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mgn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3550 OF 1998
Shri Nandkumar Rajaram Parve, )
Junior Grade Clerk, Home Department )
office of DGP, Old Council Hall, S.B. Marg )
Colaba, Mumbai. )..PETITIONER
Versus
1.The State of Maharashtra )
through the Additional Chief Secretary, )
Home Department, Mantralaya, Mumbai- )
400 032. )
2.The Director General of Police, Old )
Council Hall, S.B. Marg, Mumbai. )..RESPONDENTS
Mr. N.Y. Gupte, for the petitioner.
Mr.S.N. Bhosale, AGP for respondent Nos. 1 and 2.
CORAM: B. H. MARLAPALLE &
N.D. DESHPANDE, JJ.
DATE : 15TH& 17TH SEPTEMBER, 2010
ORAL JUDGMENT (PER B.H. MARLAPALLE, J.):
1. The petitioner on acquiring the qualification of XIIth standard pass
came to be appointed as a Junior Clerk on temporary basis with effect from
1st June, 1990 and he joined the office of the Director General of Police.
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He was a candidate sponsored by the Employment Exchange, but did not
go through the Maharashtra Public Service Commission examination.
Though his initial appointment was for three months, he continued upto 9th
May, 1996. On 17th February, 1995 the Government of Maharashtra took a
policy decision for regularization of temporarily appointed clerks in
various Government establishments located in Mumbai city between the
period from 10th January, 1990 to 31st December, 1992, in the post of
Clerk/Clerk-cum-Typist/Typist.
ig The M.P.S.C., on 27th March, 1995
conducted a special competitive examination for all these temporary
appointees appointed between 10th January, 1990 to 31st December, 1992.
The M.P.S.C. forwarded a list of 107 such appointees who were found to be
successful for regularization in Government service as Clerk/Clerk-cum-
Typist/Typist in different establishments located within the limits of
Greater Mumbai and the petitioner was amongst these 107 persons
recommended by the M.P.S.C. The State Government, therefore, issued a
resolution on 9th June, 1996 for the regularization of these 107 Clerk/Clerk-
cum-Typist/Typist/Typists and their names were set out in Schedule “A”
to the said G.R. From the office of the Director General of Police there
were three Clerks, whose services were sought to be regularized and the
name of the petitioner was at serial No.2. On 5th August, 1996 an order
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came to be passed from the office of the Director General of Police,
Mumbai for the regularization of all these three clerks i.e. Ms. P.R.
Chougule, Shri S.N. Katkar and Shri N.R. Parve (the present petitioner).
The said order also stated that the seniority of the three clerks so appointed
would be determined in terms of para.2 of the G.R. Dated 9th June, 1996
and the seniority list was published thereafter showing the petitioner at
serial No.3 and his initial date of appointment was shown as 1st June, 1990.
This publication of seniority clearly indicated that the petitioner was
treated to be in continuous service from 1st June, 1990. He was also
granted his annual increment of Rs.20/- as per the order dated 10th July,
1997. All of a sudden an order came to be issued on 12th November, 1997
thereby discontinuing the employment of the petitioner and without giving
the prescribed notice of one month, but was paid the salary of notice
period. This order came to be challenged before the Maharashtra
Administrative Tribunal under O.A. No.626 of 1997.
2. The State Government opposed the said O.A., by filing reply. The
Tribunal by its order dated 26th June, 1998 was pleased to dismiss the
Original Application and the interim relief granted earlier also was directed
to be vacated. While issuing notice, this Court by its order dated 28 th July,
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1998 directed the parties to maintain status quo and while admitting the
petition on 29th August, 1998 by way of interim relief the termination order
dated 12th November, 1997 came to be stayed. Consequently, the petitioner
has continued in service all along. The Tribunal set out the reasons in
paragraph 5 of its order for dismissal of the Original Application as
follows:-
“5. Although the petitioner has been appointed as a Clerk in an ad
hoc capacity from time to time his regular appointment commenced
only from 9.7.1996, the date on which the State Government issued
an order in this respect. Consequently the termination order has to
be considered as within 2 years of this date. It is also not disputed
that a criminal case has been filed against the petitioner under
Section 498, 304-B and 34 of the I.P.C. If on this ground the
petitioner was considered as unsuitable for retention in public
service, such a ground can be considered to be motive for the
petitioner’s discharge during the period of probation ad not so much
the foundation thereof. The position might have been different if the
petitioner had been confirmed in his post. As things stand the
impugned order is a non-stigmatic order discharging the petitioner
from service and in our opinion cannot be faulted.”
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3. The only question that arises for our consideration is whether the
order dated 12th November, 1997 which is an order of discharge simplicitor
from the regular employment of the Government is sustainable. The
Tribunal held that though the petitioner was appointed as a Clerk in ad hoc
capacity from time to time, his regular appointment commenced only from
9th July, 1996 and consequently he was required to be considered on
probation which period would end only after 2 years. The Tribunal also
noted that a criminal case was registered against the petitioner for the
offences punishable under Sections 498, 304-B read with 34 of the I.P.C.
The Tribunal further proceeded to consider as to whether the petitioner was
unfit to be retained in service when during the period of probation a
criminal case was registered against him. It noted that the impugned order
was non-stigmatic and the petitioner was not a confirmed employee and,
therefore, discharge simplicitor could not be faulted with.
4. In our opinion, the reasoning set out by the Tribunal is contrary to
the well established legal position in service jurisprudence. The petitioner
was not appointed on probation for the first time with effect from 9th July,
1996. As noted earlier on his regularization in service as per the G.R.
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dated 9th July, 1996 the seniority list was published and in the said seniority
list his service was counted from 1st June, 1990. The order dated 5th August,
1996 issued in favour of the petitioner clearly stated that pursuant to the
G.R. dated 9th June, 1996 his service was regularized from the said date.
The Tribunal fell in gross error in reading this order as an order of
appointment on probation. The petitioner was in the regular employment
of the Government and that being so he could not have been removed from
service by an order of discharge simplicitor.
ig The procedure as required
under the Maharashtra Civil Services (Discipline and Appeal) Rules 1979
was mandatory. Even by a non-stigmatic order a regular employee of the
State Government cannot be removed by way of discharge simplicitor,
unless it is an order of compulsory retirement in public interest.
5. Now coming to the criminal case registered against the petitioner i.e.
C.R. No.397 of 1997 on 14th August, 1997 is concerned, there is no dispute
that pursuant to the said complaint he came to be tried in Sessions Case No.
377 of 1998 and as per the judgment and order dated 9th December, 2004
passed by the learned Additional Sessions Judge he came to be acquitted.
There is no challenge to the said order of acquittal and hence the acquittal
order has received its finality. It is also not the case of the State
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Government that after the petitioner was reinstated pursuant to the stay
order passed by this Court, any adverse entry in the service record has
been made and that by itself indicates that his service record is satisfactory.
6. It is also required to be noted that in all the Government
establishments located within the Municipal Corporation of Greater
Mumbai area the Class III posts were required to be filled in through the
Maharashtra Public Service Commission. When the petitioner joined on 1st
June, 1990 he was not a candidate selected by the M.P.S.C., and he was
sponsored by the Employment Exchange. However, as per the policy
decision taken by the Government the petitioner appeared for the limited
competitive examination conducted by the M.P.S.C., and the M.P.S.C.,
recommended his name for regularization of service. That is how the G.R.
dated 9th July, 1996 was issued. Under these circumstances, the petitioner
could not be treated to be a back door entrant. After he was selected by the
M.P.S.C., the State Government decided to regularise him in service and
for the purpose of his seniority the initial date of appointment i.e. 1st June,
1990 was taken into consideration. For all these reasons, the view taken by
the Tribunal is grossly erroneous and if allowed to continue, it would result
in miscarriage of justice.
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7. In the premises this petition succeeds and the same is hereby
allowed. The impugned order passed by the Maharashtra Administrative
Tribunal is quashed and set aside. The order of termination dated 12th
November, 1997 is also quashed and set aside and consequently O.A. No.
626 of 1997 stands allowed. Rule made absolute accordingly. No order as
to costs.
(N.D. DESHPANDE, J.) (B. H. MARLAPALLE, J.)
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