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Bombay High Court
Sahebrao Sheshrao Pawar And Others vs The State Of Maharashtra And Others on 22 January, 2026
2026:BHC-AUG:2762-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10607 OF 2017
1) Sahebrao S/o Sheshrao Pawar,
Age-55 yrs., Occ. - Service.
R/o Pardeshwar nagar,
Opp. Pardeshwar Temple,
Nandkheda Road, Parbhani.
2) Dnyanoba S/o Gyanoji Late,
Age-56 yrs., Occ. - Service.
R/o MHADA colony, Near Shantiniketan,
Gangakhed Road, Parbhani.
3) Prakash S/o Balasaheb Kulkarni,
Age-54 yrs., Occ. - Service.
R/o House No.6/7, MHADA colony,
Near Shantiniketan, Gangakhed Road,
Parbhani.
At present Municipal Council Purna,
Dist. Parbhani.
...PETITIONERS
- VERSUS -
1. The State of Maharashtra
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2. The Directorate of Municipal Administration,
3rd floor Government Transportation
Seva Building, Sir Pochkhanwala Road,
Warli, Mumbai - 30.
3. The Regional Directorate of
Municipal Administration, Aurangabad Division,
Aurangabad.
The Divisional Commissioner's Office,
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Aurangabad.
4. The Collector,
Parbhani, Dist. Parbhani.
5. The Commissioner,
Municipal Corporation,
Parbhani, Dist. Parbhani.
...RESPONDENTS
...
Shri Vilas M. Humbe, Advocate for the petitioners.
Shri B.V. Virdhe, AGP for respondent Nos.1 to 4/State.
Smt. Rani Bharukha-Bora, advocate h/f Shri S.S. Bora, advocate
for respondent No.5.
...
CORAM : KISHORE C. SANT
&
SUSHIL M. GHODESWAR, JJ.
Reserved on : 09 January 2026
Pronounced on : 22 January 2026
JUDGMENT (Per Sushil M. Ghodeswar, J.) :
-
1. Heard.
2. Rule. Rule made returnable forthwith and heard
finally with the consent of the parties.
3. By this petition filed under Article 226 of the
Constitution of India, the petitioners pray for quashing and
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setting aside the impugned order dated 04.08.2017 issued by
respondent No.5/ Municipal Commissioner thereby, cancelling
the order dated 11.06.2009 granting pay scale of Clerks to
petitioner Nos.1 to 3 w.e.f. 03.01.1987, 30.08.1986 and
02.05.1986, respectively and instead, directing to give the said
benefits w.e.f. 31.08.2001.
4. According to the petitioners, they were appointed as
daily wage clerks with the erstwhile Municipal Council, Parbhani
(now respondent No.5/ Municipal Corporation) on vacant posts
by orders dated 01.05.1986, 23.12.1985 and 02.05.1986,
respectively. However, since their services were terminated, they
filed Writ Petition Nos.3457/1990, 3603/1990 and 3100/1990.
According to them, this Court by interim order restrained the
respondent Municipal Corporation from discontinuing their
services. It is claimed that their services as clerk were regularized
w.e.f. 31.08.2001. It is also claimed that the writ petitions filed
by them were disposed of by this Court vide order dated
10.01.2002 with clarification that the terms of employment of the
petitioners shall be governed by the conditions of service as
applicable to other regular employees of respondent No.5.
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5. It is the case of the petitioners that petitioner No.3
was granted pay scale of clerk on 25.07.2003 w.e.f. his initial
appointment as daily wage clerk, however, it was cancelled by
respondent No.5 vide order dated 13.08.2004. Thereafter, the
Collector, Parbhani, vide order dated 05.02.2005 directed the
Chief Officer of Parbhani Municipal Council to follow the order
passed by this Court and cancel the order dated 13.08.2004. In
view of the directions of the Collector, the then Chief Officer of
Parbhani Municipal Council vide order dated 23.03.2005
cancelled earlier order dated 13.08.2004 and granted pay scale of
Rs.950-1500/- w.e.f. 01.05.1986 to petitioner No.3. Since the
aforesaid order in the matter of petitioner No.3 was cancelled,
therefore, petitioner Nos.1 and 2 also approached the Collector
with similar prayer. The Collector vide letter dated 15.06.2005
directed the Chief Officer to extend said benefits to petitioner
Nos.1 and 2. Accordingly, the Municipal Council by order dated
24.06.2005 also extended revised pay scale to petitioner Nos.1
and 2. However, the said orders dated 23.03.2005 and 24.06.2005
were cancelled by order dated 14.07.2005. The petitioners again
approached the authorities and vide order dated 11.06.2009, the
Municipal Council again extended pay scale of clerk with
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consequential benefits w.e.f. 03.01.1987, 20.08.1986 and
02.05.1986. According to the petitioners, again respondent No.5
cancelled the order dated 11.06.2009 by the impugned order
dated 04.08.2017 and directed to give the benefits of clerk pay
scale to the petitioners w.e.f. 31.08.2001 instead of 03.01.1987,
30.08.1986 and 02.05.1986.
