Bombay High Court
Gajanan Hanmantrao Deshmukh vs The State Of Maharashtra And ... on 5 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7553 OF 2018
Gajanan Hanmantrao Deshmukh,
Age - about 32 years, Occu. Service,
R/o Hanumangad Road, Keshve Nagar,
Nanded, Dist. Nanded ..PETITIONER
VERSUS
1. The State of Maharashtra,
Through the Secretary,
Rural Development & Water Conservation
Department, Mantralaya,
Mumbai
2. The President,
The District Selection Committee at
Parbhani & The District Collector
at Parbhani
3. Agriculture Development Officer (ADO),
Zilla Parishad, Parbhani, Dist. Parbhani
4. Chief Executive Officer of Zilla Parishad
Parbhani at Parbhani, Dist. Parbhani
5. The Divisional Commissioner,
Aurangabad, Dist. Aurangabad
6. Principal Secretary,
Planning Department,
Mantralaya, Mumbai ..RESPONDENTS
Mr S.S. Thombre, Advocate for the petitioner;
Mr S.B. Yawalkar, AGP for respondent Nos.1, 2, 5 & 6
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CORAM : RAVINDRA V. GHUGE &
S.G. MEHARE, JJ.
DATE : 5th August, 2021
ORAL JUDGMENT (Per Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
2. The petitioner has preferred this petition for challenging
his disengagement vide order dated 2.7.2018. It is
undisputed that he was engaged by the order dated
14.3.2016 as an ad hoc Special Technical Officer, Mahatma
Gandhi National Rural Employees Guarantee Authority (for
short "MGNREGA"). His appointment was for an initial period
of two years. He was entitled for an extension subject to the
continuation of the scheme or the selection of a regularly
selected employee. As like the petitioner, two more
employees for the Parbhani region were appointed under the
said scheme. Mr Vishal Dattatraya Kadam was one amongst
these three ad hoc appointees, who was engaged as a Junior
Engineer in the Construction Division of the Zilla Parishad,
Parbhani.
3. The contention of the petitioner is that as he was an ad
hoc employee and was engaged under a scheme, the duration
of which is a matter of speculation, he could not be
disengaged to be replaced by another ad hoc employee. He,
therefore, submits that he is completely aware that he has no
right to the position in which he has been engaged as an ad
hoc employee under the scheme. However, he does have a
right to be engaged as an ad hoc employee until a regularly
selected candidate is appointed or the scheme is aborted or
brought to an end. He cannot be replaced by an ad hoc
employee.
4. Shri Bhavthankar, the learned Advocate representing
respondent nos.3 and 4 submits that under the said scheme,
the Parbhani District was allotted three positions. One such
position was allotted to the petitioner and another position
was allotted to Mr Vishal Kadam. The third position went to
Shri Divekar, who was also appointed for the second time, but
thereafter he has resigned from the said post. He then
submits that as the petitioner was an ad hoc employee, he
was disengaged and a permanent employee of the Zilla
Parishad was deputed in his place, though a regular selected
candidate is still not available.
5. A copy of the appointment order dated 15.6.2021 issued
in favour of Shri Vishal Kadam, as an order of continuation
under the said scheme, is placed before us. The same is
taken on record and marked as "X" for identification. Shri
Bhavthankar submits that along with the petitioner, Shri
Kadam was also disengaged. However, he approached the
Additional Commissioner by preferring an appeal in which he
questioned his disengagement. By order dated 23.1.2019,
the Additional Divisional Commissioner, Aurangabad partly
allowed the appeal and directed the Chief Executive Officer,
Zilla Parishad, Parbhani to grant a further tenure of temporary
engagement to Shri Kadam on the same position which he
had occupied as an ad hoc employee under the said scheme
two years ago. The Zilla Parishad has accepted the order of
the Additional Divisional Commissioner and by implementing
the same, the continuation order dated 15.6.2021 has been
issued to Shri Kadam.
6. In the light of the above, we see no difference between
the case putforth by the petitioner and that of Shri Kadam.
Both were engaged under the "MGNREGA". Both are ad hoc
employees. Both were aware that they have no right to seek
regularization or absorption in employment and and that they
can be continued as ad hoc employees till the scheme lasts,
or a regular selected candidate is available, unless any of
them commits any misconduct . The Additional Divisional
Commissioner has passed an order granting continuation to
Shri Kadam. The petitioner is before us since 4.7.2018. In
these facts, we do not find it appropriate to direct the
petitioner to approach the same Additional Divisional
Commissioner as like Shri Kadam for seeking the same relief.
He would have to spend further time before the said authority
for seeking the same relief, which he has sought from this
Court.
7. In view of the above, we are exercising our extra-
ordinary jurisdiction and we are entertaining this petition. The
same is, therefore, partly allowed. Since the appointment
granted to the petitioner was an ad hoc engagement and as
he is out of employment since July, 2018, we would not be
directing reinstatement with continuity and back wages as the
petitioner was an ad hoc employee and we do not wish to tax
the State Exchequer by granting back wages by applying the
principle of 'no work - no pay'. However, akin to the order
granted in favour of Shri Vishal Kadam, we direct respondent
no.4 to issue a similar order to the petitioner within 15 days
from today.
8. The petitioner makes a statement that as he is an ad
hoc employee, he would not be seeking regularization in
employment, save and except being subject to any decision
in this context taken by the Government. Needless to state,
all the three employees engaged for the Parbhani region shall
be treated alike.
9. Rule is made absolute in the above terms. No order as
to costs.
(S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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