Bombay High Court
Shri Uday Dattatraya Godse vs Municipal Commissioner,Nagpur ... on 8 December, 2017
Bench: B.P. Dharmadhikari
1 WP.3313.00
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3313 OF 2000.
Shri Uday s/o Dattatrya Godse,
aged about 32 years, Occ. Service,
R/o Near Water Tank, Wanjari
Nagar, Nagpur. ..... PETITIONER.
....Versus....
Municipal Commissioner, Nagpur
Municipal Corporation, having
its Office at Civil Lines, Nagpur. ...... RESPONDENT.
Mr. B.D. Pandit, Advocate for the petitioner,
Mr. S.M. Puranik, Advocate for the respondent.
CORAM : B.P. DHARMADHIKARI & MRS. SWAPNA S. JOSHI, JJ.
DATED : DECEMBER 8, 2017.
ORAL JUDGMENT (PER B.P. DHARMADHIKARI
, J.)
1] Heard Mr. B.D. Pandit, learned Advocate for the petitioner
and Mr. S.M. Puranik, learned Advocate for the respondent.
2] Mr. B.D. Pandit, learned Advocate for the petitioner,
submits that action of respondents in recognising petitioner as Lower
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Division Clerk only from 25.10.2011 Is unsustainable. The petitioner
worked on daily wages from 1986 to 1996 and on 28.6.1996 he was
appointed in a pay-scale on temporary basis as a Labour in Lighting
Department. However, he never worked as Labour and was always
working and has worked as Clerk. Hence, after putting in service of
240 days continuously on said post, petitioner must be recognized as
a Clerk from said date. Prayer in the petition is to grant the
declaration accordingly and to direct respondent employer to treat
him as Clerk.
3] Mr. B.D. Pandit, learned Advocate for the petitioner,
submits that petitioner's services from 1986 onwards need to be
treated and counted for the purposes of computing qualifying service
for pension and other benefits.
4] Mr. S.M. Puranik, learned Advocate for the respondent
Corporation, states that provisions of Standing Order or any other
welfare legislation have not been relied upon and petition has been
filed directly under Article 226 of the Constitution of India before this
Court seeking the relief. He submits that in the light of judgment of
Constitution Bench of Supreme Court in Secretary, State of
Karnataka & others .vs. Umadevi & others reported in AIR 2006
3 WP.3313.00
S.C. 1306, the demand as made is erroneous and unsustainable.
5] He further submits that though there is no reply affidavit on
these lines before this Court as per his knowledge, services of
petitioner from 1996 may be treated as qualifying service for
computing pension and part of his service before that may be looked
into if occasion therefor arises. He is however seeking time to obtain
definite instructions in this respect and to file appropriate affidavit on
record.
6] The present petition has been filed on 14.7.2000 and at
that time petitioner was working as a Clerk but then was designated
as Labour and receiving salary as Labour. During the pendency of
the petition, on 25.10.2011 an order has been issued in his favour
and in favour of about 76 other similarly situated employees. He has
been designated as Junior Clerk and offered pay-scale. He has been
given promotion against a vacant post in Tax Assessment
Department. Thus, petitioner seeks retrospective effect to order
dated 25.10.2011.
7] We find that services put in by petitioner from 1986
continuously till 28.6.1996 when he was made a Labour on temporary
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basis in Lighting Department are not in dispute. Fact that he was
asked to work in Tax Assessment Department on 5.7.1996 is also not
in dispute. His contention that though designated as a Labour, work
of Clerk was extracted from him is also not in dispute.
8] However, we cannot forget that all these contentions are
being raised in a writ jurisdiction before this Court. Had petitioner
invoked welfare legislation in Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act or under Bombay
Industrial Relations Act, the situation would have or may have been
otherwise. Here, we have to consider the position in the light of
constitutional constraints and, therefore, as laid down by Hon'ble
Apex Court in the case of State of Karnataka .vs. Umadevi, cited
supra.
9] The petitioner has not pointed out availability of a vacant
post from 28.6.1996 or then at any time before 25.10.2011 and we
cannot in this jurisdiction direct employer to give him that post.
Similarly, though completion of 240 days of continuous service may
have some relevance in Labour or Industrial Court, in this jurisdiction
mere completion of 240 days cannot result in conferring upon him
right to post.
5 WP.3313.00
10] Perusal of order dated 25.10.2011 passed by respondent
shows that after considering qualification, available vacancies and
seniority, various employees have been accommodated on the post
of Clerk. We cannot find any fault with said action.
11] In this situation, with liberty to petitioner to take such other
steps as are open to him in law, we dispose of present petition. No
costs.
JUDGE. JUDGE.
J.
