Bombay High Court
Ajay S/O Shankarrao Bombekar And ... vs The State Of Maha. Thr. Secretory ... on 20 September, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.3133/2016
...
1. Ajay Shankarrao Bombekar,
Occu: Service,
R/o Ashti, Tahsil Kalamb,
District Yavatmal.
2. Nilesh Jagdeo Ghoderao,
Occu: Service,
R/o Civil Lines, Wardha.
3. Praful Dhyaneshwar Dhoke,
Occu: Service, R/o Hingana,
Dist. Nagpur.
4. Manisha Vasant Choudhari,
Occu: Service, R/o Birsi,
Th. Amgaon, Dist. Gondia.
5. Gajanan Maroti Gobade,
Occu: Service,
R/o Jawaharbodi Mendha,
Post Mendki, Th. Bramhapuri,
Distt. Chandrapur.
6. Kawekshar Namdev Lengure,
Occu: Service, R/o At Saoli,
Distt. Chandrapur.
7. Suhas Sheshrao Bondre,
Occu: Service, R/o Takiya Ward,
Bhandara, Distt. Bhandara.
8. Vinod s/o Sukramji Chopkar,
R/o Kothurna, Dist. Bhandara.
9. Ajay Shankarji Upadhye,
Occu: Service, R/o Ganeshpur,
Post Palsoni, Tah. Wani,
Dist. Yavatmal.
10. Shahnewaj Khan Ajijkhan,
R/o Yasin Mnajil, Ziya Colony,
Khamgaon, Distt. Buldhana.
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11. Divesh Dinkar Marathe,
R/o Girni, Th. Malkapur,
Dist. Buldhana.
12. Ravichandra Dhanraj Ade,
R/o Darwha, Distt. Yavatmal.
13. Mustak s/o Sattarkha Pathan,
Age : 27 years, Occu: Service,
R/o Kondhali, Tq. Katol,
Dist. Nagpur.
14. Pravin Namdeorao Wakade,
R/o Ralegaon, Distt. Yavatmal,
15. Vinod Sheshrao Shende,ig
MHADA Colony, 288,
Godhani Rly, Nagpur.
16. Mahesh s/o Ram Halde,
R/o Shivaji Nagar, Ner,
Distt. Yavatmal.
17. Bhimrao Bandu Chauhan,
R/o Bajrang Nagar, Papadgaon,
Dist. Yavatmal.
18. Mukesh s/o Govind Patle,
R/o Panjara, Tah. Tirora,
Distt. Gondia.
19. Devanand S. Deshmukh,
R/o Porla, Tah. Armori,
Distt. Gadchiroli.
20. Dilip s/o Maniram Rathod,
R/o Jawala, Tah. Arni,
Distt. Yavatmal.
21. Sadhana Suresh Hatwar,
R/o Plot No.117,
Kamakshi Nagar, Wathoda,
Nagpur.
22. Madhuri d/o Gangadhar Bhoyar,
R/o Plot No.2, Punjab Colony,
Wardha.
23. Vaishali d/o Ramdas Miskin,
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R/o Khedkar Wadi, Wardha.
24. Samiksha d/o Ashok Kshirsagar,
R/o Deoli, Distt. Wardha.
25. Rupali d/o Audhutrao Tadas,
R/o Mirapur, Wardha. .. PETITIONERS
.. Versus ..
1. The State of Maharashtra,
through its Secretary,
Women and Child Development
Department, Mantralaya,
Mumbai -32.
2. The Commissioner,
Women and Child Development
Department, Commissioner Office,
Pune.
3. The Officer On Special Duty,
Maharashtra Child Protection
Society, Women and Child
Development Department,
Arjun Building, Pune.
4. The Program Manager,
Maharashtra Child Protection
Society, Women and Child
Development Department,
Arjun Building, Pune. .. RESPONDENTS
Mr. N.R. Saboo, Advocate for Petitioners.
Mr. Subodh Dharmadhikari Senior Advocate with
Mrs. K.R. Deshpande, AGP for Respondent Nos. 1 to 4.
....
CORAM : B.R. Gavai & V.M. Deshpande, JJ.
DATED : September 20, 2016.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Rule. Rule made returnable forthwith. Heard finally by
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consent of learned counsel appearing for the parties.
