High Court
Legal Reasoning
WP-3592-2010 WITH 7344-2012.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3592 OF 20101.Ramesh s/o. Laxman Suryawanshi,Age: 64 years, Occu.: Retired,R/o. Sutargalli, Jamner, Tq. Jamner,District Jalgaon.2.Wamanrao s/o. Vithalrao DalalAge: 59 years, Occu.: Retired,R/o. Madhuban Colony, Jamner,Taluka Jamner, District Jalgaon.3.Sudhakar s/o. Narayan PatilAge: 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 MahajanAge: 62 years, Occu.: Retired,R/o. Near Mohan Bhuwan, Jamner,Taluka Jamner, District Jalgaon.6.Ramesh s/o. Trimbak MahajanAge: 61 years, Occu.: Retired,R/o. Maligalli, Jamner, Taluka Jamner, District. Jalgaon.7.Motiram s/o Vithoba MaliAge: 59 years, Occu.: Retired,R/o. Vivekanandnagar,Taluka Jamner, District Jalgaon.8.Majidkhan s/o Abbaskhan PathanAge: 59 years, Occu.: Retired,R/o. Athawadibazar, Near Watertank,Taluka Jamner, District Jalgaon... PETITIONERS[1] WP-3592-2010 WITH 7344-2012.odtVERSUS1.The State of MaharashtraThrough Secretary,Urban Development Department,Mantralaya, Mumbai-400 032.2.Commissioner and Director,Municipal Council AdministrativeDirectorate, Government PariwahanSeva Bukoding, 3rd Floor, Sar Pochkhanwala Road, Worli,Mumbai.3.Deputy Director of Municipal CouncilAdministrative 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…WITHWRIT PETITION NO.7344 OF 2012Abrarkhan s/o Houjdarkhan PathanAge: 61 years, Occu.: Retired,R/o. At Post. Bhadgaon, Tq. Bhadgaon,District Jalgaon. .. PETITIONERVERSUS1.The State of MaharashtraThrough Secretary,[2]
Legal Reasoning
WP-3592-2010 WITH 7344-2012.odtUrban Development Department,Mantralaya, Mumbai-400 032.2.Commissioner and Director,Municipal Council AdministrativeDirectorate, Government PariwahanSeva Bukoding, 3rd Floor, Sar Pochkhanwala Road, Worli,Mumbai.3.Deputy Director of Municipal CouncilAdministrative 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 forrespondent No.7.Mr. D. B. Thoke, Advocate for respondent No.6 (Through V.C.) in WritPetition No.7344 of 2012.……… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : JANUARY 16, 2024. [3] WP-3592-2010 WITH 7344-2012.odtJUDGMENT (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 and11.02.2014 respectively and both the matters were tagged togetherby order dated 11.02.2014.3.Heard learned Advocate Mr. M. R. Kulkarni for petitioners in boththe writ petitions, learned AGP Mr. N. S. Tekale for respondent Nos.1to 4 in both the petitions, learned Advocate Mr. P. V. Gole holding forlearned Advocate Mr. V. D. Gunale for respondent No.5 in both thepetitions, learned Advocate Mr. Sudhir B. Akhade h/f Mr. M. S.Deshmukh for respondent No.7 in both the matters, learned AdvocateMr. D. B. Thoke (Through V. C.) for respondent No.6 in Writ PetitionNo.7344 of 2012.4.The petitioners in Writ Petition No.3592 of 2010 were in serviceof erstwhile Grampanchayat, Jamner, District Jalgaon on differentposts on the basis of their qualification. The list of their post and dateof appointment has been given in the petition. The Government ofMaharashtra issued resolution dated 28.10.2002 converting theGrampanchayat, Jamner into Municipal Council. The Commissioner as[4] WP-3592-2010 WITH 7344-2012.odtwell as Director, Municipal Council Administration, Directorate, Mumbaigave sanction to 136 posts by order dated 22.07.2005 as per thereviewed aakrutibandh, out of which 126 employees of erstwhileGrampanchayat were absorbed under the Municipal Council undercertain terms and conditions. It was stated in condition No.2 that theseniority would be counted from the date on which they becamepermanent in the Grampanchayat. As per condition No.2, in orderdated 22.07.2005 their services were made entitled for the pension,assured progressive scheme and other benefits from the date of theirallotment under the Municipal Council, Jamner. The petitionersthereafter retired on their respective days of retirement, lastly someout of them were retired on 31.05.2009. It is said that they have notcompleted the service for pensionary benefits from the date of theirallotment to the Municipal Council, Jamner from Grampanchayat,Jamner. It is said that they have been deprived of from the benefits ofpension and other benefits. Time and again they had maderepresentation, however, it was turned down by respondent No.3 byorder dated 19.03.2008. Thereafter they had made representation tothe Hon’ble Lok Aayukta, who had not considered their representation.It has been then contended that by Government Resolution dated11.09.1987 jurisdiction of Jalgaon Municipal Council was extended andthe Grampanchayat areas of Nimkhedi / Khedi / Meharan and Pimpralewere included in the jurisdiction of Municipal Council. Thereafter on[5] WP-3592-2010 WITH 7344-2012.odt30.04.1993, the President, Jalgaon Municipal Corporation decided tocount the services of the employees rendered under the erstwhileGrampanchayat for the purpose of pensionary benefits. In fact, thepetitioners are similarly situated, and, therefore, they should beextended with the benefits. The petitioners therefore have prayed forquashing the letter dated 19.03.2008 issued by respondent No.3 andholding them entitled for the pensionary benefits along with theadmissible benefits to them and arrears thereof.5.The petitioner in Writ Petition No.7344 of 2012 was theemployee of erstwhile Grampanchayat, Bhadgaon. By GovernmentResolution dated 31.08.2009, the said Grampanchayat was convertedto Municipal Council. Similarly, the posts were sanctioned under orderdated 29.04.2010 by the Commissioner as well as Director, MunicipalCouncil Administration Directorate, Mumbai. The petitioner wasabsorbed in view of Government Resolution dated 11.02.2011. Thesimilar condition was put to him. The petitioner has also retired and hehas also stated that he had not rendered the services required forpensionary benefits from the date of his allotment to MunicipalCouncil, Bhadgaon. He is also claiming that likewise the employees ofGrampanchayat Nimkhedi, Khedi, Meharan and Pimprale were givenbenefits and other pensionary benefits by the Jalgaon MunicipalCorporation, he also ought to have been given the benefits. This[6] WP-3592-2010 WITH 7344-2012.odtpetitioner is also praying the similar relief as stated in Writ PetitionNo.3592 of 2010.6.The affidavit-in-reply has been given on behalf of respondentNos.2, 3 and 4 by one Bhikanrao Tanku Baviskar in Writ PetitionNo.3592 of 2010. The factual aspects are not denied, however, it issaid that it was specifically mentioned in condition No.2 of GovernmentResolution dated 22.07.2005 that the services of the petitioners will becounted from 28.10.2002 i.e. the date on which the Municipal Councilcame into existence and the conversion of the Grampanchayat toMunicipal Council has been made. The petitioners never challenge theGovernment Resolution dated 28.10.2002 or order dated 22.07.2005.In fact, they had accepted the terms and conditions imposed by theauthorities at the time of merger of their services in Municipal Council,Jamner. Therefore, in view of said condition No.2 and the fact that allthe petitioners have not put eligible service i.e. 10 years prior to theirretirement in their employment with Municipal Council, Jamner, theyare not entitled to the pensionary benefits and other benefits, if any.7.The main point on which the learned Advocate for the petitionersargued the matter was the discrimination between the petitioners whowere absorbed in Municipal Council and the absorptions of theGrampanchayat employees from Nimkhedi, Khedi, Meharan andPimprale to Municipal Council, Jalgaon or Municipal Corporation,[7] WP-3592-2010 WITH 7344-2012.odtJalgaon. Though certain employees from those four Grampanchayatshad not put required service where they were absorbed, yet they havebeen held to be eligible for pension and other benefits. He furthersubmitted that by a circular dated 10.02.1987 by the Government, itwas observed that the Nagarpalika’s can grant pensionary benefitswith retrospective effect from 15.06.1966. He submits that it was asper Section 80 of the Maharashtra Municipal Councils, NagarPanchayats 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 adiscrimination on the said point. 