Bedi Eknath Bichkule vs The State Of Maharashtra And ...
2018 Latest Caselaw 964 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                      WRIT PETITION NO.5435 OF 2014


 Bebi Eknath Bichkule,
 Age-54 years, Occu:Service,
 R/o-Pirachi Pimpalwadi,
 Tq-Paithan, Dist-Aurangabad.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through its Secretary,
    Health Department,
    Mantralaya, Mumbai-400032,

 2) The District Health Officer,
    Aurangabad,

 3) The Chief Executive Officer,
    Zilla Parishad, Aurangabad.   
                                 ...RESPONDENTS

                      ...
    Mr.Ajay Shinde Advocate for Petitioner.
    Mr.S.B. Yawalkar, Additional Government
    Pleader for Respondent No. 1.
    Mr.M.C. Swami Advocate for Respondent
    Nos.2 and 3.       
                      ...

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

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DATE OF RESERVING JUDGMENT : 17TH JANUARY, 2018

DATE OF PRONOUNCING JUDGMENT: 25TH JANUARY, 2018

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Petition is filed with following

substantive prayer:

"B) By issuing writ of certiorari or any other

writ, order or directions in the like nature, the

impugned order dated 9.05.2014 issued by the

respondent No.3 may kindly be quashed and set

aside thereby directing the respondents to grant

promotion to the petitioner on the post of

Sweeper/Peon in Class 4 and for that purpose issue

necessary orders."

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3. It is the case of the Petitioner that on

9th June, 1986, she came to be appointed as

Temporary Sister with the Primary Health Centre,

Dhakephal and her name stood at Sr. No.3 in the

chart of appointments and since her appointment

from 1986 till today the Petitioner is working as

a Temporary Sister at Primary Health Centre,

Pimpalwadi, Tq-Paithan, Dist-Aurangabad. It is the

case of the Petitioner that Respondent No.2 -

District Health Officer, Zilla Parishad,

Aurangabad has prepared the seniority list on 22nd

April, 1987 which shows that the name of the

Petitioner is at Sr. No.69. The Petitioner has

passed 4th class examination in the year 1989,

which is the eligibility for the promotion as a

Sweeper. Though another employee namely, Smt.

Malanbai Ghodke is far junior to the Petitioner,

instead of the Petitioner said Malabai Ghodke is

promoted on the permanent post of Sweeper.

4. It is the case of the Petitioner that the

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medical officer has issued various certificates

which shows that the Petitioner is working well

and there is no any complaint against the

Petitioner in respect of her work. It is submitted

that the Petitioner was not having any knowledge

about the seniority list and promotions. After

getting the knowledge of the promotions, the

Petitioner filed the representation dated 9th

December, 2013 stating that she is qualified and

having requisite qualification for permanency,

therefore she may be promoted as a peon. It is

submitted that as sought by Respondent Zilla

Parishad, legal opinion is submitted by their

panel Advocate on 28th February, 2014, which is in

favour of the Petitioner.

5. It is further the case of the Petitioner

that The Divisional Commissioner, Aurangabad vide

its letter dated 16th April, 2014 directed

Respondent No.3 Chief Executive Officer, Zilla

Parishad, Aurangabad to decide the

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representation/claim of the Petitioner at his

level, in view of the Government policy and the

relevant provisions of law. In pursuance of the

said letter, Respondent No.2 has called the record

of the Petitioner. Respondent No.3 - Chief

Executive Officer, Zilla Parishad, Aurangabad vide

its order dated 9th May, 2014 rejected the claim

of the Petitioner thereby stating that in view of

the Government Resolutions dated 25th August, 2005

and 9th August, 2011 the Petitioner is not

entitled for permanency. Hence this Petition.

6. Learned counsel appearing for the

Petitioner submits that the Petitioner came to be

appointed with the Respondents way back in the

year 1986 and therefore the Government Resolutions

dated 25th August, 2005 and 9th August, 2011

cannot be made applicable retrospectively. He

submits that the Petitioner has passed 4th

standard examination in April, 1989 and therefore

the Petitioner is entitled to be promoted as

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Sweeper/peon. He further submits that by ignoring

the claim of the Petitioner, the employee who is

far junior to the Petitioner has been promoted by

the Respondents. He therefore submits that the

Petition deserves to be allowed.

7. Learned Additional Government Pleader

submits that the Respondents have rightly rejected

the claim of the Petitioner as no posts of

permanent peon/sweeper are available with the

Zilla Parishad, Aurangabad.

8. Learned counsel appearing for Respondent

Nos.2 and 3, relying upon the affidavit in reply

filed by Pundlik s/o Anandrao Athavale, Statistic

Officer, Zilla Parishad, Aurangabad submits that

as per office order dated 31st March, 1989, twenty

temporary peon were promoted to the post of

permanent peon. Passing of 4th Standard is

essential qualification for the post of permanent

post. When the said promotions were given on 31st

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March, 1989 at that time the Petitioner was not

possessing requisite qualification of passing of

4th standard examination. The Petitioner acquired

the said qualification in April, 1989 when the

promotion orders were already issued. At the

relevant time of issuing promotion orders, said

Malanbai Ghodke was possessing the requisite

qualification of passing of 4th standard

examination and therefore though she was junior

than the Petitioner, she was promoted on the post

of permanent post.

