MAHARASHTRA ADMINISTRATIVE TRIBUNAL MUMBAI

BENCH AT AURANGABAD

ORIGINAL APPLICATION NO. 550 OF 2019

DISTRICT : PARBHANI
Kashinath S/o Govindrao Ghumre, )
Age. 60 years, Occ. Retired, )
R/o House no. 159, Rathi Galli, )
Behind SBI Bank, Selu, Tq. Selu, )
Dist. Parbhani. ) -- APPLICANT

VERSUS

(1) The State of Maharashtra, )

Through the Principal Secretary, )
Accounts & Treasuries, )
Finance Department, Mantralaya,)
Madam Kama Road, Mumbai – 32)

(2) The Director, )

Accounts & Treasuries, )
Mumbai Port Trust, )
Thakarsi House, 3rd floor, )
Shurji Vallabhdas Marg, )
Balard Estate, Fort, Mumbai. )

(3) The Joint Director, )

Accounts & Treasury Office, )
Lekha Khosh Bhavan, Fajilpura, )
Aurangabad. )

(4) The District Treasury Officer, )

Parbhani. ) -- RESPONDENTS

---------------------------------------------------------------------------------------------
APPEARANCE :- Shri Kakasaheb B. Jadhav, learned
Advocate for the applicant.
: Shri D.R. Patil, learned Presenting Officer for
the respondents.
---------------------------------------------------------------------------------------------
CORAM : Hon’ble Shri Bijay Kumar, Member (A)
DATE : 23.11.2021.
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 2 O.A. No. 550/ 2019

ORDER

1. This Original Application No. 550 of 2019 has been filed by the

original applicant Shri Kashinath Govnindrao Ghumre, R/o Selu,

District-Parbhani on 24.06.2019 invoking the provisions of Section

19 of the Administrative Tribunals Act, 1985, thereby challenging

the impugned decision communicated by the respondent No. 4 to

the applicant bearing outward No. dkoh@dks”k@vkLFkk@?kqejs@823@2019] dated

04.06.2019.

2. The brief facts of the case are as follows :-

(a) The applicant was initially appointed for 29 days by order

dated 16.06.1989 in the pay scale of Rs. 950-1150-AB-25-

1500 on temporary basis on the post of Junior Clerk in District

Treasury Office, Parbhani, which is a class-III post. He was

appointed from a category of persons who worked during strike

by Government employees, which is known as “laidkyhu”, by

following prescribed process.

(b) The applicant was continued in temporary service till the

year 1991, when the applicant, apprehending termination of

services, filed a Writ Petition before Hon’ble High Court of

Judicature at Bombay, Bench at Aurangabad bearing W.P. No.

1294/1991, which was transferred to the Maharashtra

 3 O.A. No. 550/ 2019

Administrative Tribunal, Bench at Aurangabad as T.A. No.

20/1992. This Tribunal, in turn, granted interim relief and

directed the respondents to take decision on regularization of

applicant’s services vide its order dated 20.06.2002. However,

later on, this Tribunal disposed of the said T.A. No. 20/1992

(W.P. No. 1294/1991) on 03.12.2002 observing that no judicial

direction can be passed and the respondents to take

appropriate view on the subject of regularization of services of

the applicant.

(c) Subsequently, the respondent No. 1 in T.A. No. 20/1992

(W.P. No. 1294/1991) i.e. the Finance Department issued

Government Resolution No. ladh.kZ 1100@iz-dz- 19@2000@dks”k ¼izz-3½] ea=ky;]

eaqcbZ] dated 11.11.2003 regularizing services of three employees

including the applicant (Ref. page No. 25, Annexure A-2 of

paper book). Plain reading of the said G.R., the complete

background facts are revealed. According to which, the three

temporary employees, including the applicant were appointed

by District Treasury Officer, Parbhani, subject to availability of

candidates recommended by the Subordinate Service Selection

Board. At a point, when the three duly selected candidates

were about to be made available by Subordinate Service

Selection Board, the three temporary employees apprehending

 4 O.A. No. 550/ 2019

termination of their service, filed W.P. No. 1280/1999 and

1283/1999, which were transferred to this Tribunal. After

hearing corresponding Transfer Applications, the Tribunal

disposed of the same as pointed out in para (b) above.

