Bombay High Court
Milind Manohar Deshpande (Dead) ... vs State Of Maharashtra And 3 Ors on 16 June, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2809 OF 2003
Milind Manohar Deshpande,
since deceased, through his
legal heirs -
A) Mrs. Jayshree wd/o Milind
Deshpande, aged about 52
years and resident of Gokulpeth
Market Road, Shivaji Nagar,
Nagpur 440 010.
B) Rohan Milind Deshpande,
aged about 16 years,
occupation : Student (Minor
through mother and natural
guardian) ... Petitioner
- Versus -
1) State of Maharashtra, through
its Secretary, Education and
Employment Department,
Mantralaya, Mumbai - 32.
2) The Director of Technical Education,
3, Mahapalika Marg, Mumbai.
3) The Joint Director of Technical
Education, Government Polytechnic
Campus, Amravati.
4) The Principal, Government Polytechnic,
Yavatmal. ... Respondents
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Shri Anil S. Mardikar, Senior Advocate with Shri M.Y.
Wadodkar, Advocate for petitioner.
Shri S.B. Bissa, Assistant Government Pleader for
respondents.
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CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 16, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
The petition is being prosecuted by legal heirs of original petitioner Milind, who expired during pendency of petition.
2) In view of judgment of Division Bench of this Court in Sachin Ambadas Dawale and others vs. State of Maharashtra and another (2014(2) Mh.L.J.
36), Government Resolution dated 14/1/2015 and later judgment dated 17/3/2015 delivered by Maharashtra Administrative Tribunal in Original Application No.1239/2013, Senior Adv. Mardikar has made submissions in brief to point out entitlement of ::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 ::: 3 wp2809.03 petitioner to identical treatment.
3) The judgment delivered by Maharashtra Administrative Tribunal on 17/7/2003 in Transfer Application No.201/1992 (Writ Petition No.307/1990) forms subject matter of challenge in the present writ petition. Petitioner employee Milind had approached this Court by Writ Petition No.307/1990 for his absorption and regularisation in Government service and restraining respondents from terminating him in the meanwhile. This Court after considering his long continuation did protect his employment and it continued till 17/7/2003 when Maharashtra Administrative Tribunal dismissed his original application. Thereafter in the present petition, on 21/7/2003, again ad interim order was passed and, therefore, Milind continued in employment till his demise on 28/11/2007. Thus, from 1/6/1984 till 28/11/2007, he put in service of over 23 years.
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4) In this background, Senior Adv. Mardikar submits that Division Bench of this Court in the judgment in case of Sachin Ambadas Dawale and others vs. State of Maharashtra and another (supra) has, in identical circumstances, granted relief of regularisation to 62 employees, who were similarly recruited. This judgment was questioned before Hon'ble Apex Court and the Hon'ble Apex Court refused leave on 6/1/2015. Hence, a Government Resolution was issued on 14/1/2015 and services of 62 employees working earlier on contract basis were regularized. Our attention is invited to seniority list published later on to show that first of such persons, who have been given benefit of regularization, was appointed on 8/9/1992 and benefit is extended to him from that date only.
Here, as petitioner Milind was appointed on 1/6/1984 and, therefore, was senior to that person and all other persons mentioned in the list, benefit of regularisation should be extended to Milind also from the date of his employment, i.e. from 1/6/1984.
::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 :::5 wp2809.03 Learned Senior Adv. Mardikar points out that after this regularisation, by Government Resolution dated 13/3/2015 similarly situated 317 Lecturers have also been regularised. Few persons, who were left out, had approached Maharashtra Administrative Tribunal in Original Application No. 1239/2013 and vide judgment dated 17/3/2015 they have also been given same benefit.
5) Our attention is invited to the fact that after expiry of Milind, his widow was making efforts to seek similar relief for him and family pension in her favour.
Last such representation made by her on 7/5/2015 is relied upon by Senior Adv. Mardikar to show that it has been rejected only on the ground that deceased Milind was not in service since 2007. He contends that his unfortunate death due to leukemia cannot be held as a circumstance to deny him same benefit.
6) Shri Bissa, learned Assistant Government ::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 ::: 6 wp2809.03 Pleader for respondents, is relying upon stand taken in return. He points out that on the date on which benefit of regularisation has been extended, i.e. on 31/1/2015, Milind was not in employment. Those who had put in three years or more service on 31/1/2015 have only been given benefit of regularisation and during said past period ofig three years, Milind was not in employment. He further points out that as per recommendations received by State Government from All India Council of Technical Engineers in 1990, incumbent like Milind was obliged to possess degree of Bachelor of Engineering (Electronics) and as Milind did not possess that degree, he could not have been regularised even otherwise. He adds that deceased Milind was continued only due to various interim orders passed by this Court.
