Jagdeo Bhivsen Belkhede and Others vs State of Maharashtra and Others

B.P. Dharmadhikari, J—Heard learned counsel appearing for the respective parties.

Considering the order proposed to be passed, it is not necessary to hear respondent No. 4 in the matter.

It is not in dispute that against identical orders of the Maharashtra Administrative Tribunal, the employees, similarly situated, have approached this Court. One such employee, by name "Shri Tryambak S/o Manikrao Soyam", had filed Writ Petition No. 1761 of 1998. He superannuated on 30.4.2014 and as such this Court disposed of his petition without going into the merits of the controversy and directed that he would be entitled to retirement benefits for service rendered in accordance with law.

Here, we have to consider the effect of failure on the part of the petitioners to pass initial departmental examination after their recruitments in prescribed number of opportunities. The said examination is held after recruitments as per the provisions of The Education Departmental Gazetted Officers (under the Director of Education) Departmental Examination Rules 1979. As per Rule 3 thereof, all such appointees, except those who are exempted under Rule 5, are obliged to pass the examination within a period of two years. Under Sub-rule 4(1), a person appointed on probation and failing to pass examination within prescribed period, is liable to be discharged from the service unless period of passing the examination is extended by the Government. Sub-rule (3) of Rule 4 withholds increments of a person, who fails to pass the examination within prescribed period, until he passes that examination. However, it is subject to powers of the State Government to extend the period of passing examination or exempt him from passing it.

It appears that similar controversy was looked into by The Maharashtra Administrative Tribunal earlier and the matter ultimately went to the Honourable Apex Court. The Honourable Apex Court has disposed of those Special Leave Petitions. The text of that order of the Honourable Apex Court, reproduced in order dated 26.3.1998 impugned before us, is thus:

"The result of the Examination conducted has been communicated by the Maharashtra Pubic Service Commission. That may be placed on the file of SLP (C) No. 93/96 and be available for reference in the other connected cases. As reported, petitioners in SLP(C) No. 892/96, 610/96, 736/96 and 93/96 have passed the examination and petitioners in SLP(C) Nos. 657/96, 659/96 and 895/96 have failed. Mr. Masodkar, learned counsel, states that such of those special leave petitioners who have passed the examination, they shall be given the necessary departmental benefit and the others, who have failed, would remain deprived of the same. On such statement of Mr. Masodkar learned counsel, the respective special leave petitions shall stand disposed of in accord therewith."

Thus, the Honourable Apex Court disposed of those Special Leave Petitions noting the position, that those who had cleared the departmental examination, would be given necessary departmental benefits, and others who failed, would remain deprived of the same. The question is, whether the Honourable Apex Court, therefore, has ruled out the termination as contemplated by Rule 4(1) mentioned supra.

Some other orders passed, by The Maharashtra Administrative Tribunal, like Judgment in Original Application No. 737 of 1995 and other connected matters at Bombay, on 11.12.1995 and in Original Application No. 703 of 1995 and other connected matters including Original Application No. 749 of 1995 on 14.3.1997 at Nagpur, are also pointed out. There respective Benches of the Tribunal used the same words as employed in the order of the Honourable Apex Court mentioned supra, thus :

"all of those petitioners should be given final chance to appear at the examination on condition that such of them as would pass in that examination would get departmental benefits and other who fail would remain deprived thereof."

The widow of the petitioner in Writ Petition No. 1226 of 1998, contends that her husband "Shri Namdeo Kankal" was not given additional opportunity as per the directions of The Maharashtra Administrative Tribunal, in Original Application No. 710 of 1995, dated 14.3.1997. The respondents insist that such opportunity was given. We are not inclined to go into this controversy.

The provisions of Rule 4, mentioned supra, do not always contemplate discharge or termination as the only solution. Sub-rule (3) thereof itself shows a possibility of such a person continuing in employment without any increment. The order of the Honourable Apex Court mentioned supra may, therefore, have noted the position, that those who cleared the departmental examination, would get the departmental benefits and those who failed, would remain deprived of the same. This fact, that employee remains deprived of the departmental benefits, impliedly overrules possibilities of his termination.

However, learned Assistant Government Pleader as also Shri G.G. Mishra, learned counsel, have raised certain contentions. They submit that the Honourable Apex Court has noted the statement made by learned counsel for the employees and it is not the statement made by the State Government. They also submit that the State Government could not have made a statement contrary to Rule 4(1) and in derogation of Scheme of said Rule 4. They, therefore, insist that the termination of deceased petitioner, "Shri Namdeo Kankale", and other petitioner, "Shri Jagdeo", is valid.

The employee, in Writ Petition No. 1761 of 1998, "Shri Tryambak S/o Manikrao Soyam", was already retired. This Court, therefore, has issued direction to the State Government to release his retirement benefits. The Petitioner, in Writ Petition No. 1226 of 1998, "Shri Namdeo Kankal", expired and his legal are brought on record on 11.6.2014. Petitioner, "Shri Jagdeo Belkhede", reaches age of superannuation just after eight months.

In this situation, we are not inclined to hold that their services are liable to be terminated. In this situation, we direct the respondents to treat deceased "Shri Namdeo Kankal" as having continued in employment validly till his death and compute his retiral benefits accordingly.

The other petitioner, "Jagdeo Belkhede", shall also be treated as similarly continuing in employment till his superannuation and then entitled to his retirement benefits.

It is to be noted that in all these writ petitions, this Court has passed interim orders on 5.10.1998 and stayed the termination orders. These interim orders are operating for over last sixteen years. Hence, without laying down any binding precedent on interpretation of Rule 4 mentioned supra in these peculiar facts, we make the Rule absolute accordingly.

At this stage, Shri G.G. Mishra, learned counsel, points out that "Shri Namdeo Kankal" at the time of his death, was working with Zilla Parishad, Jalna and "Shri Jagdeo Belkhede" is still working with Zilla Parishad, Yeotmal. Shri G.G. Mishra, learned counsel, is requested to communicate the Court''s order to the respective Zilla Parishads.

Thus, the writ petitions are allowed. The Rule is made absolute in above terms. However, there shall be no order as to costs.