Writ Petition No. 3084 of 2016 · Bombaybench High Court
Case Details
2025:BHC-AUG:8217-DB 1 wp 3084.16IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3084 OF 20161.Sudhir S/o Arjunrao Bansode,Age : 43 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Vaijapur,Tq. Vaijapur, Dist. Aurangabad.2.Shivkumar S/o Vasantrao Deshmukh,Age : 40 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Gangapur,Tq. Gangapur, Dist. Aurangabad.3.Sunil S/o Motiram Jondhale,Age : 43 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Aurangabad,Tq. and, Dist. Aurangabad.4.Govind S/o Laxmikant Kulkarni,Age : 41 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Kannad,Tq. Kannad, Dist. Aurangabad.5.Pramod S/o Ramrao Kurlekar,Age : 41 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Khultabad,Tq. Khultabad, Dist. Aurangabad.6.Sanjay S/o Ramrao Barse,Age : 44 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Vaijapur,Tq. Vaijapur, Dist. Aurangabad. 2 wp 3084.167.Zarina Yousufkhan Duranni,Age : 40 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Aurangabad,Tq. and, Dist. Aurangabad.8.Supriya D/o Lakhandra Das,Age : 40 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Aurangabad,Tq. and, Dist. Aurangabad.9.Syed Shahnaz Baadshah,Age : 40 Years, Occu. : Service,Assistant Public Prosecutor,Working at J.M.F.C. Aurangabad,Tq. and, Dist. Aurangabad... PetitionersVersus1.The State of Maharashtra,Through its Principal Secretary,Home Department,Mantralaya, Mumbai – 400 032.2.The District Magistrate,Aurangabad.3.The Assistant Director andPublic Prosecutor, Aurangabad.. RespondentsShri A. N. Nagargoje, Advocate for the Petitioners.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 to 3.WITHCIVIL APPLICATION NO. 3384 OF 2016INWRIT PETITION NO. 3084 OF 20161.Yogesh Shivajirao Tupe and others.. Applicants 3 wp 3084.16Versus1.Sudhir S/o Arjunrao Banosde.. RespondentsShri Avinash S. Deshmukh, Advocate for the Applicants.Shri A. N. Nagargoje, Advocate for the Respondent Nos. 1 to 9.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 10 to 13.WITHWRIT PETITION NO. 9850 OF 20171)Anil S/o. Motiram Ingle,Age : Major, Occ. Service,2)Sharda Ravikumar Bhatt,Age : Major, Occ. Service,3)Sunita Rama Kharat,Age : Major, Occ. Service4)Santosh S/o. Dhondbarao Choutmal,Age : Major, Occ. Service,5)Raju S/o. Uddhavrao Joshi,Age : Major, Occ. Service,6)Mahesh S/o. Digambarrao Aher,Age : Major, Occ. Service,7)Chetan S/o. Ramprasad Agrawal,Age : Major, Occ. Service,8)Gajanan S/o. Kautikrao Jagtap,Age : Major, Occ. Service9)Ashish S/o. Shrikant Deshpande,Age : Major, Occ. Service10)Shaikh Abdul Kalam, 4 wp 3084.16Age : Major, Occ. Service11)Tukaram S/o. Namdeorao Patil,Age : Major, Occ. Service12)Shyam S/o. Shrinivas Kalaskar, Age: Major, Occ.: Service,13) Mukund S/o. Nivruttirao Kasbe,Age: Major, Occ.: Service,14)Umakant S/o. Marotrao Wadikar, Age: Major, Occ.: Service,15)Ujjwala Gorakh Ingle, Age: Major, Occ.: Service,16)Dipti Digambra Jagtap, Age: Major, Occ.: Service,17)Sunilkumar S/o. Motiram Jondhale,Age: Major, Occ.: Service,18)Sudhir S/o. Arjunrao Bansode, Age: Major, Occ.: Service,19)Govind S/o. Laxmikant Kulkarni,Age: Major, Occ.: Service,20)Pramod S/o. Ramrao Kurlekar, Age: Major, Occ.: Service,21)Shivkumar S/o. Vasantrao Deshmukh,Age: Major, Occ.: Service,22)Zarina Yusuf Durrani,Age: Major, Occ.: Service,23)Supriya Lakhanchandra Das,Age: Major, Occ.: Service,24)Syed Shahnaz Badshahbhai, 5 wp 3084.16Age: Major, Occ.: Service,25)Sanjay S/o. Ramrao Barse,Age: Major, Occ.: Service,26)Vinayak S/o.Keda Aher, Age: Major, Occ.: Service,27)Sanjay S/o. Kautik Sonwane, Age: Major, Occ.: Service,28)Girish S/o. Govindrao Pawar, Age: Major, Occ.: Service,29)Prakash S/o. Subhash More, Age: Major, Occ.: Service,30)Nasreen Mohd. Usman Memon, Age: Major, Occ.: Service,31)Uma Shankar Sinalkar, Age: Major, Occ.: Service,32)Vijay S/o. Dnyanba Aru, Age: Major, Occ.: Service,33)Khalil Sahid Mulla, Age: Major, Occ.: Service,34)Sadhna Prabhakar Sarkate, Age: Major, Occ.: Service,35)Geeta Hariprasad Tiwari, Age: Major, Occ.: Service,36)Naina Rangrao Ingale, Age: Major, Occ.: Service,37)Astha Amarsingh Gaharwar, Age: Major, Occ.: Service, 6 wp 3084.1638)Kavita Ramchandra Bhatkar, Age: Major, Occ.: Service,39)Varsha Deepak Tiwari, Age: Major, Occ.: Service,40) Vivekanand S/o. Manohar Mahalle,Age: Major, Occ.: Service,41)Chakradhar S/o. Uttamrao Hadole,Age: Major, Occ.: Service,42) Supriya Rajaram Vankar, Age: Major, Occ.: Service,43) Rajesh S/o. Devrao Jadhav,Age: Major, Occ.: Service,44)Nishikant S/o. Mahipati Hode, Age: Major, Occ.: Service,45) Pradnya Deepak Tiwarekar,Age: Major, Occ.: Service,46)Pawanjeetsingh S/o. Dharamsingh Kapoor, Age: Major, Occ.: Service,47) Amol S/o. Bhismadas Ganvir,Age: Major, Occ.: Service,48)Jaya Krushnarao Bagwale, Age: Major, Occ.: Service,49)Naresh S/o. Ramdas Gaikawad, Age: Major, Occ.: Service,50)Arif Pasha Ibrahim Kokani,Age: Major, Occ.: Service,51)Suvarna Jalindar Bhosle, Age: Major, Occ.: Service,
Legal Reasoning
68 wp 3084.16vide judgment in the matter of State of Karnataka Vs. M. L. Kesariand others (supra).36.The importance of constitutional scheme and especiallyprocedure laid down under Article 309 of the Constitution isemphasized in the matter of Surinder Prasad Tiwari Vs. U. P. RajyaKrishi Utpadan Mandi (supra). We are also fortified in our view bypronouncement in the case of Nand Kumar Vs. State of Bihar andothers (supra). In view of the observations made by the SupremeCourt which are very close to our case in the matter of KeralaAsstt. Public Prosecutors Association Vs. State of Kerala and others(supra), highlighting difference in status of two ostensiblysimilar cadre, we are of the considered view that no case is madeout for regularization. Hence we answer question No. (I) in thenegative.37.Question No. (ii) :The petitioners’ fees structure depended on the policy ofthe government. From time to time fees structure wasdetermined by different policies viz Government Resolutionsdated 15.07.2013 and 08.12.2019 and lastly on 06.04.2023.Following is the extract of last Government Resolution :QkStnkjh izfdz;k lafgrk dye 25¿3À vUo;s rkRiqjR;k Lo#ikrfu;qDr fo'ks"k lgk¸;d ljdkjh vfHk;ksDR;kauk ’kklu fu.kZ; dza-Mhihih&2012@iz-dz- 117@iksy&10 fn- 15-07-2013 vUo;sfuf’pr dj.;kr vkysY;k eku/kukr [kkyhyizek.ks ok< eatwj dj.;klekU;rk ns.;kr ;sr vkgs- 69 wp 3084.16ckcl/;kps eku/kulq/kkfjr eku/kuvÀizfrfnu ifj.kkedkjdlquko.khlkBh Qh#- 600@&#- 1200@&cÀ,dk tkehu vtkZP;kfojks/kkdjhrk#- 400@&#- 800@&sdÀizfrfnu ,dw.k deky e;kZnk#- 1000@&#-2000@&2-,dkis{kk tkLr lquko.kh fdaok tkehu vtkZP;k fojks/kkps dkepkyfoys rjh izfrfnu deky e;kZnk #- 2000@& jkfgy-3-mijksDr lq/kkfjr Qh @ eku/kukps nj ’kklu fu.kZ; fuxZfer>kY;kP;k fnukadkiklwu ykxw gksrhy-4-;kojhy [kpZ ;k foHkkxkP;k ekx.kh dzekad ch&1] U;k;nku¼00½ ¼114½ fo/kh lYykxkj o leqins’kh ¼00½ ¼01½ lapkyd ljdkjhvfHk;ksx ¼20140029½ 10&da=kVh lsok ;k ys[kk’kh"kkZ[kkyhyR;k&R;k vkfFkZd o"kkZP;k eatwj vuqnkukrwu Hkkxfo.;kr ;kok-38.The petitioners are rendering full time services to therespondents. It is not case of the respondents that they werebeing appointed for particular case or for handling particularnumber of cases. They are qualified and they were selected bythe recommendation of the selection committee. It is submittedby the respondents that they were entitled to accept civil work orwork which is not against the State government. But practicallyit may be possible for them to attend the matters. Theirassignment is heavy and is consistently engaging them fordischarging duties U/Sec. 25(3) of the Cr. P. C. The respondentsdid not bring to our notice any material to show that the 70 wp 3084.16petitioners are not rendering full time work. We find that natureof their work is on par with the work rendered by the regularlyappointed A.P.Ps. U/Sec. 25(1) of the Cr. P. C. Just becausecertain service conditions are not made applicable to thepetitioners would not render their work less important orinsignificant or lighter in nature.39.If, the respondents are expecting that there should beadequate ratio of conviction from the petitioners and objectivelyscrutinizing the performance, then they should be paidreasonably and adequately. It is lopsided to say that foremoluments and scale, they cannot be equated with A.P.Ps.Honorarium which they are receiving, is not adequate.Considering nature of work, time consumed in discharging theduties and the skills extracted from the petitioners, we find thatthey are being paid inadequately. If the respondents/DistrictMagistrates continue to engage them, then they have to be paidreasonably and equally. It is the prerogative of the respondentsto determine the fees structure. We do not suggest that thepetitioners should be given exactly the same scale, which is beingdrawn by the A.P.Ps., but the honorarium needs to be escalatedreasonably.40.It is also grievance of the petitioners that they were notbeing paid their arrears as admissible by the policies. We findthat even interim orders were passed in these petitions to clearthe dues of the petitioners. The petitioners are entitled to theiroutstanding dues. They have rendered the services and they are 71 wp 3084.16still rendering it. The respondents cannot dodge the monetaryclaim after extracting the services. We expect that therespondents shall disburse the outstanding dues afterdetermining the entitlement of the individual petitioner, albeit, ifnot done earlier.41.The petitioners have relied on the judgment of theSupreme Court in the matter of Randhir Singh Vs. Union of India(UOI) and others reported in (1982) 1 SCC 618. We also adopt theprinciple of equal pay for equal work by relying upon paragraphNo. 8 of the judgment, which reads as under :“8.It is true that the principle of 'equal pay for equalwork' is not expressly declared by our Constitution to be afundamental right. But it certainly is a Constitutional goal.Art. 39(d) of the Constitution proclaims 'equal pay forequal work for both men and women" as a DirectivePrinciple of State Policy. 'Equal pay for equal work forboth men and women' means equal pay for equal work foreveryone and as between the sexes. Directive principles, ashas been pointed out in some of the judgments of thisCourt have to be read into the fundamental rights as amatter of interpretation. Art. 14 of the Constitution enjoinsthe state not to deny any person equality before the law orthe equal protection of the laws and Art. 16 declares thatthere shall be equality of opportunity for all citizens inmatters relating to employment or appointment to anyoffice under the State. These equality clauses of the Constitution must meansome thing to everyone. To the vast majority of the peoplethe equality clauses of the Constitution would mean 72 wp 3084.16nothing if they are unconcerned with the work they do andthe pay they get. To them the equality clauses will havesome substance if equal work means equal pay. Whetherthe special procedure prescribed by a statute for tryingalleged robber-barons and smuggler kings or for dealingwith tax evaders is discriminatory, whether a particularGovernmental policy in the matter of grant of licences orpermits confers unfettered discretion on the Executive,whether the takeover of the empires of industrial tycoonsis arbitrary and unconstitutional and other questions of likenature, leave the millions of people of this countryuntouched. Questions concerning wages and the like,mundane they may be, are yet matters of vital concern tothem and it is there, if at all that the equality clauses of theConstitution have any significance to them. The preambleto the Constitution declares the solemn resolution of thepeople of India to constitute India into a SovereignSocialist Democratic Republic. Again the word 'Socialist'must mean something. Even if it does not mean 'To eachaccording to his need', it must atleast mean 'equal pay forequal work'. The principle of 'equal pay for equal work' isexpressly recognized by all socialist systems of law, e.g,Section 59 of the Hungarian Labour. Code, para 2 ofSection 111 of the Czechoslovak Code, Section 67 of theBulgarian Code, Section 40 of the Code of the GermanDemocratic Republic, para 2 of Section 33 of theRumanian Code. Indeed this principle has beenincorporated in several western labour codes too. Underprovisions in Section 31 (g. No. 2d) of Book I of theFrench Code du Travail, and according to Argentinian law,this principle must be applied to female workers in allcollective bargaining agreements. In accordance withSection 3 of the Grundgesetz of the German FederalRepublic, and clause 7, Section 123 of the MexicanConstitution, the principle is given universal significance 73 wp 3084.16(vide: International Labour Law by Istvan Szaszy p. 265).The preamble of the Constitution of the InternationalLabour Organization recognizes the principle of 'equalremuneration for work of equal value' as constituting oneof the means of achieving the improvement of conditions"involving such injustice, hardship and privation to largenumbers of people as to produce unrest so great that thepeace and harmony of the world are imperiled".Construing Articles 14 and 16 in the light of the Preambleand Art. 39(d) we are of the view that the principle 'Equalpay for Equal work' is deducible from those Article andmay be properly applied to cases of unequal scales of paybased on no classification or irrational classificationthough these drawing the different scales of pay doidentical work under the same employer.”42.The petitioners relied on the judgment dated 13.01.2021passed by this Court in the matter of Ambaji ChatrasingPawara and others Vs. The State of Maharashtra andothers in Writ Petition No. 6231 of 2020 and otherconnected writ petitions, in which reference of the judgmentand order dated 20.11.2019 passed by the Nagpur Bench in WritPetition No. 2247 of 2014 in the matter of Dhiraj S. Wankhedeand ors. Vs. The Zilla Parishad, Chandrapur and ors. was made.The petitioners have relied on para No. 11 of the judgment,which is rightly cited, which is as follows :“11. It is clear that the Hon’ble Supreme Court hasheld that when one employee discharges/performs samework as another employee, there cannot be anydistinction between the two employees so far as theapplication of the pay scale to both of them is concerned. 