Bombay High Court
Jayshree Vishwanath Bhale And ... vs The State Of Maharashtra And ... on 9 February, 2021
Bench: S.P. Deshmukh, Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13713 OF 2018
1) Jayshree Vishwanth Bhale,
Age-33 Years, Occu:Service,
2) Vaishali Daoulat Patil,
Age-41 Years, Occu:Service,
3) Vibhavari Yogesh Khune,
Age-39 Years, Occu:Service,
4) Amol S/o Bhagwan Kove,
Age-33 Years, Occu:Service,
All R/o. C/o- Dhanaji Kadam, Near Pulse
Hospital, Shrikrishna Nagar, Osmanabad,
Tq. and Dist-Osmanabad.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through Secretary,
Women and child development Department,
Mantralaya, Mumbai-32,
2) The Commissioner,
Women and child development Department,
Office, Pune,
3) The Officer on special Duty,
Maharashtra Child Protection Society,
Women and child development Department,
Arjune Building, Pune,
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4) The Program Manager,
Child Protection Society,
Women and child development Department,
Arjune Building, Pune.
...RESPONDENTS
...
Mr.Sandip C. Swami Chakurkar Advocate for Petitioners.
Ms.Geeta L. Deshpande, A.G.P. for Respondents No. 1 and 2.
Respondents No. 3 and 4 served.
...
CORAM: SUNIL P. DESHMUKH AND
ABHAY AHUJA, JJ.
DATE : 9th FEBRUARY, 2021
ORAL JUDGMENT [PER SUNIL P. DESHMUKH, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel for the appearing parties finally, by consent.
2. Petitioners are before this court aggrieved by
communication dated 5th July 2017, whereunder the posts in
which they were working, recruitment to the same was sought to
be outsourced.
3. The petitioners are appointed on their respective
posts under "Integrated Child Protection Scheme" (ICPS),
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being implemented through State agency. Pursuant to the
scheme, the petitioners were appointed on contractual basis and
while they were on the verge of completion of tenure as referred
to in the scheme, impugned communication had been issued.
4. This court, while issuing notice, had protected the
interest of the petitioners by directing that they should be
continued and they shall not be forced to shift to alternate
agency.
5. Learned counsel for the petitioners, during the
course of hearing, has placed reliance on a decision of Jharkhand
High Court in Writ Petition (S) No. 20 of 2017 (Alok Burman and
others vs. Union of India and others), dated 24th November 2017, which,
according to learned counsel, has been given in similar
circumstances, whereunder, referring to decision of the Supreme
Court in the case of Md. Abdul Kadir and another vs. Director General of
Police, reported in (2009) S.C.C. 611, and decision of this court in the
case of Ajay and others vs. State of Maharashtra and others in writ petition
No. 9539 of 2012, dated 12th March 2014, it has been
considered that the rules by which the petitioners' appointments
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were to be affected, would not be retrospective in operation.
Having regard to aforesaid decisions, the high court had directed
to continue the services of the petitioners therein till the scheme
subsists or till the attainment of age of superannuation,
whichever is earlier.
6. Learned counsel has further referred to a decision of
division bench of this court at Nagpur Bench in writ petition
No. 7798 of 2017 (Mahesh S/o Ram Halde and others vs. the State of
Maharashtra and others), dated 4th March, 2019.
7. Learned AGP as well, refers to said decision and
draws attention to that the same has been annexed to the
affidavit-in-reply filed on behalf of the respondents. Learned AGP
fairly submits that the decisions would not be said to be of no
benefit to the petitioners.
8. Having regard to facts and circumstances, division
bench of this court at Nagpur bench in its decision in the case of
Mahesh S/o Ram Halde and others (supra) , had taken into account that
appointments of petitioners therein were in accordance with
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clauses 3.2 and 3.4 of the scheme (ICPS) for a period of three
years, extendable by two years on the basis of performance
appraisal reports. While in the meeting of Maharashtra State
Child Protection Society held on 28th June 2017, it was decided to
outsource recruitment to the posts held by the petitioners and
accordingly impugned communication dated 5th July 2017 had
been issued, the division bench had considered that the scheme
does not recognize outsourced mode of appointment and, as
such, has considered that communication dated 5 th July 2017,
based on the meeting dated 28th June 2017, is unsustainable.
The division bench has further considered on the basis of
decision of the Apex Court in the case of Mohd. Abdul Kadir (supra)
and decision in writ petition No. 5060 of 2015 (ATMA Employee's
Welfare Association (Maharashtra State), Aurangabad vs. Union of India and
others), decided on 24th August 2016, as well as decision in the
case of Ajay and others (supra), that, while the scheme in question
continues to operate, the appointments and recruitment will
have to be in accordance with the terms and conditions of the
scheme. The division bench has, thus, allowed the writ petition
and has quashed the communication dated 5th July 2017.
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9. Communication dated 5th July 2017 being already
quashed, it can no longer be put in operation against the present
petitioners.
10. In view of setting aside said communication dated 5 th
July 2017 by Nagpur Bench of this court in writ petition No.7798
of 2017 under order dated 4th March 2019, as observed above,
the same cannot be put in operation against present petitioners.
11. Rule is made absolute in above terms. Writ petition is
accordingly disposed of.
12. In view of disposal of writ petition, civil application
No. 11701 of 2019 also stands disposed of.
[ABHAY AHUJA, J.] [SUNIL P. DESHMUKH, J.]
asb/FEB21
