Bombay High Court
Manisha D/O Khushal Thulkar vs Zilla Parishad, Through Its Chief ... on 13 August, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Misc. Civil Application (Review) No. 298/2020 in CIVIL APPLN. (W) NO.
411 OF 2020 (D) IN W.P. NO.17 OF 2019 (D)
Zilla Parishad, Bhandara
-Vs.-
Smt. Kunda D/o Gopichand Gawande and others
WITH
CIVIL APPLN. (CAO) NO. 574 OF 2020
IN
M.C.A. ST. NO. 7449 OF 2020 IN W.P. NO.108 OF 2019 (D)
Smt. Mamta Bhimrao Bhavsagar
-Vs.-
Zilla Parishad, Bhandara and others
WITH
CIVIL APPLN. (CAO) NO. 576 OF 2020
IN
M.C.A. ST. NO. 7455 OF 2020 IN W.P. NO.107 OF 2019 (D)
Sushila D/o Sukhdeo Selote
-Vs.-
Zilla Parishad, Bhandara and others
WITH
CIVIL APPLN. (CAO) NO. 575 OF 2020
IN
M.C.A. ST. NO. 7459 OF 2020 IN W.P. NO.18 OF 2019 (D)
Manisha D/o Khushal Thulkar
-Vs.-
Zilla Parishad, Bhandara and others
WITH
Misc. Civil Application No. 319/2020 IN
W.P. NO. 5967 OF 2018 (D)
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Chief Executive Officer, Zilla Parishad Gondia and others
-Vs.-
Sangita Shriram Madavi and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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MCA No. 298/2020
Mr. R.V. Bhanarkar, Advocate for the applicants
Mr. R.S. Khobragade, Advocate for the respondent No.1
Mr. S.D. Sirpurkar, AGP for the respondent No.2
CAO No.574/2020
Mr. P.D.Meghe, Advocate for the applicant
Mr. R.S. Khobragade, Advocate for the respondents No.1 and 2
Mr. S.D. Sirpurkar, AGP for the respondents No.3 and 4
CAO No.576/2020
Mr. P.D.Meghe, Advocate for the applicant
Mr. R.S. Khobragade, Advocate for the respondents No.1 and 2
Mr. S.D. Sirpurkar, AGP for the respondents No.3 and 4
CAO No.575/2020
Mr. P.D.Meghe, Advocate for the applicant
Mr. R.S. Khobragade, Advocate for the respondents No.1 and 2
Mr. S.D. Sirpurkar, AGP for the respondents No.3 and 4
MCA No. 319/2020
Mr. A.Y. Kapgate, Advocate for the applicants
Mr. R.V. Bhanarkar, Advocate for the respondent No.1
Mr. S.D. Sirpurkar, AGP for the respondents No.2 and 3
CORAM : MANISH PITALE, J.
RESERVED ON: AUGUST 10, 2021
PRONOUNCED ON: AUGUST 13, 2021
These five review applications have been filed
seeking review of common judgment and order dated
19/11/2019, passed by this Court in Writ Petition No.
5967 of 2018 and connected Writ Petitions, as also
common judgment and order dated 13/03/2020,
passed by this Court in Writ Petition No. 17 of 2019
and connected Writ Petitions.
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2. This Court issued notice in the review
applications by recording that the learned counsel
appearing for the review applicants have relied upon
on order dated 11/02/2020, passed by the Division
Bench of this Court (Aurangabad Bench), wherein
allegedly similarly situated persons were granted
relief of regularization, while this Court in the
judgments of which review is sought, had declined to
uphold directions for regularization passed by the
Industrial Court. A reference was also made to order
dated 06/07/2020, passed by the Hon'ble Supreme
Court in Special Leave Petitions filed against the
aforesaid judgment and order dated 19/11/2019,
passed by this Court in Writ Petition No. 5967 of
2018 and connected Writ Petitions. It was brought to
the notice of this Court that the Hon'ble Supreme
Court, while dismissing the Special Leave Petitions,
had granted liberty to the review applicants to
approach this Court by filing review applications by
placing reliance upon the aforesaid order of the
Division Bench of this Court (Aurangabad Bench). It
is also recorded in the order of the Hon'ble Supreme
Court that the review applicants would be at liberty
to approach the Hon'ble Supreme Court, if the
necessity arose. It is in this backdrop that notices
were issued in the review applications. The
respondent - Zilla Parishads of Gondia and Bhandara
appeared through counsel opposing the present
review applications.
