Bombay High Court
Vinayak Kalu Jadhav And Ors vs State Of Maharashtra, Rural ... on 16 January, 2024
Author: M.M. Sathaye
Bench: Nitin Jamdar, M.M. Sathaye
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4398 Of 2021
Vinayak Kalu Jadhav And Ors. ...Petitioners
Versus
The State of Maharashtra, Rural Development
Department, Mantralaya, Mumbai And Ors. ...Respondents
.......
Mr. Vijay Kurle a/w. Mukesh Birajdar, Chetan Bhoir and Vikas
Pawar, Advocates for Petitioners.
Mr. K. S. Thorat, AGP for Respondent No. 1-State.
Mr. Ashish S. Gaikwad a/w. Mr. Anirudh R. Rote, Advocate for
Respondent Nos. 2 & 3.
Mr. Rajesh S. Datar, Advocate for Respondent No.4.
.......
CORAM : NITIN JAMDAR &
M.M. SATHAYE, JJ.
DATE : 16 JANUARY 2024
P.C.:
. Heard the learned counsel for the parties.
2. The Petitioners, 22 in number were employees of Thane Zilla
Parishad, including some heirs of the deceased employees.
Thereafter, their services came to be allotted to different Municipal
Councils - Navaghar Manikpur Nagar Parishad and Nalasopara
Nagar Parishad which subsequently were included in the Vasai-Vivar
City Municipal Corporation. The Petitioners have sought a direction
to implement the order passed by Zilla Parishad, Thane and to give
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benefits of permanency to the Petitioners and also to regularize their
services. Further direction is sought to pay arrears of wages including
annual increments and pay revision from time to time.
3. The Petitioners were initially appointed in the Zilla Parishad as
Pump Operators. The State Government came up with various
schemes considering that there were large number of Pump
Operators. The Zilla Parishad, Thane pursuant to the said schemes,
allotted the services of the Petitioners to the aforesaid 2 Municipal
Councils by way of handing over a report on 15 October 2001. This
handing over report stated that a decision was taken jointly by the
Zilla Parishad and the Municipal Councils and the agreement
regarding the implementation of water scheme was also stated. It also
stated that up to 15 October 2001, the liability of payment to Pump
Operators such as the Petitioners would be on the Zilla Parishad and
after the transfer, it would be of the Municipal Councils. Thereafter
the Petitioners' services were utilized by the Municipal Councils
even after the merger with the Municipal Corporation.
4. In the meanwhile the learned single Judge of this Court
(Aurangabad Bench) considered the challenge to the judgment and
order passed by the Industrial Court, Jalna wherein the complaint
filed by the workers working with the Zilla Parishad was allowed and
they were granted benefits of the Kalelkar Award. The learned single
Judge disposed of the writ petition observing that the government
resolution dated 10.07.1974 clearly indicates that the issue of
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bringing the employees working on the work-charge establishments,
daily- rated establishments and contingency-paid establishments
under the Zilla Parishads on CRTE was under the consideration of
the Government for some time. The Government has since decided
that the said employees would be brought on regular establishment
with effect from 01.04.1974 after they have put in total service of 05
years. Those who have put in 10 years would be brought on
permanent establishment. The Zilla Parishads were requested by the
Government to create required number of suitable posts for bringing
these persons on regular establishment and submit the proposals for
sanction of additional posts to the Government under section 243 of
the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.
The learned single Judge referred to the decision of the Division
Bench of this Court, Writ Petition No. 2883 of 1992 in the matter of
Sudhakar Gangaram Gunjatkar, President of Zilla Parishad Pani
Puravatha Karmachari Sanghatana which extensively dealt with the
issue of such daily rated workmen in the light of the government
resolution dated 10.07.1974. The Division Bench approved the
scheme of bringing these daily-rated workmen working in the
various water supply departments under the Zilla Parishads on
CRTE after completion of five years and then to be brought on
permanent establishment after completion of ten years. The Division
Bench concluded that the state was not justified in contending that
the Zilla Parishad will have to bear the expenditure towards salaries
and allowances as also pensionary benefits from its funds and that
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the State will not release any grants for the purpose. The learned
single Judge disposing of the Petition directed that the competent
department of the State Government is bound to consider the cases
of all such similarly situated daily rated employees working in Zilla
Parishads of the State Government, on parity, in view of the settled
law, subject to their entitlement, in order to avoid a situation of
compelling these daily rated workers to approach Courts and litigate.
