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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6517/2005
WITH
WRIT PETITIION NO.6160/2005
WITH
WRIT PETITION NO.6496/2005
WITH
WRIT PETITION NO.6497/2005
WITH
WRIT PETITION NO.6498/2005
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WRIT PETITION NO.6517/2005
PETITIONER: Sau. Suman w/o Ganapatrao Jivtode,
Age 51 yrs., Occupation Service,
R/o In front of D.B. Science College,
Tahsil & District Gondia.
...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
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Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
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WITH
WRIT PETITION NO.6160/2005
PETITIONER: Ku. Sushila d/o Amrutlal Chauhan
Age 43 yrs., Occupation Service,
R/o Ramnagar, Tahsil & District Gondia.
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...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
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WITH
WRIT PETITION NO.6496/2005
PETITIONER: Sau. Nirmala w/o Surendrasingh Bais,
Age 57 yrs., Occupation Service,
R/o Bajpai Ward, Tahsil & District Gondia.
...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
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WITH
WRIT PETITION NO.6497/2005
PETITIONER: Ku. Uttama d/o Bhikaru Gadpayale,
Age 45 yrs., Occupation Service,
R/o Shrinagar, Tahsil & District Gondia.
...VERSUS...
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RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
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WITH
WRIT PETITION NO.6498/2005
PETITIONER: Sau. Bhagyashri w/o Bhagawansingh Chauhan,
Age 36 yrs., Occupation Service,
R/o Dr. Radhakrishnan Teachers Colony,
Tahsil & District Gondia.
...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 18.04.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) Since the issue involved in the petitions is identical and similar prayers are made therein, they are heard together and are decided by this common judgment.
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wp6517.05.odt 4 By these Writ Petitions, the petitioners seek a direction against the respondent-Municipal Council, Gondia, to pay the salary to the petitioners as per the recommendations of the 5 th Pay Commission and also grant the yearly increments to the petitioners from the dates of their appointment. The petitioners have also sought the consequential benefits that are payable to the confirmed employees of the Municipal Council.
The petitioners were working on daily wages with the Municipal Council, Gondia from different years, in the 1980. The petitioners were appointed as the employees of the Balak Mandir run by the respondent no.1-Municipal Council. The petitioners continued to work with the respondent-Municipal Council on temporary basis. It is the case of the petitioners in Writ Petition No. 6517/2005 and 6497/2005 that in the beginning of the 1990s, the Municipal Council appointed them as Assistant Teachers on probation in the given pay scale. It is the case of the petitioners that though the orders issued in favour of two of the petitioners in the beginning of the year 1990 showed that they were appointed on probation, they were paid fixed honorarium and their services were not actually regularised. In their Service Books they were not shown as permanent employees. According to the petitioners, the Government decided to close the Balak Mandirs in the year 2010 and ::: Uploaded on - 25/04/2017 ::: Downloaded on - 27/08/2017 23:49:30 ::: wp6517.05.odt 5 after the discontinuation of the Balak Mandirs, the petitioners were asked to work as Anganwadi Sevikas in the Anganwadis. The petitioners, however, refused to work as Anganwadi Sevikas, hence they were continued as employees of the Municipal Council in various Departments. The petitioners in Writ Petition No. 6517/2005 and 6160/2005 have retired on attaining the age of superannuation, whereas the petitioners in Writ Petition No.6497/2005 still continues to work with the Municipal Council, on daily wagers and/ or fixed salary. By these petitions, the petitioners have sought actual regularisation of their services and have sought increments and pay-scale as per the recommendations of the 5th Pay Commission. According to the petitioners, when they had filed Complaints before the Labour Court under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 the Labour Court had allowed their Complaint and the Court had directed the Municipal Council to reinstate the petitioners in the posts on which they were working.
Though none appears on behalf of the Municipal Council, the learned Assistant Government Pleader appearing on behalf of the State Government has opposed the prayers made in the petitions. It is stated that it is apparent from the documents annexed to the Writ Petitions that the petitioners were continued by the Municipal Council on ::: Uploaded on - 25/04/2017 ::: Downloaded on - 27/08/2017 23:49:30 ::: wp6517.05.odt 6 temporary basis. It is stated that the services of the petitioners were never regularised by the Municipal Council. It is stated by referring to the order passed by the Labour Court in the complaint annexed to Writ Petition No.6517/2005 that the petitioner had clearly mentioned in the complaint that though she was appointed on probation in the year 1992 for two years, her services were never regularized and she was paid fixed salary only. It is stated that it is apparent from the averments in the petitions that all the petitioners were working on fixed salary and their services were never regularized. It is stated that in the circumstances of the case the petitioners may not be entitled to the benefits of the 5 th Pay Commission Recommendations and increments, as claimed.
On hearing the learned Counsel for the parties and on a perusal of the petitions and the documents annexed thereto, it appears that it would not be possible to direct the respondent - Municipal Council, in the circumstances of the case, to grant the benefits of the 5 th Pay Commission Recommendations to the petitioners. There is nothing on record to show that the services of the petitioners were regularized and the petitioners were treated as the regular and permanent employees of the Municipal Council. If it is the case of the petitioners that they were appointed in the beginning of 1990s on probation but still they were paid fixed salary and their services were never regularized, it was necessary for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 27/08/2017 23:49:30 ::: wp6517.05.odt 7 the petitioners to have filed appropriate proceedings for seeking the regularization of their services. There is no order of any Court or Forum directing the Municipal Council to regularize the services of the petitioners. In the absence of the regularization of the services of the petitioners, it would not be proper to direct the Municipal Council to pay the salary to the petitioners, as is payable to the permanent employees of the Municipal Council. The petitioners have slept over their rights for years together and have approached this Court in writ jurisdiction, seeking the relief on the basis of disputed questions of facts. It is specifically denied by the Municipal Council in the affidavit-in-reply filed by the Municipal Council that the services of the petitioners were regularized. It is stated that the petitioners were paid fixed salary and honorarium and hence, the benefits available to the regular employees cannot be granted to them. We do not find any documents to show that the services of the petitioners were regularized by the Municipal Council at any point of time. If that is so, the petitioners would not be entitled to seek the salary and allowances that are payable to the regular and permanent employees of the Municipal Council. The issue, whether in the circumstances of the case, the petitioners' services should have been regularized by the Municipal Council, cannot be effectively decided, in exercise of the writ jurisdiction, as there is a serious dispute on the factual ::: Uploaded on - 25/04/2017 ::: Downloaded on - 27/08/2017 23:49:30 ::: wp6517.05.odt 8 aspects of the matter.
Since the relief sought by the petitioners cannot be granted, in exercise of the writ jurisdiction, we dismiss the writ petitions with no order as to costs. Rule stands discharged. The petitioners are, however, free to avail the appropriate remedy, if permissible in law and if so advised.
Order accordingly.
JUDGE JUDGE
Sahare and
Wadkar
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