74 wp 3084.16The Hon’ble Apex Court has further held that all thetemporary employees who are performing similar workas the regular employees would be entitled to drawwages at the minimum of the pay scale (at the lowestgrade, in the regular pay scale) extended to regularemployees holding the same post. This relief would alsohave to be granted to all the petitioners as there is nodispute that their work is similar to the work of theregular drivers.”43.Ms. Neha Kamble, learned A. G. P. would oppose thesubmissions of the petitioners by relying on the judgment of theSupreme Court in the matter of State of Andhra Pradesh and othersVs. G. Sreenivasa Rao and others reported in (1989) 2 SCC 290.Reference is made to para Nos. 14 and 15 of the said judgment,which are as follows :14.We do not agree with the High Court/Tribunal.Doctrine of 'equal pay for equal work' cannot be put in astraight-jacket. Although the doctrine finds its place in theDirective Principles but this Court, in various judgments,has authoritatively pronounced that right to 'equal pay forequal work' is an accompaniment of equality clauseenshrined in Articles 14 and 16 of the Constitution ofIndia. Nevertheless the abstract doctrine of 'equal pay forequal work' cannot be read in Article 14. Reasonableclassification, based on intelligible criteria having nexuswith the object sought to be achieved, is permissible.15."Equal pay for equal work" does not mean that allthe members of a cadre must receive the same pay packetirrespective of their seniority, source of recruitment,educational qualifications and various other incidents ofservice. When a single running pay scale is provided in a 75 wp 3084.16cadre the constitutional mandate of equal pay for equalwork is satisfied. Ordinarily grant of higher pay to ajunior would ex-facie be arbitrary but if there arejustifiable grounds in doing so the seniors cannot invokethe equality doctrine. To illustrate, when Pay fixation isdone under valid statutory rules/executive instructions,when persons recruited from different sources are givenpay protection, when promotee from lower cadre or atransferee from another cadre is given pay protection,when a senior is stopped at Efficiency Bar, when advanceincrements are given for experience/passing a test/acquiring higher qualifications or as incentive forefficiency; are some of the eventualities when a juniormay be drawing higher pay than his seniors withoutviolating the mandate of equal pay for equal work. Thedifferentia on these grounds would be based onintelligible criteria which has rational nexus with theobject sought to be achieved. We do not therefore findany good ground to sustain the judgments of the HighCourt/Tribunal.”44.We have not been pointed out any reasonable classificationbased on intelligible criteria having nexus with the object soughtto be achieved for not making payment equal to that of regularA.P.Ps. The nature of the work, quantum and consumption oftime are identical. Hence relying upon above preposition, we arenot impressed to accept the submissions of the respondents.45.She further relied on the judgment of the Supreme Courtin the matter of State of Madhya Pradesh and another Vs. PramodBhartiya and others reported in (1993) 1 SCC 539. We have gonethrough the parameters stipulated by the Supreme Court in para 76 wp 3084.16No. 13 of the judgment. It is extracted as follows :“13. It would be evident from this definition that thestress is upon the similarity of skill, effort andresponsibility when performed under similar conditions.Further, as pointed out by Mukherji, J. (as he then was) inFederation of All India Customs and ExciseStenographers the quality of work may very from post topost. It may vary from institution to institution. Wecannot ignore or overlook this reality. It is not a matter ofassumption but one of proof. The respondents (Originalpetitioners) have failed to establish that their duties,responsibilities and functions are similar to those of thenon-technical lecturers in Technical Colleges. They havealso failed to establish that the distinction between theirscale of pay and that of non-technical lecturers workingin Technical Schools is either irrational and that it has nobasis, or that it is vitiated by mala fides, either in law orin fact (see the approach adopted in Federation case). Itmust be remembered that since the plea of equal pay forequal work has to be examined with reference to Article14, the burden is upon the petitioners to establish theirright to equal pay, or the plea of discrimination, as thecase may be. This burden the Original Petitioners(Respondents herein) have failed to discharge.”In the present matter, there is no serious dispute over the natureof work handled by the petitioners. Therefore, we are notconvinced by the submissions of the respondents. 46.Further reliance is placed on the judgment of the SupremeCourt in the matter of State of Haryana and another Vs. Tilak Rajand others reported in (2003) 6 SCC 123. We have gone through 77 wp 3084.16paragraph Nos. 11 to 13 of the said judgment. The submissionsand the material placed by the petitioners that they dischargethe work at par with the A.P.Ps. appointed by the StateGovernment has not been dispelled by the respondentseffectively. Rather, respondents focused on the status and themanner of appointment of Spl. A.P.Ps. Hence this judgment isnot helpful to them.47.The respondents further relied on the judgment of theSupreme Court in the matter of State of Haryana and others Vs.Charanjit Singh and others reported in (2006) 9 SCC 321. We haveconsidered paragraph Nos. 19 to 24 of the said judgment. TheSupreme Court was considering the claims of equal pay for equalwork of daily wagers, Class IV employees. Their claims wereearlier disposed of by directing to pay them minimum of wages inthe scale payable to regular Class IV employees from the date offiling of the petitions. The Supreme Court ultimately remittedthe matter to the High Court. Hence this judgment will not helpthe respondents.48.Then reliance is placed on the judgment of the SupremeCourt in the matter of Ram Naresh Rawat Vs. Ashwini Ray andothers reported in (2017) 3 SCC 436. The petitioners in that casewere daily wagers. Reference was made to para Nos. 24 to 26.We find that Supreme Court was considering the entitlement ofthose petitioners in the context of their designation of permanentemployees. The discussion was in respect of permanentemployee and regular employee. This judgment will also not 78 wp 3084.16help the respondents, as the facts in the present case aredifferent.49.We, therefore, decide question No. (ii) in favour of thepetitioners and direct the respondents to pay the honorarium orfix fees structure commensurate with nature of the duties of thepetitioners, their devotion and consumption of time. Therespondents are model employers. They should adhere to thenorms of modesty and reasonableness in the payment also. Itcannot be lost sight of that the petitioners are instrumental inmaintaining the criminal justice delivery system operative.Their role cannot be undermined to save the system frombreaking down.50.Mr. A. N. Nagargoje, learned counsel for the petitionershas also argued alternatively for direction to pay lump sumcompensation. He referred the judgment dated 01.02.2023 ofthis Court at Goa in the matter of Joaquina Gomes E ColacoVs. State of Goa and others in Writ Petition No. 269 of2022. In the peculiar circumstances, the coordinate bench heldthat the State Government was responsible for the exploitationof then petitioner. We have gone through para Nos. 22, 23 and29 of the said judgment. Considering difference in the facts, weare not inclined to accept the submission of the petitioners.51.Question No. (iii) :The petitioners have challenged order dated 10.11.2014thereby instructing the District Magistrates to disband earlier 79 wp 3084.16panel considering low conviction rate of the petitioners. Thisissue is already covered by the judgment dated 24.08.2018 ofthe coordinate bench in the matter of Maharashtra StatePublic Prosecutors Association Vs. The State ofMaharashtra and another in Writ Petition No. 8117 of2017. In that case similar type of Government Resolution wasissued on 12.05.2015, which was challenged by the petitionerssuccessfully before the Division Bench. Following are therelevant extracts :“17. Thus, it is clear that Public Prosecutor being anofficer of the Court, is not expected to only grab theconviction, but is expected to act fairly before the Courtand his performance should be only in the form ofassistance to the Court for arriving at proper conclusionregarding conviction or acquittal of the accused.Considering such impartial duty to be performed by thePublic Prosecutor, the State cannot set target before thePublic Prosecutors to get conviction at least in 25 %criminal cases handled by them. What is expected by theState of Maharashtra from the Public Prosecutor is totallyagainst law as discussed above. In other words, bypassing the impugned Government Resolution, the StateGovernment cannot fix bench-mark for the PublicProsecutors to secure at least 25% conviction in thecriminal cases handed by them, to get promotion. 18. The conviction or acquittal in criminal trialdepends on various factors and mainly on the quality ofmaterial collected by the Investigating Officer. If theInvestigating Officer has collected good quality ofmaterial as evidence against the accused and if he hastaken necessary precaution while sealing and forwarding 80 wp 3084.16the important Muddemal articles to Chemical Analyst,certainly such case may result into conviction, providedthat material witnesses stand constant at the stage ofevidence. For conviction, the credit goes to InvestigatingOfficer and witnesses. The conviction in criminal trial isnot merely related with performance of the PublicProsecutor, but as discussed supra depends upon variousfactors.19. Therefore, issuance of the impugned GovernmentResolution mandating achievement of 25% conviction incriminal trial is only as a result of above-saidmisconception. If any negligence has been committed bythe Public Prosecutor while conducting the case, thatcannot be ascertained only from conviction or acquittal,but it can be ascertained only on examination of therecord of that particular case. Therefore, we hold that thecondition of particular conviction rate to be achieved byPublic Prosecutors, embodied in the impugnedGovernment Resolution is definitely unreasonable.20. Thus, the impugned Government Resolution isirrational, unreasonable and against the law of the land.Therefore, in view of the parameters laid down by theApex Court in the case of “Brij Mohan Lal” (supra), thisCourt can definitely quash the impugned GovernmentResolution. It follows that this Writ Petition deserves tobe allowed.”52.We propose to follow the view of the coordinate bench inquashing order dated 10.11.2014. Besides that we find that nomaterial is placed on record by the respondents for havingconducted any objective scrutiny of the performance of thepetitioners. Impugned order is grossly arbitrary. 81 wp 3084.1653.The petitioners have also challenged the GovernmentResolution dated 28.05.2013. No submissions have beenadvanced by them for quashing the policy in question. Thepetitioners have no vested right to be continued on contractualposts U/Sec. 25(3) of the Cr. P. C. It is prerogative of therespondents to issue instructions to the District Magistratesregarding appointments, continuation or discontinuation of Spl.A. P. Ps. We do not find that there is any per-se arbitrariness orunreasonableness in the impugned policy. We do not find thatthe impugned policy is violative of any constitutional or statutoryprovision. Objections to this government resolution are overruled.54.In all the petitions the prohibitory orders are solicitedagainst the respondents from terminating the services of thepetitioners. We are not inclined to grant such blanket relief tothe petitioners. Their appointments are contractual in natureand they are not occupying sanctioned posts. It is theprerogative of the respondents either to continue or discontinueSpl. A.P.Ps. However, if the services are to be discontinued, thenreasonable minimal procedure adhering to principles of naturaljustice should be followed.55.The petitioners are also challenging the advertisementdated 04.07.2015. We are not shown any circumstances tosustain the challenge. The advertisement is fallout of theprocedure contemplated by Article 309 of the Constitution. By 82 wp 3084.16adopting the procedure appointments of regular A.P.Ps. aremade. The respondent No. 1 enjoys the privilege of appointingA.P.Ps., which cannot be faulted. We find no substance in thechallenge.56.The petitioners have also challenged the GovernmentResolution dated 12.05.2015, by which a panel was proposed tobe appointed for selecting Spl. A.P.Ps. In fact, appointment ofpanel comprising of senior and experienced officers is a steptowards bringing rationalization and transparency in theselection of Spl. A.P.Ps. This is always a welcome approach ofthe respondents to prevent any arbitrariness in the selection ormisuse of power. We do not approve the submission in thisregard.57.Few of the petitioners have also challenged circular dated31.10.2018. The purport of the circular is to prepare new panelfor Spl. A.P.Ps. as the earlier panels had become more than fiveyears old. We adopt the same reasons as done for rejecting thechallenge to G. R. dated 28.05.2013. No case is made out toquash the circular.58.Finally while answering question No. (iii), we hold thatinstruction dated 10.11.2014 is liable to be quashed. Besidesthat, we are not interfering with the Government Resolutionsdated 28.05.2013 and 12.05.2013, Circular dated 31.10.2011 andadvertisement dated 04.07.2015.
