Bombay High Court
Mr. Gulab Damodar Jadhav vs State Of Maharashtra And Anr on 25 February, 2021
Author: G. S. Kulkarni
Bench: Dipankar Datta, G. S. Kulkarni
Digitally
signed by
Prashant V.
Prashant Rane
wp-st-2361-20.doc
V. Rane Date:
2021.03.01
20:21:23
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.2361 OF 2020
Mr.Gulab Damodar Jadhav. ..Petitioner
versus
1.State of Maharashtra
2.Chief Engineer, Small Scale Irrigation
(Water Conservation). ..Respondents
.....
Mr.Abhijeet A.Desai with Mr.Amol B.Jagtap with Ms.Surbhi Agrawal
with Ms.Chandni Sachade i/b. Desai Legal, for the Petitioner.
Mr.M.M.Pable, AGP for the State-Respondents.
.....
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- FEBRUARY 25, 2021.
PC :
1. The petitioner is an unsuccessful applicant before the Maharashtra Administrative Tribunal (for short 'the Tribunal') who assails the order dated 18 December 2019 passed by the tribunal rejecting Original Application No.854 of 2017 filed by him challenging the rejection of his application by the respondents for treating his period of absence on duty from 5 July 2012 to 12 March 2013 as "compulsory waiting period".
2. By an order dated 20 June 2012 the petitioner was transferred from the establishment of Zilla Parishad Nashik to the Prashant Rane 1/6 wp-st-2361-20.doc establishment of the Chief Engineer, Minor Irrigation Projects, Pune with a remark that he will be posted to any other zilla parishad other than Nashik. The note below the transfer column, interalia recorded that the transferred officers be immediately relieved. Consequent thereto the petitioner was relieved by an order dated 4 July 2012. The petitioner contended that he was not issued a posting order.
3. It is not in dispute that the petitioner was transferred on the establishment of the Chief Engineer, Minor Irrigation, however, the petitioner did not report on such transferred establishment nor he demanded any posting. On 4 March 2013 the transfer order was modified and a posting was given to the petitioner on the establishment of Executive Engineer, Minor Irrigation Sub-Division, Nandurbar. The petitioner accordingly joined the said posting on 13 March 2013.
4. The fact remains that for a period between 5 July 2012 till 4 March 2013, which is for a period of more than eight months, the petitioner never reported for duty on the purported ground that he was not offered a posting. The petitioner on 3 April 2013 made an application that the period of his absence be treated as compulsory waiting period. Such application of the petitioner came to be rejected by the respondent on 7 November 2014. Thereafter, a second representation as made by the petitioner also came to be rejected on 13 October 2017, when the petitioner was informed that the said period between 5 July 2012 to 4 March 2013 would be treated as an extraordinary leave.
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5. The petitioner being aggrieved by the rejection of his representation by the above said communication approached the tribunal by the original application making the following prayers:-
"a. That this Hon'ble Court may kindly be pleased to issue a Writ of Certiorari or Writ in the nature of Certiorari or any other Writ thereby quashing and setting aside the order dated 18.12.2012 passed by the Ld. Maharashtra Administrative Tribunal.
b. That this Hon'ble Court may kindly be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ order or direction tot he Respondents thereby directing them to consider the period of 05.07.2012 to 12.03.2013 as compulsory waiting period with full pay and allowances with interest at the rate of 18% per annum and all consequential benefits as the Petitioner is legally entitled for.
c. Pending the hearing and final disposal of the petition, this Hon'ble court be pleased to direct the Respondent to pay the salary with additional benefits of the petitioner for the period of 05.07.2012 to 12.03.2013.
d. ad interim in terms of prayer clause (c).
e. Issue any other relief which this Hon'ble Court may deem
fit and proper under the facts and circumstances of the present case;
f. Costs as this Hon'ble Court may deem fit in the interest of justice;
g. Pass further order in the interest of the justice"
6. By the impugned order the Tribunal dismissed the original application filed by the petitioner interalia observing that the transfer order dated 20 June 2012 itself recorded that the petitioner be posted under the control of Chief Engineer, Minor Irrigation, Pune (except Nashik), which clearly meant that the petitioner was to be given posting in Zilla Parishad on any vacant post, except Nashik Zilla Parishad.
