Dr. Hemlata Jayant Neve vs The State Of Maharashtra And ...
2018 Latest Caselaw 22 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                         WRIT PETITION NO.8199 OF 2014 


          Dr.Hemlata Jayant Neve, 
          Age: 49 years, Occu.Medical Practitioner 
          with Jalgaon Municipal Corporation, 
          R/o.448/2, Plot No.5, 
          Mohannagar, Jalgaon, 
          Dist. Jalgaon.                  PETITIONER


                   VERSUS 


          1]       The State of Maharashtra, 
                   Through its Secretary,  
                   Urban Development Department, 
                   Mantralaya, Mumbai-32.  

          2]       The Municipal Corporation, 
                   Jalgaon, Dist. Jalgaon, 
                   Through its Commissioner 

          3]       Dr.Neha Nitin Bharambe,  
                   Age: Major, Occu.Medical Practitioner 
                   with Jalgaon Municipal Corporation,  
                   Jalgaon, Dist. Jalgaon.  

          4]       Dr.Vinod s/o.Hiraman Patil,  
                   Age: Major, Occu. Medical Practitioner 
                   with Jalgaon Municipal Corporation, 
                   R/o. 34, Ghanshamnagar, 
                   Near Khotenagar, Bus Stop, 
                   Jalgaon, Dist. Jalgaon.       RESPONDENTS




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                                  ...
          Mr.A.B.Jagtap,   Advocate   holding   for 
          Mr.V.D.Sapkal, Advocate for the petitioner 
          Mr.M.M.Nerlikar,   AGP   for   Respondent     no.1   / 
          State
          Mr.P.R.Patil, Advocate for respondent no.2
          Mr.G.V.Wani, Advocate for respondent no.3
          Mr.L.V.Sangit, Advocate for respondent no.4
                                  ...
                           CORAM:  S.S.SHINDE & 
                                     SUNIL K.KOTWAL,JJ. 

Date: 04.01.2018

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

1] This Petition is filed with the

following prayers:

B) To direct the respondent No.2 the Commissioner, Jalgaon Municipal Corporation, Jalgaon to implement the Resolution dated 15.04.2008 (Exhibit 'L') passed by the respondent No.2 Jalgaon Municipal Corporation, Jalgaon by appointing the petitioner as Medical Officer, by issuing appropriate writ, order or directions, as the case may be.

C) To direct the respondent No.2 the Commissioner, Jalgaon Municipal Corporation, Jalgaon to pay the

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salary to the petitioner in the pay scale of Rs.9,300/- to Rs.34,800/- which is the pay scale for the Medical Officer, by issuing appropriate writ, order or directions, as the case may be.

D) To quash and set aside the appointment order dated 06.11.2007 issued in favour of respondent No.3 (Exhibit 'J') and the appointment order dated 03.05.2013 issued in favour of respondent No.4 (Exhibit 'R'), issued by the respondent No.2 Jalgaon Municipal Corporation, appointing them as Medical Officer by issuing appropriate writ, order or directions, as the case may be.

2] Learned counsel appearing for the

petitioner submits that, though the

petitioner is working with respondent no.2

since the year 2002 on permanent vacant post,

the petitioner is not appointed on regular

basis. Learned counsel appearing for the

petitioner invites our attention to the

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appointment letter of the petitioner and

submits that, since the petitioner has served

since the Year 2002, the petitioner's

services ought to have been regularized

thereby issuing appointment letter. It is

submitted that, though respondent nos.3 and 4

are not qualified, they have been appointed

subsequently. Their services have been

continued, and service benefits are extended

to them, however, the said benefits are

refused to the petitioner. It is submitted

that, since the petitioner is working as a

Medical Officer, she is entitled for the

equal pay scale of Rs.9,300/- to 34,800/-,

which is being given to the other two Medical

Officers i.e. respondent nos.3 and 4. It is

submitted that, there is clear cut violation

of Article 39 (a) r/w. 21 of the Constitution

of India, and the petitioner has been denied

the service benefits. Learned counsel

appearing for the petitioner pressed into

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service exposition of law by the Supreme

Court in the case of State of Punjab & Ors.

Vs. Jagjit Singh & Ors.1.

3] Learned counsel appearing for the

respondent no.2 relying upon the affidavit-

in-reply and additional affidavit-in-reply

submits that, there is no work available to

the Ayurvedic Doctors in Municipal

Corporation Jalgaon. There are no patients

requiring Ayurvedic treatment. Therefore, two

dispensaries namely Pandit Dindayal Ayurvedic

Dispensary and Shahir Amar Shaikh Ayurvedic

Dispensary were required to be closed down,

and therefore, the petitioner namely

Dr.Hemlata Neve, respondent No.3 namely

Dr.Neha Bharambe and respondent no.4 namely

Dr.Vinod Patil are working in Allopathic

Dispensary as Assistants. There is one more

Ayurvedic Dispensary run by the Municipal

Corporation Jalgaon namely Mohammad Yusuf

1 AIR 2016 SC 5176

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Ayurvedic Dispensary. Even there also hardly

two or three patients visit the dispensary.

