Solapur Zilha General Kamgar ... vs The State Of Maharashtra And Ors
2017 Latest Caselaw 667 Bom

 pps                                                   1                1 wp 11206-14.doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO.11206 OF 2014

 Solapur Zilla General Kamgar Sangh                            ..Petitioner

 versus

 State of Maharashtra & Ors.                                   ..Respondent

Mr. Neel Girish Helekar for the Petitioners.

Mr. Manish Pabale, AGP for the Respondent Nos.1 and 2. Mr. S.G.Surana for the Respondent No.3.

                                CORAM  :       A.S. OKA & 
                                               SMT.ANUJA PRABHUDESSAI, JJ

                                DATED    :     10TH MARCH 2017


 ORAL JUDGMENT ( PER A.S. OKA, J )

1. Rule. The learned AGP waives service for the first and second

Respondents. The learned Counsel appearing for the third Respondent

waives service. Considering the narrow controversy involved in the

petition, the same is forthwith taken up for final disposal.

2. There are only two substantive reliefs sought in this petition

under Article 226 of the Constitution of India, in terms of prayer clauses

(a) and (b) which read thus:

"a) that this Honourable Court may be pleased to issue a

writ of mandamus or writ in the nature of mandamus or any

pps 2 1 wp 11206-14.doc

other suitable direction or order directing the Respondent

No.3 to pass a resolution approving the service rules, if not

already passed and for a further direction to submit it to the

Respondent No.2 for its post facto sanction.

b) that this Honourable Court may be pleased to issue a

writ of mandamus or writ in the nature of mandamus or any

other suitable direction or order directing to Respondent

No.2 to consider and sanction the service rules at the

earliest."

3. The Pandharpur Temples Act, 1973 (for short "the Temples Act")

was enacted by the State Legislature in relation to the famous and

historic temple of Vitthal and Rukmini at Pandharpur in District Solapur.

As per the provisions of the Temples Act, the third Respondent

Committee has been established under Section 21 thereof. The issue

raised by way of this petition concerns finalization of the Service Rules

of the employees on the establishment of the third Respondent.

4. Our attention is invited to Section 38 of the Temples Act which

reads thus:-Approximately Rs. 18,34,

"38. (1) The Executive Officer shall draw his pay and

allowances from the consolidated funds of the State and

shall be the servant of the State Government and his

pps 3 1 wp 11206-14.doc

conditions of service shall be such as may be determined by

the State Government.

(2) The other Officers, servants and other persons

appointed under this Act shall be Officers and servants of the

Committee and their conditions of service including pay and

allowances shall be such as may be determined by the

Committee with the approval of the Charity Commissioner

and their pay and allowances shall be paid from the temples

fund.

(3) There shall be paid every year out of the temples fund

to the State Government such amount as the State

Government may determine on account of pay, pension,

leave and other allowances of the Executive Officer."

5. Our attention is invited to the various documents annexed to the

petition. There is a letter dated 25 th October, 2013 addressed by the

learned Charity Commissioner of Maharashtra State to the Secretary of

Solapur Zilla Kamgar Sangh, in which there is a reference to a

Resolution dated 3rd December, 1996 passed by the third Respondent for

granting approval to the Service Rules as well as Public Provident Fund

Rules. It is further stated that as far as the conditions of the service of

the employees is concerned, it is the State Government which has the

power to approve the same and therefore, a copy of the Resolution

pps 4 1 wp 11206-14.doc

passed by the third Respondent and the Service Rules of the year 1999

were being forwarded to the State Government. There is a letter

dated 18th June, 1997 addressed by the learned Charity Commissioner

of Maharashtra State to the Secretary of the Law and Judiciary

Department of the State of Maharashtra in which it is mentioned that

Service Rules of the Employees of the third Respondent will have to be

approved under sub-Section (2) of Section 38 of the Temples Act by the

State Government. The learned Counsel appearing for the third

Respondent invited our attention to the letter dated 13 th October, 2015

addressed by the Chief Executive Officer of the third Respondent to the

Desk Officer of the Law and Judiciary Department of the State

Government. The said letter is by way of reply to the letter dated 30 th

June, 2015 addressed by the Law and Judiciary Department. Against

point no.1, it is mentioned in the said letter that the Service Rules of

2015 along with staffing pattern of the third Respondent has been

submitted to the State Government for approval. A request was made

by the letter dated 13th October, 2015 to the State Government to grant

approval to the staffing pattern and to the Service Rules of the year

2015. By a Government Resolution dated 29th November, 2016, the

State Government approved the staffing pattern of the third

Respondent. Clause 9 of the Government Resolution provides that to

the posts approved under the staffing pattern, the Rules prepared by the

third Respondent with the approval of the State Government will apply.

