1 WP 3467 Of 2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3467 of 2003 Mahadev Ganpat Pawar Age 60 yrs., Occu – Nil, Residing at Anant Sarita No.2, Block No.105, Krushna Township, Ambadi Road, Vasai (W), Dist. Thane. ..... Petitioner V/s. 1. The State of Maharashtra Through Secretary, Higher Education, Mantralaya, Mumbai – 400 032. 2. The Dy. Director, Higher Education, Greater Bombay, Dinshaw Wachha Road, Churchgate, Mumbai – 400 020. 3. The Principal, Elphinstone College, 156, Mahatma Gandhi Road, Fort, Mumbai – 400 032. ..... Respondents Mr.Vinod N. Tayade, for the petitioner. Mr.V.S.Gokhale, AGP, for respondent – State. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 27th JULY, 2010. ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) : 1. By way of this petition, the petitioner has challenged the 2 WP 3467 Of 2003 decision rendered by the Maharashtra Administrative Tribunal in Original Application No.40 of 2000. The Tribunal has rejected the claim of the petitioner for considering past service rendered by him before he was absorbed in the State Service for the purpose of pension and other benefits. 2. The petitioner was initially working as Hamal in the boys hostel of Elphinstone College, Mumbai. He was appointed as non- government employee somewhere in the year 1958. Subsequently, in the year 1978, the petitioner was absorbed in the Government service and was appointed as a Hamal. The petitioner retired on attaining the age of superannuation in the year 1997. The claim of the petitioner is that the earlier service which he had rendered as Hamal in Elphinstone College, should be calculated for the purpose of retiral benefits. In this connection, it is required to be noted that the petitioner was appointed in the Government service by a fresh appointment order and he was appointed in the lowest pay scale prescribed for the post of Hamal. The pay scale of the petitioner was not protected when he was absorbed/appointed in the government service. It is required to be noted that the petitioner had not raised any grievance about his fresh appointment, pay scale etc., at the time when he was appointed in the government service. The Tribunal in our view, has rightly found that prior 3 WP 3467 Of 2003 to 1978, the petitioner was not in government service. This fact as such, is not in dispute. The Tribunal has given cogent reasons for rejecting the application of the petitioner in this behalf. The relevant observations of the Tribunal in its judgment and order dated 21-11-2000, reads thus : 6. There is no dispute of the fact that prior to 1978 and 1986 respectively the applicants are not government employment. The applicants are not disputing the fact that they were absorbed in the government employment first time respectively on 28-02-1978 and 23-01-1986. It is not also in dispute that the applicants were working as Hamals in Boys Hostel not in of Elphinstone College, which is government college. It is also not in dispute that the job which the applicants were carrying out prior to their absorption in the government employment was one of the same even after their absorption in the government employment. In the background of the above facts, we will proceed to consider the claim of the present applicants. 7. It is very pertinent to note that before this petition the petitioners have never disputed the fact that they were in non government employment prior to 1978 and 1986 respectively. They had not taken any proceedings before any appropriate authority for getting a declaration that they were government employees since the inception of their employment. Even in the representation made by them, they have admitted the position that their earlier employment was a non government employment and that they were absorbed in the government employment for the first time in 1978 and 1986 and then their claim that their previous non government employment should be calculated for the purpose of pension is turn down by the government then it could not be said that the government has committed wrong. It is very pertinent to note that when they were absorbed in the government employment as Hamals, when were given the fresh appointment by giving them the basic pay in the pay scale of Hamals, the government had not protected their earlier pay they had made representation to protect their earlier pay and the 4 WP 3467 Of 2003 said representation was turn down by the government the applicants had not challenged the turning down of their representation of protecting their earlier pay and they accepted this position till attaining the age of superannuation. In these circumstances, it is obvious that the applicants had accepted that their appointment in the government service was a fresh and independent appointment since there appointments in the government service. If the government had accepted their representation to protect their pay and at the time of their appointment if the pay of the present applicants was fixed on the basis of counting the earlier service put in by them then in that case, there would have been some scope to take favourable view in favour of the applicant. But, as stated earlier, the applicants had never challenged by taking appropriate procedure before the competent authority the action of the government of giving them lowest pay in new pay scale in the pay scale of Hamal at the time of their essential appointment in the government it will have to be assumed that they had accepted the position that they were fresh and new employees in government service from the date they were absorbed in the government service. 3. Considering the aforesaid findings of the Tribunal, it cannot be said that the Tribunal has committed any error in rejecting the claim of the petitioner and the view taken by the Tribunal cannot be said to be contrary to law. We accordingly do not find any merit in the above petition, which is accordingly dismissed. Rule discharged. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )