Bombay High Court
Sambha S/O Krishnaji Pusate ... vs The State Of Maharashtra,& 2 ... on 5 May, 2016
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3541 OF 2015.
1. Sambha s/o Krishnaji Pusate,
aged 58 years, Occu: Retired, r/o
Lalguda, Tq.Wani, Distt.Yavatmal. (dead)
LEGAL REPRESENTATIVES.
1(a). Visakha w/o S.K.Sathe,
aged about 46 years.
1(b) Shuddhodhan s/o Sambshiv Sathe,
aged about 29 years,
1(c) Bapuji s/o Sambshiv Sathe,
aged about 27 years,
1(d) Nagsen s/o Sambshiv Sathe,
aged about 24 years,
1(e) Sanghratna s/o Sambshiv Sathe,
aged about 22 years,
1(f) Prabuddha s/o Sambshiv Sathe,
aged about 20 years,
1(g) Buddharatna s/o Sambshiv Sathe,
aged about 16 years,
1(h) Sujata d/o Sambshiv Sathe,
aged about 14 years.
2. Nathu s/o Rajeshwar Bhoyar,
aged 57 years, Occu: Service, R/o Ganeshpur
Road, Ward No.5, Sane Guruji Nagar (Gedam
Layout), Post and at Tq. Wani, Distt.Yavatmal.
3. Vasant s/o Deorao Asekar,
aged about 56 years, Occu: Service,
r/o Nimbala (Road), Tq.Wani, Distt.Yavatmal.
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4. Raghunath s/o Laxmanrao Nit,
aged about 63 years, Occu: Retired, r/o Datta
Mandir, Railway Station Road, Ward No.1,
Wani, Distt.Yavatmal.
5. Shakuntala Babanrao Sakharkar,
through her son Bhushan Babanrao Sakharkar,
r/o Ward No.4, Sawarkar Chowk, Wani, Distt.
Yavatmal.
6. Savitribai Daulat Dethe,
aged about 26 years, Ranganath Nagar Ward
No.4, Behind Idgah, Wani, Distt.Yavatmal. ...PETITIONERS
: VERSUS :
1. State of Maharashtra
through its Secretary, Revenue and Forest
Department, Mantralaya, Mumbai - 32.
2. The Collector, Yavatmal.
3. The Zilla Parishad, Yavatmal. ... RESPONDENTS.
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Mr. R.L. Khapre, Advocate for the petitioner.
Mrs. H.N. Prabhu, Asstt.Govt. Pleader for respondent nos.1 and 2.
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CORAM: B.P.DHARMADHIKARI
AND P.N.DESHMUKH, JJ.
DATE: 5th MAY, 2016.
ORAL JUDGMENT : (Per B.P.Dharmadhikari, J.)
1. Heard Advocate Shri Khapre for the petitioners and learned
Assistant Government Pleader for respondent nos.1 and 2.
Nobody appears for respondent no.3 - Zilla Parishad but then no relief is
claimed against it.
2. Shri Khapre at the threshold pointed out that after matter was
received by him through Legal Aid, with great difficulty he could collect
data, compile the same and present the petition.
3. Petitioner No.6 is widow of original employee while petitioner
no.1 has expired during pendency of petition and his legal heirs have
been brought on record. Learned counsel submits that petitioners were
not possessing necessary data so as to enable him to effectively present
their grievance before the Court. However, according to him, petitioners
did not get proper legal advice and therefore withdrew their ULP
Complaint presented at Industrial Court on 24th of July, 2003 and then,
as advised, approached the Maharashtra Administrative Tribunal (MAT)
in Original Application No.88 of 2004. Maharashtra Administrative
Tribunal has given undue importance to technicality and as on the date
on which it passed order i.e. 1st of September, 2004, petitioners had
already superannuated, no cognizance of their grievance has been taken.
