(1) WP No.5442/2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 5442 OF 2004
1. Deoram s/o Barku Bachkar
Age : 56 years, occu.: nil
R/o Pimpri Aughad, Taluka Rahuri,
District Ahmednagar.
2. Gulab s/o Gafoor Pathan
Age : 48 years, occu.: nil
R/o Manik Daundi, Taluka Pathardi,
District Ahmednagar. Petitioners.
Versus
1. The State of Maharashtra
Through the Secretary,
Planning Department
(Copy to be served on Government
Pleader, High Court,
Aurangabad Bench.
2. The District Collector
District : Ahmednagar.
3. The Deputy Collector
Employment Guarantee Scheme,
Collector Office, Ahmednagar.
4. The Executive Engineer (EGS)
Public Works Department,
District : Ahmednagar.
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(2) WP No.5442/2004
5. The Executive Engineer
Irrigation Department,
Ahmednagar.
6. The Executive Engineer
Minor Irrigation, Local Sector
Division No.1, Ahmednagar.
7. The Executive Engineer
Mula Irrigation Division,
Ahmednagar. Respondents
***
Mr. C.K. Shinde, Advocate for the petitioners.
Mr. B.A. Shinde, A.G.P. for the respondents.
***
WITH
CIVIL APPLICATION NO. 5573 OF 2017
1. Promod s/o Shamrao Patil
Age : 59 years, occu.: nil
R/o Damarkheda, Tal. Shahada,
District Nandurbar.
2. Dada s/o Kisan Wadhavkar
Age : 55 years, occu.: nil
R/o Takali-Khandeshwari,
Taluka Karjat, Dist. Ahmednagar.
3. Navnath s/o Kanhoba Galphade
Age : 55 years, occu. : nil
R/o Jamkhed, Taluka Jamkhed,
District Ahmednagar. Petitioners.
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(3) WP No.5442/2004
Versus
1. Deoram s/o Barku Bachkar
Age : 66 years, occu.: nil
R/o Pimpri Aughad, Tal. Rahuri,
District Ahmednagar.
2. Gulab s/o Gafoor Pathan
Age : 58 years, occu.: nil
R/o Manik Daundi, Tal. Pathardi,
District Ahmednagar.
3. The State of Maharashtra
Through the Secretary,
Planning Department,
Mantralaya, Mumbai - 32.
4. The District Collector
District Aurangabad.
5. The Deputy Collector
Employment Guarantee Scheme,
Collector Office, Ahmednagar.
6. The Executive Engineer
EGS, Public Works Department,
District Ahmednagar.
7. The Executive Engineer
Irrigation Department,
Ahmednagar.
8. The Executive Engineer
Minor Irrigation, L.S. Division
No.1, Ahmednagar.
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(4) WP No.5442/2004
9. The Executive Engineer
Mula Irrigation Division,
Ahmednagar.
***
Mr. Manoj D. Patil, Advocate for the applicants.
Mr. C.K. Shinde, Advocate for respondent Nos.1 and 2.
Mr. B.A. Shinde, A.G.P. for the respondent Nos.3 to 9.
***
CORAM : RAVINDRA V. GHUGE
AND
SUNIL K. KOTWAL, JJ.
Dated : 03-11-2017.
ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.) :-
1. By this petition, the petitioners pray that this Court should direct investigation into the affairs of the State by appointing a Commission of enquiry and further direct respondent No.2 to consider the claim of the petitioners for appointment as Mustering Assistants.
2. The prayers put-forth below paragraphs 21 "B" & "C" read as under :-
B. By issuing writ of mandamus or any other writ or directions for investigation into the affairs may please be directed to find out the truth in the matter by appointing Commission or Inquiry Officer.
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(5) WP No.5442/2004
C. By order or directions respondent No.2
may be directed to consider the claim of the petitioners for appointment as Mustering Assistant and to pay usual pay and allowances.
