As per case facts, the Petitioner, initially an Urdu Typist and later an Urdu Stenographer, served continuously for 35 years on a temporary basis. His prayer for regularization was declined ...
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WP-13422-2024-JF.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13422 OF 2024
NASIM ALI AHSANULLAH KHAN,
Age: 64 years, residing at,
Flat No. 1, Building No. 7-B, Takshila CHS
Ltd., Mahakali Caves Road, Andheri (East),
Mumbai 400 093.…PETITIONER
~ versus ~
1.THE STATE OF MAHARASHRTA,
through the Principal Secretary,
General Administration Department,
Mantralaya, Mumbai 400 032.
2.PRINCIPAL SECRETARY,
Social Justice, Cultural Affairs & Sports
Department, Mantralaya,
Mumbai 400 32.
3.GOVERNMENT OF MAHARASHTRA,
through the Secretary, Minority
Development Department, Madam Kama
Road, Mantralaya, Mumbai 400 032.…RESPONDENTS
APPEARANCES
For the Petitioner Faran Khan, with Mutahhar Khan,
Mittal Munoth, Anushka Jain Harshil
Gandhi.
For Respondent-State Mr Aditya Deolekar, AGP.
Present in Court Mr Jahangir Khan, Under Secretary,
(Minority Development Department).
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Mr Chetan Dusani, Desk Officer,
(Minority Development Department).
CORAM:SUMAN SHYAM &
ADVAIT M. SETHNA, JJ.
RESERVED ON:9
th
JULY 2026.
PRONOUNCED ON:7
th
AUGUST 2026.
JUDGMENT ( Per Suman Shyam, J) :-
1.Heard. Rule. Rule made returnable forthwith. By consent of
the parties, taken up for final hearing.
2.The Writ Petitioner herein was the Original Applicant before
the learned Maharashtra Administrative Tribunal (MAT) in Original
Application No. 68 of 2004 as well as Original Application No.
1136 of 2016. In Original Application No. 68 of 2004, the Writ
Petitioner had
inter-alia prayed for an order for regularization of
his service as Urdu Typist with effect from 6
th
January 1981 and as
Urdu Stenographer (H.G.) with effect from 17
th
May 1991, which
relief was declined by the learned Tribunal by order dated 1
st
September 2005 passed in Original Application No. 68 of 2004, by
observing that the Petitioner did not possess the requisite
certificate prescribed under the Recruitment Rules for
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SHEPHALI
SANJAY
MORMARE
Digitally signed
by SHEPHALI
SANJAY
MORMARE
Date: 2026.08.07
15:26:33 +0530
WP-13422-2024-JF.doc
regularization of his service and that there was a Departmental
Enquiry pending against him at that point of time. The
Departmental Enquiry was subsequently concluded and the
Petitioner was exonerated. His suspension was also revoked.
Notwithstanding the same, the service of the Petitioner was not
regularized. On the contrary, by order dated 30
th
November 2016,
the service of the Petitioner was terminated, after he had rendered
35 years continuous service under the Respondents, that too,
without serving any Show Cause Notice. Aggrieved thereby, the
Petitioner had approached the learned Tribunal for the second time
by filing Original Application No. 1136 of 2016 assailing the order
of termination of service, by making a further prayer for
regularization of his service, with consequential benefits. By the
impugned order dated 16
th
October 2022, the learned MAT had
partly allowed the Original Application No. 1136 of 2016, by
setting aside the order of termination of service and directed
payment of arrear salary with 9% interest to the Petitioner for the
period of suspension. However, the prayer of the Petitioner for
regularization of his service had once again been declined by the
learned MAT, primarily on the ground that the same prayer was
earlier rejected by order dated 1
st
September 2005 passed in
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Original Application No. 68 of 2004. The order dated 16
th
October
2022 passed in Original Application No. 1136 of 2016, to the
extent the same had declined the prayer for regularization of
service of the Petitioner as well as the earlier order dated 1
st
September 2005 passed in Original Application No. 68 of 2004
have both been put under challenge in the instant Writ Petition.
The facts and circumstances of case, giving rise to the filing of the
Writ Petition, briefly stated, are as hereunder.
3.On 16
th
April 1975, the Government of Maharashtra had
established the Maharashtra State Urdu Academy. The academy
was initially placed under the administrative control of the General
Administration Department (“GAD”). However, subsequently, the
Academy was placed under the administrative control of the Social
Justice, Cultural Affairs & Sports Department. Thereafter, it was
placed under the administrative control of the Minority
Development Department. On being sponsored by the Employment
Exchange, the Writ Petitioner was appointed as Urdu Typist, on
temporary basis, vide order dated 6
th
January 1981, in the pay
scale of Rs. 260-10-390-15-420 Extension 15-95 plus allowances.
