Bombay High Court
Raibhan Kisan Ubhedal vs The State Of Mah And Ors on 5 December, 2017
Bench: R.V. Ghuge
*1* wp2117o12db
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2117 OF 2012
Raibhan s/o Kisan Ubhedal,
Age : 60 years,
Occupation : Service,
R/o Nayhali,
Taluka Shevgaon,
District Ahmednagar.
...PETITIONER
-VERSUS-
1 The State of Maharashtra.
Through Secretary,
Planning Department,
Mantralaya, Mumbai.
2 The Chief Executive Officer,
Zilla Parishad, Ahmednagar.
3 The Medical Officer,
Primary Health Centre,
Salbatpur,
Taluka Newasa,
District Ahmednagar.
...RESPONDENTS
...
Shri A.D.Sugdare, Advocate for the Petitioner.
Mrs.M.A.Deshpande, AGP for Respondent No.1/ State.
Shri S.T.Shelke, Advocate for Respondent Nos.2 and 3.
...
CORAM: RAVINDRA V. GHUGE
AND
SUNIL K. KOTWAL, JJ.
Reserved on 23rd November, 2017.
Pronounced on 05th December, 2017.
::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 03:20:53 :::
*2* wp2117o12db
JUDGMENT (Per Ravindra V. Ghuge, J.):
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 By this petition, the Petitioner has put forth prayers at clauses
B, C, D, E and F as under:-
"B) By issuing writ of mandamus or writ in the like
nature it may be declared that the petitioner is
eligible for grant of pension under Maharashtra Civil
Services Pension Rules, 1982.
C) Hold and declare that the Circular dated 15.04.2009
issued by the respondent No.1, Secretary, Planning
Department, Mantralaya, Mumbai is bad, void and
unconstitutional.
D) By order or directions or any other writ in like
nature, the respondent No.2 may be directed to
consider proposal of the petitioner for grant of
pensionary benefits.
E) Pending hearing and final disposal of this Writ
Petition, Respondent No.2 to be directed to consider
the claim of the petitioner for grant of provisional
pension.
F) By issuing writ of mandamus or any other writ in like
nature, Respondent No.1 and 2 may be directed to
count his past service in view of judgment and order
dated 20.12.1994 in Complaint (ULP) No.305/1989
passed by the learned Member, Industrial Court,
Ahmednagar, for grant of pensionary benefits till the
date of his superannuation."
3 The learned Advocate for the Petitioner, during the course of
his submissions, has made a statement on 16.11.2017 that prayer clause
"C" is not pressed by the Petitioner and the Petitioner seeks relief only in
*3* wp2117o12db
terms of prayer clauses "B", "D" and "F". We have recorded the said
statement.
4 We have heard the learned Advocate for the Petitioner, the
learned AGP on behalf of the State and the learned Advocate on behalf of
Respondent Nos.2 and 3.
5 Upon considering their submissions and upon going through
the petition paper book and the judgments cited, the following factors
need consideration:-
Submissions of the Petitioner
(a) The Petitioner was appointed as a Mustering Assistant in the
office of the Sub Divisional Engineer, Employment Guarantee
Scheme (EGS), Ahmednagar on 01.10.1988.
(b) On 19.07.2004, the Petitioner was appointed as a Parichar in
the office of the Zilla Parishad at it's Primary Health Centre,
Salbatpur, Taluka Newasa, District Ahmednagar.
(c) He joined his duties on 04.10.2004 as a Parichar.
(d) The Petitioner had filed Complaint (ULP) No.305/1989
before the Industrial Court at Ahmednagar which was
allowed by the judgment dated 29.12.1994 granting him the
status and privileges of a permanent employee from the date
of the filing of his complaint in 1989.
(e) He retired on 31.05.2010 from the service of Respondent
*4* wp2117o12db
No.2/ Zilla Parishad after rendering service for five years and
eight months.
(f) His service as a Mustering Assistant from 1988 till 03.10.2004
is not being taken into account for the purposes of
considering his claim for pension.
(g) The Planning Department of the State of Maharashtra issued
the Government Resolution on 15.04.2009 concluding that
the service rendered by the Petitioner as a Mustering
Assistant, cannot be considered for grant of pension unless
the Petitioner has put in 10 years of qualifying service.
(h) The Petitioner has relied upon Rules 30 and 57 of the
Maharashtra Civil Services (Pension) Rules, 1982 to support
his contention that even his past temporary service as a
Mustering Assistant, can be considered for grant of pension.
