High Court
Facts
2590(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2590 OF 20201]Shri. Vasant Laxman ShrimandilkarAge: 57 years, occu. Service,R/o: At/Post. Parner, Tal. Parner,Dist. Ahmednagar2] Shri. Ramesh Bapurao BansodeAge: 57 years, Occu. ServiceR/o:3] Shri. Aher Baban DaulatraoAge: 55 years, Occu: ServiceR/o: At/Post. Chande Kasare Tal. Kopargaon, Dist. Ahmednagar.4] Shri. Ramnath Gangaram GadekarAge: 57 years, Occu: ServiceR/o: At/Post. Sultanpur (Bk)Tal. Shevgaon, Dist. Ahmednagar.5] Shri. Dattatray Sampat AherAge: 56 years, Occu: ServiceR/o: At/Post. Davande,Tal. Kopargaon, Dist. Ahmednagar.6]Shri. Rajendra Murlidhar BhangeAge: 56 years, Occu: ServiceR/o: At/Post. Samtanagar, Kopargaon Tal. Kopargaon, Dist. Ahmednagar.7]Shri.Burhade Chandrakant BaburaoAge: 54 years, Occu: ServiceR/o: At/Post. Aardgaon, Rahuri Tal. Rahuri, Dist. Ahmednagar.8] Shri. Babulal Damodhar ChandanshivAge: 57 years, Occu: Service
Legal Reasoning
2590(10) “१२) यापुर्वी(cid:8)केलेल्याबंधपत्रीतअथर्वीातातपुरतीसहा महिहण्यासाठीकेलेलीहि(cid:28)युक्तीआदेशाच्याहि(cid:28)र्ग$हिमतकेलेल्याहिद(cid:28)ांकापासु(cid:28) संपुष्टातआलीआहे. पुर्वी(cid:8)चीसेर्वीासलर्गकरण्यांतयेणार(cid:28)ाही.”(English Translation :- “12) The appointment made earlier onbond or temporary basis for six months has been terminatedfrom the date of issuance of the order. Previous service will notbe considered for continuity.”) (c)Before the regular appointments of the petitioners throughthe District Selection Committee, their services were continued on thebasis of the orders passed by this Court in Writ Petition No.8346/2010.(d)By impugned order dated 13.08.2019, respondent No.3has rejected their claim of regularization from their initial dates ofappointment (from 1992 to 1997) by specifically mentioning followingfour reasons :- i. As per letter dated 04.05.2019 issued by the Zilla Parishad,Ahmednagar, the petitioners’ initial employment was notthrough the Selection Committee.ii. Government Resolution dated 05.05.2018 prohibitsregularization of services of temporary health workers. 2590(11) iii. By virtue of condition No.12 in the appointment order dated20.06.1999, the earlier period of service cannot be consideredfor the purpose of continuity and permanency, and iv. By virtue of the Government Resolution dated 25.08.2005,regularization cannot be granted since the initial appointmentswere not by following regular recruitment process.13.It is thus evident that the petitioners have accepted theappointment order in the year 1999 which contained condition No.12reproduced above. It is not disputed that initial appointments of thepetitioners were made till regularly selected candidates becameavailable. They continued in their employment on the basis of theorders passed by this Court. As such, since their initial appointmentswere not through Selection Board and in view of the categoricalcondition in their appointment order referred to above, their claim forpermanency by counting earlier services, has no foundation. Since thepetitioners have accepted their appointment with condition no.12 intheir appointment order without any demur, they are now estoppedfrom raising any claim for counting their earlier services for thepurpose of permanency. In view of the disparity of the terms and 2590(12) conditions in the appointment orders, the petitioners cannot even claimsimilar treatment like the employees of Zilla Parishad, Kolhapur.14. As regards the judgments relied upon, it has to be notedthat the judgment in State of Maharashtra vs. Meena (supra) dealswith a situation where the employees, who were initially appointed ontemporary basis, were appointed against permanent, clear, substantiveand sanctioned vacancies and their services were treated for allpurposes as regular employment. The employees in that case hadrelied on the Government Resolution dated 01.12.1994, which hadmentioned that the employees were to be treated as regularized and inview of the factual aspect of that case, the Court had held that theintention of the employer was always to treat the past services asregular services. After considering the factual aspects of that case andin view of the law laid down in Secretary, State of Karnataka vsUmadevi, (2006) 4 SCC 1, the Division Bench of this Court hadrefused to interfere under Article 226 of the Constitution of India inthe impugned orders of the State Government which had granted thebenefits under Time Bound Promotion Scheme and Assured CareerProgression Scheme by taking into consideration the earlier services ofthose employees. 