Bombay High Court
Sambha S/O Krishnaji Pusate (Dead) Thr. ... vs The State Of Maharashtra,& 2 Others on 5 May, 2016
Author: B.P.Dharmadhikari
Bench: B.P.Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3541 OF 2015.
1. Sambha s/o Krishnaji Pusate,
aged 58 years, Occu: Retired, r/o
Lalguda, Tq.Wani, Distt.Yavatmal. (dead)
LEGAL REPRESENTATIVES.
1(a). Visakha w/o S.K.Sathe,
aged about 46 years.
1(b) Shuddhodhan s/o Sambshiv Sathe,
aged about 29 years,
1(c) Bapuji s/o Sambshiv Sathe,
aged about 27 years,
1(d) Nagsen s/o Sambshiv Sathe,
aged about 24 years,
1(e) Sanghratna s/o Sambshiv Sathe,
aged about 22 years,
1(f) Prabuddha s/o Sambshiv Sathe,
aged about 20 years,
1(g) Buddharatna s/o Sambshiv Sathe,
aged about 16 years,
1(h) Sujata d/o Sambshiv Sathe,
aged about 14 years.
2. Nathu s/o Rajeshwar Bhoyar,
aged 57 years, Occu: Service, R/o Ganeshpur
Road, Ward No.5, Sane Guruji Nagar (Gedam
Layout), Post and at Tq. Wani, Distt.Yavatmal.
3. Vasant s/o Deorao Asekar,
aged about 56 years, Occu: Service,
r/o Nimbala (Road), Tq.Wani, Distt.Yavatmal.
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2
4. Raghunath s/o Laxmanrao Nit,
aged about 63 years, Occu: Retired, r/o Datta
Mandir, Railway Station Road, Ward No.1,
Wani, Distt.Yavatmal.
5. Shakuntala Babanrao Sakharkar,
through her son Bhushan Babanrao Sakharkar,
r/o Ward No.4, Sawarkar Chowk, Wani, Distt.
Yavatmal.
6. Savitribai Daulat Dethe,
aged about 26 years, Ranganath Nagar Ward
No.4, Behind Idgah, Wani, Distt.Yavatmal. ...PETITIONERS
: VERSUS :
1. State of Maharashtra
through its Secretary, Revenue and Forest
Department, Mantralaya, Mumbai - 32.
2. The Collector, Yavatmal.
3. The Zilla Parishad, Yavatmal. ... RESPONDENTS.
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Mr. R.L. Khapre, Advocate for the petitioner.
Mrs. H.N. Prabhu, Asstt.Govt. Pleader for respondent nos.1 and 2.
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CORAM: B.P.DHARMADHIKARI
AND P.N.DESHMUKH, JJ.
DATE: 5th MAY, 2016.
ORAL JUDGMENT : (Per B.P.Dharmadhikari, J.)
1. Heard Advocate Shri Khapre for the petitioners and learned ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:32 ::: 3 Assistant Government Pleader for respondent nos.1 and 2.
Nobody appears for respondent no.3 - Zilla Parishad but then no relief is claimed against it.
2. Shri Khapre at the threshold pointed out that after matter was received by him through Legal Aid, with great difficulty he could collect data, compile the same and present the petition.
3. Petitioner No.6 is widow of original employee while petitioner no.1 has expired during pendency of petition and his legal heirs have been brought on record. Learned counsel submits that petitioners were not possessing necessary data so as to enable him to effectively present their grievance before the Court. However, according to him, petitioners did not get proper legal advice and therefore withdrew their ULP Complaint presented at Industrial Court on 24th of July, 2003 and then, as advised, approached the Maharashtra Administrative Tribunal (MAT) in Original Application No.88 of 2004. Maharashtra Administrative Tribunal has given undue importance to technicality and as on the date ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:32 ::: 4 on which it passed order i.e. 1st of September, 2004, petitioners had already superannuated, no cognizance of their grievance has been taken.
