Bombay High Court
Pranay S/O Baburao Kuthe vs Bhandara Municipal Council, Thr. Its ... on 15 December, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:17672-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 7998 OF 2018
PETITIONER : Pranay S/o Baburao Kuthe,
Aged about 33 years, Occu. None
R/o C/o R.C. Malkhande,
335, Shraddhapeth, Friends Colony,
Bhandara - 441 904.
VERSUS
RESPONDENT : Bhandara Municipal Council,
Through its Chief Officer,
Having office at Bhandara,
Tah. Bhandara, Dist. Bhandara
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Mr. H. R. Gadhia, Advocate for the petitioner.
Mr. M. I. Dhatrak, Advocate for the respondent.
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CORAM : SMT. ANUJA PRABHUDESSAI and
MRS. VRUSHALI V. JOSHI, JJ.
DATED : DECEMBER 15, 2023.
ORAL JUDGMENT (PER - Smt. Anuja Prabhudessai, J.)
1. RULE. Rule made returnable forthwith. Heard finally by
consent of the learned advocates for the parties.
2. The petitioner questions the legality of the
order/communication, dated 06.07.2017, issued by the respondent -
Municipal Council, declining to appoint him on preferential basis on
the vacancy caused by voluntary retirement of his father. The petitioner
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also seeks direction to the respondent- Council to appoint him on a
suitable post as per his qualification in Class-III category on preferential
basis in respondent-Council.
3. The father of the petitioner, viz. late Baburao Hari Kuthe
was employed with the respondent-Council, as 'Safai Coolie'/daily
wager till 1986. Since, his services were not regularized, the father of
the petitioner and other similarly placed employees filed a complaint
under Section 28 of the Maharashtra Recognition of Trade Union and
Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to
as "the MRTU & PULP Act") before the Industrial Court, Maharashtra,
Nagpur Bench, Nagpur, which was registered as Complaint No.
176/1986. The Industrial Court, by order dated 10.02.1987 allowed
the complaint and directed to regularize and confirm the services of the
father of the petitioner and other similarly placed employees. Pursuant
to the said order, the respondent-Council, by order dated 27.02.1988,
appointed the father of the petitioner as "Labour" w.e.f. 01.04.1987.
4. The father of the petitioner applied for voluntary
retirement due to his ill health. His application for voluntary
retirement was accepted and he was permitted to retire w.e.f.
30.06.2016. Even prior to his voluntary retirement, the father of the
petitioner vide letter dated 02.01.2015 had requested the respondent-
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Council to appoint the petitioner, on the vacant post caused by his
retirement. The petitioner also made applications dated 15.07.2016
and 03.06.2017 requesting the respondent-Council to appoint him on
Class-III post as per his educational qualification.
5. The respondent-Council by communication/order dated
06.07.2016. rejected the claim of the petitioner on the following
grounds :
i] The father of the petitioner was appointed as a "Labour"
and not 'Safai Karmachari' and that he was assigned the work of putting
bleaching powder/medicine in the well and said work had no nexus
with the duties of 'Safai Kamgar'.
ii] As per the Government Circular dated 23.03.2006, issued
by the Directorate of Municipal Administration, only the heirs and
relatives of Safai Kamgar, who belong to Walmiki, Mehetar and
Scheduled Caste community, are eligible for benefit of preference in
employment and since the petitioner does not belong to any of these
categories/caste, he is not entitled for the benefit.
iii] That in view of Government Circular dated 23.03.2006,
the person whose services have been regularized as per the order of the
Court, are not entitled for the preference in employment.
6. The petitioner moved the Labour Commissioner against
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the rejection of his claim by making applications dated 22.05.2018 and
29.07.2018. The Labour Commissioner, took cognizance of the
applications made by the petitioner and by order dated 02.08.2018
directed the respondent-Council to reconsider the decision and further
directed the petitioner to take recourse to the legal remedies. The
respondent-Council having failed to reconsider the decision, the
petitioner has approached this Court under Article 226 of the
Constitution of India.
