Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9627 OF 2018
Shri Dilip Jagannath Ambilwade
Age : 57 Yrs, Occupation : Service
Designation : Chief Administrative Officer
R/o Flat No.1, Gayatri Darshan
Co-op. Housing Society
Datey Nagar, Gangapur Road, Nashik – 422 013. ..Petitioner vs.
1. Government of Maharashtra
Through The Principle Secretary, Public Health Department, G.T. Hospital Compound, Mantralaya, Mumbai
2. Commissioner of Health Services
Arogya Bhavan, St. George
Hospital-Compound, Mumbai. ..Respondents
IN
WRIT PETITION NO.9627 OF 2018
Dilip Jagannath Ambilwade
Age : 58 Yrs, Occupation : Retired
R/o Flat No.1, Gayatri Darshan
Co-op. Housing Society
Datey Nagar, Gangapur Road, Nashik – 422 013. ..Applicant vs.
1. Government of Maharashtra
Through The Principle Secretary, Public Health Department, G.T. Hospital Compound, Mantralaya, Mumbai
PMB 1
2025:BHC-AS:32182-DB
2. Commissioner of Health Services
Arogya Bhavan, St. George Hospital
Compound, Mumbai-400001. ..Respondents
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Adv. Vinod Tayade, for the Petitioner.
Mr. N. C. Walimbe, Addl.G.P. a/w Mr. S. P. Kamble, AGP, for the Respondents-State.
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JUDGMENT
1. The challenge in this Petition under Article 226 of the Constitution of India is to the order dated 5th August 2016 passed by the Maharashtra Administrative Tribunal Bench at Mumbai (“the Tribunal”, for short) in Original Application No.972 of 2015. The Petitioner also challenges the order dated 12th December 2014 in Miscellaneous Application No.125 of 2013 in Original Application No.545 of 2010 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad. The Petitioner further prays for a direction to the Respondents to condone the break in service from 13th October 2000 to 27th March 2005, for grant of deemed increments for this broken period and for PMB 2 other consequential reliefs. The Petitioner next prays for multiple reliefs in the nature of time scale promotion/benefit of revised assured progressive scheme of the post of Joint Director (Budget & Administration) on completion of 12 years of service, quashing of the order dated 31st July 2017 issued by the Director, Health Services, Mumbai for recovery of over payment of pay and allowances paid to the Petitioner.
2. The facts of the case in brief are as under:- The Petitioner is an Ex-serviceman who worked with the Indian Air Force till 28th February 1992. The Petitioner was appointed as Assistant Registrar, Group-A in the Yashwantrao Chavan Maharashtra Open University, Nashik on 2nd March 1992 where he worked till 12th October 2000 on government sanctioned permanent post. He was paid from the consolidated funds of the State and his service was pensionable. The Petitioner contends that he fulfills all the conditions stipulated in Rule 33 of the Maharashtra Civil Services (Pension) Rules, 1982 (“Pension Rules”, for short) for counting his past service into new service for pension. PMB 3
3. In 1998 an advertisement was issued for the post of Chief Administrative Officer, Group-A, Class-I in Public Health Department by Maharashtra Public Service Commission (“MPSC”, for short). The Petitioner being eligible applied. In February 1999, the Petitioner was informed by MPSC that he was selected for the said post under OBC category and for further formalities was asked to contact Public Health Department. In March 1999, Public Health Department carried out pre-appointment formalities such as medical examination, caste verification, verification of experience, character verification and also sought NOC from the University which was duly signed by Vice Chancellor himself and sent to the Public Health Department.
4. Despite completing the aforesaid formalities, the Petitioner was neither given appointment order nor he was informed regarding keeping of his appointment order in abeyance till 23rd March 2005.
5. In the month of October 2000, departmental PMB 4 enquiry was initiated by the University against the Petitioner and this resulted in termination of his services by the University. The Petitioner challenged his termination in this Court by filing writ petition No.6768 of 2000. In the meantime, the Petitioner filed Civil Application No.843 of 2002 in this Court and requested to direct the Public Health Department to issue his appointment order.