He therefore states that present petition has been filed under Article 226 of the Constitution of India and this Court has to apply its mind, as if challenge is for the first time presented to it. Thus, grievance before the Industrial Court in ULP Complaint No.36 of 1999 and thereafter in Original Application No.88 of 2004 must be clubbed together for such consideration. He submits that petitioners were working since year 1973-1974 and were absorbed in government service belatedly. In view of that absorption, under mistaken notion, they withdrew ULP Complaint No.538 of 1988 and went to Maharashtra Administrative Tribunal. He is placing reliance upon provisions of 'Kalelkar Settlement' to submit that every employee, like petitioners, who puts in five years of continue service is entitled to be absorbed on temporary regular work charge establishment, as post personal to him is deemed to be created.
This personal post subsists till he is shifted to some other post after proper regularization or then is superannuated. Here, the petitioners were regularized but then shifted from Zilla Paishad to State ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 5 Government. Till their services in Zilla Parishad, the provisions of 'Kalelkar Settlement' needed to be applied and Industrial Court accordingly should not have permitted petitioners to withdraw their ULP complaint. He argues that even before Maharashtra Administrative Tribunal provisions of 'Kalelkar Settlement' could not have been overlooked.
4. Learned Counsel has given us details of length of service put in by each individual and we will be making reference to that period at appropriate place in the body of this judgment. Shri Khapre states that thus petitioners have been denied advantage of 'Kalelkar Settlement' and also welfare provisions contained in The Industrial Employment (Standing Orders) Act, 1946 contained in clause 4(C) of Model Standing Order. After completion of 240 days of continuous service, the post is presumed to be created for such employee and hence after their initial employment as Mustering Assistants, the petitioners ought to have been made permanent after 240 days.
::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 65. He has invited our attention to specific assertion in reason No.4 (ground No.4) of petition to show that the person whose name is placed after petitioners in seniority list were given permanent status before petitioners and thus an injustice has been done to them. He therefore seeks a relief of grant of permanency to all petitioners at least from year 1978-1979 with consequential direction to compute their qualifying service for all purposes including Pension, Gratuity, Provident Fund, etc. from said date/year.
6. Learned Assistant Government Pleader has invited our attention to return filed on behalf of respondent nos.1 and 2. She submits that most of the petitioners were working under Employment Guarantee Scheme and hence provisions of 'Kalelkar Settlement' or then provisions of Model Standing Orders were not applicable to them. She submits that as Mustering Assistant their length of services have been looked into and as per policy formulated by State Government, they have been absorbed. The qualifying service put in by them after such absorption only can be looked into. Earlier service put in by them was on ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 7 purely temporary basis and therefore could not have been clubbed with their employment under State Government. She also points out that Zilla Parishad and State Government are separate and distinct employers. She has further stated that the priority or preference given to so called juniors and absorption prior to petitioners as urged is not correct. Those juniors have not been made permanent. She submits that complaint filed before Industrial Court was withdrawn after petitioners were absorbed in Government employment and then they approached Maharashtra Administrative Tribunal. Grounds which were relevant before Industrial Court could not have been taken before the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal has applied its mind to the controversy and found that relief of permanency was being claimed. The Maharashtra Administrative Tribunal has noted that petitioners were already given regular appointments and thereafter three petitioners had already retired. In that view of matter, MAT has refused to grant relief of permanency. She further points out that MAT has, however, noted that if petitioners fulfilled the conditions and could have been made permanent as per ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 8 Rules and Regulations, the State Government would be taking action to make them permanent. She therefore contends that after superannuation, MAT has looked into the challenge as presented and found it without substance.
7. She has also invited our attention to Constitution Bench Judgment of Hon'ble Apex Court reported at AIR 2006 SC 1806 (Secretary, State of Karnataka and ors. ..vs.. Umadevi and ors.) to point out that the relief of permanency could not have been extended to petitioners in present facts. She therefore prays for dismissal of Writ Petition.
