Bombay High Court
Ramesh Laxman Suryawanshi And Or vs The State Of Mah And Ors on 16 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1417-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3592 OF 2010
1. Ramesh s/o. Laxman Suryawanshi,
Age: 64 years, Occu.: Retired,
R/o. Sutargalli, Jamner, Tq. Jamner,
District Jalgaon.
2. Wamanrao s/o. Vithalrao Dalal
Age: 59 years, Occu.: Retired,
R/o. Madhuban Colony, Jamner,
Taluka Jamner, District Jalgaon.
3. Sudhakar s/o. Narayan Patil
Age: 63 years, Occu.: Retired,
R/o. Rambharosenagar, Jamner,
Taluka Jamner, District Jalgaon.
4. Ramdas s/o Chango Masurkar,
Age: 62 years, Occu.: Retired,
R/o. Shastrinagar, Jamner,
Taluka Jamner, District Jalgaon.
5. Krishna s/o. Dhondu Mahajan
Age: 62 years, Occu.: Retired,
R/o. Near Mohan Bhuwan, Jamner,
Taluka Jamner, District Jalgaon.
6. Ramesh s/o. Trimbak Mahajan
Age: 61 years, Occu.: Retired,
R/o. Maligalli, Jamner,
Taluka Jamner, District. Jalgaon.
7. Motiram s/o Vithoba Mali
Age: 59 years, Occu.: Retired,
R/o. Vivekanandnagar,
Taluka Jamner, District Jalgaon.
8. Majidkhan s/o Abbaskhan Pathan
Age: 59 years, Occu.: Retired,
R/o. Athawadibazar, Near Watertank,
Taluka Jamner, District Jalgaon. .. PETITIONERS
[1]
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VERSUS
1. The State of Maharashtra
Through Secretary,
Urban Development Department,
Mantralaya, Mumbai-400 032.
2. Commissioner and Director,
Municipal Council Administrative
Directorate, Government Pariwahan
Seva Bukoding, 3rd Floor,
Sar Pochkhanwala Road, Worli,
Mumbai.
3. Deputy Director of Municipal Council
Administrative Directorate,
Govt. Pariwahan Seva Building,
3rd Floor, Sar Pochkhanawala Road,
Worli, Mumbai.
4. The District Collector, Jalgaon.
5. Municipal Commissioner,
Municipal Corporation, Jalgaon.
6. Chief Officer,
Municipal Council, Jamner,
District, Jalgaon.
7. The Chief Accounts Officer,
Municipal Corporation, Jalgaon. .. RESPONDENTS
...
WITH
WRIT PETITION NO.7344 OF 2012
Abrarkhan s/o Houjdarkhan Pathan
Age: 61 years, Occu.: Retired,
R/o. At Post. Bhadgaon, Tq. Bhadgaon,
District Jalgaon. .. PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary,
[2]
WP-3592-2010 WITH 7344-2012.odt
Urban Development Department,
Mantralaya, Mumbai-400 032.
2. Commissioner and Director,
Municipal Council Administrative
Directorate, Government Pariwahan
Seva Bukoding, 3rd Floor,
Sar Pochkhanwala Road, Worli,
Mumbai.
3. Deputy Director of Municipal Council
Administrative Directorate,
Govt. Pariwahan Seva Building,
3rd Floor, Sar Pochkhanawala Road,
Worli, Mumbai.
4. The District Collector, Jalgaon.
5. Municipal Commissioner,
Municipal Corporation, Jalgaon.
6. Chief Officer,
Municipal Council, Bhadgaon,
District, Jalgaon.
7. The Chief Accounts Officer,
Municipal Corporation, Jalgaon. .. RESPONDENTS
.........
Mr. M. R. Kulkarni, Advocate for the petitioners in both the petitions.
Mr. N. S. Tekale, AGP for respondent Nos.1 to 4 in both the matters.
Mr. P. V. Gole h/f Mr. V. D. Gunale, Advocate for respondent No.5.
Mr. Sudhir B. Akhade h/f Mr. M. S. Deshmukh, Advocate for
respondent No.7.
Mr. D. B. Thoke, Advocate for respondent No.6 (Through V.C.) in Writ
Petition No.7344 of 2012.
.........
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
DATE : JANUARY 16, 2024.
[3]
WP-3592-2010 WITH 7344-2012.odt
JUDGMENT (Per Smt. Justice Vibha Kankanwadi, J.) :
-
. In both the petitions, the issue involved is similar and, therefore,
taken up together for disposal.
2. Rule was issued in both the matters on 18.09.2012 and
11.02.2014 respectively and both the matters were tagged together
by order dated 11.02.2014.