6. It is the contention of learned counsel for the Petitioner that he was deprived of the appointment till 23rd March 2005. He was not even informed anything regarding the delay in issuing the appointment order. The Petitioner made several representations from April 1999 till March 2005 which were never replied. Learned counsel submitted that two candidates namely Mr. Manikrao Shelke and Mr. Satish Bagal who were selected along with the Petitioner were given appointment orders in May 1999 itself.
7. Writ Petition No.6768 of 2000 was finally heard on 24th September 2004. This Court set aside the order of termination of the Petitioner. The Petitioner’s request to PMB 5 resign from the University was accepted to enable him join another government job. The Petitioner was considered as having resigned from the University with effect from 12th October 2000 i.e. the date of his termination.
8. In terms of the orders passed by this Court, the Petitioner resigned from the University under Rule 46(2) of the Pension Rules. An entry to this effect is made in the service book of the Petitioner. It is therefore the contention of learned counsel for the Petitioner that his past service is liable to be counted for all purposes into the new service as per Rule 48(1) of the Pension Rules.
9. It is submitted by learned counsel that the Petitioner’s University service, as well as Public Health Department’s service, both being State Government permanent employments in the same pay scale are paid from the consolidated funds of the State and also pensionable. It is submitted that the fault for the break between two services of the Petitioner from 13th October 2000 to 27th March 2005 entirely lies with the Public Health Department and hence this break is liable to be condoned PMB 6 under Rule 48 of the Pension Rules. It is submitted that the Respondents ought to have condoned the break in service and issued office order accordingly, but they deliberately did not do so. It is submitted that the Directorate of Health also made several communications to issue orders of break in service of the Petitioner, but the Public Health Department did not do so.
10. Learned counsel for the Petitioner then gave an instance of one Mr. Dnyaneswar Igave who was working in Yashwantrao Chavan Maharashtra Open University and later joined the Information and Public Relations Department of the State Government. According to learned counsel, the said Mr. Igave was granted the benefits of counting his former service into new service for the purpose of pension which was not done in the case of the Petitioner. This action of the Respondents according to learned counsel is completely unjustified and discriminatory in nature. It is submitted that as the Petitioner’s past service was a government pensionable service and in the same pay scale, the then Director of Health requested the University to send PMB 7 the Petitioner’s original service book and last pay certificate. The Petitioner’s last basic pay drawn was protected by the Public Health Department. The very same original service book was continued till the superannuation of the Petitioner.
11. It is further pointed out by learned counsel for the Petitioner that the Petitioner’s date of joining the University service i.e. 2nd March 1992 was also considered as first date of joining the government service and it also reflects in the Sevaarth record maintained by the Public Health Department. The Petitioner’s last basic pay drawn in the University as on 12th October 2000 was protected and subsequent annual increments were also paid to the Petitioner from 2005 to 2017. Besides this, the Petitioner’s pay was also fixed as per the 6th Pay Commission and his pay and allowances due and drawn were also got duly verified from the Pay Verification Unit of the Auditor General. Certificate of its correctness was also stamped in the service book of the Petitioner. It is then submitted by learned counsel for the Petitioner that in 2017, when he refused to work hand in glove with the then Director Dr. PMB 8 Satish Pawar, that he issued confidential office order under his own signature dated 31st July 2017, and directed the office head of the Petitioner to make reduction in basic pay of the Petitioner and also make recovery from pay and allowances of Rs.13 lakhs and also withdraw the increment granted on 1st July 2017. A proposal of suspension of the Petitioner to the Additional Chief Secretary, Public Health Department was sent and the Petitioner was suspended without any enquiry or without application of mind.