8. The period of service put in by respective petitioners is not in dispute. Petitioner no. 1 initially joined services on 17 th of April, 1971 as a 'Mistri' in Public Works Department and he continued to work in that capacity with respondent no.3 - Zilla Parishad up to 31st of August, 1973 in a proper pay-scale with other allowances. The appointment order itself stipulates that appointment was without consulting the ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 9 District Selection Board. Appointment order is for period up to 30 th of June, 1971 temporarily or then till closure of scarcity works, whichever event occurred first. He was thereafter appointed by respondent no.3 as a Mustering Clerk and petitioner states that actually he continued to work as 'Mistri'. This appointment is by order dated 27 th of September, 1979 and therein it is mentioned that he is appointed as Mustering Assistant on work charge establishment under Employment Guarantee Scheme on consolidated salary. At Sr.No.8 of this order, name of petitioner no.1 appears. Name of husband of petitioner no.6 appears at Sr.No.9 in same order. Petitioner no.1 claims that accordingly he continued to work up to 31st of May, 1997 and then he was appointed as Canal Watchman in the office of Public Works Department, Irrigation Sub Division, Pandharkawada in a pay-scale. He has stated that copy of that appointment order is not available with him. On 8 th of January, 2003, he came to be appointed as Junior Clerk in Treasury Office.
He worked in that capacity up to 31 st of February, 2004 where he reached age of superannuation. Perusal of appointment order dated 8 th of January, 2004 shows that name of petitioner no.1 figured in list of ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 10 Mustering Assistants under Employment Guarantee Scheme and hence he was given this appointment which was of purely temporary nature.
9. Petitioner no. 2 came to be appointed initially in the year 1971. But then said petitioner has again stated that he does not have copy of said appointment order. By placing reliance upon seniority list attempt is to show that he entered employment on 18.9.1972. He was given post as Work Charge Employee by order dated 20.4.1978 in employment of respondent no. 3 Zilla Parishad. He was not permitted to join by respondent no. 3 as no post was vacant. Thereafter he was appointed as Muster Clerk in office of Zilla Parishad only with effect from 15.6.1978 and he was allowed to work till 30.3.1979. By order dated 29.2.1979 he was appointed as Mustering Assistant on consolidated salary of Rs.150/- per month. Appointment order shows that he was given work on purely temporary basis to be discontinued as soon as Employment Guarantee Scheme work got over. Thus, he worked as Mustering Assistant under Employment Guarantee Scheme.
Petitioner no. 2 claimed that he continued to work on fixed salary till ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 11 31.6.1995 and then came to be transferred to Maregaon Sub Division.
At Maregaon, he again worked as Mustering Assistance with effect from 1.7.1995 to 14.11.2000. By order dated 15/20 th November, 2000, he was appointed as Talathi i.e. Patwari and he was given pay Scale of 3200
-85 -4900. He retired on 30th June, 2005.
10. Petitioner no. 3 was appointed in pay scale of 110- 195 in 1971 in office of Public Works Department. He does not have copy of that appointment order but in seniority list his date of appointment is shown as 19.9.1972. Thereafter he was appointed on 19.9.1979 on fixed salary as Mustering Assistant. Perusal of that order shows that he was given work on road. He worked with respondent no. 3 till 1997. He was relieved on 3.11.1997 for appointment in the office of Taluka Inspector of Land Records. He worked in that office from 11.11.1997 to 2000. In that office he was given fresh appointment as peon in Class-III in pay scale of 750-940. He was given regular appointment by Sub-
Division of respondent no.1 as Talathi vide order dated 24.11.2000 and he superannuated on 31.7.2006. Perusal of appointment order shows ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 12 that he was Mustering Assistant under Employment Guarantee Scheme and as per his seniority, he was absorbed as Talathi.
11. Petitioner no. 4 was appointed as Mistri on 15.2.1971 in pay scale of 110 - 195. He worked on that post till 1973. Thereafter by appointment order dated 20.4.1978 he was appointed as Mustering Assistant on consolidated pay of Rs. 150/-. He worked in that capacity till 29.3.1979 and thereafter he was appointed as Mustering Assistant on fixed pay in office of P.W.D. Sub-Division, Wani. Perusal of this order dated 29.3.1979 shows that appointment was purely temporary and liable to be discontinued after closure of Employment Guarantee Scheme work. He was then transferred as Mustering Assistant to Maregaon Sub-
Division where he worked till 14.11.2000. It is stated by him in petition itself that he had reached the stage f superannuation on 24.5.2000.
