Bombay High Court
Murlidhar Ganpat ... vs District & Session Judge,Buldana ... on 9 March, 2016
Bench: B.P. Dharmadhikari
1 wp569.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.569 OF 2001
Murlidhar s/o Ganpat Tayade,
aged about 42 years,
occupation : Labourer,
r/o At and post Nandrakoli,
Taluq and District Buldana. ig ... Petitioner
- Versus -
1) District and Sessions Judge,
Buldana.
2) Hon'ble High Court of Judicature
at Mumbai, Bench at Nagpur,
through its Hon'ble Chief
Justice. ... Respondents
-----------------
Shri R.L. Khapre, Advocate for petitioner.
Shri A.S. Jaiswal, Senior Advocate with Smt. Bajaj,
Advocate for respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : MARCH 9, 2016
2 wp569.01
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
The petitioner applied in response to
advertisement published by respondents in the year
1985 for appointment of Class IV employees and was
placed in select list at serial no.16. He got appointment
in due turn for the first time on 25/9/1992.
ig The
appointment order specifically mentions that as
candidate whose name figured at serial no.14 did not
join, the petitioner whose name was at serial no.16 was
called upon to join.
2) The service period of petitioner thereafter till
his termination on 1/7/1999 is placed on record by
respondents along with their reply. The said period is
mentioned below :
Date on Date on Date on which Date on
which which appointed which
came on waiting list services
the was quashed were
waiting terminated
list
2.10.1985 1.1.1995 25.9.1992 1.3.1993
3 wp569.01
07.6.1993 1.9.1993
01.9.1993 16.10.1993
28.10.1993 13.12.1994
06.3.1995 21.4.1995
01.3.1996 15.6.1996
01.2.1997 30.6.1997
26.12.1997 30.6.1999
The actual period of service on each occasion and
nature of vacancy against which petitioner was
appointed is as under :
Period of service Whether appointment was
in leave/clear vacancy
5 months & 6 days Clear vacancy
1 month & 24 days Clear vacancy
1 month & 16 days Leave vacancy
1 year 1 month & 17 days Clear vacancy
1 month & 17 days Leave vacancy
3 months & 15 days Clear vacancy
5 months Clear vacancy
1 year 5 months & 6 days Clear vacancy
All these appointments were on purely temporary basis.
4 wp569.01
3) After his termination on 1/7/1999, the
petitioner has approached this Court with a prayer for
reinstatement with continuity and back wages and also
for awarding permanency. This Court has on 9/7/2002
passed the following order :
"Heard.
Rule.
It is not in dispute that the petitioner was
selected as per the select list of 1985 and was
engaged as Watchman from time to time. His first
appointment came to be made on 25/9/1992 and
though the appointment was on temporary basis,
the petitioner was continued with intermittent
breaks in service.
It is the case of the respondents that the
select list of 1985 came to be scrapped w.e.f.
1/1/1995. In spite of that, the petitioner was
continued till the year 1999 when his services
ultimately came to be terminated as the
respondent District & Sessions Judge, Buldhana
proceeded to make fresh recruitment. On
1.2.2002 an advertisement was issued for
preparation of select list of persons for the posts
which are likely to be vacant during the period of
three years after 14/5/2002.
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It is not in dispute that there are
vacancies in existence. Our attention is drawn by
the learned Counsel appearing for the petitioner
to the decision of this Court in the case of Asif
Anwar vs. The Registrar (Appellate Side), High
Court, Nagpur Bench, Nagpur and others in Writ
Petition No.548 of 1994 decided on 1st March 2002
by the Division Bench consisting of V.G. Palshikar
and V.M. Kanade, JJ.
We fail to understand as to why this
practice being followed in the matter of
employment. If there are vacancies, then there
should be no hesitation on the part of the
Authority to fill the vacant posts, once the select
list is prepared and persons are available for the
appointment. Number of times the Courts have
passed strictures against the State for not being
an ideal employer. We find that in this matter the
petitioner was continued for almost more than
eight years depriving him of all benefits, which he
could have otherwise got from the service, if he
was appointed in the routine manner. It is not in
dispute that there is any adverse remark in
respect of performance of the petitioner during
the period he was engaged and served in the
Court.
Therefore, we are inclined to direct the
6 wp569.01
District & Sessions Judge, Buldhana to reinstate
the petitioner in service and continue him until
further orders.
A.G.P. waives service on behalf of the
respondents. Steno copy be furnished to the A.G.P.
to communicate it to the respondents, to act
upon."
4) As per that order, petitioner came to be
reinstated and today he is in service. He is due to
reach age of superannuation somewhere in the year
2017.
5) Adv. Khapre for petitioner, in this background,
submits that entry of petitioner in employment cannot
be said to be back door as he was selected after
following proper selection process. He contends that as
clear vacancies were advertised and petitioner was
appointed against clear vacancy, breaks in service are
artificial and need to be ignored. He is relying upon
decision of the Constitution Bench of Hon'ble Apex
Court in Delhi Transport Corporation vs. D.T.C.