Arguments
7 wp 3084.16All R/o. C/o. Pramod Ramrao Kurlekar, Jyoti Nagar, Aurangabad.Plot No.53, S.B.H, Colony. .. PetitionersVersus1)The State of Maharashtra Through its Principal Secretary, Home Department, Mantralaya, Mumbai-400 0322)The Directorate of Public Prosecution,Maharashtra State, Mumbai.Barracks No.6, Free Press Journal Marg, Nariman Point, Near Manorama MLA Hostel, Mumbai-32. .. RespondentsShri A. N. Nagargoje, Advocate for the Petitioners.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 and 2.WITHWRIT PETITION NO. 1262 OF 20141.All Special Assistant PublicProsecutor Association, Sangali (M.S.)Through it’s President-Shri Rajendra S/o. Vaijanathrao Tate,Age : 50 Yrs, Occu : Government Service,R/o. Plot No.63, Verma Nagar, Parbhani.Dist.Parbhani, Maharashtra .. PetitionerVersus1.The State of Maharashtra,Through its Principal Secretary,Home Department, Mantralaya,Mumbai,32.2.The Directorate of Public Prosecution, 8 wp 3084.16M/s,Mumbai.Barracks No.6 Free Press Journal Marg,Narimant Point, Near Manora MLA Hostel,Mumbai,22.3.The District Magistrates,in the State of Maharashtra(Through the District Magistrates of each District in the State of Maharashtra). 4.Maharashtra Public Service Commission5th,7th and 8th Floor,Cooprej Telephone Exch.Bldg.,Maharshi Karve Road,Cooprej, Mumbai 400021.. RespondentsShri U. R. Awate, Advocate h/f Talekar and Associates, Advocate for the Petitioner.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 to 4.WITHWRIT PETITION NO. 9998 OF 20171.Bhagwat s/o. Pundlik Patil,Age : 48 years, Occu : ServiceR/o JMFC, Court, Bhusawal,Tq.Bhusawal Dist.Jalgaon.2. Rambhau s/o Sukalal ShindeAge: 54 years, Occu: ServiceR/o JMFC, Court, AmaninerTq. Amalner Dist Jalgaon3. Ramakant s/o Laxman Patil,Age: 50 years, Occu: Service,R/o JMFC, Court, DharangaonTq. Dharangaon Dist. Jalgaon4. Anil s/o Goba Patil,Age: 49 years, Occu: Service, 9 wp 3084.16R/o JMFC, Court, ChalisgaonTq. Chalisgaon Dist. Jalgaon5. Rajesh s/o Sahebrao GawaiAge: 47 years, Occu: Service,R/o JMFC, Court, BhusawalTq. Bhusawal Dist. Jalgaon6.Milind s/o Suresh Yeole,Age: 42 years, Occu: ServiceR/o JMFC, Court, PachoraTq. Pachora Dist. Jalgaon7.Vishwasrao s/o Dhansingh Motiwale,Age: 45 years, Occu: ServiceR/o JMFC, Court, ChopdaTq. Chopda Dist. Jalgaon8. Santosh Kumar s/o Maniklal KalanthariAge: 47 years, Occu: ServiceR/o JMFC, Court, BhusawalTq. Bhusawal Dist. Jalgaon9. Shaikh Farid s/o Shaikh MajidAge: 40 years, Occu: ServiceR/o JMFC, Court, ChalisgaonTq. Chalisgaon Dist. Jalgaon .. PetitionersVersus1. The State of Maharashtra,Through its Secretary, Home Department,Mantralaya, Mumbai -32. 2. The Directorate of Public ProsecutionMaharashtra State Mumbai Barracks No. 6, Free Press Journal Marg, Nariman Point, Near Manora MLA Hostel, Mumbai – 22. 10 wp 3084.163. The District Magistrate,District Collector office, Jalgaon. .. RespondentsShri Hamzakhan I. Pathan, Advocate for the Petitioners.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 to 3.WITHWRIT PETITION NO. 13274 OF 20181.Pramod Ramrao Kurlekar,Age : 43 Years, Occu. : Service,2.Vijay Rangnath Dhanwat,Age : 42 Years, Occu. : Service,3.Govind Laximikant Kulkarni,Age : 43 Years, Occu. : Service,4.Shivkumar Vasantroa Deshmukh,Age : 43 Years, Occu. : Service,5.Sanjay Ramrao Barase,Age : 47 Years, Occu. : Service,6.Syed Shahnaz Badshaha,Age : 43 Years, Occu. : Service,7.Supriya Lakhanchandra Dar,Age : 43 Years, Occu. : Service,8.Zarena Yusufkhan Durrani,Age : 43 Years, Occu. : Service,9.Sudhir Arjunrao Bansode,Age : 44 Years, Occu. : Service,10.Sunil Motiram Jondhale,Age : 45 Years, Occu. : Service, 11 wp 3084.1611.Shivaji Sahebrao Darade,Age : 45 Years, Occu. : Service,12.Kakasaheb Mahadeo Kothule,Age : 39 Years, Occu. : Service,13.Nitin Ramkrushna Wagh,Age : 41 Years, Occu. : Service,14.Manoj Vishnu Jaybhaye,Age : 42 Years, Occu. : Service,15.Sau. Manisha Nitin ThubePatil (Kadlag),Age : 35 Years, Occu. : Service,16.Sau. Shubhada Pankaj Autade,Age : 36 Years, Occu. : Service,17.Ravindra Kashinath Gagare,Age : 43 Years, Occu. : Service,18.Dattatraya Baburao Zarad,Age : 41 Years, Occu. : Service,19.Gahininath Babasaheb Newase,Age : 36 Years, Occu. : Service,20.Sandip Manik Nagargoje,Age : 41 Years, Occu. : Service,21.Annasaheb Punja Kadam,Age : 41 Years, Occu. : Service,22.Balasaheb Murlidhar Sanap,Age : 45 Years, Occu. : Service,23.Madhukar Sonajirao Pandav,Age : 45 Years, Occu. : Service,24.Pushpa Ramesh Pansambal, 12 wp 3084.16Age : 45 Years, Occu. : Service,25.Ratnajadita Shripatrao Munde,Age : 41 Years, Occu. : Service,26.Nandkumar Panditrao Gandale,Age : 44 Years, Occu. : Service,27.Chandrakant Ambadas Jawale,Age : 41 Years, Occu. : Service,28.Rajesh Laxman Waghmare,Age : 42 Years, Occu. : Service,29.Kalpana Dnyaneshwar Deshpande,Age : 44 Years, Occu. : Service,30.Santosh Tatyarao Mane,Age : 44 Years, Occu. : Service,31.Shaikh Khaisar Janimiya,Age : 40 Years, Occu. : Service,32.Rahul Bapurao Chotapgar,Age : 39 Years, Occu. : Service,33.Kazi Mukmoddin Sayadoddin,Age : 39 Years, Occu. : Service,34.Subhash Bhagwan Gaikwad,Age : 39 Years, Occu. : Service,35.Ganesh Prabhuling Swami,Age : 41 Years, Occu. : Service,36.Narayan Bhikaji Kendre,Age : 48 Years, Occu. : Service,37.Santosh Bhaskar Giri,Age : 43 Years, Occu. : Service, 13 wp 3084.1638.Dattatraya Ramrao Ghule,Age : 45 Years, Occu. : Service,39.Surekha Indramohan Lamb,Age : 43 Years, Occu. : Service,40.Shaikh Abdul Kalam Abdul Karim,Age : 43 Years, Occu. : Service,41.Umakant Marotirao Wadikar,Age : 42 Years, Occu. : Service,42.Shivraj Ramchandra Phalegaonkar,Age : 42 Years, Occu. : Service,43.Mukund Nivruttirao Kasbe,Age : 54 Years, Occu. : Service,44.Ashish Shrikant Deshpande,Age : 40 Years, Occu. : Service,45.Sharda Ravikumar Bhatt,Age : 50 Years, Occu. : Service,46.Sunita Rama Kharat,Age : 44 Years, Occu. : Service,47.Anil Motiram Ingale,Age : 50 Years, Occu. : Service,48.Usha Nivrutti Shinge,Age : 48 Years, Occu. : Service,49.Gajanan Kautikrao Jagtap,Age : 39 Years, Occu. : Service,50.Amardeep Amarsingh Lali,Age : 41 Years, Occu. : Service,51.Vishal Ashokrao Patil,Age : 41 Years, Occu. : Service, 14 wp 3084.1652.Anita Sitaram Sawant,Age : 49 Years, Occu. : Service,53.Prabhavati Mukund Mali,Age : 50 Years, Occu. : Service,54.Gopisagar Mansaram Dhiware,Age : 41 Years, Occu. : Service,55.Bipin Dhwarkadas Agrawal,Age : 40 Years, Occu. : Service,56.Bhagwat Pundalik Patil,Age : 51 Years, Occu. : Service,57.Rambhau Suklal Shinde,Age : 57 Years, Occu. : Service,58.Shaikh Nawab Ahmed,Age : 52 Years, Occu. : Service,59.Nitin Kamlakar Khare,Age : 51 Years, Occu. : Service,60.Anil Dwarkadas Saraswat,Age : 52 Years, Occu. : Service,61.Ramakant Laxman Patil,Age : 52 Years, Occu. : Service,62.Anil Gaba Patil,Age : 51 Years, Occu. : Service,63.Milind Suresh Yewale,Age : 43 Years, Occu. : Service,64.Rajesh Sahebrao Gawai,Age : 48 Years, Occu. : Service,65.Vishwasrao Dhansing Motiwale, 15 wp 3084.16Age : 46 Years, Occu. : Service,66.Ravindra Padmakar Suradkar,Age : 51 Years, Occu. : Service,67.Santosh Maniklal Kalantri,Age : 48 Years, Occu. : Service,68.Shaikh Farid Abdul Majid,Age : 40 Years, Occu. : Service,69.Avinash Shaligram Patil,Age : 43 Years, Occu. : Service,70.Mohammed Ismail Hazi Abdul Sattar Beskar,Age : 40 Years, Occu. : Service,71.Arifpasha Ibrahim Kokani,Age : 42 Years, Occu. : Service,72.Anand Pralhad Kale,Age : 44 Years, Occu. : Service,73.Santosh Abasaheb Patil,Age : 37 Years, Occu. : Service,74.Sanjay Kautik Sonwane,Age : 43 Years, Occu. : Service,75.Girish Govindrao Pawar,Age : 37 Years, Occu. : Service,76.Vinayak Keda Aher,Age : 41 Years, Occu. : Service,77.Prakash Subhash Gore,Age : 40 Years, Occu. : Service,78.Nasareen Mohammed Usman Menan,Age : 40 Years, Occu. : Service, 16 wp 3084.1679.Vrunda Rajesh Sankhe,Age : 46 Years, Occu. : Service,80.Rajesh Bandu Sankhe,Age : 43 Years, Occu. : Service,81.Bhupesh Ajit Purandare,Age : 39 Years, Occu. : Service,82.Rekha Rohidas Patil,Age : 45 Years, Occu. : Service,83.Saroj Chandrakant Nagothkar,Age : 40 Years, Occu. : Service,84.Jayshree Waman Kulkarni,Age : 42 Years, Occu. : Service,85.Varsha Vinod Mhatre,Age : 39 Years, Occu. : Service,86.Vinod Shankar Mhatre,Age : 40 Years, Occu. : Service,87.Kundan Ramesh Kamble,Age : 40 Years, Occu. : Service,88.Ashta Amarsing Gaharwar,Age : 44 Years, Occu. : Service,89.Varsha Dipak Tiwari,Age : 46 Years, Occu. : Service,90.Gita Hariprasad Tiwari,Age : 49 Years, Occu. : Service,91.Ramauddin Siddiqui,Age : 55 Years, Occu. : Service,92.Chandradas Baliram Wasukar,Age : 50 Years, Occu. : Service, 17 wp 3084.1693.Kavita Ranjit Nitnaware (Bhatkar),Age : 45 Years, Occu. : Service,94.Chandradhar Uttamrao Hadale,Age : 46 Years, Occu. : Service,95.Vivekanand R. Mahalle,Age : 50 Years, Occu. : Service,96.Dipak Sadashiv Sinkar,Age : 53 Years, Occu. : Service,97.Nayana Rangrao Ingale,Age : 45 Years, Occu. : Service,98.Sujata Devidas Dake,Age : 55 Years, Occu. : Service,99.Rekha Gangadhar Hade,Age : 45 Years, Occu. : Service,100.Prabhakar Ramchandra Mangalkar,Age : 40 Years, Occu. : Service,101.Tushar Prabhakar Udaykar,Age : 43 Years, Occu. : Service,102.Mohd. Bashir Mohd. Nasir,Age : 42 Years, Occu. : Service,103.Vaishali Vijaykumar Kasture,Age : 38 Years, Occu. : Service,104.Ajay Janardhan Ingale,Age : 42 Years, Occu. : Service,105.Sudhir Sonaji Dongardive,Age : 45 Years, Occu. : Service,106.Rajesh Bhalchandra Dhatrak, 18 wp 3084.16Age : 44 Years, Occu. : Service,107.Priti Balkunal Amte,Age : 41 Years, Occu. : Service,108.Priya Vitthalrao Meshram,Age : 43 Years, Occu. : Service,109.Sangita Wasudeo Dongre,Age : 42 Years, Occu. : Service,110.Mamta Niranjan Bajade,Age : 45 Years, Occu. : Service,111.Sanjay R. Thawari,Age : 42 Years, Occu. : Service,112.Ganesh Shankarrao Raut,Age : 45 Years, Occu. : Service,113.Vidya Govindrao Kakade,Age : 43 Years, Occu. : Service,114.Siddharth Keshav Umre,Age : 47 Years, Occu. : Service,115.Ravikumar Prataprao Choudhary,Age : 49 Years, Occu. : Service,116.Ruchi Rajeshwar Tiwari,Age : 33 Years, Occu. : Service,117.Vijay Vitthalrao Dorle,Age : 45 Years, Occu. : Service,118.Mohan Devrao Pokale,Age : 40 Years, Occu. : Service,119.Bhaskar Laxman Ingale,Age : 53 Years, Occu. : Service, 19 wp 3084.16120.Sadhana Prabhakar Sarkate,Age : 43 Years, Occu. : Service,121.Manoj Govindparsad Sharma,Age : 40 Years, Occu. : Service,122.Khalil Sahid Mulla,Age : 43 Years, Occu. : Service,123.Vijay Dnyanba Aru,Age : 40 Years, Occu. : Service,124.Rajkumar Dadarao Bhende,Age : 53 Years, Occu. : Service,125.Pawanjeet Dharmsing Kapoor,Age : 44 Years, Occu. : Service,126.Amol Bhishamdas Ganvir,Age : 55 Years, Occu. : Service,127.Rakesh Rajendraprasad Trivedi,Age : 49 Years, Occu. : Service,128.Jaya Krushanrao Bagwale,Age : 47 Years, Occu. : Service,129.Anjali Ashokrao Talware,Age : 53 Years, Occu. : Service,130.Jugalkishor Mulchand Tugnaya,Age : 56 Years, Occu. : Service,131.Naresh Ramdas Gaikwad,Age : 52 Years, Occu. : Service,132.Rajesh Dattatraya BhendeAge : 47 Years, Occu. : Service,133.Subhash Parashram Rathod,Age : 53 Years, Occu. : Service, 20 wp 3084.16134.Shriniwas Nilkanthrao Naik,Age : 45 Years, Occu. : Service,135.Vikas Shiwajirao Gore,Age : 40 Years, Occu. : Service,136. Chandrakant Bhimrao Uike,Age : 45 Years, Occu. : Service,137.Tukaram Udebhan Chavan,Age : 54 Years, Occu. : Service,138.Chatrapati Govindrao Shelke,Age : 54 Years, Occu. : Service,139.Sanjay Ramdhan Kale,Age : 52 Years, Occu. : Service,140.Amit Govindrao Bhende,Age : 42 Years, Occu. : Service,All R/o C/o : Sudhir ArjunraoBansode, Plot No. 8, Rajesh Nagar,Beed-bypass Road, GarkhedaParisar, Aurangabad... PetitionersVersus1.The State of Maharashtra,Through its Principal Secretary,Home Department,Mantralaya, Mumbai – 32.2.The Director of ProsecutionsDirectorate of Prosecution,Maharashtra State, MumbaiKhetan Bhawan, Building No. 8,5th Floor, J. Tata Road, Church Gate,Mumbai – 400 020. 21 wp 3084.163.The Assistant Director andPublic Prosecutor, Aurangabad.4.The Assistant Director andPublic Prosecutor, Ahmednagar.5.The Assistant Director andPublic Prosecutor, Beed.6.The Assistant Director andPublic Prosecutor, Nanded.7.The Assistant Director andPublic Prosecutor, Hingoli.8.The Assistant Director andPublic Prosecutor, Parbhani.9.The Assistant Director andPublic Prosecutor, Dhule.10.The Assistant Director andPublic Prosecutor, Jalgaon.11.The Assistant Director andPublic Prosecutor, Solapur.12.The Assistant Director andPublic Prosecutor, Nashik.13.The Assistant Director andPublic Prosecutor, Thane.14.The Assistant Director andPublic Prosecutor, Raigad.15.The Assistant Director andPublic Prosecutor, Amrawati.16.The Assistant Director andPublic Prosecutor, Buldhana. 22 wp 3084.1617.The Assistant Director andPublic Prosecutor, Chandrapur.18.The Assistant Director andPublic Prosecutor, Wardha.19.The Assistant Director andPublic Prosecutor, Washim.20.The Assistant Director andPublic Prosecutor, Yavatmal... RespondentsShri A. N. Nagargoje, Advocate for the Petitioners.