Bombay High Court
Balwant Eknath Deshmukh vs The Chief Officer Municipal ... on 8 November, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2584 OF 2009
1. Shri Ganpat Dagadu yeole,
Age : 56 years, Occu. Service,
R/o Shivaji Nagar, Yawal,
Tal. Yawal, Dist. Jalgaon
2. Shri Balwant Eknath Deshmukh,
Age : 54 years, Occu. Service,
R/o Deshmukh Wada, Yawal,
Tal. Yawal, Dist. Jalgaon
3. Shri Ashok Laxman Bari,
Age : 50 years, occu. Service,
R/o Bari Wada, Yawal,
Tal. Yawal, Dist. Jalgaon
4. Shri Yuvraj Mohan Phalak,
Age : 55 years, occu. Service,
R/o Mahajan Galli, Yawal,
Tal. Yawal, Dist. Jalgaon
5. Shri Ashok Trambak Chavan,
Age : 47 years, Occu. Service,
R/o Shivaji Nagar, Yawal,
Tal. Yawal, Dist. Jalgaon
6. Shri Shivanand Kaashinath Kanade,
Age : 44 years, Occu. Service,
R/o Mahajan Wadi, Yawal,
Dist. Jalgaon PETITIONERS
VERSUS
1. The Chief Officer,
Yawal Municipal Council,
Yawal, Tal. Yawal,
District Jalgaon
2. The Divisional Commissioner
and Regional Director,
Nagar Parishad, Nashik Division,
Nashik, Dist. Nashik
::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:47:11 :::
2 wp2584-2009+
3. The State of Maharashtra RESPONDENTS
AND
WRIT PETITION NO. 4202 OF 2008
Shivanand Kaashinath Kanade,
Age : 44 years, Occu. Service,
R/o Mahajan Wadi, Yawal,
Dist. Jalgaon PETITIONERS
VERSUS
1. The Chief Officer,
Yawal Municipal Council,
Yawal, Tal. Yawal,
District Jalgaon
2. The Divisional Commissioner
and Regional Director,
Nagar Parishad, Nashik Division,
Nashik, Dist. Nashik
3. The State of Maharashtra RESPONDENTS
AND
WRIT PETITION NO. 4285 OF 2008
Balwant Eknath Deshmukh,
Age : 54 years, Occu. Service,
R/o Deshmukh Wada, Yawal,
Tal. Yawal, Dist. Jalgaon PETITIONER
VERSUS
1. The Chief Officer,
Yawal Municipal Council,
Yawal, Tal. Yawal,
District Jalgaon
2. The Divisional Commissioner
and Regional Director,
Nagar Parishad, Nashik Division,
Nashik, Dist. Nashik
::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:47:11 :::
3 wp2584-2009+
3. The State of Maharashtra RESPONDENTS
----
Mr. V.T. Chaudhari, Advocate for the petitioners
in all writ petitions
Mr. L.V. Sangit, Advocate for respondent No. 1
in all writ petitions
Mr. S.N. Morampalle, A.G.P. for respondent No. 2
and 3/State in all writ petitions
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 8th NOVEMBER, 2017
COMMON JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Heard the learned counsel for the parties and
the learned A.G.P.
2. Petitioners No.1 to 6 in Writ Petition No. 2584
of 2009 have challenged the order dated 17th July, 2008,
passed by respondent No.1 - the Chief Officer,
Municipal Council, Yawal, whereby their services have
been ordered to be regularised with effect from 6th May,
2000 instead of 16th October, 1986. They have further
challenged the order dated 21st June, 2017 issued by
respondent No.2 - the Divisional Commissioner and
Regional Director, Nagar Parishad, Nashik, on the basis
of which respondent No.1 passed the order dated 17th
July, 2008.
4 wp2584-2009+
3. Petitioners No.2 and 6 in Writ Petition No.
2584 of 2009 have filed Writ Petition Nos. 4202 of 2008
and 4285 of 2008 respectively, challenging the orders
dated 17th March, 2008 passed by respondent No.1 and the
order dated 20th June, 2007 passed by respondent No.2,
whereby they have been demoted from the post of Jakat
Clerk (Class-III) to the post of Pump Chalak (Class-IV).
4. Since the facts of the above referred writ
petitions are interconnected and the parties thereto are
common, they are being decided by this common judgment.
5. The learned counsel for the petitioners submits
that all the petitioners were appointed as Pump
Attendants by Yawal Municipal Council on daily wages.
