Bombay High Court
Satvaguna Sidharth Jogdand And ... vs The State Of Maharashtra And ... on 10 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7205 OF 2015
1. Kum.Satvaguna d/o Sidharth Jogdand,
Age : 39 years, Occ.: Service as
Community Organizer,
R/o.: Flat No. 15, Ameya Avenue Aptt.
Khadkeshwar, Aurangabad,
Dist. Aurangabad
2. Sau.Sarla w/o Devrao Meshram,
Age : 40 years, Occ.: Service as
Community Organizer,
R/o.: Behind Bibi Ka Makbara,
Begumpura, Aurangabad ..PETITIONERS
VERSUS
1. The State of Maharashtra,
(Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai)
2. The Director/Commissioner,
Of Municipal Administration,
Sir Pohchkhanwala Road,
Govt. Transport Service Building,
III Floor, Worli, Mumbai 30
3. The District Collector,
Aurangabad, Dist Aurangabad
4. The Commissioner,
Municipal Corporation,
Aurangabad
5. The Union of India
(Ministry of Housing & Urban
Poverty Alleviation, Nirman Bhavan,
New Delhi)
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6. Smt.Mangala d/o Santaram Jadhav,
Age : 47 years, Occu. Service as
Community Organizer,
R/o. Sanjay Nagar, Baiji Pura,
Galli No.7, Aurangabad
7. Smt.Lalita d/o Sainaji Dabhade,
Age : 44 years, Occu. Service as
Community Organizer,
R/o. Kranti Nagar,
Aurangabad ..RESPONDENTS
----
Mrs.Ujjwal C. Agrawal, Advocate for the Petitioners
Mr. A.G. Magare, A.G.P. for respondent nos. 1 to 3
Mr. A.M. Karad, Advocate for respondent no. 4
None for respondent no. 5 to 7 though served.
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 19th JULY, 2016
JUDGMENT PRONOUNCED ON : 10th AUGUST, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
petition is heard finally.
2. Indisputably, the petitioners were selected and
appointed on contract basis as Group Organizers under
Suwarna Jayanti Shahari Rojgar Yojana at Aurangabad on
3 wp7205-2015
29th July, 2005. They were getting consolidated payment
of Rs.10,000/- per month each. The said scheme came to
an end and new scheme under the name and style as
"National Urban Livelihood Mission Scheme" came to be
implemented by the Central Government (for short, "NULM
Scheme"). Respondent nos.1 and 5 were funding for
running the said scheme in the ratio of 25:75
respectively. The petitioners came to be absorbed on
contract basis as Community Organizers under NULM Scheme
with effect from 17th December, 2014, for a period of two
years i.e. till 31st March, 2016 with respondent no.4 at
Municipal Corporation, Aurangabad. The petitioners came
to be declared as surplus and transferred to work as
Community Organizers at Municipal Councils, Kannad and
Vaijapur respectively, as per the impugned order dated
9th June, 2015.
3. On the basis of contentions raised in the Writ
Petition and the documents filed on behalf of the
petitioners, the learned counsel for the petitioners
submits that the petitioners are not claiming any
benefits of permanency for the post of Community
Organizer. However, though the petitioners were seniors
4 wp7205-2015
to respondent nos.6 and 7, instead of transferring
respondent nos.6 and 7 from Aurangabad to other Taluka
places in the District, respondent no.4 has illegally
and arbitrarily transferred petitioner nos.1 and 2 to
Municipal Councils, Kannad and Vaijapur respectively.
He further submits that petitioner no.1 is unmarried.
She carries the responsibility of her father aged about
85 years who is suffering from multiple diseases. There
is nobody to look after him except petitioner no.1. It
is difficult for petitioner no.1 to reside alone at
Kannad. Moreover, petitioner no.2 is having only one
daughter aged about 13 years and she is residing far
away from the city area at Aurangabad. It is unsafe for
her daughter to reside alone in that remote area. There
is nobody to look after her daughter except petitioner
no.2. In the circumstances, respondent no.4 should not
have transferred petitioner nos.1 and 2 from Aurangabad,
considering their difficulties as well as seniority. He,
therefore, submits that impugned order dated 9th June,
2015, transferring the petitioners to Municipal Council,
Kannad and Municipal Council, Vaijapur, may be set aside
and they may be ordered to be retained at Aurangabad
only. He further submits that the consolidated pay of
5 wp7205-2015
the petitioners from June-2014 to July-2015 amounting to
Rs.1,40,000/- has not been paid by respondent nos.1
and 5. He, therefore, prays that respondent no.1 and 5
may be directed to pay arrears of pay/salary to the
petitioners.
4. One Bharat Prabhakar Rathod, the District
Administrative Officer, Grade-I, Urban Development
Branch, Collector Office, Aurangabad, filed affidavit-in
-reply on behalf of respondent no.3. On the basis of the
said reply and the documents annexed thereto, the
learned A.G.P. submits that after implementation of NULM
Scheme and State Urban Livelihood Mission Scheme (SULM
Scheme), two posts of Community Organizers were treated
as excess than the sanctioned strength. Therefore,
respondent no.4 informed respondent no.3 regarding
absorption of the present petitioners, who were found to
be surplus. Respondent no.3 further requested respondent
no.4 to absorb the petitioners on the similar posts
under the SULM Scheme in Aurangabad district. Since only
two posts of Community Organizers were required for
Aurangabad Municipal Corporation, respondent no.4
requested respondent no.3 to modify the order dated 17 th
6 wp7205-2015
December, 2014 and appoint only two senior most
candidates to the said posts. Accordingly, Smt.Sindhu
Kaduba Suradkar and Smt.Rajkumari Laxman Gaikwad, who
were at Sr.Nos.1 and 2 of the seniority list of the
Community Organizers, were ordered to be posted as such
at Aurangabad. The remaining seven posts of Community
Organizers were treated as surplus. The petitioners then
came to be transferred to Municipal Council, Kannad and
Municipal Council, Vaijapur respectively, as per the
impugned order dated 9th June, 2015. Both of them did not
join at their transferred places. It is stated that the
petitioners have been transferred and posted on the same
post at Municipal Council, Kannad and Municipal Council,
Vaijapur respectively, on which they were previously
working with respondent no.4. On these grounds, it is
submitted that there is no merit in the present Writ
Petition and same is liable to be dismissed.
