1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 3077 OF 2009 Mr. PRAKASH GANPAT KULKARNI ) 193, Shukrawar Peth, Barvewada, ) PUNE 411 002 ) .. PETITIONER Vs. 1. STATE OF MAHARASHTRA ) through the Department of Higher and Technical Education, Mantralaya ) MUMBAI 400 032 .. ) 2. THE DIRECTOR OF HIGHER ) EDUCATION, Maharashtra State ) Pune 411 001. ) .. RESPONDENTS Mr. V. H. Kulkarni for the petitioner Mr. C. R. Sonawane, AGP 2 CORAM: SMT. RANJANA DESAI & A. A. SAYED, JJ. DATE ON WHICH THE ORDER RESERVED: 26th August, 2009 DATE ON WHICH THE ORDER PRONOUNCED:-15th September,2009 P.C. The petitioner served in the Design Division I. P. & W.R.I.C. Pune 1 of the Department of Higher and Technical Education till his resignation. In this petition filed under Article 226 of the Constitution of India, the petitioner has inter alia prayed that his service from 29/9/65 to 14/6/74 i.e. 8 years, 8 months and 14 days with the respondents be directed to be counted for his pension. The 1st respondent is the Department of Higher and Technical Education, Government of Maharashtra and the 2nd respondent is the Director of Higher Education, Maharashtra State. 2. The petitioner was appointed as a junior clerk on the establishment of the Executive Engineer, Designs Division, Water Resources Circle Pune 1 on 22/9/65. The petitioner’s case must be shortly stated. According to the petitioner after appointment he served in that office from 29/9/65 to 14/6/74 i.e. for 8 years eight 3 months and 14 days. The petitioner had applied for the post of lecturer in Economics in S.P.K. Mahavidyalaya, Savantwadi District, Ratnagiri on 5/3/74. He appeared for the interview and he was orally told that he had been selected for the post of Full Time Lecturer in Economics and that appointment order will follow. On the basis of this assurance by giving three months’ notice dated 11/4/74, the petitioner tendered his resignation. According to the petitioner the office order dated 12/7/74 annexed to the petition makes it clear that his resignation was accepted and he was relieved from duties from 13/6/74. 3. The petitioner was appointed as a Full Time Lecturer in S.P.K. College on 1/7/74. According to the petitioner when he went to join the college, the college authorities informed him that as S.P.K. College was transferred to Mumbai University because of the different rules about number of students per division and number of lecturers per subject in Mumbai University workload of the Full Time Lecturer in Economics is reduced and in the circumstances S.P.K. College could only appoint him as a Part Time Lecturer. The petitioner served as a Part Time Lecturer in S.P.K. College from 8/7/74 to 15/3/75 and in the next academic year he was selected as 4 Full Time Lecturer in Economics in K.J. Somayya College, Ahmednagar. He served there from 1/7/75 to 31/8/76. Thereafter the petitioner served with Shiv Chatrapati College Junnar, District Pune as Head of the Department of Economics from 1/9/76 to 31/7/05. According to the petitioner his continuous full time service with different colleges is of 30 years and 1 month. 4. Before the date of superannuation the petitioner submitted an application on 28/8/04 to the 2nd respondent i.e. the Director of Higher Education requesting him that breaks in his service be condoned as he has rendered 30 years service in college and he is retiring in July, 2005 after superannuation. The petitioner received a letter from the 2nd respondent stating that from the record it appears that the petitioner was appointed in S.P. K. College on full time basis. The petitioner was asked to explain how he accepted Part Time Lecturer’s job. By letter dated 5/7/05 the petitioner explained the position. According to the petitioner by letter dated 26/10/05 addressed to the 1st respondent, the 2nd respondent recommended the petitioner’s case. However, respondent 1 by letter dated 8/6/07 addressed to respondent 2, a copy of which was sent to the petitioner turned down the petitioner’s application on the ground that 5 when the petitioner came to know that his service was made part time he should have requested the Government to absorb him again in Government Service. The petitioner again sent a letter to the 1st respondent explaining his case. Respondent 1 vide letter dated 26/10/07 turned down the petitioner’s request. 5. According to the petitioner he obtained information under the Right to Information Act from the respondents which indicated that his contention was accepted and his case was recommended to the Finance Department. Yet the State Government refused to condone the breaks in his service. The petitioner has, therefore, filed this petition. 6. The petitioner Mr. Kulkarni has appeared in person. We have heard him. He submitted that the 1st respondent erred in not condoning the breaks in his service. He submitted that acceptance of part time service was forced on him, due to change in the workload. The situation was beyond his control. In fact the 1st respondent had forwarded his application to the Finance Department with the specific remark that the petitioner had fulfilled all conditions of Rule 48(1) of the Pension Rules 1982. Mr. Kulkarni submitted that 6 the case of the respondents that he could have requested the State Government to absorb him in Government service is absurd because the petitioner was already relieved from duty with effect from 13/6/74. Mr. Kulkarni submitted that in the circumstances necessary directions be given to the State Government to condone the breaks in his service for the purpose of pension. 