Though they completed 240 days of continuous service,
their services were not regularised. Therefore, they
filed complaints before the Industrial Court at Nashik,
alleging unfair labour practices against respondent
No.1. The Industrial Court, Nashik, vide common
judgment and order dated 8th November, 1988, allowed the
complaints, declared that respondents No.1 and 2
indulged in unfair labour practices and directed them to
provide all the benefits, privileges and status to the
5 wp2584-2009+
complainants/ petitioners, including wages at par with
the permanent employees of their category. Respondents
No.1 and 2 were further directed to pay arrears of wages
to the petitioners with effect from 16th October, 1986.
Accordingly, the President of the Municipal Council
issued orders on 13th June, 1989 in favour of the
petitioners, stating therein that appeal was not to be
preferred against the common judgment and order passed
by the Industrial Court and granting the petitioners
regular pay scale with effect from 16th October, 1986,
subject to the approval of respondent No.2.
6. The learned counsel submits that as per the
orders passed by the President of the Municipal Council,
the services of the petitioners were regularised with
effect from 16th October, 1986. They received the
arrears of salary as well as further regular salary as
per the prescribed pay scale with increments.
Petitioner Nos.2 and 6 were promoted to the post of
Clerk in due course as per the resolution dated 9th
December, 1997 passed by the Standing Committee of the
Municipal Council. Accordingly, they started working on
their promotional post with effect from 10th December,
1997. However, respondent No.2, relying on the order
6 wp2584-2009+
dated 20th April, 2001 passed by the Director,
Directorate of Municipal Council Administration,
illegally and arbitrarily passed the impugned order
dated 21st June, 2007, regularising the services of the
petitioners with effect from 6th May, 2000. On the
basis of that order, respondent No.1 illegally passed
the impugned order dated 17th July, 2008 and directed to
regularise the services of the petitioners with effect
from 6th May, 2000 on execution of their undertakings.
He submits that the petitioners did not execute any
undertaking as ordered by respondent No.1. According to
him, when the Industrial Court had directed to
regularise services of the petitioners with effect from
16th October, 1986 and when the said judgment and order
of the Industrial Court was not challenged by the
Municipal Council, it was not open for respondent Nos. 1
and 2 to ignore the judgment and order of the Industrial
Court and change the date of regularisation of services
of the petitioners from 16th October, 1986 to 6th May,
2000. He further submits that respondent No.2 wrongly
and illegally demoted petitioner Nos.2 and 6 from the
post of Clerk to the posts of Pump Operator as per the
impugned order dated 20th June, 2007, which was given
effect to by respondent No.1 as per the impugned order
7 wp2584-2009+
dated 17th March, 2008, treating them to be in the
regular service with effect from 6th May, 2000. He,
therefore, prays that the impugned orders may be set
aside and the petitioners may be ordered to be treated
in regular services with effect from 16th October,1986.
He further submits that the demotion order passed
against petitioner Nos. 2 and 6 may be set aside and
they may be restored to their original position with
consequential benefits.
7. On the other hand, the learned counsel for
respondent Nos.1 and 2, based on the replies filed on
their behalf, submits that there were a number of
employees appointed irregularly and illegally on daily
wages basis in 156 Municipal Councils in the State of
Maharashtra. As per the decision taken in the meeting
of the Maharashtra Municipal Councils and Municipal
Corporations Kamgar Sangharsh Committee with the Hon'ble
the Chief Minister on 25th March, 2000, it was decided
to regularise the services of daily wagers with effect
from 6th May, 2000, who were appointed prior to 10th
March, 1993. The petitioners also were working on daily
wages prior to 1993. Therefore, they were extended the
benefit of the said decision. They were not appointed
8 wp2584-2009+
regularly. Their appointments were made as per the
orders of the Industrial Court, but subject to approval
being given by respondent No.2. He submits that
respondent No.2 did not approve the services of the
petitioners with effect from 16th October, 1986 in view
of the order dated 20th April, 2001. Since respondent
No.2 did not approve their services with effect from
16th October, 1986, respondent No.1 rightly passed the
order dated 17th July, 2008, regularising the services
of the petitioners with effect from 6th May, 2000.
Since the services of petitioner Nos.2 and 6 were not
regularised prior to 6th May, 2000, they were not
entitled to get promotion to the post of Clerk.
Therefore, respondent Nos.1 and 2 rightly passed the
orders demoting them from the post of Clerk to the post
of Pump Operator. He submits that the petitioners are
not entitled to claim regularisation of their services
with effect from 16th October, 1986 and supports the
impugned orders.