Prashant Rane 3/6wp-st-2361-20.doc Accordingly a posting order was also issued to the petitioner by the Chief Engineer assigning the posting as Deputy Executive Engineer at Nandurbar. It is observed that the petitioner's contention that he had no knowledge of the said posting order and hence, he could not join duties, was not correct as copies of the transfer order dated 28 June 2012 were forwarded and sent to the concerned authorities including the petitioner through Chief Executive Officer, Z.P. Nashik. The tribunal observed that this being the position the petitioner's case that he was not aware of the transfer order, could not be believed. The tribunal has also made observations that the petitioner joined the post at Nandurbar on 13 March 2013 which is after a period of more than 8 months and only thereafter on 3 April 2013 he made a representation /application that his absence from 5 July 2012 to 12 March 2013 be treated as 'Compulsory Waiting Period'. It is observed that for such entire period, at no point of time, he made any application or representation either to the Government or to the Chief Engineer raising grievance that he could not join the posting as there was no specific posting order. The tribunal on materials on record has disbelieved the case of the petitioner that the petitioner was interested to join duties, when there was a specific posting order dated 20 June 2012.
7. Mr.Desai, learned counsel for the petitioner in the above circumstances, does not have many submissions. He submits that it was no fault of the petitioner to not join duties for more than 8 months. He submitted that a prompt posting order ought to have been issued. Mr.Desai would thus contend that the petitioner was entitled that the period of his absence from 5 July 2012 to 12 March 2013 be treated as 'Compulsory Waiting Period'. He has also drawn our attention to Rule 9(14)(f) of the General Conditions of Service Rules 1981 to submit that Prashant Rane 4/6 wp-st-2361-20.doc the benefit of this rule ought to have been granted to the petitioner which according to him is not appreciated in its proper perspective, in the impugned order. It is hence submitted that the impugned order be quashed and set aside.
8. On the other hand, learned AGP has supported the impugned order. He submits that the conduct of the petitioner is writ large which does not justify his absence from duties for the period from 5 July 2012 to 12 March 2013. He submits that the tribunal has passed the impugned order after careful examination of the materials on record, hence the impugned order would not call for any interference.
9. Having heard Mr.Desai, learned Counsel for the petitioner and Mr.Pable, learned AGP for State, we are not persuaded to accept any of the contentions as urged by Mr.Desai. It is quite clear that the petitioner at all material times, right from the issuance of the transfer order dated 20 June 2012 was aware about his transfer. The transfer order itself provided that the petitioner would be immediately relieved. Further as observed by the tribunal, there was also a posting order dated 28 June 2012. The tribunal has rightly observed that there is no explanation coming forth from the petitioner as to why for a period of more than 8 months, he did not join the posting of his transfer. Further his representation that his absence for such long period be considered as a 'Compulsory Waiting Period' was made by him after he was called upon to report duties at Nandurbar on 4 March 2013, which he joined on 13 March 2013.
10. We have also perused Rule 9(14)(f) of the General Conditions of Service Rules 1981 to examine as to whether the Prashant Rane 5/6 wp-st-2361-20.doc petitioner can claim a benefit under the said rule. The rule provides three circumstances in which the waiting period can be considered as 'Compulsory Waiting Period' to be not counted as an absence. The three eventualities being firstly those employees whose order of transfer are held in abeyance, cancelled or modified while in transit; secondly those employees who, on return from leave or deputation or on abolition of the post are required to await receipt of posting orders and thirdly the employees who, on arrival at the headquarters of the post to which they are posted are not in a position to take charge of the post from the Government servant to be relieved. In the present facts, the petitioner is not falling in any of the above three categories. This apart, no prudent employee of the Government unless there are justifiable reason, not report for duties and that too for a long period of more than 8 and ½ months and take a specious plea that no posting order was received when the same was belied by record.
11. Having perused the impugned order and the materials as placed on record, we find that the tribunal has considered and dealt with every contention as raised on behalf of the petitioner. The reasons as set out in rejecting the original application are completely borne out by the record. There is no perversity whatsoever in the well reasoned order passed by the Tribunal. The writ petition is without merit. It is summarily rejected. No costs.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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