Bombay High Court
Laxman Dattatraya Ralebhat & Ors vs The State Of Mah. & Ors on 8 August, 2017
Bench: R.D. Dhanuka
(1) WP No. 7256/2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 7256 OF 2004
LAXMAN DATTATRAYA RALEBHAT & ANR
VERSUS
THE STATE OF MAHARASHTRA AND ORS
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Mr. V.P. Golewar, Advocate for the petitioners
Mr. V.M. Kagne, A.G.P. for respondent Nos. 1 to 4
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CORAM : R.D. DHANUKA &
SUNIL K. KOTWAL, JJ.
Dated : 08-08-2017.
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ORAL JUDGMENT (PER R.D. DHANUKA, J.) :-
1. By this petition filed under Article 226 of the
Constitution of India, petitioners seek writ of certiorari or any
other appropriate writ, order or directions to absorb the
petitioners in regular Government/Zilla Parishad Employment as
per the Scheme of Absorption of Mustering Assistants, from the
list annexed at Exhibit-C to the petition.
(2) WP No. 7256/2004
2. Some of the relevant facts for the purpose of
deciding this petition are as under :-
It is the case of the petitioners that petitioner No.1
had passed S.S.C. Examination and had completed Diploma
Course of Building Construction. Petitioner No.2 had appeared
in S.S.C Examination and was declared as failed. It is the case of
petitioner No.1 that in the month of October 1983 he was
appointed as Mustering Assistant and had served on that post till
30-04-1986. Petitioner No.2 came to be appointed as Mustering
Assistant on 01-10-1983 and he served as such till 31-08-1989.
3. It is the case of petitioners that since the Government
of Maharashtra had taken a policy decision of termination of
services of all the Mustering Assistants of entire State of
Maharashtra, the petitioners and other such Mustering Assistants
raised various disputes under the provisions of Industrial
Disputes Act. The petitioners also filed complaint of unfair
labour practice before the Industrial Court for the benefit of
permanency.
(3) WP No. 7256/2004
4. On 25-06-2004 the Government of Maharashtra
formulated a Scheme of Absorption of Mustering Assistants in
regular government employment and to make their payment and
salary from E.G.S. funds. It is the case of the petitioners that
respondent No.3 accordingly prepared list of Mustering
Assistants, who were in the employment as Mustering Assistants
with different agencies. The said list provides the names of 65
such Mustering Assistants.
5. Learned Counsel for the petitioners submits that
petitioner No.1 is possessing technical qualification of I.T.I. in
Trade of Building Construction. He has also experience of work
of Technical Assistant. It is submitted by the learned Counsel
that out of those 65 Mustering Assistants, who are named in the
said list prepared by respondent No.3, respondent No.2 has
absorbed 11 Mustering Assistants in regular Government / Z.P.
Employment under the Scheme of Absorption of Mustering
Assistants. The names of the petitioners are mentioned at Sr.
No.49 and 50 of the said list. It is submitted by learned Counsel
for the petitioners that though respondent No.2 has absorbed 11
(4) WP No. 7256/2004
Mustering Assistants, the petitioners, though similarly situated,
have not been absorbed by respondent No.2 in the regular
Government /Z.P. Employment. He submits that the impugned
action on the part of respondent No.2 is thus in violation of
Article 14 and 16 of the Constitution of India. He submits that
the petitioners are deprived of the absorption in regular
government / Z.P. Employment.
6. Learned A.G.P. appearing for the respondents, on the
other hand, submits that by virtue of the interim orders passed
by the Industrial Court, the petitioners are in service as
Mustering Assistants and are getting wages. He submits that
since there were no vacant posts so as to absorb the remaining
Mustering Assistants from the seniority list, the Government
Resolution dated 25-04-2004 came to be passed by the
Government after considering the orders of this Court in Writ
Petition No. 954/1990 dated 20-12-2001, Writ Petition No.
4/2000 and Writ Petition No. 83/2003, dated 28-02-2003. He
submits that though there is no work available with the office of
Public Works Department, the petitioners are getting their wages
as Mustering Assistants.
(5) WP No. 7256/2004
7. It is submitted by the learned A.G.P. that as per the
Scheme formulated as per the directions of the Supreme Court,
vide G.R. dated 01-12-1995, the Mustering Assistants who were
in service as Mustering Assistants during the period between
26-05-1993 and 31-05-1993 only were to be absorbed. He
submits that since the petitioners were not in service during the
said period between 26-05-1993 and 31-05-1993, the petitioners
are even otherwise not eligible for absorption in Government
service and cannot avail of the benefit under such Government
Resolution dated 25-06-2004.
8. It is submitted by learned A.G.P. that out of 65
Mustering Assistants, who are named in the said list, 7 of such
Mustering Assistants are absorbed in the Government / Semi-
Government services. 28 are terminated from service from the
service of Mustering Assistants. The remaining Mustering
Assistants are in service as Mustering Assistants whose cases are
pending in this Court and before Maharashtra Administrative
Tribunal. He also submits that there is no question of any
discrimination as canvassed by learned Counsel of the
petitioners.
(6) WP No. 7256/2004
9. Learned Counsel for the petitioners in re-joinder has
not disputed that petitioners were not in service as Mustering
Assistants during the period between 26-05-1993 and 31-05-
1993. A perusal of the averments made in paragraphs 4 and 5
of the Writ Petition makes it clear that even according to
petitioner No.1, he was appointed as Mustering Assistant in the
Month of October 1983 and had served as Mustering Assistant
till 30-04-1986. In so far as petitioner No.2 is concerned, he was
appointed as Mustering Assistant on 01-10-1983 and had
worked as such till 31-08-1989. Learned Counsel for the
petitioners does not dispute that though the order of
reinstatement was passed in favour of the petitioners by the
Industrial Court, the same was passed on 06-07-1994. It is,
thus, not in dispute that both the petitioners were admittedly
not in the employment as Mustering Assistants during the period
between 26-05-1993 and 31-05-1993. The averments made by
the respondents in the affidavit-in-reply are not disputed by the
petitioners.
10. In our view, since the petitioners were not in the
(7) WP No. 7256/2004
employment admittedly as Mustering Assistants during the
period between 26-05-1993 and 31-05-1993, they were not
eligible to be absorbed by the Government / Zilla Parishad. We
are inclined to accept the submissions made by the learned
A.G.P. that the petitioners were not eligible to be considered for
absorption in the said post. There is no merit in the submission
of the learned Counsel for the petitioners that there was any
discrimination between the petitioners and other such
employees who have been absorbed by the Government under
the said Resolution in question. There is no violation of Article
14 of the Constitution of India as canvassed by the learned
Counsel for the petitioners.
11. It is made clear that if any other Scheme is
formulated by the Government and if the petitioners are eligible
to be absorbed under such Scheme, this order would not debar
the petitioners from making an application under such Scheme.
If any application is made under such new Scheme, the same
shall be considered by the Government on its own merits.
(8) WP No. 7256/2004
12. In our view, there is no merit in the petition. We,
therefore, pass the following order.
ORDER
1. Writ Petition No. 7256 of 2004 is dismissed.
2. Rule is discharged.
3. No costs.
( SUNIL K. KOTWAL) ( R.D. DHANUKA)
JUDGE JUDGE
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