Bombay High Court
Shri. Vikar Ansar Shaikh And Ors vs The State Of Maharashtra, Through ... on 13 November, 2017
Bench: S.C. Dharmadhikari
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10471 of 2014.
1) Shri Vikar Ansar Shaikh
aged 55 years, occupation
service (under suspension)
R/o Nishigandha Apartment,
Flat No.2, Bhabha Nagar,
Kauth Ghat, Nashik.
2) Shri Chandrkant Hiraman
Lodhe,
age 60 years, Occupation
retired, r/o Mayuresh
Apartment, Row House No.2,
Opp. Mahila Bank, Indira
Nagar,
Nashik.
3) Shri Suryabhan Chindhu
Abhang,
age 58 years, Occupation
retired, r/o Room No.139,
Bhor Township, Jadhav
Sankul, Ambad Link Road,
Nasik.
4) Shri Tatya Rama Wagh,
Aged 56 years, Occupation
Service, R/o N-32, N-5, 17/1
Swami Vivekanand Nagar,
1/21
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New CIDCO, Nashik-9.
5) Shri Raghunath Motiram
Choudhari, age 46 years,
Occupation Service, M-53,
VG-24/7, Patil Nagar, NEW
CIDCO, Nasik.
6) Shri Ashok Gangaram
Lokhande,
age 53 years, Occupation
Service, R/o N-41, AF2, 15/5
Sai Baba Nagar, New CIDCO,
Nasik.
7) Shri Ramesh Sitaram
Bhalerao,
age 52 years, Occupation
service, r/o N-42, CB-3, 11/1,
Datta Mandir, New CIDCO,
Nasik.
8) Shri Chintaman Parbhat
Patil
aged 56 years, Occupation
service, N-32, R-4, 7/3 Baji
Prabhu Chowk, New CIDCO,
Nasik.
9) Shri Ramrao Baburao
Bhadane,
age 55 years, Occupation
Service, R/o Rohan, P.O.
Jabapur, Taluka Sakri,
2/21
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District Dhule.
10) Shri Raju Jagannath
Somwanshi, aged 53 years,
Occupation Service, R/o A/P.
Dusane, Taluka Sakri,
District Dhule.
11) Shri Pandharinath Sonu
Malpure, aged 58 years,
Occupation Service, R/o N-
42, JC-2, 12/3 Raigad
Chowk, Pawan Nagar, Nasik.
12) Shri Suresh Nimba
Deshmukh,
aged 50 years, Occupation
Service, C/o Zilla Parishad,
Kolhapur.
13) Shri Narayan Shivram PETITIONERS
Deore,
aged 56 years, Occupation
Service, C/o Zilla Parishad,
Kolhapur.
VERSUS
1) The State of Maharashtra
Through: the Secretary,
Planning Department,
Mantralaya, Mumbai 400 RESPONDENTS
032.
3/21
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2) The Secretary,
Public Works Department,
Government of Maharashtra,
Mantralaya, Mumbai 400
032.
Mr. Narendra V. Bandiwadekar for the Petitioners.
Mr. Prashant P. More, Asstt.Govt. Pleader Writ Cell R.No.1 and 2
for the Respondents.
CORAM : S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
RESERVED ON:- 30 th October, 2017.
PRONOUNCED ON:- 13 th November, 2017.
JUDGMENT (PER: SMT. BHARATI, H. DANGRE,J)
1 The petitioners have invoked the jurisdiction of this
Court under Article 226 of the Constitution of India seeking
directions to the respondents to take into consideration the
services rendered by them as Muster Assistants and by taking
into account said service confer retirement benefits upon them
by counting total length of service. The petitioners are
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aggrieved by a Circular issued by the Planning Department of
State of Maharashtra, thereby clarifying that the service
rendered by the Mustering Assistants is not entitled to be
counted as pensionable service for conferring the pensionery
benefits.