2. The petitioners have approached this Court praying for
quashing and setting aside the decision of the respondents to
relieve the services of the petitioners on the ground that they have
completed 3 years service by adopting the procedure of
outsourcing. The petitioners have also prayed for a direction to the
respondents to continue the services of the petitioners as per the
Integrated Child Protection Scheme and for releasing the difference
of salary payable to the petitioners as per the revision of pay with
effect from 1.4.2014.
3. Undisputedly the appointments of the petitioners are
under the scheme known as the Integrated Child Protection
Scheme (for short "ICPS"). It will be relevant to refer to Clause 3 of
the ICPS:
"3. Selection and appointment process
A programme of this magnitude and nature
requires a team of dedicated professionals to
establish and run ICPS successfully. It is felt that
creation of permanent government structures will
not be able to deliver effective child friendly
protection services at the State, district or local
levels. Therefore, it has been consciously
decided to constitute State and District legal
Societies which will have personnel on a
contractual basis. All the personnel hired by
these Societies will be employees of the Society
and not the government and shall be engaged on
the terms and conditions of services laid down in
the implementation manual of the ICPS
developed by the Ministry of Women and Child
Development.
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In order to appoint competent and professionally
qualified personnel, the contractual posts would
be advertised through national/local dailies and
personnel recruited on the basis of qualifications,
experience, high degree of motivation and
commitment to children's causes. Individual
terms of reference (TOR) will be drawn up for
each post by the State Government. This will
give State Governments the flexibility to appoint
people with State specific requirements. For
example, if child marriage is a specific problem of
a State/District then such a requirement could be
build into the TOR of personnel appointed at that
State/District. Every personnel shall have a
contract of 3 years, extendable by 2 years on the
basis of performance appraisal reports. A review
of the performance of each personnel shall be
undertaken every year at the state level by the
State Secretary dealing with the ICPS and at
district level by the District Magistrate."
It could thus be seen that the appointments of the petitioners were
on contract basis for a period of 3 years. However, the contract
was extendable by 2 years on the basis of performance appraisal
reports.
4. An affidavit-in-reply is filed on behalf of the respondent-
State dated 29.08.2016. It will be relevant to refer to paragraph
Nos. 2 and 3 of the said affidavit:-
"2. That respondent fairly submits district wise
appraisal report staff of I.C.P.S. employees who
worked/working as concern post by which show
satisfactory or unsatisfactory work of staff of
I.C.P.S. The said appraisal report were made on
basis inspection, inquiry and perusing the
documents by District Women & Child
Development Officer of concern district. A copy
of the appraisal report is annexed herewith and
marked as Annexure R-5.
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3. That, respondent submit that the petitioners
whose work are satisfactory, the name of the
same will be recommended to District Selection
Committee (District Magistrate) for appropriate
decision to extend further by two year period.
The copy of the said letter dated 26.8.2016 is
annexed herewith and marked as Annexure R-
6."
It could thus be seen that the respondents have stated that the
petitioners whose work is satisfactory, the name of such of the
petitioners will be recommended to District Selection Committee
for appropriate decision to extend the period by two years.
5. We record the statement of the learned senior counsel
appearing on behalf of the State that such of the petitioners whose
performance is found to be satisfactory would be continued for two
years. In that view of the matter, the grievance of the petitioners
whose performance is found to be satisfactory no more exists.
6. Insofar as the petitioners whose performance is found to
be not satisfactory in view of the provisions made in the scheme
under which they were appointed, they cannot claim a right to
continue for a further period of two years. However, we find that it
will be appropriate for the petitioners whose performance is found
to be not satisfactory and according to whom a negative appraisal
given to them is not correct, that they would be entitled to make a
representation to the authorities, which representation would be
considered in accordance with law.
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7. Insofar as the grievance about non-payment of salary is
concerned, we are of the considered view that if the petitioners
have factually worked, they cannot be denied the
salary/honorarium for the period during which they have worked.
We, therefore, direct the State Government to release the unpaid
salary to the petitioners for the period for which they have actually
worked. The same shall be done within a period of three months
from today.
8. Insofar as the revision of pay-scale is concerned, if the
State Government has received the amount on account of revised
scale from the Central Government, it is clear that the State
Government cannot keep the said amount with it and the said
amount also will have to be paid to the petitioners who are entitled
as per the directions of the Central Government.
9. The petition stands disposed of with the aforesaid
observations.
(V.M. Deshpande, J. ) (B.R. Gavai, J.)
...
halwai
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Certificate
I certify that this judgment uploaded is a true and correct
copy of original signed Judgment.
Uploaded by : R.G. Halwai, Uploaded on : 27.09.2016
