Deoram Barku Bachkar & Anr vs State Of Maha & Ors
2017 Latest Caselaw 8403 Bom

                                       (1)                  WP No.5442/2004

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD.


                        WRIT PETITION NO. 5442 OF 2004


 1.       Deoram s/o Barku Bachkar
          Age : 56 years, occu.: nil
          R/o Pimpri Aughad, Taluka Rahuri,
          District Ahmednagar.


 2.       Gulab s/o Gafoor Pathan
          Age : 48 years, occu.: nil
          R/o Manik Daundi, Taluka Pathardi,
          District Ahmednagar.                                  Petitioners.

                  Versus

 1.       The State of Maharashtra
          Through the Secretary,
          Planning Department
          (Copy to be served on Government
          Pleader, High Court,
          Aurangabad Bench.


 2.       The District Collector
          District : Ahmednagar.


 3.       The Deputy Collector
          Employment Guarantee Scheme,
          Collector Office, Ahmednagar.


 4.       The Executive Engineer (EGS)
          Public Works Department,
          District : Ahmednagar.




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                                    (2)                     WP No.5442/2004

 5.       The Executive Engineer
          Irrigation Department,
          Ahmednagar.


 6.       The Executive Engineer
          Minor Irrigation, Local Sector
          Division No.1, Ahmednagar.


 7.       The Executive Engineer
          Mula Irrigation Division,
          Ahmednagar.                                          Respondents


                                      ***
 Mr. C.K. Shinde, Advocate for the petitioners.
 Mr. B.A. Shinde, A.G.P. for the respondents.
                                      ***
                                   WITH


                   CIVIL APPLICATION NO. 5573 OF 2017


 1.       Promod s/o Shamrao Patil
          Age : 59 years, occu.: nil
          R/o Damarkheda, Tal. Shahada,
          District Nandurbar.


 2.       Dada s/o Kisan Wadhavkar
          Age : 55 years, occu.: nil
          R/o Takali-Khandeshwari,
          Taluka Karjat, Dist. Ahmednagar.


 3.       Navnath s/o Kanhoba Galphade
          Age : 55 years, occu. : nil
          R/o Jamkhed, Taluka Jamkhed,
          District Ahmednagar.                                 Petitioners.



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                                    (3)                     WP No.5442/2004

               Versus
 1.       Deoram s/o Barku Bachkar
          Age : 66 years, occu.: nil
          R/o Pimpri Aughad, Tal. Rahuri,
          District Ahmednagar.


 2.       Gulab s/o Gafoor Pathan
          Age : 58 years, occu.: nil
          R/o Manik Daundi, Tal. Pathardi,
          District Ahmednagar.


 3.       The State of Maharashtra
          Through the Secretary,
          Planning Department,
          Mantralaya, Mumbai - 32.


 4.       The District Collector
          District Aurangabad.


 5.       The Deputy Collector
          Employment Guarantee Scheme,
          Collector Office, Ahmednagar.


 6.       The Executive Engineer
          EGS, Public Works Department,
          District Ahmednagar.


 7.       The Executive Engineer
          Irrigation Department,
          Ahmednagar.


 8.       The Executive Engineer 
          Minor Irrigation, L.S. Division
          No.1, Ahmednagar.




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                                        (4)                       WP No.5442/2004

 9.       The Executive Engineer
          Mula Irrigation Division,
          Ahmednagar.
                                        ***
 Mr. Manoj D. Patil, Advocate for the applicants.
 Mr. C.K. Shinde, Advocate for respondent Nos.1 and 2.
 Mr. B.A. Shinde, A.G.P. for the respondent Nos.3 to 9.
                                        ***
                                      CORAM :  RAVINDRA V. GHUGE
                                                                  AND
                                                   SUNIL K. KOTWAL, JJ.

Dated : 03-11-2017.

ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.) :-

1. By this petition, the petitioners pray that this Court

should direct investigation into the affairs of the State by

appointing a Commission of enquiry and further direct

respondent No.2 to consider the claim of the petitioners for

appointment as Mustering Assistants.

2. The prayers put-forth below paragraphs 21 "B" & "C"

read as under :-

B. By issuing writ of mandamus or any other writ or directions for investigation into the affairs may please be directed to find out the truth in the matter by appointing Commission or Inquiry Officer.

