Dismissed

Ashok Lahanu Rakh and Another v. the State of Maharashtra and Others

Bombay HC17 Apr 2014WP/1913/2014

Case brief

AI extract

What is this about?

This judgment dismisses multiple writ petitions filed by nominees of freedom fighters seeking protection against termination of service. The Court held that since the freedom fighters were found ineligible for benefits due to fraud, their nominees were not entitled to service protection or Article 311 safeguards. Notice issued was preliminary, not a final decision.

What did the court decide?

The petitions challenging the Government Resolution dispensing with services of the petitioners are dismissed.

Ashok Lahanu Rakh and Another Vs the State of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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BENCH AT AURANGABAD

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(1) WRIT PETITION NO.2998 OF 2014

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1 Tatyasaheb s/o Laxman Sambre, age: 29 years, Occ: service, R/o Bensur, Tq. Patoda, Dist.Beed. 2 Ashok s/o Nanasaheb Arsul, age: 30 years, Occ: service, R/o as above. Petitioners

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Versus

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1 State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai. 2 The Collector, Beed, District Beed. 3 The Civil Surgeon, Civil Hospital, Beed. Respondents

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Mr.Shri S.S.Shinde, advocate for petitioners. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH (2) WRIT PETITION NO.2872 OF 2014

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1 Parmeshwar s/o Bhanudas Jagtap, age: 37 years, Occ: service, R/o Bhavanwadi, Tq. & Dist.Beed. 2 Yuvraj s/o Raghunath Shinde, age: 37 years, Occ: service,

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R/o Sautada, Tq. Patoda, District Beed.

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3 Maharudra s/o Babasaheb Wanave, age: 36 years, Occ: service, R/o at Kacharwadi, Post: Patoda (Bail), Tq. & Dist.Beed.

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4 Maharudra s/o Lala Kirdat, age: 29 years, Occ: service, R/o Patoda (Bail), Tq. & District Beed.

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5 Tukaram s/o Suryabhan Jagtap, age: major, Occ: service, At Rural Hospital, Majalgaon. District Beed.

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6 Trupti Vijay Tandale, age: 41 years, Occ: service, R/o ‘Prajakta’, Jawahar Colony, Beed.

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7 Baban s/o Raghunath Wanave, age: major, Occ: service, At Rural Hospital, Raimoha, District Beed.

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8 Sangita Vithal Mule, age: 34 years, Occ: service, R/o Dhande Galli, Tervi Lane, Beed.

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9 Sundarrao s/o Dattatraya Badage, age: major, Occ: service, R/o Patoda (Belkhandi), Tq. & District Beed.

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10 Asaram s/o Dadarao Gopalghare, age: 41 years, Occ: service, R/o Banegaon, Post: Waghebhabalgaon, Tq. Kaij, District Beed. 11 Narayan s/o Ramrao Nagargoje, age: major, Occ: service, R/o Sawargaon (sone), Tq. Patoda, District Beed. 12 Bhanudas s/o Eknath Ugale, age: major, Occ: service, At Rural Hospital, Raimoha, Tq. & District Beed. Petitioners Versus 1 State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai. 2 The Collector, Beed, District Beed. 3 The Collector, Jalgaon, Dist.Jalgaon. 4 The District Malaria Officer, Jalgaon, Dist. Jalgaon. 5 The District Malaria Officer, Ahmednagar, Dist.Ahmednagar. 6 The Civil Surgeon, Civil Hospital, Beed. Respondents

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Mr.Shri S.S.Shinde, advocate for petitioners. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH

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(3) WRIT PETITION NO.1909 OF 2014

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Rahul s/o Dnyanoba Gaikwad, age: 31 years, Occ: service, R/o Therla, Tq. Patoda, District Beed. Petitioner

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Versus

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1 The State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai.

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2 The Collector, Beed.

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3 The Commissioner of State Excise, Maharashtra State, Mumbai.

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Respondents

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Mr.C.K.Shinde, advocate for the petitioner. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH

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(4) WRIT PETITION NO.1910 OF 2014

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Rajendra s/o Sundarrao Sanap, age: 36 years, Occ: service, R/o Wadzari, Tq. Patoda, District Beed. Petitioner

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Versus

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1 The State of Maharashtra,

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through its Secretary,

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General Administration Department, Mantralaya, Mumbai.

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2 The Collector, Beed.

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3 The Director of Ayurved, Directorate of Ayurved (AYUSH), St. Georges Hospital Campus, Fort, Mumbai 400 001. 4 The Dean, Government Ayurved College, Osmanabad. Respondents Mr.C.K.Shinde, advocate for the petitioner. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH

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(5) WRIT PETITION NO.1913 OF 2014

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1 Ashok s/o Lahanu Rakh, age: 37 years, Occ: service, R/o Therla, Tq. Patoda, District Beed.

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2 Balasaheb s/o Shamrao Jaybhay, age: 43 years, Occ: service, R/o Anpatwadi, Tq. Patoda, District Beed. Petitioners Versus

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1 The State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai. 2 The Collector, Beed.

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3 The Joint Director of Health Services, (Malaria and Faleria), Pune. Respondents

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Mr.C.K.Shinde, advocate for the petitioner. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH

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(6) WRIT PETITION NO.1917 OF 2014

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Vishnu s/o Sarjerao Sanap, age: 42 years, Occ: service, R/o Wadzari, Tq. Patoda, District Beed. Petitioner

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Versus

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1 The State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai.

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2 The Collector, Beed.

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3 The Deputy Director of Health Services, (V.I.S.), Pune. 4 The Civil Surgeon, Civil Hospital, Osmanabad. Respondents

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Mr.C.K.Shinde, advocate for the petitioner. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH

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(7) WRIT PETITION NO.2545 OF 2014

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Lahu s/o Uttam Pandit, age: 37 years, Occ: service, R/o Mahasangvi, Tq. Patoda, District Beed. Petitioner Versus 1 The State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai. 2 The Collector, Beed. 3 The Joint Director of Health Services, (Malaria & Fyleria), Health Services, Pune-1. 4 The District Malaria Officer, Ahmednagar. Respondents Mr.C.K.Shinde, advocate for the petitioner. Mr.S.G.Karlekar, A.G.P. for Respondents. WITH (8) WRIT PETITION NO.2546 OF 2014 Dharmraj s/o Thakaji Sanap, age: 40 years, Occ: service, R/o Wadzari, Tq. Patoda, District Beed. Petitioner Versus 1 The State of Maharashtra, through its Secretary, General Administration Department,

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Mantralaya, Mumbai.

2 The Collector, Beed. 3 The Deputy Director of Health Services, (Malaria & Fyleria), Pune-6. 4 The District Malaria Officer, Satpur, Nashik. Respondents

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Mr.C.K.Shinde, advocate for the petitioner. Mr.S.G.Karlekar, A.G.P. for Respondents.

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WITH (9) WRIT PETITION NO.2669 OF 2014

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1 Sunil s/o Manikrao Sakhare, age: 50 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Beed, R/o ‘Prajakta’, Jawahar Colony, Near Water Tank, Beed. 2 Ganpat s/o Sarjerao Wanve, age: 39 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Beed, R/o At Post Kacharwadi, Post Patoda (B), Tq. & Dist. Beed. 3 Suresh s/o Udhavrao Bangar, age: 38 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Beed), R/o At Post Waghira, Tq.Patoda, District Beed.

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4 Tukaram s/o Pandharinath, Nanavare, age: 37 years, Occ: service (as Multipurpose Health Worker in O/o D.M.O., Ahmednagar), R/o Ahmednagar.

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5 Ashok s/o Tukaram Pawar, age: 39 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Ahmednagar), R/o At Ganucha Tanda, Manik Daundi P.H.C., Tq. Pathardi, Dist. Ahmednagar.

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6 Balu s/o Janrao Misal, age: 30 years, Occ: service (as Agriculture Asstt. In O/o T.A.O., Shirur (Kasar), Dist. Beed), R/o At Post Khokarmoha, Tq.Shirur (Kasari), Dist.Beed.

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7 Devidas s/o Balasaheb Bangar, age: 31 years, Occ: service, (as Agriculture Asstt. In O/o T.A.O., Beed), R/o At Khamba, Post: Khalapuri, Tq.Shirur (Kasar), Dist. Beed.

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8 Bhaskar s/o Eknath Dhere, age: 40 years, Occ: service, (as Driver, Rural Hospital, Ter, Dist. Osmanabad), R/o C/o Rural Hospital, Ter, District Osmanabad.

Versus

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1 The State of Maharashtra, through its Secretary, General Administration Department, M.S., Mantralaya, Mumbai-32.

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2 The Collector,

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Beed, District Beed.

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3 The District Malaria Officer, Beed.

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4 The District Malaria Officer, Ahmednagar.

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5 The Divisional Joint Director of Agriculture, Aurangabad.

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6 The Civil Surgeon, Civil Hospital, Osmanabad.

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Mr.Avinash Deshmukh, advocate for petitioners. Mr.S.G.Karlekar, A.G.P. For Respondents No.1, 2 & 4 to 6. Mr.N.L.Jadhav, advocate for Respondent No.3.

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WITH

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(10) WRIT PETITION NO.2867 OF 2014

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1 Bhausaheb s/o Bhagwan Rakh, age: 40 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Beed) R/o: At Post: Gomalwada, Tq.Shirur (Kasar), Dist.Beed.

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2 Mohan s/o Pandurang Nagare,

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age: 38 years, Occ: service,

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(as Multipurpose Health Worker in O/o D.M.O., Beed), R/o: At Post Khandala, Tq. & District Beed.

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3 Sakharam s/o Raghoji Wanve, age: 49 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Beed), R/o: At Post Kacharwadi (Belkhandi Patoda), Tq. & Dist. Beed.

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4 Janardhan s/o Bhausaheb Bhosale, age: 49 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Ahmednagar), R/o At Jatdevla, Tq. Pathardi, District Ahmednagar.

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5 Kailas s/o Asruba Sonawane, age: 43 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Ahmednagar), R/o At Battewadi, Tq.Jamkhed, District Ahmednagar.

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6 Prabhakar s/o Ramrao Wanve, age: 42 years, Occ: service, (as Multipurpose Health Worker in O/o D.M.O., Ahmednagar), R/o At Dhamori, Tq.Kopargaon, District Ahmednagar.

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7 Pralhad s/o Bhimrao Garkal, age: 31 years, Occ: service, (as Kaksha Sevak, R.H.Nandurghat), R/o At Post Nandurghat, Tq.Kaij, District Beed.

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8 Somnath s/o Asaram Nande, age: 33 years, Occ: service, (as Junior Auditor in O/o Asstt. Director of Local Fund Accounts, Beed), R/o Sonwalkar Niwas, Sanskar Colony, Beed.

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9 Ramrao s/o Limbaji Bangar, age: 40 years, Occ: service, (as Junior Auditor in O/o Asstt. Director, Local Fund Accounts, Ratnagiri), R/o Kulkarni Compound, Dr.Ambedkar Road, Ratnagiri.

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10 Santosh s/o Namdeo Bangar;

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11 Satish s/o Bapurao Bhapkar

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R.Nos.10 & 11 Deleted vide Court’s order dated 01.04.2014

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12 Sopan s/o Arjunrao Wanve, age: 39 years, Occ: service (as Agriculture Assistant in O/o T.A.O., Beed), R/o Khaparpangari, Post: Pargaon (Shi), Tq. & Dist. Beed.

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13 Ganesh s/o Kisanrao Nagargoje, age: 33 years, Occ: service, (as Asstt. Teacher in Z.P. Primary School, Khadakawadi Centre), R/o Chincholi (Machhindra), Tq. Ghansawangi, Dist.Jalna.

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14 Sanjay s/o Jyotiba Bhosale, age: 39 years, Occ: service, (as Asstt. Teacher in Z.P. Primary School, Karhewadi), R/o: Matkuli,

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Tq.Ashti, Dist. Beed.

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15 Balu s/o Narhari Karande, age: 42 years, Occ: service, (as Jr.Clerk, M.J.P. Sub-Dn., Ambadi), R/o: Ambad, District Jalna. Petitioners

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Versus

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01 The State of Maharashtra, through its Secretary, General Administration Department, Maharashtra State, Mantralaya, Mumbai-32.

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02 The Collector, Beed, District Beed.

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03 The District Malaria Officer, Beed.

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04 The District Malaria Officer, Ahmednagar.

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05 The Chief Auditor, Local Fund Accounts, M.S., Navi Mumbai.

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06 The Deputy Director of Health Services, Pune Circle, Pune.

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07 The Divisional Joint Director of Agriculture, Aurangabad.

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08 The Chief Executive Officer, Zilla Parishad, Jalna.

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09 The Chief Executive Officer, Zilla Parishad, Beed.

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10 The Superintending Engineer, Maharashtra Jeevan Pradhikaran, Aurangabad. Respondents

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Mr.Avinash Deshmukh, advocate for petitioners. Mr.S.G.Karlekar, A.G.P. Fr Respondents No.1 to 7. Mr.N.L.Jadhav, advocate for Respondent No.9.

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CORAM : R.M.BORDE &

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A.M.BADAR, JJ. Reserved on : 03rd April, 2014. Pronounced on : 17th April, 2014

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ORDER (Per R.M.Borde, J.):

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1 Heard learned Counsel for respective parties.

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2 The petitioners, who are the nominees of freedom fighters and have been appointed in Government Departments or other Institutions/local bodies on the strength of nominations issued by respective freedom fighters, are taking exception to the Government Resolution dated 11.02.2014, whereby it has been directed to issue notices to the petitioners and after considering their contentions, take action of dispensing with their services.

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2 The petitioners are either sons, nephews or close relations of freedom fighters and taking benefit of the policy

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prescribed by the State Government, the petitioners have been extended benefit of employment, being the nominees of such freedom fighters.

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3 Certain facts leading to issuance of Government Resolution dated 11.02.2014 need to be taken into consideration. A petition was presented in this Court by one Mr.Bhaurao Paralkar, being PIL No.2619 of 2002. It was alleged in the petition that there are hundreds of freedom fighters who have taken benefit of the Government policy and are in receipt of freedom fighter’s pension. It was alleged in the petition that those freedom fighters, mainly from Beed District, have secured benefits on the strength of fabricated documents and by practicing fraud and misrepresentation. Even though such of the freedom fighters were not eligible to receive benefits of pension under the State policy, they were being paid pension amount regularly under the orders issued by the State Government.

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4 The Division Bench of this Court, while dealing with the Public Interest Litigation (PIL) No.2619/2002, in order to enquire into the allegations made in the petition, directed constitution of Enquiry Committee under the Chairmanship of Mr.M.R.Maney. The Committee, constituted under the directions of this Court, scrutinised the record and recommended withdrawal of pensionary benefits in favour of 349 freedom fighters. While disposing of the

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petition, challenging the order passed by Maney Committee, the Division Bench of this Court did not approve the recommendations made by the Maney Committee and directed the State Government to continue to pay benefits to the freedom fighters.

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5 The decision rendered by the Division Bench of this Court directing resumption of pensionary benefits to the freedom fighters was a matter of consideration in Civil Appeals No. 5162-5167 of 2005, arising out of SLP Nos.11344 and 11348 of 2004, presented by Bhaurao Dagdu Paralkar. The Supreme Court, considering the allegations made in the Civil Appeal, directed constitution of one Man Commission to enquire into the allegations in respect of bogus and misleading claims of 354 freedom fighters. The One-Man Commission, constituted under the directions of the Supreme Court, inquired into the matter and recommended the State to withdraw pensionary benefits as well as all other benefits extended to 298 freedom fighters from Beed district. It has been also directed that apart from withdrawal of pensionary benefits, freedom fighter’s certificates, issued in favour of such of the freedom fighters, shall also be withdrawn. The State Government, accordingly issued a Resolution on 21.03.2007 and issued directions to the concerned Treasury Officers and Banks to stop payment of pension amount to such 298 freedom fighters.

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6 It is also a matter of record that many freedom

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fighters, who were aggrieved by the decision of the State Government, approached this Court by presenting petitions. However, most of the petitions have been turned down by this Court thereby giving finality to the decision of the State Government in respect of stoppage of pensionary benefits. It is also a matter of record that freedom fighters approached the Supreme Court by presenting Civil Appeal Nos.10624-10636 of 2013, arising out of SLP Nos.37835-37847 of 2012. The Supreme Court expressed the opinion that keeping in view age of the freedom fighters and also keeping in view the fact that at this old age, if small benefit that was already granted to them is withdrawn, it may be difficult for them to sustain themselves. The Supreme Court, while allowing the appeals, directed that the pensionary benefits granted to the freedom fighters will enure only to the benefit of the appellants, who are before the Supreme Court, and not to their legal heirs/representatives. After the bereavement of the appellants, the pensionary benefit so granted by the State Government will come to an end.

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7 Although the State Government took a decision in respect of withdrawal of pensionary benefits, however, other benefits extended under the Government policy, to such of the freedom fighters who have claimed their entitlement on the basis of fabricated record or by practicing fraud and misrepresentation, were not withdrawn. As such, petition bearing Writ Petition No.

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2246 of 2008 came to be presented by Bhaurao Dagadu Paralkar and others, which has been decided by Division Bench of this Court on 27.09.2013. While disposing of the writ petition, a direction was issued to the Chief Secretary, Government of Maharashtra, to look into the representation made by the petitioners on 29.09.2007 in respect of withdrawal of benefits to such of the freedom fighters who are found to be not eligible to claim the benefits by Palkar Commission. It is observed in paragraph no. 8 of the order, as quoted below:

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“8 Whatever amount has been paid to or concessions are enjoyed by those nominees after acceptance of report of the Justice Palkar Committee by this Court till date, can be an issue in dispute and it’s recovery may also take sometime but future enjoyment of such concessions and benefits can definitely be stopped by the State Government by taking appropriate cognizance of the issue being raised by learned amicus through petitioner Nos.2 and 3. Hence, we direct the Chief Secretary to take necessary decision at the earliest and in any case within period stipulated above.”

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8 In pursuance to the decision of Division Bench of this Court, the Chief Secretary, after extending hearing to the amicus curiae representing the petitioners before the State Government, issued certain directions. Those include:

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Recovery of pensionary benefits extended to 298

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ineligible freedom fighters together with interest;

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1. To cancel the nominations issued by such freedom fighters in favour of their wards;

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1. To take action of termination of services of the nominees of such freedom fighters after extending hearing to them by the appointing authority; and

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1. To launch criminal prosecution against such 298 freedom fighters for deceiving the State.

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9 The petitioners, in the instant petition, are concerned with the directions in respect of dispensing with their services. The petitioners before us have secured employment on the strength of nominations issued by the freedom fighters against whom action has been proposed by the State Government and who are in employment for the period ranging between 6/7 years to 15 years. The petitioners contend that they are governed by the relevant service rules and their services cannot be terminated except by observing the procedure prescribed under service rules. The petitioners contend that the direction issued by the State Government is violative of the guarantee available to the petitioners under Article 311 of the Constitution of India since they are employees of the State Government.

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10 The petitioners also contend that by issuing notices impugned in these petitions, the appointing authorities have

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reached a decision and extending opportunity of hearing to the respective petitioners would be merely an empty formality. It is contended that the hearing contemplated in view of the notices issued by the appointing authority will have to be equated with post-decisional hearing since the decision has already been taken by the State Government to dispense with their services.

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11 That, so far as the decision taken by the State Government of withdrawing the benefits extended to the freedom fighters, who are found to be ineligible to receive such benefits during the enquiry by Justice Palkar Commission, since post acceptance of such report by the State Government cannot be faulted. It is a matter of record that 298 freedom fighters have secured benefits including freedom fighters’ pension and other benefits on the strength of documents presented to the State Government, which are found to be fabricated or on the basis of misrepresentation to the State authorities. Justice Palkar Commission, after due enquiry, recommended withdrawal of such benefits and the decision taken by the State Government, on acceptance of Justice Palkar Commission’s recommendations of stoppage of pensionary benefits to such freedom fighters, has attained finality. The decision of the Supreme Court, to which reference is made in the earlier paragraph, directing the State Government to continue to pay the pension amount to the freedom fighters considering their old age will have no bearing on the

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correctness of the decision taken by the State Government to withdraw pensionary benefits extended to ineligible freedom fighters.

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12 One of the benefits extended to the freedom fighters is of accommodating nominees of such freedom fighters in employment under the State or Local bodies. The petitioners, before us, are the nominees of such freedom fighters who are held to be disentitled to receive pensionary and other benefits. Since the freedom fighters themselves are held ineligible to receive benefits, the benefits extended to the petitioners in the form of offering employment on the basis of nominations issued by the freedom fighters is liable to be taken away. The appointment of the petitioners is admittedly by way of an exception to the due procedure adopted by the State Government in offering employment. The petitioners, by way of concession, have been accommodated in employment without following due procedure prescribed for offering employment under the State, Local bodies or instrumentality of the State. The petitioners have been granted precedence since they are nominees of the freedom fighters. Once a conclusion is reached that the freedom fighters, who have issued the nomination in favour of the petitioners, are disentitled to claim benefits under the Government policy, the petitioners, on the strength of such nominations, are not entitled to claim service protection as a matter of right. The benefits claimed by the

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freedom fighters, who are held to be disentitled to claim such benefits including the benefit in the form of employment to one of the close relations of the freedom fighters. are liable to be withdrawn.

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13 The challenge raised by the petitioners to the Government Resolution dated 11.02.2014 in respect of withdrawal of service benefits to the nominees of the freedom fighters is devoid of merit and the decision taken by the State Government in furtherance of the observations made by the Division Bench of this Court, cited supra, cannot be faulted.