The Petitioner had accordingly, joined the post of Urdu Typist.
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While the Petitioner was rendering service as Urdu Typist, by order
dated 23
rd
July 1990 issued by the Under Secretary, Education and
Employment Department, recommendation was made to appoint
the Petitioner as Urdu Stenographer (H.G.) which is a higher grade
post. Consequently, on 10
th
May 1991, appointment order was
issued appointing the Petitioner as Urdu Stenographer (H.G.) with
effect from 7
th
May 1991 for a period of six months or till regular
selection through the Maharashtra Public Service Commission
(“MPSC”). It appears from the appointment order dated 10
th
May
1991 that the appointment of the Petitioner was against the
sanctioned vacant post of Urdu Stenographer (H.G.), which was
created for the Urdu Academy, as per the Government Resolution
(“GR”) i.e. GAD No. Establishment 1190/36/90/19A, dated 11
th
July 1990.
4.Since the appointment of the Petitioner in the post of Urdu
Stenographer (H.G.), as aforesaid, was also on temporary basis,
hence, his appointment was extended from time to time by issuing
fresh orders of appointment. Record reveals that successive orders
including the orders dated 27
th
November 1992, 15
th
April 1993,
8
th
March 1994, 27
th
April 1994, 13
th
September 1994 and 30
th
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March 1995 were issued, thus permitting the Petitioner to continue
in the post of Urdu Stenographer (H.G.), without any break in his
service. It may be noted therein that the temporary service of the
Petitioner had to be extended from time to time since there was no
other candidate who was available for filling up the vacancy on
regular basis.
5.On 18
th
April 1994, the recruitment rules for the post of
Urdu Stenographer (H.G.) were notified. As per Rule 3(b)(iii) of
the Rules of 1994, one of the criteria for regular recruitment to the
post of Urdu Stenographer (H.G.) on the basis of nomination was
that the candidate must possess a certificate from the recognized
institution certifying that the candidate has Urdu Shorthand speed
of 120 words per minute and Urdu Typing speed of 30 words per
minute.
6.In the year 1995, MPSC has initiated a process for selection
of candidate for recruitment in the post of Urdu Stenographer
(H.G.) on regular basis. The Petitioner was the sole applicant for
the SAID post. He had appeared in the written examination held
on 4
th
November 1995 and, thereafter, in the oral interview.
However, the Petitioner could not produce any certificate from a
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recognized institute, as per the requirement of Rule 3(b)(iii) of the
Rules of 1994, as a result of which, the MPSC did not recommend
his name for appointment on regular basis. It transpires from the
documents on record that there was no such institution in the
State of Maharashtra having the recognition of the Government for
issuing such certificate pertaining to Urdu Shorthand and
Typewriting. As such, by taking note of the said fact, the MPSC had
recommended amendment in the recruitment Rules by suggesting
that the requirement of obtaining a certificate from a recognized
institute be replaced by inserting knowledge of Urdu Shorthand
and Typewriting.
7.On 10
th
August 2001, the Maharashtra State Examination
Board had also informed the Government that it does not conduct
examination in Urdu Shorthand and Urdu Typewriting. On 22
nd
April 2002, the MPSC had again communicated to the Respondent
No. 2 to carry out amendments in the recruitment rules, so as to
facilitate appointment/regularization in the post of Urdu
Stenographer (H.G.). However, no such action was taken in the
matter. On the contrary, by order dated 30
th
July 2002, the
Petitioner was placed under suspension pending drawal of
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Departmental Enquiry (“DE”). On 29
th
March 2003, DE was
initiated against the Petitioner as per the provisions of Maharashtra
Civil Services Rules, 1979 (“MCSR”) by framing as many as three
different charges against him.
8.Being aggrieved thereby, the Petitioner had instituted
Original Application No. 68 of 2004 before the Maharashtra
Administrative Tribunal (“MAT”) seeking a direction for
regularization of his service as Urdu Typist with effect from 6
th
January 1981 and as Urdu Stenographer (H.G.) with effect from
17
th
May 1991. However, as has been noted hereinabove, the said
prayer of the Petitioner was declined by the learned MAT by order
dated 1
st
September 2005, primarily on two counts, viz., (i) that
the Petitioner did not possess the certificate issued by the
recognized institute so as to fulfill the requirement of Rule 3(b)(iii)
of the Rules of 1994 and, (ii) there was a Departmental Enquiry
pending against him.
