(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 3906 OF 1994 Vasant Kanhuji Gulamkar, Age : 48 years, Occupation : Service, R/o. Dhangar Galli (Lane), Shevgaon, Taluka : Shevgaon, District : Ahmednagar. .. Petitioner. versus 1. The State of Maharashtra. 2. The Divisional Joint Registrar, Cooperative Societies, Nashik Division, Nashik. 3. The District Deputy Registrar, Cooperative Societies, Ahmednagar. 4. The Chief Executive Officer, Ahmednagar District Supervision Cooperative Society Ltd., Ahmednagar. .. Respondents. ....................... (2) Mr. A.P. Chawre, Advocate, for the petitioner. Mr. N.B. Patil, Assistant Government Pleader, for respondent nos.1 to 3. Mr. S.D. Pokharkar, Advocate, for respondent no.4 (Absent). ........................ CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 11TH JUNE 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. By way of present petition, the petitioner prays for a writ of mandamus directing the respondent no.4 to continue the services of the petitioner as Secretary from 30th September 1978 and also to pay him full back wages in accordance with the prescribed pay scale. 2. The petitioner was working with the respondent no.4. In the year 1978, the petitioner was Secretary of respondent no. 4. The services of the petitioner were terminated vide order dated 30th September 1978, after holding departmental inquiry against him. It further appears that the respondent no.4 had also lodged criminal prosecution against the petitioner, which (3) culminated into conviction of the petitioner vide judgment and order dated 10th January 1990. Being aggrieved thereby, appeal was preferred. The same was allowed vide judgment and order dated 17th September 1993 and conviction and sentence came to be set aside. 3. The petitioner, after the order passed by the learned Additional Sessions Judge, made an application to the respondent no.4 for reinstating him in service with continuity and payment of back wages. It appears that vide order dated 25th January 1994, the Managing Committee of respondent no.4 / Society considered the representation of the petitioner and resolved to appoint the petitioner afresh without continuity of service and without back wages. Accordingly, an order dated 23rd March 1994 came to be issued by the respondent no.4. After the petitioner was given fresh appointment and after he joined services with respondent no.4, the petitioner has approached this court for the reliefs aforesaid. 4. Mr. A.P. Chawre, learned Counsel appearing for the petitioner, submits that the respondent no.4 ought to have granted continuity in service along with back wages to the petitioner. He firstly submits that the departmental proceedings were ex parte and, as such, the termination was illegal. He further submits that since the order of conviction against the (4) petitioner was set aside by the appellate court, the reason for termination no longer existed and, as such, the petitioner was entitled for continuity in service with back wages. 5. It can be seen that the termination of the petitioner is not on account of his conviction in criminal case, but the termination is after holding departmental proceedings against the petitioner. Though the petitioner submits that the departmental proceedings were ex parte, the petitioner has not taken any steps to challenge the said departmental proceedings or the consequential termination order. The petitioner, after a period of 16 years, cannot be heard for the first time, in the present petition, that the departmental proceedings were ex parte and, as such, termination is illegal. 6. There is another aspect of the matter. While giging fresh appointment to the petitioner, the respondent no.4 has imposed certain conditions. The petitioner has unequivocally accepted those conditions in writing. He has agreed that he would not claim continuity in service. He has further agreed that he would not claim any back wages for the period during his earlier termination till his fresh appointment. Perusal of the said document would reveal that the petitioner has unequivocally agreed for a fresh contract of employment with the respondent no.4. Now the petitioner wants to contend that in spite of said (5) undertaking, he should be granted continuity in service and back wages. The petitioner cannot be permitted to blow hot and cold at the same time. 7. In this background, we do not find that any case is made out for grant of relief, as claimed. The petition is devoid of any merit. 8. In the result, the petition is dismissed. Rule is discharged. There shall be no order as to costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp3906