(i) In Writ Petition No.2946/1997, in the matter of Shri
Ramchandra Kondiba Mahajan vs. The State of Maharashtra
and others, this Court has delivered the judgment on
19.07.2012 thereby, concluding that as the judgment of the
Industrial Court granting status of a permanent employee
with effect from 01.10.1988 has attained finality, the case of
Ramchandra Mahajan should be considered for pensionary
benefits on it's own merits.
*5* wp2117o12db
(j) The Honourable Apex Court, while considering the challenge
to the judgment in Ramchandra Mahajan (supra), has
dismissed the Special Leave Petition filed by the State of
Maharashtra on 03.03.2014.
(k) This Court (Coram : S.V.Gangapurwala and V.K.Jadhav, JJ) in
the matter of Asaram Vitthal Shitre and others vs. The State of
Maharashtra and others, Writ Petition No.8359/2013 and
connected cases, has delivered an order on 13.08.2015 and
has adopted the same view as in the case of Ramchandra
Mahajan (supra) and has passed a similar order considering
the date of permanency as was granted by the Industrial
Court.
(l) This Court (Coram : S.V.Gangapurwala and V.K.Jadhav, JJ) in
the matter of Sheshrao Patloba Waybase and others vs. The
State of Maharashtra and others, Writ Petition No.2589/2012
and connected matters, has taken a view that in matters
wherein the judgments of the Industrial Court have been
challenged or in matters wherein none of the parties have
approached the Industrial Court, the relief available to the
Petitioner would be based upon the Government Resolution
dated 01.12.1995 which was presented by the State of
*6* wp2117o12db
Maharashtra before the Honourable Apex Court with regard
to the Mustering Assistants and they would, therefore, get the
benefits of regular service as is granted under the
Government Resolution dated 01.12.1995.
Submissions of the learned AGP
(a) It is true that the judgment of the Industrial Court dated
29.12.1994 in between the Petitioner and the State
Authorities, has not been challenged and the said judgment
has attained finality.
(b) Clause 5.2 of the Government Resolution dated 01.12.1995,
does not entitle the Petitioner to any benefits with regard to
his services prior to the date of his absorption.
(c) The Petitioner accepted regularization with effect from
04.08.2004 in the light of the Government Resolution dated
01.12.1995.
(d) Once the terms and conditions at the time of his absorption
have been accepted by the Petitioner, he cannot seek any
relaxation from the said terms.
(e) The Petitioner has never sought the execution of the
judgment of the Industrial Court by which, he was granted
the status and benefits of permanency and all consequential
*7* wp2117o12db
benefits from the date of filing his ULP Complaint.
(f) The EGS workers do not have a right to regularization and
other benefits until their cases are considered as per the
Government Resolution dated 01.12.1995.
(g) The Government Circular dated 02.09.1987 declaring that the
employees working on EGS cannot claim the service benefits
as are available to the Government employees, is applicable.
(h) The Government circular dated 02.09.1987 was not pointed
out before this Court in Ramchandra Mahajan (supra),
Asaram Shitre (supra) and Sheshrao Waybase (supra).
(i) The Government circular dated 15.04.2009 reiterates the
contents of the Government Resolution dated 01.12.1995
with regard to Mustering Assistants.
(j) The judgment delivered by this Court (Coram : N.H.Patil and
R.M.Borde, JJ) in the matter of Shivhar Namdeo Kshirsagar
vs. The State of Maharashtra and others, in Writ Petition
No.619/2006 on 16.07.2007, was not brought to the notice of
this Court in the matter of Ramchandra Mahajan (supra),
Asaram Shitre (supra) and Sheshrao Waybase (supra).
(k) This Court has taken a view in Shivhar Kshirsagar (supra) that
the stand adopted by the State Government of not granting
*8* wp2117o12db
pension to the employees unless they completed qualifying
service as permanent employees, was in tune with the scheme
framed by the State Government under the Government
Resolution dated 01.12.1995, which has been accepted by the
Honourable Apex Court.
(l) Clause 4.7 of the Government Resolution dated 01.12.1995
provides for absorption of Mustering Assistants as per the said
scheme and all those absorbed Mustering Assistants, who
have put in qualifying service for grant of pension, shall be
entitled for pensionary benefits.
(m) The Maharashtra Civil Services (Pension) Rules, 1982 are not
applicable to Mustering Assistants considering clause 5 of the
Government Resolution dated 21.04.1999.
(n) Clause 3.4 of the Government Resolution dated 01.12.1995
declares the Mustering Assistants Scheme as a dying cadre.