3. We have considered the strenuous submissions of the learned Advocate for the petitioners. The issue is as regards the work performed by the petitioners as 'Mustering Assistants' on the Employment Guarantee Scheme. There is no dispute that these petitioners, as per the submissions of the learned Counsel, were terminated from service. They preferred ULP (Complaint) under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 before the Labour Court at Ahmednagar which was allowed by the judgment dated 29.06.1994. The petitioners, therefore, were reinstated on 21.08.1995 and 26.07.1995 respectively. This Court, by judgment dated 31.08.2001, quashed and set aside the judgments of the Labour Court and concluded that these two petitioners have no right to reinstatement and their termination was sustained.
4. It requires no debate that the issue as regards regularisation of the services of Mustering Assistants working for ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:17:22 ::: (6) WP No.5442/2004 the Employment Guarantee Scheme and working on the Employment Guarantee Scheme, was taken to the Hon'ble Apex Court. The State of Maharashtra was directed to prepare a scheme for considering the eligibility of the Mustering Assistants for regularisation keeping in view the huge volume of workers, who were seeking regularisation in various Industrial Courts in Maharashtra. The State of Maharashtra introduced Government Resolution dated 01.12.1995 which was presented before the Hon'ble Apex Court for consideration. By an order dated 02.12.1996 in Civil Appeal No. 15339 of 1996 and Special Leave to Appeal No. 15654 of 1991, the Apex Court accepted the Scheme put-forth by the State of Maharashtra. The Hon'ble Apex Court, therefore, ruled that the Scheme is being approved and the State was directed to consider all Mustering Assistants who fell within the parameters of the Scheme and consider their individual claims for regularisation. It is not in dispute that the cut-off date prescribed in the said Scheme mandated that these Mustering Assistants, who were on the rolls of the Establishment on 31.05.1993 and were in continued service, would be considered for regularisation.
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(7) WP No.5442/2004
5. In the instant case, both the petitioners, who are Senior Citizens today, were out of employment since their first termination. Their grievance before the Labour Court was entertained and they were held eligible for reinstatement by judgment dated 29.06.1994. Both of them were reinstated on 21.08.1995 and 26.07.1995 respectively, which clearly indicates that they were not on the rolls of the Establishment on 31.05.1993.
6. We would have considered the submissions and contentions of the petitioners in this petition favourably, in the event the judgment of the Labour Court would have been sustained by this Court. However, as this Court has quashed and set aside the judgment of the Labour Court concluding that the said judgment is perverse and unsustainable, the consequences of quashing of the said judgment would render their termination sustainable.
7. It is, in these peculiar facts and circumstances of this case, that the respondent Establishment has not considered the claims of the petitioners as per the Government Resolution dated 01.12.1995.
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(8) WP No.5442/2004
8. Taking into account the above factors and especially the setting aside of the judgment of the Labour Court on account of which these petitioners were again terminated on 01.06.2002, we do not find it appropriate to direct the State of Maharashtra to consider their cases since they are not eligible as per the conditions prescribed in the Government Resolution dated 01.12.1995. For the said reasons, we do not find that the prayer clause 21-B put-forth by the petitioners can be entertained. In any case, unless specific instances of illegalities or irregularities are pointed out before us, we would not be inclined to direct investigation into the affairs of the Department dealing with the regularisation of the Mustering Assistants.
9. In that view of the matter, this Petition being devoid of merit, is therefore dismissed. Rule is discharged
10. The applicants in the Civil Application are identically placed and they desire that they should be considered alongwith the two petitioners in this petition. Since this petition has been admitted in 2004, this application has been filed on 09.12.2016 and keeping in view that these applicants were terminated in the year 1983 after they were appointed on Employment Guarantee ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:17:22 ::: (9) WP No.5442/2004 Scheme, had worked for about three years and are out of employment for last 31 years, we do not find that the said application could be entertained. The same is therefore rejected.
( SUNIL K. KOTWAL) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
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