Anil Kacharu Kote And Others vs The State Of Maharashtra And Othrs
2021 Latest Caselaw 8732 Bom

                                     1              WP 6224 of 2020.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 6224 OF 2020

 1.       Anil s/o Kacharu Kote
          Age : 42 years, Occ. Service

 2.       Ajay s/o Appasaheb Kote
          Age : 37 years, Occ. Service

 3.       Nilesh s/o Bhujangrao Salunke
          Age : 45 years, Occ. Service

 4.       Mahesh s/o Madhukar Tak
          Age : 40 years, Occ. Service

 5.       Sarjerao s/o Machindra Gore
          Age : 40 years, Occ. Service

 6.       Jagdish s/o Suresh Bhosle
          Age : 35 years, Occ. Service

 7.       Deepak s/o Shivaji Turkane
          Age : 38 years, Occ. Service

 8.       Vilas s/o Sharad Dange
          Age : 35 years, Occ. Service

 9.       Subhash s/o Annasaheb Barwant
          Age : 35 years, Occ. Service

 10.      Dilip s/o Yosef Kolge
          Age : 40 years, Occ. Service

 11.      Sanjay s/o Rajaram Shinde
          Age : 40 years, Occ. Service

 12.      Deelip s/o Prasad Jang Bahadur Singh
          Age : 50 years, Occ. Service



                                                                            1 of 17




::: Uploaded on - 05/07/2021                   ::: Downloaded on - 05/07/2021 23:09:43 :::
                                     2                WP 6224 of 2020.odt


 13.      Arjun s/o Madhavrao Thore
          Age : 38 years, Occ. Service

 14.      Deepak s/o Dnyandeo Jagtap
          Age : 40 years, Occ. Service

 15.      Nilesh s/o Ashok Supekar
          Age : 39 years, Occ. Service

 16.      Sachin s/o Madhukar Bhalerao
          Age : 37 years, Occ. Service

          All R/o. Shirdi, Tq. Rahata
          District : Ahmednagar                                   .. Petitioners

                  Versus

 1.       The State of Maharashtra
          Through the Principal Secretary for
          Law and Judiciary Department
          Mantralaya, Mumbai

 2.       Shree Saibaba Sansthan Trust, Shirdi
          Through its Chief Executive Officer
          Having its office at
          Saibaba Sansthan Complex, Shirdi
          Tq. Rahata, District Ahmednagar                         .. Respondents


 Mr. V. D. Hon, Senior Advocate a/w Mr. Ashwin V. Hon, Advocate for
 the Petitioners.
 Mr. D. R. Kale, In-charge G. P. for Respondent No. 1.
 Mr. A. S. Bajaj, Advocate for Respondent No. 2.


                               CORAM :   S. V. GANGAPURWALA &
                                         SHRIKANT D. KULKARNI, JJ.

Date on which reserved for judgment : 08.06.2021.

Date on which judgment pronounced : 03.07.2021.

                                                                             2 of 17





                                          3                 WP 6224 of 2020.odt




  Judgment (Per S. V. GANGAPURWALA, J.) :-


 .        Rule. Rule made returnable forthwith. With the consent of

 parties taken up for final hearing.

2. The petitioners are employed at respondent No. 2 through

contractors. The present writ petition is filed with the following reliefs.

B) Issue a writ of certiorari or writ in the nature of certiorari to quash and set aside the Resolution dated 13.07.2020 (Exhibit "H") and the consequential order dated 02.09.2020 (Exhibit "I") passed by the Adhoc committee of Shree Saibaba Sansthan Trust, Shirdi.

C) Issue a writ of mandamus or writ in the nature of mandamus to the respondents to continue the petitioners and similarly placed 582 employees mentioned in the list annexed at Exhibit "A" to the petition, in service of Shree Saibaba Sansthan Trust, Shirdi in accordance with the Government Resolution dated 17.09.2019 of the State Government and that their services be not terminated and/or discontinued.

