Vinayakrao Rangnathrao Muli, Lrs Padmabai through Gpa Gopalrao Ambadasrao Borikar Vs Pathri Municipal Council, Parbhani and Others

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wp-6433-2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO.6433 OF 2015

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VINAYKRAO RANGNATHRAO MULI (DIED)
L.Rs.

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SMT. PADMABAI W/o. VINAYAKRAO MULI..PETITIONER

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VERSUS

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PATHRI MUNICIPAL COUNCIL AND OTHERS..RESPONDENTS

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Mr. Gopalrao Ambadasrao Borikar, Party in Person.
Mr. M. P. Tripathi, Advocate for Respondent No.1.
Mr. S. G. Karlekar, AGP for Respondent No.4.

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CORAM : S. V. GANGAPURWALA &
 SUNIL K. KOTWAL, JJ.

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Reserved for Judgment on :18.07.2018.

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Judgment Pronounced on :24.08.2018.

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

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1.Petitioner is legal heir of the deceased
Vinayakrao Rangnathrao Muli. The deceased
Vinayakrao was dismissed from service on 18.08.1992
by the Chief Officer (Respondent No.3). The
petitioner assails the order of reversion of
deceased Vinayakrao dated 30.04.1992 and the
dismissal order dated 18.08.1992. The petitioner
also assails the order as passed in the Civil
Revision and claim consequential benefits, such as
arrears of salary, pension, family pension to the
petitioner.

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2.The case has a chequered history.

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3.The deceased Vinayakrao was appointed as a
Naka Jawan in octroi section of Municipal Council,
Pathri on 11.02.1965. The Municipal Council passed
Resolution giving promotion to the deceased
Vinayakrao as octroi clerk. The Resolution is
passed on 25.06.1979.

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4.It is the case of the petitioner that
respondent no.3 did not enforce the Resolution of
the Municipal Council. Therefore, deceased
Vinayakrao filed an Appeal before respondent no.4.
The respondent No.3 sought sanction for issuing
formal order of promotion. On or about 7.11.1988,
respondent No.4 informed respondent no.3 that there
is no need of formal sanction order from Respondent
No.4 for promoting deceased Vinayakrao. The
deceased Vinayakrao was promoted as an octroi clerk
under order of Respondent No.3 dated 13.01.1989
with effect from January 1989. The deceased
Vinayakrao filed an Appeal before Respondent No.4
claiming deemed date of promotion as an octroi
clerk with effect from 29.06.1979 with
consequential benefits. It is the case of the
petitioner that the Appeal filed by the petitioner
for grant of deemed date was never decided.
However, on 20.02.1992, respondent no.3 passed an
order dated 30.04.1992 reverting the petitioner to
the post of octroi peon. The deceased Vinayakrao
filed an Appeal/Revision before respondent no.4.

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On 11.05.1992, respondent no.4 granted stay to the
order of reversion and on 13.05.1992 the deceased
Vinayakrao requested respondent no.3 to allow him
to join as octroi clerk as per the order of stay
passed by respondent no.4. The respondent no.3 did
not allow him to join the post of octroi clerk and
asked him to join as octroi peon. On the ground
that deceased Vinayakrao did not join at the
reverted post, respondent no.3 passed an order on
18.08.1992, dismissing the deceased Vinayakrao from
service. The deceased Vinayakrao approached the
Collector requesting to allow him to join and set
aside the order of dismissal, but the Collector did
not pass any order. Thereafter, the deceased
Vinayakrao on 28.12.1992 approached to the Director
of Municipal Administration by filing an Appeal
under Section 79 of the Maharashtra Municipal Act,
1965. On 28.12.1992, Director informed deceased
Vinayakrao that the Appeal is sent to respondent
no.4 for disposal, however, no steps were taken for
disposing the Appeal by respondent no.4.
Thereafter, deceased Vinayakrao filed Civil Suit
bearing No.56/1993 alongwith an Application for
temporary injunction. The Civil Judge, Senior
Division, Parbhani, under order dated 31.12.1994
allowed temporary injunction application and
directed respondent nos.1 and 2 to allow deceased
Vinayakrao to join his duties as octroi clerk till
the disposal of the Suit.