9.On 15
th
January 2010, the suspension of the Petitioner was
revoked and he was allowed to join back his duties. On 29
th
September 2010, the Petitioner was exonerated from all the
charges and the Departmental Enquiry was concluded. The
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Petitioner was let-off by giving him a warning to remain cautious
in future. Subsequently, by order dated 29
th
April 2011, the period
of suspension of the Petitioner from 30
th
July 2002 to 15
th
January
2010 was also regularized by treating the same as “on duty”.
10.It appears from the material on record that during the period
from 2011 to 2015, the Petitioner had made several
representations before the authorities seeking benefit of the 5
th
and
6
th
Pay Commission recommendations by renewing his prayer for
regularization of service. However, no action was taken on such
representation submitted by the petitioner. The Writ Petitioner was
also aggrieved on account of the fact that while the Government
had regularized the services of one Javed Abdul Wahid Khan, a
temporary Clerk-Typist (Urdu) on 9
th
February 2015 and another
candidate who was temporarily working as a Gujarati Clerk even
though they do not possess the certificate from a recognized
institution, yet, parity of treatment on such count was not
extended to the Writ Petitioner.
11.In the year 2016, the Petitioner had again submitted another
representation, thus renewing his prayer for regularization in
service. However, on such count also, there was no favourable
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response from the authorities. On the contrary, by issuing the order
dated 30
th
November 2016, the services of the Petitioner was
terminated. It appears from the material on record that although
the Petitioner was exonerated in the DE, yet, his service was
terminated on similar allegations, based on order dated 1
st
September 2016 passed by Up-Lokayukta on a complaint made by
a third party, whereby a direction was issued to the effect that
steps should be taken in respect of the illegalities committed by the
Petitioner.
12.It is the case of the Petitioner that no prior notice was served
before terminating his service by issuing the order dated 30
th
November 2016. Therefore, assailing the order of termination of
service, the Petitioner had approached the learned MAT for the
second time by filing Original Application No. 1136 of 2016, with a
prayer to set aside the order of termination from service and also
to issue a direction for regularization of service and for payment of
consequential benefits. By the order dated 16
th
October 2022,
passed in Original Application No. 1136 of 2016 filed by the
Petitioner, the Original Application was partly allowed by
interfering with the order of termination from services and a
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direction was also issued to pay the arrear salaries along with 9%
interest, for the period of suspension. The learned MAT had,
however, declined the relief of regularization of service on the
ground that the Writ Petitioner/Original Applicant does not fulfill
the requirement of Rules of 1994. It will be significant to note
herein that the learned MAT has, frowned upon the Respondents
for having such a rule in existence for a long time, which was not
capable of being implemented due to the absence of any
recognized/approved institution issuing such certificate as
contemplated by Rule 3(b)(iii) of the Rules of 1994. The relevant
part of the Judgment and Order dated 16
th
October 2022 passed by
the learned MAT in Original Application No. 1136 of 2016 is
reproduced hereinbelow for ready reference:-
“9. In this matter, the fact about the appointment of the
applicant as Urdu Typist on 6.1.1981 and thereafter his
appointment as Higher-Grade Stenographer (Urdu) on
17.5.1991 is not disputed by the Respondents. It is also true
that the post of Urdu Typist was lapsed in between and he
worked thereafter as Higher-Grade Stenographer (Urdu). The
Respondent-State has categorically admitted on affidavit filed
by Shri Anupkumar Yadav, Secretary, Minorities Development
Department that there is no Government recognized Institute
in the State of Maharashtra to conduct examination of Urdu
Typist and Urdu Stenographer. Therefore, it was just not
possible for the applicant to produce such Certificate. We are
fully aware that the applicant had earlier filed Original
Application No. 64/2004 seeking regularization of his services
as Urdu Typist or Higher-Grade Stenographer (Urdu) and the
said Original Application was rejected by this Tribunal by order
dated 1.9.2005, after adjudicating the issues on merit. The said
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order was not challenged by the applicant by filing Writ
Petition before the Hon'ble High Court. Thus, the said order as
on today it holds the field. We are not the Appellate Authority
and therefore, cannot deal with the issue of regularization of
the services of the applicant either as Urdu Typist or Higher-
Grade Stenographer (Urdu). However, the Government has
appointed the applicant in the year 1981 when there were no
recruitment rules for appointment of Urdu Typist or Higher-
Grade Stenographer (Urdu). Subsequently, after 12 to 13 years
on 18.4.1994 the Recruitment Rules for the post of Higher-
Grade Stenographer (Urdu) was framed by the Government
and as per the said rules the speed for Typing and Shorthand is
prescribed. It is necessary on the part of the Respondent-State
to provide the names of the Institute which are recognized or
approved by the State to enable the Government employee or
the person to take training or to get his qualification certified
by the said recognized/approved Institute. Till today, the
Government has not decided any Institute which is recognized
or approved for Urdu Typing or Urdu Shorthand as per the
1994 Recruitment Rules. The said Rules are still in existence
without providing the name of the recognized Urdu Institute. It
is shocking to come across such a mockery of its own rules
framed by the Government. We direct, the Secretary, Minorities
Development Department, Respondent no. 3, to find out which
Institute can be approved/registered for Urdu Typing and Urdu
Shorthand so that in future no person like the applicant shall
suffer.
