Bombay High Court
Commissioner Nashik Municipal ... vs Avinash Madhukar Aahire on 19 August, 2024
2024:BHC-AS:33316
Neeta Sawant 20-WP-10830.docx-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION 9672 OF 2024
Avinash Madhukar Ahire } ....Petitioner
: Versus :
The Commissioner, Nashik
Municipal Corporation, Nashik and anr. } ....Respondents
WITH
WRIT PETITION NO. 10830 OF 2023
The Commissioner, Nashik Municipal
Corporation, Nashik and anr. } ....Petitioners
:Versus :
Avinash Madhukar Ahire } ....Respondent
Ms. Nivedita Deshpande, for the Petitioner in WP-9672-2024
and for Respondent in WP-10830-2023.
Ms. Chaitrali Anand Deshmukh, for the Petitioner in WP-
10830-2023 and for Respondent in WP-9672-2024.
CORAM : SANDEEP V. MARNE, J.
Dated : 19 August 2024.
P.C. :
1) These are cross petitions filedg by the employer-
Municipal Corporation and the employee challenging the
judgment and order dated 20 September 2022 passed by the
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Industrial Court, Nashik in Complaint (ULP) No.103/2018. The
Industrial Court has partly allowed the complaint and while
observing that the employee is already promoted as junior Clerk
vide order dated 25 May 2010, it has directed the Municipal
Corporation to give all promotional and consequential benefits
attached to the promotional post of Junior Clerk from 30
September 2007. While the Municipal Corporation is aggrieved by
the entire judgment and order dated 20 September 2022 and has
filed Writ Petition No.10830/2023, the employee is aggrieved by
the order of the Industrial Court to the limited extent of non-
grant of promotional and consequential benefits w.e.f. 20
December 2000.
2) I have heard Ms. Deshmukh the learned counsel
appearing for the Municipal Corporation in support of Writ
Petition No. 10830/2023 and for opposing Writ Petition
No.9672/2024. Ms. Deshmukh would submit that the employee
was appointed on the post of 'Safai Kamgar' w.e.f. 20 December
2000 on compassionate grounds as per the Lad-Page Committee
recommendations considering his educational qualifications. That
he was not qualified to be appointed in class-III category at the
time of his initial appointment. That he came to be subsequently
promoted to the post of Junior Clerk w.e.f. 24 May 2010. That he
filed complaint after 18 long years from the date of initial
appointment, which was clearly time barred and could not have
been entertained by the Industrial Court. That even after grant of
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promotion to the post of Junior Clerk on 24 May 2010, there was
delay of 8 long years in approaching the Industrial Court. She
would submit that having accepted initial appointment on the
post of 'Safai Kamgar' without any demur, the employee could not
have turned around and filed complaint after 18 long years. She
would submit that grant of the benefit of retrospective promotion
to employee would create administrative difficulties and would
unsettle the settled seniority for the last 18 long years. She would
therefore pray for setting aside the judgment and order dated 20
September 2023.
3) Per-contra, Ms. Deshpande, the learned counsel
appearing for the employee in support of Writ Petition No.
9672/2024 and for opposing Writ Petition No. 10830/2023 would
submit that the Municipal Corporation has discriminated the
employee visa-a-vis other similarly situated persons. She would
submit that in respect of several other similarly situated persons,
they were absorbed in Class-III cadres from time to time as
indicated in para-10 of the Complaint. She would further submit
that the objection of limitation was not even raised in the Written
Statement filed by the Municipal Corporation. She would submit
that in any case, the cause of action for the employee was of
continuous nature and that therefore the Complaint cannot be
said to be time barred. She would submit that the Petitioner has
filed several representations as detailed in para-7 of the complaint
and was continuously corresponding with the Municipal
Corporation with regard to injustice meted out to him. She would
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submit that the Industrial Court has rightly held the employee
eligible for grant of promotion as Junior Clerk from retrospective
date. However, while doing so, the Industrial Court has
erroneously directed grant of consequential financial benefits only
from 13 September 2007, when in fact the promotion as well as
the financial benefits ought to have been granted to the employee
from the date of his initial appointment i.e. 20 December 2000.
She would accordingly pray for allowing Writ Petition
No.9672/2024 and for dismissal of Writ Petition No.10830/2023.