2 The service graph of Muster Assistants in the State of
Maharashtra has a chequered history. The Muster Assistants
were recruited in the Irrigation Department / Public Works
Department of the State and these appointments were made on
Employment Guarantee Scheme (EGS) and continued for a
considerable long period of time. On recruitment, the Muster
Assistants were paid consolidated salary of Rs.500/- per month
in terms of Government Resolution dated 25th April, 1989 issued
by the Department of Planning, State of Maharashtra. Some of
the Muster Assistants approached Nagpur Bench of this Court
by filing proceedings demanding salary in the regular Pay Scales
instead of the consolidated pay. The said petition was
transferred to the Maharashtra Administrative Tribunal (MAT)
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on its constitution and the Tribunal on 24th September, 1991
issued interim directions directing the State Government to pay
salary to the Muster Assistants in the pay scale of Rs.750-12-
870-EB-14-940 with effect from 1/10/1991 subject to final
outcome of the proceedings. To implement the interim order the
State Government issued a resolution on 6th May, 1992 and
placed the Muster Assistants in the pay scale of Rs.750-940 with
effect from 1/10/1991. The Tribunal finally allowed the Original
Application and directed conferment of the said pay scales with
effect from 1/10/1988 and in compliance, the State Government
issued a resolution on 22nd February, 1993, thereby conferring
pay scale of Rs.750-940 to the Muster Assistants with
retrospective effect from 1st October, 1988. The State
Government also directed payment of Dearness Allowances to
them and all the Muster Assistants in the State of Maharashtra
were paid the differential amount.
3 Several writ petitions came to be filed in this Court
and before its Benches by which the Muster Assistants sought
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regularization and claimed that they are entitled for absorption
in Government service. In view of the fact that the services of
the Muster Assistants were no longer required, the State
Government took a policy decision to put an end to their services
by offering them Rs. 1000/- salary and on payment of exgratia
amount and by issuing resolution on 26 th May, 1993. However,
the same was subject matter of challenge in a petition before the
Principal Seat at Mumbai, Aurangabad Bench and before the
Maharashtra Administrative Tribunal, the Tribunal by its order
dated 15th September, 1993 by way of interim directions
directed that in cases where the work under Employment
Guarantee Scheme had come to an end and the Muster
Assistants had become excess till that time when the work is
made available to them, the State Government is at liberty to
end their services. However, being aggrieved the Muster
Assistants approached the Hon'ble Apex Court by filing Special
Leave Petition. The Apex Court approved the decision, however,
directed that while putting an end to the services of Muster
Assistants the rule of seniority should be followed. However, the
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State Government sympathetically considered the issue of
absorption of Muster Assistants taking into consideration the
drastic effect of putting an end to the services of Muster
Assistants who had rendered long services as such and
therefore the State Government came up with a Government
Resolution on 1st December,1995 resolving that those Muster
Assistants who were working on 31st May, 1993 should be
absorbed in various equivalent posts in various Departments of
the State Government and till the time of their absorption their
services would be utilized for various projects including water
conservation, horticulture programme under the EGS Scheme.
By the said Government Resolution, it was directed that those
Muster Assistants who were working as on 31 st May, 1993 based
on their seniority would be absorbed in Government/Zilla
Parishad Services on the posts equivalent and bearing the pay
scale of Rs.750-940 subject to satisfying of the eligibility criteria
for the said posts. For the purposes of effective absorption into
Government services, the criteria for age limit was relaxed. The
said Scheme contained in the Government Resolution was
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approved by the Hon'ble Apex Court by its order dated 2 nd
December, 1996 and directed that those employees who fall
within the parameters of the scheme should be similarly treated
so that the possibilities of the individuals coming for redressal
under the scheme may not arise as they would only create
litigation. After the orders of the Hon'ble Apex Court, the State
Government implemented the Scheme to absorb such Muster
Assistants, throughout the State and even issued a resolution on
21st April, 1999 providing that such absorption can also be made
in Group "C" post if the Muster Assistants possess the requisite
educational qualification prescribed for said post. The
Government Resolution further directed that the Muster
Assistants would be entitled for house rent allowance and
annual increments as per the prevailing orders.
4 In the light of the decision rendered by the Tribunal,
the Hon'ble High Court as well as the Government Resolutions
issued from time to time implementing the said decision, the
Muster Assistants in the State came to be absorbed in
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Government/Zilla Parishad and the petitioners before us who
were also appointed Muster Assistants were absorbed on various
dates in various posts in Zilla Parishad or State Government.
From the date of their absorption they were treated as
Government servants.
5 The grievance of the petitioners is that though the
decision was taken by the Government to absorb the Muster
Assistants, no decision was taken on the issue whether the
period of service rendered by them as Muster Assistants should
be counted for retirement benefits or not. According to the
petitioners, there was no uniformity in the decision of the State
Government in reference to counting of service rendered as
Muster Assistants prior to absorption in Government service
and for the purposes of grant of pension and other retirement
benefits.
6 Perusal of the petition reveals that on 15th April, 2009
the State Government through the Planning Department issued
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a Circular taking note of the fact that in spite of the Government
Resolution dated 1st December, 1995 some Muster Assistants
have been conferred the benefit of counting the said service
rendered as Muster Assistants as qualifying service for granting
the pensionery benefits. The circular clarifies that the service
rendered by the Muster Assistants as such is not pensionable
service. The said circular was issued in the name of the
Governor of State of Maharashtra.
