SUDHAKAR BABURAO BODKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner was appointed as Sub-Inspector in the Prohibition and Excise Department of the Government of Maharashtra in the year 1965. He completed necessary training and appeared for the departmental examination for the first time in the year 1966 but failed. He again appeared for the same departmental examination for the second time in the year 1967 but once again failed. He was, therefore, issued a show cause notice on May 30, 1968 as to why his services should not be terminated. Ultimately, his services came to be terminated by an order dated a August 22, 1968. He made a representation against the order of termination on September 13, 1968 which representation was rejected. He thereafter appeared for the departmental examination for the third time on October 24, 1968 but again failed. As a consequence, a second termination order was passed on March 12, 1969. He was given the last and final chance to pass the departmental examination for which he appeared but failed on July 30, 1969. Thereafter, the third and final termination order of his services was passed on January 22, 1970. He made a representation against the termination order on February 25, 1970. His representation was rejected by the Government on May 29, 1970. He went on making various representations to different authorities of the Government From May 29, 1970 to June 14, 1978. Finally, he was reinstated in the services by an order dated February 1, 1979 (Exh. C to the petition ). Thereafter he preferred an appeal to the Honble Chief Minister on September 10, 1981 that although he was reinstated it was mentioned in the same letter dated February 1, 1979 that it was a fresh appointment which was not proper and that he should be deemed to be in continuous service. He also made an appeal to the Honble Minister for Prohibition and Excise of the State Government on March 7, 1984 contending that his so called fresh appointment vide letter dated February 1, 1979 was not proper and that he should be deemed in the continuous service. He accordingly claimed seniority. However, by a letter dated May 25, 1984 his request for seniority was rejected by the Commissioner of Prohibition and Excise. The petitioner, therefore, gave a notice on June 11, 1984 to the Commissioner of Prohibition and Excise, through his advocate, praying for justice but to no avail. Thereafter, he filed the present writ petition on December 10, 1984 under Article 226 of the Constitution praying that a writ of mandamus or any other appropriate writ, order or direction be issued to the State Government and the Commissioner of Prohibition and Excise directing them to give him the seniority with effect from his initial appointment in the year 1965 to the post of Sub-Inspector with all consequential benefits.

(2.) THE petition was resisted by the second respondent (Commissioner of Prohibition and Excise ). A return in that behalf is filed by Pandharinath Babaji Savant, Deputy Commissioner of Prohibition and Excise. It is contended that as per the departmental examination rules, the petitioner was required to pass the departmental examination within three years unless a special sanction of the Government of Maharashtra was obtained for an additional chance. The petitioner was allowed to appear for the departmental examination in October 1966, in October 1967 and in October 1968. However, he could not get through the said departmental examination and, therefore, his services was liable to be terminated. However, the Government granted a last and a final chance to him as a very special case and even then in October 1969 at fourth attempt also he could not succeed and, therefore, was discharged from the services. It was also contended that a candidate who passed the said departmental examination was only confirmed in the services and his seniority from the time of his initial appointment was considered. It was then contended that the Government considered the representation of the petitioner and reinstated him in service subject to two conditions that (i) he was given additional chance to get through the departmental examination and if he did not clear the said examination his services will come to an end and (ii) he would not be allowed to count his past services for seniority for the purpose of fixation of pay and pension. Thus, for all practical purposes, he was treated as a fresh recruit. The respondents, therefore, prayed for the dismissal of the writ petition.

(3.) IN support of the petition, Mr. Bandivadekar, urged that the letter dated February 1, 1979 reinstating the petitioner speak in terms of contradiction inasmuch as in the same letter it was mentioned that although the petitioner was reinstated for all practical purposes he should be treated as a fresh candidate. The submission of the learned Counsel is that once the petitioner was reinstated he was put in his original position and the question of treating him as a fresh candidate does not arise and, therefore, he is entitled to all the benefits of the continuity of services. Mr. Shinde, learned Counsel appearing on behalf of the respondents, on the other hand, contended that the letter of appointment dated February 1, 1979 although speaks in terms of reinstatement of the petitioner it was clearly mentioned therein that he was appointed subject to fulfilment of two conditions that he would be given a last chance to pass the departmental examination failing which his services would come to an end and for all practical purposes he would be considered as a fresh recruit and if the petitioner felt aggrieved by such an appointment letter he should have raised the issue at that time and should not have accepted his reinstatement as a fresh recruitment.