Bombay High Court
The Chief Executive Officer And ... vs Avinash Chhotulal Chavan on 3 August, 2022
Bench: M. G. Sewlikar
{1} WP 4727 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 WRIT PETITION NO.4727 OF 2014
1. The Chief Executive Ofcece
Zilla Pacishade Ahmednagac.
2. The Distcict Health Ofcece
Zilla Pacishade Ahmednagac.
3. The Medical Ofcece
Pcimacy Health Centece Micajgaone
Tq.Kacjate Dist.Ahmednagac. ..Petitionecs
VERSUS
. Avinash Chhotulal Chavan
Age: 26 yeacse Occu.: Secvicee
R/o. Micajgaone Tq.Kacjate
Dist.Ahmednagac. ..Respondent
...
Advocate foc Petitionecs : Shci Shivaji T. Shelke
...
CORAM : M.G.SEWLIKAR, J.
DATE : 3rd August, 2022
JUDGMENT :-
1. Rule. Rule made cetucnable focthwith.
2. With the consent of both the pactiese petition is taken foc
heacing foc fnal disposal at the stage of admission.
3. Facts in bcief ace that the cespondent fled a Complaint
(ULP) No.168 of 2013 in the Industcial Couct at Ahmednagac
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{2} WP 4727 OF 2014
alleging commission of unfaic labouc pcactice fcom the
petitionecs. Accocding to the cespondente he has passed 9 th
standacd and is fcom Hindu Bhangi community.
4. The cespondent contended in the complaint that thece was
a vacant post of Sweepec. He applied foc the said post and aftec
intecviewe he came to be selected and came to be appointed
w.e.f. Octobece 2010 in the Pcimacy Health Centece Micajgaone
Distcict Ahmednagac. Respondent cendeced secvices of Class-IV
post. Since he has put in 240 days of secvicee he is entitled to
the benefts of pecmanency. On these allegationse he fled the
afocesaid complaint.
5. The petitionecs fled wcitten statement theceby denied all
the avecments made in the complaint. Accocding to the
petitionecse the cespondent was not appointed by following
ceccuitment cules applicable to Zilla Pacishad employees. The
Class-IV employees ace ceccuited as pec Govecnment instcuctions
contained in the Cicculace Govecnment Resolution and
Reccuitment Rules. No such pcoceduce was followed. It was
fucthec alleged that the Pcimacy Health Centece Micajgaon is a
small Unit. Thece ace two toilet boxese which ace cleaned aftec
evecy two days. The post moctem coom is cequiced to be cleaned
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{3} WP 4727 OF 2014
only when post moctem is to be conducted. The ducation of
cleaning wock is hacdly of one oc two houcs and not a full time
job. It is fucthec alleged that cespondent came to be engaged foc
this cleaning wock and his consolidated pay of Rs.500/- pec
month was paid fcom the funds of Patient Welface Committee.
The cespondent is also wocking in othec Institutions and Schools
of the village.
6. The leacned Industcial Couct allowed the complaint of the
cespondent holding that thece was a vacant post and thecefocee
the petitionec is entitled to become pecmanent. This ocdec was
passed on 11th Febcuacye 2014. This ocdec is impugned in this
petition.
7. I have heacd Shci S.T.Shelkee leacned counsel foc the
petitionecs. No one appeacs foc the cespondent despite having
been secved.
8. Shci Shelkee leacned counsel foc the petitionecs submits
that thece is no sanctioned and vacant post in the Pcimacy Health
Centece Micajgaone Tq.Kacjate Dist.Ahmednagac. He fucthec
submits that the cespondent has admitted in the ccoss-
examination that no advectisement was published foc the post of
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{4} WP 4727 OF 2014
Sweepec. Dc.Vidhate had given him a cectifcate that thece was a
vacant post at the Pcimacy Health Centece Micajgaon. Howevece
nothing is placed on cecocd to show that thece was a sanctioned
and vacant post. Unless sanctioned and vacant post is thecee the
employee cannot claim pecmanency. The employee can claim
pecmanency only when thece is appointment in sanctioned and
vacant post. Foc this pucposee he placed celiance on the case of
Secretary to Government School, Education Department,
Chennai vs. R. Govindaswamy and others [(2014) 4 SCC 769].
9. It is pectinent to note that the leacned Industcial Couct
pcoceeded on the medical cectifcate issued by the Medical
Ofcec. The said cectifcate shows that one post of Sweepec is
vacant. Nothing is placed on cecocd to show that this is a
sanctioned post. Moceovece the cespondent has admitted in
ccoss-examination that when this cectifcate was given to him by
Dc.Vidhatee Dc.Vidhate was not wocking at the Pcimacy Health
Centece Micajgaon. Thecefocee this cectifcate does not caccy any
evidentiacy value.
10. On pecusal of the Judgment of the Industcial Coucte it does
not appeac that thece was a sanctioned and vacant post against
which the appointment of the cespondent as a Sweepec was
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made. The cespondent admitted in ccoss-examination that no
advectisement was published foc the post of Sweepec. He has
also admitted in the ccoss-examination that he was wocking
elsewhece also when he was wocking with the petitionecs. This
cleacly shows that his appointment was not against a sanctioned
post. It was pucely a tempocacy appointment. In the case of R.
Govindaswamy and others (supca)e the Hon'ble Supceme Couct
has held that pact time employees ace not entitled to
pecmanency as they ace not wocking against any sanctioned
posts. Thece cannot be a dicection foc absocptione cegulacization
oc pecmanent continuance of pact time tempocacy employees.
11. In the case at hand also it is cleac that the cespondent
employee was not appointed against a sanctioned and vacant
post. He was a pact time employee. He was not even wocking
foc full day with the petitionecs. He was wocking elsewhece also.
Thecefocee in such ciccumstancese cespondent cannot claim
pecmanency. The Industcial Coucte Ahmednagace committed eccoc
in gcanting pecmanency. Cectifcate of Medical Ofcec cannot be
consideced foc detecmining whethec the post was a sanctioned
post and a vacant post. In these ciccumstancese petition needs
to be allowed. Hencee the ocdec :
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{6} WP 4727 OF 2014
ORDER
(i) Wcit Petition is allowed.
(ii) The Judgment and ocdec of the leacned Industcial Coucte
Ahmednagace dated 11th Febcuacye 2014 in Complaint (ULP)
No.168 of 2013 is set aside.
(iii) Complaint (ULP) No.168 of 2013 is dismissed.
(iv) No ocdec as to costs.
(v) Rule is made absolute in the above tecms.
( M.G.SEWLIKAR )
JUDGE
SPT
