Bombay High Court
Shri Diwakar Udhav Kulsange And ... vs The State Of Maharashtra Through ... on 29 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5815 OF 2014
1. Shri Diwakar Udhav Kulsange,
aged about 47 years, occupation
Service, c/o Shri Kishor Padwekar,
Shiwaji Ward, Sainagar, Rajura,
District - Chandrapur.
2. Shri Anand Kunjilal Fulsuge,
aged about 49 years, occupation
Service, c/o Shri Nikhate, Nehru
Ward, Hajari Mohalla, Post -
Chimur, District - Chandrapur.
3. Shri Bhimrao Ramchandra
Parwekar, aged about 41 years,
occupation - Service, c/o Adiwasi
Vikas Mahamandal, Masal Road,
Chimur, District - Chandrapur.
4. Shri Ashok Kashinath Waghmare,
aged 45 years.
5. Shri Ravikant Udhav Torankar,
aged 45 years.
6. Shri Ankush Sadashiv Randiwe,
aged about 43 years, occupation -
Service.
7. Shri Mula Mahagu Madavi,
aged 54 years, occupation - Service.
8. Shri Bharat M. Tirankar,
aged about 56 years, occupation -
Service.
9. Shri Ashok K. Sidam,
aged about 50 years,
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occupation - Service.
10.Shri Ashok G. Uikey,
aged about 51 years,
occupation - Service.
Petitioner Nos. 4 to 10 r/o c/o
Adiwasi Vikas Mahamandal,
Sub-Divisional Office, Gondpipri,
District - Chandrapur.
11.Shri Pravin Waman Netam,
aged about 38 years,
occupation - Service.
12.Shri Sudhakar Raybhan Dhurve,
aged about 51 years,
occupation - Service.
13.Shri Namdeo N. Pandhare,
aged 48 years, occupation -
Service.
14.Shri Premanand S. Uikey,
aged about 45 years,
occupation - Service.
15.Shri Nitin N. Uikey,
aged 37 years, occupation -
Service.
All petitioner Nos. 11 to 15 r/o c/o
Adiwasi Vikas Mahamandal, Sub-
Divisional Office, Chandrapur,
District - Chandrapur.
16.Shri Nana Damduji Mokashi,
aged about 51, occupation -
Service.
17.Shri Gangadhar Haribhau Lonare,
aged 33 years, occupation - Service.
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18.Shri Dipak Moreshwar Urade,
aged about 48 years,
occupation - Service.
19.Shri Vijay Dadaji Atram,
aged 42 years, occ. Service.
20.Shri Dewanand Kisan Meshram,
aged 48 years, occ. Service.
21.Shri Ramesh Kachruji Parchake,
aged 56 years, occ. Service.
22.Shri Vasant Vishwanath Netam,
aged 47 years, occ. Service.
All Petitioner Nos. 16 to 22 r/o c/o
Adiwasi Vikas Mahamandal, Sub-
Divisional Office, Chandrapur,
District - Chandrapur.
23.Shri Baliram Baguji Pada,
aged 40 years, occ. Service,
r/o Mohali, Dhanora, District -
Gadchiroli.
24.Shri Suresh B. Alame,
aged 46 years, occ. Service,
r/o Kanartola, Post Heti,
Tah. Dhanora, Dist. Gadchiroli.
25.Shri Tukaram Lahuji Bhonde,
aged about 54 yrs., occ. Service,
r/o Dhanora, Ward No. 4,
Vidyanagar, Dhanora, District
Gadchiroli.
26.Shri Ravindra Laxman Meshram,
aged 38 years, occ. Service,
r/o Dhanora, Dist. Gadchiroli.
27.Shri Eknath Indat Gharatkar,
aged about 40 yrs., occ. Service,
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c/o Near Prakash Floor Mill,
Bardi/ Armori, Tah. Armori,
District - Gadchiroli.
28.Shri Dawalsingh Pratapsingh
Khagare, aged 51 years,
occ. Service, r/o Opp. Hitkarini
High School, Bardi/ Armori,
Ward No. 5, Armori, District -
Gadchiroli.
29.Dadaji Rushi Donadkar,
aged 45 years, occ. Service,
r/o Near Waghada/ Bardi Gram
Panchayat, Tah. Armori,
District - Gadchiroli.
30.Shri Raoji Dewaji Bhoyar,
aged 43 years, occ. Service,
c/o Shri Alone, Behind Hanuman
Mandir, Waghada/ Bardi, Tahsil
Armori, District - Gadchiroli.
31.Shri Kailas Shamrao Borkar,
aged 42 years, occ. Service,
c/o Kusumbai Dalal, Azad Ward,
Post - Kurkheda, Dist. Gadchiroli.
32.Shri Nilkanth Dokuji Alam,
aged about 56 years, occ. Service,
r/o Azad Road, Post - Kurkheda,
District - Gadchiroli.
