Bombay High Court
State Of Maha . Thru. Secty. And 2 ... vs Kisan Faguji Bhilkar on 14 September, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.823/2007
with
Writ Petition No.824/2007
with
Writ Petition No.860/2007
with
Writ Petition No.924/2007
with
Writ Petition No.819/2007
with
Writ Petition No.825/2007
with
Writ Petition No.826/2007
with
Writ Petition No.884/2007
with
Writ Petition No.922/2007
with
Writ Petition No.942/2007
with
Writ Petition No.925/2007
with
Writ Petition No.945/2007
with
Writ Petition No.944/2007
with
Writ Petition No.943/2007
with
Writ Petition No.946/2007
with
Writ Petition No.947/2007
with
Writ Petition No.948/2007
with
Writ Petition No.949/2007
with
Writ Petition No.965/2007
with
Writ Petition No.5491/2009
...
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Writ Petition No.823/2007
1. The State of Maharashtra,
through its Secretary,
Woman and Child Development,
Mantralaya, Mumbai.
2. The Commissioner, Woman and
Child Development, Pune.
3. The District Woman and Child
Development Officer, Wardha.
4. Maharashtra State Probation
and After Care Association,
1105, Ravivir Peth, Mukund
Bhawan, Pune- 02.
5. The Superintendent,
Government Observation Home,
Wardha. .. PETITIONERS
.. Versus ..
1. Shriram Sonba Bharne,
aged 52 years, Occ: Service,
2. Madhukar Sadashiv Kitkule,
aged 48 years, Occ: Service,
Both residents of
C.P. Remand Hone,
Wardha, District Wardha .. RESPONDENTS
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondents .
....
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Writ Petition No.824/2007
1. State of Maharashtra,
Department of
Woman and Child Welfare,
Mantralaya, Mumbai-32.
2. Deputy Director (Child Welfare),
Woman and Child Welfare,
Maharashtra Sate,
Pune-1.
5. Superintendent,
Government Observation Home,
Wardha. .. PETITIONERS
.. Versus ..
Vasant Raghobaji Kopre,
Aged 60, R/o Kalkar Wadi,
Ward No.3, Arvi Road, Wardha,
Dist. Wardha. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.860/2007
1. The State of Maharashtra,
through its Secretary,
Woman and Child Development,
Mantralaya, Mumbai.
2. The Commissioner, Woman and
Child Development, Pune.
3. The District Woman and Child
Development Officer, Yavatmal.
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4. Maharashtra State Probation
and After Care Association,
1105, Ravivir Peth, Mukund
Bhawan, Pune- 02.
5. The Superintendent,
Government Observation Home,
Yavatmal. .. PETITIONERS
.. Versus ..
1. Madhav Istari Gopatwar,
Aged about 49 years,
2. Vilas Amrutrao Yende, (Dead)
Legal Representatives of R.No.2.
(i) Smt. Manda Vilasrao Yende,
Aged 60 years,
Occupation: Housewife,
(ii) Dinesh Vilasrao Yende,
Aged 38 years,
Occupation: Business,
(iii)Om Vilasrao Yende,
Aged 36 years,
Occupation : Business,
Nos. 2(i) to 2(iii) residents of
Shivaji Nagar, Yavatmal.
3. Ramesh Dnyaneshwar Thakre,
Agd about 51,
All R/o Remand Home,
Yavatmal, Distt. Yavatmal. .. RESPONDENTS
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondents .
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....
Writ Petition No.924/2007
1. State of Maharashtra,
through its Secretary,
Woman and Child Development,
Mantralaya, Mumbai-32.
2. Director of Women and
Children Development,
Maharashtra State, Pune-1.
3. District Woman and Child
Development Officer, Bhandara. .. PETITIONERS
.. Versus ..
Kisan Faguji Bhilkar,
Observation Home,
Vidhyanagar, Bhandara. .. RESPONDENTS
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondents .
....
Writ Petition No.819/2007
1. State of Maharashtra,
through its Secretary,
Social Welfare, Cultural Affairs,
Sports & Tourism Development,
Mantralaya, Mumbai.
2. Director, Woman and Children
and Handicapped Development,
Maharashtra State, Pune.
3. Divisional Social Welfare Officer,
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Nagpur Division, Nagpur.
4. Secretary, Department of Women,
Child and Physically Handicapped
Development, Mantralaya,
Bombay -32. .. PETITIONERS
.. Versus ..
1. Awadhoot Daulat Mange,
Aged about 38 years,
Jr. Clerk,
2. Ku. Vimal Satyawan Khandekar,
Aged about 37 years,
Literacy Teacher,
3. Rambhau Maroti Borikar, (Dead)
Legal Representatives of R.No.3.
(i) Smt. Bebi Rambhau Borikar,
aged 66 years,
R/o Near Gajanan Temple,
Bapat Nagar, Chandrapur.
(ii) Kamlakar Rambhau Borikar,
Aged 33 years,
R/o Near Gajanan Temple,
Bapat Nagar, Chandrapur.
(iii) Sau. Chhaya Kayarkar,
aged 42 years,
At Po. Warora, Tah. Warora,
District : Chandrapur.
(iv) Sau. Jaya Amdruskar,
Aged 40 years,
At Po. Nagbhid, Tah. Nagbhid,
District Chandrapur.
(v) Sau. Rajni Pimpalkar,
Aged 38 years,
At Po. Aheri, Dist. Gadchiroli.
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(vi) Sau. Kavita Shamrao Rakhunde,
Aged 36 years,
At Po. Nandgaon, Tahsil and
Dist. Chandrapur.
(vii) Sau. Vanita Vevek Pimpalkar,
Aged 34 years,
At Po. Tah. Bhadrawati,
District Chandrapur.
4. Namdeo Govinda Wasnik (Dead)
Legal Representatives of R-4.
4A. Smt. Nanda wd/o Namdeorao
Wasnik, Aged about 58 years,
Wife,
4B. Manoj s/o Namdeorao Wasnik,
Aged about 39 years, Son,
4C. Ku. Mamta d/o Namdeorao
Wasnik, Aged about 30 years,
Daughter.
4D. Ku. Madhuri d/o Namdeorao
Wasnik, Aged about 26 years,
Daughter.
Respondent Nos. 4A to 4D
R/o Old Remand Home,
Near Government Milk
Scheme, Jal Nagar, Ward No.13,
Chandrapur.
4E. Sau. Manisha w/o Hemendra
Borkar, Aged about 32 years,
Daughter,
R/o Ashtavinayak
Apartment, "A" Wing, Rom No.111,
Near Government Milk Scheme,
Jal Nagar, Ward No.13,
Chandrapur.
5. Shivdas Baharuji Datar,
Aged about 43 years, Cook.
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6. Sheshrao Pandurang Khare,
Aged about 47 years,
Superintendent/Probation Officer,
Observation Home, Bhandara.
All C/o Govt. Observation Home,
Chandrapur Dist. Chandrapur. .. RESPONDENTS
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondents .
....
Writ Petition No.825/2007
1. The State of Maharashtra,
through its Secretary,
Woman and Child Development,
Mantralaya, Mumbai.
2. The Commissioner, Woman and
Child Development, Pune.