10. So far as the termination order is concerned, it is illegal
and malicious order, which we are inclined to quash and set
aside. Admittedly, departmental enquiry was conducted by the
Respondents for the charges levelled against the applicant. At
this stage, we do not want to comment on these charges which
were rightly held by the Enquiry Officer not sustainable and the
Enquiry Officer has rightly exonerated the applicant and as per
the Maharashtra Civil Service Rules if the Enquiry Officer has
exonerated the delinquent officer and the report is submitted to
the Disciplinary Authority, the Disciplinary Authority has every
power either to accept or reject the report. By order dated
23.9.2010, the applicant was exonerated of all the charges and
he given warning that he should not participate in education
and religious activities of Muslim religion and so also collecting
donations from various National and International sources and
using the same to propagate Islam. Further the suspension
period of the applicant from 30.7.2002 to 15.1.2010 was
treated as period spent on duty and regularized. Five years
thereafter, on the complaint by third Party, the file of the
applicant was reopened by the Upa Lokayukta. By order dated
1.9.2016 the Upa Lokayukta, Dr Sailesh Kumar directed the
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Respondents to take steps in respect of the illegality committed
by the applicant. Pursuant to the recommendations of the Upa
Lokayukta the order of termination dated 30.11.2016 was
passed.
11. We have perused the order dated 30.11.2016
terminating the services of the applicant. We are surprised to
see the procedure followed by Mr Shyamlal Chaure, Deputy
Secretary, Minorities Development Department. He has passed
the order on the basis of his own perceptions and subjective
bias. No notice was served to the applicant as to why his
services are not to be terminated. Even on receiving the report
and directions of the Upa Lokayukta dated 1.9.2016, the
Government is not authorized to terminate unilaterally and
summarily the services of the applicant and especially when he
was exonerated from the charges in the D.E. The entire order
appears biased and baseless as the applicant was not given any
show cause notice, which is against the principles of natural
justice. Thus, it leads to travesty of justice.
12. We have been informed by the learned counsel for the
applicant that the Respondents did not pay the arrears for the
period of suspension, though there was specific order of his
reinstatement and it was ordered that applicant is entitled to
get the pecuniary benefits during that period. Learned P.O on
our query and on the basis of the instructions from the
Respondents admitted that the dues during the suspension
period of applicant remained to be paid and it is calculated by
the Respondents. We express that the applicant has suffered
injustice and the Government completely ignored the fact of his
reinstatement and payment of the amount during that period.
Hence, the applicant is entitled to get interest @ 9% p.a from
year-wise whenever it fell due.
13. In view of the above, we pass the following order:-
(a) The Original Application is allowed.
(b) The impugned order dated 30.11.2016 terminating the
services of the applicant is quashed and set aside.
(c) The applicant is entitled to arrears of salary for the
suspension period from 30.7.2002 to 15.1.2010 along
with 9% interest p.a.”
13.Aggrieved by the order of the learned MAT to the extent the
same had rejected the prayer of the Writ Petitioner/Original
Applicant for regularization of service, the present Writ Petition has
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been filed. The primary contention of the Petitioner is that the
Rules of 1994 were not in force on the date on which the Petitioner
was appointed as Urdu Stenographer (H.G.). Therefore, such Rules
cannot have any retrospective bearing on the question of
regularization of service of the Petitioner. It has also been
contended that in the absence of any recognized institute in the
State of Maharashtra issuing a certificate for Urdu Stenography/
Typewriting, it would be impossible for any candidate to fulfill the
requirement of Rule 3(b)(iii) of the Recruitment Rules, 1994.
Therefore, the rules are liable to be declare as illegal and not
enforceable in law.
14.The Petitioner has further contended that having spent long
years of service in the department as Urdu Stenographer (H.G.),
the learned Tribunal was not correct in rejecting the prayer of the
Petitioner for regularization of service merely by relying upon Rule
3(b)(iii) of the Rules of 1994, which was not capable of being
implemented. Further, the opinion expressed by the learned
Tribunal in Judgment and Order dated 16
th
October 2022 to the
effect that in view of rejection of the same prayer for regularization
of service by the earlier order dated 1
st
September 2005 passed in
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Original Application No. 68 of 2004, according to the Petitioner
was erroneous as in the meantime, the departmental proceeding
pending against the Petitioner had been closed. As such, according
to the petitioner, the very basis of the Order dated 1
st
September
2005 was non-existent at the time when the impugned Order
dated 16
th
October 2022 was passed. Therefore, the learned
Tribunal has committed manifest illegality in failing to consider
that the ground realities under which the order dated 1
st
September 2005 was passed, had substantially altered, justifying a
fresh consideration of the prayer for regularization of service of the
Writ Petitioner on merit.