He therefore states that present petition has been filed under Article 226
of the Constitution of India and this Court has to apply its mind, as if
challenge is for the first time presented to it. Thus, grievance before the
Industrial Court in ULP Complaint No.36 of 1999 and thereafter in
Original Application No.88 of 2004 must be clubbed together for such
consideration. He submits that petitioners were working since year
1973-1974 and were absorbed in government service belatedly. In view
of that absorption, under mistaken notion, they withdrew ULP
Complaint No.538 of 1988 and went to Maharashtra Administrative
Tribunal. He is placing reliance upon provisions of 'Kalelkar Settlement'
to submit that every employee, like petitioners, who puts in five years of
continue service is entitled to be absorbed on temporary regular work
charge establishment, as post personal to him is deemed to be created.
This personal post subsists till he is shifted to some other post after
proper regularization or then is superannuated. Here, the petitioners
were regularized but then shifted from Zilla Paishad to State
Government. Till their services in Zilla Parishad, the provisions of
'Kalelkar Settlement' needed to be applied and Industrial Court
accordingly should not have permitted petitioners to withdraw their ULP
complaint. He argues that even before Maharashtra Administrative
Tribunal provisions of 'Kalelkar Settlement' could not have been
overlooked.
4. Learned Counsel has given us details of length of service put
in by each individual and we will be making reference to that period at
appropriate place in the body of this judgment. Shri Khapre states that
thus petitioners have been denied advantage of 'Kalelkar Settlement' and
also welfare provisions contained in The Industrial Employment
(Standing Orders) Act, 1946 contained in clause 4(C) of Model Standing
Order. After completion of 240 days of continuous service, the post is
presumed to be created for such employee and hence after their initial
employment as Mustering Assistants, the petitioners ought to have been
made permanent after 240 days.
5. He has invited our attention to specific assertion in reason
No.4 (ground No.4) of petition to show that the person whose name is
placed after petitioners in seniority list were given permanent status
before petitioners and thus an injustice has been done to them. He
therefore seeks a relief of grant of permanency to all petitioners at least
from year 1978-1979 with consequential direction to compute their
qualifying service for all purposes including Pension, Gratuity, Provident
Fund, etc. from said date/year.
6. Learned Assistant Government Pleader has invited our
attention to return filed on behalf of respondent nos.1 and 2. She
submits that most of the petitioners were working under Employment
Guarantee Scheme and hence provisions of 'Kalelkar Settlement' or then
provisions of Model Standing Orders were not applicable to them. She
submits that as Mustering Assistant their length of services have been
looked into and as per policy formulated by State Government, they
have been absorbed. The qualifying service put in by them after such
absorption only can be looked into. Earlier service put in by them was on
purely temporary basis and therefore could not have been clubbed with
their employment under State Government. She also points out that
Zilla Parishad and State Government are separate and distinct
employers. She has further stated that the priority or preference given
to so called juniors and absorption prior to petitioners as urged is not
correct. Those juniors have not been made permanent. She submits that
complaint filed before Industrial Court was withdrawn after petitioners
were absorbed in Government employment and then they approached
Maharashtra Administrative Tribunal. Grounds which were relevant
before Industrial Court could not have been taken before the
Maharashtra Administrative Tribunal. The Maharashtra Administrative
Tribunal has applied its mind to the controversy and found that relief of
permanency was being claimed. The Maharashtra Administrative
Tribunal has noted that petitioners were already given regular
appointments and thereafter three petitioners had already retired. In
that view of matter, MAT has refused to grant relief of permanency. She
further points out that MAT has, however, noted that if petitioners
fulfilled the conditions and could have been made permanent as per
Rules and Regulations, the State Government would be taking action to
make them permanent. She therefore contends that after
superannuation, MAT has looked into the challenge as presented and
found it without substance.
7. She has also invited our attention to Constitution Bench
Judgment of Hon'ble Apex Court reported at AIR 2006 SC 1806
(Secretary, State of Karnataka and ors. ..vs.. Umadevi and ors.) to point
out that the relief of permanency could not have been extended to
petitioners in present facts. She therefore prays for dismissal of Writ
Petition.