Thereafter, the three employees met Hon’ble Chief Minister of

the State. It is relevant to mention that the State Government,

after taking into account prevailing position all over State in

similar cases, had already regularized services of 3761

temporary employees. A decision was taken to regularize the

services of the three temporary employees from the Parbhani

District Treasury on the similar line w.e.f. 08.03.1999.

(d) The applicant and other two employees, whose service as

Junior Clerk were regularized vide G.R. dated 11.11.2003,

were granted benefits of first time bound promotion w.e.f.

07.03.2011 by granting them pay scale of Rs. 5200-20200,

G.P. 2400 i.e. of pay scale of Accounts Clerk. The applicant

was granted exemption from passing Departmental

Examination w.e.f. 12.04.2004 for that purpose.

(e) The applicant came to know about the Government

Resolution issued by the Finance Department bearing No.

eizU;k&2012@iz-dz- 69@2012@lsok&3] ea=ky;] eaqcbZ 400 032] dated 07.10.2016,

by which temporary service rendered by employees of

 5 O.A. No. 550/ 2019

Maharashtra Public Service Commission and Government

employees of Clerical and Steno and other similar cadres of

Offices in Grater Mumbai were allowed to be taken into

account while granting first time bound promotion. The said

G.R. has been annexed as Annexure A-4, page No. 30 of paper

book for ready reference. Accordingly, the applicant made

representation to the respondent No. 2 on 26.10.2016

requesting for taking into account period of temporary service

from 19.06.1989 to 07.03.1999 for counting 12 years

continuous service for granting time bound promotion.

However, no final decision on the representation made by the

applicant was taken till retirement of the applicant on

30.04.2017 by superannuation.

(f) The applicant made fresh representation requesting for

considering period of his temporary service for time bound

promotion on 10.11.2017. Thereafter, the applicant filed O.A.

No. 267/2019 before this Tribunal on 15.04.2019, which was

disposed of by order passed on 15.04.2019 (Annexure A-15,

page No. 137-138 of paper book), by giving direction to decide

the representations dated 26.10.2016, 22.08.2017 and

10.11.2017 expeditiously and in any case within 3 months

from the date of said order, as per rules on merit.

 6 O.A. No. 550/ 2019

(g) Subsequently, the respondent No. 4 in O.A. No.

267/2019 rejected the representations of the applicant vide

letter No. dkoh@dks”k@vkLFkk@?kqejs@823@2019] dated 04.06.2019.

Thereafter, the applicant has filed the present Original

Application No. 550/2019 on 24.06.2019.

3. Relief prayed for :–

The applicant has sought relief in terms of para no. X(A), X(B),

X(C), X(D) and X(E) of the Original Application, which is reproduced

below :-

“X Relief(s) Sought –

(A) To allow the Original Application.

(B) To quash and set aside the impugned order / letter

dated 4.6.2019 issued by the respondent no. 4,
thereby rejecting the request of the applicant for
counting temporary / ad-hoc services rendered by the
applicant.

(C) To direct the respondents to consider the case of the

applicant for grant of Time Bound Promotion /
Assured Career Progression Scheme on completion of
12/24 years services taking into consideration his
temporary service from the initial date of appointment
i.e. w.e.f. 19.6.1989 to till the date of regularization
i.e. 8.3.1999 in terms of G.R. dated 7.10.2016 issued
by the respondent no. 1 with all consequential
benefits.
 7 O.A. No. 550/ 2019

(D) To direct the respondents to count the temporary / ad-

hoc service rendered by the applicant as qualifying
service as per Rule 30 of M.C.S. (Pension) Rules and
revise the pension of the applicant appropriately and
grant all consequential benefits forthwith.

(E) Any other equitable and suitable relief may kindly be

granted in favour of applicant in the interest of
justice.”

4. Grounds for Relief sought –

The applicant has listed following grounds for relief sought

which is being reproduced verbatim hereunder :-

(I) That, the impugned order passed by the respondent no. 4

dtd. 4.6.2019 is bad in law and liable to be quashed and set
aside.

(II) That, the respondent no. 4 failed to consider the directions

given by this Hon’ble Tribunal and without considering the rules
and directions, the applications are rejected.