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 to 20.WITHWRIT PETITION NO. 13728 OF 20181.Pratap S/o Balbhimrao Kawade,Age : 41 Years, Occu. : Legal Practitioner,R/o Washi, Tq. Washi,Dist. Osmanabad.2.Balaji S/o Shivdas Jagtap,Age : 40 Years, Occu. : Legal Practitioner,R/o Tambari Vibhag, Osmanabad,Tq. Osmanabad, Dist. Osmanabad.3.Dhananjay S/o Udhavrao Patil,Age : 40 Years, Occu. : Legal Practitioner,R/o Anajansonda, Tq. Bhoom,Dist. Osmanabad.4.Sayyad Salim S/o Babasaheb,Age : 40 Years, Occu. : Legal Practitioner,R/o Shivaji Nagar, Paranda,Tq. Paranda, Dist. Osmanabad. 23 wp 3084.165.Deepti D/o Digambar Jagtap,Age : 37 Years, Occu. : Legal Practitioner,R/o Munde Galli, Aakare Plot,Bhoom, Tq. Bhoom, Dist. Osmanabad.6.Sadashiv S/o Pandurang Gunjal,Age : 38 Years, Occu. : Legal Practitioner,R/o Veer Galli, Aakare Plot,Bhoom, Tq. Bhoom, Dist. Osmanabad... PetitionersVersus1.The State of Maharashtra,Through its Principal Secretary,Home Department,Mantralaya, Mumbai – 32.2.The Collector, Osmanabad,Office of District Collector,Osmanabad, Dist. Osmanabad.3.The Director of ProsecutionsDirectorate of Prosecution,Maharashtra State, Khetan Bhavan, Building No. 8,5th Floor, J. Tata Road, Church Gate,Mumbai – 400 020.4.The Assistant Director andPublic Prosecutor, Osmanabad,Dist. Osmanabad... RespondentsShri Anant R. Devkate, Advocate for the Petitioners.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 to 4.WITHWRIT PETITION NO. 12718 OF 20211.Rahul Bapurao Choptpagar,Age : 41 Years, Occu. : Service, 24 wp 3084.162.Rajesh Laxmanrao Waghmare,Age : 43 Years, Occu. : Service,3.Santosh Bhaskarrao Giri,Age : 45 Years, Occu. : Service,4.Balasaheb Murlidhar Sanap,Age : 45 Years, Occu. : Service,5.Quazi Muqueemoddin Saydoddin,Age : 43 Years, Occu. : Service,6.Chandrakant Ambadas Jawale,Age : 44 Years, Occu. : Service,7.Narayan Bhikaji Kendre,Age : 51 Years, Occu. : Service,8.Madhukar Sonijarao Pandav,Age : 46 Years, Occu. : Service,9.Dattatraya Ramrao Ghule,Age : 46 Years, Occu. : Service,10.Ratnajadita Shripatirao Mundhe,Age : 45 Years, Occu. : Service,11.Nandkumar Panditrao Gandle,Age : 45 Years, Occu. : Service,12.Pushpa Rameshrao Pansambal,Age : 49 Years, Occu. : Service,13.Kalpana Dnyaneshwarrao Deshpande,Age : 40 Years, Occu. : Service,14.Khaisar Janimiya Shaikh,Age : 40 Years, Occu. : Service,15.Santosh Tatyarao Mane, 25 wp 3084.16Age : 47 Years, Occu. : Service,16.Balasaheb Sheshrao Nakade,Age : 50 Years, Occu. : Service,17.Surekha Indramohan Lamb,Age : 47 Years, Occu. : Service,18.Pradnya Radhakrishna Gite,Age : 38 Years, Occu. : Service,19.Kakasaheb Mahadev Kothule,Age : 41 Years, Occu. : Service,20.Nitin Ramkrushna Wagh,Age : 44 Years, Occu. : Service,21.Nitin Sambhaji Bhingardive,Age : 42 Years, Occu. : Service,22.Mrs. Shubhada Pankaj Autade,Age : 38 Years, Occu. : Service,23.Mrs. Manisha Nitin Dube Patil,Age : 38 Years, Occu. : Service,24.Gahininath Babasaheb Newase,Age : 38 Years, Occu. : Service,25.Smita Ashok Bhosale,Age : 41 Years, Occu. : Service,26.Vikas Asaram Sangale,Age : 39 Years, Occu. : Service,27.Sandip Manik Nagargoje,Age : 42 Years, Occu. : Service,28.Shivaji Sahebrao Darade,Age : 47 Years, Occu. : Service, 26 wp 3084.1629.Manoj Vishnu Jayabhaye,Age : 46 Years, Occu. : Service,30.Madhav Gangaram Nikalje,Age : 48 Years, Occu. : Service,31.Mhalsakant Panditrao Kulkarni,Age : 47 Years, Occu. : Service,32.Usha Nivruttirao Shinage,Age : 50 Years, Occu. : Service,33.Deepak Sheshrao Natkar,Age : 46 Years, Occu. : Service,34.Purushottam Nivruttirao Solunke,Age : 46 Years, Occu. : Service,35.Iliyas Alikhan S/o Abzal Alikhan Pathan,Age : 47 Years, Occu. : Service,36.Vranda Pralhadrao Sadgure,Age : 36 Years, Occu. : Service,37.Chaya Anandrao Ghadge,Age : 45 Years, Occu. : Service,38.Prabhavati Mukund Mali,Age : 53 Years, Occu. : Service,39.Gopisagar Mansaram Dhiware,Age : 43 Years, Occu. : Service,40.Vishal Ashokrao Patil,Age : 43 Years, Occu. : Service,41.Amandeep Amarsing Lali,Age : 43 Years, Occu. : Service,42.Anita Sitaram Sawant,Age : 52 Years, Occu. : Service, 27 wp 3084.1643.Rasika Rajendra Nikumbh,Age : 52 Years, Occu. : Service,44.Ravindra Padmakar Suradkar,Age : 53 Years, Occu. : Service,45.Vijaykumar Ramgopalji Pancholi,Age : 55 Years, Occu. : Service,46.Mohan Krushnarao Thosar,Age : 55 Years, Occu. : Service,47.Gopal Manohar Gawhale,Age : 43 Years, Occu. : Service,48.Jaikrishna Vasudeo Gawande,Age : 47 Years, Occu. : Service,49.Seematai Shaligram Lodh,Age : 38 Years, Occu. : Service,50.Dattatraya Dashrath Kadam,Age : 37 Years, Occu. : Service,51.Sheetal Shashikant Raut,Age : 38 Years, Occu. : Service,52.Charandas Baliramji Vasukar,Age : 52 Years, Occu. : Service,53.Deepak Sadashiv Sinkar,Age : 56 Years, Occu. : Service,54.Razauddin Siddiqui,Age : 57 Years, Occu. : Service,55.Amit Govindrao Bhende,Age : 43 Years, Occu. : Service,56.Rajkumar Dadarao Bhende, 28 wp 3084.16Age : 55 Years, Occu. : Service,57.Chatrapati Govindrao Shelke,Age : 54 Years, Occu. : Service,58.Vikas Shivajirao Gore,Age : 45 Years, Occu. : Service,59.Tukaram Udebhan Chavhan,Age : 45 Years, Occu. : Service,60.Sanjay Ramdhan Kale,Age : 47 Years, Occu. : Service,61.Chandrakant Bhimrao Uike,Age : 40 Years, Occu. : Service,62.Shrinivas Nilkanthrao Naik,Age : 45 Years, Occu. : Service,63.Rakesh Rajendraprasad Trivedi,Age : 52 Years, Occu. : Service,64.Rajesh Dattatraya Bhende,Age : 48 Years, Occu. : Service,65.Subhash Parasram Rathod,Age : 55 Years, Occu. : Service,66.Vidya Govindrao Kakade,Age : 45 Years, Occu. : Service,67.Preeti Balkunal Amte,Age : 42 Years, Occu. : Service,68.Sangeeta Vasudeo Dongre,Age : 42 Years, Occu. : Service,69.Ganesh Shankarrao Raut,Age : 46 Years, Occu. : Service, 29 wp 3084.1670.Rajesh Bhalchandra Dhatrak,Age : 47 Years, Occu. : Service,71.Sanjay Ramchandra Thawari,Age : 42 Years, Occu. : Service,72.Priya Vitthalrao Meshram,Age : 39 Years, Occu. : Service,73.Trupti Bhaiyalal Neware,Age : 39 Years, Occu. : Service,74.Mamta Niranjan Bunjade,Age : 41 Years, Occu. : Service,75.Ashwini Dhiraj Nandeshwar,Age : 43 Years, Occu. : Service,76.Gurudeo Sakharamji Shende,Age : 53 Years, Occu. : Service,77.Vandana Purushottam Thote,Age : 49 Years, Occu. : Service,78.Megha Prataprao Burange,Age : 49 Years, Occu. : Service,79.Neeta Vijay Saigal,Age : 52 Years, Occu. : Service,80.Urmila Keshavrao Fatale,Age : 44 Years, Occu. : Service,81.Shrikrishna Govind Inglae,Age : 49 Years, Occu. : Service,82.Ravikumar Prataprao Chaudhari,Age : 52 Years, Occu. : Service,83.Siddhartha Keshavrao Umare,Age : 49 Years, Occu. : Service, 30 wp 3084.1684.Vijay Vitthalrao Dorle,Age : 47 Years, Occu. : Service,85.Bhaurao Kashinath Khobragade,Age : 52 Years, Occu. : Service,86.Manoj Govindprasadji Sharma,Age : 42 Years, Occu. : Service,87.Bhupesh Ajit Purandare,Age : 40 Years, Occu. : Service,88.Rajesh Bandugulab Sankhe,Age : 47 Years, Occu. : Service,89.Vrunda Purushottam Raut,Age : 49 Years, Occu. : Service,90.Vijay Gondaji Bansode,Age : 50 Years, Occu. : Service,91.Sayli Ajit Ghokhale,Age : 36 Years, Occu. : Service,92.Jagruti Bapurao Thakare,Age : 36 Years, Occu. : Service,93.Jagdish Sureshchandra Patil,Age : 38 Years, Occu. : Service,94.Suyog Prataprao Aher,Age : 38 Years, Occu. : Service,95.Sunita Shankarrao Chitalkar,Age : 43 Years, Occu. : Service,96.Sandhya Manohar Wakchaure,Age : 43 Years, Occu. : Service,97.Sarthak Shivanand Chivari, 31 wp 3084.16Age : 37 Years, Occu. : Service,98.Anand Pralhad Kale,Age : 38 Years, Occu. : Service,99.Santosh Abasaheb Patil,Age : 36 Years, Occu. : Service,100.Vaishali Bamanna Banosde,Age : 34 Years, Occu. : Service,101.Mainoddin Mahmood Pathan,Age : 38 Years, Occu. : Service,102.Nitin Deepak Bhadule,Age : 39 Years, Occu. : Service,103.Sachin Sukhlal Lunawat,Age : 43 Years, Occu. : Service,104.Vishal Prakash Sakri,Age : 42 Years, Occu. : Service,All R/o C/o : Dattatraya RamraoGhule, R/o Takali, Tq. KaijDistrict Beed.. PetitionersVersus1.The State of Maharashtra,Through its Principal Secretary,Home Department,Mantralaya, Mumbai – 32.2.The Director of Public ProsecutionMaharashtra State, MumbaiBarracks No. 6, Free Press JournalMarg, Nariman Point, Near ManoramaMLA Hostel, Mumbai – 32... Respondents 32 wp 3084.16Shri A. N. Nagargoje, Advocate for the Petitioners.Ms. Neha Kamble, A.G.P. a/w Shri A. B. Girase, G.P. for the Respondent Nos. 1 and 2.CORAM :S. G. MEHARE ANDSHAILESH P. BRAHME, JJ.CLOSED FOR JUDGMENT ON:12.02.2025JUDGMENT PRONOUNCED ON:20.03.2025JUDGMENT (Per Shailesh P. Brahme, J.) :-.Rule. Rule is made returnable forthwith. With the consentof parties heard both sides finally at the admission stage.2.The petitioners are Special Assistant Public Prosecutors(for the sake of brevity and convenience hereinafter referred as tothe “Spl. A.P.Ps.”) soliciting directions for regularization of theirservices, parity in pay scales, service benefits and claimingprotection of their services from any adverse action. There arecommon questions of law and facts involved in these petitions,therefore, we propose to decide them by this common judgmentand order. Writ Petition No. 3084 of 2016 and Writ Petition No.9850 of 2017 are treated to be lead petitions. 3.Following tabular chart is useful to disclose the nature ofthe proceedings at a glance :Sr. No.Writ Petition No.Name of PartiesRelief Claimed1.WP/3084/2016Sudhir Bansode and others Vs.Direction to quash M.A.T.order dated 09/03/2016 33 wp 3084.16The State of Maharashtra and othersDirection to quashedorder passed by districtmagistrate dated10/11/2014. Direction to respondentsnot to terminatepetitioners services.Stay to order dated10/11/2014. Injunction againsttermination.2.WP/9850/2017Anil Ingle and others Vs.The State of Maharashtra and othersDirections to pay salary &other consequentialbenefits as per Sec. 25(1)Cr. P. C.3.WP/12718/2021Rahul Chotpagar and others Vs.The State of Maharashtra and othersDirections to pay salary &other consequentialbenefits as per Sec. 25(1)Cr. P. C.4.WP/9998/2017Bhagwat Patil and others Vs.The State of Maharashtra and othersDirections to pay salary &other consequentialbenefits as per Sec. 25(1)Cr. P. C. from initial dateof appointment.5.WP/1262/2014All Special APP Parbhani Vs.The State of Maharashtra and othersDirection to regularizeservice.Directions to grantconsequential benefitsaccording to Section 25(1)of the Cr. P. C. Direction to quash GRdated 20/05/2013.Direction to grant interiminjunction fromtermination. 34 wp 3084.16Direction to quashimpugned advertisementNo. 71/2015 dated04/07/15.Direction to quashimpugned GR 12/05/2015.6.WP/13274/2018Pramod Kurlekar and others Vs.The State of Maharashtra and othersDirection to quashcircular dated. 31/10/18.Direction to restrain therespondents fromtermination.Direction not to takecoercive action.(1)Direction to Stay.7WP/13728/2018Pratap Kawade and others Vs.The State of Maharashtra and othersDirection to quashcircular issued bydirectorate of prosecution.Direction not to terminateservice.Direction to stay tocircular for replacingpanel of APP.4.Before we advert to the facts and the submissions of boththe sides, it would be appropriate to refer to relevant sections.CODE OF CRIMINAL PROCEDURE, 19731.……..2.…….[24. Public Prosecutors.—(1) …. 35 wp 3084.16(4) The District Magistrate shall, in consultation with theSessions Judge, prepare a panel of names of persons, whoare, in his opinion fit to be appointed as Public Prosecutorsor Additional Public Prosecutors for the district.(5) No person shall be appointed by the State Governmentas the Public Prosecutor or Additional Public Prosecutor forthe district unless his name appears in the panel of namesprepared by the District Magistrate under sub-section (4).(6) Notwithstanding anything contained in sub-section (5),where in a State there exists a regular Cadre of ProsecutingOfficers, the State Government shall appoint a PublicProsecutor or an Additional Public Prosecutor only fromamong the persons constituting such Cadre: Provided thatwhere, in the opinion of the State Government, no suitableperson is available in such Cadre for such appointment thatGovernment may appoint a person as Public Prosecutor orAdditional Public Prosecutor, as the case may be, from thepanel of names prepared by the District Magistrate undersub-section (4).25. Assistant Public Prosecutors. (1) The State Governmentshall appoint in every district one or more Assistant PublicProsecutors for conducting prosecutions in the Courts ofMagistrates. 1*[(1A) The Central Government may appointone or more Assistant Public Prosecutors for the purpose ofconducting any case or class of cases in the Courts ofMagistrates.]25(2)………..25(3) Where no Assistant Public Prosecutor is available forthe purposes of any particular case, the District Magistratemay appoint any other person to be the Assistant PublicProsecutor in charge of that case; Provided that a police 36 wp 3084.16officer shall not be so appointed- (a) if he has taken any partin the investigation into the offence with respect to whichthe accused being prosecuted; or (b) if he is below the rankof Inspector. 