8. The period of service put in by respective petitioners is not in
dispute. Petitioner no. 1 initially joined services on 17 th of April, 1971
as a 'Mistri' in Public Works Department and he continued to work in
that capacity with respondent no.3 - Zilla Parishad up to 31st of August,
1973 in a proper pay-scale with other allowances. The appointment
order itself stipulates that appointment was without consulting the
District Selection Board. Appointment order is for period up to 30 th of
June, 1971 temporarily or then till closure of scarcity works, whichever
event occurred first. He was thereafter appointed by respondent no.3 as
a Mustering Clerk and petitioner states that actually he continued to
work as 'Mistri'. This appointment is by order dated 27 th of September,
1979 and therein it is mentioned that he is appointed as Mustering
Assistant on work charge establishment under Employment Guarantee
Scheme on consolidated salary. At Sr.No.8 of this order, name of
petitioner no.1 appears. Name of husband of petitioner no.6 appears at
Sr.No.9 in same order. Petitioner no.1 claims that accordingly he
continued to work up to 31st of May, 1997 and then he was appointed as
Canal Watchman in the office of Public Works Department, Irrigation
Sub Division, Pandharkawada in a pay-scale. He has stated that copy of
that appointment order is not available with him. On 8 th of January,
2003, he came to be appointed as Junior Clerk in Treasury Office.
He worked in that capacity up to 31 st of February, 2004 where he
reached age of superannuation. Perusal of appointment order dated 8 th
of January, 2004 shows that name of petitioner no.1 figured in list of
Mustering Assistants under Employment Guarantee Scheme and hence
he was given this appointment which was of purely temporary nature.
9. Petitioner no. 2 came to be appointed initially in the year
1971. But then said petitioner has again stated that he does not have
copy of said appointment order. By placing reliance upon seniority list
attempt is to show that he entered employment on 18.9.1972. He was
given post as Work Charge Employee by order dated 20.4.1978 in
employment of respondent no. 3 Zilla Parishad. He was not permitted to
join by respondent no. 3 as no post was vacant. Thereafter he was
appointed as Muster Clerk in office of Zilla Parishad only with effect
from 15.6.1978 and he was allowed to work till 30.3.1979. By order
dated 29.2.1979 he was appointed as Mustering Assistant on
consolidated salary of Rs.150/- per month. Appointment order shows
that he was given work on purely temporary basis to be discontinued as
soon as Employment Guarantee Scheme work got over. Thus, he
worked as Mustering Assistant under Employment Guarantee Scheme.
Petitioner no. 2 claimed that he continued to work on fixed salary till
31.6.1995 and then came to be transferred to Maregaon Sub Division.
At Maregaon, he again worked as Mustering Assistance with effect from
1.7.1995 to 14.11.2000. By order dated 15/20 th November, 2000, he
was appointed as Talathi i.e. Patwari and he was given pay Scale of 3200
-85 -4900. He retired on 30th June, 2005.
10. Petitioner no. 3 was appointed in pay scale of 110- 195 in
1971 in office of Public Works Department. He does not have copy of
that appointment order but in seniority list his date of appointment is
shown as 19.9.1972. Thereafter he was appointed on 19.9.1979 on fixed
salary as Mustering Assistant. Perusal of that order shows that he was
given work on road. He worked with respondent no. 3 till 1997. He
was relieved on 3.11.1997 for appointment in the office of Taluka
Inspector of Land Records. He worked in that office from 11.11.1997 to
2000. In that office he was given fresh appointment as peon in Class-III
in pay scale of 750-940. He was given regular appointment by Sub-
Division of respondent no.1 as Talathi vide order dated 24.11.2000 and
he superannuated on 31.7.2006. Perusal of appointment order shows
that he was Mustering Assistant under Employment Guarantee Scheme
and as per his seniority, he was absorbed as Talathi.
11. Petitioner no. 4 was appointed as Mistri on 15.2.1971 in pay
scale of 110 - 195. He worked on that post till 1973. Thereafter by
appointment order dated 20.4.1978 he was appointed as Mustering
Assistant on consolidated pay of Rs. 150/-. He worked in that capacity
till 29.3.1979 and thereafter he was appointed as Mustering Assistant on
fixed pay in office of P.W.D. Sub-Division, Wani. Perusal of this order
dated 29.3.1979 shows that appointment was purely temporary and
liable to be discontinued after closure of Employment Guarantee Scheme
work. He was then transferred as Mustering Assistant to Maregaon Sub-
Division where he worked till 14.11.2000. It is stated by him in petition
itself that he had reached the stage f superannuation on 24.5.2000.