7 In the present writ petition, the petitioners have
chosen not to pose a challenge to the said Circular but prayer is
made for directions to the respondents to take into
consideration the service rendered by them as Muster
Assistants before their absorption into Government service/Zilla
Parishad and to confer the pensionery benefits on them by
counting the entire service rendered by them. According to the
petitioners, the service rendered by them as Muster Assistants
is ranging from 14 to 22 years and if the said service is not
counted, some of the Muster Assistants are not even eligible for
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pension at all since they did not have the minimum qualifying
service and some of them are entitled for very less pension by
taking into consideration the pensionable service reckoned from
the date of their absorption. The petitioners claim that circular
issued by the State Government on 15th April, 2009 causes grave
injustice to them and they approached this Court for redressal of
their grievance.
8 We have heard learned Counsel Shri Narendra
Bandiwadekar appearing for the petitioners who canvassed
before us that the chart annexed with the petition reflects that
the petitioners have rendered long length of service as Muster
Assistants before their absorption and for example petitioner
no.2 has rendered 21 years of service as muster assistant.
However, on the date of his absorption from 2 nd October, 2003,
till his retirement the service rendered by him is only nine years
and since petitioner No.2 did not have ten years service to his
credit he is not entitled for pension. The learned Counsel for the
petitioners would argue that the State Government has taken a
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conscious decision to absorb the petitioners into Government
service and once if decided to absorb them into Government
service, the State Government cannot deny the service rendered
by them as Muster Assistants which was also with the State
Government and in a regular pay scale. As against the
submissions of the Counsel for the petitioner, Shri Prashant
More, learned AGP appearing on behalf of the State Government
denies the claim of the petitioners by referring to the affidavit
filed on behalf of Respondent No.1. The learned AGP relying
upon the said affidavit would argue that the State Government
had constituted a Committee under Chairmanship of Divisional
Commissioner in each Division to effectively absorb the Muster
Assistants from seniority list prepared by the Collector taking
review of the vacancies in the District or Division and the
Government had seriously implemented the decision of
absorption. The affidavit also states that the Government have
gone to the extent of creating supernumerary posts in the
parent department to absorb the Muster Assistants. However, it
is the contention of the State Government that the pay scale of
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Rs.750-940 given to the Muster Assistants is not as per the
Maharashtra Civil Service (Pay) Rules but it is conferred on
them in view of the directions issued by the MAT. Our attention
is also invited to Schedule "A" of the said Government Resolution
where it is clearly stated that the MCSR are not applicable to the
Muster Assistants. It is also the stand of the State Government
that the service rendered on the EGS work cannot in any way be
treated as regular and continuous service and the Muster
Assistants cannot be treated as Government servants. The
respondents also placed reliance on the judgment of this Court
delivered by Aurangabad Bench on 16th July, 2007 and submits
that the said issue has already been decided by the Division
Bench of this Court and prays for dismissal of the writ petition.
9 We have perused the entire gamut of the matter and
the undisputed facts involved. It is not in dispute that the State
Government resolved to absorb the Muster Assistants into
Government service and formulated a scheme for absorption of
such Muster Assistants who were in service on 31 st May, 1993
by issuing Government resolution on 1st December, 1995. By
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the said Government Resolution the State Government framed a
Scheme for absorption of such Muster Assistants and also
constituted a Divisional Level Committees for effectively
implementing the decision of the State Government. Perusal of
the said Government Resolution reveals that it contained clause
5.2 which reads as follows :-
"The Muster Assistants will not be
entitled for any benefits or facilities
applicable to a Government servant except
the pay scale which they are presently
drawing and they will not be recognized as
Government employees."
Further the Government Resolution dated 21st April, 1999
in clause no.5 provides as follows :-
"The Muster Assistants working under
the EGS Scheme are not Government
Employees and therefore the Maharashtra
Service Rules as well as the Rules
applicable to the State Government
employees are not applicable to them.
Therefore, the benefits of 5th Pay
Commission will not be made applicable to
them."
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10 Perusal of the Government resolutions which contain
the scheme of absorption of Muster Assistants into Government
service clearly stipulates the absorption of Muster Assistants on
the posts equivalent in the pay scale of Rs.750-940 in the State
Government or Zilla Parishad and on absorption they were held
entitled for house rent allowance and other allowances with
effect from 1st April, 1999. The absorption of the Muster
Assistants was however subject to the rider that Muster
Assistants working under the EGS are not Government servants
and Maharashtra Civil Services Rules are not applicable to
them.
