1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1018 OF 1998 Shri. Arvind Govind Naik .. Petitioner -versus State of Maharashtra and ors .. Respondents. Mr. Dilip Bodke i/b C.H. Gangan, for the petitioner. Ms S.M. Dandekar, AGP for the state CORAM: D.K. DESHMUKH & R. G. KETKAR, JJ. DATED: 11th August, 2009. P.C. 1. The petitioner in this petition makes a grievance against Government Resolution which says that the maximum period of break in service that can be condoned for the purpose of pension is two years. The relevant facts are that the petitioner was in the service of 2 respondent No.5-School as a Teacher from 1.2.1964. Because of introduction of new pattern of education, the petitioner was found to be surplus and therefore, his services were terminated on 14.6.l976 and by order dated l.l0.l978, the petitioner was reappointed in the same school and thereafter the petitioner continued in service and retired on 30.4.1998. The petitioner in the year l996 made a grievance that in view of the Government Resolution dated l4.3.l975 the teachers who are found surplus because of introduction of new system of education, their services should not be terminated and an attempt should be made to absorb them in the same school or in a different school and there was really no break in service and even if it is assumed that there is break in service that break is liable to be condoned. 2. We have heard learned counsel appearing for the parties at length. Admittedly the petitioner was in service from 1.2.l964. The services of the petitioner were terminated with effect from l4.6.l976. The reason of termination of services of the petitioner was reduction in 3 work. It is possible that it may be really due to introduction of new pattern of eduction. It appears that by letter dated 11th March, l997, it was declared that the petitioner has been found surplus to the needs of the school. The petitioner relies on Government resolution dated l9th March, l976 which says that if teachers become surplus to the needs of the school because of introduction of new pattern of education, attempt should be made to absorb them in any other school but their services should not be terminated. Notice of termination, if any, served on such teaching and non teaching staff should be treated as null and void. Really speaking therefore, as the services of the petitioner were terminated on l4.6.l976, after Government Resolution dated l9.3.l976 was issued, the petitioner should have challenged the order terminating his services and should have asked for his continuance in the same school or in some other school on the same terms and conditions as if he has been absorbed in the same school or in some other school. The petitioner after his termination was 4 reappointed in the same school as teacher by order dated 22.9.1978. The appointment order reads thus:- “Your services were terminated with effect from l4.6.l976 (B.N.) due to reduction in total number of classes. You are appointed as Assistant Teacher from 01.l0.1978 in the clear vacancy of Shri K.H. Deshpande, who is due to retire with effect from 30.09.l978 after duty hours.” 3. It is clear from this order, that the petitioner was not being reappointed after cancellation of termination of his service in the same post in which he was working, but he was being appointed afresh in a vacancy which occurred on 30.9.l978. Therefore, this was a fresh appointment. It was possible for the petitioner to challenge the terms on which he was appointed because his appointment was in a fresh vacancy as fresh recruit without protecting his pay. But it appears that the petitioner kept silent till l9.6.l996, when for the first time he made a grievance that the termination of his service in 5 l976 and his reappointment w.e.f. l.l0.l978 were contrary to the Government Resolution. 4. In our opinion, after having not made any grievance against termination of services in the year l976, and after having not made any grievance immediately against order appointing him as a fresh candidate, the petitioner can not be heard after lapse of l8 years to make a grievance about termination order of l976 and appointment order of l978. The conduct of the petitioner of accepting appointment order of l978, without any demur or protest and his conduct of keeping silent for l8 years amounts to waiver of the rights of the petitioner conferred on him by the Government Resolution. There are remedies available to the petitioner under S.S. Code which was then in force for challenging the termination order as also conditions in the appointment order which were contrary to the Government resolution. The learned counsel for the petitioner disputed that he has not made any grievance till l996. He invited our attention to the contents of his 6 notice dated 19.6.1996 wherein it is stated that the petitioner made representations against appointment order. Therefore, we asked the learned counsel to show us a statement in the petition that after termination order in the year l976 or after appointment order in l978, there were representations made by the petitioner. The learned counsel for the petitioner could not point out any such statement. In the letter dated l9.6.l996, a vague statement was made, no date of the application or representation is mentioned, nor the authority to which representation was addressed is mentioned. A copy of representation is also not on record. In this background, therefore, in our opinion, it can not be said that there is no break in service of the petitioner and if there is break in the service, it is more than two years, the Government Resolution empowers the authorities to condone the break in service for a maximum period of two years. Noting was shown to us which will remotely indicate that the break period for more than two 2 years can be condoned in any way. Taking overall view of the matter, 7 in our opinion there is no substance in the petition. Petition fails. Rule is discharged with order as to costs. (D.K. DESHMUKH, J) (R.G. KETKAR, J)