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2019 Supreme(Bom) 1533
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
SUNIL P DESHMUKH, S.M. GAVHANE, JJ.
Sanchareshwar Madhavrao Kadam - Appellant
Versus
Principal District Judge, Parbhani - Respondent
Writ Petition No. 10978 of 2017
Decided On : 21-08-2019
Advocate Appeared:
S.M. Deshmukh, Adv., C.K. Shinde, Adv., P.N. Kutti, Adv.
Headnote:
Constitution of India - articles 226 and 227 – Claim of compensation – Removed from service – Condo nation of delay - There is no dispute that on 05.10.2010 initially petitioner joined services as junior clerk on the establishment of Civil Judge, Junior Division, Degloor, Dist. Nanded. In 2013 recruitment process was initiated by all districts through out State of Maharashtra. As the parents of the petitioner were old aged and looking to their health, after taking permission and no objection from the Principal District Judge, Nanded, petitioner applied for the post of junior clerk in Parbhani district. The Principal District Judge, Parbhani selected in all 19 candidates and the petitioner was at serial No.8 in the said select/wait list. The Principal District Judge, Parbhani was then pleased to appoint the petitioner as a Junior Clerk on the establishment of Civil Judge, Junior Division, Jintur – Held, In the present case, from the admitted facts referred earlier, it is clear that after selection of the petitioner as a Junior Clerk on the establishment of the District Court, Parbhani, he was relieved by the Civil Judge, Junior Division, Degloor, Dist. Nanded and then he joined in the Court of Civil Judge, Junior Division, Jintur as a Junior Clerk, as per order dated 30.06.2015. Thereafter, his services were terminated with effect from 30.09.2015 by the Principal District Judge, Parbhani by order dated 30.09.2015, due to disbandment of the Courts and particularly the Court of Joint Civil Judge, Junior Division, Jintur. As such, said termination of the petitioner was due to retrenchment. Said termination does not amount to dismissal or removal of the petitioner from service. Admittedly, thereafter by order dated 05.11.2015, the petitioner was appointed as a Junior Clerk on adhoc basis in the Court of Civil Judge, Senior Division, Parbhani and then he was transferred to the Court of Civil Judge, Junior Division, Gangakhed and he is working there since 26.04.2016. Since the termination of the petitioner from 30.09.2015 to 05.11.2015 was due to retrenchment and it was not dismissal or removal, interruption in service caused during the said period i.e. 01.10.2015 to 06.11.2015 can be said to be caused by reason beyond control of the petitioner and therefore said interruption can be condoned, since said interruption was not caused by resignation, dismissal or removal from service, in view of Rule 48(1)(a) of the Maharashtra Civil Services (Pension) Rules, for the purpose of pension, as applicable. Similarly, since the termination of the petitioner for the aforesaid period was not for dismissal or removal and his termination was simplicitor termination, there cannot be forfeiture of his past service as per Rule 45. Once it is held that the petitioner is entitled to condone interruption in service for the period referred to above, his pay, which he was drawing on the date of termination i.e. 30.09.2015 has to be protected. In the above circumstances, decision in the case of Dashrath Gorme (Supra) relied upon by the learned Counsel for respondent Nos.1 and 2 cannot be suitably made applicable to the present case to state that petitioner is not entitled to condonation of break in service in view of Rule 48, as the facts of the present case are different from the said decision – Petition allowed
JUDGMENT :
S. M. GAVHANE, J.
1. Rule. Rule made returnable forthwith. Heard finally with the consent for the parties.
2. By this petition under articles 226 and 227 of the Constitution of India, the petitioner Junior Clerk on the establishment of Civil Judge, Junior Division, Gangakhed, Dist. Parbhani, has claimed following reliefs in terms of prayer clauses (B) and (C):-
(B) The order passed by the respondents 1 and 2 respectively in representation dated 07-07-2016 and appeal dated 07-01-2017 may kindly be quashed and set aside, by issuing writ of certiorari, mandamus or any other appropriate writ, order or directions in the like nature.
(C) The break/interruption caused technically in the service of petitioner may kindly be condoned & appropriate directions may kindly be issued to the respondents to protect the pay of petitioner retrospectively.
3. There is no dispute that on 05.10.2010 initially petitioner joined services as junior clerk on the establishment of Civil Judge, Junior Division, Degloor, Dist. Nanded. In 2013 recruitment process was initiated by all districts through out State of Maharashtra. As the parents of the petitioner were old aged and looking to their health, after taking permission and no objection from the Principal District Judge, Nanded, petitioner applied for the post of junior clerk in Parbhani district. The Principal District Judge, Parbhani selected in all 19 candidates and the petitioner was at serial No.8 in the said select/wait list. The Principal District Judge, Parbhani was then pleased to appoint the petitioner as a Junior Clerk on the establishment of Civil Judge, Junior Division, Jintur.
4. Further, there is no dispute that thereafter, the Principal District Judge, Nanded by its order relieved the petitioner and then the petitioner joined on the establishment of the Civil Judge, Junior Division, Jintur on 07.07.2015 and worked there up to 30.09.2015. However, due to reduction in strength of courts the petitioner was terminated by the Principal District Judge, Parbhani with effect from 30.09.2015. Subsequently, the petitioner was again accommodated as a Junior Clerk and was posted on the establishment of Civil Judge, Senior Division, Parbhani on 07.11.2015. In April 2016, he was again transferred and posted as Junior Clerk on the establishment of Civil Judge, Junior Division, Gangakhed and since 26.04.2016, he is working on the said establishment.
5. Petitioner contends that due to above technical eventualities, there is break in his service from 01.10.2015 to 06.11.2015. Said break in service is of just 1 month and 6 days. As a result of this, the petitioner has lost his service from 05.10.2010 to 30.09.2015 i.e. (4 years 11 months and 25 days) and his pay after subsequent absorption was reduced at initial stage of the time scale.
6. It is in the aforesaid circumstances, the petitioner had submitted representation dated 07.07.2016 before the Principal District Judge, Parbhani, requesting to condone the break in his service and to provide pay protection. Unfortunately, it came to be rejected on 03.08.2016. Thereafter, the petitioner availed remedy of administrative appeal under Rule 17 of Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, by submitting representation/appeal dated 07-01-2017 before the High Court. But, it also came to be rejected, as per letter dated 07.03.2017 of Registrar (Adm.), High Court of Bombay, Bench at Aurangabad. Moreover, vide letter dated 26.04.2017 of the Registrar (Administration) of High Court of Judicature of Bombay, Bench at Aurangabad, the petitioner was informed about the inability to provide him reasons behind rejection of his administrative appeal and his application in this respect was rejected and filed. Therefore, the petitioner is before this Court for the reliefs stated earlier, as there is no other efficacious and effective remedy available to him.
7. Mr. Deshmukh, learned counsel for the petitioner submitted that the respondents do not dispute
