Bombay High Court
Sunil Vishwasarao Kulkarni vs State Of Maha & Ors on 15 November, 2017
Bench: S.P. Deshmukh
1 WP-2657-03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2657 OF 2003
Sunil s/o Vishwasrao Kulkarni,
Age 37 years, Occup. Service,
R/o Kannad, Tq. Kannad,
Dist. Aurangabad .. Petitioner
versus
1. The State of Maharashtra,
2. The Chief Executive Officer,
Zilla Parishad, Aurangabad
3. The Executive Engineer, (W.S.S.),
Zilla Parishad, Aurangabad .. Respondents
----
Mr. D. S. Kulkarni, Advocate for petitioner
Mr. S. K. Tambe, Asstt. Government Pleader for respondent no. 1
CORAM : SUNIL P. DESHMUKH &
SANGITRAO S. PATIL, JJ.
DATE : 15-11-2017
ORAL JUDGMENT (PER : SUNIL P. DESHMUKH, J.)
1. The petitioner is before this court, aggrieved by
communication dated 23-01-2003 by respondent no. 2 - Chief
Executive Officer, Zilla Parishad, Aurangabad whereunder, it is
purportedly declared that since the petitioner had been working as
unskilled daily rated employee in Water Supply Division, Gangapur
since 01-09-1997 and as such, he would be eligible for payment
accordingly. He would, thus, be not entitled to amount of
Rs.36,558/- paid to him pursuant to communication by the Deputy
2 WP-2657-03
Engineer, Water Supply Division, Gangapur, bearing no. 10/2000
and said amount be recovered from him.
2. Learned counsel appearing on behalf of the petitioner
Mr. D. S. Kulkarni refers to a decision dated September 6, 2005 in
writ petition no. 354 OF 1993. The Division Bench had directed
inclusion of petitioner's name in the seniority list of the Muster
Assistants, declaring that petitioner would be entitled to be
granted all the benefits of scheme framed for Muster Assistants. A
photocopy of decision of high court dated 06-09-2005 in writ
petition no. 354 of 1993 is tendered across which is marked 'X' for
identification.
3. Learned Assistant Government Pleader appearing on behalf
of respondents no. 1 refers to the affidavit in reply filed on behalf of
respondents no. 2 and 3 and purports to support the order.
4. Perusal of said affidavit in reply shows that the same had
been submitted on 10-11-1993. Said affidavit makes reference to
pendency of writ petition no. 354 of 1993 for inclusion of
petitioner's name in seniority list of Muster Assistants.
5. It appears, the petitioner herein although had been appointed
as Muster Assistant in 1986, there had been interlude in treating
him as Muster Assistant claiming that petitioner had been working
as daily rated employee from 1989, and as such, writ petition no.
3 WP-2657-03
354 of 1993 had been moved by him before this court. During
pendency of said writ petition, impugned order came to be passed.
6. It appears that impugned order has been passed pursuant to
directions to decide the representation of the petitioner in writ
petition no. 3577 of 2001. However, having regard to the order
passed on September 6, 2005 in writ petition no. 354 of 1993, the
amount which is sought to be recovered from petitioner treating
him as a daily wager loses its efficacy and validity. Further, it does
not appear that the decision of this court in writ petition no. 354 of
1993 had been taken exception to before any higher court.
7. In the circumstances, present petition will have to be
considered and given treatment pursuant to the order in writ
petition no. 354 of 1993 referred to earlier. To this, there is no
counter submission on behalf of the respondents.
8. We, therefore, deem it appropriate to allow the writ petition.
Writ petition thus, is allowed in terms of prayer clause (B) and is
disposed of.
9. Rule made absolute accordingly.
SANGITRAO S. PATIL SUNIL P. DESHMUKH
JUDGE JUDGE
pnd
