Sahebrao Vitthalrao Jondhale And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 11885 Bom

                                                                   903-wp-3010-2020.odt



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                903 WRIT PETITION NO.3010 OF 2020 WITH
                     CA/2246/2020 IN WP/3010/2020

          SAHEBRAO VITTHALRAO JONDHALE AND OTHERS
                                  VERSUS
            THE STATE OF MAHARASHTRA AND ANOTHER
                                      ...

Advocate for Petitioners : Mr. C.R. Thorat Advocate for Applicant in CA/2246/2020 : Dr. Swapnil D. Tawshikar AGP for Respondent/State : Mr. S.B. Pulkundwar Advocate for Respondent No.2 / (for Respondent No.11 in CA/2246/2020) : Mr. R.K. Ingole ...

CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, J.J.

DATED : 26th AUGUST, 2021

PER COURT:-

1. The petitioners have put-forth prayer clause (A) and (B) as

under:

"A. By issuing Writ of Certiorari or any other appropriate Writ or direction in the like nature, the impugned order dated 28.01.2020 issued by the Desk Ofcer, Urban Development Department, Government of Maharashtra may kindly be quashed and set aside.

B. Pending hearing and till fnal disposal of this Writ Petition, be pleased to stay the impugned order dated 28.01.2020 issued by the Desk Ofcer, Urban Development Department, Government of Maharashtra."

2. By virtue of the interim order dated 20.02.2020, the

petitioners services in the Class-III category have been protected.

3. We have extensively heard the learned counsel for the

903-wp-3010-2020.odt

respective sides including the learned advocate for the intervener. We

have perused the judgment delivered by the learned Industrial Court,

Jalna dated 08.02.2019 in Complaint (ULP) No.54 of 2017 fled by the

intervener, who had tried to canvass that as these petitioners were

illegally recruited in the Class-III category, though the Lad-Page

recommendation (vashila paddhat) does not permit appointment to

Class-III categories, save and except Class-IV categories. There is no

dispute that these petitioners have been recruited in 2009 under the

Lad-Page recommendations. However, the respondent - corporation

inducted them in employment in Class-III category. The learned Industrial

Court has analyzed the Lad-Page recommendations and has come to a

conclusion that the said settlement provides for appointment of daily

wagers only in the Class-IV category.

4. When the impugned order dated 28.01.2020 was passed

due to the complaint fled by the intervener, who has not been added as a

respondent in this petition, these petitioners were not heard. Hence the

prayer at clause (A). It is canvassed that these petitioners have been

working in the Class-III category from 2009 onwards.

5. We are of the view that if an illegality has been committed,

passage of time would not cure the illegality. Nevertheless, the petitioners

have a right of hearing if they are to be shifted to the Class-IV category on

the ground that the Lad-Page recommendations does not permit the

recruitment in the Class-III category.

6. There is no dispute that respondent no.2 - Nanded Waghala

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Municipal Corporation, through its Commissioner, is an appointing

authority. As such, the corporation need not approach the secretary of the

municipal corporation for guidance or decision. The corporation has to

consider the provisions of the Lad-Page recommendations and assess as

to whether the appointment of these petitioners were correctly made in the

Class-III category. If such appointment is unsustainable, the

Commissioner has to issue appropriate orders after hearing the

petitioners as well as the intervener.

7. In view of the above, this petition is partly allowed. The

impugned order dated 28.01.2020 is quashed and set aside.

8. As such, we direct these petitioners as well as the

intervention applicant, Shri Sumedh Bhagwanrao Bansode to appear

before the Commissioner - respondent no.2 on 08.09.2021 at 03.00 pm in

the ofce of the Commissioner. The Commissioner shall conduct a

hearing on this issue and especially in the light of the complaints fled by

the intervener, Shri Sumedh Bansode. We also permit all to enter their

written notes of submissions. After granting a reasonable opportunity of

hearing to the parties, the Commissioner shall pass a reasoned order as

expeditiously as possible and preferably on or before the 30 th day of

October, 2021. All contentions of the litigating parties are kept open.

9. Since the intervener Shri Bansode is said to have held out

threats of self immolation since his complaints against these petitioners

were not being looked into, we direct the said applicant to enter an

afdavit undertaking before the Commissioner - respondent no.2 herein

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and a copy to be fled in the registry of this Court in the said writ petition

clearly stating therein, that he will not hold out threats either of self

destruction or causing harm to anybody else in relation to any matter

connected with his employment or otherwise. Such afdavit shall be

entered in this Court as well as before the Commissioner - respondent

no.2, on or before 09.09.2021.

10. The civil application does not survive and stands disposed

off.

  (S.G. MEHARE. J)                         (RAVINDRA V. GHUGE, J)




Mujaheed//