7. Shri H.R. Gadhia, learned counsel for the petitioner
submits that though, the appointment order of the father of the
petitioner indicates that he was appointed as 'Labour', the order of the
Industrial Court and the service book as well as other correspondence
including Certificate dated 12.08.2011 issued by respondent-Council
clearly indicates that the father of the petitioner was appointed as "Safai
Kamgar" and he was discharging duties as 'Safai Kamgar'. He,
therefore, contends that the petitioner could not have been declined the
benefit of preferential employment on the premise that father of the
petitioner was appointed as 'Labour'.
8. Learned counsel for the petitioner submits that Clause 6 of
the Government Resolution dated 10.11.2015 clearly indicates that the
benefit is not restricted to the employee belonging to Mehetar, Walmiki
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and Scheduled Caste category and this is evident from the fact that the
benefits of preferential employment is extended to the children/relatives
of other 'Safai Kamgars', who belong to the category other than one
mentioned in clause 6 of the G.R. In such circumstances, depriving the
petitioner the benefit of said G.R. amounts to discrimination and
flagrant violation of Article 14 of the Constitution of India.
9. Learned counsel for the petitioner further submits that the
benefit of preference in employment could not have been declined to
the petitioner on the basis of Government Circular dated 23.03.2006,
which has been superseded by G.R. dated 10.11.2015. Learned counsel
for the petitioner also submits that the petitioner was not heard in the
matter and the impugned order/communication is in breach of
principles of natural justice.
10. Mr. M. I. Dhatrak, learned counsel for the respondent -
Municipal Council submits that the benefit of G.R. dated 10.11.2015
can be extended only to the Safai Kamgar belonging to Walmiki,
Mehetar and Scheduled Caste category. He submits that the petitioner
is not entitled for the benefit under the G.R. since his father was
appointed as 'Labour' which is evident from the regularization order
dated 27.02.1988 as well as the entry in the service book.
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11. Learned counsel for the respondent further submits that
the father of the petitioner did not belong to either Walmiki or Mehtar
community or Scheduled Caste category and hence, he is not entitled
for the benefit of preference in employment. He submits that the
father of the petitioner had taken voluntary retirement and
superannuated w.e.f. from 30.06.2016. The petitioner cannot seek
compassionate appointment during the lifetime of his father, who on his
superannuation has received all pensionary benefits. Reliance is placed
on the decision in Ahmednagar Mahagar Palika .vs. Ahmednagar
Mahanagar Palika Kamgar Union, reported at (2022) 10 SCC 172.
12. We have perused the record and considered the
submissions advanced by the learned counsel for the respective parties.
13. The issue pertains to the preference in employment as per
the recommendation of Lad - Page Committee, which was appointed
by the State to study the conditions of work and employment of
sweepers and scavengers. The Committee vide report dated 07.01.1975
made several recommendations and inter alia recommended to 'Vashila
System' under which the near relative of the sweeper was given
preference in the employment. should be continued and may be
extended to the employment of sweeper and scavenger in Government
and private institutions and the factories, if necessary, by relaxing the
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recruitment rules through employment exchange. Pursuant to the said
report, the Government issued Government Resolution dated
12.08.1975 incorporating the recommendations amongst others. The
Government from time to time issued several circulars and GRs for
effective implementation of the said recommendations. The
Government of Maharashtra issued G.R. dated 10.11.2015, including
the recommendations relating to Lad-Page Committee to give
preference in employment to the legal heirs/relatives of Safai
Kamgar/Sweeper. The said G.R. was followed by G.R. dated
11.03.2016 and 19.04.2018.
