Balu Tulshiram Tayade vs The Chief Executive Officer And ...
2017 Latest Caselaw 2 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                             WRIT PETITION NO. 8925 OF 2015

Balu Tulshiram Tayade (Koli),
Age : 48 years, Occupation : Labour,
R/o Gahukhed, Post Raipur,
Tq.Raver, District Jalgaon.
                                                  ...PETITIONER

          -VERSUS-

1         The Chief Executive Officer,
          Zilla Parishad, Jalgaon,
          District Jalgaon.

2         The Deputy Divisional Engineer,
          Zilla Parishad, Irrigation &
          Water Supply Sub Division,
          Raver, District Jalgaon.
                                                  ...RESPONDENTS

                                           ...
                      Advocate for Petitioner : Shri Sant Kishor C.
                     Advocate for Respondent 1 : Shri Sharma Vijay.
                                           ...

                                       CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 27th February, 2017

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2                  The Petitioner is aggrieved by the judgment and order of the 





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Industrial Court dated 02.09.2010 by which Complaint (ULP) No.24/2009

has been dismissed.

3 I have heard the learned Advocates for the respective sides at

length.

4 The Petitioner had approached the Industrial Court in 2009

seeking regularization in the Water Supply Division of Respondent No.1/

Zilla Parishad. It was averred that the Petitioner has worked for 20 years

when he had preferred his complaint. He had led evidence before the

Industrial Court through himself as well as through other witnesses and

had produced certain documents which indicated that he was working

under the Water Supply Scheme which was implemented by Respondent

No.1/ Zilla Parishad.

5 After considering the oral and documentary evidence, the

Industrial Court concluded that the Petitioner/ Complainant was engaged

on daily wage since 02.06.1990 in the Water Supply Scheme. It was

proved that he had worked for 19 years on the date he has preferred his

complaint. The Industrial Court relied upon the judgment of the

Honourable Supreme Court in the matter of Secretary, State of Karnataka

v/s Umadevi, 2006 (4) SCC 1 : AIR 2006 SC 1806. One portion of the

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judgment was reproduced below paragraph 12 and it was concluded that

since the Honourable Supreme Court does not legalize the services of such

daily wagers, the Petitioner cannot be regularized.

6 Shri Sharma, learned Advocate for Respondent No.1/ Zilla

Parishad, has specifically drawn my attention to the Written Statement

filed before the Industrial Court wherein it is stated that the Government

of Maharashtra has floated the Water Supply Scheme. The Revenue

Commissioners of the respective Revenue Divisions are empowered to

have the said scheme implemented through the respective Zilla Parishads.

The Zilla Parishad does not have the powers to create posts at it's level

and does not have the powers to grant regularization.

7 These submissions of the learned Advocate cannot be

contradicted for the reason that the appointments as like the appointment

of the Petitioner herein were apparently without floating any

advertisement and without following any recruitment process. It, however,

cannot be ignored that the architect of this situation is the Respondent/

Zilla Parishad. There was no restraint upon the Zilla Parishad to follow a

particular procedure even while recruiting the daily wagers/ temporaries

or adhoc employees. On the one hand, the Zilla Parishad has not followed

the procedure and on the other hand, when the Petitioner sought

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regularization after working for 19 years as in 2009, apparently the Zilla

Parishad intends to take advantage of it's own wrong by contending that

such daily wagers have no right to regularization because they were not

appointed by following the due procedure of law.

8 It is equally undisputed that the Petitioner is in employment

even today. In effect he has put in about 27 years as a daily wager. In this

fact situation, paragraph 53 of the conclusions of the Honourable Supreme

Court in Umadevi's case (supra) would be applicable and which read as

under:-

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (supra) [AIR 1967 SC 1071], R.N.Nanjundappa (supra) [AIR 1972 SC 1767], and B.N.Nagrajan (supra) [AIR 1979 SC 1676], and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts

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that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

9 There can be no debate that illegal appointments cannot be

legalized. In the light of the observations of the Honourable Supreme

Court in paragraph 53 reproduced above, irregular appointments can be

easily distinguished from illegal appointments as such appointees, who are

not otherwise ineligible for appointment, have been appointed in an

irregular manner without following a particular procedure. A class-IV

employee like the Petitioner, whose duty is to work on Water Supply

Scheme, hardly requires any specific qualification. The Written Statement

of the Zilla Parishad before the Industrial Court does not point out any

specific qualification which is required for a Class-IV employee. Moreover,

after engaging the Petitioner for 27 years, the issue would be as to

whether, the Respondent/ Zilla Parishad should be estopped from taking a

plea that as it is an irregular appointment, the Zilla Parishad would

continue to engage the services of the Petitioner, but would oppose any

prayer for regularization.

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10              Paragraph   55   of   the   judgment   of   the   Honourable   Supreme 

Court in Umadevi (supra) reads as under:-

"55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in

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service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."

11 Keeping the fact situation as above in view, I find that this

petition can be entertained to the extent of directing the Respondent/ Zilla

Parishad to prepare a proposal not only of the Petitioner alone, but with

regard to all such daily wagers, who are similarly situated and who are

working for more than 10 years keeping in view the observations in

paragraph 53 in the case of Umadevi (supra), so as to forward the said

proposal to the appropriate authority for consideration for regularization.

12 In the light of the above, this Writ Petition is partly allowed.

The impugned judgment of the Industrial Court dismissing the complaint

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dated 02.09.2010 is quashed and set aside and Complaint (ULP)

No.24/2009 is partly allowed with the following directions:-

(a) The Respondent/ Zilla Parishad shall prepare a proposal of

the Petitioner along with all other similarly situated daily

wagers/ temporaries, who are working in the Water Supply

Scheme and who have worked for more than 10 years, and

forward the said proposal to the competent authority i.e.

Principal Secretary, Rural Development Department,

Maharashtra State, Mantralaya, Mumbai-32, within a period

of EIGHT WEEKS from today.

(b) Upon receipt of the said proposal, the concerned competent

authority shall consider the quantum of work available,

seniority of candidates and available vacant posts, while

deciding the said proposal for regularization and shall issue

necessary orders within a period of TWELVE WEEKS from the

date of the receipt of the said proposal.

(c) In the event, the posts are not vacant or not sufficient and in

the event the quantum of work is available, the concerned

competent authority may consider creation of posts strictly in

accordance with it's Rules.

(d) After the decision is taken by the competent authority, in the

event the Petitioner or similarly situated employees have any

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grievance, they would be at liberty to resort to available legal

remedies for the redressal of their grievance.

(e) Considering the directions of the Honourable Supreme Court

in paragraph 55 reproduced above, it would be just and

proper for the Respondent/ Zilla Parishad to take a decision

within four weeks from today as regards restoring parity in

wages to the daily wagers as like the Petitioner and ensure

equal wages that are being paid to the regular employees in

the same Department in which the Petitioner and similarly

situated employees are working. Considering the observations

of the Honourable Supreme Court, it is expected that the

Respondent/ Zilla Parishad would pass appropriate orders in

this regard within FOUR WEEKS from today.

13 Rule is made partly absolute accordingly.

kps                                                           (RAVINDRA V. GHUGE, J.)