(III) That, the respondent no. 4 failed to consider the directions

given in group of original applications no. 732/2013 decided by
this Hon’ble Tribunal and directions given by the Hon’ble High
Court in W.P. No. 9051/2013, dtd. 20.4.22016.

(IV) That, the respondent no. 4 failed to consider the directions

given by this Hon’ble Tribunal in various original applications
and also failed to consider the Rule 30 of M.C.S. (Pension) Rules.
As such, the impugned letter / order is liable to be quashed and
set aside.
 8 O.A. No. 550/ 2019

(V) That, the impugned letter / order is without application of

mind and without reasons and therefore, same is liable to be
quashed and set aside.

(VI) It ought to be considered that, there is clear cut provision

of Rule 30 of M.C.S.(Pension) Rules for counting of temporary ad-
hoc services rendered by the employees before regularization.
(VII) It ought to be considered that, the State Govt. cannot act
discriminatory towards its employees who are working out of the
territorial jurisdiction of the Mumbai and therefore, the G.R. dtd.
7.10.2016 is applicable to the case of the applicant.

(VIII) It ought to be considered that, there are directions of this

Hon’ble Tribunal count the temporary service period for time
bound promotions as per G.R. dtd. 7.10.2016 and therefore said
directions are binding on the respondents. As such, the
impugned order is liable to be quashed and set aside.

(IX) It ought to be considered that, the applicant had rendered

continuous service till the date of regularization and therefore
said period is liable to be counted for time bound promotions as
per rules and guidelines of the Govt. resolutions.

(X) It ought to be considered that, there are directions issued

by this Hon’ble Tribunal to take decision on the applications as
per rules on merit and therefore, merits and rules are not
considered by the respondents while rejecting the applications
submitted by the applicant and therefore, impugned letter is
liable to be quashed and set aside.

(XI) Otherwise, the impugned letter/ order passed by the

respondent no. 4 is bad in law.
 9 O.A. No. 550/ 2019

5. Pleadings :–

Learned Presenting Officer has filed affidavit in reply on behalf

of Respondent nos. 1 to 4 on 04.09.2019. In response, learned

Advocate for the applicant has filed rejoinder affidavit on

16.02.2020. Learned Presenting Officer filed sur-rejoinder on

18.03.2020. As both sides argued on 04.08.2021 that pleadings are

complete, the matter was kept for final hearing, which took place on

18.10.2021 and 28.10.2021. Learned Advocate for applicant

submitted written notes of arguments made on 28.10.2021 whereas,

the learned P.O. submitted that affidavit in reply may be treated as

written notes of arguments on behalf of respondents.

6. Case Laws and Relevant Orders Cited by the Contesting

Parties :-

(a) The Applicant has cited following case laws, orders of

Tribunals and Government Resolutions –

(i) Government of Maharashtra in Finance

Department, Resolution No. eizU;k&2012@iz-dz- 69@2012@
lsok&3] ea=ky;] eaqcbZ 400 032] dated 07.10.2016 (Page No.
30 of paper book).

(ii) Order of Maharashtra Administrative Tribunal,

Mumbai in O.A. No. 732 of 2011 and a group of
O.As, dated 08.06.2016 [Coram: Shri R. J. Malik,
Member-J] (Page No. 64 of paper book).
 10 O.A. No. 550/ 2019

(iii) Order of Maharashtra Administrative Tribunal,

Mumbai, Bench at Aurangabad in O.A. No.
701/2015, dated 22.09.2017 [Coram: Shri J.D.
Kulkarni, Vice Chairman (J)] (Page No. 103 of paper
book).

(iv) Order of Maharashtra Administrative Tribunal,

Mumbai in O.A. No. 1090 of 2017, dated
19.11.2018 [Coram: Shri A. P. Kurhekar, Member -
J] (Page No. 127 of paper book).

(v) Order of Maharashtra Administrative Tribunal,

Mumbai in, Bench at Aurangabad in O.A. No. 663
of 2015, dated 01.12.2016 [Coram: Shri J.D.
Kulkarni, Member-J] (Page No. 113 of paper book).

(vi) Order of Maharashtra Administrative Tribunal,

Mumbai in, Bench at Aurangabad in O.A. No. 586
of 2016 [Coram: Shri J.D. Kulkarni, Member-J]
(Page No. 119 of paper book).