12. Learned counsel for the Petitioner submitted that the vindictive action of the Respondents can be inferred from the following circumstances. It is submitted that the Petitioner challenged his illegal suspension in the Tribunal which suspension was revoked on completion of 90 days period with effect from 10th January 2018. The Respondents then passed an order of compulsory retirement of the Petitioner as a result of another departmental enquiry that took place in the year 2015. The Tribunal stayed the order of compulsory retirement. The Petitioner was due to retire on 31st October 2018 on superannuation but without PMB 9 reinstating him in service, the Petitioner was forced to retire by humiliating him. The next point urged in this regard is that though he was issued with the charge sheet on 21st February 2018, but the actual departmental enquiry commenced on 4th February 2021 and concluded on 6th August 2021. It is submitted that though the Enquiry Officer fully exonerated the Petitioner of all the charges, no decision was taken by the Respondents on the said departmental enquiry. The retirement benefits of the Petitioner were withheld. It is therefore prayed that the Respondents be directed to condone the break in service of the Petitioner from 13th October 2000 to 27th February 2005 and he may be given deemed increments for this period and his pay may be fixed accordingly.
13. Learned AGP for the Respondents on the other hand invited our attention to the findings recorded by the Tribunal in the impugned order and also the various orders passed by this Court as well as the Tribunal in multiple proceedings filed by the Petitioner. It is submitted that the Petition is completely misconceived and lacks merit. PMB 10
14. Heard learned counsel. Relevant to a decision in the present case only the following facts need to be noticed at the cost of repetition. The Petitioner was working with the University from 2nd March 1992 to 12th October 2000. In February 1999, the Petitioner was informed by MPSC that he was selected for the post of Chief Administrative Officer, Group-A. In March 1999, NOC for appointing the Petitioner duly signed by the Vice Chancellor was sent to the Public Health Department. In October 2000, departmental enquiry was initiated by the University against the Petitioner and this resulted in his termination which was challenged by the Petitioner by way of filing a Writ Petition No.6768 of 2000 in this Court. The Petitioner filed Civil Application No.843 of 2002 in this Court for a direction to the Public Health Department to issue his appointment order. In Civil Application No.843 of 2002 in Writ Petition No.6768 of 2000 this Court on 30th April 2004 passed the following order:- “The reliefs as prayed for cannot be granted in view of say of respondent state if they are so advised, petitioners may be appointed provisionally. With above order, application stands disposed of.” PMB 11
15. It is pertinent to note that the Petitioner was not appointed pursuant to the orders passed in the Civil Application. This Court decided the Writ Petition No.6768 of 2000 on merits by the judgment and order dated 24th September 2004. Some of the observations therein are relevant. On 3rd January 1995, a charge sheet was issued to the Petitioner. On 7th January 1995, the services of the Petitioner came to be terminated by the University pursuant to the enquiry proceedings. By an interim order dated 7th September 1995 in Writ Petition No.3279 of 1995, this Court stayed the order of termination and directed the Petitioner be continued in service pending the disposal of the Petition. Consequently, the Petitioner was taken back in job but was transferred to the Registration Section. On 11th December 1997, a police complaint was filed against the Petitioner as one of the accused involved in a racket of granting admission by accepting money. On the same day, the Petitioner was arrested and search was carried out at his house. The Petitioner was suspended on 15th December
1997. On 21st January 1998, a charge sheet was issued to PMB 12 the Petitioner. The departmental enquiry resulted in the charges being proved against the Petitioner and on 12th October 2000 the services of the Petitioner were terminated. The Petitioner therefore filed Writ Petition No.6768 of 2000. This Court determined the question whether the enquiry proceedings initiated and continued by the authorities i.e. the University is so illegal and bad in law that it calls for an interference by this Court in its writ jurisdiction under Article 226 of the Constitution of India. This Court did not find any merit in the contention of the Petitioner that there is breach of principles of natural justice in the enquiry proceedings and accordingly rejected the contention. So far as the perversity in the findings of the Enquiry Officer is concerned, this Court considered the main evidence of Principal A. K. Kukade who had been a party the malpractice in getting students admitted to B.Ed. Programme of the University through the Petitioner. The Petitioner had contended that his termination of service, mainly on the basis of evidence of A. K. Kukade, is not just and proper and the order of punishment should be quashed PMB 13 and set aside. The University contended that the Petitioner should not be put back in service at all because the Management lost confidence in the Petitioner and therefore, it has not desirable for this Court to interfere with the punishment of termination and put him back in service with the Respondent Management. This Court agreed with the contention of the University as regards loss of confidence in the Petitioner in the light of the past history of the dispute between the parties and therefore, this Court felt is not desirable to place back the Petitioner in service.
