Bombay High Court
Dashrath Ambadas Paulbudhe And ... vs The State Of Mah And Ors on 8 January, 2018
Bench: S.P. Deshmukh
1 WP - 4629-2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4629 OF 2012
1) Dashrath S/o Ambadas Paulbudhe,
Age : 60 years, Retired Driver,
R/o. Malipura, Old Jalna,
Dist. Jalna
2) Janardhan S/o Gopalrao Kapse,
Age : 56 years, Occu.: Driver,
R/o. Jangda Nagar, Bhokardan Road,
Dist. 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
...
Mr. S.M. Kulkarni, Advocate for petitioners
Mr. S.D. Ghayal, AGP for respondent-State
Mr. H.K. Munde, Advocate for respondent no.5
...
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2 WP - 4629-2012
CORAM : SUNIL P. DESHMUKH &
P. R. BORA, JJ.
DATE : 08-01-2018
ORAL JUDGMENT (PER - SUNIL P. DESHMUKH, J.) :
1. Learned counsel for the petitioner submits that as a
matter of fact, present petition was directed to be heard along with
writ petition no. 8535 of 2011 under order dated 03-12-2013,
however, while writ petition no. 8535 of 2011 had been placed on
board, this petition had not appeared along with writ petition
no. 8535 of 2011. He submits that the petitioners in present matter
are exactly similarly situated as the ones, who were concerned in
writ petition no. 8535 of 2011.
2. Petitioners were initially appointed for a period of one
year and on temporary posts, their appointments have been on
vacant and/or on newly created posts pursuant to communication
issued by State Selection Board dated 21-03-1983. However,
procedure for making regular appointments could not be
subsequently followed and the State Selection Board ultimately had
been dissolved.
3. In 1990, the State Government had issued a resolution
for regularization of appointments made prior to 18-06-1983
referring to certain criteria.
3 WP - 4629-2012
4. According to learned counsel for petitioners, petitioners
in present writ petition, as in writ petition no. 8535 of 2011, fulfill
the criteria referred to under said resolution. The petitioners have
continued in service, however, approval to their appointments had
been pending before various authorities and around 2000,
respondent no. 1 purportedly passed an order since appointments of
petitioners have not been made by following due procedure,
pursuant to 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
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)"
5. Against aforesaid condition, various representations had
been made by Municipal Council Employees' Union of Jalna, however,
an order came to be passed on 07-07-2007 rejecting their request.
The petitioners are thus before this Court.
6. Learned counsel points out order dated 13-11-2017
passed by a Division Bench of this Court, wherein in the similar set
4 WP - 4629-2012
of circumstances, this court had allowed the writ petition granting
request made under the writ petition in terms of prayer clauses (A)
and (B).
7. Learned A.G.P. Mr. S.D. Ghayal appearing for respondent
submits that the factual matrix involved in the present petition may
be similar to the one involved in writ petition no. 8535 of 2011.
Learned A.G.P. fairly refers to communication in respect of one of
the petitioners that the subject matter involved in the present writ
petition is similar to the one in writ petition no. 8535 of 2011 and
tenders across copy of communication dated 05-09-2012, which is
marked as "X" for the purpose of identification. However, he
submits that it may not be that the criteria referred to in the
resolution can be said to have been satisfied. He, therefore,
requests that a different view may be possible and the same be
taken.
8. Although learned A.G.P. has argued so, he has not been
able to point out any distinguishing factor which shall differentiate
consideration in present petition from the ones considered while
deciding writ petition no. 8535 of 2011.
9. In view of the reasons which have weighed with this
court, as contained in paragraphs no. 14 to 16 of order dated
13-11-2017, reading thus,
5 WP - 4629-2012
" 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
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. "
we consider it expedient to allow the present writ petition as well
similarly.
6 WP - 4629-2012
10. In the circumstances, writ petition is allowed in terms of
prayer clauses (A) and (B) and is disposed of.
11. Rule is made absolute accordingly.
[P. R. BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
arp/