3. Under the Government Resolution dated 17.09.2019 the

Government of Maharashtra directed that the skilled and unskilled

employees under employment on contract basis for the period 2001 to

2004 of Shree Saibaba Sansthan Vishwast and working shall be

appointed on consolidated salary of Rs. 5,913/- and Rs. 5,113/-

respectively or on minimum wages whichever is more on the

3 of 17

4 WP 6224 of 2020.odt

sanctioned post as per the staffing pattern sanctioned under the

Government Resolution dated 07.08.2009. It was further clarified by

the Government in the said resolution that their status would be as

contractual employees and they will not be entitled to seek

permanency. Pursuant to the said Government Resolution the then

Chief Executive Officer issued appointment orders to 598 employees.

The Adhoc committee of the Trust under resolution dated 13.07.2020

decided to cancel the appointment orders. On the basis of the

resolution passed by the Adhoc committee of respondent No. 2 the

communication was issued on 02.09.2020 to take steps pursuant to the

decision of the Adhoc committee. The resolution dated 13.07.2020 of

the Adhoc committee and the consequential order dated 02.09.2020 is

assailed in the present writ petition.

4. Mr. Hon, learned senior counsel for the petitioners submits that

the petitioners and 582 similarly placed employees are working with

the Sansthan for approximately 16-20 years on contract basis. The

regular committee of Sansthan had taken into consideration the

services rendered by such employees and passed resolution on

19.11.2011 for absorbing the services of employees on regular

establishment. The proposal was submitted to the Government for

necessary approval on 08.12.2011. Though the proposal was submitted

4 of 17

5 WP 6224 of 2020.odt

on 08.12.2011 there was no response by the Government. The

reminders were sent by the Sansthan on 27.01.2014 and 07.11.2015

requesting the State Government to consider the proposal for taking

such employees on regular establishment. The State Government

ultimately on 17.09.2019 passed a resolution approving the proposal of

the Sansthan for taking 635 employees serving on contract basis to be

accommodated on regular establishment. The Government has also

fixed pay for their regular establishment under the said Government

Resolution. The Sansthan through its Chief Executive Officer issued

appointment orders to the petitioners and similarly placed employees

on 02.01.2020 thereby confirming their services with the Sansthan as

per the conditions mentioned in the Government Resolution dated

17.09.2019. After lapse of six months the Adhoc committee appointed

by this Court held a meeting on 13.07.2020 and the subject of

appointing the petitioners and such other 598 employees was

considered. The committee passed the resolution on the same day to

discontinue the services of the petitioners and similarly placed 598

employees. The Adhoc committee set aside the appointment orders

issued to 598 employees with effect from 31.07.2020. The committee

also took a decision to deduct 50% salary of 598 employees who were

earlier working through the contractor. This act of the Adhoc

committee is contrary to the provisions of law. The Adhoc committee

5 of 17

6 WP 6224 of 2020.odt

has overstepped its jurisdiction and power. The Adhoc committee could

not have travelled beyond the Government Resolution dated

17.09.2019. On 02.09.2020 the Sansthan passed order of payment of

their pay scale from August 2020. The Sansthan has deducted 50% of

the amount from the salary of the petitioners and similarly placed

employees. The services of the petitioners are regularized as per the

Government Resolution dated 17.09.2019. The said Government

Resolution is issued pursuant to the proposal of the Sansthan. The said

proposal is submitted by regularly constituted committee. The Adhoc

committee has not performed this function in accordance with Section

16 of Shree Saibaba Sansthan Trust (Shirdi) Act, 2004 (hereinafter

referred as 'Trust Act'). The resolution dated 13.07.2020 is contrary to

the Trust Act. The Adhoc committee could not have discontinued the

services of the petitioners. The petitioners would suffer irreparably as

they would be jobless. They are working for almost 16-20 years.

