Purshottam Ramlakhan Pande vs State Of Mah.Thr.Secr.Mumbai And ...
2017 Latest Caselaw 3858 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                              NAGPUR BENCH : NAGPUR.

                                        Writ Petition No.6374 of 2005

              Purushottam Ramlakhan Pande,
              Aged 36 years, Resident of Ward No.1, 
              Khapa, Tahsil and District Nagpur.                            .... Petitioner.

                                                         -Versus-

              1]       State of Maharashtra
                       through Secretary, 
                       Urban Development Department, 
                       Mantralaya, Mumbai 400032.

              2]       Director of Municipal Administration,
                       Shashakiya Pariwahan Seva Imarat,
                       3rd Floor, Sir Pochkhanwala Road, Waroli, 
                       Mumbai 400030.

              3]      Municipal Council, Saoner 
                      through its Chief Officer.                              .... Respondents.
              -----------------------------------------------------------------------------------
              Shri Anand Jaiswal, Counsel with  Mrs. Radhika Bajaj, Counsel for 
              petitioner.
              Shri N.S. Rao, Additional Government Pleader for respondent nos.1 and 2.
               -----------------------------------------------------------------------------------
               Coram : R. K. Deshpande & 
                             Mrs. Swapna Joshi, JJ.

               Dated  : 01    July, 2017
                              st
                                          

              ORAL JUDGMENT (Per R. K. Deshpande, J.)





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The petitioner claims that he is working on ad hoc basis as

Junior Engineer in the services of Municipal Council, Saoner from

22-04-1993 and has till this date completed service of about 24 years.

Since the appointment of the petitioner was on ad hoc basis,

obviously intermittent brakes were there and the appointment was

subject to availability of the candidates to be selected by the regular

subordinate Selection Board through which the appointments were

to be made in the sanctioned posts. It is also not in dispute that the

appointment and continuation of the petitioner in service in Class-III

post as a Junior Engineer is in a post, which is sanctioned under

Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats

and Industrial Townships Act, 1965.

2] The Municipal Council, Saoner passed a resolution on

05-02-2001 to regularize the service of the petitioner in Class-III

post of Junior Engineer. The claim of the petitioner for

regularization forwarded, was rejected by the Director of Municipal

Administration as per order dated 27-05-2005. The only reason

assigned was that in terms of the decision of the Division Bench of

this Court rendered on 06-09-1999 in Writ Petition No.2873 of 1999

in which it was made clear that the petitioner shall not be entitled to

claim regularization of his service on the basis of his ad hoc service

and he shall make way for the regularly appointed employee. This is

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the subject matter of challenge in this petition.

3] This Court has allowed the application for amendment filed

by the petition on 01-03-2017. Accordingly, the amendment was

carried out on 07-03-2017. By way of amendment, the petitioner has

brought on record the subsequent events. The orders of

regularization passed on 12-12-2007, 02-02-2008 and 03-10-2008 by

the Municipal Administration Department of the State Government

in exercise of its power conferred under Rule 5(4) of the Maharashtra

Municipal Councils, Nagar Panchayats and Industrial Townships

State Services (Absorption, Recruitment and Conditions of Service)

Rules, 2006, are placed on record. The orders are signed by the

Director of Municipal Administration. All these orders refer to the

Notification issued by the Urban Development Department of the

State Government dated 11-01-2007. The copies of these orders are

supplied by these respondents in response to the information sought

under the Right to Information Act, 2005.

4] The order dated 12-12-2007 regularizes about 72 employees

working on ad hoc basis under the Maharashtra State Municipal

Engineering Service working in Aurangabad, Amravati, Konkan,

Nasik and Pune Divisions. Similar treatment is also provided to the

persons working in various departments under the Municipal

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Councils. By an order dated 02-02-2008, the services of about 65

persons working in Engineering Department under the Municipal

Councils in Konkan, Pune, Nasik, Aurangabad, Amravati and Nagpur

regions are regularized. Under the order dated 03-10-2008, the

services of hundreds of persons working in the Engineering

Department are regularized. The orders of regularization are passed

on the terms and conditions which are common stated in all these

orders.