12. Petitioner no. 5 before this court is wife of deceased employee
by name Baban Sakharkar. He expired on 6.12.1998. He was appointed
as Mistri on Work Charge employment from 12.4.1971 to 14.3.1972.
Thereafter he worked as Mistri on work charge establishment from 1972
to 31.8.1973 and thereafter from 3.9.1973 to 30.9.1973. On 20.4.1978,
he was appointed on consolidated pay of Rs.150/- and continued on
same terms by order dated 29.6.1979. Perusal of order dated 26.9.1979
shows that his appointment was purely temporary under Employment
Guarantee Scheme. He worked till 31.5.1997. Petitioner no. 5 claimed
that her husband was transferred on same post as a fresh appointee with
effect from 31.3.1997 in pay scale of 750 940. He has expired on
6.12.1998.
13. Petitioner no. 6 was appointed as Mistri on work charge
Establishment w.e.f. 22.3.1971 and continued till 30.9.1973. Thereafter
he came to be appointed vide order dated 27.9.1979 as Mustering
Assistant on fixed pay of Rs.150/- under Employment Guarantee
Scheme. He worked on that post till 24.3.1991 and died on 17.4.1991.
The petitioner before this court, therefore, filed application for grant of
compassionate employment.
14. It is these facts which need to be perused by this court while
considering the reliefs claimed.
15. ULP Complaint No. 538/1988 (36/1999) was filed before
Industrial Court by total six persons with prayer to direct respondents to
release their salary in time scale from the date of their appointment and
a further direction to appoint them on regular establishment. This
complaint was withdrawn on 24.7.2003 by pointing out to Industrial
Court that complainants intended to approach MAT or High Court.
Complaint was accordingly disposed of as withdrawn with observation
that complainants were at liberty to take recourse to such other remedies
as are available to them.
16. It appears that thereafter original application was filed before
MAT in the year 2004 vide O.A. No. 88/2004. In O.A. declaration of
entitlement to be absorbed in regular government employment or in any
of the department as a Muster Clerk was sought. Prayer was to direct
employer to issue appropriate appointment order appointing them on
the post of Muster Clerk or any other Class-III post and to give
consequential benefit at par with the junior employees after they were
made permanent in service.
17. In so far as claim for treatment at part with alleged juniors is
concerned, in Return the Deputy Collector, EGS, Yavatmal has, in
paragraph 13, pointed out that persons named in reason IV i.e. ground
IV of petition have not been made permanent at all. As such, only
question is whether petitioners could have been made permanent
government employees as claimed by them.
18. The perusal of G.R. dated 2nd May, 1995 placed on record by
petitioners shows that it is on subject of providing alternate employment
to the employees who were discontinued because of closure of various
schemes. It appears that earlier a time limit was prescribed for providing
such work. G.R. dated 7.1.1974 deals with absorption of Muster Clerks
and other clerks who were provided work due to scarcity and
retrenched. The time limit therein was extended upto 31.12.1995.
Petitioners have produced a G.R. dated 14.8.1997. By that G.R., posts of
Mustering Assistants in pay scale of 950-1600 were sanctioned and
allowed to be created by State Government on establishment of
Superintending Engineer P.W.D., Yavatmal for the absorption of
employees like petitioners. It is mentioned that provisions of 'Kalelkar
Settlement' would apply to such appointments and work should be
provided to employees on waiting list as per their seniority. These posts
were allowed to be continued till 28.2.1998. It is, therefore, obvious
that upto 14.8.1987, there were no posts for absorbing petitioners as
Mustering Assistants. Provisions of Kalelkar Award would have been
applicable to the work in those newly created posts after 1997 and not
before that. ULP Complaint was rightly withdrawn and MAT was
approached. It is to be noted that there is no challenge to G.R. dated
14.08.1997 or its terms before MAT or before us.