5. Mr. Bajaj, learned counsel for the respondent No. 2 submits that

the petitioners are not Class III and Class IV employees as contended by

them. The respondent No. 2 had appointed contractors who provide

workers. The petitioners are working through the contractors. The

classification as suggested by the petitioners as Class III and Class IV is

not correct. The Sansthan has categorized them as skilled workers and

6 of 17

7 WP 6224 of 2020.odt

unskilled workers. It is true that on 19.11.2011 the proposal was

submitted for taking the services of these employees who are working

through the contractors since many years with the Sansthan on regular

establishment and for that purpose proposal was submitted to the

Government for approval. Pursuant to the said proposal the State

Government on 17.09.2019 passed a resolution for taking 635

employees working through contractors from 2001 to 2004 and

presently in employment as employees of the Sansthan directly on

contract basis on fixed pay of Rs. 5913/- per month to skilled workers

and Rs. 5113/- per month to unskilled workers or as per the Minimum

Wages Act whichever is more. It was in pursuance to the Government

Resolution dated 17.09.2019 the then Chief Executive Officer issued

appointment orders dated 02.01.2020 to 598 employees on contract

basis for 11 months only. The Adhoc committee by majority decision of

three members ultimately on the opinion formed, resolved to cancel

and set aside all the appointment orders issued to 598 employees with

effect from 31.07.2020. It was further resolved to pay ex-gratia amount

i.e. as salary to those 598 employees who were earlier working through

contractors considering the Covid-19 situation. The contention of the

petitioners that by virtue of Section 16 of the Trust Act their services

are protected and that their services cannot be terminated is not

correct.

                                                                         7 of 17





                                    8                WP 6224 of 2020.odt

6. The learned in-charge Government Pleader supports the stand of

the petitioners and submits that on 17.09.2019 the Government has

issued resolution regarding 635 contractual employees. The said

Government Resolution was issued upon the proposal of the

management committee of respondent No. 2 Sansthan. The Adhoc

committee overstepped its jurisdiction. The Adhoc committee could not

have passed the impugned resolution dated 13.07.2020. The same is

beyond its powers, unjustified and invalid.

7. We have considered the submissions canvassed by the learned

counsel for respective parties.

8. The Sansthan, at present is not functioning through validly

constituted committee. The Adhoc committee has been constituted by

this Court under its order dated 09.10.2019 in the Public Interest

Litigation No. 120 of 2019 and the affairs of the Trust are looked into

by the Adhoc committee. The chairman of the Adhoc committee is the

Principal District and Session Judge, Ahmednagar.

9. It appears that the regular committee in the year 2011 passed the

resolution for regularizing services of the persons working through

contractors since many years. The said proposal was forwarded to the

Government. Subsequently, reminders were also issued and eventually

8 of 17

9 WP 6224 of 2020.odt

on 17.09.2019 the Government of Maharashtra issued the Government

Resolution. Under the said Government Resolution the Government

passed an order for appointing 635 skilled and unskilled employees on

contractual basis as per the staffing pattern sanctioned under the

Government Resolution dated 17.08.2009 on payment of Rs. 5913/-

per month to skilled workers and Rs. 5113/- per month to unskilled

workers or as per the Minimum Wages Act whichever is more. It is

further clarified in the said Government Resolution that their

appointment would remain on contractual basis. They will be termed as

contractual employees and shall not be entitled to claim permanency. It

further appears that under the Government Resolution dated

17.08.2009 the staffing pattern has been sanctioned.

10. It further appears that in furtherance of the Government

Resolution dated 17.09.2019 the Chief Executive Officer of respondent

No. 2 issued appointment orders to 598 such contractual employees. At

the relevant time when the appointment orders were issued by the

Chief Executive Officer to such 598 employees the regular committee

was not functioning and the Adhoc committee constituted by this Court

was managing the affairs of the Sansthan. The Chief Executive Officer

could not have on its own issued appointment orders to 598 employees

without the concurrence of the committee. The Chief Executive Officer

9 of 17

10 WP 6224 of 2020.odt

functioning at the relevant time exceeded its authority in directly

issuing appointment orders to these 598 employees without

consultation and concurrence of the Adhoc committee.

11. The Adhoc committee in its meeting dated 13.07.2020 passed

the resolution to discontinue the services of such 598 employees

appointed by the Chief Executive Officer. The relevant minutes of the

meeting and resolution No. 360 dated 13.07.2020 is as under :

" .. .. The Ad-hoc Member PDJ & District Session Judge, Ahmednagar Shri. Anekar, Addl. Commissioner Shri. Deelip Swami and Asstt. Charity Commissioner Smt. Geeta Bankar had taken following decision after due discussion.

This subject was discussed in detail and each member has expressed views.