15.The Respondents have contested the case of the Petitioner,
inter alia
, contending that in view of rejection of the prayer for
regularization made by the Petitioner by order dated 1
st
September
2005 passed in Original Application No. 68 of 2004, the same
prayer could not have been entertained by the learned MAT in the
subsequent Original Application No. 1136 of 2016. Therefore, the
prayer for regularization of service made by the petitioner has been
rightly rejected by the learned MAT. The Respondents have further
contended that the appointment of the Writ Petitioner as Urdu
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Typist on 6
th
January 1981 and Urdu Stenographer (H.G.) on 10
th
May 1991, were both temporary in nature and were made as stop-
gap arrangements so as to ensure that the institution remained
functional until such time, regular recruitment in the post, through
the MPSC was completed. Therefore, according to the
Respondents, mere long period of temporary service would not
vest any right on the Petitioner for permanent absorption and/or
regularization of his service.
16.Coming to the question of validity of the provisions of Rule
3(b)(iii) of the Rules of 1994, the Respondents have contended
that it is the prerogative of the Executive to frame Rules
prescribing the criteria/qualification/ experience for recruitment.
As such, the prescription of the Rules ought to be followed for
filling up the posts on regular basis under the Recruitment Rules.
Therefore, the opinion of the MPSC or the Examination Board
indicating the non-availability of any recognized institute to issue
the certificate of proficiency in Urdu Stenography or Typewriting
cannot be a ground to dilute the provisions of the Rule.
17.The Respondents have further contended that since the
service of the Petitioner was never regularized, and he continued
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to serve as temporary employee, hence, the benefit of the Pay
commission recommendations would not be applicable to
temporary employees like the Writ Petitioner. However, according
to the Respondents, as sum of Rs. 2,88,368/- (Rupees Two Lakhs
Eighty Eight Thousand Three Hundred Sixty Eight) was
determined and paid to the Petitioner, as arrear salary, as per the
directions issued by the learned MAT. Contending that this is not a
case of enforcement of any statutory right or fundamental right of
the Petitioner, the Respondents have prayed for dismissal of the
Writ Petition.
18.During the course of arguments, Mr Faran Khan, learned
counsel for the Writ Petitioner, has argued that the initial
appointment of the Petitioner in the post of Urdu Typist, having
been made through the Employment Exchange and against a
regular vacancy, the said process was in accordance with law. The
appointment of the Petitioner to the post of Urdu Stenographer
(H.G.) was also on the basis of order passed by the authorities.
Therefore, submits Mr. Khan, for all practical purposes, it was a
regular appointment. Contending that save and except the
certificate contemplated by Rule 3(b)(iii) of the Rules of 1994, the
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Petitioner had fulfilled all other conditions of the Rules for
regularization of his service. Mr. Khan has further argued that the
Respondents were not justified in continuing with the service of
the Petitioner as a temporary employee. The fact that the Petitioner
was the only Applicant before the MPSC for the post of Urdu
Stenographer (H.G.), according to the learned counsel for the
Petitioner, is sufficient proof of the fact that it was not possible for
any candidate to fulfill the requirement of Rule 3(b)(iii). The
learned Counsel has, therefore, argued that in the absence of any
recognized institute being available in the State, it would be
impossible for any person to comply with such requirement of the
Recruitment Rules and the said fact is also well within the
knowledge of the Respondents.
19.Mr Khan has further argued that the learned MAT has
committed manifest illegality in failing to consider the fact that in
the earlier round, the regularization in service of the Petitioner
could not take place due to the pendency of the Departmental
Enquiry and it was in such factual backdrop, that the prayer was
declined. However, submits Mr. Khan, the Writ Petitioner having
been exonerated of the charges brought against him in the
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departmental proceeding, he was entitled to a fresh and
independent consideration of the prayer for regularization, which
was incorrectly declined by the learned MAT.
20.In support of the above arguments, the learned Counsel for
the Petitioner has relied upon the following decisions:
i.State of Gujarat & Ors. Vs. Talsibhai Dhanjibhai
Patel, 2022 SCC OnLine SC 2004.
ii.Dnyaneshwar Madhao Wankhede (through
L.Rs.) v. State of Maharashtra & Ors., W.P. No.
5476 of 2017 (Bom. HC, Nagpur Bench), dt.
