Bombay High Court
Jagannath Suryabhan Markad vs The State Of Maharashtra And ... on 28 September, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
5238.20wp etc
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
910 WRIT PETITION NO.5238 OF 2018
SHRIDHAR SADASHIV SAKHARE
VERSUS
STATE OF MAHARASHTRA AND OTHERS
AND
WRIT PETITION NO.5261 OF 2018
JAGANNATH SURYABHAN MARKAD
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
....
Mr P. V. Barde, Advocate for petitioners;
Mr S. B. Yawalkar, A.G.P. for respondents/State
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 28th September, 2021
PER COURT:
1. The petitioners in both these petitions are similarly situated.
Both have put forth a prayer for issuance of directions to the
respondents to consider the temporary services put in by these
petitioners prior to their regularization, for the purpose of
calculating their pensionary benefits and accordingly direct
disbursements of pensionary benefits. It is also prayed that during
the pendency of these petitions, provisional pension may be paid.
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2. We have heard the learned Advocate for the petitioners and
the learned A.G.P. on behalf of the respondents.
3. There is no dispute that these petitioners were working as
Mustering Assistants in the Public Works Department, State of
Maharashtra. Their dates of commencing their services as daily
wagers are mentioned as being 02/09/1978 and 01/02/1981. The
petitioner in the first petition, namely, Shridhar Sadashiv Sakhare
had approached the Industrial Court by filing Complaint (ULP)
No.105/1989 for seeking permanency. The second petitioner,
namely, Jagannath Suryabhan Markad was terminated on
31/03/1988 after working for about seven years. He approached
the Labour Court in Reference (IDA) No.66/1989 and was
granted reinstatement with continuity and full back wages by the
award delivered by the Labour Court on 15/12/1995.
4. Shridhar Sadashiv Sakhare superannuated on 31/05/2012
and Jagannath Suryabhan Markad superannuated on 31/05/2015.
Shridhar Sadashiv Sakhare did not satisfy the requirements of
pensionary service of 10 years. Shri. Jagannath Suryabhan
Markad completed the said period.
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5. The issue of Mustering Assistants was in litigation for
almost a decade until the State Government introduced the
Government Resolution dated 01/12/1995 and produced it before
the Hon'ble Apex Court on 01/12/1996 by way of a scheme for
absorbing Mustering Assistants on fulfilling the conditions set out
in the said Government Resolution. The Hon'ble Apex Court
accepted the Government Resolution as being a scheme for such
absorption. It is based on these developments, that Mustering
Assistants like these petitioners, depending on the fulfillment of
the requirements set out in the Government Resolution dated
01/12/1995, acquired regularization in service.
6. The learned Advocate for the petitioners has relied upon
two judgments delivered by this Court, dated 13/08/2015 in Writ
Petition No.8359/2013, filed by Asaram Vithhal Shitre and
another Vs. State of Maharashtra and another and other connected
matters; and dated 06/09/2017 delivered in Writ Petition
No.12043/2016, filed by Kadu Mahadu Bhawar Vs. the State of
Maharashtra and others and a group of connected matters,
wherein this Court has taken a view that the earlier service of the
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Mustering Assistant, i.e. prior to their regularization, may be
considered by the Government upon making a representation.
Pursuant to such directions, the State Government passed the
orders accepting the representations and granted pensionary
benefits to such Mustering Assistants by reckoning their earlier
service along with the service put in as regular employees.
7. The learned A.G.P. has vehemently opposed both the
petitions contending that in a judgment delivered by this Court at
the Principal Seat on 13/11/2017 in Writ Petition No.10471/2014,
filed by Shri. Vikar Ansar Shaikh and others Vs. the State of
Maharashtra and another, it has been concluded that the earlier
services of such Mustering Assistants on daily wages cannot be
reckoned with, as they were not occupying posts in Government
service and they were purely working on daily wages in the
absence of availability of such posts. Regularization can be
granted only after a person occupies a vacant post and pensionary
benefits are in connection with a permanent post available. He
also points out that the Principal Seat had relied upon an earlier
judgment delivered by this Court at the Aurangabad Bench on
16/07/2007 in Writ Petition No.619/2006, filed by Shivhar and
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another Vs. State of Maharashtra.
8. The petitioners before us pray that they be permitted to
forward a representation to the State Government and there is a
possibility that the State Government may consider the said
representation favourably in view of the order dated 15/02/2018,
issued by the Chief Executive Officer, Zilla Parishad,
Ahmednagar, in the light of the decision of the Government.
9. In view of the above, we permit the petitioners to tender a
representation to respondent No.2, on or before 30/10/2021. The
said representation would be considered by the said authority in
the light of the earlier decision taken by the Desk Officer, Rural
Development and Water Conservation Development Department,
State of Maharashtra, dated 26/09/2017, as expeditiously as
possible and preferably, on or before 28/02/2022.
10. We make it clear that while issuing these orders, we have
not considered the merits of the claims of the petitioners as
regards grant of pensionary benefits. In the event the petitioners
are aggrieved by the order of respondent No.2, which would be
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passed in the light of the above directions, they shall be at liberty
to assail the said orders by availing of a remedy as permissible in
law.
11. These petitions are therefore, disposed off with the above
directions.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
sjk