This committee, while deciding Subject 1, 2, 43 and 63 on the agenda of the Ad-hoc Committee Meeting dt. 11.05.2020, has thoroughly examined the entire record of the Trust, the scheme of the Shree Sai Baba Sansthan Trust (Shirdi) Act, 2004 and the powers of the Chief Executive Officer to appoint employees.

This Committee has already found that the then Chief Executive Officer could not ave appointed employees directly on the Sansthan on contract basis because such power is vested with the Committee constituted under Section 13(4) of the Shree Sai Baba Sansthan Trust (Shirdi) Act, 2004. Since such appointment on contract basis is a policy decision, it ought to have been presented before the Ad-hoc Committee, constituted by Hon'ble High Court.

                                                                                 10 of 17





                                       11                 WP 6224 of 2020.odt

This Committee has also found that the Sansthan has failed to follow the Government Resolution dt. 07.08.2009, more particularly the terms and conditions under which the said staffing pattern ¼vk--rhca/k½ was approved. The Committee has also found that while issuing Government Resolution dt. 17.09.2019, the Government has called upon the Sansthan to follow Government Resolution dt. 07.08.2009 of which the reference is found at serial no. 2 under the caption "okpk-"

It is not the case of Sansthan before this Committee that Committee has followed Government Resolution dt. 07.08.2009 by preparing service rules, qualification of entry, promotion etc. In fact Committee has been constituted for preparation of such rules and even this Ad-hoc Committee has given extension to the said Committee to complete the remaining work. In the above background, therefore, the appointment orders issued by the then Chief Executive Officer (Shri. Deepak Muglikar) is a piece of paper and cannot be termed as an order under the authority of the Committee as invisaged under section 13(4) of the Act.

Some of the members of this Committee tried to suggest that ex-post facto approval could be granted to the said order. However, on thorough examination of this proposal, the Committee is unanimous in refusing to grant such ex-post facto approval, more particularly when Government Resolution dt. 07.08.2009 has not been followed by the Trust. In addition to it, giving such ex-post facto sanction for such acts would be protecting the illegality and therefore, should not be approved at the hands of Ad-hoc Committee.

Consequently, the Ad-hoc Committee has unanimously resolved to cancel and set aside all the appointment orders issued to 598 employees with effect from 31 st July, 2020. This is in the light of the fact that due to Covid-19 situation the

11 of 17

12 WP 6224 of 2020.odt

Committee has resolved to pay exgratia amount i.e. 50% of the salary to those 598 employees who were earlier working through the contractor. Therefore, the said employees are not likely to be financially affected.

The Committee has also resolved to extend liberty to the Sansthan to submit proposal in this regard as per their choice after due study of various Government Resolutions issued by the Government.

The Committee Member & CEO Shri. Arun Dongre (IAS) has expressed his factual views as below :

As per GR dated 17.09.2019 of L&J Deptt. Govt. of Maharashtra, the persons working on the establishment of contractor 635 employee are allowed to be taken on Sansthan establishment.

As per the GR 598 eligible employees are taken from the establishment of Contractors to Sansthan establishment by an order of CEO dated 02.01.2020. The appointment was given as per GR hence post facto sanction by Ad-hoc committee should be given."

12. It appears that the Adhoc committee was of the view that the

Government Resolution dated 07.08.2009 has not been followed and in

the Government Resolution dated 17.09.2019 the Government has

called upon the Sansthan to follow the Government Resolution dated

07.08.2009. The Adhoc committee was of the opinion that the rules are

not framed. Unless the rules are framed as required under Government

Resolution dated 07.08.2009 the appointment order could not have

been issued by the Chief Executive Officer.

                                                                              12 of 17





                                        13              WP 6224 of 2020.odt

13. Under the Government Resolution dated 07.08.2009 the

Government had sanctioned staffing pattern subject to the terms and

conditions enumerated in the said Government Resolutions. The

Government directed the managing committee of the Sansthan to

prepare the service rules for the various posts and obtain sanctioned

staffing pattern from the Government and before appointing any

person on the post, the rules shall be scrupulously followed. The service

rules contemplated under the Government Resolution dated

07.08.2009 seeks to provide for a qualification, responsibilities and

duties of each post. The promotional channel is to be fixed. The pay

scale of each post shall be fixed in the rules. The Government further

directed that 2908 posts shall be permanent and about 1918 posts shall

be filled in on contractual basis. The appointments shall be for 11

months and shall be renewed every year.