4) I have considered the submissions canvassed by the
learned counsel appearing for the parties. It appears that the
employee's mother was working in the Municipal Corporation,
possibly on the post of Sweeper. As per the recommendations of
the Lad Page Committee, wards of employees engaged as
Sweepers are to be considered for compassionate appointments
upon retirement of the employee. This is how, the Complainant
requested for his appointment on compassionate grounds in place
of his mother. It is Complainant's contention that he held the
qualifications of B.E. Honours, LGS, LSGD and MSCIT at the
relevant time and ought to have been granted appointment in
Class-III category. He complained that despite being fully
qualified for being appointed in Class-III cadre, he was
deliberately granted appointment in Class-IV Cadre as 'Safai
Kamgar' by giving discriminatory treatment to him. The
appointment of the Complainant was effected on 20 December
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2000. If the Complainant felt aggrieved by grant of appointment
in lower category, he ought to have filed Complaint before the
Industrial Court within reasonable time of his appointment after
20 December 2000 by making necessary representation. If the
averments in para-7 of the Complaint are taken into
consideration, it does appear that the Complainant addressed first
representation on 16 June 2001. Though copy of the said
representation is not available on record and therefore the exact
purpose for which the same was made is difficult to comprehend at
this junction, suffice it to observe that if the representation was
not acted upon, the Complainant ought to have waited for some
reasonable time for response from the Municipal Corporation and
ought to have filed Complaint before the Industrial Court
thereafter. However, it appears that the Complainant simply kept
on making representations to the Municipal Corporation and did
not adopt any remedy in respect of his grievance. It is well settled
law that making repeated representations does not extend the
period of limitation. Reference in this regard can be made to the
judgment of Apex Court in S.S. Rathore Vs. State of Madhya
Pradesh (1989) 4 SCC 582.
5) Even on merits, it appears that the employee had no
case. As against the grievance of the Complainant that he was
fully eligible to be appointed in Class-III category, the Municipal
Corporation filed written statement contending that as on 15
December 2000, the Complainant possessed qualifications of only
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SSC and Graduation. According to the Municipal Corporation it
was necessary for the Complainant to also possess the
qualifications of LSGD, MSCIT, as well as Marathi Typing at 30
w.p.m. and English Typing at 40 w.p.m. It is on account of non-
possession of these eligibility criteria that the Complainant was
offered appointment in Class-IV Cadre. It appears that the
Complainant acquired LSGD qualification in June 2002, MSCIT
qualification in June 2003. Similarly, he acquired the qualification
of Marathi and English Typewriting in August 2002. Thus the
employee was not qualified to be appointed in class-III category as
on the date of his first appointment.
6) Without going into the merits of the claim of the
Complainant any further, the Complainant apparently did not
adopt any remedy in respect of this cause of action for
considerable period of time. In the meantime, he came to be
promoted to the post of Junior Clerk on 25 May 2010 and he was
assigned seniority in the Cadre of Junior Clerk w.e.f. 23 December
2009. Again the Complainant failed to adopt any remedies and
went on making representations intermittently. He made
representations dated 7 October 2011, 4 August 2012, 4 May 2016
and 14 February 2018. The representation dated 14 February
2018 is on record which was made for taking objection to the final
seniority list of 2016. In the said representation, the Complainant
prayed for placing his name in the seniority list of Junior Clerk
w.e.f.. 20 December 2000. Thus, the representation dated 14
February 2018 was not for granting promotion to the post of
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Junior Clerk from retrospective date or for changing his
appointment from the post of 'Safai Kamgar' to the post of 'Junior
Clerk'. The said representation was only for the purpose of raising
an objection to the placement in seniority list published in the
year 2016. Therefore, the representation dated 14 February 2018
cannot be treated as representation for the purpose of changing
the post of the Complainant from 'Safai Kamgar' to that of 'Junior
Clerk'. Therefore, the Municipal Corporation rightly rejected the
representation by order dated 16 February 2018 stating that after
his promotion to the post of Junior Clerk vide order dated 24 May
2010, he has been assigned seniority w.e.f. 23 December 2009.
This is how his objection to the seniority list came to be rejected.
Apart from the fact that the said decision dated 16 February 2018
was qua the grievance relating to placement in seniority list (and
not for change of cadre), the said decision dated 16 February 2018
otherwise did not create any cause of action for the Complainant
to file complaint before the Industrial Court. The said decision is
given only on account of grievance raised by the Complainant on
'Aple Sarkar Portal'. It appears that under the mechanism created
by the Municipal Corporation for online redressal of grievances, it
is mandatory to give response to every representation. This is how
the representation made by the Complainant came to be
responded to on 16 February 2018. Therefore, it cannot be
contended that any fresh cause of action got created in favour of
the Complainant on 16 February 2018 for filing complaint under
the provisions of Section 28 of the Maharashtra Recognition of
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Trade Unions and Prevention of Unfair Labour Practices Act,
1971 (MRTU & PULP Act). Reference in this regard can be
made to the judgment in Surjeet Singh Sahni v. State of U.P.,
(2022) 15 SCC 536 in which it is held as under:
8. As observed by this Court in a catena of decisions, mere repre-
sentation does not extend the period of limitation and the ag-
grieved person has to approach the Court expeditiously and
within a reasonable time. If it is found that the writ petitioner is
guilty of delay and laches, the High Court should dismiss it at
the threshold and ought not to dispose of the writ petition by rel-
egating the writ petitioner to file a representation and/or direct-
ing the authority to decide the representation, once it is found
that the original writ petitioner is guilty of delay and laches.
Such order shall not give an opportunity to the petitioner to
thereafter contend that rejection of the representation subse-
quently has given a fresh cause of action.