3. The District Woman and Child
Development Officer, Chandrapur.
4. Maharashtra State Probation
and After Care Association,
1105, Ravivir Peth, Mukund
Bhawan, Pune- 02.
5. The Superintendent,
Government Observation Home,
Wardha. .. PETITIONERS
.. Versus ..
1. Sau. Vimal Sidhdarth Gedam,
Aged about 48 years,
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2. Awadhoot Daulatrao Mange,
Aged about 46 years,
3. Rambhau Maroti Borikar,
Legal Representatives of R.No.3.
(i) Smt. Bebi Rambhau Borikar,
aged 66 years,
R/o Near Gajanan Temple,
Bapat Nagar, Chandrapur.
(ii) Kamlakar Rambhau Borikar,
Aged 33 years,
R/o Near Gajanan Temple,
Bapat Nagar, Chandrapur.
(iii) Sau. Chhaya Kayarkar,
aged 42 years,
At Po. Warora, Tah. Warora,
District : Chandrapur.
(iv) Sau. Jaya Amdruskar,
Aged 40 years,
At Po. Nagbhid, Tah. Nagbhid,
District Chandrapur.
(v) Sau. Rajni Pimpalkar,
Aged 38 years,
At Po. Aheri, Dist. Gadchiroli.
(vi) Sau. Kavita Shamrao Rakhunde,
Aged 36 years,
At Po. Nandgaon, Tahsil and
Dist. Chandrapur.
(vii) Sau. Vanita Vevek Pimpalkar,
Aged 34 years,
At Po. Tah. Bhadrawati,
District Chandrapur.
4. Shivdas Baharu Datar,
Aged about 44 years,
All R/o C/o Remand Home,
Chandrapur, Dist. Chandrapur. .. RESPONDENTS
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Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondents .
....
Writ Petition No.826/2007
1. The State of Maharashtra,
through its Secretary,
Social Welfare, Cultural Affairs,
Sports & Tourism Development,
Mantralaya, Mumbai.
2. The Director, Woman and Children
Welfare, Maharashtra State, Pune.
3. Maharashtra State Probation and
After Care Association, 1105,
Ravivar Peth, Mukund Bhawan,
Pune -02.
4. District Social Welfare Officer,
Chandrapur, Tahsil and District
Chandrapur.
5. The Superintendent, Observation
Home, Chandrapur.
6. The District Woman and Child
Development Officer, Chandrapur. .. PETITIONERS
.. Versus ..
Eknath Balaji Patre, (Dead)
Legal Representatives of Respondent
(I) Smt. Kusum Eknath Patre,
Aged 65 yeas,
R/o Near Government Milk Dairy,
Jal Nagar, Chandrapur.
(ii) Sanjay Eknath Patre,
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Aged 45 years,
R/o Near Government Milk Dairy,
Jal Nagar, Chandrapur.
(iii) Sau. Shila Vijay Hastak,
Aged 52 years,
R/o At Po. Kagaj Nagar,
District: Karim Nagar,
(Andra Pradesh),
(iv) Sau. Manda Vilas Thete,
Aged 50 years,
At Po. Mukti Colony,
Tah. & District Chandrapur. .. RESPONDENTS
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.884/2007
1. The State of Maharashtra,
through its Secretary,
Department of Woman and
Child Development,
Mantralaya, Mumbai -32.
2. Director of Women and
Children Development,
Maharashtra State,
Pune-1.
3. District Woman and Child
Development Officer,
Bhandara. .. PETITIONERS
.. Versus ..
Bhagwat Ratiram Shende,
Observation Home, Bhandara. .. RESPONDENT
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Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.922/2007
1. The State of Maharashtra,
through its Secretary,
Department of Woman and
Child Development,
Mantralaya, Mumbai-32.
2. Commissioner, Women and
Child Development,
Maharashtra State, Pune-1.
3. Divisional Woman and Child
Development Officer, Nagpur. .. PETITIONERS
.. Versus ..
Changdeo Rajaram Gaikwad,
Aged 53, R/o Observation Home,
Bhandara, Dist. Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.942/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. The Commissioner, Women and
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Child Development,
Maharashtra State, Pune-1.
3. Divisional Woman and Child
Development Officer, Nagpur... PETITIONERS
.. Versus ..
Sheshrao Pandurang Khare,
Aged about ___ ,
R/o Remand Hone, Bhandara,
Dist. Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.925/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Commissioner, Women and
Child Development,
Maharashtra State, Pune1.
3. Divisional Woman and Child
Development Officer, Nagpur. .. PETITIONERS
.. Versus ..
Anandrao Pandurang Bagade,
Aged about ___
R/o Remand Home,
Bhandara, Dist. Bhandara. .. RESPONDENT
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Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
.......
Writ Petition No.945/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Commissioner, Women and
Child Development,
Maharashtra State, Pune-1.
3. Divisional Woman and Child
Development Officer, Nagpur... PETITIONERS
.. Versus ..
Shamrao Tukaramji Bhongade,
Observation Home, Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.944/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Director of Women and
Children Development,
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Maharashtra State,
Pune-1.
3. District Woman and Child
Development Officer,
Bhandara. ... PETITIONERS
.. Versus ..
Pandurang Ramaji Khare,
Observation Home, Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.943/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Commissioner, Women and
Child Development,
Maharashtra State, Pune-1.
3. Divisional Woman and Child
Development Officer, Nagpur... PETITIONERS
.. Versus ..
Bhagwat Ratiram Shende,
Aged 46,
Government Observation Home,
Bhandara, Tah. Dist. Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
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Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.946/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Commissioner, Women and
Child Development,
Maharashtra State, Pune-1.
3. Divisional Woman and Child
Development Officer, Nagpur... PETITIONERS
.. Versus ..
Kisan Faguji Bhilkar,
aged about ---,
R/o Remand Home, Bhandara,
District Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.947/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Director of Women and
Children Development,
Maharashtra State,
Pune-1.
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3. District Woman and Child
Development Officer,
Bhandara. ... PETITIONERS
.. Versus ..
Shamrao Tukaram Bhongade,
R/o Observation Home,
Bhandara, District Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.948/2007
1. State of Maharashtra,
through its Secretary,
Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Director of Women and
Children Development,
Maharashtra State,
Pune-1.
3. District Woman and Child
Development Officer,
Bhandara. ... PETITIONERS
.. Versus ..
Shamrao Tukaram Bhongade,
R/o Observation Home,
Bhandara, Dist. Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
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Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.949/2007
1. State of Maharashtra,
through its Secretary,
Department of Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Director of Women and
Children Development,
Maharashtra State,
Pune-1.
3. District Woman and Child
Development Officer,
Bhandara. ... PETITIONERS
.. Versus ..
Anandrao Pandurang Bagade,
Observation Home,
Vidhyanagar, Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.965/2007
1. State of Maharashtra,
through its Secretary,
Woman and Child
Development,
Mantralaya, Mumbai-32.
2. Director of Women and
Children Development,
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Maharashtra State,
Pune-1.
3. District Woman and Child
Development Officer,
Bhandarra. ... PETITIONERS
.. Versus ..
