Bombay High Court
Rajeshree Deepak Mahajan vs The State Of Maharashtra And ... on 28 February, 2017
Bench: R.V. Ghuge
WP/8168/2014
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8168 OF 2014
Rajeshree Deepak Mahajan,
Age 29 years, Occ. Nil
R/o Mali Galli, Near Malgangadevi
Temple, Taluka Rahuri,
District Ahmednagar. ..Petitioner
Versus
1. State of Maharashtra
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. Deputy Director of
Municipal Administration,
3rd Floor, Govt. Transport Building,
Sir Pochkhanwala Marg, Worli,
Mumbai.
3. Municipal Council Rahuri,
Taluka Rahuri, Dist. Ahmednagar
Through its Chief Executive Officer. ..Respondents
...
Advocate for Petitioner : Shri Barde Parag Vijay
AGP for Respondents 1 & 2 : Shri Bhagat N.T.
Advocate for Respondent 3 : Shri Naiknavare Ramesh V.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: February 28, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
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3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the judgment of the Labour
Court dated 28.11.2012, by which, Complaint (ULP) No.13 of 2007,
filed by the petitioner has been dismissed. She is equally aggrieved
by the judgment dated 13.11.2013, delivered by the Industrial Court,
by which, her Revision (ULP) No.119 of 2012 has been dismissed.
5. I have heard the learned Advocates for the respective sides at
length. The undisputed factors emerging from the record are as
under:-
(a) The mother-in-law of the petitioner was Sweeper and
was inducted on daily wages in employment from 2.8.1981.
(b) By order dated 1.7.1985, she was granted permanency
in the service of the respondent / Municipal Council.
(c) On 31.8.2004, she was declared medically unfit and on
account of the same, she was retired on medical grounds.
(d) The Lad Commission's recommendations, which are
WP/8168/2014
commonly understood as Vashila Padhat or Varasa Padhat, is
applicable to the category of Sweepers.
(e) The petitioner / daughter-in-law applied for
compassionate appointment in the light of the Lad Committee
recommendations and was appointed in place of her mother in
law on 17.11.2004.
(f) There is no dispute that various Government Resolutions
permit appointment of the daughter in law on compassionate
basis.
(g) On 27.10.2006, the petitioner was terminated by
payment of retrenchment compensation on the ground that
the service of her mother in law cannot be considered from
2.8.1981 till 1.7.1985 and she had completed 19 years and 2
months, falling short of the required 20 years' qualifying period
by 10 months for entitling the petitioner to be appointed on
compassionate basis.
(h) By GR dated 10.9.2007, the condition of 20 years has
been removed.
(i) As on 10.9.2007, Complaint (ULP) No.13 of 2007, filed
WP/8168/2014
by the petitioner was pending before the Labour Court.
(j) The Labour Court has dismissed the complaint, purely
on the ground that the mother in law did not complete 20
years in service and the GR dated 10.9.2007 cannot be granted
retrospective effect.
(k) For the same reasons, the Industrial Court has dismissed
the Revision Petition.
6. Considering that the petitioner otherwise could have been
appointed on compassionate basis, it is stated that there was no
other legal impediment to her appointment, except that her mother
in law had not completed 20 years in service.
7. It requires no debate that an employee is granted permanency
on the basis of the earlier service rendered as a temporary or a daily
wager or even a probationer. It is on the strength of that portion of
the service that a candidate is granted permanency. So also,
considering the Maharashtra Civil Services (Pension) Rules, 1982, this
Court has laid down the law in Writ Petition No. 8000 of 2015
(Mahatma Phule Krushi Vidyapeeth Vs. Ganpat Kisan Karle), by
judgment dated 3.3.2016, that the temporary or daily wage services
of an employee rendered prior to his confirmation have to be
WP/8168/2014
reckoned with for calculating the qualifying service of 20 years for
pensionery benefits.
8. In the instant case, the mother in law of the petitioner has
been working with the respondent / establishment from 2.8.1981 and
on the basis of her temporary service, she was granted regularization
on 1.7.1985, which cannot be construed to mean that 1.7.1985 was
her first day in service. The respondents are unable to point out
from the Lad Committee recommendations that only permanent
service of an employee is to be taken into account while granting
compassionate appointment. They have not pointed out any provision
or condition from the said recommendations which permits ignoring
the entire duration of temporary service of an employee for
considering a case for compassionate appointment. It is on these
premises that I can conclude that there is no specific bar prescribed
under the Lad Committee recommendations or the earlier
Government Resolutions so as to indicate that the temporary service
is not to be computed while calculating 20 years qualifying service.
9. The impugned judgment of the Labour Court as well as the
judgment of the Industrial Court is not based on any particular clause
from any GR or the Lad Committee recommendations by which, it
could be concluded that the temporary service of the petitioner's
mother in law from 1981 to 1985 cannot be reckoned with for
WP/8168/2014
calculating 20 years qualifying service. If any such specific exclusion
or a clause which would permit ignoring of the temporary
employment could have been pointed out by the respondents, in that
case, the petitioner would have been rendered ineligible for
employment as her mother in law would then be construed to have
completed 19 years and 2 months in service purely as a permanent
employee.
10. Shri Barde, learned Advocate for the petitioner submits on
instructions that the petitioner is willing to waive the past period of
employment and unemployment and is willing to rejoin the services
as a fresh employee. The said statement is noted.
11. In the light of the above, this petition is partly allowed. The
impugned judgment of the Industrial Court dated 13.11.2013 is
quashed and set aside and Revision (ULP) No.119 of 2012 is disposed
off. The impugned judgment of the Labour Court dated 28.11.2012
stands modified in the following terms:-
(A) Complaint (ULP) No.13 of 2007 stands partly allowed.
(B) The impugned termination of the petitioner dated
27.10.2006 is set aside.
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(C) The petitioner shall be appointed w.e.f. from the date
of this judgment on compassionate basis in place of her
mother in law on the same post on which she was appointed
earlier.
(D) Her service shall be considered to have commenced
from the date of this judgment.
12. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