3. Heard learned Advocate Mr. M. R. Kulkarni for petitioners in both
the writ petitions, learned AGP Mr. N. S. Tekale for respondent Nos.1
to 4 in both the petitions, learned Advocate Mr. P. V. Gole holding for
learned Advocate Mr. V. D. Gunale for respondent No.5 in both the
petitions, learned Advocate Mr. Sudhir B. Akhade h/f Mr. M. S.
Deshmukh for respondent No.7 in both the matters, learned Advocate
Mr. D. B. Thoke (Through V. C.) for respondent No.6 in Writ Petition
No.7344 of 2012.
4. The petitioners in Writ Petition No.3592 of 2010 were in service
of erstwhile Grampanchayat, Jamner, District Jalgaon on different
posts on the basis of their qualification. The list of their post and date
of appointment has been given in the petition. The Government of
Maharashtra issued resolution dated 28.10.2002 converting the
Grampanchayat, Jamner into Municipal Council. The Commissioner as
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well as Director, Municipal Council Administration, Directorate, Mumbai
gave sanction to 136 posts by order dated 22.07.2005 as per the
reviewed aakrutibandh, out of which 126 employees of erstwhile
Grampanchayat were absorbed under the Municipal Council under
certain terms and conditions. It was stated in condition No.2 that the
seniority would be counted from the date on which they became
permanent in the Grampanchayat. As per condition No.2, in order
dated 22.07.2005 their services were made entitled for the pension,
assured progressive scheme and other benefits from the date of their
allotment under the Municipal Council, Jamner. The petitioners
thereafter retired on their respective days of retirement, lastly some
out of them were retired on 31.05.2009. It is said that they have not
completed the service for pensionary benefits from the date of their
allotment to the Municipal Council, Jamner from Grampanchayat,
Jamner. It is said that they have been deprived of from the benefits of
pension and other benefits. Time and again they had made
representation, however, it was turned down by respondent No.3 by
order dated 19.03.2008. Thereafter they had made representation to
the Hon'ble Lok Aayukta, who had not considered their representation.
It has been then contended that by Government Resolution dated
11.09.1987 jurisdiction of Jalgaon Municipal Council was extended and
the Grampanchayat areas of Nimkhedi / Khedi / Meharan and Pimprale
were included in the jurisdiction of Municipal Council. Thereafter on
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30.04.1993, the President, Jalgaon Municipal Corporation decided to
count the services of the employees rendered under the erstwhile
Grampanchayat for the purpose of pensionary benefits. In fact, the
petitioners are similarly situated, and, therefore, they should be
extended with the benefits. The petitioners therefore have prayed for
quashing the letter dated 19.03.2008 issued by respondent No.3 and
holding them entitled for the pensionary benefits along with the
admissible benefits to them and arrears thereof.
5. The petitioner in Writ Petition No.7344 of 2012 was the
employee of erstwhile Grampanchayat, Bhadgaon. By Government
Resolution dated 31.08.2009, the said Grampanchayat was converted
to Municipal Council. Similarly, the posts were sanctioned under order
dated 29.04.2010 by the Commissioner as well as Director, Municipal
Council Administration Directorate, Mumbai. The petitioner was
absorbed in view of Government Resolution dated 11.02.2011. The
similar condition was put to him. The petitioner has also retired and he
has also stated that he had not rendered the services required for
pensionary benefits from the date of his allotment to Municipal
Council, Bhadgaon. He is also claiming that likewise the employees of
Grampanchayat Nimkhedi, Khedi, Meharan and Pimprale were given
benefits and other pensionary benefits by the Jalgaon Municipal
Corporation, he also ought to have been given the benefits. This
WP-3592-2010 WITH 7344-2012.odt
petitioner is also praying the similar relief as stated in Writ Petition
No.3592 of 2010.
6. The affidavit-in-reply has been given on behalf of respondent
Nos.2, 3 and 4 by one Bhikanrao Tanku Baviskar in Writ Petition
No.3592 of 2010. The factual aspects are not denied, however, it is
said that it was specifically mentioned in condition No.2 of Government
Resolution dated 22.07.2005 that the services of the petitioners will be
counted from 28.10.2002 i.e. the date on which the Municipal Council
came into existence and the conversion of the Grampanchayat to
Municipal Council has been made. The petitioners never challenge the
Government Resolution dated 28.10.2002 or order dated 22.07.2005.
In fact, they had accepted the terms and conditions imposed by the
authorities at the time of merger of their services in Municipal Council,
Jamner. Therefore, in view of said condition No.2 and the fact that all
the petitioners have not put eligible service i.e. 10 years prior to their
retirement in their employment with Municipal Council, Jamner, they
are not entitled to the pensionary benefits and other benefits, if any.
