WRIT PETITION NO. 6643 OF 2018

15th April 2020

Petitioner Counsel: Shri R. L. Khapre Shri D. R. Khapre
Respondent Counsel: Ms. Shamsi Z. Haider

Cases Cited :
Paras 9, 17: Food Corporation of India and Ors. Vs. Ashis Kumar Gangular and Ors., reported in 2009 AIR SCW 4498
Paras 9, 18: R. P. Sawant and others Vs. Bajaj Auto Ltd. and another, reported in 2002 (1) Mh. L.J. 626

JUDGEMENT

AMIT B. BORKAR , J.

1. Rule. Heard finally with the consent of learned counsel appearing for the parties.

2. This is second round of litigation by the petitioners herein, who had earlier sought regularization of their services, but failed to get relief from this Court. Therefore, in view of purported liberty granted by this Court, the petitioners have approached this Court by way of present petition challenging their termination and seeking relief of reinstatement along with continuity of services and backwages.

3. The relevant facts which are necessary for adjudication of present Writ Petition are as under :-
The petitioners have contended that they were appointed on various dates as mentioned below by following due procedure and were duly qualified for the post of Lecturer in Polytechnic. The dates of appointment and termination stated in the petition are as under :-

Sr.
No.
Petitioner No. Date of Appointment Date of Termination
from service
1. Petitioner No. 1 23.08.2003 10.06.2010
2. Petitioner No. 2 09.03.2005 01.03.2011
3. Petitioner No. 3 08.03.2010 17.11.2012
4. Petitioner No. 4 05.11.2007 26.06.2010

4. Undisputedly, the petitioners alongwith other Lecturers who were allegedly similarly situated with the petitioners, had filed Writ Petition No. 2046/2010 on 23.04.2010 seeking following reliefs :-
“(a) command the respondent State of Maharashtra to regularize the services of the petitioners as lecturers in the Polytechnic by giving the effect of permanency in service since their initial appointment.
(b) order the respondent State to pay the salary to the petitioners equal to the salary paid to the permanent lecturers in the Government Polytechnics from the date of their appointment.
(c) order the respondents to extend the benefit of permanency to the petitioners by fixing the seniority from the date of their initial appointment.
(d) grant interim and ad-interim exparte relief by restraining the respondents from terminating the services of the petitioners during the pendency of this petition.
(e) to grant any other relief including costs as deems fit in the interest of justice.”

5. Undisputedly, the petitioner no. 1 was petitioner in the said Writ Petition at Sr. No. 83, petitioner no. 2 was petitioner at Sr. No. 82, petitioner no. 3 was petitioner at Sr. No. 46 and petitioner no. 4 was petitioner at Sr. No. 51 in the said Writ Petition. During the pendency of the said Writ Petition, it is alleged that the services of the petitioners were terminated. The petitioners in paragraph no. 17 of the present petition, have stated that in Writ Petition No. 2046/2010, the petitioners were granted relief of regularization. The petitioners in paragraph no. 17 of the present petition have averred as under :-
“17. That, in accordance with order passed by this Hon’ble Court as can be seen supra so far as all Petitioners were granted regularization with further direction that those Petitioners, who are in service on 15.10.2013 be continued in service as regular employees. That bare perusal of said order will clearly demonstrate that all Petitioners were granted status of permanency, who have completed 3 years service with technical breaks. Respondents were directed to absorb Petitioners within a period of six weeks, meaning thereby all Petitioners were directed to be absorbed.”

6. The petitioners have averred that the petitioners are entitled to the relief of setting aside their termination and consequent reinstatement mainly in view of the following three reasons :-
(i) The petitioners were entitled to be treated on the same par as regards those petitioners who are regularized in services on account of the order passed in Writ Petition No. 2046/2010 (paragraph no. 21 of the petition).
(ii) From the said chart as well as details given in the petition, it is clear that all the petitioners have completed three years of service so as to get the order of grant of permanency and therefore, the services of the petitioners should not have been terminated without holding Departmental Enquiry (paragraph no. 22 of the petition).
(iii) The respondents have given relief to the six similarly situated lecturers by granting relief of absorption in service in terms of order dates 14.01.2015 as can be seen from the order dated 02.05.2016 passed by the Hon’ble Apex Court in S.L.P. (C) No. 18322/2011 and also granted relief to the identically situated employee namely Shri Madusudan Babaji Ramteke.