14. We have asked the learned counsel for the petitioners and the

respondents that whether the appointment of these 598 persons made

by the Chief Executive Officer under the appointment order dated

02.01.2020 were on post sanctioned as per the Government Resolution

dated 07.08.2009. The learned counsel were unanimous that the

appointments of these 598 persons were on sanctioned post as per the

Government Resolution dated 07.08.2009.

                                                                             13 of 17





                                     14               WP 6224 of 2020.odt

15. We are also apprised that, the recruitment rules are not

sanctioned or finalized by the Government. The Adhoc committee is

appointed by this Court. In such a scenario, the Chief Executive Officer

could not have without the concurrence and consultation of the Adhoc

committee directly issued appointment orders to these 598 employees

certainly the then Chief Executive Officer exceeded his authority.

16. The apprehension of the Adhoc committee may be justifiable.

Back door entry is not the legal way of entering into employment. It

needs to be considered that respondent No. 2 through its managing

committee had passed resolution to regularize such employees working

since 2001 and sent the proposal for sanction/approval. The

Government did not accept the said proposal in its entirety. Under the

Government Resolution dated 17.09.2019 directed to appoint those

employees on contractual basis without claim of permanency or

regularization and on consolidated salary.

17. It is also not disputed by the respondents that the petitioners and

similarly situated 598 employees to whom the appointment orders are

issued were working from 2001 to 2004 through the contractors with

the Sansthan. The Government Resolution dated 17.09.2019 is issued

basically to accommodate the employees working from 2001 to 2004

14 of 17

15 WP 6224 of 2020.odt

on contractual basis with the Sansthan, as they are working for almost

16-20 years.

18. It appears that to ameliorate the condition of contractual

employees working since 2001, the resolution was passed by the

management committee of the Sansthan in the year 2011 for

regularizing the services of such employees. Under the Government

Resolution dated 17.09.2019 the Government instead of regularizing

their services and/or making them permanent issued directions to

appoint them on contractual basis as employees of Sansthan for 11

months and these persons would not be entitled to claim permanency

or regularization. As these persons appointed would remain on

contractual basis and on consolidated salary, certainly, they would not

be entitled for any promotional cadre. Their salaries are also fixed

under the Government Resolution dated 17.09.2019. In view of that,

non framing of service rules would not be an impediment for

appointing these persons on contractual basis. The Government

probably had taken into consideration the long standing services

rendered by these persons through the contractors with the Sansthan

and appointed them on a fixed consolidated salary.

19. In view of the above, we hold that the petitioners and the 598

persons are entitled to be appointed if eligible as per the Government

15 of 17

16 WP 6224 of 2020.odt

Resolution dated 17.09.2019 on the consolidated salary as fixed in the

said Government Resolution for 11 months on contractual basis

certainly with the condition that they will not be entitled to claim

permanency and regularization. The petitioners seeking benefit of the

Government Resolution dated 17.09.2019 cannot travel beyond the

terms and conditions of the said Government Resolution.

20. In the light of the above, though we hold that the erstwhile Chief

Executive Officer could not have issued the appointment orders to the

598 persons and the Adhoc committee's resolution was not illegal,

considering that the Government had partially accepted the resolution

of the Sansthan while issuing Government Resolution dated 17.09.2019

and considering overall scenario of the matter as discussed supra, we

direct that these 598 persons issued with the appointment orders by the

Chief Executive Officer on 02.01.2020 be continued as contractual

employees without any claim for permanency and regularization and as

per the terms and conditions of the Government Resolution dated

17.09.2019 on the consolidated salary fixed by the Government under

its Resolution dated 17.09.2019 and to that effect the impugned

resolution by the Adhoc committee dated 13.07.2020 would not be

operative.

                                                                           16 of 17





                                    17              WP 6224 of 2020.odt

21. Rule accordingly made absolute in above terms. No costs.

 ( SHRIKANT D. KULKARNI )                       ( S. V. GANGAPURWALA )
         JUDGE                                            JUDGE




 P.S.B.




                                                                         17 of 17