12. Petitioner no. 5 before this court is wife of deceased employee by name Baban Sakharkar. He expired on 6.12.1998. He was appointed as Mistri on Work Charge employment from 12.4.1971 to 14.3.1972.
::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 13Thereafter he worked as Mistri on work charge establishment from 1972 to 31.8.1973 and thereafter from 3.9.1973 to 30.9.1973. On 20.4.1978, he was appointed on consolidated pay of Rs.150/- and continued on same terms by order dated 29.6.1979. Perusal of order dated 26.9.1979 shows that his appointment was purely temporary under Employment Guarantee Scheme. He worked till 31.5.1997. Petitioner no. 5 claimed that her husband was transferred on same post as a fresh appointee with effect from 31.3.1997 in pay scale of 750 940. He has expired on 6.12.1998.
13. Petitioner no. 6 was appointed as Mistri on work charge Establishment w.e.f. 22.3.1971 and continued till 30.9.1973. Thereafter he came to be appointed vide order dated 27.9.1979 as Mustering Assistant on fixed pay of Rs.150/- under Employment Guarantee Scheme. He worked on that post till 24.3.1991 and died on 17.4.1991.
The petitioner before this court, therefore, filed application for grant of compassionate employment.
::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 1414. It is these facts which need to be perused by this court while considering the reliefs claimed.
15. ULP Complaint No. 538/1988 (36/1999) was filed before Industrial Court by total six persons with prayer to direct respondents to release their salary in time scale from the date of their appointment and a further direction to appoint them on regular establishment. This complaint was withdrawn on 24.7.2003 by pointing out to Industrial Court that complainants intended to approach MAT or High Court.
Complaint was accordingly disposed of as withdrawn with observation that complainants were at liberty to take recourse to such other remedies as are available to them.
16. It appears that thereafter original application was filed before MAT in the year 2004 vide O.A. No. 88/2004. In O.A. declaration of entitlement to be absorbed in regular government employment or in any of the department as a Muster Clerk was sought. Prayer was to direct employer to issue appropriate appointment order appointing them on ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 15 the post of Muster Clerk or any other Class-III post and to give consequential benefit at par with the junior employees after they were made permanent in service.
17. In so far as claim for treatment at part with alleged juniors is concerned, in Return the Deputy Collector, EGS, Yavatmal has, in paragraph 13, pointed out that persons named in reason IV i.e. ground IV of petition have not been made permanent at all. As such, only question is whether petitioners could have been made permanent government employees as claimed by them.
18. The perusal of G.R. dated 2nd May, 1995 placed on record by petitioners shows that it is on subject of providing alternate employment to the employees who were discontinued because of closure of various schemes. It appears that earlier a time limit was prescribed for providing such work. G.R. dated 7.1.1974 deals with absorption of Muster Clerks and other clerks who were provided work due to scarcity and retrenched. The time limit therein was extended upto 31.12.1995.
::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 16Petitioners have produced a G.R. dated 14.8.1997. By that G.R., posts of Mustering Assistants in pay scale of 950-1600 were sanctioned and allowed to be created by State Government on establishment of Superintending Engineer P.W.D., Yavatmal for the absorption of employees like petitioners. It is mentioned that provisions of 'Kalelkar Settlement' would apply to such appointments and work should be provided to employees on waiting list as per their seniority. These posts were allowed to be continued till 28.2.1998. It is, therefore, obvious that upto 14.8.1987, there were no posts for absorbing petitioners as Mustering Assistants. Provisions of Kalelkar Award would have been applicable to the work in those newly created posts after 1997 and not before that. ULP Complaint was rightly withdrawn and MAT was approached. It is to be noted that there is no challenge to G.R. dated 14.08.1997 or its terms before MAT or before us.