2590(13) 15.We are of the considered view that reliance placed on thejudgment in State of Maharashtra vs. Meena (supra) is misplacedsince the facts of the case in hand are entirely different inasmuch as, inthe case in hand the initial appointments of the petitioners were nottreated by the Government as regular employment for any purpose,rather their initial appointments were specifically made for the periodtill the regularly selected candidates became available. It is alsoimportant to note that the petitioners herein had continued in theiremployment on the basis of the orders passed by this Court. As suchthey cannot claim benefit of the law laid down in Umadevi (supra).16.Reliance placed by the learned AGP on the judgmentsmentioned above is to highlight the position of law that for claimingregularization and permanency, crucial factor is the requirement ofinitial appointment being made strictly in accordance with therecruitment rules and by a selection committee. 17.In view of overall factual and legal aspects as mentionedabove, we are of the considered view that the petitioners are notentitled to claim permanency by counting their initial period ofappointments from 1992 to 1997 as claimed by them. The Writ
Arguments
2590(2) R/o: At/Post. Rahata, Tal. Rahuri, Dist. Ahmednagar.9] Shri. Inde Rajesh DagduAge: 44 years, Occu: Service R/o: At/Post. Shri Ram Colony, Datta Nagar, Tal. Shevgaon, Dist. Ahmednagar.10) Shri. Tagad Arjun BhanudasAge: 55 years, Occu: ServiceR/o: At/Post. Renuka Nagar (Bolhegaon) MIDC, Tal & Dist. Ahmednagar.11] Shri. Ramdas Janardhan BadhatheAge: 57 years, Occu: ServiceR/o: At. Khamgaon Post. Joharapur, Tal. Shevgaon, Dist. Ahmednagar.12] Shri.Sakharam Rangnath KasbeAge: 54 years, Occu: ServiceR/o: At/Post. Aardgaon, RahuriTal. Rahuri, Dist. Ahmednagar.13] Shri. Balkrushna Shrirang WakadeAge: 54 years, Occu: ServiceR/o: At/Post. Aardgaon, RahuriTal. Rahuri, Dist. Ahmednagar.14] Shri. Sampat Limbaji Kale Age: 56 years, Occu: Service R/o: At/Post. Salabatpur Primary Health Center, Tal. Nevasa, Dist. Ahmednagar.15) Shri. Fatangare Balu Ramnath Age: 45 years, Occu: Service R/o: At/Post. Dhumalwadi (Shivaji Nagar) Near Pir Sai Mandir, Tal. Akole Dist. Ahmednagar. 2590(3) 16] Shri. Mohan Sakharam Pathave Age: 48 years, Occu: Service R/o: At/Post. Sambhaji Nagar, Saraswati Colony, New Navlewadi Near Pir Sai Mandir, Tal. Akole Dist. Ahmednagar.17] Shri. Borade Narayan Laxman Age: 48 years, Occu: Service R/o: At/Post. Bhushan Nagar, Kadegaon, Ahmednagar, Tal & Dist. Ahmednagar.18) Shri. Datir Sopan BaburaoAge: 55 years, Occu: Service R/o: At/Post. Pimpri Lauki Ajampur Tal. Sangamner, Dist. Ahmednagar,19] Shri. Sanjiv Ramesh DussaAge: 55 years, Occu: Service R/o: At/Post. Walki Tal. & Dist. Ahmednagar,20] Shri. Javane Dyandeo BhagwanAge: 54 years, Occu: Service R/o: At/Post. Girajgaon, Tal. Karjat, Dist. Ahmednagar,21] Shri. Babasaheb Gangadhar Pandit Age: 55 years, Occu: Service R/o: At/Post. Visapur, Tal. Shrigonda, Dist. Ahmednagar,22] Shri. Borude Sitaram Raghunath Age: 48 years, Occu: Service R/o: At/Post. Ghogargaon, Tal. Shrigonda, Dist. Ahmednagar,23] Shri. Gade Radhakisan Shamrao Age: 57 years, Occu: Service R/o: At/Post. Rashi, Tal. Shevgaon, 2590(4) Dist. Ahmednagar.….PETITIONERSVERSUS1] The State of Maharashtra Through its Secretary, Health Department, Mantralaya, Mumbai-32.21 The Chief Executive Officer, Zilha Parishad, Ahmednagar.3] Divisional Commissioner, Nashik Division Nashik ….RESPONDENTS ….Mr D. G. Nagode, Advocate for petitioners Mr Neha B. Kamble, A.G.P. for respondent Nos.1 & 3Ms Manjushri Shendage-Narwade, Advocate for respondent No.2… CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. Reserved on : 4th December, 2024 Pronounced on : 6th January, 2025JUDGMENT (Per Prafulla S. Khubalkar, J. ) : 1.Rule. Rule made returnable forthwith. Heard finally byconsent of parties. 2590(5) 2.The petitioners are a group of employees who challengethe order dated 13/08/2019, passed by Respondent No.3/DivisionalCommissioner, Nashik, thereby refusing them permanency from thedate of their initial appointments on the post of ‘Multi Purpose HealthWorker (Male)’. The grievance of the petitioners is that, although theyhave been appointed in the year 1999 on permanent establishment,their earlier temporary service of the period from 1992-1997 oncontract basis is not being counted for the purpose of continuity andpermanency.3.Factual set up of the instant petition is as follows :-The petitioners are working as ‘Multi Purpose HealthWorkers (Male)’ in the office of respondent No.2/Zilla Parishad,Ahmednagar. Their case is that they have been earlier employed duringthe period from 1992-1997 by way of a selection process throughemployment exchange, which was a temporary appointment oncontract basis and subject to appointment of candidates duly selectedby a selection board. Since these appointments of the petitioners werefor temporary period on contract basis, they apprehended terminationof their services on expiry of the initial period of two years and hencesome of the petitioners had approached this Court vide Writ Petition 2590(6) No.3105/1996 praying for directions to continue their services tillregularly selected candidates become available. Accordingly, thepetitioners continued to work on their respective posts by virtue of theorders passed by this Court. 