Writ Petition No. 2894 of 2010. Case: State of Maharashtra Vs Shrikrishna Jagannath Laskhare. High Court of Bombay (India)

Case NumberWrit Petition No. 2894 of 2010
CounselFor Appellant: M.P. Thakur AGP and For Respondent: M.S. Karnik, Adv.
JudgesB.H. Marlapalle and U.D. Salvi, JJ.
IssueConstitution of India - Articles 226 and 227; Maharashtra Civil Service (General Conditions of Service) Amendment Rules 2008 - Rules 38(2); Orissa General Finance Rules - Rules 65
Judgement DateDecember 02, 2010
CourtHigh Court of Bombay (India)

Judgment:

Marlapalle, J

  1. Heard Mrs.Thakur, learned AGP for the petitioner and Mr.M.S.Karnik, learned counsel for the respondent.

  2. Rule. Respondent waives service.

  3. Petition is heard finally.

  4. This petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 10.9.2009 passed by the Vice Chairman of the Maharashtra Administrative Tribunal (for short "the MAT") in OA No. 816/09 which was filed by the respondent. The respondent joined the government service as Sales Tax Officer Class II on 5.12.77 and has retired on attaining the age of superannuation from the post of Joint Commissioner of Sales Tax, Palghar, District Thane on 31.3.09. His date of birth in the service book at the time of joining service, was recorded as 16/3/1951. It appears that a few months before his date of superannuation i.e. 4.12.2008 he submitted a representation based on a copy of the birth date extract and school leaving certificate dated 22.10.2008 issued by the Head Master of Central Boys. School at Nimkhedi (Bk.), District Jalgaon, for correction of his date of birth from 16.3.1951 to 24.2.1952. This representation was not decided for few months and therefore he submitted a further representation on 28.3.09. He filed Writ Petition No.27/09 which was disposed off by this Court on 17.3.09 and the Competent Authority was directed to decide the pending representation expeditiously. The Competent Authority decided the representation on 31.3.09 and rejected the claim of the respondent for correction of his date of birth. He therefore approached the Tribunal in OA No.816/09 and succeeded in the same by the impugned order and we deem it appropriate to reproduce the reasoning set out in para 6 of the said order:

    6. After hearing the learned Counsel for the Applicant and the learned Presiding Officer for the Respondents, it is explicitly clear now in view of the amendment to the earlier rule by the Maharashtra Civil Service (General Conditions of Service) Amendment Rules 2008 dated 24th December, 2008, published on 29th January 2009, wherein the restriction of five years has been lifted, as far as an employee who had joined the Government Services on or before 16th August, 1981.

  5. Mrs.Thakur, the learned AGP submitted that the view taken by the Tribunal is grossly erroneous and it is contrary to the circulars issued by the State Government from time to time i.e.24.6.92, 27.9.94 and 3.3.98 as well as the amended Rules 38(2) of the Maharashtra Civil Services (General Conditions of Service) Rules, 2008. She placed reliance on following decisions: i) State of T.N. V/s T.V. Venugopalan, (1994) 6 SCC 302, (ii) State of Punjab and Others V/s S.C.Chadha, (2004) 3 SCC 394. She also relied upon a decision of this Court in the case of Hamid Sh. Dawood Kagadi of Mumbai V/s The Commissioner of Sales Tax, Maharashtra State and Others, (CDJ 2007 BHC 950) wherein this Court had referred to Rule 38 of the Maharashtra Civil Service (General Conditions of Service) Rules.

  6. Mr.Karnik, the learned counsel for the respondent on the other hand has supported the impugned...

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