pps 5 1 wp 11206-14.doc

The proposal submitted by the third Respondent was for grant of

approval to the staffing pattern as well as the approval to the Service

Rules. By the said Government Resolution dated 29 th November, 2016,

the State Government has only approved the staffing pattern. Clause

(1) of the said Government Resolution is that the third Respondent shall

frame Rules as regards the posts covered by the staffing pattern

approved by the State Government laying down educational

qualifications, powers and duties of each post, and while making

recruitment, the Service Rules shall be meticulously followed.

6. Under Sub-Section (1) of Section 37 of the Temples Act, the Chief

Executive Officer is required to prepare a schedule setting forth the

duties, designations and grades of the Officers and employees who may

in his opinion constitute the establishment of the third respondent and

embody his proposals with regard to the salaries and allowances

payable to them. It is provided that such schedule and the list of

persons who may perform the services in rotation shall come into force

on approval of the third Respondent Committee. As stated earlier, now

there is an approval granted by the State Government to the staffing

pattern, though strictly speaking it was not necessary for the Committee

to seek the said approval.

7. Under Sub-Section (1) of Section 38, it is provided that the

pps 6 1 wp 11206-14.doc

Executive Officer of the third Respondent shall draw his pay and

allowances from the consolidated fund of the State and shall be a

servant of the State Government. Therefore, it provided that his

conditions of service shall be such as may be determined by the State

Government.

8. Sub-section (2) of Section 38 provides that the other Officers,

Servants and other persons appointed under the Temples Act shall be

the Officers and Servants of the Committee and their conditions of

service including pay and allowances shall be as may be determined by

the Committee with the approval of the learned Charity Commissioner.

Their pay and allowances are payable from the Temples fund.

9. Thus, in the light of sub-Section (2) of Section 38, the Service

Rules drafted by the third Respondent will have to be approved by the

learned Charity Commissioner of the State Government and not by the

State Government.

10. We, therefore, propose to direct the third Respondent to forward

the Service Rules of the year 2015 to the learned Charity Commissioner

of the State of Maharashtra for his approval. If the Service Rules do

not include pay and allowances of members of the staff of the third

Respondent as per the approved staffing pattern of the State

pps 7 1 wp 11206-14.doc

Government, a proposal shall be also submitted by the third Respondent

to the learned Charity Commissioner for approval of the pay and

allowances of the Officers, Servants and other persons appointed by the

third Respondent.

11. Considering the fact that for a long time, the Service Rules of the

third Respondent have not been approved, we propose to request the

learned Charity Commissioner to take a decision on the proposal in a

time bound schedule.

12. Accordingly, we dispose of the petition by passing following

order:-

i) We direct the third Respondent to forward the Service Rules of

the year 2015 to the learned Charity Commissioner of the State

of Maharashtra for his approval within a period of two weeks

from the date on which this Judgment and Order is uploaded;

ii) If the Services Rules do not include pay and allowances payable

to the Officers, Servants and the other persons appointed under

the Temples Act, the proposal containing details of pay and

allowances payable to them shall also be forwarded along with

the Service Rules to the learned Charity Commissioner for his

approval;

iii) We request the learned Charity Commissioner of the State of

pps 8 1 wp 11206-14.doc

Maharashtra to look into the Service Rules as well as the schedule

of Pay and Allowances forwarded by the third Respondent, and to

take appropriate decision on the prayer made by the third

Respondent for granting approval as expeditiously as possible and

preferably within a period of three months from the date on

which the proposal is submitted by the third Respondent in his

Office;

iv) The learned Charity Commissioner of the State of Maharashtra

shall act upon an authenticated copy of this Judgment and Order.

v) Rule is made partly absolute in above terms.

  (SMT. ANUJA PRABHUDESSAI, J)                                          ( A.S. OKA, J )