Bombay High Court
Vijay Kashinath Honrao vs The Zilla Parishad Through Its Chief ... on 1 April, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:9550-DB
WP*-12952-2021-Judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12952 OF 2021
Vijay Kashinath Honrao
Age : 51 Years, Occ. Service as Junior Assistant,
R/o C/o Shri Kishor Rajhans, Yogayog Society,
House No. 2, N-2, HUDCO, Aurangabad
Cell No.9860596714 ... PETITIONER
VERSUS
1. The Zilla Parishad, Aurangabad
Through its Chief Executive Officer
2. The Divisional Commissioner,
Aurangabad Revenue Division,
Aurangabad
3. The Principal Secretary,
Rural Development &
Water Conservation Department,
Mantralaya, Mumbai 400 032 ... RESPONDENTS
....
Mr. Ajay S. Deshpande, Advocate for the Petitioner
Mr. S. R. Dheple, Advocate for Respondent No.1
Ms D. S. Jape, AGP for Respondent Nos. 2 and 3
....
CORAM : MANGESH S. PATIL &
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 19.03.2025
PRONOUNCED ON : 01.04.2025
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JUDGMENT (Per Y. G. KHOBRAGADE, J.)
1. Rule. Rule made returnable forthwith. With consent of
both the sides, it is heard finally at the stage of admission.
2. By the present petition under Article 226 of the
Constitution of India, the petitioner prays for Writ of Mandamus
directing respondent No.1 Zilla Parishad to appoint him on the post of
Stenographer (Lower Grade) from the date of his absorption i.e.
20.05.2014 and to extend him all the benefits flowing therefrom
including differences of pay between drawn and received by him in
terms of judgment and order dated 10.10.2013 passed by this Court
in Writ Petition No.6344 of 2012. The petitioner further prays for
consideration of his past service period of 17 years i.e. his initial
appointment on contract basis i.e. from 01.01.1997 for the
pensionary and time scale promotional benefits.
3. Initially, the petitioner came to be appointed as
Stenographer (Lower Grade) by respondent No.1 on 23.12.1996 for a
period of six months under District Primary Education Programme
(DPEP). The scheme came to an end on 30.06.2003. Thereafter, the
petitioner was appointed on contract basis under " Sarva Shiksha
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Abhiyan", scheme floated under District Primary Education
Programme (DPEP). On 20.12.1997, the State Government issued a
Government Resolution and framed policy for absorption of the
petitioner with other employees. The proposals for absorption of the
petitioner with other employees were forwarded by Respondent No.1
to the Rural and Water Conservation Department, State of
Maharashtra. Another employee Shri G. B. Thale was absorbed on
regular establishment but the petitioner was not absorbed. Therefore,
the petitioner had approached before this Court by filing Writ
Petition No.6344 of 2012 and had prayed for issuance of directions to
Respondent no. 1 to absorb him on the post of Stenographer (Lower
Grade) as per the Government Resolution dated 20.12.1997.
4. On 10.10.2013, this court passed Judgment and order
directing Respondent No.1 to issue necessary order about absorption
of the petitioner on the establishment of Zilla Parishad against the
available vacancy and to forward appropriate proposal to the
Divisional Commissioner and after receiving sanction, to issue order
of absorption of the Petitioner on the post of Stenographer (Lower
Grade) save and except pensionary benefit but the petitioner would
not be entitled for monetary benefits in respect of the period prior to
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issuance of the order of absorption. In compliance of the order, the
petitioner furnished an undertaking on 07.05.2014. Thereafter, on
20.05.2014, respondent No.1 issued an order and absorbed the
petitioner on the post of Junior Assistant (Clerk) in the pay scale of
Rs.5200-20200 (Grade Pay Rs.1900) on certain terms and conditions.