The claim of the petitioners is to count the service
rendered by them as Muster Assistants and attaching the said
service to the service rendered by them as Government servant
on absorption and calculate the pensionery benefits by taking
into consideration the entire length of service as qualifying
service. We find said argument to be misconceived for more
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than one reason. The Government Resolution which provides
for absorption of Muster Assistants dated 1st December, 1995
and further Government Resolution dated 21 st April, 1999
clearly spelt out that the Muster Assistants are not Government
servants. The Maharashtra Civil Services (Conduct) Rules
defines "Government servant" to mean;
Rule 2 (b) : "Government servant"
means any person appointed to any civil
service or post in connection with the affairs
of the State of Maharashtra and includes a
Government servant whose services are
placed at the disposal of a company,
corporation, organisation, local authority or
any other Government, notwithstanding that
his salary is drawn from sources other than
from the consolidated Fund of the State;
The service conditions of Government servant are
governed by the Rules framed in exercise of powers conferred by
proviso to Article 309 of the Constitution of India and for the
purposes of conferring the pensionery benefits, the Maharashtra
Civil Services Pension Rules 1982 were made applicable. Rule 2
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of the said Rules of 1982 provides for extent of application of the
said Rules, we gainfully reproduce the said Rule 2 as below:
2. Extent of application :
Except where it is otherwise expressed or implied,
these rules apply to all members of services and holders of posts
whose conditions of service the Government of Maharashtra are
competent to prescribe. They shall also apply to :
"(a) any person for whose appointment and
conditions of employment special provision is
made by or under any law for the time being in
force.
(b) any person in respect of whose service, pay
and allowances and pension or any of them
special provision has been made by an
agreement made with him, in respect of any
matter not covered by the provisions of such law
or agreement, and
(c) Government servants paid from Local Funds
administered by Government, except rules
relating to the foreign service."
Rule 9 of the said Rules of 1982 defines certain terms
and the definition of the term "pensionable pay" and
"pensionable service" requires a reference here. Rule 9 (38)
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defines "pensionable pay". "Pensionable Pay" means the average
pay earned by a Government servant during the last one
month's service. Rule 2 (39) defines "pensionable service"
"Pensionable Service" means service which qualifies the
Government servant performing it to receive a pension from the
Consolidated Fund.
Perusal of the provisions contained in Chapter V of
the said Rules of 1982 which provides for "qualifying service"
and contains detail provision for commencement of qualifying
service and for counting of various parts of Government service
for pensionery benefits makes it aptly clear that the said rules
are applicable to a "Government servant" who substantially
holds a permanent post as a Government servant. The term
"Government Service" has a definite connotation and meaning
and the petitioners / Muster Assistants cannot claim to be
"Government servants" in view of the fact that they were not
appointed to any civil service or post in connection with the
affairs of the State of Maharashtra. At the time of their
absorption into the Government service, it was made clear that
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the posts held by them as Muster Assistants was not a
Government post and the service rendered by the petitioners
are therefore not Government service which would not make the
said service to be counted as the Government service. The
Maharashtra Civil Services (Pension) Rules therefore cannot be
made applicable to the petitioners and they cannot derive
benefit of the said Rules when they were not Government
servants and from the day the Muster Assistants became
Government servant the pension rules are made applicable to
them.
In arriving at the aforesaid conclusion, we are
fortified by judgment delivered by this Court, Bench at
Aurangabad in Writ Petition No. 619 of 2006 in case of Shivhar
& Anr Vs. State of Maharashtra (Coram: Naresh H. Patil and
R.M.Borde, JJ) on 16th July, 2007 wherein similar issue arose
and the petitioners before the Court who were working as
Muster Assistants sought a declaration that they are eligible and
entitled for pensionery benefits in view of provisions of Rule 33
of MCSR (Pension) Rules, 1982 from the respective dates of
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their retirement. After exhaustively dealing with Rule 33 of
Pension Rules, the Division Bench held that in view of the
Government Resolution dated 21st April, 1999; wherein the
stand was taken to the effect that service conditions applicable
to Government employees would not be applicable to the Muster
Assistants who are absorbed in regular service, the Court did not
find any flaw in the policy adopted by the State Government and
had dismissed the petition.
For the aforesaid reasons, we are disinclined to confer
any benefit on the petitioners as claimed by them in the present
writ petition and we are of the firm opinion that the writ petition
deserves dismissal. Hence, the writ petition is dismissed. No
order as to costs.
[SMT.BHARATI H. DANGRE,J.] [S.C. DHARMADHIKARI, J.]
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