8. Indisputably, the petitioners had filed
complaints (ULP) Nos.454 of 1986 to 459 of 1986 in the
Industrial Court at Nashik. The said complaints were
allowed by the Industrial court on 18th November, 1988
9 wp2584-2009+
after hearing respondent No.1 as well as the President
of Municipal Council, Yawal. The Industrial Court passed
the following order:-
"It is hereby declared that Respondent No.1 and
2 are indulging into unfair labour practices
under Item 6 of Schedule IV of the M.R.T.U. And
P.U.L.P. Act, 1971 in continuing the complaints
of Complaint (ULP) No. 454/1986, 455, 456, 457,
458 and 459/1986 as temporaries on daily wages
for years.
They are therefore directed to stop and desist
from the said unfair labour practice with
immediate effect and to provide to all the
complainants the benefits privileges and status
including wages on par with the permanent
servants of their category. They shall be paid
arrears of wages from the date of complaint
i.e. 16.10.1986. The arrears of wages shall be
drawn and paid to each of the complainant
within a period of two months of this order."
9. There is no dispute that the order of the
Industrial Court was not challenged consciously by the
Municipal Council by filing any proceedings and as such,
the said judgment and order attained finality. The
appointment orders of the petitioners issued by the
President of the Municipal Council on 13th June, 1989
clearly show that the judgment and order of the
Industrial Court was not to be challenged by filing any
appeal. The services of the petitioners were confirmed/
regularised with effect from 16th October, 1986;
10 wp2584-2009+
however, subject to the approval of respondent No.2.
When the Municipal Council decided not to challenge the
order passed by the Industrial Court, there was no
alternative before it but to obey that order. The
Industrial Court had not passed any conditional order
for regularising the services of the petitioners subject
to approval by respondent No.2. Respondent No.2 was not
supposed to pass any order nullifying the order of the
Industrial Court regularisng the services of the
petitioners with effect from 16th October, 1986.
10. The order dated 20th April, 2001 of the
Director, Directorate of Municipal Council
Administration was a general order regularising
services of the employees of the Municipal Councils/
Corporations working on daily wages since before 10th
March, 1993. The said order would not govern the cases
of the petitioners since they had approached the
Industrial Court seeking the relief of regularisation of
their services and accordingly, their services were
directed to be regularised by the Industrial Court with
effect from 16th October, 1986. The cases of the
petitioners, therefore, were liable to be considered in
the light of the order passed by the Industrial Court
11 wp2584-2009+
much prior to passing of the order by the Director on
20th April, 2001. Respondents No.1 and 2 wrongly
treated the petitioners on par with the other employees
of the Municipal Councils/Corporations who had not
approached the Industrial Court and who had not got any
protection from the Court regularising their services
with effect from 16th October, 1986. It is, thus, clear
that respondent Nos.1 and 2 wrongly ignored the judgment
and order of the Industrial Court and wrongly changed
the date of regularisation of services of the
petitioners from 16th October, 1986 to 6th May, 2000.
The impugned orders passed by respondents No.1 and 2,
thus, are illegal and unsustainable.
11. By postponing the date of regularisation of
services of the petitioners from 16th October, 1986 to
6th May, 2000 as per the impugned orders passed by
respondent Nos.1 and 2, petitioner Nos.2 and 6 have been
held to be ineligible for continuing to hold the
promotional post of Clerk to which they were promoted
with effect from 10th December, 1997. Since the orders
passed by respondent Nos.1 and 2, postponing the date of
regularisation of services of the petitioners are
illegal and unsustainable, the consequential orders
12 wp2584-2009+
passed by them demoting petitioner Nos.2 and 6 from the
post of Clerk to the post of Pump Operator, also would
be illegal and unsustainable.
12. In view of the above mentioned facts and
circumstances of the cases, we quash and set aside the
above referred impugned orders passed by respondent
Nos.1 and 2. The date of regularisation of services of
the petitioners would be 16th October, 1986 only, as has
been ordered by the Industrial Court. Since the orders
demoting petitioner Nos.2 and 6 from the post of Clerk
to the post of Pump Operator are quashed and set aside,
they should be restored to the same position/ status
which they were occupying prior to passing of the said
demotion orders by respondent Nos.1 and 2 with
concomitant benefits.
13. The writ petitions are allowed in the above
terms.
14. The Rule is made absolute accordingly.
15. No costs.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
npj/wp2584-2009+