6. The learned advocate Shri Humbe appearing for the
petitioners submitted that the impugned order dated 04.08.2017
is passed without giving them a notice or hearing. Respondent
No.5/ Municipal Commissioner has no authority to pass the
impugned order. The petitioners are entitled to get benefits of pay
scale with consequential benefits w.e.f. their initial appointments.
He submitted that the principle of 'equal pay for equal work' is
also applicable to temporary employees performing same duties
and responsibilities as that of regular employees. In support of
his submissions, Shri Humbe has relied upon the judgment of the
Hon'ble Supreme Court in State of Punjab and others vs. Jagjit
Singh and others, (2017) 1 SCC 148. Shri Humbe has relied upon
the judgment delivered by the Hon'ble Supreme Court in State of
Punjab and others vs. Rafiq Masih (White Washer) and others,
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(2015) 4 SCC 334, to submit that the recovery on account of
mistake committed by the employer would be impermissible.
7. Mrs.Bora, the learned advocate appearing for the
contesting respondent No.5/ Municipal Corporation has drawn
attention of this Court to the affidavit in reply dated 28.01.2018
filed on behalf of respondent No.5 and submitted that the instant
case is having checkered history as under:-
(a) The petitioners along with several similarly situated
employees, were appointed prior to 10.03.1993 on a purely
temporary daily-wage basis, for short periods of 30 or 45 days,
without following any due procedure prescribed for public
employment.
(b) Prior thereto, the petitioners had already approached
this Court by filing Writ Petition Nos. 3457/1990, 3100/1990 and
3603/1990, seeking regularization.
(c) The General Body of the Municipal Council,
Parbhani passed Resolution No.9 dated 25.03.2000, proposing
regularization of 252 daily-wage employees, and forwarded the
same to the Divisional Commissioner of Municipal
Administration, Aurangabad.
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(d) Pursuant to the said resolution, the Divisional
Commissioner, by order dated 31.08.2001, granted one-time
regularization to the petitioners and other similarly situated
employees, with a specific condition that the posts so regularized
would stand abolished upon the retirement of the incumbents and
would not be filled thereafter.
(e) The said order further required the employees to
submit undertakings that they would not claim any monetary
benefits of their past daily-wage service, which undertakings
were duly furnished by the petitioners.
(f) Consequently, regular appointment orders dated
18.10.2001 were issued incorporating the said condition that the
petitioners will not be entitled to claim the monetary benefits.
(g) When the earlier writ petitions came up for hearing
on 10.01.2002, this Court was informed that the petitioners'
services had already been regularized, and accordingly the writ
petitions were disposed of as infructuous, with clarification that
the terms and conditions of employment would be governed by
those applicable to regular employees.
(h) Despite the clarity of the above orders, petitioner
No.3 made repeated representations from October 2002
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onwards, seeking benefits from the date of initial appointment.
There are multiple communications between the Collector,
Parbhani, the Chief Officer, and the Divisional Commissioner
between 19.12.2002 and 07.04.2003.
(i) Acting under pressure of petitioner No.3 and his
repeated representations to different authorities, the then Chief
Officer passed an order dated 25.07.2003, erroneously granting
petitioner No.3 benefits from the date of his initial appointment
w.e.f. 02.09.1985.
(j) In fact, petitioner No.3 had kept his service book
with himself instead of giving it to the office and therefore, the
then Chief Officer called him to submit the service book.
(k) Upon scrutiny, the subsequent Chief Officer quashed
the order dated 25.07.2003 by office order dated 13.08.2004.
(l) This led to further representations by petitioner No.3
before the Collector on 18.08.2004, 06.11.2004, and 30.11.2004.
(m) During this period, legal opinion was sought on
27.09.2004 and the petitioners were expressly informed by
communication dated 18.11.2004 that they were not entitled to
past service benefits in view of the order dated 31.08.2001.
(n) However, on directions of the Collector dated
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05.02.2005, the then Chief Officer restored the earlier benefits by
office order dated 23.03.2005.
(o) The matter was thereafter referred to the Director of
Municipal Administration, Mumbai, and based on telephonic
instructions, the said order dated 23.03.2005 was quashed by
another office order dated 14.07.2005.
(p) Despite this and ignoring subsequent
communications, the petitioners again approached the authorities
on 29.12.2008, resulting in the then Chief Officer passing an
order dated 11.06.2009, granting benefits from the date of initial
appointment, without authority and contrary to binding
directions.
(q) When this order dated 11.06.2009 was found to be
illegal and the product of misrepresentation, therefore, same has
been rightly cancelled by the impugned order dated 04.08.2017.
8. In view of this peculiar checkered history, the
learned advocate Mrs.Bora vehemently submitted that the
petitioners were never entitled to the benefits of past daily-wage
service in view of the order dated 31.08.2001, the undertakings
furnished by them and the appointment order dated 18.10.2001.
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The impugned withdrawal order is, therefore, passed after
detection of the illegality and misrepresentation. As far as the
contention regarding lack of opportunity of hearing is concerned,
Mrs. Bora submitted that the same is untenable, particularly
when the petitioners themselves had secured the order dated
11.06.2009 by illegal means and misrepresentation. Accordingly,
the petition deserves to be dismissed and the impugned action
calls for no interference.