5. Respondent nos. 5 to 7 were duly served with
the notices of the writ petition, however, none appeared
on their behalf to contest the claims made in the
present writ petition. The learned counsel for
respondent no.4 supported the impugned order.
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6. The letter dated 14th May, 2015 (Exhibit "H")
addressed by respondent no.4 to respondent no.3 contains
the names of the Community Organizers and their dates of
joining the services are as under.
Sr. Names of Community Organizers Joining
No. Date
1 Smt.Sindhu Kaduba Suradkar 04/12/1992
2 Smt.Rajkumari Laxman Gaikwad 26/12/1993
3 Smt.Sharda Kachru Kharat 29/07/2005
4 Smt.Satwaguna Siddharth Jogdand (P/1)
ig 29/07/2005
5 Smt.Sunita Kachru Kulkarni 29/07/2005
6 Smt.Savita Sukhdeo Aagle 29/07/2005
7 Smt.Sarla Devrao Meshram (P/2) 29/07/2005
8 Smt.Mangal Santaram Jadhav (R/6) 01/08/2005
9 Smt.Lalita Sainaji Dabhade (R/7) 01/08/2005
7. As seen from the above-mentioned communication
dated 14th May, 2015, the candidates at Sr.Nos.1 and 2
namely Smt.Sindhu Kaduba Suradkar and Smt.Rajkumari
Laxman Gaikwad came to be retained at Municipal
Corporation, Aurangabad as Community Organizers,
considering their seniority. The candidates at Sr.Nos.3
to 9 became surplus. Petitioner nos.1 and 2 came to be
transferred from Municipal Corporation, Aurangabad to
Municipal Councils, Kannad and Vaijapur respectively, as
per the impugned orders. Since both the petitioners were
8 wp7205-2015
juniors to Smt.Sindhu Kaduba Suradkar and Smt.Rajukumari
Laxman Gaikwad, they were not entitlement to claim
postings at Aurangabad only. When it is the case of the
petitioners that respondent nos.6 and 7, though juniors
to them have been retained at Aurangabad, it was
necessary for them to produce the appointment order
issued in favour of respondent nos.6 and 7 as Community
Organizers at Aurangabad. However, the petitioners have
not produced those orders. In the absence of such
orders, the contention of the petitioners that
their juniors have been retained at Aurangabad and
they have been arbitrarily transferred from Municipal
Corporation, Aurangabad to Municipal Councils, Kannad
and Vaijapur respectively, cannot be appreciated and
accepted. There is no mention even in the
representations dated 15th June, 2016 and 2/3rd July,
2015, that respondent nos. 6 and 7 though juniors to
them, have been retained at Municipal Corporation,
Aurangabad. In the circumstances, the case of the
petitioners that they have been arbitrarily and
illegally transferred from Municipal Corporation,
Aurangabad to Municipal Councils, Kannad and Vaijapur
respectively, ignoring their seniority cannot be
9 wp7205-2015
accepted. The petitioners have totally failed to
establish that they have been subjected to
discrimination or arbitrariness by transferring them
from Municipal Corporation, Aurangabad to Municipal
Councils, Kannad and Vaijapur, respectively. Moreover,
the petitioners have no legal right to claim posting at
any particular place. In the circumstances, they are not
at all justified in challenging the impugned order dated
9th July, 2015, whereby they have been transferred from
Municipal Corporation, Aurangabad to Municipal Councils,
Kannad and Vaijapur, respectively.
8. It is the case of the petitioners that they
have not been paid arrears of salary at the rate of
Rs.10,000/- p.m. each, for a period of 14 months with
effect from June-2014 onwards, amounting to
Rs.1,40,000/- each. Therefore, they sought directions
against respondent nos.1 and 5 to pay the said amount to
them. In our view this prayer of the petitioners cannot
be entertained in this writ petition filed under Article
226 of the Constitution of India. The claim for arrears
of salary would involve a number of questions of facts.
There is nothing on record to show that the petitioners
10 wp7205-2015
presented any representation before the competent
authority for payment of arrears of salary, if any, and
that it was considered and rejected by that authority.
Such a claim cannot be made directly to the High Court.
The petitioners would be at liberty to make
representation to the competent authority for arrears of
salary and in case, such representation is made, the
competent authority would decide it expeditiously. In
the above circumstances, we pass the following order.
(i) The Writ Petition is partly allowed.
(ii) The claim of the petitioners for quashing and
setting aside impugned order dated 9th June,
2015, is hereby rejected.
(iii) The petitioners are at liberty to make a
representation before respondent no.4 for
arrears of salary and in case such
representation is made, respondent no.4 shall
consider the claim of the petitioners for
arrears of salary for a period of 14 months
from June-2014 onwards, as expeditiously as
possible and preferably within a period of 12
11 wp7205-2015
weeks from the date of receipt of the
representation and if it is found that the
petitioners are entitled to get arrears of
salary as claimed by them, pay the arrears of
salary to them.
(iv) Rule made absolute in the above terms.
(v) The Writ Petition is accordingly disposed of.
(vi)
The parties shall bear their own costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
mandawgad_sa/wp7205-2015
