Bombay High Court
Sk Lumar Sk Dagdubhai And Ors vs The State Of Maharashtra And Ors on 13 November, 2017
Bench: S.P. Deshmukh
1 WP - 8535-2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8535 OF 2011
1. Sk. Umar Sk. Dagdubhai
Age: 57 years Occu: Service,
R/o Near Imam Bawada, Allahu Masjid,
Tattupura, Old Jalna.
2. Sayed Andul Bari Sayed Bashroddin
Age: 59 years Occu: Retired servant,
R/o Dukhi Nagar, Behind Bagwan Masjid,
Old Jalna.
3. Nelsan Mariba Kamble,
Age: 52 years Occu: Service,
R/o. C/o P. No. 2.
4. Rafatbegum Mohd. Isahak
Age: 61 years, Occu:
R/o. C/o P. No. 2.
5. Chagan Rupchand Navmahalkar
Age: 56 years Occu: Service,
R/o. Near Bus Stand,
Near Bablu Chodhari's House, Jalna.
6. Smt. Umadeo Shrotri
Age: 62 years Occu: Retired Employee,
R/o Ramnagar, Aziz Maidan,
Opp. Municipal School, Jalna.
7. Ashok Sanduji Pagare
Age: 52 years, Occu: Service,
R/o. Kanhyyanagar,
Near Ambedkar Statute, Jalna.
8. Smt. Kunda Vijayraj Nayadu
Age: 62 years Occu: Retired,
R/o. Near Main Post Office,
Sadar Bazar, Jalna.
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 00:56:45 :::
2 WP - 8535-2011
9. Suresh Radhakishan Tiwari,
Age: 50 years Occu: Service,
R/o. Badi Sadak, Sadar Bazar,
Jalna.
10. Babukhan Amirkhan
Age: 55 years Occu: Service,
R/o. Ramnagar Colony, Jalna.
11. Rameshchand Chatrubuj Sethi
Age: 55 years, Occu; Service,
R/o. Near Santoshi Mata Mandir,
Sadar Bazar, Jalna.
12. Ramesh Haribhau Shinde
Age: 48 years, Occu: Service,
Near Santoshi Mata Mandir,
Sadar Bazar, Jalna.
13. Smt. Shalini Gangadhar Khandagale
Age: 61 years, Occu: Retired,
R/o. Ramnagar,
Near Z.P. High School, Jalna .. PETITIONERS
Versus
1. The State of Maharashtra,
Secretary, Municipal Administration,
Mantralaya, Mumbai-32.
2. The Director,
Municipal Administration,
Pune.
3. The Divisional Commissioner,
Aurangabad Division, Aurangabad.
4. The Collector, Jalna.
5. The Municipal Council, Jalna.
Through its Chief Officer .. RESPONDENTS
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 00:56:45 :::
3 WP - 8535-2011
...
Mr. S.M. Kulkarni, Advocate for petitioners
Mr. S.N. Morampalle, A.G.P. for respondents no. 1 to 4
Mr. H.K. Munde, Advocate for respondent no. 5
...
CORAM : SUNIL P. DESHMUKH &
SANGITRAO S. PATIL, JJ.
DATE : 13-11-2017
ORAL JUDGMENT (PER - SUNIL P. DESHMUKH, J.) :
1. Indisputable position in the present matter appears that
the petitioners were appointed by Municipal Council, Jalna on
respective posts, referring to that their appointments were initially
for a period of one year and on temporary posts, their appointments
have been on vacant posts and/or on newly created posts pursuant
to communication issued by the State Selection Board dated
21-03-1983.
2. In case of regular appointments, certain procedure, it
appears, had been prevalent. However, over a period of time,
procedure for making regular appointments had not been
undertaken. Situation emerges that the State Selection Board had
subsequently been dissolved.
4 WP - 8535-2011
3. In 1990, the State of Maharashtra had issued resolution
for regularization of appointments made prior to 18-06-1983
referring to certain criteria.
4. It is not the case of respondents, rather it is the case of
petitioners, that, petitioners fulfill criteria referred to under said
resolution. It is emphasized by learned counsel for petitioners that,
there had been a judgment of the High Court, wherein it has been
considered that it would be sufficient, if only one criterion is
satisfied.
5. Although, petitioners were continued in service, however,
approval to their appointments had been pending before various
authorities and had reached respondent no. 1 around 2000.