7) Senior Adv. Mardikar, in reply, invites our attention to documents on record to urge that qualification of Milind, i.e. post graduation degree in ::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 ::: 7 wp2809.03 Physics with specialization in Electronics is found sufficient by employer.
8) We find that qualifications of petitioner are not in dispute. Even in interview call sent to him on 23/3/1984 it is specifically mentioned that M.Sc.
(Physics) with specialization in Electronics only would be considered as eligibility qualification. The petitioner accordingly appeared for interview and on 1/6/1984 was given an order of appointment.
9) Shri Bissa, learned Assistant Government Pleader has pointed out that appointment of Milind was on temporary basis as he was not selected by Maharashtra Public Service Commission. He has further stated that Milind failed once in selection process.
10) The fact that Milind continued in service from 1/6/1984 till his death on 28/11/2007 is not in dispute.
::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 :::8 wp2809.03 Division Bench of this Court in Sachin Ambadas Dawale and others vs. State of Maharashtra and another (supra) has considered the condition of passing M.P.S.C. examination and fact that such candidates were not available. Thereafter it has ordered regularisation and that judgment is also upheld by Hon'ble Apex Court. ig Not only this, the position is also acquiesced to by the State Government by issuing Government Resolutions dated 14/1/2015 and 13/3/2015. In this situation, contention that Milind did not pass M.P.S.C. examination or he had failed once in examination is not very relevant.
11) Hon'ble Apex Court has in Constitution Bench judgment in the case of Secretary, State of Karnataka and others vs. Umadevi and others (AIR 2006 SC 1806) specifically held that while considering aspect of regularization, continuation of employee due to interim protection given by the Court cannot be looked into. We are aware of this direction.
::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 :::9 wp2809.03 However, here in view of judgment of Division Bench mentioned supra, which has been upheld by Hon'ble Apex Court and policy decision in the shape of Government Resolutions, we find that this judgment delivered in 2006 cannot be used to deny Milind same treatment. The benefit has been extended initially to 62 Lecturers employed on contract basis because of judgment of this Court as per Government Resolution dated 14/1/2015. It has been thereafter extended to about 353 Lecturers in March 2015. Thus, all Lecturers recruited after deceased Milind have been regularized and given benefit.
12) This brings us to contention that Milind did not possess B.E. (Electronics) degree. The interview call dated 23/3/1984 specifically accepts M.Sc. (Physics) with specialization in Electronics as sufficient qualification. Accordingly, on 1/6/1984 with full knowledge, appointment order came to be issued to Milind. Had any selection process been conducted by ::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 ::: 10 wp2809.03 Maharashtra Public Service Commission before 1990 and petitioner succeeded in it, he would have been appointed as a regular/permanent Lecturer in Electronics by respondents. The seniority list to which our attention has been invited contains several names and in paragraph 3 of the judgment of Maharashtra Administrative Tribunal delivered on 17/3/2015, there is a chart of qualification of 14 Lecturers, who had approached it. Several of them are seen possessing post graduate qualification. Again few questions arise because they are holding qualification of M.Sc. in Physics, Chemistry or Organic Chemistry. At serial no.8, there is name of C.P. Bhole who has been shown appointed as Lecturer in Physics with qualification M.Sc.
Physics (Electronics).
13) In the impugned order, only reason to deny benefit communicated to widow of deceased Milind is his death in 2007. It has not been pointed out that he was not qualified to hold the post. Hence, here when ::: Uploaded on - 21/06/2016 ::: Downloaded on - 30/07/2016 05:35:04 ::: 11 wp2809.03 all other Lecturers have been regularized, we are not inclined to accept the contention that as Milind did not possess B.E. (Electronics) degree, he could not have been regularized.
14) In this situation, following earlier judgments and Government Resolutions, we direct respondents to treat deceased Milind as regularized with his date of entry into service as 1/6/1984. Consequently, all terminal/retiral benefits payable to him shall be worked out and shall be released to his heirs/dependents as per law within a period of six months from today. If widow or any other dependent is entitled to receive family pension, necessary exercise shall also be completed within this period.
15) The writ petition is thus partly allowed. Rule is made absolute accordingly. No costs.
JUDGE JUDGE
khj
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