6 While considering the submissions of the rival sides, it needs
mention that the cases of Mustering Assistants before various Industrial
Courts, had finally reached the Honourable Apex Court. In the course of
the proceedings before the Honourable Apex Court, the State of
Maharashtra was called upon to devise a scheme for the absorption of
Mustering Assistants. The State of Maharashtra put forth a scheme for
*9* wp2117o12db
regularizing the services of the Mustering Assistants vide the Government
Resolution dated 01.12.1995. The Honourable Apex Court has accepted
the said scheme by its order dated 02.12.1996. Clause 4.7 of the Scheme
provides for pensionary benefits to those employees who have been
absorbed under the said scheme on or before 31.03.1997.
7 We find from the judgment delivered in Ramchandra Mahajan
(supra) that the facts of the case are practically identical to the facts of the
case in hand. Ramchandra Mahajan was working as a Mustering Assistant
and was later on absorbed as a Parichar by the Zilla Parishad. The
Petitioner was also working as a Mustering Assistant from 01.10.1988 till
03.08.2004 with the Sub Divisional Engineer, Ahmednagar. He was
absorbed as a Parichar w.e.f. 04.08.2004, by the Zilla Parishad.
8 In the above backdrop, this Court, in Ramchandra Mahajan
(supra) has observed in paragraph 4 as under:-
"4. After the said order was passed, it appears
that the Petitioner approached the third Respondent
Zilla Parishad. The learned counsel appearing for
the Petitioner has produced for perusal of
the Court a true photo copy of the service book of the
Petitioner. The entries in the service book
shows that till 1st September, 1998, the
Petitioner continued to work as a Muster Assistant
and an order was passed on 1st September, 1998
by the Chief Executive Officer of the third
Respondent- Zilla Parishad by which the Petitioner
was released from the post of Muster Assistant and
was ordered to be placed in the post of Parichar in the
same pay scale of 750-12-870-15-940 which was
*10* wp2117o12db
then admissible to the post of Muster Assistant.
Perusal of the service book shows that the Petitioner
continued to work as Parichar and was granted
increments. It appears from the service book
that the Petitioner superannuated on 31st May,
2008 from the post of Parichar. The remark made
by the Deputy Chief Executive Officer of the
Zilla Parishad on the service book records
that benefit of gratuity was extended to the
Petitioner but it is recorded that the eligible service of
the Petitioner for retiral benefits is less than 10
years."
9 This Court then has observed in paragraphs 6 and 7 of the
Ramchandra Mahajan case (supra) as under:-
"6. We find that in this Petition, there is no specific
direction sought regarding grant of pensionary
benefits. However, the service book produced
before us now discloses that the Petitioner was
absorbed in the post of Parichar with effect from
September, 1998 and now he has superannuated on
31st May, 2008. At this stage, we may note that the
order of the Industrial Court clearly records that the
Petitioner is entitled to privileges of permanent
employee with effect from 1st October, 1988 in
the post of Muster Assistant. It appears that the order
of the Industrial Court was not subjected to
challenge either by the State Government or by
the Zilla Parishad. Perusal of the affidavit filed on
25th July, 1997 on behalf of the Zilla Parishad
shows that a stand was taken that the Industrial
Court has not taken into consideration the
policy of the State Government framed on 1st
December, 1995 regarding absorption of the Muster
Assistants. A contention has been raised that the
said scheme has been approved by the Apex court in a
Special Leave Petition filed before the said Court.
Even the said affidavit shows that the Zilla Parishad
did not challenge the order of the Industrial Court. It
*11* wp2117o12db
appears that on the basis of the interim order passed
by this Court and on the basis of the scheme, the
Petitioner was absorbed as Parichar with effect from
7th September, 1998. There was an ad-interim
order passed by this Court which protected the
employment of the Petitioner as Muster Assistant only
for a limited duration till 15th June, 1998. The
service book shows that till he was absorbed as
Parichar, the Petitioner continued to work as Muster
Assistant in the same pay scale of 750-12-870-15-
7. The Petitioner has accepted his absorption in the
post of Parichar. To the said post, the same pay scale
was admissible as the one which was admissible in
case of Muster Assistants. As there is no specific
prayer for grant of pensionary benefits in
this petition, we cannot issue a writ. However,
we are directing that the case of the Petitioner
for grant of pensionary benefits shall be
considered in accordance with the Rules.
While considering the case for grant of
pensionary benefits, the concerned authorities are
bound to note that as far as the Petitioner is
concerned, the order of the Industrial Court has
attained finality and, therefore, he has been
conferred the status of permanent employee with
effect from 1st October, 1998. Therefore, for
calculating the pensionable service, the
Petitioner shall be treated as permanent
employee with effect from 1st October, 1998."