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3. Mr. P.D. Meghe and Mr. Bhanarkar, learned
counsels appearing for the review applicants,
submitted that the aforementioned order dated
11/02/2020, passed by the Division Bench of this
Court (Aurangabad Bench), had granted relief of
regularization to employees of the Zilla Parishads,
similarly situated like the applicants herein and that,
therefore, the said judgments passed by this Court
deserved to be reviewed. On this basis, it was
submitted that orders passed by the Industrial Court
in favour of the review applicants deserved to be
confirmed by dismissal of the Writ Petitions filed by
the Zilla Parishad before this Court. It was submitted
that Auxiliary Nurse Midwifes (ANMs), who were
similarly situated like the review applicants herein
deserved to be regularized, as held by the Industrial
Court in their favour. According to the learned
counsel for the review applicants, Government
Resolution dated 02/05/2009, was specifically
considered by the Division Bench of this Court
(Aurangabad Bench), while granting the relief of
regularization to the review applicants.
4. Mr. P.D. Meghe, learned counsel appearing for
the review applicants specifically submitted that the
Zilla Parishads in the Nagpur Division, particularly
those of Gondia and Chandrapur had already granted
regularization of service to identically situated
employees (ANMs) and that, therefore, the review
applications deserved to be allowed. It was further
submitted that insofar as the review applicants -
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Mamta Bhimrao Bhavsagar, Sushila Sukhdeo Selote
and Manisha Khushal Thulkar, were concerned, the
Zilla Parishad - Bhandara itself had proposed their
regularization as per additional documents filed with
the review applications, thereby supporting the case
of the review applicants. The learned counsel further
sought to refer to the written submissions during
course of hearing of the Writ Petition in order to
buttress the submissions made on behalf of the
review applicants.
5. On the other hand, Mr. Kapgate, learned
counsel appearing for the Zilla Parishad - Gondia and
Mr. Khobragde, learned counsel appearing for the
Zilla Parishad - Bhandara submitted that the review
applicants had failed to demonstrate any error
apparent on the face of the record in the judgments,
of which review was sought. It was further submitted
that the factual position in the case of petitioners
before the Division Bench of this Court (Aurangabad
Bench), was clearly distinguishable because the
petitioners therein were appointed on contract basis
and they had continued as ANMs since the year 1997,
while the review applicants herein were admittedly
appointed on bonded service for a specific period.
The appointment orders of review applicants for
bonded service specifically stated the last date of such
bonded service and, therefore, this Court had held
that the Government Resolution dated 02/05/2009,
did not apply to the facts of the present case. It was
further submitted that the review applicants were
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virtually seeking a rehearing of the matter on merits,
which could not be permitted in review jurisdiction.
It was further specifically brought to the notice of this
Court by the learned counsel for the Zilla Parishad -
Bhandara that the contentions raised on behalf of the
review applicants that the said Zilla Parishad had
proposed regularization of the aforementioned three
review applicants, was factually incorrect. This was
because information was sought about the
employees, who had been appointed on bonded
service, if their services were to be regularized. This
did not mean that the Zilla Parishad had
recommended their regularization. On this basis, it
was submitted that the review applications deserved
to be dismissed.
6. Heard learned counsel for the rival parties. It
is an admitted position that review jurisdiction can be
exercised if there is an error apparent on the face of
the record and the matter cannot be opened for
rehearing on merits at the behest of the review
applicants. In the present review applications, the
applicants have strongly relied upon order dated
06/07/2020, passed by the Hon'ble Supreme Court in
Special Leave Petition (Civil) Diary No(s). 4032/2020
along with connected Special Leave Petitions (Sangita
Shriram Madavi Etc. Vs. Chief Executive Officer Zilla
Parishad Gondia & Ors. Etc.)