9. In support of his submissions, learned

relied upon the ratio laid down by the Supreme

Court in the case of A. Umarani vs. Registrar, Co-

operative Societies and others1, submits that it is

a settled proposition that the appointment made in

violation of the mandatory provision of the

statute and in particular ignoring the minimum

1 A.I.R. 2004 S.C. 4504(1)

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educational qualification and other qualifications

would be wholly illegal and such illegality cannot

be cured by taking recourse of regularization.

Regularization cannot be given to the employees

whose services are ad-hoc in nature. In support of

his submissions, learned counsel also relied upon

the ratio laid down by the Supreme Court in the

Case of Dr. (Mrs.) Chanchal Goyal vs. State of

Rajasthan2.

10. Referring to another affidavit in reply

filed by District Health Officer, Zilla Parishad,

Aurangabad, learned counsel appearing for

Respondent Nos.2 and 3 submits that, as on today

166 employees are working on temporary basis in

Health Department. If the Petitioner is absorbed

on permanent post, then remaining 165 employees

also required to be regularized on permanent posts

which is against the circular passed by the

Government and against the ratio laid down by the

2 A.I.R. 2003 S.C. 1713(1)

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Supreme Court. Therefore, he submits that the Writ

Petition may be rejected.

11. The Petitioner has also filed rejoinder

affidavit and denied the averments made by the

Respondents in its affidavit in reply.

12. We have carefully considered the

submissions of the learned counsel appearing for

the Petitioner, learned Additional Government

Pleader appearing for the State and learned

counsel appearing for Respondent Nos.2 and 3. With

their able assistance, we have perused the grounds

taken in the Petition, annexures thereto,

affidavit in reply filed by the Respondents and

rejoinder filed by the Petitioner.

13. It is clear from the perusal of the

documents placed on record that at the relevant

time when the promotions were given to the

employees, the Petitioner was not possessing the

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requisite qualification of passing of 4th standard

examination. One Malanbai Ghodke, though junior to

the Petitioner, as she was possessing the

requisite qualification at the relevant time, she

was promoted on the post of peon. Therefore the

grievance raised by the Petitioner in this respect

is without any substance and the same cannot be

entertained.

14. During the pendency of this Petition, by

order dated 9th January, 2018 this Court directed

the Respondent Nos.2 and 3 to to file short

affidavit stating therein the position of

vacancies of the post of peon. In response to the

said directions, Respondent Nos.2 and 3 filed

additional affidavit and submitted that, the

office record shows that as per the roster balance

there is no vacancy available for the post of

peon. It is further stated that as per the roster

balance, 7 posts are already in excess category.

Thus, it is clear that not a single post of

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permanent peon is available in the establishment

of Respondent Nos.2 and 3. In such situation, when

the post of peon is not available, the prayer of

the Petitioner to direct Respondent Nos.2 and 3 to

promote her on the permanent post of peon, cannot

be entertained.

15. The Supreme Court in the case of

Secretary, State of Karnataka and others vs.

Umadevi (3) and others3 , while considering the

issue of absorption, regularization or permanent

continuance of temporary, contractual, casual,

daily-wage or adhoc employees appointed/recruited

and continued for long in public employment dehors

the constitutional scheme of public employment, in

Para 53 of the Judgment dated 10th April, 2006,

held as under:

"53. One aspect needs to be clarified.

There may be cases where irregular appointments (not illegal appointments) as

3 (2006)4 S.C.C. 1

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explained in S.V. Narayanappa 4, R.N. Nanjundappa5 and B.N. Nagarajan6 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 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 above referred 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 onetime 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. 4 A.I.R. 1967 S.C. 1071 5 (1972) 1 S.C.C. 409 6 (1979) 4 S.C.C. 507

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We also clarify that 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."

16. Keeping in view these observations of the

Supreme Court, Respondent No.2 - the District

Health Officer, Aurangabad and Respondent No.3 -

the Chief Executive Officer, Zilla Parishad,

Aurangabad are directed to prepare the proposal of

the employees similarly situated like the

Petitioner and who have served for more than ten

years before the pronouncement of the Judgment in

the case of Secretary, State of Karnataka and

others vs. Umadevi (3) and others, cited supra,

and who are not made permanent, within the period

of ten weeks from today mentioning therein the

necessary details of their dates of joining,

nature of duties performed by them and the salary

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being paid to them. Such proposal shall be

forwarded to the Health Department of the

Government of Maharashtra.

17. On receipt of such proposal, the

concerned Department shall consider the cases of

the Petitioner as well as the similarly situated

employees serving on the establishment of Zilla

Parishad, Aurangabad, and take a policy decision,

whether the posts can be created with Aurangabad

Zilla Parishad and whether such employees could be

accommodated on such posts and whether their

services could be regularized.

18. The Health Department, Government of

Maharashtra shall take such decision within the

period of SIX MONTHS from the date of receipt of

the proposal. The decision so taken shall be

communicated to the Zilla Parishad, and the Zilla

Parishad shall convey the said decision to the

Petitioner and similarly situated employees.

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19. In case any adverse decision is taken,

the Petitioner will be at liberty to avail of an

appropriate remedy as available in law to seek

redressal of her grievances.

shall continue the Petitioner in employment on the

same terms and conditions subject to revision in

the amount of salary and shall not terminate her

services only on the ground that she is a

Temporary Sister. Respondent Nos.2 and 3 shall

continue to pay the Petitioner the salary on

monthly basis. Such continuance in employment will

be as per the scheme applicable.

21. Rule is made partly absolute in the above

terms.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JAN18