(vii) Judgment of Hon’ble High Court of Judicature at

Bombay, bench at Aurangabad in Writ Petition
No. 9051 of 2013, The State of Maharashtra
and Ors Vs. Smt. Meena A, Kuwalekar and
group of similar petitions (2016 SCC Online Bom
2497: (2016) 3 AIR Bom R 722). (Page No. 38 of
paper book).

(viii) Judgment of Hon’ble High Court of Judicature at

Bombay in Writ Petition No. 7458 of 2010
decided on 19.07.2011, Devidas Bhiku Borkar
 11 O.A. No. 550/ 2019

and Anr. Vs. State of Maharashtra and Anr.

(Page No. 99 of paper book)

(b) On the other hand, the respondents have based their

reliance on the following-

(i) Respondents have given details of intermittent

breaks in service of the applicant during the period
from 21.06.1989 to 31.08.2001, contending that
there was no continuous service during period of
temporary appointments of the applicant which is
essential pre-condition under rule 30 and 33 of
MCS (Pension) Rules, 1982

(ii) Conditions stipulated in G.R. dated 11.11.2003

granting regularization of service to the applicant
w.e.f. 08.03.1999 have been referred to by the
respondents.

(iii) Contention of non-applicability of Government of

Maharashtra in Finance Department, Resolution
No. eizU;k&2012@iz-dz- 69@2012@lsok&3] ea=ky;] eaqcbZ 400 032]
dated 07.10.2016 in the present matter

7. Analysis of Facts and Conclusions-

(A) Following facts stand admitted by the two contesting

parties :-

(i) The applicant was initially appointed on

16.06.1989 for 29 days as a Junior Clerk in pay-scale of

 12 O.A. No. 550/ 2019

950-1150-EB-25-1500 by District Treasury Officer

Parbhani.

(ii) Recruitment process adopted was as per due

procedure prescribed by the Finance Department vide

Government Resolution No. MIS-1083/11706/CR-287

/13/ADM-14, dated 09.04.1984. The said appointment

was for carrying out computerization of the District

Treasuries in the State. Selection of the applicant was

from Open category from candidates of unemployed

persons who had worked during strike period of

Government employees’ ¼laidkyhu½-

(iii) Appointment of the applicant was subject to

availability of candidates recommended by Regional

Selection Board. The tenure of the post of the Applicant

was extended from time to time giving technical break.

(iv) At a time, the Regional Selection Board was likely

to provide duly selected candidates; the applicant filed a

Writ Petition No. 1284/1991, which was transferred to

this Tribunal as T.A. No. 20/1992. This Tribunal

disposed of the matter on 03.12.2002, which has been

quoted by the respondents at para no. 5 of the Affidavit

 13 O.A. No. 550/ 2019

in Reply filed on 03.09.2019 on behalf of Respondent No.

1, to 4 :–

“ We direct that notwithstanding the pending

proceedings the Respondent Authorities can and shall
regularize the Applicant’s cases as is already proposed.”

(v) However, correct relevant part of the order of this

Tribunal, dated 03.12.2002 is as follows (Annexure A-1,

page Nos. 23-24 of paper book):-

“3. It appears that the proposal stated to have been

submitted is still under consideration of the
Government and no final decision as yet has been
taken one way or other. It is entirely up to the
respondent State to take an appropriate view in the
matter and no judicial direction can be given. We
accordingly dispose of the petition with an
observation that the respondents would be at liberty
to take an appropriate decision in the matter.

We may only express that such a decision

would be taken by respondent state as expeditiously
as possible.

The petition stands disposed of with no orders

as to costs.”

This has not been explained by the learned

Presenting Officer.
 14 O.A. No. 550/ 2019

(vi) Thereafter, the applicant along with other 2

similarly placed temporary employees of District

Treasury, Parbhani made representation to Hon’ble Chief

Minister of the State. The temporary services of the

applicant and other two employees were continued as per

requirement and finally regularized vide Government

Resolution in Finance Department No. ladh.kZ 11-00@iz-dz-

19@2000@dks”kk¼iz-3½] ea=ky;] eaqcbZ 400 032] dated 11.11.2003. The

regularization of services was ordered w.e.f. 08.03.1999

and it was mentioned in the order that the applicant

shall not be entitled for any service benefits for the period

of his fortuitous appointment.

(vii) After getting to know about Government of

Maharashtra in Finance Department, Resolution No.

eizU;k&2012@iz-dz- 69@2012@lsok&3] ea=ky;] eaqcbZ 400 032] dated

07.10.2016, the applicant, for the first time, represented

to the District Treasury Officer on 26.10.2016 (page 33 of

paper-book) for taking into account his services on

temporary basis for the purposes of Time-Bound

Promotion and Assured Career Promotion Schemes.

(viii) The applicant retired on 30.04.2017 on

superannuation. After retirement, the applicant made

 15 O.A. No. 550/ 2019

another representation on 10.11.2017 (page 37 of paper-

book) to regularize technical breaks in his temporary

service so as to make him eligible for continuity of service

for consequential service benefits.

(ix) As his representations had not been decided, the

applicant filed and original application before this

Tribunal in the year 2019, Delay in filing the O.A. was

condoned by the Tribunal vide its order 20.03.2019 in

M.A. No. 442/2018 and the O.A. was registered as O.A.

No. 267/2019. The Tribunal disposed of the O.A. No.

267/2019 on 15.04.2019 giving directions to the

Respondents to decide representations made by the

applicant [Coram: Shri Atul Raj Chadha, Member-A].

Respondent No. 4 examined the representation of

applicant dated 07.10.2016 and rejected the same vide

communication dated 04.06.2019.

(x) It is thereafter, the present O.A. No. 550 of 2019

has been filed.

B. Analysis of Facts on Record and Oral Submissions-

(a) Argument raised by the learned Presenting officer

that the Government Resolution in Finance Department

 16 O.A. No. 550/ 2019

No. ladh.kZ 11-00@iz-dz-19@2000@dks”kk¼iz-3½] ea=ky;] eaqcbZ 400 032] dated

11.11.2003 has clear mention that the applicant shall

not be entitled for any service benefits for the period of

his fortuitous appointment has been under challenge

multiple times before various judicial forum and it is well

established that this argument does not hold water.

(b) Reference is drawn to the Judgment of Hon’ble

High Court of Judicature at Bombay, bench at

Aurangabad in Writ Petition No. 9051 of 2013, the State

of Maharashtra and Ors Vs. Smt. Meena A, Kuwalekar

and group of similar petitions (2016 SCC Online Bom

2497: (2016) 3 AIR Bom R 722). It can be termed as the

water-shed judgment in this respect which has settled

the issue whether or not temporary services of a

government employee, rendered prior to regularization of

his/her services, should be taken in to account for

granting benefits of Time-Bound Promotion Scheme and

Modified Assured Career Promotion Scheme. For this

purpose following can be said to be the acid tests :-

(i) The post on which temporary appointment has

been made is a permanent post and vacancy thereon is
sanctioned.
 17 O.A. No. 550/ 2019

(ii) There is no back-door entry and a fair, transparent

procedure, as prescribed, has been followed for making
recruitment.

(iii) Regular service includes continuous service for

which technical break is to be ignored.

(iv) Employee had requisite qualification prescribed in

respective recruitment rules.

(v) From the date of appointment the employee has

been placed in the regular pay scale to the post to which
he came to be appointed

In the present matter, the facts show that the Acid Test

criterion is fully met.

(c) Learned Presenting Officer has emphasized on break in

service of 1 to 3 days every time before renewal of engagement

letter of the applicant. He has cited provisions of rule 33 of the

Maharashtra Civil Services (Pension) Rules, 1982. However,

technical breaks have not been recognized for the purpose of

counting period of qualifying /continuous services in cases the

employee’s service is subsequently regularized to hold a

substantive post. This position has been upheld by the

Judgment of Hon’ble High Court of Judicature at Bombay in

Writ Petition No. 7458 of 2010 decided on 19.07.2011,

Devidas Bhiku Borkar and Anr. Vs. State of Maharashtra

and Anr., too.

