Bombay High Court
Kailash Shivramappa Varad & Ors vs State Of Maha & Ors on 23 January, 2018
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6190 OF 2004
1. Kailash s/o Shivrajappa Varad PETITIONERS
Age - 37 years, Occ - Service (JE)
2. Kisan s/o Dadarao Satpute
Age - 36 years, Occ - Service (Clerk)
3. Zafar Mehfooz Ansari
Age - 33 years, Occ - Service (Chowkidar)
4. Mehboob Nabisab Bandgi
Age - 48 years, Occ - Service (Clerk)
5. Musa Moinuddin Mubarak
Age - 28 years, Occ - Service (Clerk)
6. Waman Govindrao Shinde
Age - 50 years, Occ - Service (Clerk)
7. Vithal Baburao Nawade
Age - 43 years, Occ - Labour
8. Rajendra Narayan Kamble
Age - 47 years, Occ - Labour
9. Balaji Kisan Nawade
Age - 35 years, Occ - Labour
10. Dilip Sadashiv Londhe,
Age - 37 years, Occ - Labour
11. Amir Azizmiyan Sheikh
Age - 37 years, Occ - Service (Pump Operator)
12. Vithal Madhavrao Kaudgave
Age - 40 years, Occ - Service
13. Balaji s/o Rangrao Niture
Age - 36 years, Occ - Service
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14. Sadhu Bhaurao Ture
Age - 41 years, Occ - Service (Labour)
15. Smt. Aruna Vithal Kaudgave
Age - 34 years, Occ - Service (Clerk)
16. Mohan Jairam Solunke
Age - 47 years, Occ - Driver
17. Bhanudas Tukaram Shinde,
Age - 49 years, Occ - Labour
18. Shankar s/o Vishwanath Talnikar
Age - 45 years, Occ - Labour
19. Maqbool Mohd. Ali Quadri
Age - 44 years, Occ - Labour
All are working in the Municipal
Council, Nilanga, District - Latur
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai 32
2. The Director of Municipal Administration
New Administrative Building,
15th Floor, Mantralaya, Mumbai
3. The Divisional Commissioner and Regional
Director, Municipal Administration,
Aurangabad Division, Aurangabad
4. The Collector,
Latur
5. The Municipal Council, Nilanga
Through its Chief Executive Officer.
.......
Mr. Ajinkya Kale h/f Mr. S. B. Talekar, Advocate for the petitioners
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Mrs. V. S. Chaudhari, AGP for respondent - State
Mr. S. G. Rudrawar, Advocate for respondent No. 5
.......
[CORAM : SUNIL P. DESHMUKH &
P. R. BORA, J.J.]
DATE : 23rd JANUARY, 2018
ORAL JUDGENT (PER SUNIL P. DESHMUKH, J.) :
1. Mr. Kale, learned advocate appearing on behalf of the
petitioners, at the outset, conveys that the petitioners confine
challenge in present writ petition to order dated 8 th April, 2004 at
Exhibit-A of the writ petition, wherein respondent No. 3 has
directed respondent No. 5 to recover excess salary paid to the
petitioners treating them as daily wagers. Mr. Kale further
conveys that the petition is restricted for reliefs to petitioners
No. 1 to 17 only.
2. Petitioners No.1 to 17 have been working in respondent
No. 5 municipal council from 1987 onwards. Their appointments
have taken place during 1987 to 1992. The petitioners were
initially appointed as daily wagers, as referred to in the chart
annexed to the writ petition at Exhibit-C. It is not in dispute that
the petitioners were working as class III and class IV servants.
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3. By virtue of order dated 20 th December, 1995, respondent
No. 3 had created seventeen posts on the establishment of
Municipal Council, Nilanga. The municipal council had submitted
proposals to accord approval to regularization of services on the
posts which were created and sanctioned by the State
Government as aforesaid.
4. Response had been received from Deputy Director of
Municipal Administration that the matter of regularization of
service of municipal employees was under consideration.
Resolutions of the municipal council which were communicated
to respondent No. 3 were responded to by Deputy Director of
Municipal Administration, Mumbai, referring to that approval has
already been accorded for creation of seventeen posts under
resolution of October, 20, 1995 and said posts were required to
be filled in by prescribed procedure or the municipal council was
competent to fill up the posts by promotion of the employees, at
its level.
5. Pursuant to the same, the chief officer of municipal council
purported to regularize service of the petitioners with effect from
23rd September, 1997. The pay scales of the posts underwent
revision under Fifth Pay Commission Recommendations, in 2000.
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It appears that there had been an attempt to challenge decision
of the municipal council before the Collector and the challenge
had been negatived by the Collector.
6. Learned advocate for the petitioners submits that in the
face of aforesaid situation, communication issued dated 8 th
April, 2004 to which the challenge has been confined, is
improper. He submits that while there had been a
communication from the Deputy Director of Municipal
Administration, Mumbai stating that municipal council is
competent to fill up the posts at its level by promotion, the
impugned communication to the effect that the filling up of posts
being not in accordance with prescribed procedure is untenable.
7. He specifically adverts to that as a matter of fact, by even
dated order, appointments of the petitioners in their respective
posts have been approved and regularized with effect from 20 th
April, 2001. He contends, in such a case, impugned order under
which recovery of claimed excess payment of salary has been
sought, is not proper.
8. He purports to support his submissions based on quite a
few decisions, namely, "State of Punjab V/s Rafiq Masih"; AIR 2015 SC
1267, "High Court of Punjab and Haryana and others V/s Jagdev Singh"; (2016)
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14 SCC 267, and "Ravindra V/s State of Maharashtra and Others"; 2013 (3)
ALL MR 383, He points out that division bench of this court in the
case of Ravindra (Supra) had referred and followed the decision
of the Supreme Court in the case of High Court of Punjab and
Haryana (supra). He puts special emphasis on paragraph No.10
of the decision of the Apex Court.
9. Learned AGP Mrs. Chaudhari contends that appointments
of the petitioners to the posts created cannot be said to have
been by following due procedure and in such a case, the
impugned order has been passed, since there is difference in pay
to regularized posts and pay to daily wagers. The petitioners are
to be treated as daily wagers up to the date of regularization of
their services. As such, recoveries have been claimed. She
submits that the municipal council has committed an error in
recruiting petitioners dehors the prescribed procedure and thus
the recoveries are justifiable.
10. Mr. Rudrawar, learned advocate appearing for respondent
No. 5 municipal council states that recruitment of the petitioners
have been made with reference to correspondence in that
respect with the State authorities including respondent No.3. He
refers to that in the correspondence, it has been referred to that
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posts may be filled in from the daily wagers. According to him,
communications give liberty to the municipal council to recruit
employees at its level. Having regard to that the petitioners were
qualified to be appointed and had been working from long time
and the posts had been available, they were considered and
appointed accordingly. He, however, leaves it to the court to
decide the writ petition in accordance with merits of the case.
11. From aforesaid, it emerges that the posts were created in
1995 under the State Government Order dated 20 th December,
1995. It will further be pertinent to note that the very resolution
by which posts were created, refers to that posts be kept vacant
for daily wagers. It had been left to the municipal council to fill
up the posts at its level treating the municipal council to be
competent. There had been exchange of correspondence among
the parties. It is not the case of any of the respondent that the
petitioners are not qualified to hold the posts they are
occupying. As a matter of fact, it appears that on the very day
by a separate order appointments of the petitioners have been
regularized with effect from 20th April, 2001. It is not in dispute
that the petitioners were working as class III and class IV
servants. It further will have to be noted that no deliberate role
in their such appointments have been attributed to the petitioners.
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12. In the circumstances, we deem it appropriate to follow
decisions thus far, particularly the one i.e. (2016) 14 SCC 267
(supra) wherein it has been observed thus -
" 10. In State of Punjab V. Rafiq Masih (2015) 4 SCC 334, this Court
held that while it is not possible to postulate all situations of hardship
where payments have mistakenly been made by an employer, in the
following situations, a recovery by the employer would be impermissible
in law:
(i) Recovery from employees belonging to Class III and Class IV
service (or Group C and Group D service) "
13. It would thus emerge that recovery by employer would be
impermissible in law from the class III and class IV cadre
employees. Having regard to aforesaid, the petition partly
succeeds. Order at Exhibit-A dated 8th April, 2004 is quashed and
set aside. Recoveries sought to be made from petitioners No.1 to
17 thereunder would not be made. Rule is made absolute
accordingly.
[P. R. BORA, J.] [SUNIL P. DESHMUKH, J.]
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