Santosh Jairam Raut v. The Honourable Principal District And Session Judge Jalna

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 8125 OF 2016 Santosh S/o Jairam Raut, Age : 36 years, Occupation : Service, Presently posted as Junior Clerk in the Court of the learned Joint Civil Judge, Junior Division and Judicial Magistrate, First Class at Jalna, permanent residence of N-9, CIDCO, Aurangabad PETITIONER

VERSUS

The Honourable Principal District and Sessions Judge, Jalna RESPONDENT ---- Mr. Hemant Surve, Advocate for the Petitioner Mr. R.J. Godbole, Advocate for the respondent ---- CORAM :

S.S. SHINDE AND SANGITRAO S. PATIL, JJ.

DATE : 1st AUGUST, 2016 ORAL JUDGMENT (PER : S.S. SHINDE, J.):

Heard. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is heard finally.

2.

With the able assistance of the learned counsel for the parties, we have perused the petition, the grounds raised therein and also the orders passed by this Court in earlier writ petition filed by the petitioner.

3.

The learned counsel appearing for the petitioner submits that he has received the communication from the Registrar (Administration), High Court of Judicature at Bombay, Bench at Aurangabad dated 28th July, 2016, stating therein that failure of the petitioner to join duties on 1st August, 2016 (B.N.) at Aurangabad Bench would result in deletion of his name from the revised wait list and his claim on the post of clerk shall be forfeited.

4.

The learned counsel for the petitioner submits that the petitioner's right to apply to the High Court for higher post for better prospects cannot be defeated by refusing permission by the respondent to apply for such post. It is submitted that the candidate desirous to apply for the said post directly and the in-service candidate who is also desirous for the said post for better prospects stands on the same footing and therefore, the respondent cannot make discrimination. He, therefore, submits that there is violation of Article 14 of the Constitution of India, at the hands of respondent. He further submits that every citizen has a right to lead a better life and therefore, the

petitioner so as to have better prospects in-service, decided to apply for the post of clerk to the High Court and by refusing the permission to apply for the said post through proper channel, the respondent has violated the provisions of Article 21 of the Constitution of India. He further submits that the petitioner can have the profession of his choice. However, the respondent, by rejecting his prayer for applying for the post of clerk at the Establishment of High Court, has violated Article 19 of the Constitution of India. He further submits that the petitioner is prepared to resign, but it is necessary to direct the respondent by an appropriate order that the earlier services rendered by the petitioner should be counted for the purpose of pension and other benefits.

5.

On the other hand, the learned counsel appearing for the respondent submits that the petitioner in violation of the condition that the application should be routed through the respondent for appointment on the post on any other Establishment, or in the present case, the Establishment of the High Court, should not have applied once his application was

rejected by the respondent as it was not possible to spare his services due to insufficient staff. It is further submitted that already the departmental enquiry is pending against the petitioner for sending the application directly and for that reason, the petitioner cannot be relieved. It is submitted that in view of the provisions of Rule 46 of the Maharashtra Civil Services (Pension) Rules, 1982, in case the resignation is tendered, as contended by the learned counsel for the petitioner, then the same will entail forfeiture of the past services. Therefore, the learned counsel for the respondent submits that the petitioner's services are governed by the service conditions and the petitioner is in service. The petitioner cannot contend that his fundamental rights are violated.

6.

We have carefully gone through the documents produced on record by the petitioner, the reply filed by the respondent and considered the submissions advanced on behalf of the petitioner and the respondent. 7.

We are of the opinion that no relief can be granted as prayed for by the petitioner for the reasons stated hereinbelow.

8.

So far as the first argument of the learned counsel for the petitioner that there is violation of Articles 14, 19 and 21 of the Constitution of India is concerned, the petitioner is in service on the Establishment of the respondent and therefore, his services are governed by the service conditions and also the Maharashtra Civil Services (Pension) Rules, 1982.

Though it is submitted that there is violation of Article 14 of the Constitution, in our opinion, the case of the petitioner cannot be considered on the same footing as that of the candidates who have applied for direct recruitment and therefore, the candidates who have directly applied and the candidates who are applying as in-service candidates, cannot be clubbed in one group and then to consider the contention of the petitioner that there is discrimination at the hands of the respondent. It is only in case there are similarly situated persons, in that event, Article 14 of the Constitution can be invoked. The in-service candidates and the candidates applying for selection by nomination cannot be said to be the persons similarly situated.

9.

So far as the contention of the learned counsel for the petitioner that in order to lead the better life, the petitioner has opted for applying to the post of clerk at the Establishment of the High Court is concerned, the petitioner did submit an application before the respondent seeking permission to apply for the post of clerk at the Establishment of the High Court, however, the said prayer was rejected on the ground that there is paucity of staff on the Establishment of the District and Sessions Court, Jalna. There cannot be quarrel on the proposition that in order to have better prospects in life, the petitioner applied for the post of clerk on the Establishment of the High Court. However, being an employee of the respondent, his services are governed by the service conditions and the Maharashtra Civil Services (Pension) Rules, 1982.

The petitioner's application was rightly rejected by the respondent, as there was paucity of staff on the establishment of the respondent. The petitioner was not justified in creating difficulties for the respondent in running the administration smoothly by abruptly leaving the service for joining the service somewhere else.

10.

In view of the provisions of Rule 46 of the Maharashtra Civil Services (Pension) Rules, 1982, the petitioner's prayer that the petitioner may be allowed to resign so as to enable him to join on the post of clerk at the Establishment of the High Court, by accepting his prayer to consider the past service rendered by him for the purpose of post-retiral benefits, cannot be entertained. Sub-rules (1) and (2) of Rule 46 read as under :- 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 qualifies.

11.

In view of the foregoing discussion, we are unable to persuade ourselves to grant any relief to the petitioner. Hence, the writ petition stands rejected. However, the rejection of this petition would not have

any adverse effect on the pending departmental enquiry against the petitioner and also in case the petitioner wishes to apply in future seeking permission to allow him to apply for higher post or any other post on the Establishment of the High Court.

12.

Rule stands discharged accordingly.

13.

No costs.

[SANGITRAO S. PATIL] [S.S. SHINDE] JUDGE JUDGE npj/wp8125-2016