Changdeo Rajaram Gaikwad,
Agd 52 years,
R/o Govt. Observation Home,
Bhndara, Vidhyanagar,
District Bhandara. .. RESPONDENT
Mr. V.A. Thakre, Assistant Government Pleader for Petitioners.
Mr. N.R. Saboo, Advocate for Respondent .
....
Writ Petition No.5491/2009
Sankalp Vardhini Gramin Yuwa
Sanstha, Jamb, Tahsil- Mowadi,
District - Bhandara, A Society
registered under the Societies
Registration Act bearing
Registration No. MAH/36/97/
Bhandara (MS) and a Trust under
Bombay Public Trust Act, 1950,
bearing Registration No.-F5374
Bhandara (MS), being represented
through its President- Shri
Ravindra Punaji Khobragade,
Adult, Indian inhabitant and
having its office at C/o Maroti
Limje, Ram Mandir Ward,
Chandni Chowk,
Bhandara - 441904
(Maharashtra State) .. PETITIONER
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.. Versus..
1. State of Maharashtra, through
its Principal Secretary/Deputy
Secretary, Women and Child
Development Department,
Mantralaya, Mumbai -32.
2. The Commissioner, Women
& Child Development
Commissionerate,
Maharashtra State, Pune.
3. District Women and Child
Welfare Officer, Wardha,
District- Wardha
(Maharashtra State) .. RESPONDENTS
Mr. S.P. Bhandarkar, Advocate for Petitioner.
Mr. V.A. Thakre, Assistant Government Pleader for
Respondents.
...
CORAM : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON : September 01, 2017.
PRONOUNCED ON : September 14, 2017
ORAL JUDGMENT (per Manish Pitale, J. )
These writ petitions have been filed by the State of
Maharashtra and its functionaries challenging common
judgment and order dated 13.01.2006 passed by the
Maharashtra Administrative Tribunal (Tribunal) allowing a
bunch of original applications filed by the respondents and
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other similarly situated persons. The respondents were all
employees of Remand Homes/Observation Homes which were
earlier run by private voluntary organizations and were lateron
taken over by the petitioner-State Government. The petitioner-
State took over the Remand Homes/Observation Homes in
districts of Bhandara, Buldhana, Yavatmal, Chandrapur,
Wardha and Amravati by issuing Government Resolutions on
various dates between 1982 and 1988.
2. Although it is claimed by the petitioner-State and the
Tribunal indeed has proceeded on the basis that the said
Remand Homes/Observation Homes were taken over by the
petitioner-State exercising powers under Section 31(3) of the
Bombay Children Act, 1948, (hereinafter referred to as "the Act
of 1948") perusal of the various Government Resolutions
whereby the Remand Homes/Observation Homes have been
taken over, shows that there is no reference to the specific
provision albeit a reference to the said Act has been made in
the Government Resolutions. It is an admitted position that
although under Section 31(3) of the said Act, the petitioner-
State can take over such Remand Homes/Observation Homes
for a temporary period not exceeding 5 years and for a further
period of 2 years for special reasons to be recorded in writing,
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while taking over the aforesaid Remand Homes/Observation
Homes, of which the respondents were employees, there was
no specific period of take over provided in the Government
Resolutions and such action of taking over was not limited to
the period of 7 years and it continued beyond the said period.
3. Upon the said Remand Homes/Observation Homes
being taken over by the petitioner-State, the respondent
employees continued to work without any break. As per
section 31(5) of the Act of 1948, it is specifically provided that
the service conditions applicable to the employees of such
taken over institutions shall not be varied to their
disadvantage. Although under Section 31(6) of the Act of 1948
it was provided that on the expiry of the said maximum period
of 7 years, the State shall hand over the institution to the
Management concerned, in the instant case, no such step was
taken by the petitioner-State Government to return the said
Remand Homes/Observation Homes to their respective
erstwhile managements. In other words, the respondents
continued to be employees of the Remand Homes/Observation
Homes as taken over by the petitioner-State.
4. In the year 1986, the Juvenile Justice Act, 1986
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(hereinafter referred to as "the Act of 1986") came to be
enacted. Section 63 of the Act of 1986, concerning repeal and
savings, provided that any State law in force corresponding to
the said Act of 1986 shall stand repealed on the date on which
the said Act of 1986 came into force. This Court in its
judgment in the case of In Re Alain Esteve - 1990 Mh.L.J.
1033 held that Act of 1948 was indeed the concerned State
law for the State of Maharashtra and that it stood repealed
under Section 63 of the Act of 1986. There was no provision in
the said Act of 1986 for taking over Remand
Homes/Observation Homes as was existing in the Act of 1948.
5. Therefore, there was no parallel or similar provision in
the Act of 1986, under which the Remand Homes/Observation
Homes could have been returned to the erstwhile
managements by the petitioner-State. Even otherwise, the
maximum period of 7 years for which the Petitioner-State could
have taken over the Remand Homes/Observation Homes had
expired and the petitioner-State had failed to return such
homes to their respective erstwhile managements.
6. In the year 2000, the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as
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"the Act of 2000") came to be enacted, wherein also there is
no provision akin to Section 31 of the Act of 1948. Apart from
this, under Section 69 of the said Act of 2000, the Act of 1986
stood repealed. Thus, in both the subsequent legislations
enacted by Parliament, there was no provision similar to the
provision in the Act of 1948, for taking over of the Remand
Homes/Observation Homes by the State Government.
Consequently, there was no question of there being any
provision for return of such taken over Remand
Homes/Observation Homes by the petitioner-State to their
respective erstwhile managements.
7. In this situation, the grievance of the respondents-
employees of such taken over Remand Homes/Observation
Homes was that since they were working under the petitioner-
State Government from the dates when the action of take over
was undertaken by the State Government, they deserve all
benefits available to Government employees performing
identical duties in Remand Homes/Observation Homes run by
the petitioner-State. As the respondents-employees were
being deprived of such benefits, they filed original applications
before the Tribunal. The Tribunal considered all such
applications together and it framed four questions for
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consideration as follows:
"(i) Whether the employees of Private
Observation Homes/Remand Homes which
are/were taken over by the Govt. for
management, are/were entitled to be treated
and obtained the status of Govt. servants and
entitled to the benefits of all service
conditions as that of Govt. servants including
pension and other retiral benefits?
(ii) Whether, while under the control and
management of Govt., the employees of
Private Observation Homes/Remand Homes,
which are/were taken over by the Govt.,
during such period i.e. between taking over
and returning the management back to the
Private Organisations, did they attain the
status of Govt. servants and entitled to the
benefits as such during that period?
(iii) Once having taken over the
management of Private Observation
Homes/Remand Homes, is it/was it
permissible for the Govt. to return back the
management along with the employees taken
over, to any other Private Organisations other
than the one from whom it was taken over
and which was not in existence at the time of
returning?
26 WP823-07&ors.odt
(iv) Is it/was it competent for the Govt. to
return back the management of a private
Observation Home/Remand Home to any
other private institution than the one from
whom it is/it was taken over? Is such an
action of the Govt. liable to be declared as
void and impermissible?
8. The central issue in the said questions was as to
whether the respondents-employees were entitled to be
treated as Government servants being eligible for benefits
available to Government servants and consequently as to
whether the petitioner-State could return the Remand
Homes/Observation Homes to any other private organizations.
