Ashok Yadav Kamble vs The State Of Maharashtra And ...
2018 Latest Caselaw 1174 Bom

                                                          4151.2014 WP.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                          WRIT PETITION NO.4151 OF 2014


          Ashok Yadav Kamble, 
          Age 39 Years, Occu. Service,   
          R/o. Sankalp Colony, Burhanagar,  
          Taluka & District Ahmednagar.      PETITIONER

                    VERSUS

          1.       State of Maharashtra 
                   Through Secretary for 
                   Women and Child Development Department, 
                   Mantralaya, Mumbai-32.  

          2.       Commissioner 
                   Women and Child Development Department, 
                   28, Ranicha Baug, Pune-1.  

          3.       Deputy Commissioner (Administration) 
                   Commissionerate for Women and 
                   Child Development Department,  
                   28, Ranicha Baug, 
                   Pune-1.  

          4.       Child Development Project 
                   Officer (Urban-1) 
                   Near Dr. Satalkar Hospital,  
                   Bag Roja, HUDCO, Delhi Gate, 
                   Ahmednagar                   RESPONDENTS 

                               ...
          Mr.P.V.Barde, Advocate for the Petitioner 
          Mr.P.N.Kutti, AGP for respondent - State
                               ...




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                                                               4151.2014 WP.odt
                                           2



                            
                          CORAM:  S.S.SHINDE & 
                                  S.M.GAVHANE,JJ.      

Reserved on : 08.01.2018 Pronounced on : 31.01.2018

JUDGMENT: (Per S.S.Shinde, J.):

1] Heard. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

2] This Petition is filed praying

therein to quash and set aside the order

dated 27.06.2013 issued by the Commissioner,

Women and Child Development Department.

3] It is the case of the petitioner

that respondent appointed the petitioner as

Watchman on daily wages on permanent

available work. The respondents are giving

artificial work break of one day to the

petitioner. The immediate superior of the

petitioner forwarded a proposal of the

petitioner for permanency to the respondent

4151.2014 WP.odt

nos.1 and 2, but it was pending as it is.

Even after 16 years, the respondents have not

advanced permanency benefits to the

petitioner, hence the petitioner approached

Industrial Court by filing Complaint [ULP]

No.38/2011. On 14.10.2011, by filing written

statement, respondent opposed the claim of

the petitioner. On 05.07.2012, the Industrial

Court arrived at a conclusion that the

respondent has unnecessarily kept the

petitioner as temporary employee though the

permanent work is available, but in stead of

granting relief of permanency, directed

respondent no.2 to decide the claim of the

petitioner in regards to permanency. By its

order dated 27.06.2013, respondent no.2

rejected the claim in respect of permanency.

4] It is further the case of the

petitioner that the petitioner assailed the

order of Industrial Court along with

rejection of claim in respect of permanency

4151.2014 WP.odt

in Writ Petition No.9051/2013, the learned

Single Judge considering the merits of the

matter pleased to issue notices to the

respondents. Thereafter, on 27.02.2014, to

defeat the legitimate and legal claim of the

petitioner, the respondents issued an

advertisement No.1/2014 to fill in the post

of Watchman on which the petitioner is

working. The petitioner's application is

rejected, on the ground that the age of the

petitioner is barred.

5] On 20.03.2014, the petitioner filed

Civil Application Stamp No.7642/2014

challenging an advertisement and praying for

stay to the same. Thereafter, on 25.03.2014,

the learned Single Judge in Writ Petition No.

9051/2013 recorded a finding that Circular

dated 25.08.2005 cannot overwhelm finding of

fact arrived by the Industrial Court on the

basis of which the respondent has rejected

the claim of permanency. The learned Single

4151.2014 WP.odt

Judge further protected services of the

petitioner and granted stay to fill in the

post of Watchman for 8 weeks from the date of

order with liberty to challenge the decision

dated 27.06.2013 passed by the Commissioner,

Women and Child Welfare Department, before

appropriate Court. Hence this Petition.

