1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5432 OF 2005 1.The State of Maharashtra & anr. ...Petitioners. vs. Shri.Madhukar Gundappa Ghewari. ...Respondent. --- Mr.C.R.Sonawane, AGP for Petitioners. Mr.N.V.Bandiwadekar, for Respondent. CORAM: D.K.DESHMUKH & R.Y.GANOO, JJ. DATED: 25th June, 2008. P.C.:- 1. By this petition, the petitioners challenge the order passed by the Maharashtra Administrative Tribunal dated 25.2.2005 in Original application no.798 of 2004. The facts that are relevant are that the respondent was working as a clerk in the service of the Collector, Kolhapur and was deputed to work at 2 Shree Karveer Niwas Devasthan, Kolhapur. It appears that at that time the management of the temple was with the Collector and therefore, the respondent was in the employment of the State. Thereafter, in the year 1969 a public trust was formed and the management of the temple was handed over to the public trust. The respondent alongwith some other employees was sent on deputation by order dated 14.5.1969 with effect from 14.5.1969, to the public trust. It appears that thereafter on 30.4.1986 the respondent exercised an option and opted to be absorbed in the service of Devasthan i.e. Public trust. It appears that he had change of mind, in the year 1995 he made an application that he should be taken back in the service of the Government. The Government, it appears, did not agree with this and therefore, the respondent approached the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal granted his petition by order dated 25.2.2005. Perusal of the order shows that the Maharashtra Administrative Tribunal has not given on its own reasons for granting the petition of the respondent, all that it has done is that it has relied on the judgment of a learned Single Judge of this Court delivered in the Second appeal no.1098 of 3 1972 arising out of Regular Civil suit no.800 of 1968 decided on 19th & 20th March,1979. We have gone through that judgment. From that judgment it appears that a Civil suit was filed in the year 1968 by a person who was working in the Devasthan claiming a decree of declaration that he is a government servant. It appears that the Court decided the appeal in favour of the plaintiff in view of the fact that there was no separate Devasthan Mandal in exsitence in the year 1968, the management of the Devasthan was controlled by the Collector, several employees working in the Devasthan were the employees of the Collector. The Court held that the plaintiff in that suit was a Government servant. Perusal of the judgment of this Court in the Second appeal shows that the developments took place after the year 1968 viz. Formation of Public Trust and handing over of the management of Devasthan to the public trust, sending of employees of the Government on deputation to the public trust, exercise of option by the employees for absorption in the service of the public trust, which were relevant aspects for deciding whether the petitioner can be taken back in the Government service, did not fall for consideration of High Court when it has decided the second appeal. 4 2. In our opinion, merely relying on the observations of the High Court in the judgment in the Second appeal, the petition of the petitioner could not have been allowed by the Maharashtra Administrative Tribunal. It was for the Tribunal to find out what is the impact of the respondent exercising his option for being absorbed in the service of the public trust and whether thereafter he can claim to come back as a matter of right to the Government service. It is, thus, obvious that the Tribunal while deciding the original application has not considered the material aspect of the matter. In this view of the matter, therefore, in our opinion, the following order would meet the ends of justice:- The order passed by the Maharashtra Administrative Tribunal in Original application no.798 of 2004 dated 25.2.2005 is set aside. Original application no.798 of 2004 is remitted back to the Maharashtra Administrative Tribunal for consideration and decision in accordance with law and in the light of the observations made above. Considering that the original application was filed in the year 2004, it will be appropriate 5 that the Maharashtra Administrative Tribunal decides the original application as expeditiously as possible in any case within a period of three months from the date of which the writ of this order is received by the Maharashtra Administrative Tribunal. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH, J.) (R.Y.GANOO,J.) ---