                                         (5)                       WP No.5442/2004

              C.     By   order   or   directions   respondent   No.2  

may be directed to consider the claim of the petitioners for appointment as Mustering Assistant and to pay usual pay and allowances.

3. We have considered the strenuous submissions of the

learned Advocate for the petitioners. The issue is as regards the

work performed by the petitioners as 'Mustering Assistants' on

the Employment Guarantee Scheme. There is no dispute that

these petitioners, as per the submissions of the learned Counsel,

were terminated from service. They preferred ULP (Complaint)

under the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 before the

Labour Court at Ahmednagar which was allowed by the

judgment dated 29.06.1994. The petitioners, therefore, were

reinstated on 21.08.1995 and 26.07.1995 respectively. This

Court, by judgment dated 31.08.2001, quashed and set aside the

judgments of the Labour Court and concluded that these two

petitioners have no right to reinstatement and their termination

was sustained.

4. It requires no debate that the issue as regards

regularisation of the services of Mustering Assistants working for

(6) WP No.5442/2004

the Employment Guarantee Scheme and working on the

Employment Guarantee Scheme, was taken to the Hon'ble Apex

Court. The State of Maharashtra was directed to prepare a

scheme for considering the eligibility of the Mustering Assistants

for regularisation keeping in view the huge volume of workers,

who were seeking regularisation in various Industrial Courts in

Maharashtra. The State of Maharashtra introduced Government

Resolution dated 01.12.1995 which was presented before the

Hon'ble Apex Court for consideration. By an order dated

02.12.1996 in Civil Appeal No. 15339 of 1996 and Special Leave

to Appeal No. 15654 of 1991, the Apex Court accepted the

Scheme put-forth by the State of Maharashtra. The Hon'ble

Apex Court, therefore, ruled that the Scheme is being approved

and the State was directed to consider all Mustering Assistants

who fell within the parameters of the Scheme and consider their

individual claims for regularisation. It is not in dispute that the

cut-off date prescribed in the said Scheme mandated that these

Mustering Assistants, who were on the rolls of the Establishment

on 31.05.1993 and were in continued service, would be

considered for regularisation.

(7) WP No.5442/2004

5. In the instant case, both the petitioners, who are

Senior Citizens today, were out of employment since their first

termination. Their grievance before the Labour Court was

entertained and they were held eligible for reinstatement by

judgment dated 29.06.1994. Both of them were reinstated on

21.08.1995 and 26.07.1995 respectively, which clearly indicates

that they were not on the rolls of the Establishment on

31.05.1993.

6. We would have considered the submissions and

contentions of the petitioners in this petition favourably, in the

event the judgment of the Labour Court would have been

sustained by this Court. However, as this Court has quashed and

set aside the judgment of the Labour Court concluding that the

said judgment is perverse and unsustainable, the consequences

of quashing of the said judgment would render their termination

sustainable.

7. It is, in these peculiar facts and circumstances of this

case, that the respondent Establishment has not considered the

claims of the petitioners as per the Government Resolution dated

01.12.1995.

(8) WP No.5442/2004

8. Taking into account the above factors and especially

the setting aside of the judgment of the Labour Court on account

of which these petitioners were again terminated on 01.06.2002,

we do not find it appropriate to direct the State of Maharashtra

to consider their cases since they are not eligible as per the

conditions prescribed in the Government Resolution dated

01.12.1995. For the said reasons, we do not find that the prayer

clause 21-B put-forth by the petitioners can be entertained. In

any case, unless specific instances of illegalities or irregularities

are pointed out before us, we would not be inclined to direct

investigation into the affairs of the Department dealing with the

regularisation of the Mustering Assistants.

9. In that view of the matter, this Petition being devoid

of merit, is therefore dismissed. Rule is discharged

10. The applicants in the Civil Application are identically

placed and they desire that they should be considered alongwith

the two petitioners in this petition. Since this petition has been

admitted in 2004, this application has been filed on 09.12.2016

and keeping in view that these applicants were terminated in the

year 1983 after they were appointed on Employment Guarantee

(9) WP No.5442/2004

Scheme, had worked for about three years and are out of

employment for last 31 years, we do not find that the said

application could be entertained. The same is therefore rejected.

    ( SUNIL K. KOTWAL)                       ( RAVINDRA V. GHUGE)
            JUDGE                                         JUDGE




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