33.Shri Shital Uttamrao Atram,
aged about 43 years, occ. Service,
c/o Shri Undirwade, Ambedkar
Ward, Post - Kurkheda,
District - Gadchiroli.
34.Shri Ravindra Libashi Kowe,
aged about 55 years, occ. Service,
r/o Mata Ward, Opp. Gajanan
Mandir, Post - Wadsa, District
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Gadchiroli.
35.Smt. Pratibha Polshava Katange,
aged about 50 years, occ. -
Service, r/o Ranapratap Ward,
Kunbhar Mohalla, Post -
Kurkheda, District - Gadchiroli.
36.Shri Vilas Shivram Madavi,
aged about 49 years, occ. Service,
c/o Shri Salote, Indira Ward,
Post - Etapalli, Dist. Gadchiroli.
37.Shri Jamir Ashraf Husain,
aged about 37 years, occ. Service,
c/o Gram Panchayat Sironcha
(Mal), Post - Sironcha, Dist.
Gadchiroli.
38.Shri Bajirao Annu Madavi,
aged about 42 years, occ. Service,
r/o Gurupalli, Post Etapalli,
Gadchiroli.
39.Shri Mahadeo Soma Atram,
aged about 50 years, occ. Service,
r/o Lagam Chek, Post - Lagam,
Tah. Mulchera, Dist. Gadchiroli.
40.Shri Shankar Devsingh Khanande,
aged about 55 years, occ. Service.
R/o Behind Boudha Vihar, Deori,
District - Gondia.
41.Shri Sanjay Prabhakar Kolhare,
aged about 40 years, occ. Service,
r/o Chichgad, Tah. Deori,
District - Gondia.
42.Shri Harihar Karnuji Gharatkar,
aged about 50 years, occ. Service,
r/o Ward No. 2, Ganesh Chowk,
Behind New Bus Stop, Deori,
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District - Gondia.
43.Shri Gajanan Baburao Maraskolhe,
aged about 57 years, occ. - Service,
r/o Ward No. 2, Ganesh Chowk,
Behind New Bus Stop, Deori,
District - Gondia.
44.Shri Premlal Insaram Pisade,
aged about 50 years, occ. Service,
r/o Deori, Ward No. 6, Behind
Chatrapati Shivaji School,
Deori, District - Gondia.
45.Shri Dhananjay Indal Gharatkar,
aged about 42 years, occ. Service, r/o
Deori, Ward No. 6, Chinchgad
Road, Behind Agrawal Dharmkanta,
Deori, District - Gondia.
46.Shri Gopal Bhikaji Bahekar,
aged about 43 years, occ. - Service,
r/o Deori, Behind Boudha Vihar,
Deori, District - Gondia.
47.Smt. Hemlata Purushottam
Masram, aged about 43 years, occ.
Service, r/o Deori, Behind Boudha
Vihar, Deori, District - Gondia.
48.Shri Manohar Ramji Kunbhare,
aged about 45 years, occ. Service,
r/o Deori, Ward No. 3, Deori,
District - Gondia.
49.Shri Keshav Shrirarm Gawadkar,
aged about 43 years, occ. Service,
r/o Deori, Ward No. 3, Deori,
District - Gondia.
50.Sau. Nirmalabai Shobhelal Dhurve,
aged about 55 years, occ. Service, r/o
Deori, Ward No. 3, Deori, District -
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Gondia.
51.Shri Rambhau Narayan Masram,
aged about 42 years, occ. Service,
r/o Deori, Ward No. 3, Deori,
District - Gondia.
52.Shri Jaswant Bhalavi,
aged about 43 years, occ. Service,
r/o Deori, Behind Boudha Vihar,
Deori, District - Gondia.
53.Shri Madhukar Namdeo Pedam,
aged about 47 years, occ. - Service,
r/o Devalapar, Tah. - Ramtek,
District - Nagpur.
54.Shri Subhash Narayan Madavi,
aged about 41 years, occ. Service,
r/o Devalapar, Tah. Ramtek,
District - Nagpur.
55.Shri Vishal Namdeorao Netam.
Aged about 28 years, occ. Service,
r/o Subhash Ward, Near Bus
Stop, Tahsil - Ramtek, District
Nagpur.
56.Shri Subhash Madhav Uikey,
aged about 37 years, occ. Service,
c/o Ankush Choure, Ambedkar
Ward, Ganeshpur, Near Mate
Milk Dairy, Bhandara, District
Bhandara.
57.Shri Shivlal Natthu Sayam,
aged about 34 years, occ. Service,
r/o Navegaon Bandh, Adiwasi
Office, Navegaonbandh.
58.Shri Mahadeo Shankarrao Jugnake,
aged about 46 years, Occ. Service,
r/o Ward No. 5, Gaikwad Mohalle,
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Balaji Chowk, Post - Navergaonbandh,
Arjuni/ Mor, District - Gondia.