6. While approving appointments of petitioners, respondent
no. 1 and Director of Municipal Administration, Pune (respondent
no. 2) passed an order that appointments of petitioners have been
made without following due procedure as may be necessary
pursuant to the provisions of Maharashtra Municipal Council, Nagar
Panchayats and Industrial Townships Act, 1965 and in exercise of
power under Sections 76 (2) and 337, purported to regularize the
5 WP - 8535-2011
services as a one time measure subject to the conditions
enumerated therein, inter alia, condition no. 2, reading thus,
" (२) सदर कमर चाऱयाची पथम ५ वषारची सेवा कोणतयाही सेवािवषयक महणजे
सेवाजेषता, वेतनवाढ, पदोनतीसाठी गाह धरता येणार नाही (िनवृतीवेतन
वगळू न)"
7. It appears that various representations were made and
particularly by Municipal Council Employees' Union of Jalna against
aforesaid order for relaxing condition of five years service for
regularization referred to in condition no. 2, to two years service.
8. In response to representations, order dated 07-07-2007
came to be passed and request of petitioners to relax condition no. 2
of five years service to two years service, had been rejected. It is
against said order, petitioners are before this Court.
9. Learned Counsel for the petitioners Mr. S.M. Kulkarni
contends that position clearly emerges that, appointment of the
petitioners had been pursuant to the permission given to the
Municipal Council. Petitioners have been qualified and satisfy all
other criteria save their applications and candidature being
processed through the recruitment process of State Selection Board.
Further, recruitment process could not be undertaken by State
Selection Board and said Board, subsequently had been abolished.
6 WP - 8535-2011
10. He further points out that the State had issued a
resolution regularising services of persons employed before
18-6-1983. Said resolution applies and wholly covers petitioners'
case. Petitioners satisfy criteria therein. Petitioners, as such, are
entitled to approval of their service without any condition. He
submits that impugned order is capricious and discriminatory.
11. Learned Assistant Government Pleader for respondents
no. 1 to 4 Mr. S.N. Morampalle has referred to affidavit-in-reply,
pointing out that appointments being made were without approval of
the Directorate of Municipal Administration pursuant to Section 76(2)
and 337 of the Maharashtra Municipal Council, Nagar Panchayats and
Industrial Townships Act, 1965. They were not appointed by
following due selection procedure. Reply further refers to earlier
decision taken in 2000 about absorption of daily wagers working
prior to 10-03-1993 in Municipal Council on humanitarian grounds
and under certain conditions. Therefore, under the policy, five years
tenure of service from the date of their absorption would not be
considered for seniority, promotion, increment and other service
benefits and the petitioners cannot blame the respondents saying
that said order is prejudicial, as the order, in-fact, regularizes the
services of petitioners subject to certain conditions. He, therefore,
purports to justify the order.
7 WP - 8535-2011
12. Learned counsel Mr. H.K. Munde, appearing for
respondent no. 5 purports to support the impugned order and the
stand taken by the State.
13. Although, learned counsel for respondents purport to
justify the impugned order, replies filed by said respondents and
even the submissions fall way too short to explain as to why the
Government Resolution dated 05-02-1990 issued pursuant to High
Court's decision in Writ Petition no. 3685 of 1984 has not been taken
into account at all, which has been specifically made applicable to
the appointments made before 18-06-1983. It is further not their
case that the criteria, as referred to thereunder is not satisfied by
the petitioners.
14. Petitioners have referred to that while they were
appointed in 1983, their ages and other qualifications were in
accordance with the prevailing recruitment rules. Further, their
appointments have been made on recommendation from
Employment Exchange. It further appears that respondents have
not been able to meet with the submission of the petitioners that
under High Court's order, it has been considered that fulfillment of
even one of the criteria would be sufficient for regularization of their
8 WP - 8535-2011
services pursuant to the Government Resolution dated 05-02-1990,
referred to hereinabove.
15. State Government on 15-02-1990 had resolved to
regularize the services of petitioners who were employed purportedly
without following regular process of selection prescribing certain
criteria therefor. While the petitioners fulfilled all the requisite
criteria, order/decision being taken amounts to second round
decision being taken where a formal endorsement of regularization
had been required, but making regularization subject to condition
thereunder, has been an exercise of power which is colourable one,
particularly while the Government decision had been taken
embracing the cases of similarly situated persons, singling out the
petitioners of the Municipal Council, Jalna, under impugned order is
discriminatory.
16. Perusal of impugned orders does not depict that said
Government Resolution had ever been taken into account. The
order appears to have been passed without taking into account the
Government Resolution specifically taking under its focus
appointments by the Municipal Council prior to 18-06-1983.
17. In the circumstances, it would be expedient to allow
Writ Petition in view of Government Resolution dated 05-02-1990.
9 WP - 8535-2011
18. Writ Petition, as such is allowed in terms of prayer clause
(A) and (B) and is disposed of.
19. Rule is accordingly made absolute.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
arp/