7. A perusal of the order passed by the Hon'ble
Supreme Court would show that the petitioners were
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permitted to withdraw the Special Leave Petitions
with liberty to approach this Court by filing review
petitions. Reliance placed by the learned counsel
appearing for the review applicants on the aforesaid
order of the Division Bench of this Court
(Aurangabad Bench), was recorded and it was
further specifically recorded that the petitioners are
given further liberty to approach the Hon'ble
Supreme Court, in case of any necessity. Thus, the
fulcrum of the arguments on behalf of the review
applicants, while seeking review of the judgment of
this Court, is the order dated 11/02/2020, passed by
the Division Bench of this Court (Aurangabad Bench)
in Writ Petition No. 7473 of 2019 (Ashabai Rangnath
Bansode & Ors. Vs. The state of Maharashtra & Ors.)
and the connected writ Petitions. It is contended that
since the Division Bench of this Court granted relief
of regularization to similarly situated employees of
Zilla Parishad working as ANMs, the judgment of this
Court deserved to be reviewed, the Writ Petitions
filed by the review applicants deserved to be
dismissed and the orders passed by the Industrial
Court in favour of the review applicants for
regularization deserved to be confirmed.
8. A perusal of the order dated 11/02/2020,
passed by the Division Bench of this Court
(Aurangabad Bench), in the aforesaid Writ Petition
shows that the petitioners therein were appointed on
contract basis in the year 1997. It is recorded that
the petitioners therein were continuously working as
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ANMs since 1997, when they were appointed on
contract basis. It is in this factual scenario that the
Division Bench of this Court (Aurangabad Bench),
applied Government Resolution dated 02/05/2009 to
the case of the petitioners therein. It is significant
that in the case before the Division Bench of this
Court (Aurangabad Bench), the Divisional
Commissioner had passed a specific order dated
17/10/2017, directing regularization of services of
the petitioners as ANMs. It is specifically recorded by
the Division Bench of this Court (Aurangabad Bench),
that the factual matrix was not in dispute. It is also
recorded that sanction was granted for regularization
of services of the 153 appointed candidates. It is
then recorded that the petitioners therein were not
granted relief of regularization due to issuance of
subsequent Government Resolution dated
05/05/2018. It is in the backdrop of such facts that
the Division Bench of this Court (Aurangabad Bench),
directed that the petitioners therein were entitled for
benefit of Government Resolution dated 02/05/2009
and specific order passed by the Divisional
Commissioner dated 17/10/2017, granting
regularization of services of the petitioners therein as
ANMs.
9. The facts in the present case are clearly
distinguishable from those in the Writ Petitions
decided by the Division Bench of this Court
(Aurangabad Bench). In the present case, all the
review applicants were appointed specifically for
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bond services of only two years and condition No.1 of
appointment orders specifically stated that services of
the review applicants would come to an end after
expiry of period of two years of bond service. This
Court recorded in the judgment and order dated
19/11/2019, passed in Writ Petition No.5967/2018
and connected Writ Petitions that much would turn
on interpretation of the Government Resolution dated
02/05/2009, in the face of admitted fact that
appointment orders issued in favour of the review
applicants were only for specific period of two years
with a condition stipulating that their services would
come to an end upon expiry of the two years period
of the bond service. The case of the review
applicants is not that they were appointed on
contract basis. It is on the basis of such specific
appointment orders of bond service that the review
applicants had approached the Industrial Court
seeking relief of regularization. It is only under
interim orders that the review applicants continued
in service during the pendency of the proceedings
before the Industrial Court.