4.By an order dated 20/06/1999, the petitioners were givenpermanent appointment on the post of ‘Multi Purpose Health Worker(Male)’ which was an appointment after following the procedure ofappointment, through District Selection Committee. Pursuant to thisorder of appointment, the petitioners joined their respective servicesand are working on their posts. 5.It is the petitioners’ case that in the year 2007, when theprovisional seniority list of the employees was published, it wasrevealed to them that few other junior employees were regularizedfrom the date of their initial appointment. Feeling aggrieved by thisprovisional seniority list, petitioner No.1 again approached this Courtvide Writ Petition No.8346/2010. This writ petition was decided by anorder dated 04/07/2012 by directing the State Government to considerthe proposal/communication dated 17/12/2007 forwarded by the ZillaParishad in accordance with law and within a period of six months. 2590(7) 6.Since there was no decision by the respondents, petitionerNo.1 submitted representations in 2014 and 2016 requesting forconsideration of his earlier service from the period from 02.07.1994.The petitioners’ further case is that, although respondent No.2submitted a revised proposal dated 03/12/2018 with anopinion/recommendation about regularization of the services of 29employees, respondent No.3/Divisional Commissioner, Nashikrejected their proposal by order dated 13/08/2019. 7.The petitioners are aggrieved by the decision ofrespondent No.3, rejecting their claim for consideration of their earlierservice period for permanency. The basic contention of the petitionersis that their earlier service although was temporary, the same ought tohave been considered for granting them permanency since theirappointment was not a backdoor entry. 8.In response to the present petition, respondent Nos. 2 and3 have filed their affidavit-in-reply dated 07/01/2021, opposing thepetition on several grounds including relying upon Clause 12 of theappointment order of the petitioners, which mentions that the earlierservice period could not be counted for the purpose of regularization.Respondent No.3/Divisional Commissioner, Nashik also filed a 2590(8) separate affidavit-in-reply dated 26/02/2022 and justified theimpugned order by referring to various Government Resolutions andalso condition No.12 of the appointment order. 9.We have heard the learned counsels for the respectivesides, perused the record and considered the rival contentions. 10. Advocate Shri Nagode, the learned counsel for thepetitioners, took us through various documents filed on record,including the orders passed in earlier writ petitions. He submitted thatin view of the consideration of earlier service period of employees ofKolhapur Zilla Parishad the same benefit should be extended to thepetitioners herein, who are the employees of Zilla ParishadAhmednagar. In support of his submissions, he relied upon anunreported judgment dated 28.04.2016 delivered in Writ PetitionNo.9051/2023 (The State of Maharashtra vs. Smt. Meena A.Kuwalekar) with other connected petitions at the Principal Seat. 11. Per contra, Advocate Ms. Neha Kamble, the learned AGPstrongly opposed the petition by referring to condition no. 12 of theappointment orders of the petitioners. By referring to the additionalaffidavit in reply dated 03-02-2022 filed by respondent no2, it is 2590(9) pointed out that there was no such condition like condition no.12, inthe appointment order of the employees of Zilla Parishad Kolhapur.In support of her submissions, she relied upon the judgments in thematters of Mayuresh Mangesh Bhatkar vs. Union of India andothers, Writ Petition Nos.2894/2021, 2909/2021 and 2862/2021(Principal Seat) decided on 12.04.2024 and Pramod V. Bhatre vs. TheLife Insurance Corporation of India and others, 2022(4) BomCR784. Apart from pointing out the legal position, the learned AGPsubmitted that since the petitioners were continued in employmentpursuant to the orders of this Court, they are not entitled to claim thebenefit of the directions in Umadevi (supra).12.Before we delve into the controversy, a brief reference tothe crucial factual aspects as revealed from the documents isnecessary:-(a)The petitioners have worked as temporary employeesduring the period from 1992 to 1997.(b)The appointment order dated 20.06.1999 by which, thepetitioners were appointed by regular recruitment process through theDistrict Selection Committee, was subject to various terms andconditions including condition No.12, which is reproduced below:-
Decision
2590(14) Petition is, therefore, liable to be dismissed. Hence, it is dismissedwith no order as to costs.18.Rule is discharged.(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk