Allowed

Sanjay Dhondu Patil v. the State of Maharashtra and Another

Bombay HC8 Dec 2016WP/1379/2015

Case brief

AI extract

What is this about?

The High Court set aside the Administrative Tribunal's order dismissing the petitioner's request to be reinstated. It held that a relief application mislabeled as resignation, made to join another government post validly, does not attract forfeiture of past service under pension rules. The petitioner was restored to his original post without back wages.

What did the court decide?

The impugned order and Tribunal order set aside; respondents to restore petitioner on original post without back wages.

Sanjay Dhondu Patil Vs the State of… — Pension and Retirement Benefits | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 WRIT PETITION NO.1379/2015

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Sanjay S/o Dhondu Patil,
Age:46 years,Occu.Service
(as Warden,Govt.Hostel for
B.C.Students,Raver)
Plot No.12,Gut No.106,
Mayur Housing Soicety,
Nimkhedi Shivar,
Jalgaon.

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...Petitioner..

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Versus

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1] The State of Maharashtra
Through its Secretary,
General Administration Dept.,
M.S.Mantralaya,Mumbai-32.
2] The Superintendent of Police,
Jalgaon District, Jalgaon.

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...Respondents..

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 .....

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Shri A.S. Deshmukh, Advocate for petitioner.
Smt.P.V. Diggikar, AGP for respondent nos.1 & 2.

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 .....

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CORAM: S.V. GANGAPURWALA &
 K.L. WADANE, JJ.

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DATE: 08.12.2016

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ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :

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1]Heard learned counsel for the parties. Rule.
Rule made returnable forthwith and with the consent of

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learned counsel for the parties, the petition is taken up
for final disposal at this stage.

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Maharashtra Administrative Tribunal dismissing his
Original Application whereby the petitioner had prayed to
quash and set aside the communication dated 6.10.2012 by

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virtue of which the request made by the petitioner to
take back in the service of Police Constable was turned
down.

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3]The petitioner was appointed as a Police
Constable on or about 5.5.2005. The petitioner had
continuously worked on the said post for about six and
half years. The petitioner came across an advertisement
issued by the Directorate of Social Welfare for the post
of Warden. The petitioner had applied for the said post.
He was selected and was appointed as a Warden on
24.7.2012. The petitioner, on receipt of the appointment
order, filed an application / resignation letter dated
19.7.2012. The same was accepted and the petitioner was
relieved.

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4]It appears that within a month or so, the Social
Welfare Department issued notice to the petitioner to the

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effect that the petitioner was ineligible to apply and be
considered for the post of Warden from the ex-serviceman
category as earlier while being recruited as a Constable
in the Police Department, the petitioner had already
taken the benefit of an ex-serviceman category. The
petitioner thereafter again applied to the Police

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Department to take him back in service. The same was
rejected. The petitioner had moved the Maharashtra
Administrative Tribunal by filing Original Application.
The same is dismissed.

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petitioner submits that the petitioner while discharging
his duties as a Constable was working on a substantive

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post. In view of Rule 20 of the Maharashtra Civil
Services (General Conditions of Service) Rules, the
petitioner had lien on the said post and the said lien
continues till he acquires permanency or lien on the post

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on which he is subsequently selected. The word

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“resignation” in his application given to the Police

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Department to relieve him from service was stated by
mistake, but if the contents of the said letter are
perused, it would show that the petitioner was seeking to

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be relieved from his post so as to join the post with the
Social Welfare Department under the State Government.
The learned counsel submits that the said letter be
construed as a letter given to relieve the petitioner so
as to join another Government post. The learned counsel
submits that the reliance placed by the respondents on
Rule 46(1) of the Maharashtra Civil Services (Pension)
Rules is mis-placed. The said provision of forfeiture of
service on resignation arises only if the person is not
joining other Government post. According to the learned

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counsel, the Tribunal has wrongly interpreted Rule 46 of
the Maharashtra Civil Services (Pension) Rules and Rule
20 of the Maharashtra Civil Services (General Conditions
of Service) Rules. According to the learned counsel, the
petitioner had served with the Army for 16 years at
difficult postings. The post on which the petitioner

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was subsequently appointed with the Social Welfare
Department could not be said to be a substantive post
inasmuch as the petitioner had not secured lien on the
said post and till the time, the petitioner gets right of
lien on the subsequently selected post, the lien on the
original post remains in force.

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6]Learned AGP submits that the letter given by the
petitioner for being relieved from service was a clear
resignation letter. Acting upon the said resignation
letter, the petitioner was relieved from the service and
the formalities subsequent to resignation from the post
were followed. Now the petitioner cannot turn around and

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contend otherwise. The learned AGP submits that the
application filed by the petitioner was not in consonance
with the Government resolution dated 2.12.1997. The said

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Government resolution states that if another Government

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post is to be joined, it is not necessary for the person
to resign. The learned AGP further relies on the
Government resolution dated 30.12.1991 to contend that

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the person can take the benefit of ex-serviceman category
only once and that benefit the petitioner had already
taken when he had joined the service with the Police

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Department. Second time the petitioner could not have
availed the benefit of ex-serviceman category. The

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learned AGP further submits that in view of Rule 46(1) of
the Maharashtra Civil Services (Pension) Rules, once

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resignation has been given, the same entails forfeiture
of earlier service. The learned AGP also relies on Rule

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46 (5) of the said Pension Rules to contend that the
petitioner would not be entitled for any relief.

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7]WE have considered the submissions canvassed by
the learned counsel for the respective parties so also
have perused the order of the Tribunal and the documents
placed on record.

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8]It is not disputed that the petitioner had

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become permanent while serving with the Police Department
on the post of Constable having served with them for six
and half years. The appointment of the petitioner was on

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a substantive post is also not a disputed fact. It is

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also not disputed that the petitioner through proper
channel had applied pursuant to the advertisement issued

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by the Social Welfare Department for the post of Warden
while discharging the duties as a Constable with the
Police Department. It is also a fact that the petitioner

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was selected for the post of Warden on or about
24.7.2012. Pursuant thereto, the petitioner had also

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given an application with the Police Department for

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relieving him from service. The moot question is

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construing the said application dated 27.7.2012. The
subject mentioned in the said letter is about

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resignation. The contents of the letter state that for
appearing in the selection process for the post of Warden
issued by the Social Welfare Department, he had sought
permission of the authorities. He has been selected.
As such, for joining the said services, he may be
relieved.

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9]Reading Rule 20 of the Maharashtra Civil
Services (General Conditions of Service) Rules, it is
abundantly clear that a person holding a substantive post
acquires a lien till he is appointed on another permanent

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post. In the present case, the petitioner had worked

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with the Social Welfare Department, however, as
submitted, he was never confirmed in service nor his
probation period was shown to have been completed. Till
the petitioner is confirmed with the Social Welfare
Department, his lien on the original post would subsist.

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10]Rules 46(2) and 46(5) of the Maharashtra Civil
Services (Pension) Rules read thus:

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"46. Forfeiture of service on resignation :

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(2)A resignation shall not entail forfeiture
of past service if it has been submitted to take
up, with proper permission, another appointment,
whether temporary or permanent under the

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Government where service qualifies.

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(5) Request for taking him back in service
shall not be accepted by the appointing
authority where a Government servant resigns his
service or post with a view to taking up an
appointment in or under a private commercial
company or in or under a corporation or company
wholly or substantially owned or controlled by
the Government or in or under a body controlled
or financed by the Government."

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11]Reading these rules conjointly, it is manifest
that a resignation shall not entail forfeiture of past
service if it has been submitted to take up, with proper
permission, another appointment, whether temporary or
permanent, under the Government where service qualifies.
The petitioner with the proper permission had taken up
the employment with another department under the
Government itself. In view of that, even the contention
of the respondents that resignation would entail
forfeiture of the past service would not hold ground.

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12]Be that as it may. We would be more guided with
the contents of the letter issued by the petitioner
asking the department to relieve him. The word
"resignation" appearing in the subject in the said letter

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appears to be a misnomer. In fact, from the tenor of the
letter itself, it appears that the petitioner had
intended to say that he be relieved so as to join the
services with the Social Welfare Department under the
State Government itself. The benefit of lien as such
ought to be extended to the petitioner. The literal word

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used in the subject could not be read in isolation vis-a-
vis the contents of the letter. The letter in its
entirety will have to be read so as to construe the
intention of the person writing the said letter to the
authority. Going through the contents of the letter, the
only irresistible conclusion that can be drawn is that

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the petitioner wanted to convey that he has got

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employment with the Social Welfare Department under the
Maharashtra State and wants to join the said post, as
such should be relieved. We would give the benefit to
the petitioner.

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13]In the light of the above, the impugned order
dated 6.10.2012 issued by the respondent - authorities to
the petitioner relying upon Rule 46(1) of the Maharashtra
Civil Services (Pension) Rules so also the order of the
Tribunal is set aside. The respondents shall give the

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benefit of Rules 20 to 22 of the Maharashtra Civil

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Services (General Conditions of Service) Rules to the
petitioner and shall restore the petitioner on his
original post, however, without any back wages. The
petitioner would be entitled for continuity in service.

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14]Rule is accordingly made absolute in above
terms. No costs.

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ndk/ c8121617.doc

Sanjay Dhondu Patil v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Sanjay Dhondu Patil v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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