59.Shri Sanjay Yashwantrao Gadhave,
aged about 39 years, Occ. Service, r/o
Navegaonbandh, Pradhan Mohalla,
Civil Lines, Tah. Arjuni/Mor,
District - Gondia.
60.Shri Bhuwansingh Jadhav Irpachi,
aged about 47 years, Occ. Service, r/o
Navegaon Bandh, Sub-Divisional
Office, Navegaonbandh.
61.Shri Arvind Baliram Thakare,
aged about 42 years, Occ. - Service,
c/o S.S. Mungmode, Post -
Navegaonbandh, Akar Mohalla,
District - Gondia.
62.Shri Madan Dattopant Kaurati,
aged about 39 years, Occ. - Service,
r/o Pawani/ Dhabe, Post -
Navegaonbandh, Tah. - Arjuni/
Mor, District - Gondia.
63.Shri Khushal Mansaram Pustode,
aged about 51 years, Occ. - Service,
r/o Navegaon Bandh, Sub-Divisional
Office, Navegaonbandh, Tah. -
Arjuni/ Mor, District - Gondia.
64.Shri Bhagwan Damaji Madavi,
aged about 48 years, Occ. - Service,
r/o Navegaon Bandh, Sub-Divisional
Office, Arjuni/ Mor, District - Gondia.
65.Shri Yograj Tikaram Kursunge,
aged about 42 years, Occ. - Service,
r/o Navegaon Bandh, Sub-Divisional
Office, Navegaonbandh.
66.Shri Lalaji Amar Bhoyar,
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aged about 54 years, Occ. - Service,
r/o Indira Nagar, Post -
Navegaonbandh, Tah. Arjuni/ Mor,
District - Gondia.
67.Shri Vinod Sudhakar Uikey,
aged about 31 years, Occ. - Service,
r/o Navegaon Bandh, Sub-Divisional
Office, Arjuni/ Mor, District - Gondia.
68.Shri Rajesh Baburao Maraskolhe,
aged about 33 years, Occ. - Service.
69.Shri Chudaman Narayan Masram,
aged - 51 years, Occ. - Service.
Petitioners 68 & 69 r/o Deori, District
Gondia.
70.Mukunda Motiram Gedam,
aged about 45 years, r/o Ambedkar
Ward, Bhandara, District - Bhandara.
71.Shri Sudhakar Shyamrao Sahare,
aged about 33 years, Occ. Watchman,
r/o Hetitola, Tahsil - Mansar,
District - Nagpur. ... PETITIONERS
Versus
1. The State of Maharashtra,
through the Principle Secretary,
Ministry of Tribal Development,
Mantralaya, Mumbai.
2. The Managing Director,
Maharashtra State Co-operative
Tribal Development Corporation,
Adivasi Vikas Bhavan, Ramganesh
Gadkari Chowk, Old Agra Road,
Nashik. ... RESPONDENTS
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Shri S.D. Malke, Advocate for the petitioners.
Ms. A.R. Kulkarni, AGP for respondent No. 1.
Shri M.V. Samarth, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JUNE 29, 2017.
ORAL JUDGMENT : (PER ROHIT B. DEO, J.)
Heard Shri S.D. Malke, learned counsel for the
petitioners, Shri A.R. Kulkarni, learned AGP for respondent No.
1 and Shri M.V. Samarth, learned counsel for respondent No. 2.
2. The petitioners are employees of the Maharashtra
State Co-operative Tribunal Development Corporation
(hereinafter referred to as the Corporation), who are working
as Peons, Drivers, Helpers and Graders. The petitioners are
essentially seeking a mandamus, directing the respondent -
Corporation to regularize their services.
3. The claim for regularization is based on the premise
that the petitioners have been working since last more than 25
years and that as model employer, the respondent -
Corporation is under legal obligation, not to treat the
petitioners as temporary employees for the years together. The
petitioners have also asserted that the respondent -
Corporation has recommended to the State Government that
401 employees including the petitioners be made permanent.
4. The State of Maharashtra has filed an affidavit-in-
reply inter alia contending that the petitioners are appointed
purely on daily/ seasonal basis and that their appointment has
neither been made in accordance with due selection process nor
on the sanctioned posts. Respondent No. 2 - Corporation,
while opposing the claim of the petitioners to regularization,
does not specifically dispute that 401 employees were
recommended for regularization. However, Respondent No 2 -
Corporation asserts that the said recommendation was made in
the year 2000 and with the passage of time and in particular
the developments in service jurisprudence, in view of the
judgment of the Supreme Court in the case of Secretary, State
of Karnataka & Ors. vs. Umadevi (3) & Ors. reported at (2006) 4
SCC 1, the recommendations have little relevance.