10 We have perused the Government Resolution dated
21.04.1999 wherein, the State of Maharashtra has concluded that the
Mustering Assistants cannot be said to be the employees of the State and
hence, the Maharashtra Civil Services Rules would not be applicable to
them. By the Government Circular dated 15.04.2009, the State of
*12* wp2117o12db
Maharashtra has concluded that those Mustering Assistants, whose
services are absorbed as per the Government Resolution dated
01.12.1995, would be considered for pensionary benefits only from the
date of their absorption.
11 Insofar as the contention of the learned AGP that the earlier
judgment of this Court in Shivhar Kshirsagar case (supra) was not cited
before the Court in Ramchandra Mahajan, Asaram Shitre and Sheshrao
Waybase (supra), is concerned, we find that in Shivhar Kshirsagar (supra),
the factor of the Industrial Court having granted regularization in ULP
complaint was not an issue emerging from the record. In Ramchandra
Mahajan (supra) and Asaram Shitre (supra), the said Petitioners had
approached the Industrial Court and certain reliefs were granted by the
Industrial Court which attained finality as the said judgments were not
challenged before the learned Single Judge Bench of this Court. In these
matters, where the Petitioners were supported by the judgments of the
Industrial Court which had attained finality, this Court directed the
appropriate Authorities in Ramchandra Mahajan (supra) and Asaram
Shitre (supra) to consider the cases of those Petitioners with regard to
their eligibility for pensionary benefits.
12 In Shivhar Kshirsagar (supra) and Sheshrao Waybase (supra),
none of them had approached the Industrial Court. They had directly
*13* wp2117o12db
approached this Court based on the scheme of the State Government
floated through the Government Resolution dated 01.12.1995 and which
was then accepted by the Honourable Apex Court by order dated
02.12.1996. If the Petitioner in the case in hand, was one of those who
had never approached the Industrial Court, then, the view taken by this
Court in Shivhar Kshirsagar (supra) and Sheshrao Waybase (supra) would
have been applicable, wherein, this Court has dismissed their petitions
and had permitted them to move the State Government with a
representation to consider some of the Petitioners' cases sympathetically as
some of them had worked for more than 09 years of qualifying service and
the required qualifying service for pension was 10 years.
13 The Single Judge Bench of this Court to which one of us is a
party (Ravindra V. Ghuge, J.) has taken a view in Writ Petition
No.8000/2015 (Mahatma Phule Krishi Vidyapeeth, Rahuri vs. Ganpat Kisan
Karle, judgment dated 03.03.2016 : 2016 (4) Bom. C.R. 790) that the past
temporary service of an employee can be considered for grant of
pensionary benefits. The view taken in this matter was considered by the
Division Bench of this Court (Coram : Anoop V. Mohta and Ravindra V.
Ghuge, JJ) at Mumbai in the matter of Mone Rashmi Shriram vs. State of
Maharashtra and others, 2017 (4) Bom. C.R. 623 : 2017 (1) ALL MR 703.
14 Considering the above, we deem it proper to issue the same
*14* wp2117o12db
directions as have been issued by this Court in the matter of Ramchandra
Mahajan (supra).
15 This Writ Petition is, therefore, partly allowed in terms of
prayer clause "D" with our directions as under:-
(a) The Petitioner shall submit a representation to Respondent
No.2/ Chief Executive Officer, Zilla Parishad, Ahmednagar
within FOUR WEEKS from today, for grant of pensionary
benefits, if not already filed.
(b) Respondent No.2 shall then forward the proposal of the
Petitioner by setting out all/ complete details of his
employment to the competent authority of the State of
Maharashtra within SIX WEEKS from the date of receiving the
representation.
(c) Respondent No.1 shall consider the said proposal keeping in
view the judgment of the Industrial Court dated 29.12.1994
delivered in Complaint (ULP) No.305/1989, by treating the
Petitioner to be a permanent employee as per the judgment of
the Industrial Court.
(d) The eligibility of the Petitioner for pensionary benefits shall
be considered strictly in accordance with the Rules and
provisions applicable and the view of this Court in Mahatma
*15* wp2117o12db
Phule Krishi Vidyapeeth (supra) and Mone Rashmi Shriram
(supra).
16 Rule is made partly absolute in the above terms.
kps (SUNIL K. KOTWAL, J.) (RAVINDRA V. GHUGE, J.)