7. The main point on which the learned Advocate for the petitioners
argued the matter was the discrimination between the petitioners who
were absorbed in Municipal Council and the absorptions of the
Grampanchayat employees from Nimkhedi, Khedi, Meharan and
Pimprale to Municipal Council, Jalgaon or Municipal Corporation,
WP-3592-2010 WITH 7344-2012.odt
Jalgaon. Though certain employees from those four Grampanchayats
had not put required service where they were absorbed, yet they have
been held to be eligible for pension and other benefits. He further
submitted that by a circular dated 10.02.1987 by the Government, it
was observed that the Nagarpalika's can grant pensionary benefits
with retrospective effect from 15.06.1966. He submits that it was as
per Section 80 of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 (for short "the Act")
governed by-laws to be made regulating certain conditions of service.
Therefore, in view of Section 80 of the Act as well as the said circular,
the petitioners are entitled to get the benefits and there cannot be a
discrimination on the said point.
8. Per contra, the learned AGP representing respondent Nos.1 to 4
vehemently submitted that the condition No.2 was very much clear
and on the said conditions, the petitioners were absorbed. Their
absorption has not been challenged on the ground that it is taking
away certain rights from them. Further, there are no by-laws framed.
The circular dated 10.02.1987 cannot be made applicable here, when
the condition No.2 in the order of absorption was never challenged.
9. The first and the foremost fact to be noted is that when once an
employee accepts the terms of employment, then there would be little
scope left for interpretation in respect of those service conditions. The
WP-3592-2010 WITH 7344-2012.odt
facts are clear in both the matters. There were Grampanchayats
earlier at Jamner and Bhadgaon. Thereafter, Municipal Councils were
established by respondent No.1 - State and it was decided to absorb
the employees, who were in the employment of erstwhile
Grampanchayat. By order dated 22.07.2005 and 29.04.2010, the
posts were sanctioned, but at the same time conditions were imposed.
The conditions are similar. Condition No.2 runs thus :-
"2½ xzkeiapk;rhdMwu uxjifj"knsdMs oxZ >kysY;k
deZpk&;kaph lsok] uxjifj"knsP;k LFkkiusP;k fnukadkiklwu
fuo~Rrhosru vk'okflr izxrh ;kstuk rlsp brj loZ
ykHkkalkBh xzkg~; /kj.;kr ;sr vkgs-"
English translation of the above-said condition No.2 is as
under :-
"2) The service of the employees transferred
from the Gram Panchayat to the Municipal Council is
being taken into account for the Pension Assured
Progression Scheme and all other benefits from the
date of establishment of the Municipal Council."
(Translated by Senior Translator and Interpreter,
High Court of Bombay, Bench at Aurangabad)
10. It was clearly stated that the seniority of the absorbed
employees would be counted from the date on which they became
permanent in the Grampanchayat, but as regards pension, ACP and
other benefits are concerned, it would be from the date of
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establishment of the Nagar Parishad. As regards Petitioners in Writ
Petition No.3592 of 2010, they had ample opportunity to challenge the
said condition No.2 before their retirement. Petitioner No.1 appears to
have retired on 30.04.2004, which was even prior to order dated
22.07.2005. The others have retired thereafter in 2005, 2006, 2007
and 2009 respectively. The Writ Petition No.3592 of 2010 has been
filed on 14.04.2010. This shows that they accepted the absorption,
though they were knowing condition No.2 from order dated
22.07.2005. Almost similar is the case in respect of another petitioner
in companion matter. The order of absorption is dated 11.02.2011
with similar condition No.2. The petitioner retired on 31.05.2012 i.e.
almost one year three months from the order of absorption. The
learned Advocate for the petitioner could not point out as to how the
Government Resolution dated 11.02.2011 is ultravirus, illegal and bad
in law. Merely because the Jalgaon Muncipal Corporation has absorbed
the employees of other Grampanchayat and granted pensionary
benefits, it will not automatically said that the petitioners should also
receive the same treatment. It is a contract of service which depends
upon the contract as well as the rules and regulations governing a
particular employment. It cannot be said that the act of respondent
Nos.1 to 4 is arbitrary. It is for the employer to put the service
conditions. When it was accepted by the petitioners, then petitioners
cannot now agitate against the said order.
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11. It is not pointed out that by-laws have been prepared after the
councils came into existence. If that circular dated 10.02.1987 is still
in existence, then immediately after the order of absorption, the
petitioners could have challenged the respective orders, but the
petitioners allowed themselves to retire on the basis of the same
order. Therefore, they cannot challenge only one of the clause of the
said order. The Jalgaon Municipal Corporation might be having specific
by-laws and after adopting due procedure, it would have been decided
by the authorities therein to extend pensionary benefits to those
employees, who came to be absorbed from the erstwhile
Grampanchayats. Therefore, there is absolutely no violation of Article
14 of the Constitution of India by discriminating one class of
person/employee from another class.
12. For the reasons stated above, no case is made out for exercising
constitutional powers of this Court. Therefore, both the writ petitions
stand dismissed.
13. Rule is discharged.
[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