26.03.2019.
iii.Yashwant Hari Katakkar v. Union of India & Ors.,
(1996) 7 SCC 113.
iv.State of Punjab & Anr. v. Suresh Kumar Sharma,
(2010) 11 SCC 667.
v.Yashwant Arjun More & Ors. v. State of
Maharashtra & Ors., (2014) 13 SCC 264.
vi.V.N. Nabar v. State of Maharashtra, 1981 SCC
OnLine Bom 505 : 1981 Lab. I.C. 1609.
vii.State of Maharashtra & Ors. v. Ravindranath
Kautik Mohite, 2016 (6) Mh.L.J. 440 (Bom. HC).
viii.Kaliram S/o Budhaji Usendi & Anr. v. State of
Maharashtra & Ors., W.P. No. 5841/2024 (Bom.
HC, Nagpur Bench), dt. 01.10.2025.
ix.Nilkanth S/o Manikrao Kulkarni v. State of
Maharashtra & Ors., W.P. No. 1359 of 2017
(Bom. HC, Aurangabad Bench), dt. 07.04.2026.
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x.State of Maharashtra & Ors. v. Tulsiram
Raghunath Sawant, 2026:BHC - AUG: 9078
(Bom. HC, Aurangabad Bench), dt. 24.02.2026.
xi.G.L. Oberoi v. Lal Dev Pandit, 2021 SCC OnLine
Del 5839 : (2022) 286 DLT 287.
xii.Fazlulla & Ors. v. Smt. Khathunnisa (through
L.Rs.) & Ors., NC: 2025:KHC:26780 (High Court
of Karnataka), dt. 17.07.2025.
21.Mr. Deolekar, learned AGP, on the other hand, has supported
the stand of the Respondents taken in the affidavit-in-reply and has
argued that, being an employee, whose service was never
regularized in accordance with law, the Petitioner cannot claim the
benefit of, either the pay revisions or any pensionary rights under
the Rules, since the Pension Rules would not have any application
in case of a temporary employee.
22.We have considered the arguments advanced by the learned
Counsel for the parties and have also carefully gone through the
material on record. As would be evident from the facts narrated
above, the primary grievance of the Petitioner is/was on account of
the fact that his service was not regularized by the Authorities,
despite having rendered continuous service for 35 long years. The
Respondents, by taking recourse to Rule 3(b)(iii) of the Rules of
1994, have denied the benefit of regularization of service to the
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Petitioner, although, in the absence of any recognized institute in
State of Maharashtra, which could issue a certificate, as required
under the Rules, it was impossible for any candidate to secure an
order of regularization of service in the post of Urdu Typist or Urdu
Stenographer.
23.There is no controversy in this case about the fact that the
initial appointment of the Petitioner, as Urdu Typist on 6
th
January
1981, was on temporary basis but his appointment was against a
sanctioned post carrying a pay scale. The appointment of the
Petitioner as Urdu Stenographer was also against a sanctioned
vacant post carrying a pay scale. His appointment was made as per
recommendation of the Under Secretary of Education and
Employment Department.
24. It is a matter of common knowledge that around the year
1981, appointments in Grade-III and Grade-IV posts in the
Government Department used to be made based on candidates
sponsored through the Employment Exchange. That was not only a
permissible mode of recruitment in Government job but was also a
recourse frequently adopted by the Government Departments.
Viewed from that angle, we do not find any illegality in the
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appointment process of the Petitioner, at least in the post of Urdu
Typist although it is correct that the Petitioners appointment as
Urdu Typist was on temporary basis. Subsequently, the MPSC had
conducted selection process for filling up the post of Urdu
Stenographer on regular basis and the Writ Petitioner also took
part in the said process. However, it is apparent from the
documents on record that the only reason for which, the name of
the Petitioner was not recommended by the MPSC was on account
of the fact that he had failed to produce the certificate from a
recognized institute as required under Rule 3(b)(iii) of the Rules of
1994. It is, however, the admitted position that in the absence of
any recognized institution in the State of Maharashtra issuing such
certificate, it would not have been possible for any candidate to
furnish such a certificate. Therefore, it was not possible for the
Petitioner to fulfill the requirement of the Rules of 1994. The
Petitioner did not have any control of the perceived disability, in
his failure, to fulfill the requirements of Rule 3(b)(iii) of the Rules
of 1994.