19. In reason I or ground I petitioners have claimed that period
mentioned in that ground should be looked into for fixation of their
salary. Details thereof are :-
From To
Petitioner no.1. 26.10.1979 31.10.1988
Petitioner no. 2 15.06.1978 31.10.1988
Petitioner no. 3 19.09.1979 31.10.1988
Petitioner no. 4 15.06.1978 31.10.1988
Petitioner no. 5 ig 20.04.1978 31.10.1988
Petitioner no. 6. 27.09.1979 31.10.1988
20. The law on the point is settled by Hon'ble Apex Court
mentioned supra. Unless and until there are vacancies and sanctioned
posts, regularization could not have been ordered even by Industrial
Court. Judgment of the Hon'ble Apex Court reported at (2009) 8 SCC
556 (Maharashtra State Road Transport Corporation and another vs
Casteribe Rajya Parivahan Karmachari Sanghatana) clarifies this aspect.
Shri Khapre has invited our attention to the judgment delivered by
Hon'ble Apex Court and reported at 2015 (1) Mh.L.J. 15 (State of
Jharkhand and others. Vs. Kamal Prasad and others). There Hon'ble
Apex Court has found that junior engineers were appointed in Rural
Department of the State of Bihar in the year 1981 and subsequently by
order dated 27.6.1987 as Assistant Engineers. State of Jharkhand was
created on 15.11.2000 due to bifurcation of State of Bihar and
respondents before Hon'ble Apex Court continued to work in Jharkhand
State in terms of Section 72 of Bihar Reorganization Act, 2000. They
were terminated by Jharkhand government w.e.f. 24.8.2011. Hon'ble
Apex Court found that having worked for more than 10 years
continuously in duly sanctioned post, but not under protection of orders
of Courts or Tribunals, they were entitled to regularization in their
respective posts. The facts looked into by Hon'ble Apex Court, therefore,
show that when respondents were appointed in 1981 and promoted in
1987, there were duly sanctioned vacancies. In the present matter, there
were no such vacancies. Period of employment mentioned supra shows
that all employees before us worked initially between 1971 to 1973 and
thereafter they were given work in 1978 under Employment Guarantee
Scheme in purely temporary capacity. It appears that thereafter on
account of policy decision, efforts were made to regularize them and for
the first time posts were created in the year August 1997 that too till
28.2.1998.
21. Length of service put in thereafter by petitioners is also taken
note of by this Court. The scheme itself stipulates that provisions of
'Kalelkar Settlement' would apply to persons who were provided
employment on those temporary posts, MAT could not have overlooked
the stipulations in G.R. dated 14.08.1997.
22. In view of these reasons, we do not find any fault with the
application of mind by the MAT. The MAT has while concluding its
order made it clear that if any of the applicants before it fulfilled terms
and conditions and satisfied requirements of Rules, the respondent State
would take action to make them permanent. Thus, the faith reposed in
State government by MAT cannot be said to be ill-founded.
23. Such of the employees before MAT and before us who have,
therefore, put in five years or more service on posts created vide G.R.
dated 14.8.1997, need to be considered for regularization in terms of
'Kalelkar Settlement'. We accordingly direct respondent nos. 1 & 2 to
consider their cases individually on lines mentioned supra in terms of
'Kalelkar Settlement' and take suitable decision as per law within four
months from the date of communication of this order. If necessary,
opportunity of hearing shall be extended to petitioners.
24. By way of abundant precaution, we grant petitioners who are
desirous of making a representation, leave to make such representation
pointing out all relevant facts to the respondent no.2 Collector. If such
representation is made within six weeks from today, it shall be looked
into and decided within further period of four months as stipulated
supra. However, it is made clear that fact that a particular petitioner or
his/her legal heir has not made such representation, shall not be used to
deny consideration of his/her case in obedience to this direction.
25. Accordingly, with these directions, we dispose of writ petition.
Rule discharged. No costs.
JUDGE JUDGE.