5] In paragraphs 4A and 4B of the petition, the petitioner has

given the names of persons working on ad hoc basis on the post of

Junior Engineers in Municipal Council, Pusad and Ghatanji. These

persons working in the scale of Rs. 5000-8000 and Rs.6500-10500

are regularized in service in terms of the aforesaid orders. It is

alleged that as a matter of policy the State Government has decided

to regularize the services of all the ad hoc employees on the basis of

the same terms and conditions by issuing the orders of regularization

dated 12-12-2007, 02-02-2008 and 03-10-2008 which are issued

subsequent to the order impugned dated 27-05-2005 passed by the

respondent in the present petition rejecting the claim of the petitioner

for grant of regularization.

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              6]       The only ground to refuse the regularization in Class-III post 

of Junior Engineer in the services of Municipal Council, Saoner is

the judgment and order dated 06-09-1999 passed by this Court in

Writ Petition No.2873 of 1999 filed by the present petitioner. We

have gone through the said decision. What was challenged in the

said writ petition is the termination proposed to be effected of the

petitioner on the ground that because of Election Code of Conduct

promulgated, it is not possible to continue the petitioner in service.

This Court observes that the Election Code of Conduct is used as a

bogie for covering up all inactions of public authorities. It holds that

the Election Code of Conduct is intended only to prevent any action

being taken on the part of the public authorities which would have

deleterious effect on the election. The Court holds that we fail to

see how continuance of an employee, who has been on ad hoc

service since 1995, has nothing to do with the Election Code of

Conduct. The Court rejected the defence raised in the said petition

and directed that the petitioner shall be continued/reappointed as ad

hoc employee in the available existing vacancy and he shall be

continued till such time that the permanent post is filled in by

appointment of regularly selected candidate through subordinate

Selection Board. In clause (d) of the operative portion, this Court

has held as under :-

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"d) the petitioner shall not be entitled to claim regularization of his service on the basis of his ad hoc service and he shall make way for the regularly appointed employee."

7] What we see is that the aforesaid writ petition was not

claiming regularization in service but it was merely challenging the

termination effected of the petitioner as an ad hoc employee on the

ground of promulgation of the Code of Conduct for the election. In

the absence of the claim for regularization being made in the said

writ petition, we find that the respondents were not justified in

passing an impugned order dated 27-05-2005 rejecting the claim for

regularization of the petitioner in service. The decision of this Court

in the said writ petition cannot come in the way of the respondents in

subsequently taking the policy decision to regularize the services of

the petitioner, particularly when hundreds of persons similarly

situated all over the State and working in various Municipal Councils

on ad hoc basis in the similar scale are regularized by invoking the

statutory powers conferred. The respondents have not considered

this aspect of the matter and unless such consideration is done it is

not possible for us to issue mandamus directing the respondents to

regularize the petitioner in service.

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              8]       In view of above, we allow this writ petition and quash and set 

aside the order dated 27-05-2005 passed by the respondent no.1

rejecting the claim of the petitioner for regularization in service in

Class-III post of Junior Engineer in the service of Municipal Council

at Saoner. We hold that the respondents were not justified in relying

upon the decision of the Division Bench of this Court passed in Writ

Petition No.2873 of 2000 (Purushottam Ramlakhan Pande vs.

Municipal Council, Saoner and another) on 06-09-1999, to deny the

claim of the petitioner for regularization. We direct the respondents

to consider the claim of the petitioner for regularization on par with

the persons who have been regularized by an order dated 12-12-2007,

02-02-2008 and 03-10-2008. Obviously, if it is found that the

persons similarly situated and working in different Municipal

Councils all over the State are regularized, the petitioner cannot be

denied the same treatment.

9] We, therefore, direct the respondent nos. 1 and 2 to consider

the case of the petitioner and pass appropriate orders within a period

of 4 months from today. The respondents shall also pass

consequential orders granting similar benefits to the petitioner, as are

granted to the other employees, if it is found that the petitioner is

similarly situated.

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                        10]            Rule is made absolute in above terms.  No order as to costs.



                                         JUDGE                                             JUDGE




                            Deshmukh