7 wp569.01
Mazdoor Congress and others (AIR 1991 SC 101) to
urge that as petitioner then lacked bargaining capacity,
he was required to submit to arbitrary treatment
extended to him. He points out that petitioner was
given appointment almost every year. He further
contends that his last appointment was against a clear
vacancy and for
ig a period from 26/12/1997 to
30/6/1999, i.e. in excess of 240 days. He further points
out that in this situation, if breaks are ignored, the
petitioner is entitled to grant of regularization as also
permanency.
6) Learned Senior Counsel Shri Jaiswal with Adv.
Bajaj for respondents submits that petitioner never
questioned the appointment orders issued to him from
time to time. About eight appointment orders were
issued to him between 25/9/1992 and 26/12/1997 and
those appointment orders were all specifically on
temporary basis. Thus, he was always aware that
employment provided to him was not on account of his
8 wp569.01
selection in 1985. He further contends that select list
prepared in 1985 was kept valid for several years and
ultimately error was corrected by the Office by
quashing it with effect from 1/1/1995. He, therefore,
states that in any case, appointment through that
select list after 1/1/1995 cannot be viewed as legal and
proper. In this situation, he is relying upon the
judgment of Constitution Bench of the Hon'ble Apex
Court in Secretary, State of Karnataka and others
vs. Umadevi and others (AIR 2006 SC 1806) to urge
that the prayers as made for grant of regularization or
permanency are unsustainable. He contends that on
account of interim order passed by this Court on
9/7/2002, petitioner has been continued in employment
and is being paid regular salary, but his employment
cannot be regularized and no permanency can be
given. He states that Hon'ble Apex Court has in the
case of Secretary, State of Karnataka and others vs.
Umadevi and others (supra) has held that such
employment should not be on the strength of interim
9 wp569.01
orders of the Court.
7) After hearing respective Counsel, we find that
petitioner participated in competitive selection process
in 1985 and ultimately was employed for the first time
on 25/9/1992. Thereafter, there are about seven orders
issued to him, but those orders are on the basis of his
placement in select list though nature of appointment
is mentioned as purely temporary. The others, who
stood in that select list above him, may have been
already made permanent or regularized. The fact of
cancellation of that list with effect from 1/1/1995 is
obviously not known to the petitioner. He has not
challenged the appointments at any point of time.
However, his last appointment is for the period of one
year five months and six days. After 30/6/1999, he was
not in employment till his reinstatement after order of
this Court dated 9/7/2002. Perusal of order of
termination dated 1/7/1999 reveals a stipulation
therein that post on which petitioner was working
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should be kept vacant.
8) In the light of above mentioned judgments, it
is apparent that Hon'ble Apex Court in its latter
judgment permitted regularization of employees
working on daily wages or on casual basis as one time
measure. This judgment has come in the year 2006
when present petitioner was already in employment.
We also take note of the fact that petitioner could have
pointed out that he has been selected against a
permanent vacancy and, therefore, he could not have
been given appointment on temporary basis. It
appears from data placed on record by respondents
that his first, second, fourth, sixth, seventh and last
appointments were against a clear vacancy and his
third and fifth appointments were only against leave
vacancy. On most of the occasions, clear vacancy
came to an end because of disbandment of Court.
However, his termination on 1/7/1999 is because of
instructions issued by High Court vide its letter
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No.5601/57 dated 6/5/1999. This communication is not
available on record.
9) Adv. Khapre has urged that as petitioner was
working against clear vacancy and was selected after
following proper selection process, disbandment of
Court could not have resulted in his termination and he
ought to have been shifted to some other
establishment or Court. However, we find that this
argument cannot be appreciated at this point of time.
The petitioner has accepted all his appointments from
25/9/1992 upto 30/6/1999 without any demur.
10) However, insofar as last appointment of
petitioner from 26/12/1997 is concerned, the above
logic may not be applicable. The petitioner has
attempted to explain his plight in the petition.
After his termination on 1/7/1999, petition has been
filed and this Court has also granted interim relief,
which has been implemented. We, therefore, do not
12 wp569.01
wish to go into those facets. We find that here interest
of justice can be met with by giving petitioner
continuity from 26/12/1997.
11) As the petitioner was selected against a clear
vacancy and had worked for one year five months and
six days before his termination on 1/7/1999, in the
above facts, we quash and set aside order of
termination dated 1/7/1999. The petitioner is
reinstated in service with continuity, but without back
wages for the period from 1/7/1999 till he was provided
work in obedience to order dated 9/7/2002 passed by
this Court. The petitioner shall, however, be treated as
a regular and permanent employee and for working out
his salary, increments shall be notionally released for
the period from 26/12/1997 till 26/12/2015 and his
current salary shall accordingly be worked out.
Needless to mention that no arrears on that account
shall be payable to the petitioner.
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12) The petition is thus partly allowed and
disposed of. No costs.
JUDGE JUDGE
khj