16. At this juncture, it is now relevant to reproduce the observations of this Court in the order dated 24th September 2004 in Writ Petition No.6768 of 2000 which are significant. The same read thus:- “We agree with the contention of the respondent university that they having lost confidence in the petitioner in light of the past history of the dispute between the parties, and, therefore, it is not desirable to place back the petitioner in service. At this stage, the Petitioner appearing in person has made a request that if the Respondent no.1 has lost confidence in him and is not willing to place the Petitioner back in employment then in place of order of termination, the Petitioner should be permitted to tender his resignation. He has also made a statement that he withdraws all charges levelled against the Vice Chancellor with immediate effect. He has also given an undertaking to this Court that PMB 14 he shall not make any monetary claim as against respondent no.1. He has however, pleaded that in so far as his provident fund is concerned the same should be released. We are of the opinion that in the circumstances of the present case, it would be desirable that the order of termination dated 12.10.2000 issued by Respondent should be set aside and in place of that Petitioner should be treated as resigned from the services with effect from the said date of 12.10.2000. We accept the undertaking given by the Petitioner not to make any monetary claim and also accept the statement that he withdraws all charges against the Vice Chancellor and other officers. In the aforesaid circumstances, we direct Respondent no.1 to pay the Petitioner his provident fund dues including the employer's contribution. However, the Petitioner will not be entitled to claim any other amount of any nature whatsoever either towards his retirement dues or any other claim.”
17. It is only pursuant to the order passed by this Court the Petitioner was issued his appointment by the State Government to the post of Chief Administrative Officer on 23rd March 2005. The Petitioner joined as Chief Administrative Officer, General State Services, Group-A, Class-I at Civil Hospital, Nashik on 27th March 2005. From 2007 onwards the Petitioner made several representations for condonation of break in service.
18. The Petitioner filed OA No.545 of 2010 before the Maharashtra Administrative Tribunal, Bench at Aurangabad for seniority and counting of his service for the purpose of PMB 15 pension. OA No.545 of 2010 was rejected by the Tribunal on 12th December 2014 on the ground that the Petitioner had resigned from his last service observing that as regards counting of his former service nothing is mentioned in the order of this Court in Writ Petition No.6768 of 2000. It is pertinent to note that in OA No.545 of 2010 filed before the Tribunal, Bench at Aurangabad, the Petitioner had specifically prayed for a relief directing the Respondents to count previous service rendered by him with the University for the purpose of pension and all other service benefits. Not only this but it will be material to reproduce other reliefs prayed by the Petitioner in the OA No.545 of 2010 which read thus:- “A)This Original Application may kindly be allowed thereby quashing & setting aside the impugned Communication dtd 11/11/2009 (Annex. L) issued by Resp. No.1. B) This Original Application may kindly be allowed thereby holding & declaring that the condition No.2(f) incorporated by Resp. No.1 in applicant's appointment order as Chief Administrative Officer dtd 23/03/2005 (Annex. I) was void ab-initio and illegal per-se and hence inoperative as against him. C) This Original Application may kindly be allowed thereby directing the Respondents to count applicant's seniority in the cadre of Chief Administrative Officers on the basis of the inter-se seniority of all selectees (viz. PMB 16 Shri. Shelke, Shri Bagal and the applicant himself) selected in same batch of 1999 according to their respective ranks/merit position in the order of preference arranged by the MPSC. D) This Original Application may kindly be allowed thereby directing the Respondents to count, to take into consideration the previous service rendered by applicant under "Yashwantrao Chavan Maharashtra Open University, Nashik" for the purposes of pension and all other service benefits. E) This Original Application may kindly be allowed thereby directing the Respondents to extend to the applicant all the consequential benefits to which he would become entitled in view of the grant of Prayer Clauses "A" to "E" in his favour.”
