is sufficient, even if it is to a temporary post for a long duration. The employee is said to ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -15- hold the post in substantive capacity when he holds it without limit of time compare to the employee who holds it for a definite period. We are of the considered opinion that the petitioner held the post as a junior clerk on the establishment of respondent No.4 in substantiative capacity. The petitioner was appointed as a Stenographer (L.G.) English on the establishment of respondent Nos. 2 and 3 by appointment order dated 25.2.2011 with a specific clause that the petitioner is appointed temporarily and his service will be continued till the availability of candidate from ex-service man category and soon upon the availability of ex-service man candidate, the petitioner's services shall be brought to an end without notice. In view of aforesaid specific clause in the appointment order, the petitioner by his appointment as a Stenographer (L.G.) on the establishment of respondent Nos. 2 and 3, does not cease to hold his right of lien on his previous post.
21. In view of the above, the petitioner retains a lien on the post of Junior Clerk on the establishment of respondent No.4. Respondent No.4 District Judge, Parbhani has not at all considered the provisions of the said Rules, as discussed above and thus, has erroneously rejected the application of the petitioner requesting therein for keeping lien against the post of junior clerk.
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22. Mr. Godbole, the learned counsel for respondent No.4 submits that in view of the Government Resolution dated 19.9.1975, the Government servant requires to fulfill certain conditions for extending benefits of permanency. The petitioner has not passed the prescribed Departmental examination i.e. Lower Standard Departmental examination, therefore, he was not extended the benefits of permanency. The petitioner has not held the post of permanent Government servant and his appointment was not of substantive and permanent post and therefore, he does not acquire lien against the post of junior clerk on the establishment of respondent No.4.
23. We have carefully gone through the Resolution dated 19.9.1975. It appears that the question of extending benefit of permanency to a temporary Government servant arises for consideration and though the Government servant even after putting in several years of service and also receiving the pay, salary as per the permanent government service, large number of government servants have remained temporary and likely to be deprived of pensionary benefits. Thus, by the said Resolution, the Government has taken decision that the benefit of permanency in service should no longer be dependent on the availability of permanent posts. The Government is accordingly directed that subject to certain specified ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -17- conditions that every Government servant who has rendered continuous service of not less than three years, in a post or posts (excluding those on the converted Regular Temporary establishment) included in a cadre should be deemed to be a permanent Government servant for all the purposes, including admissibility of full pensionary benefits. Mr. Godbole, the learned counsel appearing for the respondent No.4 has specifically brought our attention towards condition No.2 wherein it is prescribed that the Government servant must have passed departmental examination or test, if any.
24. In the present case, the petitioner has completed his tenure of near about 5 years and 10 months before he was relieved for joining the post of Stenographer (L.G.) on the establishment of respondent Nos. 2 and 3. The petitioner's selection for the post of Junior clerk on the establishment of respondent No.4 is/was in conformity with the Recruitment Rules for Recruitment to ((Group C) and (Group D)) Services in the subordinate judicial service. By Government Resolution dated 19.9.1975, the Government has taken a decision to grant permanency benefits in service, as the larger number of Government servants are likely to be deprived of pensionary benefits.
25. So far as the substantive capacity to hold the post is ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -18- concerned, it refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. An employee is said to hold the post in substantive capacity when he holds it for indefinite period especially for a long period in contradiction to a person who holds it for definite or temporary period. We do not find that the said condition, as mentioned in the Government Resolution dated 19.9.1975 dis-entitles the petitioner in exercising his right of lien over the post on which he was appointed in substantive capacity after following recruitment Rules.
26. Shri Deshpande, learned counsel by placing reliance on the judgment of the Supreme Court in the case of Commissioner, Karnataka Housing Board (supra), tried to canvas before us that the petitioner is entitled for back wages if he is reinstated in service on recognizing his right of lien against the post of junior clerk on the establishment of respondent No.4. The learned counsel for the petitioner further submits that the Hon'ble Apex Court did not approve the wholesome application of Rule of 'no work no pay' and ruled that, "person willing to work but was illegally and unlawfully not allowed to do so, the Court may keeping in view the principle of justice, equity and good conscience in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked."
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27. Here in this case, the petitioner has not challenged the order of the Principal District Judge, Parbhani dated 18.6.2011 rejecting his application requesting therein for keeping lien against the post of junior clerk on the establishment of respondent No.4. Further more, the petitioner has also not taken any steps immediately when his representation was rejected by the High Court on its administrative side. There was no impediment for the petitioner to file petition immediately on rejection of his representation by the High Court on administrative side. The petitioner when finally lost all his hopes of continuation in service, as Stenographer (L.G.) on the establishment of respondent No. 2 and 3, has knocked the doors of this Court by filing this writ petition. The petitioner when found that the respondent Nos. 2 and 3 hatched a plot to douse him from employment by illegally selecting the candidate in place of the petitioner from Ex-
service man category, the petitioner himself submitted an application on 22.4.2013 for relieving him. Accordingly he was relieved by the respondent Nos. 2 and 3 by order dated 3.5.2013 and follow up order dated 6.5.2013. The petitioner has drawn salary up to 5.5.2013 from respondent Nos. 2 and 3. Thus, from 6.5.2013 to 10.6.2013 i.e. till filing of present writ petition the petitioner did not work on the establishment of respondent Nos. 2 to 4. In view of the same, we are not inclined to consider the prayer of the petitioner for grant of back-
wages though the petitioner is entitled to join as a junior clerk on the ::: Downloaded on - 27/11/2014 23:47:43 ::: wp4578.13 -20- establishment of respondent No.4.
28. In view of the above discussion, we proceed to pass the following order:-
ORDER I. Writ petition is hereby partly allowed.
II.
The communication at Exh. K dated 18.6.2011 issued by respondent No.4 and communication dated NIL July, 2012 are hereby quashed and set aside.
III. The petitioner is entitled to hold lien against the post of junior clerk on the establishment of respondent No.4.
IV. The respondent No.4 is hereby directed to allow the petitioner to join as junior clerk on the establishment of respondent No.4.
V. Rule is made absolute in the above terms.
VI. In the circumstances, there shall be no order as to costs.
( V. K. JADHAV, J.) ( S. V. GANGAPURWALA, J. )
rlj/
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