19. In reason I or ground I petitioners have claimed that period mentioned in that ground should be looked into for fixation of their salary. Details thereof are :-
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Petitioner no.1. 26.10.1979 31.10.1988
Petitioner no. 2 15.06.1978 31.10.1988
Petitioner no. 3 19.09.1979 31.10.1988
Petitioner no. 4 15.06.1978 31.10.1988
Petitioner no. 5 ig 20.04.1978 31.10.1988
Petitioner no. 6. 27.09.1979 31.10.1988
20. The law on the point is settled by Hon'ble Apex Court mentioned supra. Unless and until there are vacancies and sanctioned posts, regularization could not have been ordered even by Industrial Court. Judgment of the Hon'ble Apex Court reported at (2009) 8 SCC 556 (Maharashtra State Road Transport Corporation and another vs Casteribe Rajya Parivahan Karmachari Sanghatana) clarifies this aspect.
Shri Khapre has invited our attention to the judgment delivered by Hon'ble Apex Court and reported at 2015 (1) Mh.L.J. 15 (State of Jharkhand and others. Vs. Kamal Prasad and others). There Hon'ble Apex Court has found that junior engineers were appointed in Rural Department of the State of Bihar in the year 1981 and subsequently by order dated 27.6.1987 as Assistant Engineers. State of Jharkhand was ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 18 created on 15.11.2000 due to bifurcation of State of Bihar and respondents before Hon'ble Apex Court continued to work in Jharkhand State in terms of Section 72 of Bihar Reorganization Act, 2000. They were terminated by Jharkhand government w.e.f. 24.8.2011. Hon'ble Apex Court found that having worked for more than 10 years continuously in duly sanctioned post, but not under protection of orders of Courts or Tribunals, they were entitled to regularization in their respective posts. The facts looked into by Hon'ble Apex Court, therefore, show that when respondents were appointed in 1981 and promoted in 1987, there were duly sanctioned vacancies. In the present matter, there were no such vacancies. Period of employment mentioned supra shows that all employees before us worked initially between 1971 to 1973 and thereafter they were given work in 1978 under Employment Guarantee Scheme in purely temporary capacity. It appears that thereafter on account of policy decision, efforts were made to regularize them and for the first time posts were created in the year August 1997 that too till 28.2.1998.
::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 1921. Length of service put in thereafter by petitioners is also taken note of by this Court. The scheme itself stipulates that provisions of 'Kalelkar Settlement' would apply to persons who were provided employment on those temporary posts, MAT could not have overlooked the stipulations in G.R. dated 14.08.1997.
22. In view of these reasons, we do not find any fault with the application of mind by the MAT. The MAT has while concluding its order made it clear that if any of the applicants before it fulfilled terms and conditions and satisfied requirements of Rules, the respondent State would take action to make them permanent. Thus, the faith reposed in State government by MAT cannot be said to be ill-founded.
23. Such of the employees before MAT and before us who have, therefore, put in five years or more service on posts created vide G.R. dated 14.8.1997, need to be considered for regularization in terms of 'Kalelkar Settlement'. We accordingly direct respondent nos. 1 & 2 to consider their cases individually on lines mentioned supra in terms of ::: Uploaded on - 03/06/2016 ::: Downloaded on - 30/07/2016 01:01:33 ::: 20 'Kalelkar Settlement' and take suitable decision as per law within four months from the date of communication of this order. If necessary, opportunity of hearing shall be extended to petitioners.
24. By way of abundant precaution, we grant petitioners who are desirous of making a representation, leave to make such representation pointing out all relevant facts to the respondent no.2 Collector. If such representation is made within six weeks from today, it shall be looked into and decided within further period of four months as stipulated supra. However, it is made clear that fact that a particular petitioner or his/her legal heir has not made such representation, shall not be used to deny consideration of his/her case in obedience to this direction.
25. Accordingly, with these directions, we dispose of writ petition.
Rule discharged. No costs.
JUDGE JUDGE.
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