Bombay High Court
Ku. Uttama D/O Bhikaru Gadpayale vs Municipal Council Gondia Thr. Its ... on 18 April, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6517/2005
WITH
WRIT PETITIION NO.6160/2005
WITH
WRIT PETITION NO.6496/2005
WITH
WRIT PETITION NO.6497/2005
WITH
WRIT PETITION NO.6498/2005
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WRIT PETITION NO.6517/2005
PETITIONER: Sau. Suman w/o Ganapatrao Jivtode,
Age 51 yrs., Occupation Service,
R/o In front of D.B. Science College,
Tahsil & District Gondia.
...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
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Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.6160/2005
PETITIONER: Ku. Sushila d/o Amrutlal Chauhan
Age 43 yrs., Occupation Service,
R/o Ramnagar, Tahsil & District Gondia.
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...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.6496/2005
PETITIONER: Sau. Nirmala w/o Surendrasingh Bais,
Age 57 yrs., Occupation Service,
R/o Bajpai Ward, Tahsil & District Gondia.
...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.6497/2005
PETITIONER: Ku. Uttama d/o Bhikaru Gadpayale,
Age 45 yrs., Occupation Service,
R/o Shrinagar, Tahsil & District Gondia.
...VERSUS...
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RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.6498/2005
PETITIONER: Sau. Bhagyashri w/o Bhagawansingh Chauhan,
Age 36 yrs., Occupation Service,
R/o Dr. Radhakrishnan Teachers Colony,
Tahsil & District Gondia.
...VERSUS...
RESPONDENTS : 1. Municipal Council Gondia,
through its Chief Officer, Tahsil and
District Gondia.
2. Regional Director of Municipal Administration,
Commissioner Office, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Rohit Vaidya, Advocate h/f Shri Anand Parchure, Advocate for petitioner
Ms N.P. Mehta, AGP for respondent no.2
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 18.04.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Since the issue involved in the petitions is identical and
similar prayers are made therein, they are heard together and are
decided by this common judgment.
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By these Writ Petitions, the petitioners seek a direction
against the respondent-Municipal Council, Gondia, to pay the salary to
the petitioners as per the recommendations of the 5 th Pay Commission
and also grant the yearly increments to the petitioners from the dates of
their appointment. The petitioners have also sought the consequential
benefits that are payable to the confirmed employees of the Municipal
Council.
The petitioners were working on daily wages with the
Municipal Council, Gondia from different years, in the 1980. The
petitioners were appointed as the employees of the Balak Mandir run by
the respondent no.1-Municipal Council. The petitioners continued to work
with the respondent-Municipal Council on temporary basis. It is the case
of the petitioners in Writ Petition No. 6517/2005 and 6497/2005 that
in the beginning of the 1990s, the Municipal Council appointed them as
Assistant Teachers on probation in the given pay scale. It is the case of
the petitioners that though the orders issued in favour of two of the
petitioners in the beginning of the year 1990 showed that they were
appointed on probation, they were paid fixed honorarium and their
services were not actually regularised. In their Service Books they were
not shown as permanent employees. According to the petitioners, the
Government decided to close the Balak Mandirs in the year 2010 and
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after the discontinuation of the Balak Mandirs, the petitioners were asked
to work as Anganwadi Sevikas in the Anganwadis. The petitioners,
however, refused to work as Anganwadi Sevikas, hence they were
continued as employees of the Municipal Council in various Departments.
The petitioners in Writ Petition No. 6517/2005 and 6160/2005 have
retired on attaining the age of superannuation, whereas the petitioners in
Writ Petition No.6497/2005 still continues to work with the Municipal
Council, on daily wagers and/ or fixed salary. By these petitions, the
petitioners have sought actual regularisation of their services and have
sought increments and pay-scale as per the recommendations of the
5th Pay Commission. According to the petitioners, when they had filed
Complaints before the Labour Court under the provisions of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 the Labour Court had allowed their Complaint
and the Court had directed the Municipal Council to reinstate the
petitioners in the posts on which they were working.
Though none appears on behalf of the Municipal Council,
the learned Assistant Government Pleader appearing on behalf of the
State Government has opposed the prayers made in the petitions. It is
stated that it is apparent from the documents annexed to the Writ
Petitions that the petitioners were continued by the Municipal Council on
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temporary basis. It is stated that the services of the petitioners were never
regularised by the Municipal Council. It is stated by referring to the order
passed by the Labour Court in the complaint annexed to Writ Petition
No.6517/2005 that the petitioner had clearly mentioned in the complaint
that though she was appointed on probation in the year 1992 for two
years, her services were never regularized and she was paid fixed salary
only. It is stated that it is apparent from the averments in the petitions
that all the petitioners were working on fixed salary and their services
were never regularized. It is stated that in the circumstances of the case
the petitioners may not be entitled to the benefits of the 5 th Pay
Commission Recommendations and increments, as claimed.
On hearing the learned Counsel for the parties and on a
perusal of the petitions and the documents annexed thereto, it appears
that it would not be possible to direct the respondent - Municipal Council,
in the circumstances of the case, to grant the benefits of the 5 th Pay
Commission Recommendations to the petitioners. There is nothing on
record to show that the services of the petitioners were regularized and
the petitioners were treated as the regular and permanent employees of
the Municipal Council. If it is the case of the petitioners that they were
appointed in the beginning of 1990s on probation but still they were paid
fixed salary and their services were never regularized, it was necessary for
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the petitioners to have filed appropriate proceedings for seeking the
regularization of their services. There is no order of any Court or Forum
directing the Municipal Council to regularize the services of the
petitioners. In the absence of the regularization of the services of the
petitioners, it would not be proper to direct the Municipal Council to pay
the salary to the petitioners, as is payable to the permanent employees of
the Municipal Council. The petitioners have slept over their rights for
years together and have approached this Court in writ jurisdiction,
seeking the relief on the basis of disputed questions of facts. It is
specifically denied by the Municipal Council in the affidavit-in-reply filed
by the Municipal Council that the services of the petitioners were
regularized. It is stated that the petitioners were paid fixed salary and
honorarium and hence, the benefits available to the regular employees
cannot be granted to them. We do not find any documents to show that
the services of the petitioners were regularized by the Municipal Council
at any point of time. If that is so, the petitioners would not be entitled to
seek the salary and allowances that are payable to the regular and
permanent employees of the Municipal Council. The issue, whether in the
circumstances of the case, the petitioners' services should have been
regularized by the Municipal Council, cannot be effectively decided, in
exercise of the writ jurisdiction, as there is a serious dispute on the factual
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aspects of the matter.
Since the relief sought by the petitioners cannot be granted,
in exercise of the writ jurisdiction, we dismiss the writ petitions with no
order as to costs. Rule stands discharged. The petitioners are, however,
free to avail the appropriate remedy, if permissible in law and if so
advised.
Order accordingly.
JUDGE JUDGE
Sahare and
Wadkar