19. The following observations of the Tribunal, Bench at Aurangabad are relevant and need to be reproduced which read thus:- “7. It is material to note that in the appointment order dated 23.03.2005 (Annexure-I) at page nos.37 to 39 it has been specifically mentioned in condition No.(F) para 2 that though the applicant was at the Sr. No.5, his seniority will be counted from the date of his joining. Though it is brought on the record that the applicant objected for said condition vide his representation, the same was not accepted by the respondent. We have perused the judgment and order passed by the Hon'ble High Court in W. P. No.6768 of
2000. It is material to note that the Departmental Enquiry was pending against the applicant and he was recommended for the post of Chief Administrative Officer (C.A.O.) by the University, the applicant however, claimed bias against the University. The Hon'ble High Court observed:- "We therefore do not find any substance in the argument advanced by the petitioner in respect of the said allegation bias as against the enquiry officer.” PMB 17
8. The Hon'ble High Court agreed to the stand taken by the respondent University that they have lost confidence in the petitioner in the light of the past history of the dispute, and, therefore, it was not desirable to place back the petitioner in service. From the observations of the order it is clear that there was no other way left for the University but to terminate applicant's service. However, liberty was given to the petitioner to submit undertaking in the form of resignation and the said relevant observations are as under:- "At this stage, the petitioner appearing in person has made a request that if the Respondent no.1 has lost confidence in him and is not willing to place the petitioner back in employment then in place of order of termination, the Petitioner should be permitted to tender his resignation. He has also made a statement that he withdraws all charges levelled against the Vice Chancellor with immediate effect. He has also given an undertaking to this Court that he shall not make any monetary claim as against respondent no.1. He has however, pleaded that in so far as his provident fund is concerned the same should be released. We are of the opinion that in the circumstances of the present case, it would be desirable that the order of termination dated 12.10.2000 issued by Respondent should be set aside and in place of that Petitioner should be treated as resigned from the services with effect from the said date of 12.10.2000. We accept the undertaking given by the Petitioner not to make any monetary claim and also accept the statement that he withdraws all charges against the Vice Chancellor and other officers.”
9. We have also noted directions given by the Hon'ble High Court while disposing W.P. No.6768/2000 which as under:- PMB 18 "In the aforesaid circumstances, we direct Respondent no.1 to pay the petitioner his provident fund dues including the employer's contribution. However, the petitioner will not be entitled to claim any other amount of any nature whatsoever either towards his retirement dues or any other claim. We dispose of the present petition accordingly. However, there shall be no order as to costs.”
10. The plain reding of aforesaid directions will make crystal clear that the Hon'ble High Court had shown mercy on the petitioner and instead of upholding order of termination his undertaking was treated as resignation with effect from 12.10.2000. It was made clear that the petitioner will not be entitled to claim any other amount of any nature whatsoever either towards his retirement dues or any other claim except Provident Fund dues.
11. We are of the considered opinion that the applicant is trying to get the benefits which are in unequivocal terms denied by the Hon’ble High Court. We are also satisfied that the Government was justified in waiting for the decision by the Hon'ble High Court in W.P. No.6768/2000 before issuing appointment order in favour of the applicant. Since the petitioner resigned the earlier service of University the same service cannot be counted for any other purpose including seniority, pensionary benefits or any other monitory benefits as claim by the applicant.
12. This Original applicant has been filed on 29.06.2010 The appointment order which the application has received in his favour is of 23.05.2005 and the applicant is asking for setting aside condition no.2(F) of the said order. It is contended on behalf of the applicant that he made number of representations from May 2005 in November 2009 and ultimately his request was rejected by respondent no.1 on 11.11.2009 and therefore there was in fact no delay and even if it is treated as delay the same be condoned in the interest of justice.
13. We are of the opinion that mare filing of PMB 19 representation is not sufficient and as per Section 19 of Maharashtra Administrative Tribunal Act, 1985 the application should have waited for the period for 6 months for the decision on his representation and thereafter should have filed application within one year. However, it has come on record that he was communicated by the letter dated 11.11.2009 that his request was rejected and therefore in the interest of justice the delay caused in filing original application is required to condoned and accordingly it is condoned. In view of the discussions in forgoing paras, we therefore, pass following order:- ORDER The M.A. stands allowed and O.A stands dismiss with no order as to costs.”