7. Mr. Sonawane, learned AGP on the other hand submitted that the petitioner was informed by S.P.K. College that he was being appointed as Part Time Lecturer. At that stage he had opportunity to request the State Government that, he may be allowed to work with the State Government. He chose not to do so. Mr. Sonawane submitted that as per G.R. dated 12/8/99, the period during which the petitioner worked as a Part Time Lecturer cannot be condoned. In support of his submissions Mr. Sonawane relied on the affidavits filed by Mr. Ashoke Sorate, Superintendent to Joint Director of Higher Education (Pune). 8. In order to appreciate the contentions raised in this petition it is necessary to see the relevant Government Resolutions and the relevant provisions of the Maharashtra Civil Services (Pension) Rules 7 1982. As per G.R. dated 7/3/86, if the total break in the service is more than one year Government of Maharashtra, Higher & Technical Department, Mumbai is the Competent Authority to condone the break. Rule 48(1) (a) of the Maharashtra Civil Services (Pension) Rules 1982, is important. It reads thus; 48. Condonation of interruption in service. (1) The appointing authority may, by order, condone interruptions in the service of a Government Servant. Provided that - a) the interruptions have been caused by reasons beyond the control of the Government servant; 9. As per G.R. dated 12/8/99, part time service can be treated as break if part time service is occurred due to reduction in classes or division of college. 10. The petitioner’s case needs to be examined against the background of the above Government Resolutions and rule. The petitioner worked in the office of the Executive Engineer, I.P. & WRI 8 Circle, Pune for 8 years 8 months and 14 days. He tendered his resignation by giving 3 months’ notice and forfeited Rs.186.65 as part payment of notice period vide Poona Treasury Chalan No. 58 dated 5/6/74 and was relieved of his duties with effect from 13/6/74. However, his resignation was accepted by S.E.W.R.I. Circle Pune 1 vide his Office Order No. 254 issued under No. 1330 dated 12/7/74 because the three months notice period expired on that day. This is evident from Annexure 4 to the petition which is service record signed by the Executive Engineer Designs Division I.P & W R I C Pune 1. This is also stated by Shri Sorate Superintendent to Joint Director of Higher Education Pune. There is no rejoinder to this affidavit. The case of the petitioner that his resignation was accepted and he was relieved from duties from 13/6/74 is, therefore, not correct. 11. According to the petitioner he had applied for the post of lecturer in Economics in S.P.K. College, Sawantwadi on 5/3/74. He went for interview in April, 1974. He was orally informed that he was selected for the post of Full Time Lecturer in Economics and the appointment letter will follow. On the basis of this assurance he had tendered his resignation to the Superintending Engineer I.P & W.R.I 9 Circle Pune. S.P.K. College informed him vide its letter dated 27/5/74 that he had been appointed as a Full Time Lecturer, but when he went to join the college on 1/7/74 he was informed that due to reduction of workload of the Full Time Lecturer he would be given appointment as Part Time Lecturer. According to the petitioner, as he was already relieved from State Government Service on 13/6/74 he could not joint State Government service and hence he accepted part time service in the S.P.K. College. 12. We have already noted that the petitioner’s resignation was accepted by the State Government on 12/7/74 and not on 13/6/74. There is nothing on the record to suggest that the petitioner was appointed as a Full Time Lecturer by the S.P.K. College. The appointment order does not say so. There is also nothing on record to establish that because workload of the Full Time Lecturer in Economics was reduced, the S.P.K. College had appointed him on part time basis. The appointment order at Annexure AA8 merely states that the petitioner has been appointed as a Part Time Lecturer. It does not give reasons for the petitioner’s appointment as Part Time Lecturer. The petitioner cannot, therefore, take benefit of G.R. dated 12/8/99. If the petitioner was told on 1/7/74 that he was being 10 appointed as Part Time Lecturer, he should have withdrawn his resignation because resignation was accepted only on 12/7/74. It cannot be said, therefore, that in this case the break was caused by reason beyond the control of the petitioner. Besides for condonation of break concurrence of Finance Department is necessary. Finance Department also rejected the petitioner’s case. Relevant noting of the Finance Department is annexed to the affidavit filed by Shri Sorate Superintendent to Joint Director of Higher Education (Pune). The stand of the respondents as reflected in the affidavit of Shri Sorate appears to be correct. 13. In our opinion, the petitioner’s request is rightly rejected. There is no merit in the writ petition. Hence it is rejected. (Smt. Ranjana Desai, J.) (A. A. Sayed, J.) 11