Bombay High Court
Nitin Vilas Yewale vs Dhule Municipal Corporation ... on 30 November, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4 OF 2016
Anil Aadhar Gawale,
Age : 40 years, Occupation : Service,
R/o Wadi Bhokar Road,
Indra Nagar, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.5 OF 2016
Baburao Khandu Salve,
Age : 45 years, Occupation : Service,
R/o Gurukripa Nagar, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
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Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.6 OF 2016
Suresh Somnath Chavan,
Age : 45 years, Occupation : Service,
R/o Vadi Bhokar Road,
Daithankar Nagar, Dhule,
Taluka and District Dhule.
ig ...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.7 OF 2016
Suklal Jagannath Garud,
Age : 40 years, Occupation : Service,
R/o Gurukripa Nagar, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
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Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.8 OF 2016
Kandu Savlaram Pawar,
Age : 40 years, Occupation : Service,
R/o Wadi Bhokar Road,
Daithankar Nagar, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.9 OF 2016
Shobha Milind Sardar,
Age : 45 years, Occupation : Service,
R/o Gurukripa Nagar, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
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Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.10 OF 2016
Dnyaneshwar Pitambar Bhambare,
Age : 40 years, Occupation : Service,
R/o S.R.Patil Gotur Road, Devpur, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.11 OF 2016
Nitin Vilas Yewale,
Age : 40 years, Occupation : Service,
R/o Moglai Ramapati Chowk, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
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1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.12 OF 2016
Laxmi Nandu Akhade,
Age : 45 years, Occupation : Service,
R/o Gurukripa Nagar, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.13 OF 2016
Kailash Dhansing Ahire,
Age : 40 years, Occupation : Service,
R/o Station Road, Near Saibaba Mandir,
Dhule, Taluka and District Dhule.
...PETITIONER
-VERSUS-
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1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.14 OF 2016
Ranjana Ravindra Sonavane,
Age : 45 years, Occupation : Service,
R/o Railway Station Road,
Wadkar Chawl, Dhule,
Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
...RESPONDENT
WITH
WRIT PETITION NO.15 OF 2016
Sangita Arun Sonavane,
Age : 45 years, Occupation : Service,
R/o Railway Station Road,
Wadkar Chawl, Dhule,
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Taluka and District Dhule.
...PETITIONER
-VERSUS-
1 Dhule Municipal Corporation.
Dhule.
Through its
Municipal Commissioner.
2 The State of Maharashtra.
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
ig ...RESPONDENT
...
Advocate for Petitioners : Shri Waramaa B.R..
Advocates for Respondent No.1/ Municipal Corporation : Shri Mukul S.
Kulkarni, Shri S.P.Shah, Shri N.N.Desale and Shri A.S.Sawant.
AGP for Respondent 2 : Shri N.T.Bhagat.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 30th November, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 In all these matters, the Petitioners, who are identically
placed in the same Respondent No.1/ Dhule Municipal Corporation, are
aggrieved by the judgment and order of the Industrial Court dated
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14.08.2015 by which Complaint (ULP) Nos.23 to 34 of 2010 have been
dismissed.
3 I have considered the strenuous submissions of the learned
Advocates for the litigating sides and have gone through the petition
paper books with their assistance.
4 There is no dispute that all these Petitioners have been
working as "Badli Workers" with the Respondent/ Corporation. It is
claimed that they have been working for about two decades. There is no
dispute that the Respondent Corporation maintains the list of Badli
Workers and those Badli Workers, who are allotted the work on account of
temporary absence of regular employees, are issued Badli Passes. The
certified copy of the list of Badli Workers was produced before the
Industrial Court and the said document was exhibited. Similarly, the Badli
Passes were also produced and exhibited before the Industrial Court.
5 The learned Advocate for the Petitioners has strenuously
submitted that some of these Badli Workers could succeed in getting some
posts created/ sanctioned at the level of the State Government earmarked
specifically for them.
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6 The learned Advocates for the Respondent Corporation
submit that several permanent employees working with the Respondent
Corporation have still not been regularized on specific posts since the said
posts are not available.
7 My attention is drawn by the learned Advocates to the
affidavit in reply filed by the Respondent Corporation to indicate that by
order dated 21.10.2016 passed by the State Government, the
Commissioner of the Municipal Corporation is informed that the
establishment expenditure/ administrative expenses with regard to the
employees has risen to 50.72% which is much beyond the permissible
limit of 35%, which is settled by the Government Resolution dated
04.05.2006. Hence, the proposal for creation of posts is rejected.
8 It is settled law that Badli Workers do not have a right to
claim permanency or regularization since they are not working
consistently on a particular vacant permanent post. The concept of Badli
Workers is purely based on such a worker being allotted the work
temporarily on a particular day or days during the temporary absence of a
regular/ permanent employee. A given Badli Worker may once work
temporarily on the post occupied by Mr.X and on another occasion, he
may be deployed to work temporarily in relation to an employee Mr.Y who
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may be temporarily absent. The peculiarity of the work, therefore,
disentitles him to seek regularization and therefore, the right is not
created in him.
9 Nevertheless, considering the facts of these cases wherein
these Badli Workers, with a hope of being taken on regular rolls of the
Respondent Corporation, have been making themselves available to work
as and when the work is available since around 1994, these cases will
have to be looked at differently.
10 There is no dispute that creation of posts is a continuous
process and as the posts are created and become available, those persons
who are awaiting regularization on the basis of their seniority and are in
queue, are absorbed on such posts. Considering that the municipal limits
of Dhule town are ever growing and with growing population, the services
in the Health and Sanitation Department are expanding, the Respondent
Corporation will then have to cater to the necessities of the population by
absorbing more people on regular establishment depending on vacancies
or creation of posts.
11 In the above backdrop, the direction to the Respondent
Corporation to maintain the seniority list of Badli Workers, offer them
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work as and when it is available by following the consistent practice in the
Corporation and consider them as and when the occasion arises for
regular engagement rather than opting for fresh hands or new faces in
Class-IV category, would meet the ends of justice.
12 In the light of the above, these Writ Petitions are partly
allowed with the following directions which shall be followed by the
Respondent/ Corporation in true spirit:-
(a) The Respondent/ Corporation shall continue to maintain the
list of Badli Workers based on their seniority which is to be
prepared considering the first date of their engagement.
(b) The Respondent/ Corporation shall continue to offer the work
as and when it is available to these Badli Workers based on
their seniority.
(c) Insofar as the Health, Sanitation and similar Departments are
concerned, the Respondent/ Corporation shall refrain from
recruiting or engaging fresh hands/ new faces in Class-IV
category by ignoring these Badli Workers.
(d) As and when the situation and occasion may arise wherein
the Respondent/ Corporation may require more hands to be
engaged for regular work in the Health, Sanitation and
similar Departments in Class IV category, they shall give
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preference to the Badli Workers whose names are mentioned
in the list on the basis of their seniority.
(e) The impugned judgments of the Industrial Court, therefore,
stand modified in the above terms.
13 Rule is made partly absolute in the above terms.
kps ig (RAVINDRA V. GHUGE, J.)