The second issue arose because of the attempt on the part of
the petitioner-State to hand over the said Remand
Homes/Observation Homes to private organizations by issuing
letters and a Government Resolution dated 25.07.2005.
9. The Tribunal divided the original applications arising
for its consideration in three groups, firstly, applications of
respondents-employees who had already retired from services
claiming pensionary benefits, secondly, applications of
respondents-employees seeking relief of either promotion or
27 WP823-07&ors.odt
time bound promotion or grant of higher pay-scales and
promotional posts as also fitment and placement in pay-scales
available to employees in equivalent posts in regular
Government service and thirdly, applications of employees
challenging the action of the petitioner-State in returning the
management of the Remand Homes/Observation Homes to
completely new private organizations. By the impugned
judgment and order of the Tribunal, the grievances of all the
aforesaid three groups of respondents-employees have been
considered and decided.
10. The Tribunal has found on facts that the duties and
functions performed by the respondents-employees were the
same as those performed by other similarly situated
employees in the Government. The Tribunal found that after
taking over the said Remand Homes/Observation Homes by
exercising power under the Bombay Children Act, 1948, the
petitioner-State never returned the said Remand
Homes/Observation Homes to their respective erstwhile
managements. It was also found that in the aforesaid
subsequent Central Acts of 1986 and the year 2000, there was
no provision for such taking over for limited period of such
Remand Homes/Observation Homes. Thus it was found that
28 WP823-07&ors.odt
the petitioner-State had taken over the said Remand
Homes/Observation Homes, without exercising power under
the provisions of the Act of 1948 to return them and in the
subsequent Central Legislation there was no power with the
petitioner-State to return the said Remand Homes/Observation
Homes.
11. The Tribunal also found that the provisions of the Act
of 1948 and even the Government Resolutions whereby the
Remand Homes/Observation Homes were taken over by the
petitioner-State, provided that the service conditions applicable
to the respondent-employees could not be changed to their
detriment after taking over of the Remand Homes/Observation
Homes. It was also found that after taking over, the
respondents-employees were transferred to various other
organizations which were also taken over and some of them
were even transferred to other departments of the
Government. Their pay-scales were fixed and individual posts
were also created by the Government. On this basis, the
Tribunal arrived at the following conclusions in the impugned
judgment and order:
"74. In view of what we have observed
29 WP823-07&ors.odt
above, we come to the conclusion that :
(i) That, the employees of
Observation/Remand Homes which are/were
taken over by the Govt. for management but
not returned within the stipulated time are
now entitled to be treated as Govt. employees
and they have obtained the status of Govt.
Servants and entitled to the benefits of all
service conditions as that of Govt. servants
including pension and other retiral benefits
provided they complete the qualifying period
of service under the Govt., as per the Rules.
(ii) The employees of the managements
which were taken over by the Govt., if
between the period of taking over and handing
over back to the original organisation,
completed the required tenure of service for
being entitled to the benefit of gratuity, then
they would be entitled for gratuity for the
period right from their initial appointment in
the original organisation as also the gratuity
for the period for which they have worked
under the Govt.
(iii) In our opinion, in view of the repeal of
the Act of 1948 and since the Act of 1986 and
the Act of 2000 are silent on the point of
taking over and returning back of the
management alongwith employees to any
30 WP823-07&ors.odt
other private organisations or voluntary
organisations, it is not now permissible for the
Govt. to hand over these employees to any
third party or to any other organisation than
the original one.
(iv) We have, therefore, no hesitation in
quashing the decision of the Govt. of its
intention to return back the management to
private organisations as expressed through its
various letters including letter dated
16.9.1993 and Govt. Resolution dated
25.7.2005.
(v) Needless it is to observe that since the
applicants are treated as Govt. employees,
then in that case, they are also entitled for the
relief of time bound promotion/higher pay
scale, if otherwise fulfil other required
conditions for that purpose."
12. It is relevant to state here that all the respondents-
employees who had approached the Tribunal have now retired
from service. Some of them have been granted the benefit of
pension. It has also come on record that the petitioner-State
had deposited certain amounts towards pension of some
respondents-employees before the Tribunal and the said
31 WP823-07&ors.odt
employees were permitted to withdraw such amounts upon
furnishing solvent security to the satisfaction of the Registrar
of the Tribunal.
13. Mr. V.A. Thakre, learned Assistant Government
Pleader appearing for the petitioner-State Government
submitted that the judgment and order of the Tribunal was
unsustainable because mere taking over of the Remand
Homes/Observation Homes by the State did not mean that the
employees working in such homes automatically became the
employees of the State Government. It was submitted by the
learned AGP that the action of taking over by the State
Government was a temporary measure and that despite repeal
of the Act of 1948, by subsequent Central Legislation, the State
Government was entitled to transfer such Remand
Homes/Observation Homes to any other private organization.
It was also submitted that pay-scales of respondents-
employees of the Remand Homes/Observation Homes were
fixed by the State Government with an intention to maintain
uniformity in payment to employees of all such organizations
that were taken over and that mere fixation of pay-scales did
not mean that such respondent-employees acquired the status
of Government servants. It was also submitted that amounts
32 WP823-07&ors.odt
towards provident fund and group insurance schemes were
disbursed to the respondent-employees and, therefore, they
were not justified in raising claim of benefits available to
Government servants. The learned AGP appearing for the
petitioner-State has submitted a chart along with synopsis
giving details of the amounts disbursed to the employees who
are respondents in the group of writ petitions. A perusal of the
chart shows that 15 of the respondents-employees have been
already granted pension, gratuity and other benefits, while the
remaining respondent-employees have been granted gratuity
and other benefits.
14. The learned counsel appearing for the respondents
has submitted that the impugned judgment and order of the
Tribunal is justified and that the writ petitions deserve to be
dismissed.
15. We have heard the learned counsel for the parties in
detail. The central question that arises in these group of writ
petitions preferred by the petitioner-State is as to whether the
respondent-employees acquire the status of Government
employees with passage of time and whether there was a clear
relationship of employer and employee developed between
33 WP823-07&ors.odt
the petitioner-State and the respondents who continued to
work in the Remand Homes/Observation Homes taken over by
the petitioner-State between 1982 to 1988. It is an admitted
position that although Section 31 of the Act of 1948, provided
for maximum period of 7 years for which the Remand
Homes/Observation Homes could have been taken over, the
Government Resolutions whereby the said Remand
Homes/Observation Homes were taken over did not specify a
time period. It is also an admitted position that despite expiry
of the period of 7 years, the petitioner-State did not return the
Remand Homes/Observation Homes to their respective
erstwhile managements. It is also an admitted position that in
the subsequent Central Legislation i.e. the Act of 1986 and
the Act of 2000, which held the field upon repeal of the Act of
1948, do not provide for such take over and return of Remand
Homes/Observation Homes. It has also come on record that
the respondent-employees continued to work under the State
Government in the said taken over Remand
Homes/Observation Homes without break and that some of
them were transferred to other such homes and even to other
departments of the State Governments. In fact pay-scales of
the respondent-employees were also fixed by the petitioner-
State from time to time.