 18 O.A. No. 550/ 2019

(d) Learned presenting officer has contended non-

applicability of Government of Maharashtra in Finance

Department, Resolution No. eizU;k&2012@iz-dz- 69@2012@lsok&3] ea=ky;]

eaqcbZ 400 032] dated 07.10.2016 in the present matter. Even

though, the said G.R. dated 07.10.2016 relates to recruitment

on posts in offices falling under territorial jurisdiction of

Greater Mumbai and those which are under ambit of

Maharashtra Public Service Commission (MPSC), this Tribunal

in O.A.s mentioned at preceding para No.s 6 (a) (v) and 6 (a) (vi)

has upheld the applicability of the said G.R. dated 07.10.2016

in cases under jurisdiction of the Tribunal, Bench at

Aurangabad even for the post not being under ambit of MPSC.

It is possible that the respondents may not have brought the

correct position to the notice of the Tribunal. In my considered

opinion, the contention of respondents in this regard holds

good, however, it is a fact that the respondents have not

preferred judicial review of related orders. Further, recording

any different view on the same may not lead us to any different

conclusion in the light of judgment in Smt. Meena A.

Kuwalekar case.

(e) The applicant has not been prompt in making

representations and the first representation was made on

 19 O.A. No. 550/ 2019

16.10.2016, i.e. less than 6 months before retirement, citing

provisions of GR dated 07.10.2016 for employees recruited

initially on temporary basis by offices falling under territorial

jurisdiction of Greater Mumbai and on posts under ambit of

MPSC. The applicant has, through the said representation,

demanded the first time bound promotion to be granted to him

with effect from 16.06.2001 instead of one granted w.e.f.

08.03.2011 and accordingly, the second time-bound promotion

12 years thereafter i.e. 16.06.2013. This shows that the

applicant has raised demand in year 2016 for granting him

benefits of the first time-bound promotion w.e.f. year 2001

and so on, which constitutes delay on his part.

Conclusions - Mandate that is set out by the Judgment of Hon’ble

High Court of Judicature at Bombay in case of Smt. Meena

Kuwalekar’s case has settled the issue under consideration whether

period of temporary service of an employee whose services have been

regularized at a subsequent date, should be taken in to account for

granting benefits of schemes of Time Bound Promotion and Modified

Assured Career Promotion Scheme. In addition, the Judgment of

Hon’ble High Court of Judicature at Bombay in Writ Petition No.

7458 of 2010 decided on 19.07.2011, Devidas Bhiku Borkar and

Anr. Vs. State of Maharashtra and Anr. has settled the issue of
 20 O.A. No. 550/ 2019

taking into account continuous temporary services of a temporary /

ad-hoc employee holding substantive post at the time of retirement

should be taken into account as per provisions of rule 30 of MCS

(Pension) Rules, 1982. Based on above analysis of facts on records

and oral submissions made, I am of the opinion that there is merit

in the Original Application. However, there is unexplained delay in

making the first representation dated 26.10.2016, From above facts,

it appears that this fact was not put before this Tribunal in the

Miscellaneous Application filed for condonation of delay and delay

was represented to be there with reference to the subsequent

development(s). Considering facts on record and oral submissions

made, I, hereby, pass following orders-

ORDER

The Original Application No. 550 of 2019 is allowed in

following terms :-

(I) Temporary services rendered by the applicant from

16.06.1989 till 08.03.1999 be taken into account for
granting benefits of the schemes of Time-Bound
Promotion and Modified Assured Career Promotion, as
the case be, subject to fulfilling other eligibility criterion
stipulated under the said schemes. However, no interest
shall be payable for reason of the delay being
contributory.
 21 O.A. No. 550/ 2019

(II) Temporary services rendered by the applicant from

16.06.1989 till 08.03.1999 should also be taken into
account as qualifying service as per rule 30 of
Maharashtra Civil Services (Pension) Rules, 1982. Any
additional amount determined by this exercise to be
payable, shall be without interest thereon.

(III) Above orders be implemented as expeditiously as

possibly but preferably within 6 months of receipt of this
order.

(iv) Learned Chief Presenting Officer may suitably convey to

the Additional Chief Secretary General Administration/
Finance Department of the State Government to take
necessary steps to realign related MCS Rules and
Government Resolutions with mandates set out by
related case laws which have attained finality.

(v) No Orders as to Costs.

(BIJAY KUMAR)
MEMBER (A)
Place : Aurangabad
Date : 23.11.2021.
KPB- ARJ-O.A. NO. 550-2019 B. KUMAR (BENEFIT OF G.R.)