6] Learned counsel appearing for the

petitioner invites our attention to the

judgment and order passed by the Industrial

Court, Ahmednagar in complaint [ULP]

No.38/2011 [Ashok Yadav Kamble Vs. Secretary,

Maharashtra State & others], and also to the

judgment and order passed by the learned

Single Judge of this Court in Writ Petition

No.9051/2013 [Ashok Yadav Kamble Vs. State of

Maharashtra & others] and submits that,

respondent no.4, before passing the impugned

order, has not kept in view the order passed

by the Industrial Court and the High Court.

It is submitted that, the petitioner is

4151.2014 WP.odt

continuously discharging his duties as

Watchman since the Year 1995; the Industrial

Court has held that the respondents are

involved in unfair labour practices. It is

submitted that, due to more than 20 years

service, the petitioner is entitled for the

benefit of permanency and regularization, and

therefore, the Petition deserves to be

allowed.

7] On the other hand, learned AGP

appearing for the respondent-State relying

upon the affidavit in reply filed on behalf

of respondent nos.1 to 4 submits that, the

petitioner was appointed on ad-hoc basis and

in view of the Circular dated 25th August,

2005, issued by the General Administration

Department, the ad-hoc and daily wager

employees, who have not been working on the

sanctioned posts, cannot claim for permanency

and regularization.

4151.2014 WP.odt

8] We have considered the submissions

of the learned counsel appearing for the

petitioner, and learned AGP appearing for the

respondent-State. We have perused the grounds

taken in the Petition, annexures thereto, and

reply filed by the respondents, judgments and

orders passed by the Industrial Court and

learned Single Judge of this Court. Upon

careful perusal of the documents placed on

record, it appears that, the petitioner has

rendered more than 20 years service; he is

working as Watchman. It appears that, the

respondents have given technical break in his

service. The Industrial Court entertained the

complaint filed by the petitioner and

specifically observed in the order, as under:

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4151.2014 WP.odt

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9] It further appears that, the

petitioner herein filed Writ Petition

No.9051/2013 [Ashok Yadav Kamble Vs. State of

Maharashtra & others]. In the said Writ

Petition, Civil Application Stamp No.7642 of

2014 was filed. It appears that, during

pendency of the said Petition, respondents

advertised the post of Watchman, therefore,

the petitioner filed said Civil Application

for amendment of the Petition. The Bench

presided over by the learned Single Judge of

this Court, by judgment and order dated 25th

March, 2014 passed in Writ Petition No.

9051/2013 in para nos.7 and 8, held thus:

4151.2014 WP.odt

7. In the instant case, the Industrial Court has considered the pleadings of the respondents that they require the services of the petitioner, who has been working as a Watchman for more than 16 years, is eligible to be absorbed as a Peon as per the scheme of the respondents and that there is a permanent post of Peon available and vacant. So also the Industrial Court, by the impugned judgment, has directed the respondents to decide the proposal of the petitioner.

8. In these circumstances, I find that the circular dated 25/08/2005 cannot overwhelm the findings on facts arrived at by the Industrial Court.

10] On conjoint reading of the judgment

of the Industrial Court, and learned Single

Judge of this Court and in particular para

nos.7 and 8 thereof, the petitioner has

legitimate claim for the post of Watchman.

4151.2014 WP.odt

In that view of the matter, the impugned

communication/order passed by respondent no.2

on 27th June, 2013, and further advertisement

issued on 27th February, 2014, to fill up the

post of Watchman, deserves to be quashed.

Accordingly, the Petition is allowed in terms

of prayer clause-A, which reads as under:

A] By issuing appropriate writ, order, direction or any other appropriate order in the nature of writ, the Hon'ble High Court may be pleased to quash and set aside the order dated 27.6.2013 issued by the Commissioner, Women and Child Development Department;

11] Consequently, the advertisement

issued on 27th February, 2014, also stands

quashed and set aside. The respondents are

directed to re-consider the claim of the

petitioner afresh for permanency keeping in

view directions issued by the Industrial

Court and observations made by the learned

4151.2014 WP.odt

Single Judge referred herein above, as

expeditiously as possible, however, within 4

months from today. The Petition is allowed on

above terms, and the same stands disposed of

accordingly.

              [S.M.GAVHANE]              [S.S.SHINDE]
                  JUDGE                      JUDGE  
          DDC