5. Pursuant to the order passed by the learned single Judge, a
Government Resolution was issued on 6 March 2019. By this
Government Resolution it was stated that the Zilla Parishad should
not employ persons on daily wages any further without seeking
concurrence of the State. Review of all those working with the Zilla
Parishad was to be taken and it was directed that the Zilla Parishad
would take a decision at their level regarding implementation of the
Kalelkar Award and the amount liable to be paid to such workmen
should be paid by the Zilla Parishad.
6. Thereafter, pursuant to this Government Resolution, the Zilla
Parishad Thane issued an order on 6 November 2019 giving effect to
the Kalelkar Award in respect of the Petitioners and directing that as
per the Award, the Petitioners need to be taken on regular
establishment. The fact that was referred to by the Zilla Parishad
that Petitioners are working with Vasai Virar Municipal Corporation
and thereafter also, directed that the salary and allowances are to be
paid by Municipal Corporation. It is this order that the Petitioners
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seek to implement by way of this Petition.
7. According to the learned counsel for the Municipal
Corporation, when the Zilla Parishad passed the order dated 6
November 2019 the Petitioners working with Municipal Councils
were no longer the employees of the Zilla Parishad and therefore,
such order could not have been passed. It is also stand of the
Municipal Corporation that therefore, fresh decision for
regularization will have to be taken for which approval of the State
Government is necessary.
8. This stand taken by the Municipal Corporation is not correct.
The order passed by Zilla Parishad dated 6 November 2019 gave
effect to the Kalelkar Award. As stated by the learned single Judge, as
per the Kalelkar Award, employees who were working on the
Converted Regular Temporary Establishment in Zilla Parishad
would be considered on regular establishment after putting 5 years of
service and those who have put 10 years would be brought on the
permanent establishment. Therefore, the order passed by the Zilla
Parishad will be considered as a declaration of the factual position
that upon exceeding 5 years and 10 years respectively the Petitioners
had acquired a certain status.
9. This would relate to the date when they had completed the
stipulated period. The question therefore, that would arise is what
was the status of the Petitioners as per the Kalelkar Award, when
their services were handed over to the Municipal Councils. If they
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had acquired the status as per the Kalelkar Award before the
Petitioners' services were allotted to the Municipal Councils, then
their status in the Municipal Councils and Municipal Corporation
would have to be considered on permanent/regular establishment.
That being the position there would be no question now to
regularize or to seek declaration separately. Upon the Municipal
Councils being merged in the Municipal Corporation, the same
status would continue on the date of merger as well. Therefore, if the
Petitioners had acquired a status as envisaged in the Kalelkar Award
as per Government Resolution dated 6 March 2019, before the date
when allocation took place then no further enquiry would be
necessary and the Petitioners would be considered as on
regular/permanent establishment of the Respondent-Corporation
and therefore, no fresh order for regularization would be required
neither such question of approval from the State Government would
arise.
10. In these circumstances, we direct the Secretary, Rural
Development Department to instruct/order suitable senior officer to
call for records from Zilla Parishad, Thane and also from Respondent
No. 4 - Vasai Virar City Municipal Corporation and examine the
case of each Petitioner as to his/her status on the date they were
allotted to the Municipal Councils.
11. Let this report be submitted to this Court by 30 April 2024.
12. Needless to state that those workmen who have already
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acquired the status as envisaged under the Kalelkar Award, on the
date of their allotment to the Municipal Councils, the Respondents
would issue necessary directions by the next date. In case it is found
that they had not acquired status as on the date they were allotted,
their cases will be separately considered further in this Petition.
13. Stand over to 30 April 2024.
( M.M. SATHAYE, J.) ( NITIN JAMDAR, J.)