9. After having heard the learned advocates for the
respective sides at length, the legal position emerging from the
judgments relied upon by the learned advocate for the petitioners,
cannot be disputed. However, the facts of the instant case are
entirely different. Here, the petitioners were issued with
appointment orders dated 31.08.2001 by the Divisional
Commissioner-cum-Regional Director, Municipal
Administration, Aurangabad, under Sections 76(1) and 76(2) of
the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965. This order dated 31.08.2001
came to be passed as one time measure to overcome with the
special situation arose in this case and it was specifically
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mentioned that the said posts were to be abolished if fell vacant
for any reason in future. The said posts were not permitted to be
filled in future. It was specifically mentioned in the order dated
31.08.2001 itself that if the said posts are filled in and the
Municipal Council incurs losses on account of such illegal
appointments, then such losses would be recovered from the
appointing authority in view of the directions of this Court at the
Nagpur Bench in Writ Petition No.640/1997 in case of
Malkapur Nagar Parishad, District Buldhana. Earlier daily wage
services will not be considered for any monetary or service
benefits. These appointments were made without approval of the
Directorate of Municipal Administration. On the basis of such
terms and conditions, the order dated 31.08.2001 came to be
issued in respect of 252 employees thereby, regularizing their
services as one time measure. In pursuance of the order dated
31.08.2001, the writ petitions filed by the petitioners came to be
disposed of as infructuous vide order dated 10.01.2002, however,
this Court clarified that the terms of employment of the
petitioners shall be governed by the condition of services as
applicable to other regular employees.
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10. The record reveals that placing reliance upon the
order of this Court dated 10.01.2002, petitioner No.3 indulged in
communications with the authorities praying for regular pay
scale of clerk along with arrears. Petitioner No.3 not only
approached the Chief Officer, but also approached the Collector
and the Divisional Commissioner. The record reveals that on
many occasions, the authorities were misled by petitioner No.3
and they were persuaded to pass illegal orders based on
misrepresentation and pressure tactics adopted by the petitioners.
On repeated insistence by petitioner No.3, the authorities,
without going through the record and the fact that the petitioners
were regularized on the condition that they shall not claim any
monetary benefits, have passed illegal orders right from 2002 to
2009. The communications annexed to the reply of respondent
No.5 would demonstrate that petitioner No.3 was virtually
leaving no stone untouched to mislead and pressurize the officers
under the garb of the order of this Court.
11. It is submitted by Mrs. Bora, at the Bar, that all other
249 employees have accepted the order of regularization passed
by the Divisional Commissioner, however, it is only these three
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petitioners, by using pressure tactics, have misled the authorities
to pass illegal and incorrect orders of granting them benefits. We
find that the conduct and approach of the petitioners is highly
unjustified and deprecated.
12. Another aspect which requires to be considered is
that the petitioners have not annexed their undertakings given to
respondent No.5 at the time of their appointments and thus, they
have suppressed material fact from this Court. The appointment
order of the petitioners issued in the year 2001 specifically states
that the petitioners shall not be entitled for monetary or service
benefits of earlier daily wage service, still the then Chief Officer
vide his illegal order dated 25.07.2003 granted pay scale from
their initial date of appointment of 1985-1986. The subsequent
Chief Officer after realizing the mistake committed by the earlier
Chief Officer, cancelled the said order vide his order dated
13.08.2004.
13. It is well settled that the writ jurisdiction under
Article 226 is discretionary and equitable, and a litigant who
approaches the Court with unclean hands or suppresses material
facts is not entitled to any relief. The petitioners having
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repeatedly obtained benefits contrary to binding orders and
undertakings, cannot seek equitable relief. The impugned order
merely restores legality and does not warrant interference.
Therefore, we are of the view that the petitioners are not entitled
to claim any monetary benefits of their past service and,
therefore, the impugned order is legal, correct and proper.
14. The Hon'ble Supreme Court has repeatedly held that
litigants who abuse the process of law by misleading authorities,
suppressing material facts, or securing illegal benefits are liable
to be visited with costs. In Kishore Samrite vs. State of U.P.,
(2013) 2 SCC 398, the Supreme Court held that such litigants
pollute the stream of justice and must be deterred by imposing
realistic and deterrent costs. Similarly, in Subrata Roy Sahara vs.
Union of India, (2014) 8 SCC 470, the Apex Court emphasized
that courts must curb misuse of judicial process to protect the
sanctity of justice delivery system.
15. In view of the conduct of the petitioners of
pressurizing and misleading the authorities and obtaining illegal
and incorrect orders, so also, approaching this Court by
suppressing material facts, we were about to impose heavy costs
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on the petitioners, however, considering the apology tendered by
the learned advocate for the petitioners and the fact that the
illegality has already been rectified, this Court deems it
appropriate to refrain from imposing costs, while strongly
deprecating the conduct of the petitioners.
16. The Writ Petition is dismissed. No order as to costs.
17. Rule is discharged.
kps (SUSHIL M. GHODESWAR, J.) (KISHORE C. SANT, J.)
