The Vice Chancellor Vasantrao ... vs Gayabai Kishan Shinde
2016 Latest Caselaw 6092 Bom

                                          1




                                                                           
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                             WRIT PETITION NO.274 OF 2016

    1.     The Vice Chancellor,
           Vasantrao Naik Marathwada




                                                 
           Agriculture University, Parbhani,
           Tq. and Dist.Parbhani,

    2.     The Registrar,




                                         
           Vasantrao Naik Marathwada
           Agriculture University, Parbhani,
           Tq. and Dist.Parbhani,
                              
    3.     The Director of Research,
           Research Centre,
                             
           Vasantrao Naik Marathwada
           Agriculture University, Parbhani,
           Tq. and Dist.Parbhani                        -- PETITIONERS

    VERSUS
      


    1.     Smt.Gayabai w/o Kishan Shinde,
   



           Age-56 years, Occu-Service, 
           R/o.Khanapur Nagar, Chincholi Road,
           Parbhani, Tq. and Dist.Parbhani,





    2.     The Deputy Secretary,
           Department of Agriculture,
           Mantralaya, Mumbai                           -- RESPONDENTS

WITH

WRIT PETITION NO.328 OF 2016

1. The Vice Chancellor, Vasantrao Naik Marathwada Agriculture University, Parbhani, Tq. and Dist.Parbhani,

2. The Registrar, Vasantrao Naik Marathwada Agriculture University, Parbhani,

khs/OCT.2016/274-d

Tq. and Dist.Parbhani,

3. The Director of Research, Research Centre, Vasantrao Naik Marathwada Agriculture University, Parbhani, Tq. and Dist.Parbhani -- PETITIONERS

VERSUS

1. Yashwant S/o Digambar Dhale,

Age-57 years, Occu-Service, R/o Raipur, Tq.Parbhani, Dist.Parbhani

2. The Deputy Secretary, Department of Agriculture,

Mantralaya, Mumbai -- RESPONDENTS

Mr.M.N.Navandar, Advocate for the petitioner. Mr.V.P.Kadam, Advocate for respondent No.1. Mr.S.B.Joshi, AGP for respondent No.2.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 17/10/2016

ORAL JUDGMENT :

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

consent of the parties.

2. I have considered the strenuous submissions of both the

learned Advocates for the respective sides and have gone through the

judgments cited by Mr.Navandar. I am not required to advert to their

entire submissions for the reason that the respondent in the first

khs/OCT.2016/274-d

petition has already been recommended for regularization. The

University has fairly stated in its additional affidavit dated

18/04/2016 in both these matters that as per the GR's dated

24/07/2015 and 16/11/2015, the name of the respondent in the first

petition is at Sr.No.14 in the list of the 32 daily wage workers who

have been recommended to the appropriate Government for

regularization. Similarly, though the respondent in the second

petition has superannuated on 19/06/2015, his name has been

included in the list of Skilled Machine Operators at Sr.No.83 by

which it is stated that he would be entitled for benefits of

regularization.

3. In so far as the directions of the Industrial Court by which the

petitioners have been directed to make the respondents/employees

permanent in service is concerned, it appears that the Industrial

Court has lost sight of the fact that the Universities do not have the

right to create posts. In several judgments delivered by this Court, it

has been concluded that the Vice Chancellor or the Registrar of the

University cannot create posts and the creation of posts vests in the

appropriate department of the State Government. Consequentially,

this court has set aside the declaration of ULP made by the

Industrial Courts in the matters of regularization, against the

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Universities.

4. In the facts of these cases, the additional affidavit filed by the

petitioners clearly indicates that the State Government, by the two

resolutions, has finalized the list of daily rated labourers (283) and

267 skilled/semi skilled labourers, for regularization on the regular

establishment on available vacant posts. Those who remained to be

absorbed would also be accommodated on regular establishment on

super numerary posts which would be sanctioned by the State

Government by following the procedure.

5. The communication dated 29/02/2016 by the Registrar of the

University to the Deputy Secretary (Education) to the Hon'ble

Chancellor of Universities, indicates that under the orders of the

Government, 434 daily wage workers have already been absorbed on

available vacant posts. The name of the respondent in the first

petition is included in the list of 34 such daily wage workers who are

senior to the 432 employees who have been regularized in

employment.

6. In the light of the above, it is apparent that the Department of

Agriculture, State of Maharashtra will have to take a decision with

khs/OCT.2016/274-d

regard to these two respondents and similar other daily wage workers

who are identically placed, as regards their absorption on available

vacant posts. Learned Advocate for the respondent has voiced an

apprehension that it may take months or years for the Government to

take a decision. The respondent in the second petition has already

superannuated and unless a decision is taken in promptitude, he

would have to live a retired life without any service benefits.

7. Considering the above and the undisputed position that the

respondent in the first matter was reinstated on 17/08/2004 and the

second respondent was reinstated on 15/12/2001 and have been

working thereafter till the respondent Yashwant Digambar Dhale

superannuated on 19/06/2015, I deem it appropriate to direct the

Department of Agriculture, State of Maharashtra to take a decision

with regard to both these respondents namely Smt.Gayabai Kishan

Shinde and Shri Yashwant Digambar Dhale within a period of 16

weeks. For the said purpose, the petitioners are permitted to add the

Department of Agriculture, State of Maharashtra through its

Secretary. Addition be carried out forthwith. Learned AGP waives

service for the added respondent.

8. In the light of the above, both these petitions are partly

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allowed. The impugned judgments in both these petitions stand

modified as under :-

[a] The declaration of ULP in clause 'B' of the operative part of the impugned judgment is quashed and set aside.

[b] The direction in clause 'C' of the operative part is modified by directing the added respondent No.2 Department to consider the cases of both these respondents in the light of the facts

recorded hereinabove and grant regularization and benefits to both these respondents on existing vacant posts within a period

of 16 weeks from today.

[c] The learned AGP shall communicate this order to the concerned

respondent No.2 by placing a copy of the same for necessary action.

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

( RAVINDRA V. GHUGE, J.)

khs/OCT.2016/274-d