Bombay High Court
Dr.Sayiuddin Quazi S/O Shamsuddin ... vs Joint Director Of Health Services And 2 ... on 12 January, 2016
Author: P.N.Deshmukh
Bench: B.R.Gavai, P.N.Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4263 OF 2002.
PETITIONER : Dr.Sayiduddin Quazi s/o Shamsuddin Quazi,
aged about 52 years, R/o Lashkaribagh, Nagpur.
(dead)
Legal heirs of the petitioner.
1. Ghazala Reshma w/o Dr.S.S.Quazi,
aged about 49 years.
2. Fahad Quazi s/o Dr.S.S.Quazi,
aged about 27 years,
3. Taiba Quazi d/o Dr.S.S.Quazi,
Aged about 20 years.
All resident of B-14, Faraz Apartments,
Jaffar Nagar, Nagpur.
..VERSUS..
RESPONDENTS: 1. Joint Director of Health Services, Pune.
2. Deputy Director of Health Services, Nagpur
Circle, Nagpur.
3. Civil Surgeon,
General Hospital, Wardha.
4. State of Maharashtra,
through the Secretary, Ministry of Health
Science, Mantralaya, Mumbai - 32.
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Mr.(Dr.) R.S.Sundaram Adv.with Ms.U.R.Tanna Adv. for the petitioner.
Mr.Amit M.Balpande, AGP for respondent nos.1 to 4.
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2
CORAM: B.R.GAVAI AND
P.N.DESHMUKH, JJ.
DATE : 12th JANUARY, 2016.
ORAL JUDGMENT (Per P.N.Deshmukh, J.)
1. The petitioner has assailed common order dated 5 th of October, 2002, passed by Industrial Court in Revision (ULPN) No.288 of 1994 preferred by respondents and Revision (ULPN) No.346 of 1994 preferred by the present petitioner, by which the revision of respondents came to be allowed and that of petitioner came to be dismissed.
2. Facts necessary to decide the present petition can briefly be stated as follows -
Petitioner holding a Degree of B.A.M.S. was appointed as an Assistant Medical Officer in Class-III post vide order dated 27th of October, 1983 by respondent, initially for a period of three months, by giving one-day artificial break in his service and was continuously in the employment from the date of his joining from 31st of October, 1983 to 8th of May, 1985 on which day his services came to be terminated w.e.f. 22 nd of May, 1985. The petitioner thus preferred complaint before the learned Labour Court alleging that during the preceding 12 months of his date of ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 3 termination, he has put in continuous employment for more than 240 days and that his services were terminated though he had continuously worked for almost three years. The learned Labour Court, taking into consideration pleadings and evidence, allowed the complaint directing reinstatement of petitioner with continuity in service but without back wages.
3. The order passed by the learned Labour Court, as aforesaid, was assailed by respondent by filing Revision (ULPN) No.288 of 1994 while petitioner preferred Revision (ULPN) No.346 of 1994 seeking modification of order for grant of back wages, which revision came to be disposed of by common order dated 5th of October, 2002 vide which the revision filed by respondent came to be allowed while that of petitioner came to be dismissed. As such, the petitioner has approached this court against the impugned judgment of the Industrial Court dated 5 th of October, 2002 by filing the present petition.
4. Petitioner after order passed by the learned Labour Court directing the reinstatement with continuity in service was reinstated by order dated 21st of December, 1994 and has accordingly joined services on 2nd of January, 1995 and continued ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 4 to work till date of his superannuation as Medical officer and on superannuation, expired on 1 st of May 2014. Due to sad demise of petitioner, his legal heirs were brought on record. The termination of petitioner was mostly on the count that at the time of his initial appointment he was overaged.
5. Respondent nos.1 and 2 resisted the claim of petitioner by filing their returns and has contended that the appointment of petitioner was on stop-gap-arrangement due to exigencies of the medical services to the public, and his temporary services were continued till the regular Medical Officer from the cadre of Class-III is posted in his place. It is further contended that the appointment order of petitioner was specific for a period of three months with a rider that the services would liable for termination even before expiry of said period without assigning any reason, on availability of regular Medical Officer and as such the petitioner was well aware of said terms and conditions of appointment. More over, it is also the case of respondent that the petitioner at the time of his initial appointment was overaged. In fact, according to the recruitment rules prescribed for the appointment to the post of Medical officer, the age limit prescribed is 28 years while the petitioner ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 5 was 31 years old at the time of his initial appointment on temporary basis. Thus, according to the respondent, the appointment of petitioner was made only on temporary basis by way of stop-gap-arrangement and therefore, as it was subsequently noticed that the petitioner was overaged being 31 years old, at the time of his initial appointment, as per the instructions received to respondent no.2, who had issued appointment order, his services came to be discontinued.
6. It is the case of petitioner that respondent no. 4 - State Government has power to relax the age criteria as per the rules and Circulars and that respondent has also relaxed the age with respect to the employees similarly placed like that of deceased petitioner, by relaxing their age, even though they were overaged at the time of appointment. In support of his case petitioner has relied upon letter dated 8th of May, 2005 issued by respondent no.2 and has further relied upon the provisions of the Maharashtra Civil Services Rules, whereunder the State Government has power to condone and relax the age. It is further submitted that since the deceased petitioner has put in unblemished service till his superannuation, he is entitled for grant of pension and after his death for family pension.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 67. Heard Shri (Dr.) Sundaram, learned counsel appearing for the petitioner and Shri A.M.Balpande, learned Assistant Government Pleader appearing for respondent nos.1 to 4.