7. The petitioners have contended that this Court, in Contempt Petition No. 71/2016, on 12.12.2017 granted liberty to the petitioners to raise their grievances before appropriate forum as per law. Therefore, the petitioners have filed the present petition for seeking relief of setting aside order of termination and order of reinstatement.

8. Respondent nos. 1 and 2 have contested the petition by filing affidavit-in-reply of Shri Dr. Chandrashekhar Shriram Thorat, In-charge Joint Director, Technical Education, Nagpur. The respondents in the said reply have contented that the some of the petitioners, after filing Writ Petition No. 2046/2010 have voluntarily left their employment for better prospects. The respondents annexed a list of such candidates by Annexure-I to the said affidavit-in-reply. The name of petitioner no. 1 appears at Sr. No. 19 of the said chart, petitioner no. 2 at Sr. No. 20, petitioner no. 3 at Sr. No. 6 and petitioner no. 4 at Sr. No. 17. It is pointed out by way of the said chart that, except petitioner no. 1 remaining petitioners have voluntarily left their services and the service of petitioner no. 1 was terminated on 29.10.2010. It is further averred in the said reply that the judgment in Writ Petition No. 2046/2010 read with clarification orders dated 27.04.2017 and 21.11.2017 makes it clear that the relief of regularization/permanency was denied to those petitioners who have left service before 15.10.2013. Since, the petitioners were not in continuous employment as on 15.10.2013, the petitioners are not entitled to any protection of order similar to the order passed in Writ Petition No. 2046/2010.

9. We have heard Shri R. L. Khapre, learned Senior Counsel alongwith Shri D. R. Khapre, Advocate for the petitioners and Ms. Shamsi Z. Haider, A.G.P. for respondent no. 1 and 2. Shri R. L. Khapre, learned Senior Counsel appearing for the petitioners submitted that the petitioners have been appointed through duly constituted Selection Committee and due procedure was followed before their appointment. They were qualified for the said post and have worked for a period of more than three years with technical breaks and therefore, they are entitled to get similar treatment with that of the petitioners in Writ Petition No. 2046/2010. Shri R. L. Khapre, learned Senior Counsel relied upon the judgment of Hon’ble Apex Court in the case of Food Corporation of India and Ors. Vs. Ashis Kumar Gangular and Ors., reported in 2009 AIR SCW 4498 and also in the case of R. P. Sawant and others Vs. Bajaj Auto Ltd. and another, reported in 2002 (1) Mh. L.J. 626.

10. Ms. Shamsi Z. Haider, A.G.P. appearing for respondent no. 1 and 2 submitted that the grievances of the petitioners have already been adjudicated upon in Writ Petition No. 2046/2010. The relief of regularization has been specifically denied to them particularly, in view of the orders of clarification dated 27.04.2017 and 21.11.2017. Once the claim of the petitioners is denied by this Court in earlier round of litigation, fresh petition on the basis of same facts is not maintainable and therefore, prayed for the dismissal of the present petition.

11. We have heard both the sides and carefully gone through the record of the petition. Considering the issue involved in the present petition, we have also perused record of Writ Petition No. 2046/2010. After going through record of both the Writ Petitions, we feel it necessary to consider the prayers in Writ Petition No. 2406/2010 which are quoted in the aforesaid paragraph nos. 4. The petitioners in paragraph no. 17 have pleaded that the petitioners were granted relief of regularization in Writ Petition No. 2046/2010, but thereafter, in view of the clarification orders dated 27.04.2017 and 21.11.2017, the relief of regularization was denied to them. Once the relief of regularization/permanency is denied to the petitioners by virtue of the order of clarification dated 27.04.2017 and 21.11.2017, the remedy available for the petitioners was to challenge the orders of clarification dated 27.04.2017 and 21.11.2017 and not to file the present petition on the basis of same facts. While passing order of clarifications, this Court has made specific observations in respect of those who have left service during the pendency of the said petition. This Court on page no. 3 of the said order of has observed as under :-
“In no case were considering the case of the persons who were already out of employment and there was no question of reinstatement.”
This Court on page no. 6 of the said order it is observed as under :-
“By no stretch of imagination, the said judgment could be applicable to the persons who had already left the job and taken chances.”

