Bombay High Court
Vasu Malsing Padvi And Others vs The State Of Maharashtra Through The ... on 24 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:1908-DB
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
919 WRIT PETITION NO. 768 OF 2024
VASU MALSING PADVI AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE ADDITIONAL
SECRETARY AND OTHERS
Mr.G.D.Jain, Advocate for the Petitioners.
Mr.S.K.Tambe, AGP for the Respondent/State.
( CORAM : RAVINDRA V. GHUGE AND
Y.G.KHOBRAGADE, JJ.)
DATE : JANUARY 24, 2024
PER COURT :
1. These are 5 Petitioners before us, who claim to be
identically placed with the Petitioners in Writ Petition No.5867/2015,
WP No.7351/2012, WP No.2194/2013 and 2196/2013, which were
decided by the judgment of this Court dated 31.10.2018 (Madhukar
Bhavanrao Sadgir and Others Vs. The State of Maharashtra and
Others). It is further prayed that this Court should follow the
conclusions drawn in paragraph Nos. 17 and 22, which read as under :-
"17. The following circumstances persuades us to consider the case of
the Petitioners for regularization of those who have completed ten
years in service :
[1] The posts on which the Petitioners are appointed on sanctioned
posts.
[2] The work load is available.
[3] The Petitioners have agreed to officiate at the time when the
Respondents were not getting the necessary teaching and non teaching
staff to work in remote tribal areas and more particularly when the
means of communication and transportation were scarce.
[4] The respondents have not undertaken selection process for all these
years to fill in the posts held by the petitioners.
[5] The Petitioners are working continuously for ten years or more on
meager honorarium.
[6] Asking the petitioners to continue to work on meager honrarium for
such a long period would tantamount to their exploitation not expected
from the welfare State. The State is expected to be a model litigant.
22. We have not considered the cases of those petitioners who have
not completed ten years of their service. We leave it to the respondent-
State to consider their case on its own merits and as per their policy."
2. Having considered the above submissions, we deem it
appropriate to rely on the judgment delivered by the Larger Bench in
the matter of Municipal Council, Tirora and another Vs. Tulsidas
Baliram Bindhade [2016(6) Mh.L.J.867], wherein this Court ruled that
in State Instrumentalities, public sector undertakings and
establishments operated by the Government, unless the posts are
created/sanctioned and vacant, daily wagers cannot be directed to be
regularized in employment, purely because they have completed 240
days in uninterrupted and continuous service. It has been held that
Standing Order 4C of the Industrial Employment Standing Orders Act,
1946 would not be applicable to State Instrumentalities. We are also
reminded of the judgment delivered by the Hon'ble Supreme Court in
the matter of Chief Conservator of Forest Vs. Jagannath Maruti
Kondhare, AIR 1996 SC 289, wherein the Hon'ble Supreme Court
concluded that if posts are not available, regularization cannot be
granted, though salary scale at par can be granted to such daily wagers.
3. The grievance of the Petitioners is that their request for
regularization has been turned down by the communication dated
27.09.2023. The said order is assailed for the reason that the view
taken by this Court on 31.10.2018 in Madhukar Bhavanrao Sadgir
(supra) was not cited before the Additional Commissioner, Tribal
Development, Nashik Division Nashik.
4. This Court had concluded in Madhukar Bhavanrao Sadgir
(supra) that posts on which those Petitioners were working, were
admitted to be sanctioned posts. The said Authority has to first verify
the sanctioned posts. Thereafter, they have to verify as to whether
posts are vacant and whether the claims of such Petitioners on all
Maharashtra basis , can to be considered as per their seniority having
regard to the dates of joining as daily wagers and completion of 10
years in continuous employment.
5. In view of the above, this Petition is disposed off with
liberty to the Petitioners to tender their individual representations
indicating the dates on which they joined daily wage service, the areas
where they have been working, the types of work that they are
performing and the dates on which they have completed 10 years as
daily wagers. If they have the details of the sanctioned vacant posts,
they would be at liberty to mention the same in the representations.
6. Let such representations be tendered to Respondent No.2.
After receipt of such representations , the said Authority would consider
the above directions and refer to the judgments delivered in Municipal
Council, Tirora (supra), Chief Conservator of Forest (supra) and
Madhukar Sadgir (supra). Needless to state, the seniority of all
similarly situated employees in the State of Maharashtra will have to be
taken into account. The State Authority is at liberty to issue appropriate
directions to all the Authorities in the State of Maharashtra to collate
such information about all such temporary/primary/secondary/ higher
secondary teachers working in the Ashram Schools, to be taken into
consideration for granting regularization, depending upon the
permanent vacant posts available. Let this exercise be completed
within a period of 210 days. We, however, caution the Authorities that
they should complete this procedure in the light of these directions.
( Y.G.KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J.)