25.The legal maxim lex non cogit ad impossibilia meaning-the
law does not compel a man to do what he cannot possibly perform
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and
impossibilium nulla obligatio meaning-the law does not expect
a party to do the impossible, are very well established legal
doctrines. While interpreting the doctrine of impossibility, the
Hon’ble Supreme Court has made the following observations in the
case of
State of Madhya Pradesh vs. Narmada Bachav Andolan &
Ors.,
1
in para 39, which are quoted hereinbelow:-
“39. The court has to consider and understand the scope of
application of the doctrines of
lex non cogit ad impossibilia
(the law does not compel a man to do what he cannot possibly
perform);
impossibilium nulla obligatio est (the law does not
expect a party to do the impossible); and
impotentia excusat
legem
in the qualified sense that there is a necessary or
invincible disability to perform the mandatory part of the law
or to forbear the prohibitory. These maxims are akin to the
maxim of Roman law
nemo tenetur ad impossibilia (no one is
bound to do an impossibility) which is derived from common
sense and natural equity and has been adopted and applied in
law from time immemorial. Therefore, when it appears that the
performance of the formalities prescribed by a statute has been
rendered impossible by circumstances over which the persons
interested had no control, like an act of God, the circumstances
will be taken as a valid excuse. (Vide Chandra Kishore Jha v.
Mahavir Prasad, Hira Tikkoo v. UT, Chandigarh and HUDA v.
Dr. Babeswar Kanhar.)”
26.From the above, it is apparent that law permits a valid
excuse for non-compliance of any provision of the statute if a
compliance of the same has been rendered impossible by the
circumstances in respect of which the person affected, has no
control.
1 (2011 ) 7 SCC 639.
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27.In the present case, as has been noted above, in the absence
of any recognized institute issuing Urdu Shorthand/ Typewriting
certificate, it was impossible for the Petitioner to meet the
requirement of Rule 3(b)(iii) of the Rules of 1994. The
Respondents were also all along aware of the said facts. It has not
been denied by the Respondents that there was no recognized
institute in the State of Maharashtra issuing such a certificate and,
therefore, it was not possible for any candidate to fulfill the
requirement of Rule 3(b)(iii). Therefore, it was incumbent upon
the authorities to take note of the said fact and exempt the
Petitioner from the onus of fulfilling the requirement of Rule 3(b)
(iii), thus paving the way for regularization of his service.
However, for reasons which are not found to be tenable, no such
order was issued in favour of the Petitioner while he was in service.
28.Having regard to the facts and circumstances of the case, we
are of the view that after having taken the service from the
Petitioner for 35 long years, initially in the post of Urdu Typist and,
thereafter, in the post of Urdu Stenographer, which had permitted
the Department to function, the Petitioner’s service ought to have
been made permanent. Therefore, even if no specific order was
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th
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issued by he Respondents regularizing the service of the Petitioner,
in view of the long years of continuous service rendered by the
Petitioner, he would have to be treated as a permanent employee
for all intent purpose.
29.Law is well settled by a series of judicial pronouncements
that an employee, who has rendered long years of service even as a
ad-hoc or temporary appointee cannot be denied pension upon his
superannuation merely by taking a technical plea that the service
of the employee was not regularized. In the case of State of
Gujarat & Ors. Vs. Talsibhai Dhanjibhai Patil (Supra) relied by Mr
Khan, dealing with similar nature of grievance of an employee who
had rendered ad-hoc service for 30 years, the Hon’ble Supreme
Court has made the following observations in paragraph Nos. 1 to
4, which are reproduced herein below for ready reference.
“1. It is unfortunate that the State continued to take the
services of the respondent as an ad-hoc for 30 years and
thereafter now to contend that as the services rendered by the
respondent are ad-hoc, he is not entitled to pension/pensionary
benefit. The State cannot be permitted to take the benefit of its
own wrong. To take the Services continuously for 30 years and
thereafter to contend that an employee who has rendered 30
years continues service shall not be eligible for pension is nothing
but unreasonable. As a welfare State, the State as such ought not
to have taken such a stand.
2. In the present case, the High Court has not committed
any error in directing the State to pay pensionary benefits to the
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th
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respondent who has retired after rendering more than 30 years
service.
3. Hence, the Special Leave Petition stands dismissed.
4. Pending application(s), if any, shall stand disposed of. ”
30.In Yashwant Hari Katakkar Vs. Union of India & Ors (Supra),
it has been held by the Hon’ble Supreme Court that an employee,
who had put in more than 18 years of
quasi permanent service
when the rules required minimum ten years of permanent service
to earn pension, it would be travesty of justice if such employee is
denied the pensionary benefits simply on the ground that he was
not a permanent employee of the Government. It was held that the
employee having served the Government for almost two decades, it
will be unfair to treat him as temporary
khalasi rather, the service
of the employee is to be treated as one in permanent capacity.
Therefore, it was held that the employee would be entitled to
pensionary benefits.