10. In the judgment and order dated 19/11/2019,
passed in Writ Petition No.5967/2018 and connected
Writ Petitions, this Court in the context of
applicability of Government Resolution dated
02/05/2009, held as follows :
"(15) Having heard the learned counsel for the
rival parties, it becomes evident that while on
the one hand the petitioners have claimed that
the appointments of the contesting respondents
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were only for a specific period of two years of
bonded service, wherein regular selection
process was not followed and hence there was
no question of regularization, on the other hand
the contesting respondents have claimed that
they had vested right of being regularized in
service under GR dated 02.05.2009, particularly
when such regularization of service had been
granted to similarly situated persons. Much
would turn on interpretation of GR dated
02.05.2009, keeping in mind the fact that
Division Bench of this Court in Writ Petition
No.2791/2013 [ Pushpa Matthulal Katre &
others vs. Collector, Gondia and others ] has
held that a person identically situated like the
contesting respondents who was also appointed
for bonded service of only two years, was not
entitled to claim regularization under the
aforesaid GR dated 02.05.2009. Therefore,
before discussing the law on the question of
right of regularization of employees and the
emphasis placed in various judgments on the
necessity of filling posts in public employment
through regular selection process, rather than
back door entry, it would be necessary to advert
to the GR dated 02.05.2009, in order to
examine the rival claims made by the parties. A
perusal of the GR dated 02.05.2009, shows that
it is recorded that every year candidates like the
contesting respondents herein are appointed for
a period of bond of two years in Zilla Parishad
of the districts. It is further recorded that upon
the completion of the period of bond of two
years, the appointments of such candidates
come to an end and new set of candidates are
appointed on bond for a period of two years in
the post of ANM. Thereafter, it is recorded that
upon deducting the said posts of ANM, in which
candidates are appointed for specific period of
two years of bond service, from the total
sanctioned posts available of ANM, the number
of posts available for appointment by regular
procedure can be calculated. It is then provided
that such posts to be filled through regular
procedure would have to be filled as per the
prescribed procedure of selection and
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appointment. In paragraph 2 of the said GR it
is then recorded that the appointing authorities
must follow the aforesaid steps specified in
paragraph 1 and that it would be the
responsibility of Chief Executive Officer of the
Zilla Parishad to ensure that availability of
sanctioned posts is ascertained and that regular
appointments are made. It is further recorded
that the Divisional Commissioner is granted
powers to approve such appointments under the
Maharashtra Zilla Parishads District Services
(Recruitment) Rules 1967.
(16) In this context GR dated 19.10.2007,
becomes significant, which specifically provides
for procedure to be followed for making
appointments. This GR specifically provides
seven member District Selection Committee
headed by the Collector, of which the Chief
Executive Officer of Zilla Parishad is a member
and further that Head of the department of the
concerned department is also a member of the
said committee. Detailed process of written
examination and interview with the marks to be
allotted is also specified. It is evident that the
appointment against available vacancies of
sanctioned posts through regular process
specified in GR dated 02.05.2009, would mean
selection by the aforesaid seven member District
Selection Committee, so as to properly
implement the scheme envisaged in GR dated
02.05.2009.
(17) In the present case, a perusal of the
appointment order dated 19.10.2010, issued in
favour of the contesting respondents would
show that the appointments were made on the
names of the contesting respondents and others
being sponsored by the Joint Director of Health
Services. The appointment was specifically only
for a period of two years of bond service and
condition No.1 of the appointment order
specifically stated that the service would come
to an end upon expiry of period of two years of
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bond service. Thus, such appointments, as per
paragraph 1 of the GR dated 02.05.2009, were
only for posts of bonded service of two years,
upon expiry of which, the services would come
to an end and a new set of candidates for such
bonded service of two years would be
appointed. After deducting the number of such
posts for which appointments were being made
only for a period of two years bonded service,
the number of available sanctioned posts of
ANM would be ascertained and appointments to
such posts would have to be made through
regular procedure of issuance of advertising and
selection through the procedure specified and
elaborated in GR dated 19.10.2007.
(18) It appears that the Industrial Court and
the contesting respondents herein have
completely misinterpreted GR dated
02.05.2009, to mean that all such persons
appointed specifically only for a period of two
years bond service were entitled to be
regularized upon expiry of the said period,
despite the fact that the appointment order
stated that the services would come to an end
on the expiry of the period of two years. A
proper reading of GR dated 02.05.2009 would
show that such a contingency is not
contemplated. If the findings rendered by the
Industrial Court and the contentions raised on
behalf of the contesting respondents are to be
accepted, candidates appointed for specific
period of only two years of bonded service
would continue to get regularized and there
would be no posts available with passage of
time for making appointments through the
regular process as noted above. In this context,
it is significant that while making appointments
for bonded period of two years like that of
contesting respondents herein, the procedure of
issuing advertisement, inviting applications,
conducting written tests and interviews through
selection committee, was never undertaken.