20. Thus, in the Original Application No.545 of 2010 a specific finding has been recorded that since the Petitioner resigned the earlier service of University, the same service cannot be counted for any other purpose including seniority, pensionary benefits or any other monetary benefits as claimed by the Applicant. This order of the Tribunal, Bench at Aurangabad is not challenged and had thus attained finality.
21. It is interesting to note that the Petitioner then filed OA No.972 of 2015 before the Tribunal, Bench at Mumbai seeking condonation of break in service between the service as Assistant Registrar in the University and his appointment PMB 20 as Chief Administrative Officer with the State Government. Thus, the very same relief which was the subject matter of OA No.545 of 2010 before the Aurangabad Bench, covered in different words, was prayed for before the Mumbai Bench of the Tribunal in OA No.972 of 2015 covered in a different manner. The Tribunal, Bench at Mumbai in the order impugned in this petition observed that the Petitioner had suppressed information about the earlier OA No.545 of
2010. The Tribunal on merits as well as applying the principle of res-judicata and as the Applicant had not disclosed full information dismissed the OA. The Tribunal observed that the Applicant tried to mislead and deceive the Tribunal and hence a cost of Rs.5,000/- is imposed on the Applicant for abusing the process of law.
22. We have no hesitation in agreeing with the findings of the Tribunal that the Petitioner firstly ought to have disclosed the order of the Tribunal at the Aurangabad Bench in the subsequent OA that was filed before the Mumbai Bench. Secondly, for the very same relief which was the subject matter of the OA before the Aurangabad Bench the PMB 21 subsequent Original Application before the Mumbai Bench was not tenable. The Aurangabad Bench had on merits held that since the Petitioner resigned from the earlier service of the University the same service cannot be counted for any other purpose including seniority, pensionary benefits or any other monitory benefits as claimed by the Applicant. The State Government appointed the Petitioner only after the Writ Petition No.6768 of 2000 was disposed of by this Court.
23. Moving back a little, so far as the order dated 30th April 2004 in the Civil Application No.843 of 2002 is concerned, the State Government did not proceed to provisionally appoint the Petitioner, as this Court had left it to the discretion of the State Government whether to make the provisional appointment or not. In our view the approach of State Government cannot be faulted. The State Government had good justification in issuing the order of appointment after the Writ Petition No.6768 of 2000 was decided by this Court. The appointment of the Petitioner in the year 2005 by the State Government will have to be PMB 22 regarded as a fresh appointment in the facts and circumstances of the present case. Once the Tribunal, Bench at Aurangabad held that the Petitioner is not entitled to the benefit of the services rendered with the University for counting for any purpose, mere filing of a fresh OA before the Mumbai Bench of the Tribunal seeking the same relief of condonation of break in service between the service as Administrative Officer with the State Government cannot be said to give rise to a fresh cause of action to the petition. The appointment order as a Chief Administrative Officer will have to be regarded as a fresh appointment.
24. In this context let us consider Rule 46 of the Pension Rules which deals with forfeiture of service on resignation. Sub-rule (1) and (2) of Rule 46 of the Pension Rules are relevant which read thus:- “46. Forfeiture of service on resignation. (1) Resignation from a service or a post entails forfeiture of past service. (2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent under the Government where service PMB 23 qualifies.”
25. Sub-rule (1) of Rule 46 of the Pension Rules thus contemplates that resignation from a service or a post entails forfeiture of past service. However, sub-rule (2) of Rule 46 of the Pension Rules says that a resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent under the Government where service qualifies. Sub-rule (2) is an exception carved out to sub-rule (1), for otherwise the resignation from a service or a post entails forfeiture of past service. The Petitioner’s services were terminated by the University after holding the charges against the Petitioner as proved. The charges were serious. This Court found the enquiry to be fair and proper and did not interfere with the findings of the Enquiry Officer proving the charges. On the aspect of punishment however, a lenient view was taken so as not to destroy the career of the Petitioner and hence the Petitioner was permitted to resign from the services. The Petitioner was held not entitled to any pay and allowances during this PMB 24 period.