31.From an analysis of the law laid down in the aforementioned
decisions of the Supreme Court, it is thus clear that an employee
who has rendered long years of service spanning over decades,
cannot be denied the benefit of pension and other benefits of a
permanent employee merely by taking a technical plea that his
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service was not made permanent, particularly when the employee
was not responsible in any manner for his continuance in service as
a temporary employee.
32.In the present case, the Petitioner, having continuously
served in the posts of Urdu Typist and then Urdu Stenographer, for
a period of more than 35 years, against a sanctioned vacant post,
without any break in service and his services having been utilized
by the Department for running the Institution, the Petitioner must
be held to have rendered service in permanent capacity for all
practical purposes, more so, since non-regularization of his service
was for reasons not attributable to the Petitioner. Having regard to
the ground on which the service of the Petitioner was not
regularized, we are of the view that the same cannot be a
justification for denying him the status of a permanent employee.
Therefore, in our view, the present would be a case of deemed
regularization of the service of the Petitioner, atleast for the
purpose of extending him the benefit of pension and other service
benefits, as may be applicable, in case of a permanent employee.
33.After the order of termination from service of the Petitioner
was set aside and he was reinstated back in service, the Petitioner
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was allowed to continue in service till attaining the age of
superannuation. Therefore, in the facts and circumstances of the
case, we are of the opinion that, the State, being a model
employer, would be under a constitutional obligation to extend
pensionary benefits along with other service benefit such as arrears
of pay, pursuant to revision of pay, to the Petitioner as otherwise,
the same would be highly arbitrary, unfair, discriminatory and,
hence, in violation of the fundamental rights of the Petitioner
guaranteed under Article 14 of the Constitution.
34.Emphasizing the role of the State as a model employer, the
Hon’ble Supreme Court, in the case of Bhola Nath Vs. State of
Jharkhand & Ors.
2
has made the following observations in
paragraphs 11.1 and 11.2.
“11.1. This Court has consistently held that the State, being a
model employer, is saddled with a heightened obligation in the
discharge of its functions. A model employer is expected to act
with high probity, fairness and candour, and bears a social
responsibility to treat its employees in a manner that preserves
their dignity. The State cannot be permitted to exploit its
employees or to take advantage of their vulnerability,
helplessness or unequal bargaining position.
11.2. It therefore follows that the State is required to exercise
heightened caution in its role as an employer, the constitutional
mandate casting upon it a strict obligation to act as a model
2 2026 SCC OnLine SC 129.
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employer, an obligation from which no exception can be
countenanced.”
35.In so far as the technical objection raised by the Respondents
regarding the maintainability of the prayer for regularization on
the ground that by the earlier order dated 1
st
September 2005
passed in Original Application No. 68 of 2004, the said prayer had
been declined, we deem it appropriate to note herein that in view
of the observations made hereinbefore, wherein, we have held that
the Petitioner ought to have been treated as permanent employee,
and considering that he has already retired from service upon
attaining the age of superannuation, it will be a case of deemed
regularization. Therefore, the question of denying the benefit of
regularization in service to the Petitioner cannot arise at this point
of time. However, even assuming that such a technical plea of
constructive
res judicata was relevant in this case, even then, since
the prayer of the Petitioner was declined on the earlier round on
account of pendency of Departmental Enquiry, after his
exoneration in the Departmental Enquiry, the foundational fact for
consideration of prayer for regularization of service had
fundamentally altered and, therefore, the learned Tribunal, in our
opinion, was not justified in declining the aforesaid relief merely
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on the ground that the same was declined on the previous occasion
by the order dated 1
st
September,2005 passed by the MAT
. In view
of the change of foundational facts, we are of the view that the
prayer for regularization in service made by the Petitioner was not
hit by the principles of constructive
res judicata and hence, the
same ought to have been considered on merit by the Learned MAT
by the impugned Judgment. [ see:-
G.L. Oberoi Vs Lal Dev Pandit]
3
36.For the aforesaid reasons, we are of the view that the Writ
Petition must succeed. The same is hereby allowed.
37.The Respondents are directed to pass appropriate order
granting pensionary benefits to the Petitioner, as an employee who
has retired in the post Urdu Stenographer, by treating him as a
permanent employee with effect from 17
th
May 1991. The
Respondents are also directed to calculate the arrear of salary
and/or pension that the Petitioner would be entitled to, pursuant
to revision of pay and accordingly, release his arrear due, within a
period of 3 (three) months from the date of uploading this order,
failing which, the amount would carry interest at the rate of 9%
3 2021 SCC OnLine Del 5839.
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(nine percent) per annum from the date on which the amount had
become due, until realization.
38.The Writ Petition is disposed of accordingly.
39.Parties to bear their own costs.
(ADVAIT M. SETHNA, J.) (SUMAN SHYAM, J.)
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