5. The learned counsel for the petitioners has invited
our attention to the affidavit-in-reply filed by the respondent -
Corporation in Writ Petition No. 9301 of 2008 and other
connected matters and in particular to the contents of
paragraph 5, which reads thus :
"5. I say that, as per directions given by this Hon'ble High
Court, information of number of posts sanctioned and
vacant posts in the Corporation has been called from the
Corporation. According to their information, there are total
1298 sanctioned posts and out of this, 448 posts are filled in
and 850 posts are vacant, Annexure 'D'."
6. Shri Malke, learned counsel urges that the aforesaid
statements on oath reveal that at least on 05.05.2015, on which
date the affidavit was sworn, there were 1298 sanctioned posts
with Respondent No. 2 - Corporation, out of which only 448
posts are filled in and 850 posts are vacant.
7. Shri Malke, learned counsel invites our attention to
paragraph 53 of the judgment in the case of Secretary, State of
Karnataka & Ors. vs. Umadevi (3) & Ors., which reads thus :
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa, R.N.
Nanjundappa and B.N. Nagarajan and referred to in para
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 the courts or of tribunals. The
question of regularisation 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 abovereferred 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 regularise 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 the courts or of tribunals and should
further ensure that regular recruitments are undertaken to
fill those vacant sanctioned posts 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
regularisation, if any already made, but not sub judice, need
not be reopened based on this judgment, but there should be
no further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed
as per the constitutional scheme."
8. Shri Malke, learned counsel contends that the
petitioners are squarely covered by the exception carved out by
the Hon'ble Supreme Court. Shri Malke, learned counsel
submits that the petitioners are duly qualified and are holding
sanctioned vacant posts. He submits that at any rate and in any
event, in view of the affidavit filed by respondent No. 2 -
Corporation in Writ Petition No. 9301 of 2008 and other
connected matters, this Court should draw an adverse inference
against Respondent No. 2 - Corporation and the claim for
regularization ought to be considered on the premise that the
petitioners are holding sanctioned vacant posts.
9. Shri Malke, learned counsel, further invites our
attention to the judgment of the Hon'ble Supreme Court in the
case of State of Jharkhand & Ors. vs. Kamal Prasad & Ors.,
reported at (2014) 7 SCC 223, which follows the legal principle
laid down in paragraph 53 of the Constitution Bench judgment
mentioned supra.
10. The petitioners are undisputedly working since
years together as temporary employees. We have no quarrel
with the submission that even on the assumption that the
petitioners are not duly appointed, if the petitioners are duly
qualified to hold posts and are appointed on sanctioned vacant
posts, the exception carved out by the Hon'ble Supreme Court
in paragraph 53 of the judgment mentioned supra, would come
into play. However, we are not in a position to adjudicate on
the factual aspects in writ jurisdiction, in the absence of
necessary details and pleadings.
11. We are not in a position to arrive at any positive
conclusion that the petitioners are holding sanctioned posts. It
is true that respondent No. 2 - Corporation has made certain
statements referring to the existence of vacant posts, in
affidavit-in-reply, in the petitions filed before the Principal Seat
of this Court. However, in the absence of particulars, we are
not in a position to come to any conclusion as to whether there
are in fact sanctioned posts on which the petitioners have been
appointed. Even if we assume that there are sanctioned posts,
in the absence of particulars, we are not in a position to
correlate the claim of the petitioners to regularization with a
particular post with respondent No. 2 - Corporation.
Respondent No. 2 - Corporation is also disputing the claim of
the petitioners that they are duly qualified to hold the posts.
12. In this situation, we find that there are serious
disputed questions of fact which would need to be adjudicated
before the petitioners can claim the benefit of the exception
carved out in paragraph 53, reproduced above. We are,
therefore, not in a position to consider and adjudicate on these
factual issues in this jurisdiction. However, since the
petitioners are working as temporary employees since more
than 25 years, we feel that the interest of justice would be
served if the petitioners are given an opportunity to approach
the appropriate forum for redressal of their grievances. The
petitioners are free to institute proceedings for regularization
before the Industrial Court within the jurisdiction of which the
cause of action has arisen. Since the complaints may be
instituted before different Industrial Courts, we direct the
President, Industrial court to administratively transfer all such
complaints for regularization before the Industrial Court,
Nagpur.
13. The petitioners may file appropriate complaints
within a period of two months and we request the President of
the Industrial Court to pass appropriate consolidation/ transfer
orders within a period of 15 days thereafter. The Member,
Industrial Court, Nagpur, is requested to decide the complaint
as expeditiously as possible and in any event within a period of
one year from the date of consolidation/ transfer order of the
President, Industrial Court, Nagpur.
14. With these directions, we dispose of the present
writ petition. However, there shall be no order as to costs.
JUDGE JUDGE
******
*GS.