5. On 29.09.2015, respondent No.1 published seniority list
of Junior Assistant (Class-3) (Clerical) and first date of appointment
of the petitioner on that post was shown as 01.01.1997 and first
appointment of the petitioner on the post of Clerk was shown as
20.05.2014. Again, on 01.01.2020, the respondent No.1 published
seniority list wherein first date of appointment of the petitioner was
shown as 20.05.2014.
6. On 18.02.2020, the petitioner submitted a representation
and claimed that, as per the judgment and order passed by this Court
in Writ Petition No.6344 of 2012 on 10.10.2013, he was entitled to
the pensionary benefits by considering his previous service, however,
while preparation of seniority list his first appointment to the post of
Junior Assistant was wrongly shown shown as 01.01.2015 instead of
01.01.1997. Therefore, he prayed for correction in the seniority list.
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7. The Respondents have filed reply affidavit and strongly
resisted the petition. According to the Respondents, the petitioner was
appointed on the post of Stenographer (L.G.) under the District
Primary Education Programme on contractual basis, till he was
absorbed on the post of Junior Assistant (Clerk) as per Judgment and
order dated 10.10.2013 passed by this Court in Writ Petition 6344 of
2012. The petitioner furnished written undertaking on 20.05.2014
stating that, in future he would not claim any right over higher post
till his absorption on the post of Junior Assistant. So also, the
appointment of the petitioner w.e.f. 01.01.1997 was not on the
substantive post, therefore, the petitioner can not be equated with a
permanent employee of Respondent No.1. Hence, the petitioner's
initial appointment was considered w.e.f. 01.01.2015. Though the
petitioner claims that, Shri S. D. Devane, the Driver working under
the Zilla Parishad Nanded has been extended old pensionary benefits
vide communication dated 06.03.2017 as a special case but said
benefits can not be extended to the petitioner. Hence, they have
prayed for dismissal of the petition.
8. Section 253 of the Maharashtra Zilla Parishad And
Panchayat Samitis Act, 1961 provides that the Zilla Parishad may
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appoint any person not being a member of any service under a
contract for special purpose, in accordance with rules prescribed by
the State Government in this behalf. Sub Rule (iii-a) of Rule 2 of the
Maharashtra Zilla Parishad District Services (Recruitment) Rules,
1967 provides "continuous service", means a service without break
after the regular appointment on any post made in accordance with
these rules and as per the relevant orders regarding procedure of
appointment issued by the State Government from time to time.
9. In case in hand, on 01.01.1997, the petitioner was
appointed first time on the post of Stenographer (Lower Grade) on
contract basis but subsequently he was absorbed as a Junior Assistant
(Clerk) with respondent No.1 in pursuance of Government Resolution
dated 20.12.1997. The initial appointment of the petitioner on the
post of Stenographer (Lower Grade) was purely on contract basis and
was not on substantive and clear, vacant post. Therefore the
petitioner cannot claim benefits at par with other permanent
employees of respondent No.1.
10. The petitioner was absorbed as a Junior Assistant (Clerk)
on 20.05.2014 and he was not absorbed on the post of Stenographer
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(Lower Grade). The petitioner had joined the post of Junior Assistant
without any protest and furnished undertaking. Therefore, the
Respondents can not be directed to absorb him w.e.f. 20.05.2014 on
the post of Stenographer (Lower Grade) because the said post was
not sanctioned and was not vacant. Therefore, the petitioner can not
be equated with the permanent employee of Respondent No.1 while
fixation of seniority list.
11. Therefore, we are not inclined to issue writ of mandamus,
directing respondent No.1 Zilla Parishad to consider appointment of
the petitioner on the post of Stenographer (Lower Grade) from the
date of his absorption i.e. 20.05.2014 which was as a Junior Assistant
(Clerk) and cannot extend him any benefits flowing therefrom. No
right has been created in the petitioner for appointment on the post of
Stenographer (Lower Grade) from the date of his absorption i.e.
20.05.2014. Accordingly, the writ petition is dismissed. Rule is
discharged.
[ Y. G. KHOBRAGADE, J. ] [ MANGESH S. PATIL, J. ]
SMS
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