14. It is not in dispute that the father of the petitioner was
initially appointed as Safai Coolie. Pursuant to the order passed by the
Industrial Court, his services were regularized and he was appointed as
'Labour' w.e.f. 01.04.1987. Though, the services of the father of the
petitioner were regularized as Labour, the entry in the service book
indicate that he was working as Safai Kamgar. The letter dated
11.08.1988, issued by the respondent-Council clearly states that the
father of the petitioner was appointed as 'Safai Kamgar' in Health
Department of the respondent-Council. By letter dated 08.03.1991, the
father of the petitioner was assigned the duties of cleaning drainages. In
the letter dated 02.07.2004 issued by the Health Inspector of
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respondent-Council to one Fattesingh Sonekar, Clerk, the name of the
father of the petitioner is mentioned as 'Safai Kamgar' along with
others. The respondent-Council had also issued a certificate dated
12.08.2011 certifying that father of the petitioner was working as 'Safai
Kamgar' from 01.04.1987. So also, in the letter dated 06.06.2016
permitting the father of the petitioner to retire from 30.6.2016, he is
referred to as 'Safai Kamgar'. The aforesaid documents clearly indicate
that as per the regularization order the father of the petitioner was
appointed as 'Safai Kamgar' in 1987 and he continued to discharge the
duties as 'Safai Kamgar' till the date of his retirement.
15. The GR dated 10.11.2015 provides that the officers and
other employees of Government and other departments, who avoid
extending benefits of the said recommendation, which is essentially for
educational, social and economic upliftment of Mehtar, Walmiki,
Bhangi, Scheduled Caste etc., would be liable for disciplinary action. A
plain reading of said GR thus indicates that the benefits are not
restricted only to Mehter and Walmiki community.
16. The petitioner had categorically stated that the relatives of
all the other applicants before the Industrial Court have been granted
benefit of preference in employment as per the G.R. dated 10.11.2015
irrespective of the fact that they did not belong to Walmiki, Mehetar
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and Scheduled Caste category. A list of candidates/employees placed
on record by the petitioner vide letter dated 22.05.2018, who have been
given preferential employment, shows that some of the employees
belong to 'Open' category. On going through the reply filed by the
respondent-Council, it is seen that the said averments have not been
disputed. This undisputed fact also fortifies the contention of the
petitioner that the benefits were not restricted only to Safai Kamgar
belonging to Walmiki and Mehter community. The respondent having
extended the benefit of the G.R. dated 10.11.2015 to the identically
placed persons, who do not belong to either Walmiki or Mehetar
category or who do not belong to Scheduled Caste, was not justified in
depriving the benefit of said G.R. to the petitioner. Such discrimination
is in flagrant violation of Article 14 of the Constitution of India.
17. The contention that the petitioner is not entitled for the
said benefit in view of Government Circular dated 23.03.2006 cannot
be countenanced for the reason that the G.R. dated 10.11.2015 clearly
indicates that all previous Government Circulars and Resolutions have
been superseded by the said G.R. Reliance on the decision of the Apex
Court in Ahmednagar Mahagar Palika's case (supra) is also misplaced as
in the instant case, the petitioner has not sought compassionate
appointment, but he is claiming benefit of preference in employment as
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per the G.R. It is also not in dispute that the petitioner was not heard
before rejecting his claim for benefit of the said G.R. Under the
circumstances, the communication dated 06.07.2017 issued by the
respondent -Council to the petitioner declining him to appoint on
preferential basis for the reasons stated in the said communication,
cannot be approved.
18. Hence, the writ petition is allowed.
(i) The communication dated 06.07.2017 issued by the
respondent-Council to the petitioner declining to appoint him on
preferential basis, is quashed and set and set aside. The respondent -
Municipal Council, Bhandara is directed to hear the petitioner and
consider his proposal in the light of the observations made in this
judgment.
(ii) The respondent-Council is directed to complete the said
exercise as expeditiously as possible and within a period of three months
from the date of receipt of the copy of this order.
. (iii) Rule is made absolute. No order as to costs.
(VRUSHALI V. JOSHI, J.) (ANUJA PRABHUDESSAI, J.)
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 03/01/2024 11:30:49