12. This Court while passing order dated 21.11.2017 and in paragraph no. 3 of the said order has observed as under :-
“We have further observed that we were not considering the cases of persons who were already out of employment and that there was no question of reinstatement.”
This Court in paragraph no. 4 of the said order and further observed as under :-
“4. If both, judgment and order dated 19th October, 2013 so also clarification order dated 27th April, 2017 are read together the position is very clear that only such of the employees who were in continuous employment as on 15 th October, 2013 are entitled to the protection granted by us.”

13. By taking into consideration specific observations made by this Court, it appears that the relief of regularization has been denied to the petitioners on merits. Therefore, the present petition seeking relief of setting aside termination and reinstatement is not maintainable. The remedy for the petitioners was to challenge the orders of clarification dated 27.04.2017 and 21.11.2017 and not to file separate petition.

14. The second ground on which the petitioners sought relief of setting aside of termination is on the presumption that the petitioners have completed three years of service. Therefore have became permanent. In view of the permanency, the services of the petitioners could not have been terminated without holding Departmental Enquiry. In our view, this Court in earlier Writ Petition No. 2046/2010 has specifically refused to grant relief of regularization to the petitioners. The petitioners therefore cannot seek relief of setting aside termination and reinstatement. Therefore, the second ground for entitlement of relief as prayed, is also not available to the petitioners.

15. The third ground for seeking relief prayed in the petition, is based on an order of Hon’ble Apex Court in S.L.P. No. 18322/2011, wherein similarly situated employee i.e. Shri Madusudan Babaji Ramteke was granted relief. In our view, so far as the case of Shri Ramteke is concerned, it appears that Shri Ramteke had filed Writ Petition No. 563/2011 immediately after their termination and did not wait till denial of the relief to them in Writ Petition No. 2046/2010. It appears that this Court denied relief to Shri Ramteke and others by judgment and order dated 22.06.2011. Immediately thereafter, Shri Ramteke and similarly situated persons filed S.L.P. No. 18322/2011, which was allowed on 06.05.2016. This Court partly allowed Writ Petition No. 2046/2010 on 19.10.2013. The clarificatory orders denying relief to the lecturers who were not in continuous employment on 15.10.2013 were passed on 27.4.2017 and 21.11.2017. Which means that, when this court denied relief to petitioners in WP No. 2046 of 2010, by clarificatory orders dated 27.4.2017 and 21.11.2017, the Apex court had already granted relief to Shri Ramteke. Shri Ramteke had not invited adverse orders against him by waiting till the passing of clarificatory orders. The clarificatory orders dated 27.4.2017 and 21.11.2017 denying relief to the lecturers who were not in continuous employment on 15.10.2013 have attained finality. The facts of the case of Shri Ramteke are not similar to that of the present petitioners particularly, in view of the denial of the relief by this Court in Writ Petition No. 2046/2010 read with clarificatory orders dated 27.04.2017 and 21.11.2017. Therefore, the petitioners are not entitled to get similar treatment with that of Shri Ramteke and others.

16. The order of grant liberty in favour of present petitioners dated 12.12.2017 reads as under:-
“The petitioners can , if it is open to them, raise it before appropriate forum as per law.”
The above order does not create any right in favour of petitioners to file fresh petition , once they are denied relief in earlier round of litigation.

17. The judgment relied upon on behalf of the petitioners in the case of Food Corporation of India (supra) is on the point of constructive res-judicata. In the present case , in earlier round of litigation relief is denied to the present petitioners. The judgment in Writ Petition No. 2046/2010 along with clarificatory orders dated 27.04.2017 and 21.11.2017 amounts to denial of the relief to the petitioners. Therefore, judgment in the case of Food Corporation of India (supra) on the point of constructive res-judicata would not be applicable to the petitioners.

18. The next judgment of the Division Bench of this Court in the case of R. P. Sawant (supra) was relied upon to press the relief of restitution. Though, we cannot dispute the ratio laid down in the said judgment but, in the facts of the present case the relief of restitution has no bearing, as there is no intervening event that has occurred during the pendency of the present petition.

19. Taking into consideration the overall facts and circumstances of the present matter and in view of the relief of regularization being denied by this Court in earlier round of litigation which has attained finality, the petitioners by way of fresh petition, cannot seek relief of reinstatement. Therefore, there is no merit in the present petition.

20. The Writ Petition is dismissed with no order as to costs.