Bombay High Court
Hemlata Jayant Neve vs The State Of Maharashtra Through ... on 14 January, 2025
2025:BHC-AUG:1049-DB
1 WP-8888-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8888 OF 2022
Dr. Hemlata Jayant Neve,
Age 56 years, Occu. Service,
R/o. 448/2, Plot No.5, Mohan Nagar,
Jalgaon, Taluka and District Jalgaon .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary
Urban Development Department
Mantralaya, Mumbai
2. Jalgaon Municipal Corporation,
Jalgaon
Through its Commissioner .. Respondents
Mr. Parag V. Barde, Advocate for Petitioner;
Mr. S. S. Dande, A.G.P. for Respondent No.1;
Mr. L. V. Sangit, Advocate for Respondent No.2
CORAM : S. G. MEHARE &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 08.01.2025
PRONOUNCED ON : 14.01.2025
JUDGMENT (PER: S.G.MEHARE, J.) :
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1. Rule. Rule made returnable forthwith. By consent, heard the
learned counsels for the respective parties finally at the admission
stage.
2. The petitioner, by way of forth round of litigation, is seeking
the direction against respondent No.2 / Jalgaon Municipal
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Corporation, Jalgaon, to advance permanency benefits to her with
effect from 03.05.2013 and disburse the arrears of salary from the
deemed date.
3. The petitioner's contention, in brief, is that on 01.11.1999,
she was appointed as a Medical Officer on consolidated pay of
Rs.3,000/- per month. In 2001, the consolidated pay was
enhanced to Rs.5,000/- per month. Respondent No.2 abruptly
stopped payment of the salary. Hence, she approached this Court
by filing Writ Petition No.2386 of 2002. In that petition, a direction
was issued to the petitioner, to approach the Collector, Jalgaon, as
per the provisions of Section 308 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965.
She, accordingly, moved the Collector, Jalgaon. However, during
pendency of her claim, Municipal Council, Jalgaon has been
upgradated to Municipal Corporation. Hence, the Collector
forwarded her representation along with all the papers for
consideration as per Section 451 of the Maharashtra Municipal
Corporations Act, 1949. However, the representation was not
considered. Hence, she again filed Writ Petition No.5620 of 2005.
This Court, by order dated 28.07.2006, directed the State
Government to decide her claim within three months. Thereafter,
respondent No.2 directed the petitioner to resume duties and draw
consolidated salary of Rs.5,000/- per month. She, accordingly,
resumed the duties on 23.02.2007.
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4. The petitioner's contention is that, she was entitled to
regularization of services as the work is perennially available and
she was continuously rendering the services. The identically
situated Co-Medical Officers have been granted benefit of
permanency in 2013. Again, her consolidated pay was enhanced
to Rs.10,000/- per month, however, it was not paid. She,
therefore, again approached this Court by filing Writ Petition
No.8279 of 2010. This Court, by order dated 25.06.2012, directed
respondent to take necessary decision within eight weeks.
5. The above directions of this Court were not followed. Hence,
she has filed Contempt Petition No.510 of 2012. During pendency
of said Contempt Petition, respondent No.2 passed the appropriate
orders.
6. The petitioner claimed that though she is entitled for
regularization of her services and posts are vacant, respondent
No.2, by avoiding her claim granted regularization to one Dr. Vinod
Hiraman Patil, on 03.05.2013. She again approached to this Court,
by Writ Petition No.1899 of 2014, seeking direction to implement
resolution dated 15.04.2008 in pith and substance, salary in pay
scale and challenged the order in favour of Dr. Neha Nitin
Bharambe and Dr. Vinod Hiraman Patil.
7. This Court again by order dated 04.01.2018, directed
respondent No.2, to take into consideration the qualification of
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petitioner, length of service rendered by her, workload available
for establishment and take a decision on advancing these benefits
of pay scale. Thereafter, she made representations from time to
time. However, she has not been granted benefits of
regularization by not paying salary to her. Under these premises,
she seeks the above relief.
8. The contesting respondent No.2 has filed affidavit-in-reply.
As regards the last order of this Court dated 04.01.2018 passed in
Writ Petition No.8199 of 2014, it has been submitted that the order
was speaking that "as and when workload would be available on
the establishment of the Municipal Corporation in future, the case
of the petitioner shall be considered." Except this, no relief was
granted to the petitioner. Since no other relief was granted, she
cannot restore the same relief by way of present writ petition.
Since Dr.Vinod Patil was appointed on honorarium of Rs.5,000/- per
month, he was appointed as "Vaidya" in the pay scale of Rs.9300-
34800 Grade Pay Rs.4300/-. His services also come to an end by
order dated 30.09.2016. In the nut-shell, the learned counsel for
respondent No.2 submitted that other appointments were also on
the consolidated pay and they were also not given any
permanency benefits. The petitioner was getting honorarium of
Rs.34,722/- per month in Class-III category. Now she has been
retired. She was not entitled to regularization as the post of
Medical Officer was not sanctioned. He prayed to dismiss the
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petition.
9. The learned counsel for the petitioner has vehemently
argued that the workload was available. However, respondent No.2
was not active and they have come with incorrect plea that there
was no workload available. He submits that the petitioner was a
Medical Officer and she was paid the salary less than Class-IV
employee. He relied on the judgment in Jaggo vs Union of India
and Ors. [Civil Appeal No.14831 of 2024 (Arising out of SLP
(C) No.5580 of 2024) d/d. 20.12.2024].
10. In Jaggo (supra), the Hon'ble Supreme Court, based upon
the facts of that case, held that refusing regularization simply
because their original terms did not explicitly state so, or because
outsourcing policy was belatedly introduced, would be contrary to
the principles of fairness and equity. Finally, termination order of
petitioner was quashed. The facts of this case are altogether
different. Lastly, he would argue that at least the petitioner is
entitled to gratuity.
11. The learned A.G.P. resisted the arguments of the learned
counsel for the petitioner. He vehemently argued that since the
workload was not available, the dispensaries of Ayurvedic hospitals
were closed down, the relief of the petitioner as sought, cannot be
restored, as it was not granted in her earlier writ petition No.8199
of 2014.
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12. We have gone through the record with the able assistance of
the respective counsels.
13. It appears that the petitioner was appointed on honorarium.
No post, as such, was sanctioned on the establishment of
Municipal Council or Municipal Corporation. For regularization of
the services, the post must be sanctioned. From time to time, the
honorarium of the petitioner was enhanced and, lastly, she was
drawing honorarium of Rs.34,722/- per month. For want of
sanction of the post, we are of the view that no relief of
regularization can be granted. However, in such situation, the
employee who were rendered services for long time even on
honorarium, are entitled to gratuity and provident fund. The
petitioner has already been superannuated. Therefore, at least,
she may be entitled to gratuity as per the law applicable at the
relevant time.
14. Hence, we allow the petition partly, directing respondent
No.2 to calculate the gratuity and provident fund, if not paid
earlier, of the petitioner within a month and disburse it within
further one month thereafter.
15. Rule is made absolute in above terms.
[ SHAILESH P. BRAHME ] [ S. G. MEHARE ]
JUDGE JUDGE
rrd
