Mahatma Phule Krishi Vidyapeeth, ... vs Ahmednagar Jillha Shetmajur ...
2016 Latest Caselaw 4124 Bom

                                          1




                                                                           
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                   
                             WRIT PETITION NO.104 OF 2014

    Mahatma Phule Krishi Vidyapeeth,
    Rahuri, Tal.Rahuri, Dist.Ahmednagar,




                                                  
                                                               PETITIONER
    Through its Registrar
    VERSUS 
    1. Ahmednagar Jilha Shetmajur Union,




                                         
        Trade Union Center,
        Tahsil Kacheri Road, Ward No.1,
        At Post Taluka : Shrirampur,
                              
        Dist. Ahmednagar, 

    2. Drupadabai Vinayak Tribhuvan,
                             
        Age-Major, Occu-Retired,
        R/o at Puntamba, Tal.Rahata,
        Dist.Ahmednagar, 

    3. Ramnath Yadav Bhojne,
      


        Age-Major, Occu-Retired,
        R/o at Post : Wambori, Tal.Rahuri,
   



        Dist. Ahmednagar,

    4. Babu Genu Pathare,
        Age-Major, Occu-Service,





        R/o at Post - Umbare, Tal.Rahuri,
        Dist. Ahmednagar,

    5. Vitthal Gangarama Datir,
        Age-Major, Occu-Retired,
        R/o at Post - Digras, Tal.Rahuri,





        Dist. Ahmednagar,

    6. The State of Maharashtra,
        Agriculture and Animal Husbandary
        Department, Mantralaya,
        Mumbai.                                                RESPONDENTS 

Mr.M.N.Navandar, Advocate for the petitioner. Mr.U.H.Bhogale, AGP for respondent No.6.

khs/JULY 2016/104-d

Mr.P.V.Barde, Advocate for respondent Nos. 1 to 5.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 26/07/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2.

On 22/09/2014, after the learned Advocates for the respective

sides were heard for some time, this Court had noted in the order as

under :-

"1. Heard the learned Advocates for quite some time.

2. The petitioner needs to clarify on the contention that the salaries of the Class IV Daily Wage Employees of the petitioner Agricultural University are paid from the Contingency Fund.

According to the petitioner, they are paid from other funds. The petition is silent as regards this contention. Besides stating that their wages are not paid from the Contingency Fund, the

petitioner has failed to clarify as to from which fund, are the wages paid to respondent Nos. 3 to 5. The Registrar of the University is expected to file an affidavit after consulting such Officers, as he may find necessary. He may also discuss this issue with the Vice Chancellor of the University before filing the affidavit.

khs/JULY 2016/104-d

3. It is the contention of the petitioner that such Daily Wage Employees in several Universities are not paid retiral benefits as

the Maharashtra Civil Services (Pension) Rules, 1982 are not applicable to them. The State Government is the ultimate Authority, which sanctions the pension. Learned A.G.P., while

assisting the Court states that the Department of Agriculture and Fisheries deals with the Agricultural Universities in the State of Maharashtra.

4.

I, therefore, direct the petitioner to add the State of Maharashtra, through the Department of Agriculture and

Fisheries, as respondent No.6, in order to assist this Court in the interest of all such similarly situated Daily Wage Employees, who have subsequently been appointed and regularized on

substantive posts prior to their retirement.

5. The petitioner to carry out the addition forthwith. Issue notice to the newly added respondent No.6. Learned A.G.P.

waives notice on behalf of respondent No.6.

6. For the sake of illustration, the details of respondent Nos. 3 to 5 are being mentioned in this order so that the newly added

respondent No.6 would be in a position to take proper instructions and file an appropriate affidavit. Details of respondent Nos.3 to 5 are as follows :

            Sr. Respondent No.        Date of          Duration of         Duration of
            No.                       Retirement       Temporary           Permanent  
                                                       Service             Service
            1     R 3                 31/05/2003       27 years            4 years


    khs/JULY 2016/104-d










                                                                                      
            2     R 4                  31/05/1988       9 years             5 years
            3     R 5                  31/07/2002       21 years            3 years




                                                              

7. As directed above, the Registrar of the petitioner University and respondent No.6 shall file their affidavits-in-rely on or before

10/10/2014. Since this matter concerns a large number of Class IV employees, the petitioner and respondent No.6 may note that they shall not seek extension of time to file their replies.

8.