5.The background of these petitions is that Assistant PublicProsecutors (for the sake of brevity and convenience hereinafterreferred as to the “A.P.Ps.”) had filed Special Leave Petition No.317 of 1979 before the High Court of Bombay at Nagpur Benchsoliciting directions for exclusion from Police Department and forcreation of their separate cadre. The decision rendered in thatcase was questioned in Civil Appeal No. 676 of 1982 in thematter of S. B. Shahane Vs. The State of Maharashtrabefore the Supreme Court. The appeal was allowed and thejudgment of the Bombay High Court was quashed. Thedirections of the Apex Court were not followed by the StateGovernment, which led to filing of Contempt Petition (Civil) No.431 of 1999. A statement was made by the learned AdvocateGeneral before the Apex Court that all posts of A.P.P. in theState of Maharashtra would be filled in within two months. Itwas further stated that in each Magistrate’s Court there wouldbe one A.P.P. Relying on the statement, it was observed by theApex Court that it would be open for the State Government tomake appointments.6.In pursuance of above orders, instructions were issued toall District Magistrates vide letter dated 09.05.2000 to take stepsfor appointment of Spl. A.P.Ps. U/Sec. 25(3) of the Code ofCriminal Procedure (for the sake of brevity and convenience 37 wp 3084.16hereinafter referred as to the “Cr. P. C.”). Accordingly, the panelof qualified advocates was to be prepared by the DistrictMagistrate. A selection committee was constituted forconducting interviews of the qualified lawyers. The petitionerswere qualified and they were selected by the recommendation ofthe Selection Committee. They were appointed by the DistrictMagistrate by various orders from 2006 to 2015.7.Lateron, the Government Resolution dated 12.05.2015 wasissued constituting committee for selection of Spl. A.P.Ps. U/Sec.25(3) of the Cr. P. C. Few of the petitioners were selectedthrough the recommendation of the committee. Theirhonorarium was fixed by the Government Resolutions dated08.12.2009, 15.07.2013 and lastly by the Government Resolutiondated 06.04.2023. They were not being appointed on a regularscale and cadre. They were not treated to be regular employeesof the State Government. They were not being given servicebenefits as admissible by the Maharashtra Civil Services (Pay)Rules. They were being paid meager amount despite extractingservices like a full timer. Hence, representations were made bythem for regularizing services and bringing parity in the scaleand other benefits.8.Petitioners while rendering services on temporary basis areconfronted with the instructions and the policies of therespondents, which were detrimental to their claim ofcontinuation, regularization and party in service benefits. Forthem those were the causes of action to approach Tribunal and 38 wp 3084.16High Court. Those are as follows :(a)The Government Resolution dated 28.05.2013 creating 299 posts of A.P.P.s (Group – A) and after recruiting 100 posts directing the authorities to relieve Spl. A.P.Ps. appointed U/Sec. 25(3) of the Cr. P. C.(b)The order dated 10.11.2014 removing Spl. A.P.Ps. appointed U/Sec. 25(3) from the panel on the ground of low conviction rate.(c)The Government Resolution dated 12.05.2015 constituting committee for appointing Spl. A.P.Ps. U/Sec. 25(3) of the Cr. P. C.(d)Advertisement dated 04.07.2015 for appointment of A.P.Ps.issued by the Maharashtra Public Service Commission.(e)Circular dated 31.10.2018 for disbanding panels of Spl. A.P.Ps. and instructing to prepare new panel.9.Few of the petitioners had approached MaharashtraAdministrative Tribunal (for the sake of brevity and conveniencehereinafter referred as to the “Tribunal”) by preferring OriginalApplication No. 618 of 2014 and Original Application No. 149 of2015 seeking direction for regularization, parity in serviceconditions and challenging order dated 10.11.2014 and theGovernment Resolution dated 28.05.2013. The applications weredismissed on merits vide judgment and order dated 09.03.2016. 39 wp 3084.16Whereas rest of the petitioners are directly approaching thisCourt for the relief of regularization and parity in servicebenefits.10.During the course of hearing, we made a specific query tothe learned counsels appearing for the parties as to whetherapplications preferred before the Tribunal by these adhocappointees were maintainable. We are shown judgment andorder of the Division Bench in the matter of Marathwada SarvaShramik Sangathan Vs. The State of Maharashtra and others reportedin 1999(3) Mh.L.J. 37 by Mr. A. N. Nagargoje learned counsel forthe petitioners to buttress a point that such application wasmaintainable. The Division Bench referred to various judgmentsincluding the Supreme Court, holding that administrativeTribunal had jurisdiction to entertain claims of daily ratedemployees. Mr. Nagargoje is right in his submissions. Few of thepetitioners had already approached the Tribunal and wereunsuccessful. We have to entertain their petitions on merits.Therefore, there is no point and purpose in refusing to entertainthe petitions of those Spl. A.P.Ps., who are directly approachingthe High Court. The cause of action and relief are common. We,therefore, propose to examine all the petitions on merits.11.Mr. A. N. Nagargoje, learned counsel for the petitionerssubmitted that the judgment and order under challenge passedby the Tribunal is perverse and patently illegal as the Tribunalfailed to examine the plea of adverse action proposed against thepetitioners on the ground of low conviction rate. He would 40 wp 3084.16submit that the petitioners were appointed after following dueprocedure of law against the vacancies and, therefore, theirappointments are at the most irregular, but not illegal. In viewof the judgment rendered in the matter of Sachin Dhawale andothers Vs. The State of Maharashtra and others reported in 2014(2)Mh. L. J. 36, which was confirmed by the Supreme Court, theyare entitled for the regularization. The petitioners’ claim forregularization is covered by para 53 of the judgment of theSupreme Court in the matter of Secretary, State of Karnataka Vs.Uma Devi reported (2006) 4 SCC 01. He would submit that thereis requirement of 1391 A.P.Ps. in the State. The petitionerscannot be discontinued, rather they are entitled to beregularized, which would be in consonance with the statementmade by the learned Advocate General before the Apex Court inContempt Petition No. 431 of 1999. There are vacancies so as tofacilitate regularization.12.He has vehemently canvassed that the petitioners arerendering identical work as like A.P.Ps. appointed U/Sec. 25(1) ofthe Cr. P. C. They are rendering full time job. There is nodispute about their qualification and capability, hence they areentitled to regularization. It is further submitted that, they aregetting meager payment of honorarium as per the G. R. dated15.07.2013, which was holding the field, when petitions werefiled. The principle of equal pay for equal work is attracted. It isa case of exploitative appointments. There is no reasonableexplanation for difference in the service benefits awarded to thepetitioners and the ] A.P.Ps. appointed U/Sec. 25(1). It is further 41 wp 3084.16submitted that due to heavy burden of work and engagement ofthe petitioners for entire day, it is not possible for them to acceptany civil work or private work. The respondents being modelemployer would extend benefit of parity in service conditions andclear the dues of the petitioners. The petitioners relied onnumber of judgments of the Supreme Court as well as the HighCourts.13.Learned counsels appearing for the petitioners in othermatters adopted the submissions of Mr. A. N. Nagargoje, learnedcounsel for the petitioners in Writ Petition No. 3084 of 2016.14.The petitions are contested by filing affidavit in reply bythe respondents in each case. Ms. Neha Kamble, learnedAssistant Government Pleader addressed this Court on theirbehalf. It is vehemently submitted that A.P.Ps. appointed U/Sec.25(3) of the Cr. P. C. and those appointed U/Sec. 25(1) of the Cr.P. C. stand on different pedestal and they cannot be equated. Themode of appointment, service conditions, appointing authorityand nature of work are altogether distinct. The appointingauthority of A.P.Ps. U/Sec. 25(1) of the Cr. P. C. is the StateGovernment, as against that the appointing authority of the Spl.A.P.Ps. U/Sec. 25(3) of the Cr. P. C. is the District Magistrate.The appointments of the A.P.Ps. U/Sec. 25(1) are governed by theAssistant Public Prosecutor, Group – B in Directorate of PublicProsecution, Maharashtra State (Recruitment) Rules, 1995. It issubmitted that the petitioners did not challenge validity of Sec.25(1) or Sec. 25(3) of the Cr. P. C. It is further contended that, 42 wp 3084.16purport of the appointments U/Sec. 25(3) of the Cr. P. C. is tomeet out the exigency and that is not a regular employment.15.She submitted that few of the petitioners wereunsuccessful before the Tribunal and, therefore, they are notentitled to claim regularization or the parity. Theirappointments were not against sanctioned posts and they werenot selected by scrupulous procedure. They were selected by apanel. Therefore, neither are they entitled to regularization, norany parity at par with the A.P.Ps. appointed U/Sec. 25(1) of theCr. P. C. She further submitted that appointments of few of thepetitioners are litigious in nature. She has relied upon numberof judgments of the Supreme Court and High Courts to opposethe claim of the petitioners.16.Civil Application No. 3384 of 2016 is filed for intervention.Mr. Avinash Deshmukh, learned advocate for the applicantssubmits that they are supporting the petitioners. They adopt thesubmissions advanced by Mr. A. N. Nagargoje, learned counselfor the petitioners.17.We have also taken judicial notice of the last recruitment ofA.P.Ps. The process commenced with advertisement dated07.01.2022 for 547 posts of Group A A.P.Ps. M. P. S. C.conducted written test and oral interviews and selected 531candidates. Unsuccessful 15 candidates had approached Tribunalby preferring Original Application No. 778 of 2023. It was partlyallowed vide judgment and order dated 28.05.2024. Being 43 wp 3084.16aggrieved Writ Petition No. 7228 of 2024, Writ Petition No. 6816of 2024 and other connected writ petitions were filed in the HighCourt, which are still pending. Initially the operation of thejudgment of the Tribunal under challenge was stayed. By theorder of the coordinate bench passed order on 21.10.2024,interim relief was modified permitting the Government to acceptthe recommendations of the M. P. S. C. and to issue appointmentorders subject to final outcome of the writ petitions. Accordingly,the State Government issued Government Resolution dated02.01.2025 appointing 491 selected candidates as A.P.Ps. Thisindicates that the State Government has made endeavour torecruit the vacant posts, albeit, belatedly. In the above factualmatrix, we need to examine rival claims of the parties.18.Ms. Neha Kamble, learned A. G. P. has brought to ournotice following status as on 17.01.2025.Sr. No.Sanctioned Strengthof A.P.Ps.Occupied posts ofA.P.Ps.Vacant Posts01.8797849519.Having heard both the sides extensively, we propose toformulate following questions and address the same :(i)Whether Spl. A.P.Ps., who are petitioners before the Court are entitled to regularization of services ?(ii)Whether petitioners are entitled to claim parity in the scaleand service benefits at par with Assistant Public Prosecutors appointed U/Sec. 25(1) of the Code of Criminal Procedure ? 44 wp 3084.16(iii)Whether instructions dated 10.11.2014, Government Resolutions dated 28.05.2013 and 12.05.2015, Circular dated 31.10.2018 and advertisement dated 04.07.2015 are liable to be quashed and set aside ?(iv)Whether judgment and order dated 09.03.2016 passed by the Tribunal is sustainable ? 