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5.On or about 03.01.1995, deceased
Vinayakrao was allowed to join the duties as an
octroi clerk. The respondent nos.1 and 2
challenged the order passed on temporary injunction
application before the District Judge. The
District Judge granted stay to the injunction order
and on 31.01.1995. Pursuant thereto the deceased
Vinayakrao was directed to be removed from service.
The order of the District Judge was challenged
before the High Court, matter was remanded back to
the District Court. The District Judge allowed the
Miscellaneous Appeal. The order of temporary
injunction in favour of the deceased Vinayakrao was
set aside. The Civil Suit filed by the deceased
Vinayakrao was dismissed observing that the Suit is
not maintainable. In the meantime, during the
pendency of the Civil Suit, the deceased Vinayakrao
had also filed Writ Petition in this Court bearing
Writ Petition No.694/1994. The pursis was filed to
the effect that the petitioners would proceed with
the Civil Suit and the petition was disposed of as
withdrawn. Eventually, the Civil Suit was
dismissed, as being without jurisdiction.
Thereafter, the present Writ Petition is filed.

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6.The petitioners is represented by the
Power of Attorney Gopalrao Borikar. He was
referred to the committee. The committee opined
that he is competent to address the Court. The
Power of Attorney holder of the petitioner
submitted that the respondent no.4 never decided

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the Appeal filed by the petitioner against the
order of reversion, though, stay was granted.
According to him, the Resolution was passed by
Municipal Council on 25.06.1979 granting promotion
to deceased Vinayakrao. Howeve, the order was
passed by respondent no.3 only on 13.01.1989
promoting deceased Vinayakrao to the post of octroi
clerk. The Appeal filed by the deceased Vinayakrao
for giving deemed date of promotion was never
finally decided.

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7. Though, Respondent No.3 subsequently reverted the petitioner, the order of reversion was stayed by the Commissioner. In view of that, the reversion order could not have taken effect. The Commissioner never finally decided the Appeal filed by the deceased Vinayakrao against the order of reversion. The order of reversion, in fact was never served upon deceased Vinayakrao, as at that time he was serving at Head Quarter, Pathri and was thereafter, on leave. According to the petitioner, on 14.05.1984 the Director of Municipal Administration issued an order that the provisions of Maharashtra Civil Services Rules as modified from time to time and orders issued in that behalf by Government shall mutatis mutandis apply to the Municipal employees. The respondent no.3 being the appointing authority was competent to issue the promotion orders and there was no need for sanction from the Superior Authority. The respondent no.3 was wrongly representing respondent no.4 that

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proposal for approval to the promotion is sent to
respondent no.4, when infact the same was not
required. On wrong premise, the Respondent passed
an order reverting thedeceased Vinayakrao. The
earlier Writ Petition was withdrawn, as Civil Suit
was pending and it was decided to prosecute the
Civil Suit. As the Court has held that the Suit is
not maintainable and without jurisdiction, the
present Writ Petition is perfectly maintainable and
the filing of earlier Writ Petition would not
affect the present proceeding. The Suit was
eventually dismissed in the year 2014 and
thereafter, immediately the present Writ Petition
is filed. According to the Power of Attorney
holder, the act of respondent no.3 not allowing the
petitioner to join as a octroi clerk, inspite of
the order of stay to the reversion by the
Respondent No.4 is illegal. The deceased
Vinayakrao was qualified to be promoted as a octroi
clerk. The other persons promoted alongwith
deceased Vinayakrao were continued on the
promotional post, though their qualification was
non-metric. No notice was also issued prior to
reverting deceased Vinayakrao.

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8.It is further submitted that deceased
Vinayakrao was permanent employee. Without issuing
show cause notice and without conducting
departmental enquiry, an order of dismissal was
issued. The same is bad in law.

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9.Pursuant to the interim order of

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injunction, the petitioner was allowed to join as an octroi clerk after the order of dismissal dated 18.08.1992 was issued. After the injunction order was vacated, the deceased Vinayakrao was again removed from the service on 03.02.1995. It is submitted that the action is illegal and void ab initio, deceased Vinayakrao deserves to be reinstated as an octroi clerk with all consequential benefits. The deceased Vinayakrao died on 18.02.2007.