8. We have also perused the record, evidence led by petitioner and respondents before the Labour Court, letter dated 8th of May, 2005 issued by respondent no.2 and the provisions of Maharashtra Services Rules. Admittedly, so far as performance of petitioner is concerned, there are no complaint and in fact there was recommendation from the Civil Surgeon, stating that the performance of petitioner was good and his services need to be continued. From his evidence it is further brought on record that juniors to the petitioner in the post of Assistant Medical Officer were retained in service while petitioner's services came to be terminated though he was similarly placed and situated, without complying with the mandatory requirement of Rule 81 of the Industrial Disputes (Bombay) Rules, 1957 and in breach of Section 25H and 25F of Industrial Disputes Act, 1947. It is the settled law that failure on the part of employer to comply with above mandatory requirements amounts the order to be in nullity and the only relief which could be granted to the employee ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 7 is of reinstatement in service.
Nothing material appears to have been brought on record in the cross-examination of the petitioner. Respondent examined one witness Kashinathrao Kirtane, who has deposed that the petitioner was overaged, was above 28 years old, and as such was not eligible for appointment and has further stated that the policy of Government is only to appoint MBBS candidate as an Assistant Medical Officer and that the appointment order of petitioner was of temporary nature.
9. Having considering above evidence we find that the view taken by the learned Labour Court allowing the complaint is correct. However, we reserve from making any observation with reference to non-grant of back wages as ordered by the learned Labour Court. From the record we also find that after the respondent assailed the order of Labour Court with continuity in service before the learned Industrial Court, the stay application filed by the respondent came to be dismissed on 13 th of September, 1994 and accordingly petitioner joined his services on 2nd of January, 1995 and as such continued to work till the date of his superannuation as Medical Officer and has expired on 1 st of May, 2014.
::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 810. Rule 4 of Maharashtra Civil Services Rules contemplates power of relaxation to the Government, where the Government is satisfied that the operation of any of these rules causes or is likely to cause undue hardship in the case of any Government servant or class of Government servants, it may, by an order in writing, exempt any such Government servant or class of Government servants from any provisions of these rules or may direct that such provisions shall apply to such Government servants or class of Government servants with such modification not affecting the substance thereof as may be specified in such order.
11. Having considering above provisions along with letter dated 8th of May, 1985, issued by respondent no.2, we find that, based on Government of Maharashtra, GAD Circular No.RSB-
2382/1824-B dated 17th January, 1983 persons who have completed more than eleven months of services are to be continued in service by ignoring technical break and accordingly services of one Dr.Ku.R.D.Rangari came to be regularized.
However, case of petitioner in the very letter appears to have not been considered favourably stating that he was overaged at the ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 9 time of his first appointment and has not completed eleven months as on 12th of January, 1983. No satisfactory reason is put forth as to what contemplated the State to give such relief only to those employees who have completed eleven months of services on 12th of January, 1983 and not to other employees. The petitioner, in pursuance to his first appointment order dated 27 th of October, 1983 joined his duties as an Assistant Medical Officer in Class III post from 31st of October, 1983 and on having been continuously in employment, till 8 th of May, 1985, his service came to be terminated w.e.f. 22nd of May, 1985 and was thereafter, under the order passed by this Court on 13 th of January, 2003 by way of interim relief, continued in service till his superannuation as a Medical officer and had expired on 1 st of May, 2014. Having considering the power of relaxation with the Government as contemplated in Maharashtra Civil Services Rules and having considering letter issued by respondent no.2 vide which services of some other doctors, who had also similar qualification, were continued, we do not find any reason to not to grant such relief to the petitioner. Hence, considering the fact that the petitioner was not at fault in securing employment and the services of petitioner continued during the pendency of proceedings before the learned Labour Court and this Court, till ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 10 the petitioner attained the age of superannuation, we do not feel that the petitioner should be deprived of the retiral benefits, more so when it is not case of respondent that the petitioner has played any fraud while securing initial appointment.
12. Hence, in peculiar facts and circumstances of the case since the petitioner has worked with respondent no.2 till he attained the age of superannuation, and the termination order has not taken effect in view of the interim orders passed by this Court, we are inclined to grant retiral benefits to the petitioners and in the facts of the case do not express any opinion about the correctness or otherwise of the orders of the termination passed by respondent against the petitioner. Hence, for the reasons aforesaid, writ petition is allowed.
It is held that since in the case of similarly circumstanced employee, namely, Dr. (Ku) R.D.Rangari, condition of upper age limit was relaxed, the original petitioner is also entitled to relaxation of the condition of upper age limit.
Since original petitioner after being superannuated has died and admittedly completed pensionable service, his legal heirs will be entitled to retiral benefits as are payable to the original petitioner. Needless to state that legal heir no.1, who is ::: Uploaded on - 29/01/2016 ::: Downloaded on - 31/07/2016 00:46:25 ::: 11 wife of deceased original petitioner, will be entitled to family pension in accordance with relevant Rules.
JUDGE JUDGE.
Chute
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