20.Question No. (i) :The appointments of A.P.Ps. U/Sec. 25(1) of the Cr. P. C.are made in pursuance of rules framed under Article 309 of theConstitution of India, namely Assistant Public Prosecutors(Group – B) in Directorate of Public Prosecutions, MaharashtraState (Recruitment) Rules, 1995, Assistant Public Prosecutors(Group – A) in Directorate of Public Prosecutions, MaharashtraState (Recruitment) Second Amendment Rules, 2015. Those aremade against sanctioned vacant posts U/Sec. 24(3) r/w Sec. 25(1)of the Cr. P. C. The State Government is the appointingauthority. M.P.S.C. undertakes rigorous selection process, whichis comprised of written test as well as oral interviews. Theappointees are governed by the Maharashtra Civil Services Rulesfor their condition of service, emoluments, disciplinary matters,etc. They are regularly appointed State Government employeesdrawing emoluments in accordance with the recommendations ofthe Pay Commissions and Rules formulated by the StateGovernment. The A.P.Ps. appointed U/Sec. 25(1) of the Cr. P. C.is a separate cadre.21.The appointments of the petitioners/Spl. A.P.Ps. are made 45 wp 3084.16U/Sec. 25(3) of the Cr. P. C. The appointing authority is theDistrict Magistrate. They are selected by the selectioncommittee through interviews only. They are not governed byany rules promulgated under Article 309 of the Constitution ofIndia. Their appointments are contractual and/or temporary innature. They enjoy tenure at the pleasure of the DistrictMagistrate. They are paid honorarium as fixed by theGovernment Resolutions. Government Resolution dated06.04.2023 is the latest in that regard.22.Considering rival submissions of the parties, statutoryprovisions and the policies, the following comparative tableshowing contours of Spl. A.P.Ps. and A.P.Ps. is prepared, whichis useful to refer.Sr.No.Spl. A.P.Ps. appointedU/Sec. 25(3) of the Cr. P. C.A.P.Ps. appointed U/Sec.25(1) of the Cr. P. C.1.Appointments are not madeon sanctioned posts.Appointments are made onsanctioned posts only.2.Appointments are made bythe District Magistrate,through the recommendationof selection committee by wayof oral interviews.Appointments are madethrough State Governmentas per Rules framed underArticle 309 of theConstitution M. P. S. C.conducts written tests andoral interviews.3.The appointments arerestricted to district. Theaspiring candidates are fromthe same district.The candidates from all overMaharashtra are eligibleand aspire for theappointments.4.It is not mandatory to passHindi and Marathi languageIt is mandatory to passHindi and Marathi language 46 wp 3084.16exam as well as MSCIT orany other computer course.exam as well as MSCIT orany other computer course.5.The appointees are notregulated by M.C.S.R. Rules.Government circulars andresolutions regulatehonorarium or specific serviceconditions. They enjoy tenureat the pleasure of the DistrictMagistrate.They are regulated by theM.C.S.R. Rules for generalservice conditions, payemoluments, transfers,disciplinary matters, etc.6.Annual confidential reportsare not prepared andmaintained.Annual confidential reportsare maintained and actedupon.7.They are being paidhonorarium as peravailability of the work. They are paid as per M.C.S.Rules, regular monthlyscale.8.They need not have to attendon holidays.They are governmentservants and they aredeputed on holidays also.9.They are entitled toundertake civil as well ascriminal practice, but theycannot take matters againstthe State Government.They are prohibited fromundertaking any practice.10.They are not full timesalaried employees and canaccept part time employmentas per rules of Bar Council ofIndia.On their appointment theyhave to surrender theirsanad with the Bar Council.23.There is stark difference in the appointing authority,procedure of appointment, service conditions, tenure,emoluments and overall status of Spl. A.P.Ps. appointed U/Sec.25(3) of the Cr. P. C. and A.P.Ps. appointed U/Sec. 25(1) of theCr. P. C. As per Section 25(3) of the Cr. P. C., the appointmentsof Spl.A.P.Ps. are made when no Assistant Public Prosecutors 47 wp 3084.16are available for the purpose of particular case. Theirappointments are for the purpose of particular cases. However, itis common knowledge that the statutory provision is diluted tomeet with the work load and exigencies. Regularly appointedA.P.Ps. are not adequate. This improvisation is due to variety ofreasons, but that does not equate status of Spl. A.P.Ps. withA.P.Ps.24.It is pointed out by Mr. Nagargoje that there isrequirement of 1391 A.P.P.s in the State in view of the judgmentof the Supreme Court in the matter of S. B. Shahane Vs. The Stateof Maharashtra (supra). There are vacancies in the sanctionedstrength to the extent of 95. The State Government lastlyrecruited near about 491 A.P.Ps. It is open for the StateGovernment to go for further round of recruitment. Just becausethere is requirement of 1391 A.P.Ps. and 94 vacancies exist inthe sanctioned strength, we are not persuaded to treat presentpetitioners as regularly appointed A.P.Ps. The Tribunal in itscommon judgment dated 09.03.2016 has held that Spl. A.P.Ps.were appointed temporarily and their tenure is contractual innature. They have no vested right to seek appointment asregular A.P.Ps. or to seek continuation of the appointment.These findings are plausible and in accordance with the record.25.There is no dispute that the petitioners were not appointedagainst sanctioned post and through the procedure contemplatedby the constitutional scheme. In other words, they were notrecruited by the recommendation of the M.P.S.C. The procedure 48 wp 3084.16laid down under Article 309 of the Constitution was not followed.They did not face rigor of competitive procedure giving equalopportunity to all aspirants state-wise. They were contractual.We have already recorded the difference between cadre of A.P.Ps.and category of Spl. A. P. Ps. In the wake of this situation, wefind it difficult to accept the submissions of the petitioners for theregularization.26.As this is a matter of regularization of the services of thepetitioners, we find it appropriate to refer to Constitution Benchjudgment of the Supreme Court in the matter of Secretary, Stateof Karnataka Vs. Uma Devi and others (supra). The previousjudgments need not be gone into. Both the parties have referredthis land mark judgment. Following are the relevantparagraphs.“43.Thus, it is clear that adherence to the rule ofequality in public employment is a basic feature of ourConstitution and since the rule of law is the core of ourConstitution, a Court would certainly be disabled frompassing an order upholding a violation of Article 14 or inordering the overlooking of the need to comply with therequirements of Article 14 read with Article 16 of theConstitution. Therefore, consistent with the scheme forpublic employment, this Court while laying down thelaw, has necessarily to hold that unless the appointment isin terms of the relevant rules and after a propercompetition among qualified persons, the same would notconfer any right on the appointee. If it is a contractualappointment, the appointment comes to an end at the endof the contract, if it were an engagement or appointment 49 wp 3084.16on daily wages or casual basis, the same would come toan end when it is discontinued. Similarly, a temporaryemployee could not claim to be made permanent on theexpiry of his term of appointment. It has also to beclarified that merely because a temporary employee or acasual wage worker is continued for a time beyond theterm of his appointment, he would not be entitled to beabsorbed in regular service or made permanent, merelyon the strength of such continuance, if the originalappointment was not made by following a due process ofselection as envisaged by the relevant rules. It is not opento the court to prevent regular recruitment at the instanceof temporary employees whose period of employment hascome to an end or of ad hoc employees who by the verynature of their appointment, do not acquire any right.High Courts acting under Article 226 of the Constitutionof India, should not ordinarily issue directions forabsorption, regularization, or permanent continuanceunless the recruitment itself was made regularly and interms of the constitutional scheme. Merely because, anemployee had continued under cover of an order ofCourt, which we have described as ’litigiousemployment’ in the earlier part of the judgment, he wouldnot be entitled to any right to be absorbed or madepermanent in the service. In fact, in such cases, the HighCourt may not be justified in issuing interim directions,since, after all, if ultimately the employee approaching itis found entitled to relief, it may be possible for it tomould the relief in such a manner that ultimately noprejudice will be caused to him, whereas an interimdirection to continue his employment would hold up theregular procedure for selection or impose on the State theburden of paying an employee who is really not required.The courts must be careful in ensuring that they do notinterfere unduly with the economic arrangement of its 50 wp 3084.16affairs by the State or its instrumentalities or lendthemselves the instruments to facilitate the bypassing ofthe constitutional and statutory mandates.44. The concept of ’equal pay for equal work’ is differentfrom the concept of conferring permanency on those whohave been appointed on ad hoc basis, temporary basis, orbased on no process of selection as envisaged by theRules. This Court has in various decisions applied theprinciple of equal pay for equal work and has laid downthe parameters for the application of that principle. Thedecisions are rested on the concept of equality enshrinedin our Constitution in the light of the directive principlesin that behalf. But the acceptance of that principle cannotlead to a position where the court could direct thatappointments made without following the due procedureestablished by law, be deemed permanent or issuedirections to treat them as permanent. Doing so, would benegation of the principle of equality of opportunity. Thepower to make an order as is necessary for doingcomplete justice in any cause or matter pending beforethis Court, would not normally be used for giving the go-by to the procedure established by law in the matter ofpublic employment. Take the situation arising in the casesbefore us from the State of Karnataka. Therein, after theDharwad decision, the Government had issued repeateddirections and mandatory orders that no temporary or adhoc employment or engagement be given. Some of theauthorities and departments had ignored those directionsor defied those directions and had continued to giveemployment, specifically interdicted by the orders issuedby the executive. Some of the appointing officers haveeven been punished for their defiance. It would not bejust or proper to pass an order in exercise of jurisdictionunder Article 226 or 32 of the Constitution or in exercise 51 wp 3084.16of power under Article 142 of the Constitution of Indiapermitting those persons engaged, to be absorbed or to bemade permanent, based on their appointments orengagements. Complete justice would be justiceaccording to law and though it would be open to thisCourt to mould the relief, this Court would not grant arelief which would amount to perpetuating an illegality.45. While directing that appointments, temporary orcasual, be regularized or made permanent, courts areswayed by the fact that the concerned person has workedfor some time and in some cases for a considerable lengthof time. It is not as if the person who accepts anengagement either temporary or casual in nature, is notaware of the nature of his employment. He accepts theemployment with eyes open. It may be true that he is notin a position to bargain -- not at arms length -- since hemight have been searching for some employment so as totake out his livelihood and accepts whatever he gets. Buton that ground alone, it would not be appropriate tojettison the constitutional scheme of appointment and totake the view that a person who has temporarily orcasually got employed should be directed to be continuedpermanently. By doing so, it will be creating anothermode of public appointment which is not permissible. Ifthe court were to void a contractual employment of thisnature on the ground that the parties were not havingequal bargaining power, that too would not enable thecourt to grant any relief to that employee. A total embargoon such casual or temporary employment is not possible,given the exigencies of administration and if imposed,would only mean that some people who at least getemployment temporarily, contractually or casually, wouldnot be getting even that employment when securing ofsuch employment brings at least some succor to them. 52 wp 3084.16After all, innumerable citizens of our vast country are insearch of employment and one is not compelled to accepta casual or temporary employment if one is not inclinedto go in for such an employment. It is in that context thatone has to proceed on the basis that the employment wasaccepted fully knowing the nature of it and theconsequences flowing from it. In other words, even whileaccepting the employment, the person concerned knowsthe nature of his employment. It is not an appointment toa post in the real sense of the term. The claim acquired byhim in the post in which he is temporarily employed orthe interest in that post cannot be considered to be of sucha magnitude as to enable the giving up of the procedureestablished, for making regular appointments to availableposts in the services of the State. The argument that sinceone has been working for some time in the post, it willnot be just to discontinue him, even though he was awareof the nature of the employment when he first took it up,is not one that would enable the jettisoning of theprocedure established by law for public employment andwould have to fail when tested on the touchstone ofconstitutionality and equality of opportunity enshrined inArticle 14 of the Constitution of India. 