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10.Mr. Tripathi, learned counsel for the
Respondent-Municipal Council submits that the
present writ petition is not maintainable on
account of delay and latches. The petitioner is
challenging the orders passed in the year 1992 and
1994 in the instant petition filed in March 2015.
On the ground of delay and latches, the writ
petition deserves to be dismissed. The petitioner
had earlier filed Writ Petition No.694 of 1994. The
same came to be withdrawn. Withdrawal amounts to
dismissal. In view of that, the present writ
petition is not tenable. The learned counsel
relies on the judgment of the Apex Court in case of
Sarguja Transport Service Vs. State Transport
Appellate Tribunal, Madhya Pradesh, Gwalior
reported in 1987 (1) SCC 5.

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11.The learned counsel submits that though,
the promotion orders were issued, the Director of

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Municipal Administration had directed to reconsider
the promotion granted to deceased Vinayakrao, as he
did not posses minimum qualification of S.S.C.. In
view of that, he was reverted. He did not join the
reverted post and insisted for the post of octroi
clerk. Notices were given to him to join as an
octroi peon. The notices were issued on
08.05.1992, 11.05.1992, 14.05.1992, 15.06.1992,
23.06.1992 and 06.07.1992. As deceased Vinayakrao
inspite of various notices issued, did not join as
a octroi peon, eventually, he was dismissed on
18.08.1992. According to the learned counsel, the
absenteeism of deceased Vinayakrao is a deliberate
action. It amounts to abandonment of service and
as such the dismissal order is issued, the same is
legal and proper. The Appeal filed by deceased
Vinayakrao before the Standing Committee was also
dismissed on account of delay. Though, it is
submitted that deceased Vinayakrao filed an Appeal
to the Additional Commissioner against the
dismissal order, however, no communication is
received by the Municipal Council from the office
of Commissioner. The learned counsel submits that
considering all the aforesaid aspects, no
illegality is committed in dismissing deceased
Vinayakrao. Civil Suit filed by him is also
dismissed.

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12.We have considered the submissions
canvassed by the respective parties.

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13.It is a fact that the deceased Vinayakrao
was appointed as a Naka Peon/Jawan on 11.02.1965.
It also appears from the record placed before us
that Resolution was passed on 25.06.1979 by the
Municipal Council to promote deceased Vinayakrao as
a octroi clerk. On 13.01.1989 order is issued by
the Respondent No.3, promoting the deceased
Vinayakrao to the post of octroi clerk in the pay
scale of 250-7-285. The deceased Vinayakrao had
joined the promotional post of octroi clerk
immediately and was officiating as an octroi clerk.
In the meantime, deceased Vinayakrao had filed an
Appeal before respondent no.4 claiming deemed date
of promotion with effect from 25.06.1979. There is
no record to show that the said Appeal was
eventually decided. On or about 30.04.1992,
respondent no.3 reverted deceased Vinayakrao from
the post of octroi clerk to octroi peon. This
order of reversion was challenged by him by filing
Appeal/Revision before respondent no.4. The
respondent no.4 on or about 11.05.1992, stayed the
order of reversion. The respondent no.4 was the
competent authority to hear the Appeal against the
order of reversion. The Competent Authority had
granted stay to the order of reversion on
11.05.1992. In view of that, it is erroneous on
the part of the respondent no.3 to suggest that
though, numerous notices were issued to the
petitioner from 08.05.1992 to 06.07.1992 directing
deceased Vinayakrao to join as octroi peon, he did

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not join, as such, absented himself and made liable
for dismissal.

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14.On 11.05.1992 the order of reversion was
stayed. The respondent no.3 was duty bound to
allow deceased Vinayakrao to officiate on the post
of octroi clerk. The deceased Vinayakrao was all
the time making applications requesting respondent
no.3 to allow him to join as an octroi clerk, but
he was not allowed to join as octroi clerk and was
directed to join as octroi peon, the same would be
contrary to the order of the Appellate Authority in
an Appeal filed by the deceased Vinayakrao, wherein
stay was granted to the order of reversion. We
asked the respective parties as to the eventual
result of the Appeal filed by the deceased
Vinayakrao against the order of reversion, none of
the parties could point out the status of the same
or in what manner the Appeal concluded.

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15.The provisions of the Maharashtra Civil
Services Rules are made applicable to the employees
of Municipal Council as per the Notification dated
14.05.1984.

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16.The deceased Vinayakrao was permanent
employee, it cannot be said that he has absented
from duties. He was all the time requesting the
respondent no.3 to allow him to join as an octroi
clerk in view of the order of stay granted by
respondent no.4 to the order of reversion, but
respondent no.3 was insisting him to join as octroi

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peon against the order passed by the Appellate
Authority. It was certainly not the case of
abandonment of service. The deceased Vinayakrao
being permanent employee could not have been
removed from the service without departmental
enquiry. The respondent no.3 acted in high handed
manner. The show cause notice was also never
issued to the deceased Vinayakrao before dismissing
him from service. In such a scenario, the order of
dismissal was absolutely illegal. Even, the
reversion order was was without any notice to
deceased Vinayakrao, the same being illegal against
the principles of natural justice, certainly cannot
be sustained.

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17.The Respondents have raised technical
objection that the writ petition is not
maintainable, in view of the disposal of the
earlier Writ Petition bearing No.694 of 1994.

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18.It would be seen that, against the order
of dismissal deceased Vinayakrao had filed an Civil
suit, the same was pending and the Writ Petition
was filed. The petitioner filed a pursis to the
effect that he has decided to proceed with the
Civil Suit and as such withdrew the Writ Petition.
This Court allowed the petitioner to withdraw the
Writ Petition. It was with a view to prosecute the
Civil Suit the Writ Petition was withdrawn. In the
year 2014, eventually, the Civil Court came to the
conclusion that it has no jurisdiction to entertain

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such a Suit and dismissed the Suit for want of jurisdiction. In such contingencies, the disposal of earlier Writ Petition would certainly not be an impediment to entertain the present Writ Petition. The Apex Court in case of Sarguja Transport Service ( supra ) has held that withdrawal of petition under Article 226 without permission to institute fresh petition, would render the fresh petition on the same cause of action not maintainable.

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19.The earlier Writ Petition bearing
No.694/1994 was withdrawn on the premise that the
Civil Suit is filed, the same is pending and the
petitioner could not have prosecuted two remedies
at one and the same time so elected to prosecute
the Civil Suit. The Court allowed the writ
petition to be withdrawn on the basis of the pursis
filed by the petitioner. In purshis it was stated
that petitioner would prosecute the Civil Suit.
After long drawn proceedings, in the year 2014, the
Civil Court eventually decided that it has no
jurisdiction, as such, dismissed the Civil Suit for
want of jurisdiction. In such circumstances, it
cannot be said that the present petition would not
be maintainable. That would be against the
principles of Ubi Jus Ibi Remedium (where there is
a right there is a remedy). The earlier Civil Suit
is dismissed on the ground that Civil Court has no
jurisdiction. The earlier Writ Petition was
disposed of as withdrawn, with a view that the
petitioner would prosecute Civil Suit filed by him.

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In view of that, there would be no impediment to
entertain the present petition.

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20.In the result, the Writ Petition is
allowed. The order of reversion dated 30.04.1992
and the order of dismissal dated 18.08.1992 are
quashed and set aside. The deceased Vinayakrao
would attain the age of superannuation on
30.10.1996, as such, his services would be counted
till 30.10.1996 as an octroi clerk. He will be
notionally reinstated on the post of octroi clerk.
As deceased Vinayakrao did not actually work on the
said post, we are not inclined to grant back wages.
However, he would be entitled for retiral benefits
and pension, as is permissible in law. Eventually,
petitioner no.1 would also be entitled for family
pension, retiral benefits. The pension/family
pension shall be disbursed expeditiously,
preferably within (04) four months.

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21.Writ Petition is accordingly allowed in
the above terms. No costs.

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(SUNIL K. KOTWAL) (S. V. GANGAPURWALA) JUDGE JUDGE

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Digitally signed Devendra by Devendra Nandkumar Nandkumar Kale Kale Date: 2018.08.30 14:29:19 +0530

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Devendra/July-18

Vinayakrao Rangnathrao Muli, Lrs Padmabai through Gpa Gopalrao Ambadasrao Borikar v. Pathri Municipal Council, Parbhani and Others

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Vinayakrao Rangnathrao Muli, Lrs Padmabai through Gpa Gopalrao Ambadasrao Borikar v. Pathri Municipal Council, Parbhani and Others

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