This is an admitted position, because in the
evidence recorded before the Industrial Court,
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the contesting respondents admitted that they
were not aware as to whether any
advertisement was ever issued by the petitioner
No.1, before issuing the appointment order
dated 19.10.2010. In fact, a perusal of the said
order itself shows that the names of the
contesting respondents and others were simply
sponsored by the Joint Director of Health
Services. The claim made by the contesting
respondents that interviews were conducted is
falsified by the very document itself and it is
evident that before sponsoring such names, the
Joint Director Health Services merely verified
the documents of the contesting respondents.
In any case, there is no material on record to
show that the contesting respondents were
selected through a valid process of selection,
involving issuance of advertisement, inviting
applications, shortlisting of candidates,
evaluation through written test or interviews by
duly constituted selection committee,
specifically envisaged under GR dated
19.10.2007.
(19) Therefore, it becomes evident that the
claim of the contesting respondents that they
were entitled to regularization under GR dated
02.05.2009, is wholly misplaced. It appears
that the use of the word "regular" in GR dated
02.05.2009 in the context of appointments
required to be made through regular process of
selection has been confused with the word
"regularization" by the contesting respondents.
The Industrial Court has also erred in accepting
the said contentions of the contesting
respondents. In fact, the Industrial Court
committed a grave error in holding that GR
dated 02.05.2009 was an implied condition in
the appointment order dated 19.10.2010,
issued by the petitioner further erroneously
holding that the GR specifically provided for
regularization of candidates like the contesting
respondents."
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11. Since the other judgment of which the review
is sought i.e. judgment dated 13/03/2020, passed in
Writ Petition No.17/2019 and connected Writ
Petitions adopts the reasoning of the aforesaid
judgment and order dated 19/11/2019, passed in
Writ Petition No.5967/2018 and connected Writ
Petitions, the above quoted reasoning applies to the
case of all the review applicants before this Court.
12. The factual distinction between the case of the
petitioners in Writ Petition No. 7473/2019 and
connected Writ Petitions decided by order dated
11/02/2020, passed by the Division Bench of this
Court (Aurangabad Bench), and the review
applicants before this Court is obvious, for the reason
that the petitioners therein were appointed on
contract basis way back in 1997 and continued
thereafter as ANMs, while the review applicants in
these cases were specifically appointed for bonded
service only for two years in the years 2010, 2012
and 2015, with the aforesaid stipulated condition in
their appointment orders. Therefore, the review
applicants are not justified in claiming parity with the
petitioners before the Division Bench of this Court
(Aurangabad Bench), in the aforesaid Writ Petitions.
13. The learned counsel appearing for the
review applicants failed to demonstrate any error
apparent on the face of the record of the judgments,
of which review is sought. An attempt was made to
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reargue the matters on merits, which is wholly
impermissible under review jurisdiction.
14. Apart from this, the learned counsel appearing
for Zilla Parishad - Bhandara is fully justified in
contending that the review applicants i.e. Mamta
Bhimrao Bhavsagar, Sushila Sukhdeo Selote and
Manisha Khushal Thulkar, have not been
recommended for regularization of their services. It
is only because queries were made from the Ministry
at Mumbai about list of bonded service ANMs that
such information was provided. The learned counsel
for the Zilla Parishad - Bhandara strenuously
submitted that the review applicants and other such
similarly situated persons have been approaching the
State Government and elected representatives
claiming that they are entitled for regularization and
this has led to queries being issued from the Ministry
at Mumbai to the Zilla Parishads, who have merely
provided the list of such ANMs, who were appointed
on bonded services. It is submitted that such
communication cannot have any effect on the
interpretation and true purport of Government
Resolution dated 02/05/2009 and the fact that the
review applicants were appointed only for two years
as per their appointment orders on bond service with
a specific condition that their service would
discontinue on the expiry of the specific period of two
years.
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15. This Court has also considered all the
contentions raised on behalf of the rival parties and it
is found that the review applicants have not been
able to demonstrate any error apparent on the face of
the record on the judgments of which review is
sought and, therefore, review applications are found
to be without any merit.
16. Accordingly, the review applications are
dismissed.
JUDGE
MP Deshpande