It is further submitted that, it appears from

the record that, the appointment orders were

issued without advertisement, and therefore,

the appointments cannot be regularized. In

this reference, the Government Resolutions /

Directions dated 25.08.2005, 16.11.2006 and

27.02.2008 clearly state that these

candidates are to be treated as back door

entry and they should be removed from their

posts. It is further submitted that, as far

as the present petitioner is concerned, she

was appointed on 01.11.1999 and her services

came to an end on 24.06.2002. Thereafter, she

was not on duty in the Jalgaon Municipal

Corporation. She was re-appointed on

22.02.2007 due to litigation. She has not

completed continuous service of 10 years

without intervention of the Court.

Therefore, she is not entitled for the

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benefit of law laid down in the case of

Secretary, State of Karnataka & others Vs.

Umadevi & others2.

4] Learned counsel appearing for

respondent no.3 relying upon the averments in

the affidavit-in-reply submits that,

respondent no.3 possesses requisite

qualification. She is appointed since the

year 1990. She was required to approach the

Industrial Court at Jalgaon twice. It is

submitted that, the State Government, vide

its communication dated 24th June, 2007, had

given approval to the appointment of

respondent no.3. The Directorate of Medical

and Research has also issued a letter to the

Municipal Corporation, Jalgaon, on 30th June,

2004, and thereby communicated that,

respondent no.3 is eligible to practice in

State of Maharashtra.

5] Learned counsel appearing for 2 [2006] 4 SCC 1

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respondent no.4 submits that, notice is

issued to respondent no.4 to terminate his

services. It is submitted that, the

allegations made as against respondent no.4

in the Petition are contrary to the record.

Learned counsel further submits that,

respondent no.4 was appointed on 13.12.1999

as Medical Officer, thereafter by Resolution

No.468 dated 21.10.2001 continued for a

period of one year. Thereafter, respondent

no.4 filed ULP No.63/2002 before the Labour

Court, seeking continuity of service. The

Labour Court granted status quo and

thereafter respondent no.4 is continued in

service. The Jalgaon Municipal Corporation,

by Resolution No.108 dated 18.06.2005,

granted approval to the appointment of

respondent no.4 on consolidated salary of

Rs.10,000/- from 1st July, 2005. Respondent

no.4 is nominated by his grandfather, who was

the freedom fighter, namely Shri Barku Bala

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Patil. The said nomination is also accepted

by the Government of Maharashtra. Respondent

no.4 is continued in service, and rendered

uninterrupted service, and the approval was

granted to his service as Medical Officer by

order dated 3rd May, 2013. Therefore, the

petitioner has no locus standi to challenge

the appointment of respondent no.4. There is

inordinate delay in challenging the order

dated 3rd May, 2013, which is not

satisfactorily explained.

6] We have considered the submissions

of the learned counsel appearing for the

respective parties. With their able

assistance, we have carefully perused the

pleadings in the Petition, annexures thereto,

affidavit-in-replies and additional affidavit

in reply filed by the respective respondents.

The Petition and also replies filed by the

respondents raise disputed questions of

facts, and therefore, it is not desirable to

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undertake exercise of adjudication of the

disputed questions of facts while exercising

writ jurisdiction. Respondent no.2 has made

statement in the additional affidavit-in-

reply that, there is no work available to the

Ayurvedic Doctors in Municipal Corporation,

Jalgaon. There are no patients requiring

Ayurvedic treatment. Therefore, if there is

no workload available and already the

services of respondent no.4 have been

terminated, in our opinion, it is not

desirable to issue any mandatory directions

to respondent no.2 in terms of the prayers in

the Petition. However, in our opinion,

respondent no.2 may undertake exercise to

find out availability of work befitting

educational qualification of the petitioner,

and also respondent nos.3 and 4, on the

establishments of the Municipal Corporation.

Thereafter, if the work is available, keeping

in view above observations, take decision

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regarding grievances raised by the

petitioner, and also respondent nos.3 and 4

on its own merits.

7] Para No.53 of the judgment in the

case of Secretary, State of Karnataka &

others Vs. Unamdevi & others [cited supra]

reads thus:

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa3, R.N.Nanjundappa4 and B.N.Nagarajan5 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten year or more but without the intervention of orders of the courts or of tribunals. The

3 [1967] 1 SCR 128 4 [1972] 1 SCC 409 5 [1979] 4 SCC 507

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question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that

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regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

8] In the light of discussion herein

above, it would be appropriate for respondent

no.2 to take into consideration the

qualifications of the petitioner and

respondent nos.3 and 4, length of service

rendered by them with the Municipal

Corporation, experience gained by them while

working on the establishment of the Municipal

Corporation, while considering their

grievances, and give weightage to the

aforesaid factors, as and when the workload

would be available on the establishment of

the Municipal Corporation in future. We

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impress upon respondent no.2 that,

Corporation may not proceed to appoint any

other candidates for the work available

befitting the qualifications of the

petitioner and respondent nos.3 and 4 in

future, unless the claim of the petitioner is

considered on merits, keeping in view the

discussion herein above.

9] With the above observations, Writ

Petition stands disposed of.

10] We make it clear that, we have not

made any observations on merits about the

entitlement either of the petitioner or

respondent nos.3 and 4.

            [SUNIL K.KOTWAL]            [S.S.SHINDE]
                 JUDGE                      JUDGE  

          DDC