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14 The petitioners contend that hearing by the appointing authority under the notices issued to them would be merely an empty formality and the hearing, that would be extended to the petitioners, shall have to be equated with post-decisional hearing, also does not deserve consideration. Although the petitioners are called upon to answer as to why their services shall not be brought to an end, on perusal of the notices, it does not transpire that the appointing authority has taken a final decision to dispense with the services of the petitioner. It is only after hearing the petitioners, an appropriate decision is required to be taken by the appointing authority.

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15 The petitioners placing reliance on the judgment of the

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Supreme Court in the matter of Kesar Enterprises Ltd. Vs. State of U.P. & others , reported in 2011 AIR (SCW) 4031, contend that the aim of observance of principles of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. In paragraph no.18 of the judgment, the Supreme Court has observed thus:

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“18 In Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 R.S.Sarkaria, J., speaking for the majority in a three-Judge Bench, lucidly explained the meaning and scope of the concept of natural justice. Referring to a catena of decisions, His Lordship observed thus:

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Rules of natural justice are not embodies rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle – as distinguished from an absolute rule of uniform application – seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing

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amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a predecisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the predecisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

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16 Reliance is placed on the judgment in the matter of Shekhar Ghosh Vs. Union of India & another , reported in 2007 (1) SCC 331, to contend that the post-decisional hearing is not within contemplation while observing principles of natural justice and same would be bad in law.

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17 In order to contend that the words of a statute never shared. in interpretation, be added or subtracted form without almost a necessity; and that it is contrary to all rules of construction to read words into a statute unless it is absolutely necessary to do so, reliance is placed on the judgment in the matter of Kanta Devi Vs. Union of India , reported in 2003 AIR (SCW) 1921. It is contended that the action proposed by the State Government is termination of their services and same cannot be equated with withdrawal of their appointments.

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18 The apprehension expressed by the petitioners is illfounded and it cannot be presumed that the appointing authority would mechanically issue an order of termination and extending opportunity of hearing to the petitioners would render an empty formality. Subject to the contentions, those would be raised by the petitioners before the appointing authority, it would be open for the appointing authority to take appropriate decision which may be of dispensing with their services or any other decision in the light of the facts and circumstances brought before the appointing authority. As has been contended by the petitioners, it is not a case of post-decisional hearing being extended to the petitioners since no decision has been reached by the appointing authority and only show cause notices have been issued to the petitioners calling upon them to explain as to why action shall not be taken

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{26} wp299814.odt

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against them in view of the Government decision. The ultimate decision may not be solely termination of services.

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19 The petitioners, placing reliance on the judgment in the matter of A.P. Ramtekkar and others Vs. Union of India and others , reported in 2013 (2) Mh.L.J. 419, contend that since they have rendered service ranging from 6/7 years to 15 years, they need to be protected subject to imposition of certain conditions. In case of A.P.Ramtekkar ( supra ) , petitioners therein were appointed on the basis of their claim as belonging to Scheduled Tribe, many years ago. Although the claims lodged by respective employees for validation of their caste certificates has been turned down, considering the fact that they have rendered services for 25 years, the Division Bench following the judgment of the Supreme Court in the matter of Kavita Solunke Vs. State of Maharashtra , reported in 2012 (5) Mh.L.J. 921, directed that the services of the petitioners, before the Court, shall be protected. It was also observed in the judgment that if any benefits are granted to the petitioners after 28.11.2000 on the basis that they belong to Scheduled Tribe, Respondent-authorities are at liberty to withdraw said benefits and restore the position as on 28.11.2000.

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20 Drawing parallel analogy to the case of

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A.P.Ramtekkar ( supra ) , petitioners contend that since they are in employment since years together, their services need to be

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wp299814.odt

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protected subject to imposition of certain other conditions, which the appointing authority may deem fit in the facts of the case. It would be open for the petitioners to claim entitlement to service protection and it would be open for the concerned authorities to consider the contentions of the petitioners in the light of submissions made before the appointing authority in reply to the notices issued to each of the petitioners. The appointing authority as well as State Government would be entitled to take appropriate decision in the matter in the light of the facts and submissions of the petitioners.

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21 In view of the reasons recorded above, we do not find the petitions presented by the petitioners deserve consideration.

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22 Writ Petitions are, as such, dismissed.

A.M. BADAR JUDGE

R.M.BORDE

JUDGE

adb/wp299814

Ashok Lahanu Rakh and Another v. the State of Maharashtra and Others

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Ashok Lahanu Rakh and Another v. the State of Maharashtra and Others

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