Bombay High Court
Bhaurao S/O Maroti Pendhare vs Municipal Council Warora Thr. ... on 8 February, 2022
Bench: A.S. Chandurkar, Pushpa V. Ganediwala
J-WP-3388-20 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3388 OF 2020
Bhaurao s/o Maroti Pendhare
Occ. Retired employee of respondent
Municipal council,
aged about 72 years ... Petitioner
-vs-
Municipal Council Warora
Through its Chief Officer Warora,
District Chandrapur ... Respondent
A. Shelat, Advocate for petitioner.
Shri M. I. Dhatrak, Advocate for respondent.
CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.
DATE : February 08, 2022
Judgment : (Per : A. S. Chandurkar, J.)
Rule. Rule made returnable forthwith and heard learned counsel
for the parties.
The petitioner was engaged on daily wages with Municipal
Council Warora on 08/07/1983. His services thereafter came to be
transferred as Cement Tank Chowkidar. The State of Maharashtra by virtue
of a policy decision regularised the services of various daily wage employees
who were appointed prior to 10/03/1993. Accordingly by an order dated
17/03/2001 the services of the petitioner were regularised on the rolls of the
Municipal Council. The petitioner thereafter attained the age of
superannuation on 31/10/2008 and thus retired. The petitioner was not
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being paid pension and hence he initially made a representation on which he
was informed that since the pensionable service of the petitioner was less
than the prescribed period of ten years, he was not entitled to receive
pension. The petitioner pursued the matter and sought information on
08/04/2015 under the provisions of Right to Information Act, 2005. The
petitioner was informed that the records pertaining to daily wage employees
from 08/07/1983 to 17/03/2001 were not preserved by the Municipal
Council. Ultimately on 31/08/2020 the petitioner issued a legal notice and
as there was no response from the Municipal Council, he has approached
this Court by filing the present writ petition. The petitioner prays that 50%
service rendered as a daily wage employee be considered as per Rule 57 of
the Maharashtra Civil Services (Pension) Rules, 1982 (for short, the said
Rules) for grant of pensionary benefits.
2. Shri A. Shelat, learned counsel for the petitioner submitted that
the petitioner discharged duties as a daily wager from 08/07/1983 to
16/03/2001. His services were regularised on 17/03/2001 and such service
after regularisation was for the period of seven years and seven months. This
was short of ten years and therefore by applying the provisions of Rule 57 of
the said Rules the petitioner would be entitled for pensionary benefits. In
that regard the learned counsel placed reliance on the judgment of the
Division Bench in Jagjeevan Jaikumar Sanghai (D) Thr. LRs. vs. Parbhani
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Municipal Corporation and ors. 2018(4) MhLJ 947 as well as Writ Petition
No.758/2021 (St. Leelabai w/o Shri Motisaoji Padole vs. Municipal Council,
Narkhed) decided at Nagpur bench on 27/10/2021. On the aspect of the
time taken to approach this Court it was submitted that the petitioner was
pursuing the matter with the Municipal Council and only when it was
informed that further records were not available that the petitioner took
steps to seek redressal of his grievance. The learned counsel also invited
attention to the judgment of learned Single Judge in Writ Petition
No.4265/2016 (Punjabrao Sadashivrao Alone vs. Chief Officer Nagar
Parishad Narkhed and anr.) decided on 12/02/2019 taking similar view
which was subsequently affirmed by the Honourable Supreme Court. It was
thus submitted that the petitioner was entitled for necessary relief.
3. Shri M. I. Dhatrak, learned counsel for the respondent opposed
aforesaid submissions. According to him in view of the specific condition
mentioned in the order of regularisation dated 17/03/2001, the services
rendered as a daily wager were not liable to be considered for any service
benefits. This aspect was considered in Writ Petition No.216/2007 (Bhaurao
s/o Mahadeo Dhewale and anr. vs. Chief Executive Officer, Municipal
Council, Pandharkawad and ors.) decided on 16/01/2017 and hence on that
premise no relief could be granted to the petitioner since the services
rendered were less than ten years. The learned counsel placed reliance on
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the said decision in Bhaurao M. Dhewale (supra) and submitted that the writ
petition was liable to be dismissed. Moreover, there was considerable delay
in approaching the Court which also disentitled the petitioner from any relief.
4. We have heard the learned counsel for the parties and we have
perused the documents on record. It is not in dispute that the petitioner was
appointed on 08/07/1983 on daily wages and his services were regularised
on 17/03/2001. The services of the petitioner pursuant to the order of
regularisation is for a period of seven years and seven months. For the
purposes of receiving pensionary benefits qualifying service of ten years has
been prescribed. A similar contention as raised herein by the Municipal
Council that the earlier service rendered on daily wages was not liable to be
taken into consideration for computing period of ten years as well as delay
was turned down by relying upon the judgment of the Division Bench in Writ
Petition No.815/2011 (Syed Afzaluddin Ustad s/o Abdul Samad vs. The
State of Maharashtra and anr.) decided on 24/08/2011. This decision has
been followed by another Division Bench in Jagjeevan Jaikumar Sanghai
(supra). In this regard reliance can also be placed on the decision in Leelabai
Motisaoji Padole (supra) decided by the Division Bench in somewhat similar
facts. Considering the provisions of Rule 57 of the said Rules, it was held
that a daily wager on being brought on regular establishment is entitled to
benefit of 50% of the service rendered on daily wages. The Division Bench
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referred to the adjudication by learned Single Judge in Punjabrao
Sadashivrao Alone (supra). It was then found that under Rule 57 of the
said Rules, half of the earlier service rendered on daily wages should be
taken into consideration for granting pensionary benefits. The Division
Bench noted that this judgment of the learned Single Judge was upheld by
the Honourable Supreme Court but that challenge failed. We find that the
petitioner herein is similarly placed as the petitioner in Writ Petition in Writ
Petition No.758/2021 and hence we are inclined to follow the similar course
as was followed therein.
5. Insofar as the judgment in Writ Petition No.216/2007 is
concerned, the same has been decided on 16/01/2017 but we find that the
same would turn on the facts of that case. The petitioners therein had
challenged a condition in the appointment order by which they were
deprived of their earlier service. This Court found that the said petitioners
had approached the Industrial Court by filing a complaint seeking the relief
of regularisation but that complaint was withdrawn. In these facts the Court
held that no directions to regularise the services of the petitioners so as to
claim pensionary benefits could be granted. We find that the facts of the
present case are quite distinct from the facts of the aforesaid decision.
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6. In that view of the matter we find the petitioner is entitled to the
relief as prayed for. Accordingly Municipal Council, Warora is directed to
pay pension to the petitioner in accordance with Rule 57 of the Maharashtra
Civil Services (Pension) Rules, 1982 along with arrears preferably within a
period of six months from today. The services rendered by the petitioner on
daily wages from 08/07/1983 to 16/03/2001 shall be taken into
consideration as permissible under Rule 57 of the said Rules.
Rule is made absolute in aforesaid terms with no order as to costs.
(Pushpa V. Ganediwala, J.) (A. S. Chandurkar, J.)
Asmita