53.One aspect needs to be clarified. There may becases where irregular appointments (not illegalappointments) as explained in S.V. NARAYANAPPA(supra), R.N. NANJUNDAPPA (supra), and B.N.NAGARAJAN (supra), and referred to in paragraph 15above, of duly qualified persons in duly sanctionedvacant posts might have been made and the employeeshave continued to work for ten years or more but withoutthe intervention of orders of courts or of tribunals. Thequestion of regularization of the services of suchemployees may have to be considered on merits in the 53 wp 3084.16light of the principles settled by this Court in the casesabove referred to and in the light of this judgment. In thatcontext, the Union of India, the State Governments andtheir instrumentalities should take steps to regularize as aone time measure, the services of such irregularlyappointed, who have worked for ten years or more in dulysanctioned posts but not under cover of orders of courtsor of tribunals and should further ensure that regularrecruitments are undertaken to fill those vacantsanctioned posts that require to be filled up, in caseswhere temporary employees or daily wagers are beingnow employed. The process must be set in motion withinsix months from this date. We also clarify thatregularization, if any already made, but not subjudice,need not be reopened based on this judgment, but thereshould be no further by-passing of the constitutionalrequirement and regularizing or making permanent, thosenot duly appointed as per the constitutional scheme.”27.Mr. A. N. Nagargoje, the learned counsel for the petitionersrelied on judgment of the Supreme Court in the matter of NihalSingh and others Vs. State of Punjab and others reported in (2013)14 SCC 65. He has referred to paragraph Nos. 31, 35 and 37 ofthe said judgment. Most relevant para is as follows :“35. Therefore, it is clear that the existence of the needfor creation of the posts is a relevant factor reference towhich the executive government is required to takerational decision based on relevant consideration. In ouropinion, when the facts such as the ones obtaining in theinstant case demonstrate that there is need for the creationof posts, the failure of the executive government to applyits mind and take a decision to create posts or stop 54 wp 3084.16extracting work from persons such as the appellantsherein for decades together itself would be arbitraryaction (inaction) on the part of the State.”It was pertaining to appointment of Special Police Officers.There was need of more staff, but the State Government wasunable to appoint. Therefore, Special Police Officers wereappointed on honorarium. The appellants in that case andothers had claimed regularization by approaching High Court,but they were unsuccessful. In that context the observationsreferred above were recorded. Facts in the present matter arealtogether different. This judgment will not be helpful to thepetitioners.28.In case of Sachin Dhawale and others Vs. The State ofMaharashtra and others (supra), the petitioners were lecturers indifferent departments of the Government polytechnics. Theywere in service for the period ranging from three to ten years.They were not given benefit of permanency. Their appointmentswere made by following due procedure and with therecommendation of the selection committee. In that context theobservations were made in paragraph Nos. 10, 12, 13, 16 and 17.The facts of the case at hand are peculiar and different. In thepresent case appointments are not on sanctioned posts.29.Reliance is also placed by the petitioners on the judgmentof the Supreme Court in the matter Sheo Narain Nagar and othersVs. State of Uttar Pradesh and another reported in (2018) 13 SCC 55 wp 3084.16432. Following are the relevant paragraphs :“7. When we consider the prevailing scenario, it ispainful to note that the decision in Uma Devi (Supra) hasnot been properly understood and rather wrongly appliedby various State Governments. We have called for thedata in the instant case to ensure as to how manyemployees were working on contract basis or ad-hocbasis or daily-wage basis in different State departments.We can take judicial notice that widely aforesaid practiceis being continued. Though this Court has emphasisedthat incumbents should be appointed on regular basis asper rules but new devise of making appointment oncontract basis has been adopted, employment is offeredon daily wage basis etc. in exploitative forms. Thissituation was not envisaged by Uma Devi (supra). Theprime intendment of the decision was that theemployment process should be by fair means and not byback door entry and in the available pay scale. That spiritof the Uma Devi (supra) has been ignored andconveniently over looked by various State Governments/authorities. We regretfully make the observation thatUma Devi (supra) has not be implemented in its truespirit and has not been followed in its pith and substance.It is being used only as a tool for not regularizing theservices of incumbents. They are being continued inservice without payment of due salary for which they areentitled on the basis of Article 14, 16 read with Article 34(1)(d) of the Constitution of India as if they have noconstitutional protection as envisaged in D.S. Nakara v.Union of India, AIR 1983 SC 130 from cradle to grave. Inheydays of life they are serving on exploitative termswith no guarantee of livelihood to be continued and in oldage they are going to be destituted, there being noprovision for pension, retiral benefits etc. There is clear 56 wp 3084.16contravention of constitutional provisions and aspirationof down trodden class. They do have equal rights and tomake them equals they require protection and cannot bedealt with arbitrarily. The kind of treatment meted out isnot only bad but equally unconstitutional and is denial ofrights. We have to strike a balance to really implement theideology of Uma Devi (supra). Thus, the time has cometo stop the situation where Uma Devi (supra) can bepermitted to be flouted, whereas, this Court hasinterdicted such employment way back in the year 2006.The employment cannot be on exploitative terms,whereas Uma Devi (supra) laid down that there shouldnot be back door entry and every post should be filled byregular employment, but a new device has been adoptedfor making appointment on payment of paltry system oncontract/adhoc basis or otherwise. This kind of action isnot permissible, when we consider the pith and substanceof true spirit in Uma Devi (supra). 8. Coming to the facts of the instant case, there was adirection issued way back in the year 1999, to considerthe regularization of the appellants. However,regularization was not done. The respondents chose togive minimum of the pay scale, which was available tothe regular employees, way back in the year 2000 and bypassing an order, the appellants were also conferredtemporary status in the year 2006, with retrospectiveeffect on 2.10.2002. As the respondents have themselveschosen to confer a temporary status to the employees, assuch there was requirement at work and posts were alsoavailable at the particular point of time when order waspassed. Thus, the submission raised by learned counselfor the respondent that posts were not available, is beliedby their own action. Obviously, the order was passedconsidering the long period of services rendered by the 57 wp 3084.16appellants, which were taken on exploitative terms.9. The High Court dismissed the writ applicationrelying on the decision in Uma Devi (supra). But theappellants were employed basically in the year 1993; theyhad rendered service for three years, when they wereoffered the service on contract basis; it was not the caseof back door entry; and there were no Rules in place foroffering such kind of appointment. Thus, the appointmentcould not be said to be illegal and in contravention ofRules, as there were no such Rules available at therelevant point of time, when their temporary status wasconferred w.e.f. 2.10.2002. The appellants were requiredto be appointed on regular basis as a one-time measure, aslaid down in paragraph 53 of Uma Devi (supra). Since theappellants had completed 10 years of service andtemporary status had been given by the respondents withretrospective effect in the 2.10.2002, we direct that theservices of the appellants be regularized from the saiddate i.e. 2.10.2002, consequential benefits and the arrearsof pay also to be paid to the appellants within a period ofthree months from today.In the peculiar facts of the case, it was held to be exploitativeappointments. There was already direction issued in the year1999 to consider the regularization of the appointments. But itwas not done. The case in hand involves difference in theappointing authority as well as procedure of appointment. Hencethe ratio is not applicable to the present case.30.The petitioners have also relied on the judgment of thecoordinate bench of this Court in the matter of MadhukarBhavanrao Sadgir and others Vs. State of Maharashtra and others 58 wp 3084.16reported in 2019(2) Mh.L.J. 119. The petitioners in that matterwere employees of post basic government ashram schools. Theywere working in the tribal area on adhoc basis for number ofyears. In that context the claim of regularization was acceptedby the coordinate bench. The judgment is distinguishable onfacts. It will be of no assistance to the petitioners.31.Reliance is also placed on the judgment dated 30.01.2024of the Supreme Court in the matter of Vinod Kumar andothers Vs. Union of India and others in S. L. P. (C) No.22241 of 2016. It was a case of regularization and absorption tothe post of accounts clerk. The appellants before the SupremeCourt had suffered rejection of their claims before the Tribunaland thereafter before the Allahabad High Court. They were alsoappointed through a process involving written test and viva voca.In the facts of that case the observations were made by theSupreme Court in para Nos. 6 and 7. There is no similarity infacts and circumstances of the present case and the judgmentcannot be made applicable to the present case.32.Further reliance is placed by the petitioners on thejudgment of the Supreme Court in the matter of Jaggo Vs. Unionof India and others reported in 2024 SCC OnLine SC 3826. Theclaim of the appellants for regularization of the services wasdismissed by the Tribunal and confirmed by the Delhi HighCourt. We have gone through paragraph Nos. 19 to 28 of thesaid judgment. In that case the plight of the temporaryemployees, who faced multi facet exploitation, was noticed. In 59 wp 3084.16that context relief of regularization was granted to theappellants. We do not find that the element of exploitation ismade out in the present case. Hence this judgment is of no helpto the petitioners.33.The petitioners have relied on the judgment of theSupreme Court in the matter of Shripal and another Vs. NagarNigam, Ghaziabad reported in 2025 SCC OnLine SC 221. Theappellants in that matter were working as gardeners. They werenot issued any formal appointment letter. They were deniedminimum wages, weekly off, national holidays and otherstatutory benefits. They had approached the ConciliationOfficer. They were terminated. Therefore, matter was referredto Labour Court. Termination was set aside. They were directedto be reinstated with 30% of the back wages. Then writ petitionswere preferred to High Court. High Court modified the reliefgranted. Hence matters reached the Supreme Court. We havegone through para Nos. 14 and 15 of the said judgment of theSupreme Court. In those peculiar facts and circumstances, itwas recorded that the engagement of the appellants wasexploitative. Therefore, High Court’s orders were quashed andwith certain directions were given in favour of the appellants.The facts of the case before us are different and same yardstickcannot be made applicable.34.As against the above referred judgments cited by thepetitioners, Ms. Neha Kamble, learned A.G.P. relies on followingjudgments of the Supreme Court, of which relevant portion is 60 wp 3084.16extracted below :I.State of Rajasthan Vs. Daya Lal and others reported in (2011)2 SCC 429. Para No. 12 of the judgment reads as under :“12. We may at the outset refer to the following wellsettled principles relating to regularization and parity in pay,relevant in the context of these appeals:(i) High Courts, in exercising power under Article226 of the Constitution will not issue directions forregularization, absorption or permanent continuance,unless the employees claiming regularization had beenappointed in pursuance of a regular recruitment inaccordance with relevant rules in an open competitiveprocess, against sanctioned vacant posts. The equalityclause contained in Articles 14 and 16 should bescrupulously followed and courts should not issue adirection for regularization of services of an employeewhich would be violative of constitutional scheme.While something that is irregular for want ofcompliance with one of the elements in the process ofselection which does not go to the root of the process,can be regularized, back door entries, appointmentscontrary to the constitutional scheme and/orappointment of ineligible candidates cannot beregularized.(ii) Mere continuation of service by an temporary orad hoc or daily-wage employee, under cover of someinterim orders of the court, would not confer upon himany right to be absorbed into service, as such servicewould be ‘litigious employment’. Even temporary, adhoc or dailywage service for a long number of years, let 61 wp 3084.16alone service for one or two years, will not entitle suchemployee to claim regularization, if he is not workingagainst a sanctioned post. Sympathy and sentimentcannot be grounds for passing any order ofregularization in the absence of a legal right.