34 WP823-07&ors.odt
16. It is also evident from the record that even before the
Remand Homes/Observation Homes were taken over by the
petitioner-State by the aforementioned Government
Resolutions issued between 1982 and 1988, such Remand
Homes/Observation Homes had been granted 100 % grant in
respect of the staff employees. The Petitioner-State took a
policy decision to take over the said Remand
Homes/Observation Homes, in order to improve their
functioning so as to achieve objects of the Act of 1948. Since
the said Act of 1948 stood repealed by the subsequent Central
Legislation, being the Act of 1986 and thereafter even after
enactment of the Act of 2000, the said Remand
Homes/Observation Homes continued to be run by the
petitioner-State to fulfill the objects of the said Legislations.
17. In order to determine whether the employees of such
taken over Remand Homes/Observation Homes acquired the
status of being employees of the petitioner-State, it is
necessary to examine as to whether relationship of employer-
employee was established between the petitioner-State and
the respondent-employees of such Remand
Homes/Observation Homes.
35 WP823-07&ors.odt
18. The Hon'ble Supreme Court, while considering the
question regarding test for determining whether employer-
employee relationship has been established, has laid down
that supervision and control over the employee is crucial for
establishing such relationship. It was in the case of
Dharangadhara Chemical Works Ltd. .vs. State of
Saurashtra and others - AIR 1957 S.C. 264 that the
Hon'ble Supreme Court approved of what has been labelled as
the control test for determining the relationship of employer-
employee. The relevant paragraphs of the said judgments are
as follows:-
"9. The principles according to which the
relationship as between employer and
employee or master and servant has got to be
determined are well settled. The test which is
uniformly applied in order to determine the
relationship is the existence of a right of
control in respect of the manner in which the
work is to be done. A distinction is also drawn
between a contract for services and a
contract of service and that distinction is put
in this way: " In the one case the master can
order or require what is to be done while in
the other case he can not only order or
36 WP823-07&ors.odt
require what is to be done but how itself it
shall be done." (Per Hilbery, J. in Collins v.
Hertfordshire County Council ,1947 KB 598 at
p.615(A)).
10. The test is, however, not accepted
as universally correct. The following
observations of Denning L.J., at pp. 110, 111
in Stevenson, Jordan and Harrison Ltd. v.
Macdonald and Evans, 1952-1 TLR 101 at
p.111(B) are apposite in this context:
"But in Cassidy v. Ministry of Health, 1951-1
TLR 539 at p. 543; 1951-2 KB 343 at pp. 353-
3(C), Somervell L.J., pointed out that test is
not universally correct. There are many
contracts of service where the master cannot
control the manner in which the work is to be
done as in the case of a captain of a ship. Lord
Justice Somervell, went on to say: One
perhaps cannot get much beyond this: 'Was
the contract as contract of service within the
meaning which an ordinary man would give
under the words'? " I respectfully agree. As
my Lord has said, it is almost impossible to
give a precise definition of the distinction. It is
often easy to recognize a contract of service
when you see it, but difficult to say wherein
the difference lies. A ship's master, a
chauffeur, and a reporter on the staff of a
newspaper are all employed under a contract
37 WP823-07&ors.odt
of service; but a ship's pilot, a taxi man, and a
newspaper contributor are employed under a
contract for services. One feature which
seems to run through the instances is that,
under a contract of service, a man is
employed as part of the business, and his
work is done as an integral part of the
business; whereas., under a contract for
services, his work, although done for the
business, is not integrated into it but is only
accessory to it."
11. We may also refer to a
pronouncement of the House of Lords in Short
v. J. & W. Henderson, Ltd., 1946-62 TLR 427 at
p. 429 (D), where Lord Thankerton
recapitulated the four indicia of a contract of
service which had been referred to in the
judgment under appeal, viz., (a) the master's
power of selection of his servant, (b) the
payment of wages or other remuneration, (c)
the master's right to control the method of
doing the work, and (d) the master's right of
suspension or dismissal, but observed: -
"Modern industrial conditions have so much
affected the freedom of the master in cases in
which no one could reasonably suggested that
the employee was thereby converted into an
independent contractor that, if and when an
appropriate occasion arises, it will be
incumbent on this House to reconsider and to
38 WP823-07&ors.odt
restate these indicia. For example, (a), (b) and
(d) and probably also (c), are affected by the
statutory provisions and rules which restrict
the master'choice to men supplied by the
labour bureaux, or directed to him under the
Essential Work provisions, and his power of
suspension or dismissal. is similarly affected.
These matters are also affected by trade
union rules which are atleast primarily made
for the protection of wage-earners."
12. Even in that case, the House of
Lords considered the right of supervision and
control retained by the employers as the only
method if occasion arose of securing the
proper and efficient discharge of the cargo as
sufficiently determinative of the relationship
between the parties and affirmed that " the
principal requirement of a contract of service
is the right of master in some reasonable
sense to control the method of doing the work
and this factor of superintendence and control
has frequently been treated as critical and
decisive of the legal quality of relationship.
13. The position in law is thus
summarised in Halsburv's Laws of England,
Hailsham edition, Vol. 22, page 112, para.
191:-
" Whether or not, in any given case, the
relation of master and servant, exists is a
39 WP823-07&ors.odt
question of fact; but in all cases the relation
imports the existence of power in the
employer not only to direct what work the
servant is to do, but also the manner in which
the work is to be done.":
and until the position is restated as
contemplated in Short v. J. & W. Henderson
Ltd., (D) ,(supra), we may take it as the prima
facie test for determining the relationship
between master and servant.
14. The principle which emerges from
these authorities is that the prima facie test
for the determination of the relationship
between master and servant is the existence
of the right in the master to supervise and
control the work done by the servant not only
in the matter of directing what work the
servant is to do but also the manner in which
he shall do his work, or to borrow the words of
Lord Uthwatt at page 23 in Mersey Docks and
Harbour Board v. Coggins & Griffith
(Liverpool) Ltd., , 1947 AC 1, at p. 23 (E).
"The proper test is whether or not the hirer
had authority to control the manner of
execution of the act in question."
19. The aforesaid control test has been approved by the
Hon'ble Supreme Court in a number of subsequent
40 WP823-07&ors.odt
judgments and thereafter, the functional test and
organizational test have also been approved by the Hon'ble
Supreme Court. In the case of Workmen of Nilgiri Coop.
Mkt. Society Ltd. .vs. State of T.N. - (2004) 3 Supreme
Court Cases 514, the Hon'ble Supreme Court has considered
the tests for determining the relationship of employer-
employee and it has held as follows:-
"34. This Court beginning from Shivanandan
Sharma Vs. Punjab National Bank Ltd. [1955] 1
L.L.J. 688 : AIR 1955 SC 404 and
Dharangadhara Chemical Works Ltd. Vs. State
of Saurashtra and others [1957] 1 L.L.J. 477 :
AIR 1957 SC 264 observed that supervision
and control test is the prima facie test for
determining the relationship of employment.
The nature or extent of control required to
establish such relationship would vary from
business to business and, thus, cannot be
given a precise definition. The nature of
business for the said purpose is also a
relevant factor. Instances are galore there
where having regard to conflict in decisions in
relation to the similar set of facts, Parliament
has to intervene as, for example, in the case
of workers rolling bidis.
35. In a given case it may not be
41 WP823-07&ors.odt
possible to infer that a relationship of
employer and employee has come into being
only because some persons had been more or
less continuously working in a particular
premises inasmuch as even in relation thereto
the actual nature of work done by them
coupled with other circumstances would have
a role to play.
36. In V.P. Gopala Rao Vs. Public
Prosecutor, Andhra Pradesh [1970] 2 L.L.J. 59 :
AIR 1970 SC 66, this Court said that it is a
question of fact in each case whether the
relationship of master and servant exists
between the management and the workmen
and there is no abstract a priori test of the
work control required for establishing the
control of service. A brief resume of the
development of law in this point was
necessary only for the purpose of showing
that it would not be prudent to search for a
formula in the nature of a single test for
determining the vexed question.
RELEVANT FACTORS:
37. The control test and the organization
test, therefore, are not the only factors which
can be said to be decisive. With a view to
42 WP823-07&ors.odt
elicit the answer, the court is required to
consider several factors which would have a
bearing on the result : (a) who is the
appointing authority; (b) who is the pay
master; (c) who can dismiss; (d) how long
alternative service lasts; (e) the extent of
control and supervision; (f) the nature of the
job, e.g. whether, it is professional or skilled
work; (g) nature of establishment; (h) the right
to reject.
38. With a view to find out reasonable
solution in a problematic case of this nature,
what is needed is an integrated approach
meaning thereby integration of the relevant
tests wherefor it may be necessary to
examine as to whether the workman
concerned was fully integrated into the
employer's concern meaning thereby
independent of the concern although attached
therewith to some extent.
40. In Mersey Docks and Harbour Board
Vs. Coggins & Griffith Liverpool Ltd. [1947]
A.C. 1, Lord Porter pointed out:
"Many factors have a bearing on the result.
Who is paymaster, who can dismiss, how long
the alternative service lasts, what machinery
is employed, have all to be kept in mind. The
43 WP823-07&ors.odt
expressions used in any individual case must
always be considered in regard to the subject-
matter under discussion but amongst the
many tests suggested I think that the most
satisfactory, by which to ascertain who is the
employer at any particular time is to ask who
is entitled to tell the employee the way in
which he is to do the work upon which he is
engaged."
41. If the provisions of the contract as a
whole are inconsistent with its being a
contract of service, it will be some other kind
of contract and the person doing the work will
not be a servant. (See Ready Mixed Concrete
(South East) Ltd. Vs. Minister of Pensions and
National Insurance, 1 [1968] 2 W.L.R. 775).
42. The decisions of this Court lead to
one conclusion that law in this behalf is not
static. In Punjab National Bank vs. Ghulam
Dastagir [(1978) 1 I.L.J. 312 = (1978) 2 SCC
358], Krishna Iyer, J. observed "to crystalise
criteria conclusively is baffling but broad
indications may be available from decisions".
20. The Hon'ble Supreme Court has also referred to the
said control test, functional test and organizational test in its
44 WP823-07&ors.odt
judgments in the case of District Rehabilitation Officer and
others .vs. Jay Kishore Maity and others - (2006) 12
Supreme Court Cases 380 and National Aluminium
Company Ltd. .vs. Ananta Kishore Rout - (2014) 6
Supreme Court Cases 756. The position of law as it
emerges from the aforesaid judgments of the Hon'ble
Supreme Court is that whether relationship of employer-
employee exists depends on the facts of each case. It has
been held that although no hard and fast rule can be laid
down, the aforesaid tests are broad guidelines for determining
whether such relationship of employer-employee exists in a
particular case.
21. Applying the said tests to the facts of the present
case, it would be necessary to determine whether the
petitioner-State exercised supervision and control over the
respondent-employees of the taken over Remand
Homes/Observation Homes and whether the functions and the
organisation of such Remand Homes/Observation Homes was
in the hands of the petitioner-State.
22. Apart from the fact that the respondent-employees
were indeed transferred from one Remand Home/Observation
45 WP823-07&ors.odt
Home to the other and in some cases even to other
departments of the petitioner-State, the following actions of
the petitioner-State have been pleaded in the original
applications filed before the Tribunal by the respondent-
employees:
_______________________________________________________________
Date Particulars/events in treating staff of Remand
Home as of State Government Employee.
26.06.1991 Appointment benefits on compassionate
ground to Smt. Baby Vaidhya widow of
Prabhakar Vaidhya, Jr. Clerk, Wardha
Remand Home.
21.02.1991 Permanency in Government Service to
Shri Eknath Patre, Jr. Care Taker of
Chandrapur Remand Home.
27.10.1994 Promotion to Smt. Kanfade, Jr. Clerk of
Bhandara Remand Home.
05.08.1995 Promotion to D.K. Chaure, Jr. Clerk of
Yavatmal Remand Home.
Not Promotion to Shri Dhone, Jr. Care Taker as
Available Jr. Clerk of Bhandara Remand Home.
31.12.1986 Appointment of Smt. V.S. Khandekar
(Gedam) as Literacy Teacher by the
Government.
29.11.1997 Time bound promotion to Shri J.A. Warade,
Jr. Care Taker of Buldana Remand Home.
24.11.1992 Order of suspension to Shri Madhav
Gopatwar Literacy Teacher of R.H.
Yavatmal applying the provisions of
M.C.S.R. 1981 (Jointing Time, Foreign
Service, Suspension, Dismissal) Rule 68(1).
31.03.1998 Reinstated in service to Shri Madhav
46 WP823-07&ors.odt
Gopatwar applying MCSR.
12.01.1998. Order of suspension to Shri Sheshrao
Khare (Initial appointment at Buldana
Remand Home then transferred to
Chandrapur) and reinstatement."
_____________________________________________________________
23. The aforesaid facts pleaded in the original
applications have not been controverted by the petitioner-State
before the Tribunal and before this court also. The said facts
have not been disputed. Thus, the aforesaid undisputed facts
show that after taking over the Remand Homes/Observation
Homes, the petitioner-State exercised complete supervision
and control over the respondent-employees. There were
promotions made, permanency granted in Government service,
appointments made, disciplinary actions taken under the
provisions of the Maharashtra Civil Services Rules and time
bound promotions granted. It is also evident that
appointments were made even on compassionate grounds. In
one of the original applications, extracts of service book
maintained for Government employees, have been placed on
record.
24. The functioning and the organisation of the Remand
Homes/Observation Homes was clearly in the hands of the
47 WP823-07&ors.odt
petitioner-State as it sought to achieve the objects of the Act of
1948 and the subsequent Central Legislations being Acts of
1986 and 2000.
25. In this context, the contents of the Government
Resolutions issued by the petitioner-State for taking over the
said Remand Homes/Observation Homes are also relevant. The
petitioner-State issued Government Resolution dated 3.2.1982
(for districts Bhandara and Buldana), Government Resolution
dated 28.10.1982 (for district Yavatmal), Government
Resolution dated 7.5.1985 (for district Chandrapur),
Government Resolution dated 25.3.1986 (for district Wardha)
and Government Resolution dated 20.4.1988 (for district
Amravati) to take over the Remand Homes/Observation
Homes. As the contents of the said Government Resolutions
were almost identical, perusal of one such Government
Resolution would give a fair idea of the approach of the
petitioner-State while taking over the Remand
Homes/Observation Homes. The Government Resolution dated
3.2.1982 reads as follows:
"Expansion of work under the
Bombay Children Act, 1948.
Observation Homes (Remand Home)
At Bhandara and Buldhana District taking
48 WP823-07&ors.odt
Over by Government.
GOVERNMENT OF MAHARASHTRA
Social Welfare & Sports Department,
Resolution No. RDH 1078/47712/D-X
Mantralaya Annexe Bombay - 400032,
Dated the 3rd Feb.1982.
Read :- i) Letter No. BCH/RHB/Shifting/D-12/5598 dated 25 th
October, 1973, from the Director of Social Welfare,
Maharashtra State, Pune.
ii) Government Resolution, Social Welfare, Cultural
Affairs, Sports and Tourism Department No. RDH
1078/47712/D-X dated 25th May, 1979.
iii) D.O. letter No. COB/OHB/F.Body/482, dated 13th
June, 1980 from the President, Maharashtra State Probation
and After Care Association.
iv) Letter No. R/RHB/Taking over/MNGT/D-12/1130,
dated 14th May, 1981 from the Director of Social Welfare,
Maharashtra State, Pune.
v) Letter No. B/OHD/Bhandara/D-12/474, dated 4th
April, 1981 from the Director of Social Welfare, Maharashtra
State, Pune.
PREAMBLE :- Under the Bombay Children Act, 1948, the
Observation Homes for admitting children on remand as per
order of the Juvenile Courts at Bhandara and Buldhana Districts
were created at those places and were entrusted to the
Maharashtra State Probation and After Care Associations for
management. The Association was being paid 100% grant-in-
aid for that purpose. Each Observation Home is recognized for
admitting 51 to 100 children. Since the Maharashtra State
Probation and After Care Associations have showed their
inability to run these Observation (Remand) Homes, it has
been decided by Government to take over the two Observation
49 WP823-07&ors.odt
(Remand) Homes indicated above.
RESOLUTION:- Government is pleased to give administrative
approval for taking over the Observation (Remand) Homes at
Bhandara and Buldhana Districts by State Government with
effect from the issue of this Government Resolution with their
equipments, furniture, dead stock articles etc. and the existing
staff.
2. Government is also pleased to create the following
posts for running each of the Remand Homes till further orders.
Sr. Designation of No. Pay Scales
No. Posts of
Post
1 Superintendent 1 395-15-500-20-700 Ext.-20-800
2 Clerk 1 260-10-390-15-420 Extn.15-495
3 Teachers 2 260-10-390-15-420 Extn.15-495
4 Caretaker 5 200-3-230-5-255- Extn.5-280.
5 Cook 2 200-3-230-5-255- Extn.5-280.
6 Visiting Medical 1 100 fixed p.m.
Officer
3. The incumbents of the posts should be held eligible
for D.A. and other allowances admissible under the rule.
4. The expenditure on account of running of these two
Observation (Remand) Homes should be equivalent to the
grant-in-aid paid to them.
5. The expenditure on account of these two Observation
Homes should be debited to the budget head "288- Social
Security and Welfare D-Social Welfare-U- Family Child Welfare-
I-I- (a) maintenance of Govt. Certified School and Remand
Home, Demand No.167" and should be met from the over all
sanctioned grants under the Major Head "288- Social Security
50 WP823-07&ors.odt
and Welfare".
6. This Resolution issued with the concurrence of the
Finance Department vide that Department un-official reference
No. 5309-SWD dated 12.11.1981.
By order and in the name of the Governor of
Maharashtra.
Sd/- (G.N. Khan)
Under Secretary to Government."
The above quoted Government Resolution clearly shows that
the petitioner-State Government took over the Remand
Homes/Observation Homes and it clearly treated the
employees therein as its own employees and that specific
budgetary provision was made with the concurrence of the
Department of Finance. In fact the Government Resolution
dated 20.4.1988 for taking over the Remand
Homes/Observation Homes in the district of Amravati clearly
stated that from 1.4.1988, the employees of the Remand
Homes/Observation Homes would be treated as Government
employees and that their service conditions would be the same
as applicable to the Government employees holding
equivalent posts.
51 WP823-07&ors.odt
26. The aforesaid material on record and the actions of
the petitioner-State upon taking over the Remand
Homes/Observation Homes show that the petitioner-State
treated the respondent-employees of such Remand
Homes/Observation Homes as its own Government employees.
The respondent-employees were constrained to file original
applications before the Tribunal when the petitioner-State ,
despite having undertaken actions of granting pay-scales,
issuing transfer orders, promotions and appointments, refused
to recognize the respondent-employees as Government
servants and denied them all the facilities available to
Government servants, including the facility of pension and
retirement benefits. In the original applications, the
respondent-employees pleaded in detail regarding the
aforesaid actions of the petitioner-State , which demonstrated
that they were being treated as Government servants. Apart
from the detailed pleadings referred to hereinabove, it was also
pointed out that seniority lists were issued wherein the
respondent-employees were included.
27. The Tribunal, in its detailed judgment and order, took
into consideration all the facts on record and gave findings in
favour of the respondent-employees.
52 WP823-07&ors.odt
28. We find that the conclusions rendered by the Tribunal
in paragraph 74 of its judgment are correct on facts and law.
The Tribunal has correctly analysed the actions of the
petitioner-State in the instant cases regarding the manner of
taking over of the Remand Homes/Observation Homes and the
way in which the respondent-employees have been treated
after such take over. The effect of the Act of 1948 and the
Central Legislations i.e. Act of 1986 and the Act of 2000 has
been correctly applied to the facts of the present case to
render conclusions and findings in favour of the respondent-
employees. The Tribunal has correctly granted the prayers of
grant of time bound promotions, higher pay-scales and pension
to the respondent-employees, if they are eligible under the
relevant rules applicable to the Government servants, since
they have been found to have acquired the status of
Government servants, upon take over of the Remand
Homes/Observation Homes and particularly when they have
rendered continuous long years of service with the petitioner-
State.
29. The other aspect of the instant case is whether the
respondent-employees along with the Remand
53 WP823-07&ors.odt
Homes/Observation Homes could be transferred to a
completely new organisation, after long duration of being taken
over and absorbed by the petitioner-State. The petitioner-State
took over the said Remand Homes/Observation Homes along
with the respondent-employees way back between 1982 and
1988. During this period, the Act of 1948 was in force, wherein
such take over could have been only for a maximum period of
7 years. It is an admitted position that such take over by the
petitioner-State continued beyond the said period of 7 years.
30. It has also come on record that the said Act of 1948
stood repealed by the Central Act of 1986, wherein there was
no such power of taking over and returning Remand
Homes/Observation Homes by the State Government. The
subsequent Central Act of 2000, which repealed the Act of
1986 also has no such power in the State Government.