8.Per contra, the learned AGP representing respondent Nos.1 to 4vehemently submitted that the condition No.2 was very much clearand on the said conditions, the petitioners were absorbed. Theirabsorption has not been challenged on the ground that it is takingaway certain rights from them. Further, there are no by-laws framed.The circular dated 10.02.1987 cannot be made applicable here, whenthe 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 anemployee accepts the terms of employment, then there would be littlescope left for interpretation in respect of those service conditions. The[8] WP-3592-2010 WITH 7344-2012.odtfacts are clear in both the matters. There were Grampanchayatsearlier at Jamner and Bhadgaon. Thereafter, Municipal Councils wereestablished by respondent No.1 - State and it was decided to absorbthe employees, who were in the employment of erstwhileGrampanchayat. By order dated 22.07.2005 and 29.04.2010, theposts were sanctioned, but at the same time conditions were imposed.The conditions are similar. Condition No.2 runs thus :-“2½xzkeiapk;rhdMwu uxjifj”knsdMs oxZ >kysY;kdeZpk&;kaph lsok] uxjifj”knsP;k LFkkiusP;k fnukadkiklwufuo~Rrhosru vk’okflr izxrh ;kstuk rlsp brj loZykHkkalkBh xzkg~; /kj.;kr ;sr vkgs-”English translation of the above-said condition No.2 is as under :-“2)The service of the employees transferredfrom the Gram Panchayat to the Municipal Council isbeing taken into account for the Pension AssuredProgression Scheme and all other benefits from thedate 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 absorbedemployees would be counted from the date on which they becamepermanent in the Grampanchayat, but as regards pension, ACP andother benefits are concerned, it would be from the date of[9]
Decision
WP-3592-2010 WITH 7344-2012.odtestablishment of the Nagar Parishad. As regards Petitioners in WritPetition No.3592 of 2010, they had ample opportunity to challenge thesaid condition No.2 before their retirement. Petitioner No.1 appears tohave retired on 30.04.2004, which was even prior to order dated22.07.2005. The others have retired thereafter in 2005, 2006, 2007and 2009 respectively. The Writ Petition No.3592 of 2010 has beenfiled on 14.04.2010. This shows that they accepted the absorption,though they were knowing condition No.2 from order dated22.07.2005. Almost similar is the case in respect of another petitionerin companion matter. The order of absorption is dated 11.02.2011with similar condition No.2. The petitioner retired on 31.05.2012 i.e.almost one year three months from the order of absorption. Thelearned Advocate for the petitioner could not point out as to how theGovernment Resolution dated 11.02.2011 is ultravirus, illegal and badin law. Merely because the Jalgaon Muncipal Corporation has absorbedthe employees of other Grampanchayat and granted pensionarybenefits, it will not automatically said that the petitioners should alsoreceive the same treatment. It is a contract of service which dependsupon the contract as well as the rules and regulations governing aparticular employment. It cannot be said that the act of respondentNos.1 to 4 is arbitrary. It is for the employer to put the serviceconditions. When it was accepted by the petitioners, then petitionerscannot now agitate against the said order.[10] WP-3592-2010 WITH 7344-2012.odt11.It is not pointed out that by-laws have been prepared after thecouncils came into existence. If that circular dated 10.02.1987 is stillin existence, then immediately after the order of absorption, thepetitioners could have challenged the respective orders, but thepetitioners allowed themselves to retire on the basis of the sameorder. Therefore, they cannot challenge only one of the clause of thesaid order. The Jalgaon Municipal Corporation might be having specificby-laws and after adopting due procedure, it would have been decidedby the authorities therein to extend pensionary benefits to thoseemployees, who came to be absorbed from the erstwhileGrampanchayats. Therefore, there is absolutely no violation of Article14 of the Constitution of India by discriminating one class ofperson/employee from another class.12.For the reasons stated above, no case is made out for exercisingconstitutional powers of this Court. Therefore, both the writ petitionsstand dismissed. 13.Rule is discharged. [ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[11]