(iii) Even where a scheme is formulated forregularization with a cut off date (that is a schemeproviding that persons who had put in a specifiednumber of years of service and continuing inemployment as on the cut off date), it is not possible toothers who were appointed subsequent to the cut offdate, to claim or contend that the scheme should beapplied to them by extending the cut off date or seek adirection for framing of fresh schemes providing forsuccessive cut off dates.(iv) Part-time employees are not entitled to seekregularization as they are not working against anysanctioned posts. There cannot be a direction forabsorption, regularization or permanent continuance ofpart time temporary employees.(v) Part time temporary employees in governmentrun institutions cannot claim parity in salary withregular employees of the government on the principle ofequal pay for equal work. Nor can employees in privateemployment, even if serving full time, seek parity insalary with government employees. The right to claim aparticular salary against the State must arise under acontract or under a statute.”II.State of Karnataka Vs. M. L. Kesari and others reported in(2010) 9 SCC 247. Para No. 7 of the judgment is reproduced as 62 wp 3084.16under :“7. It is evident from the above that there is an exceptionto the general principles against ‘regularization’ enunciatedin Umadevi, if the following conditions are fulfilled :(i) The employee concerned should haveworked for 10 years or more in duly sanctioned postwithout the benefit or protection of the interim order ofany court or tribunal. In other words, the StateGovernment or its instrumentality should haveemployed the employee and continued him in servicevoluntarily and continuously for more than ten years.(ii) The appointment of such employee shouldnot be illegal, even if irregular. Where the appointmentsare not made or continued against sanctioned posts orwhere the persons appointed do not possess theprescribed minimum qualifications, the appointmentswill be considered to be illegal. But where the personemployed possessed the prescribed qualifications andwas working against sanctioned posts, but had beenselected without undergoing the process of opencompetitive selection, such appointments are consideredto be irregular.”III.Surinder Prasad Tiwari Vs. U. P. Rajya Krishi Utpadan Mandireported in (2006) 7 SCC 684. Paragraphs Nos. 36, 37 and 38 ofthe judgment are relevant, which are as under :“36.H. M. Seervai, in his celebrated book "ConstitutionalLaw of India" has mentioned that in fact the principle ofrecruitment by open competition was first applied in Indiaand then applied in England. 63 wp 3084.1637.Our constitutional scheme clearly envisages equalityof opportunity in public employment. The Founding Fathersof the Constitution intended that no one should be deniedopportunity of being considered for public employment onthe ground of sex, caste, place of birth, residence andreligion. This part of the constitutional scheme clearlyreflects strong desire and constitutional philosophy toimplement the principle of equality in the true sense in thematter of public employment.38.In view of the clear and unambiguous constitutionalscheme, the courts cannot countenance appointments topublic office which have been made against theconstitutional scheme. In the backdrop of constitutionalphilosophy, it would be improper for the courts to givedirections for regularization of services of the person who isworking either as daily-wager, ad hoc employee,probationer, temporary or contractual employee, notappointed following the procedure laid down under Articles14, 16 and 309 of the Constitution. In our constitutionalscheme, there is no room for back door entry in the matterof public employment.”IV.Nand Kumar Vs. State of Bihar and others reported in (2014)5 SCC 300. Paragraph Nos. 20 and 25 of the judgment arerelevant, which are as follows :“20. Therefore, considering the facts of the present case, itappears to us that the appellants were never appointedthrough a proper procedure. It is not in dispute that they allserved as daily wagers. Therefore, it was within theirknowledge all the consequences of appointment beingtemporary, they cannot have even a right to invoke thetheory of legitimate expectation for being confirmed in the 64 wp 3084.16post. Accordingly, we cannot accept the contention of theappellants in the matter.25. We have consciously noted the aforesaid decisions ofthis Court. The principle as has been laid down in Umadevi(supra) has also been applied in relation to the persons whowere working on daily wages. According to us, the dailywagers are not appointees in the strict sense of the term‘appointment’. They do not hold a post. The scheme ofalternative appointment framed for regular employees ofabolished organization cannot, therefore, confer a similarentitlement on the daily wagers of abolished organization tosuch alternative employment. [See Avas Vikas Sansthan v.Avas Vikas Sansthan Engineers Association (2006 (4) SCC132)]. Their relevance in the context of appointment aroseby reason of the concept of regularization as a source ofappointment. After Umadevi (supra), their positioncontinued to be that of daily wagers. Appointment on dailywage basis is not an appointment to a post according to therules. Usually, the projects in which the daily wagers wereengaged, having come to an end, their appointment isnecessarily terminated for want of work. Therefore, thestatus and rights of daily wagers of a Government concernare not equivalent to that of a Government servant and hisclaim to permanency has to be adjudged differently.”V.Kerala Asstt. Public Prosecutors Association Vs. State ofKerala and others reported in (2018) 7 SCC 314. Paragraph No. 6is relevant to be referred, which reads as under :“6. We have cogitated over the rival submissions and afterexamining the records, we find no infirmity in theconclusion arrived at by the High Court in rejecting theclaim of the appellant to accord parity in respect of age of 65 wp 3084.16superannuation at 60 years to the Assistant PublicProsecutors appointed on or before 31st March, 2013. TheHigh Court rightly opined that the method of appointmentand conditions of service of Assistant Public Prosecutors andPublic Prosecutors are qualitatively different. AssistantPublic Prosecutors are appointed through a competitiveselection process conducted by the Kerala Public ServiceCommission as per the rules in vogue. After appointment,Assistant Public Prosecutors are entitled to all servicebenefits as are enjoyed by the other government employeeswithout any exception. Public Prosecutors, however, areappointed from a panel of advocates furnished by theAdvocate General and the term of appointment of PublicProsecutors is for a period of 3 years only. They are notconsidered as government employees and do not derive anyservice benefits as in the case of government employees.They can even be terminated by the Government at any timebefore the expiry of normal term of appointment, withoutassigning any reason. The Government is also free to re-appoint any person appointed as Public Prosecutor for afurther period subject to eligibility. The fact that the natureof duties and functions of Assistant Public Prosecutors andPublic Prosecutors are similar, per se, cannot be the basis toclaim parity with Public Prosecutors in respect of age ofsuperannuation.”VI.Ms. Neha Kamble, learned A. G. P. also referred to thejudgment of the Supreme Court in the matter of the Governmentof Tamil Nadu and another, Etc. Vs. Tamil Nadu Makkal NalaPaniyalargal and others, etc. reported in 2023 LiveLaw (SC) 294 tobuttress the submission that in the absence of sanctioned posts,the State Government cannot be compelled to create the postsand absorb the persons who are continuing in services. We find 66 wp 3084.16substance in the submission and we reiterate the relevantportion. Paragraph Nos. 54, 55 and 56 of the judgment are asfollows :“54.At the same time, this Court further observed thatin absence of sanctioned post, the State cannot becompelled to create the post and absorb the persons whoare continuing in service of the State.55.In Nihal Singh and Others(supra) on which heavyreliance has been placed, it was a case whereappointments were made by the State Government underSection 17 of the Police Act, 1861. Since theirappointments were under the Act, 1861 and were allowedto continue for sufficient long time, which was notconsidered to be illegal or irregular appointment, thisCourt considered it appropriate to observe that as they areallowed to continue for such a long term, they deserveregularization of service. In the instant case, therespondents were never appointed in the establishment ofthe Government against a regular sanctioned post, in theabsence whereof, judgment may be of no assistance.56. The later judgment in Malathi Das(Retired) NowP.B. Mahishy(supra) which has been relied upon, it was acase where the employees were working on daily wagebasis serving in different departments which are indeedGovernment establishments. At one stage, the employees approached the High Court claiming regularization ofservice and the High Court of Karnataka came to theirrescue and directed the State Government to regularizeservice of such employees who are serving on a dailywage basis in Government departments and finally theSLP was dismissed by this Court. Thereafter, contempt 67 wp 3084.16petitions were filed before the High Court and in twophases, the employees were regularized, in the first andsecond phase of filing contempt petition by theincumbents concerned. But few of the incumbents filedcontempt petition which appears to be the third phase,they were not considered for regularization despite theorder of the High Court being confirmed by this Court ondismissal of the special leave petition on the premise ofthe judgment of this Court in Secretary, State ofKarnataka and Others Vs. Umadevi (3) and Others(supra).This Court was of the view that once the judgment of theHigh Court has been affirmed and in two phases on filingcontempt petitions, employees have been regularized,there appears no reason to deviate and take away theclaim of rest of the employees who are covered by thejudgment of the High Court, may be the reason that therewas a change in law on the subject after passing of thejudgment of this Court in, State of Karnataka and OthersVs. Umadevi (3) and Others (supra) and this is not thefactual matrix in the instant case.”35.We cannot be oblivious of the caution vouched for by theSupreme Court in the matter of State of Rajasthan Vs. Daya Laland others (supra) while exercising power under Article 226 ofthe Constitution of India. We find that if the relief ofregularization is granted to the petitioners, then doctrine ofequality contained in Articles 14 and 16 of the Constitution aswell as constitutional scheme would be violated. Merely becausethe petitioners are working as Spl. A.P.Ps. for more than tenyears cannot be a criteria for granting them regularization. Thesanctioned post is the foremost requirement and sine qua nonefor granting regularization as laid down by the Supreme Court
Decision
83 wp 3084.16Question No. (iv) :59.Judgment and order dated 09.03.2016 passed by theTribunal is questioned in these petitions. We do not find thatthere is any perversity or patent illegality in the findingsregarding regularization and absorption. However, the Tribunaldid not deal with order dated 10.11.2014 as well as parity in thepay scale or service benefits. No reasons are assigned by learnedMembers in that regard. We confirm the findings to the extent ofregularization. The impugned judgment stands modified to theextent of our findings for remaining issues. Accordingly weanswer question No. (iv) by modifying the impugned judgment.60.In the light of above discussion, we pass following order.O R D E RA.The claim of all the petitioners of regularization andabsorption is rejected. B.(i)The claim of the petitioners for parity in the scale and service benefits stands partly allowed. (ii)The respondents shall enhance the fees structure/honorarium of Spl. A.P.Ps. within a period of two (02) months from today which may be commensurate with the basic pay drawn by A.P.P. and disburse the payment accordingly. (iii)They shall also disburse arrears of the petitioners by conducting objective scrutiny of the claims, if submitted by 84 wp 3084.16individual petitioners within three (03) months from the date of submission of the claims.C.Order dated 10.11.2014 is quashed and set aside.D.The writ petitions are dismissed to the extent of challengeto the Government Resolutions dated 28.05.2013 and 12.05.2013.E.Judgment and order dated 09.03.2016 passed by theMaharashtra Administrative Tribunal stands modified in aboveterms.F.Rule is partly made absolute in above terms.G.There shall be no order as to costs.H.The Civil Application No. 3384 of 2016 stands disposed of.[ SHAILESH P. BRAHME, J. ] [ S. G. MEHARE, J. ]bsb/March. 25