31. Thus, it is evident that the petitioner-State had no
authority to hand over such Remand Homes/Observation
Homes to any new private organisation after more than 20
years of such take over. As regards the question as to whether
the respondent-employees of such taken over Remand
Homes/Observation Homes could be transferred to such new
54 WP823-07&ors.odt
private organisation, Section 31 of the Act of 1948 becomes
relevant. It reads as follows:
"31. (1) The [State] Government if dissatisfied
with the conditions, rules management or
superintendence of [an Approved Institution
or recognised After-care Home or Hostel] may
at any time by notice served on the managers
of the [Institution or Home or Hostel] declare
that the [the recognition thereof] is withdrawn
as from a date specified in the notice and on
such declaration the withdrawal [of the
recognition] shall take effect and [the
Institution or Home shall cease to be an
Approved Institution or Home.]
(2) The [State] Government may, instead of a
withdrawing [the recognition] under sub-
section (1), by notice served on the manager
of the [Institution], prohibit the admission of
children or youthful offender to the
[Institution] for such time as may be specified
in the notice or until the notice is revoked.
[(3) The State Government, if dissatisfied with
the conditions, rules, management or
superintendence of an Observation Home,
may at any time by notice served on the
managers of that institution and after giving
55 WP823-07&ors.odt
the managers a reasonable opportunity of
being heard cancel the declaration of that
institution as an Observation Home, and shall
by an order in writing take over the
management of the institution in the
prescribed manner for a temporary period not
exceeding five years or for special reasons to
be recorded in writing such further period not
exceeding two years as may be specified in
the order.
(4) Whenever the management of any
institution is taken over under sub-section (3),
every person in charge of the management of
such institution immediately before its
management is taken over shall deliver
possession of the property and fund of the
institution to such officer as may be
authorised by the State Government in this
behalf.
(5) During such period as the institution
remains under the management of the State
Government,-
(a) the service conditions applicable to the
employees of the institution immediately
before the date on which the management
was taken over, shall not be varied to their
disadvantage;
56 WP823-07&ors.odt
(b) all facilities which the institution had been
affording immediately before such
management was taken over, shall continue
to be afforded ;
(c) the property and funds of the institution, if
any, shall continue to be available to the State
Government for being utilised or, as the case
may be, spent for the purposes of the
institution ; and
(d) no resolution passed at any meeting of the
management of such institution shall be given
effect to unless approved by the State
Government.
(6) After the expiry of the period for which the
management of such institution has been
taken over, the State Government shall hand
over the institution together with the property
and the funds of the institution to the
management concerned]:
Provided that before the issue of a notice
under sub-section (1) ,[(2) or (3)] a reasonable
opportunity shall be given to the managers of
the [institution] to show cause why the
[recognition] may not be withdrawn or
admission to the [institutions] may not be
prohibited [or, as the case may be, the
declaration of the Institution as the
Observation Home may not be cancelled or
57 WP823-07&ors.odt
the management of the Institution may not be
taken over ]."
A perusal of Section 31(5) (a) quoted above, would show that
the State Government cannot vary the service conditions of the
employees of Remand Homes/Observation Homes that have
been taken over, to their disadvantage during the period of
such take over. This makes it clear that any move to transfer
the employees of such taken over Remand Homes/Observation
Homes to a completely new third party itself is a violation of
their service conditions, which is prohibited under the aforesaid
provision of the Act of 1948.
32. Apart from this, the petitioner-State is estopped from
taking any step detrimental to the status and service
conditions of the respondent-employees because such
employees have acquired the status of Government servants
and having taken over their services for a long period of more
than two decades, the petitioner-State Government cannot be
permitted to turn around and throw these employees at the
mercy of completely new organizations. Even if it is sought to
be canvassed on behalf of the petitioner-State that such
58 WP823-07&ors.odt
transfer of the respondent-employees would be on the
condition that the private organisation would continue to give
them the facilities available, we do not find this action on the
part of the State Government as fair and reasonable.
33. The learned AGP appearing for the petitioner-State
has relied upon judgments of the Hon'ble Supreme Court in the
case of State of Haryana and Others .vs. Shakuntala Devi
- (2008) 15 Supreme Court Cases 380, State of West
Bengal and another .vs. West Bengal Registration
Copywriters Association and another - (2009) 14
Supreme Court Cases 132 and State of Himachal
Pradesh and others .vs. Rajesh Chander Sood and
others - (2016) 10 Supreme Court Cases 77 , in order to
contend that the impugned judgment and order of the Tribunal
was not sustainable. Having perused the said judgments, we
feel that the reliance placed by the AGP on the said judgments
is misplaced.
34. The judgment in the case of State of Himachal
Pradesh and others .vs. Rajesh Chander Sood (supra) can
be easily distinguished because in that case the Hon'ble
Supreme Court was considering withdrawal of the pension
59 WP823-07&ors.odt
scheme. It was held therein that the employees were not
Government servants as the State Government did not have
master-servant relationship with them and that, therefore, the
relief claimed by them could not be granted. In the instant
case we have found that the Tribunal is fully justified in holding
that the respondent-employees are indeed Government
servants and hence the said judgment of the Hon'ble Supreme
Court is not applicable to the facts of the present case.
Similarly the other two judgments namely State of Haryana
and Others .vs. Shakuntala Devi (supra) and State of
West Bengal and another .vs. West Bengal Registration
Copywriters Association and another (supra), are
judgments where it was found that the Government did not
exercise any control on the services of the concerned
employees. Therefore, the said two judgments relied upon by
the AGP are not applicable to the facts of the present case and
they do not carry the arguments of the petitioner-State any
further.
35. As noted hereinabove, all the respondent-employees
today stand retired from service, some of whom have also
been granted pension, gratuity and other benefits. In this
situation, it cannot lie in the mouth of the petitioner-State that
60 WP823-07&ors.odt
its action of handing over the said Remand Homes/Observation
Homes to new private organizations can be justified. In fact,
with the passage of time, some of the respondents have
expired, in respect of which applications have been moved for
bringing on record legal representatives. All such applications
stand allowed by a separate order, in the interest of justice.
36. Thus, we do not find any error on the part of the
Tribunal when it has quashed the letters/Government
Resolutions of the petitioner-State for transfer of the Remand
Homes/Observation Homes along with the respondent-
employees to private organizations. One of the writ petitions,
i.e. Writ Petition No. 5491 of 2009 in this batch of writ
petitions has been filed by Sankalp Vardhini Gramin Yuwa
Sanstha, Jamb praying for direction to the State to implement
Government Resolution dated 24.11.2006 for transfer of
Observation Home at district Wardha to the petitioner therein.
We find that the said Government Resolution dated 24.11.2006
is clearly in the teeth of the judgment and order of the Tribunal
and that it is wholly unsustainable. We do not find any merit in
the contentions raised in the said Writ Petition No. 5491 of
2009.
61 WP823-07&ors.odt
37. In the light of the above, all the writ petitions filed by
the petition-State challenging the impugned judgment and
order dated 31.01.2006 passed by the Tribunal, are dismissed
and the said judgment and order of the Tribunal is confirmed.
Consequently Writ Petition No. 5491 of 2009 filed by Sankalp
Vardhini Gramin Yuwa Sanstha, Jamb is also dismissed as being
devoid of merit.
38. Rule discharged. There shall be no order as to costs.
(Manish Pitale, J. ) (R.K. Deshpande, J.)
...
halwai/p.s.