7) Chief Justice Dipankar Datta (as His Lordship then
was) speaking for Division Bench of this Court in Maruti R.
Wankhede Vs. Union of India Writ Petition No. 8470 of 2019
decided on 8 September 2021 has summarized the principles
relating to continuous cause of action as under:
12. It would be proper for us, at this stage, to summarize the
propositions of law deducible from the authorities cited at the
bar and those considered therein for the purpose of
consideration of its application to the present case. They are:
(i) When an order is passed by a Court/Tribunal to con-
sider or deal with a representation of an individual rais-
ing a stale or a dead claim and such claim is rejected
even on merits on an impression that failure to do so may
amount to disobedience of the order of the Court/Tri-
bunal, such an order does not revive the stale or dead
claim, nor amount to some kind of "acknowledgment of a
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jural relationship" to give rise to a fresh cause of action.
[C. Jacob (supra)];
(ii) Disposal of proceedings by seemingly innocuous orders di-
recting consideration of representation though result in quick or
easy disposal of cases in overburdened adjudicatory institutions
but such orders do more disservice than service to the cause of
justice. [P. Venkatesh (supra)];
(iii) Denial of pay fixation of an employee, while he is in service,
not in accordance with the rules resulting in payment of a quan-
tum of salary not computed in accordance with the rules can
give rise to assertion of a continuing wrong against such act giv-
ing rise to the cause of action each time he is paid less than his
entitlement and so long as such employee is in service, a fresh
cause of action arises every month when he is paid his monthly
salary on the basis of such wrong computation. [M.R. Gupta
(supra)];
(iv) Even if a delayed claim relating to disability pension is found
to be of substance on merits and succeeds, the arrears should be
restricted to three years prior to filing of the writ petition.
[Tarsem Singh (supra)];
(v) When the issue relates to fixation of salary or payment of any
allowances, the challenge is not barred by limitation or doctrine
of laches, as the denial of benefit occurs every month when the
salary/allowances are paid thereby giving rise to a fresh cause of
action based on continuing wrong. [Yogendra Shrivastava
(supra)]; and
(vi) If a petition is filed beyond a reasonable period, say three
years, normally the Court would reject the same or restrict the
relief which could be granted to a reasonable period of about
three years. [Shiv Dass Vs. Union of India, reported in (2007) 9
SCC 274].
xxx
15. .....The Tribunal, in our view, rightly applied the ratio of the
decisions in Jai Dev Gupta Vs. State of Himachal Pradesh &
Anr., reported in (1997) 11 SCC 13, Naresh Kumar vs. Depart-
ment of Atomic Energy & Ors., reported in (2010) 7 SCC 525,
and Udai Shankar Awasthi Vs. State of U.P. & Anr., reported in
(2013) 2 SCC 435, to the effect that submission of represen-
tations is not a valid ground for approaching the forum
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late and favourable recommendation, if any, pursuant to
such representation did not vest any right in the peti-
tioner.
(emphasis added)
8) In my view, the Complainant could not have approached the
Industrial Court in the year 2018 with his stale grievance relating
to the change of cadre for which the cause of action arose on 20
December 2000. I am unable to accept the contention that the
grievance with regard to the change of cadre is continuous cause
of action. The grievance relating to change of cadre, promotion or
seniority do not constitute continuous cause of action. For the
Complainant, the injury was complete on 20 December 2000 and
he ought to have adopted remedy in respect of such injury
immediately thereafter.
9) It is also relevant to be noted that change of cadres,
dates of promotion and seniority position after lapse of
considerable period of time also creates heart burn amongst other
employees of the establishment. In the present case, the
Complainant lived with the reality that he was in Class-IV Cadre
of Safai Kamgar for over 10 years from 20 December 2000 till he
was promoted as Junior Clerk on 24 May 2010. After his
promotion as Junior Clerk vide order dated 24 May 2010, his
seniority position got crystalised on the post of Junior Clerk for
next 8 long years. He sought to unsettle the said settled position of
seniority by filing a Complaint before the Industrial Court in the
year 2018, which was clearly impermissible in law. The Industrial
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Court has erred in directing grant of promotional benefits and
consequential benefits to the Complainant on the post of Junior
Clerk from 13 September 2007 by entertaining the complaint filed
by him in the year 2018. The Industrial Court ought to have
dismissed the complaint as the same sought to raise a completely
stale claim. The order dated 20 September 2022 passed by the
Industrial Court thus suffers from palpable error warranting
interference of this Court in exercising jurisdiction under Article
227 of the Constitution of India.
10) Writ Petition No.10830/2023 accordingly succeeds.
Judgment and order dated 20 September 2022 passed by the
Industrial Court, Nashik in Complaint (ULP) No. 103/2018 is set
aside. Since the judgment and order dated 20 September 2022 is
set aside, nothing would survive to be agitated in Writ Petition
No.9672/2024. Accordingly, Writ Petition No.10830/2023 is
allowed and Writ Petition No.9672/2024 is dismissed. There
shall be no order as to costs.
[SANDEEP V. MARNE, J.]
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