Stand over to 13/10/2014."

3. An affidavit in reply pursuant to the above order has been filed

by the Registrar of the petitioner/University. In the said affidavit-in-

reply, it is contended that Rule 30 of the Maharashtra Civil Services

(Pension) Rules, 1982 (hereinafter referred to as "the Rules") would

not be applicable to the case of the respondents/workmen as they

were not working and/or appointed on any post sanctioned by the

State Government. They were discharging their duties purely as daily

wagers. It is also stated in the said affidavit that the petitioner/

University has never paid wages to the respondents/employees from

the contingency funds and they were paid from the grants received

from the State Government. These grants were termed as non-salary

grants.

khs/JULY 2016/104-d

4. This Court, while dealing with an identical matter involving the

same petitioner/Agricultural University in WP No.8000/2015,

decided on 03/03/2016 (Mahatma Krishi Vidyapeeth, Rahuri Vs.

Ganpat Kisan Karle), dealt with the submissions of this University

extensively. After considering the nature of the work performed by

the employees as daily wagers in the light of Rule 30, Rule 57 r/w

Note 1 and Rule 100 of the said Rules, it was concluded that the

daily wagers, who were working for years together with the

petitioner / University, would be entitled for the pensionary benefits.

5. Mr.Navandar, learned Advocate for the petitioner/University

has made a valiant attempt to convince the Court that a different

view needs to be taken.

6. It is not in dispute that these 3 respondents were working as

daily wagers as like the workman in the judgment dated 03/03/2016.

Each of these 3 respondents were taken on the permanent

establishment on the date mentioned in the foregoing paragraphs.

These respondents are identically placed with the respondent in the

Ganpat Kisan Karle case (supra).

7. In the above backdrop, Mr.Navandar has relied upon the

khs/JULY 2016/104-d

definition clause with relation to the date of first appointment and

temporary post. It would be apposite to reproduce Rule 9 (12), 9 (18)

and 9 (53) of the Rules hereinbelow :-

"9(12) : Date of first appointment means the date the

Government servant assumes the duties of his first post in Government service, or, if this be earlier, the date of his assumption of any duty which is treated, as service counting for

pension.

9(18) : First appointment means the appointment of a person who is not holding any appointment under Government, even

though he may have previously held such an appointment. 9(53) : Temporary Post means a post carrying a definite rate of pay sanctioned for a limited time.

Note - Substantive appointment to temporary posts should be

made in a limited number of cases only, as for example, when posts are, to all intents and purposes, quasi-permanent or when they have been sanctioned for a period of not less than, or there

is reason to believe that they will not terminate within a period of three years. In all other cases, appointments in temporary posts should be made in an officiating capacity only."

8. It is contended by Mr.Navandar that the date of "first

appointment" means the date on which the government servant

assumes his duties on his first post in government service. "First

appointment" would mean the appointment of a person who is not

khs/JULY 2016/104-d

holding any appointment under a Government and temporary post

means a post carrying a definite rate of pay sanctioned for a limited

period.

9. There is no debate that the respondents/workmen herein have

been appointed on daily wages. There is no period of limited

engagement and they have been working with the petitioner for the

periods of 27 years, 9 years and 21 years respectively prior to the

date on which they were confirmed in service on permanent

establishment. This aspect has been dealt with extensively by this

Court in the Ganpat Karle case (supra).

10. In paragraph No.20 onwards in the Ganpat Karle case (supra),

this Court has considered the effect of Rule 30 and has also

considered the view taken by the Hon'ble Supreme Court and the

learned Division Bench in the following matters :-

1] Shiv Dass v. Union of India & others

(2007 (0) BCI 189)

2] Vanita Shankar Agawane v. Deputy Chief Accountant (E/S) & others (2013 (2) Bom.C.R. 281)

3] State of Jharkhand & others v. Jitendra Kumar Srivastava & another (2013 DGLS (Soft) 632)

4] Prabhakar Marotirao Dalal v. State of Maharashtra &

khs/JULY 2016/104-d

another (2008 (5) ALL MR 306)

5] U. Raghavendra Acharya & others v. State of Karnataka & others (AIR 2006 SC 2145)

6] Madhukar v. State of Maharashtra & others (MANU/SC/0299/2014)

7] Devidas Bhiku Borker & others v. The State of Maharashtra & another (2011 (7) ALL MR 363)

8] Union of India & another v. Tarsem Singh (2008 DGLS (Soft) 894)

9] Parshuram Vithoba Bhandare v. State of Maharashtra & another (2002 (2) Bom.C.R. 740)

10] Shivaji Jyotiba Pawar v. The State of Maharashtra & others (WP 2106/2010 decided on 21.9.2010 - Aurangabad Bench)

11] Digambar Bhagirath Pagire v. The State of Maharashtra & others (WP 7227/2011 decided on

24.8.2012 - Aurangabad Bench)

12] Dhan Raj & others v. State of J. and K. & others (AIR 1998 SC 1747)

13] Ahmednagar Municipal Corporation v. Bansi Punaji Ghorpade (WP 942/2009 decided on 24.4.2009 - Aurangabad Bench)

14] Ahmednagar Municipal Council v. Sukhdeo Dhondiba Pacharne (WP 3944/2008 decided on 3.10.2008 -

Aurangabad Bench)

15] Jayshree Narayan Mhaske v. State of Maharashtra & others (2005 (6) Bom.C.R. 382)

16] Shivappa Bhujangappa Bembale v. State of Maharashtra & another (2005 (6) Bom.C.R. 437)

khs/JULY 2016/104-d

17] Waliuddin Pashasaheb v. The State of Maharashtra &

another (WP 1542/2008 decided on 25.8.2010 - Aurangabad Bench)

18] Syed Afzaluddin Ustad Abdul Samad v. The State of Maharashtra & another (WP 815/2011 decided on

24.8.2011 - Aurangabad Bench)

11. Considering the above, this Court, therefore, concluded that

Rule 30, which defines qualifying service of a government servant

which would commence from the date he takes charge of the post to

which he is first appointed, would be applicable to the case of such

daily wagers. The second proviso to Rule 30 deals with the services

of temporary employees including those employees who have retired

or have been permanently incapacitated and who have completed not

less than 10 years of service as temporary employees and they would

also be entitled for retiring pension, retirement gratuity and family

pension at the same scale as is admissible to the permanent

government servant.

12. In this backdrop, the case of the daily wagers appointed by the

petitioner herein was considered by keeping in view that they were

practically rendered remediless and were deprived of retiral benefits

despite having served for more than 2 or 3 decades. The judgment of

the Industrial Court was therefore sustained in the Ganpat Karle

khs/JULY 2016/104-d

case (supra) so as to ensure that such daily wagers who have spent

their lifetime with this University are not rendered to starvation after

their retirement.

13. Mr.Navandar has also canvassed that the complaint before the

Industrial Court was filed belatedly by the respondents/ employees.

No application for condonation of delay was filed and hence, this

petition be allowed and the complaint be remitted back to the

Industrial Court for considering as to whether delay deserves to be

condoned or not.

14. The above submission of Mr.Navandar deserves to be rejected

for the reason that these 3 respondents have retired more than about

15 years ago. Merely because the issue of delay is not properly

considered and the complaint was entertained, would not warrant a

remand of the matter and thereby cause rigours of litigation to such

employees who have already retired and are without a single penny

towards their pensionary benefits. Nevertheless, the concept of

'recurring cause of action' is squarely applicable to this case. Non

payment of pensionary benefits would be a continuous cause of

action.

khs/JULY 2016/104-d

15. So also, Mr.Barde submits on instructions from the

respondents/employees that they are willing to give up their claim

from the date of retirement till the filing of the complaint. The said

statement is recorded.

16. As such, considering the principle of recurring cause of action

and the statement made by Mr.Barde, this petition can be partly

allowed to the extent of modifying the impugned judgment of the

Industrial Court.

17. Needless to state, considering that the facts of this case are

identical to the facts of the Ganpat Kisan Karle case (supra) and

upon considering that the definition clause relied upon by

Mr.Navandar would not impact the view taken by this Court, I find no

circumstances to adopt a different view than the one taken in the

Gapat Kisan Karle case (supra).

18. This petition is, therefore, partly allowed. The grant of

pensionary benefits, as directed by the Industrial Court and keeping

in view the conclusions arrived at by this Court in the Ganpat Karle

case (supra), respondent Nos. 3, 4 and 5 would not be entitled for the

pensionary benefits only from the date of their retirement till the date

khs/JULY 2016/104-d

of filing of the complaint. From the date of filing of the complaint,

they shall be entitled for pensionary benefits.

19. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

khs/JULY 2016/104-d