26. The Petitioner resigned from the services of the University as a consequence of the order passed by this Court in Writ Petition No.6768 of 2000. Taking a sympathetic view this Court was of the opinion that it would be desirable that the order of termination dated 12th October 2000 issued by the University should be set aside and in place of that the Petitioner should be treated as resigned from the services with effect from the said date of 12th October 2000. The undertaking of the Petitioner was recorded that he will not make any monetary claim and also accepted the statement that the Petitioner withdraws all charges against the Vice Chancellor and other officers. This Court further observed that the Petitioner would be entitled to his provident fund dues including employer’s contribution however, the Petitioner will not be entitled to claim any other amount of any nature whatsoever either towards his retirement dues or any other claim.
27. The State Government though had selected the Petitioner, did not actually appoint the Petitioner till the PMB 25 conclusion of the proceedings before this Court. It is well settled that merely because the Petitioner is selected does not confer an indefeasible right on the candidate to seek appointment. The State Government had justifiable reasons for not issuing the order of appointment though the Petitioner was selected. This distinguishes the case of the Petitioner from those who were appointed in the year 2000 itself as they did not have any pending disciplinary proceedings nor an order of such a nature as passed by this Court was existing in their case. Even the claim of the Petitioner that he ranked senior to other appointees selected in the same batch of 1999 was rejected by the Tribunal in OA No.545 of 2010. Thus, the Petitioner’s case in our considered opinion will not fall within the ambit of subrule (2) of Rule 46 of the Pension Rules as mere grant of NOC by the University in the present facts cannot be said to be a proper permission within the meaning of sub-rule (2) to claim the benefit of counting the services rendered with the University. Mercy or sympathy shown by this Court in allowing the Petitioner to resign cannot be read dehors the PMB 26 circumstances under which such a resignation is accepted to claim the benefit of sub-rule (2) of Rule 46 of the Pension Rules.
28. It is further pertinent to mention that so far as the other reliefs prayed for in this Petition are concerned, the same are completely misconceived. Having held that the Petitioner is not entitled to condonation of break in service, the relief in terms of prayer clause (b) of this Petition cannot be granted. Paragraph 5 of the impugned order dated 5th August 2016 of the Tribunal reproduces the reliefs prayed for in the Original Application. The relief in terms of prayer clause (d) in this Writ Petition is not a relief prayed for in the Original Application. It is therefore not possible for us to entertain the Petitioner’s request for granting relief in terms of prayer clause (d) as it is for the Petitioner to approach the Tribunal for seeking relief in terms of prayer clause (d) in the first instance.
29. The only aspect we are persuaded is as regards the observations made by this Court in paragraph 20 of the PMB 27 order dated 24th September 2004 in Writ Petition No.6768 of 2000 where this Court recorded its appreciation about the manner in which the Petitioner in person has conducted himself and has succinctly placed his argument for Their Lordships consideration. This Court expressed its appreciation for the same. The Petitioner filed the Original Application No.972 of 2015 in person. Though the Petitioner failed to mention about the decision of the Aurangabad Bench of the Tribunal in Original Application No.545 of 2010, we are persuaded to take a view that this may have happened because the Petitioner was appearing in person and we are inclined to give the benefit to the Petitioner that the same was not intentional. It is for this reason that we are inclined to quash and set aside the observations of the Tribunal in paragraph 8 of the impugned order dated 5th August 2016 to the effect “He has tried to mislead and deceive this Tribunal. On that count also, this Original Application is liable to be dismissed. A cost of Rs.5,000/- is imposed on the Applicant for abusing the process of law.” This part of the order of the Tribunal is quashed and set PMB 28 aside. The rest of the order of the Tribunal is sustained. The cost of Rs.5,000/- if deposited be refunded to the Petitioner.
30. We therefore do not find any reason to interfere with the order of the Tribunal except to the limited extent indicated above.
31. Consequently, the Writ Petition fails and is dismissed with no order as to costs.
32. Civil Application No.2605 of 2018 is disposed of accordingly. (N. R. BORKAR, J.) (M. S. KARNIK, J.) PMB 29 Designation: PA To Honourable Judge