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Judgment
Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
Initially the Petitioner was appointed as
Muster Assistant in Public Works (E.G.S.)
Division, Ahmednagar under the Employment
Guarantee Scheme. The Petitioner worked as muster
assistant for considerable period but his services
were not made permanent and therefore, the
Petitioner filed Complaint (ULP) No.266 of 1989
before the Industrial Court, Ahmednagar alleging
commission of unfair labour practices covered by
Item Nos.5, 6 and 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971
(for short "MRTU & PULP Act, 1971). The said
complaint along with other complaints, was
disposed of by the Industrial Court, Ahmednagar by
Judgment and Order dated 29th December, 1994. The
learned Member, Industrial Court, Ahmednagar
directed that status and privileges of permanency
with consequential benefits from the date of
filing of the complaint be conferred on the
Petitioner. The said order passed by the
Industrial Court was not challenged by the
Respondents.
In the meantime the Government of
Maharashtra prepared scheme of absorption of
muster assistants into regular service to be
governed by the Government Resolution dated 1st
December, 1995 as modified from time to time. In
view of the said scheme, the Petitioner was given
appointment as peon in the office Special Land
Acquisition Officer, Collector Office, Ahmednagar
vide order dated 12th December, 2007. While giving
such appointment as peon, his pay in the pay-scale
of Rs.750-940 on the post of muster assistant was
also protected. It is the case of the Petitioner
that Government of Maharashtra in Planning
Department issued Circular dated 15th April, 2009,
whereby it is decided that muster assistants would
not be entitled to count their past services as
qualifying service for grant of pension. It is
submitted that the said Circular dated 15th April,
2009 is not attracted in the case of the
Petitioner, as in the Complaint filed by the
Petitioner, the Industrial Court, Ahmednagar
directed that status and privileges of permanency
with consequential benefits from the date of
filing of the complaint be conferred on the
Petitioner. By way of filing this Petition, the
Petitioner has prayed that Respondents be directed
that for the purpose of grant of pensionary
benefits, he shall be treated as permanent
employee with effect from the date of filing
Complaint (ULP) No.266 of 1989 till the date of
his superannuation.
Learned counsel appearing for the
Petitioner invites our attention to the Judgment
and order passed by the Division Bench of this
Court (CORAM: S.S. SHINDE & SANGITRAO S. PATIL,
JJ.) on 7th April, 2016, in Writ Petition No.11183
of 2015 (Arun s/ o Baburao More vs. State of
Maharashtra and others ) and other two Writ
Petitions. It is submitted that the Petitioners
therein were also working as muster assistants and
they have filed complaints before the Industrial
Court, Ahmednagar. In the said complaints
directions were given by the Industrial Court to
the Respondents therein to confer status and
privileges of permanency and other consequential
benefits from the date of complaints filed in the
Industrial Court. In the said group of Petitions,
the Division Bench of this Court passed order
that, the Petitioners shall be treated as
permanent employees with effect from the date of
filing the respective complaints till the
respective dates of superannuation. Learned
counsel further submits that the same relief is
being claimed by the Petitioner in the present
Writ Petition.
Learned A.G.P. referring to the affidavit
in reply filed by one Jyoti Kaware, presently
working as Deputy Collector (Resettlement) and
having additional charge as Deputy Collector
(E.G.S.), in the office of the District Collector,
Ahmednagar, submits that the Government of
Maharashtra vide G.R. dated 1st December, 1995 has
framed the scheme to absorb muster assistants in
Government service. In the said G.R., muster
assistant who were working as on 31st May, 1993
were to be included in the seniority list for
their further absorption in the Government
service. According to the above said G.R., the
Petitioner has accepted order of appointment dated
12th December, 2007 as a peon. Hence principle of
waiver will apply in this case as he waived his
right for counting of his earlier service while
absorbing in the Government service therefore the
prayer made by the Petitioner for counting service
as muster assistant is not permissible under
service jurisprudence. As per the said G.R., the
muster assistants were not entitled for any
Government benefits and also will not be
recognized as Government employees. The
Maharashtra Civil Services (Pay) and (Pension)
Rules are also not applicable to them. In clause
No. 5.2 of the said G.R. dated 1st December, 1995
it is clearly stated that the mustering assistants
are not entitled for any benefits except payment
and they shall not be treated as Government
servants. It is submitted that the Petitioner
approached the Industrial Court for grant of
permanency by filing Complaint (ULP) No.266 of
1989 and the Industrial Court has granted
permanency to the Petitioner. However the said
benefit was never extended to the Petitioner in
view of order passed by the Hon''ble Supreme Court
in Civil Appeal No.15339 of 1996 arising out of
Special Leave to Appeal (Civil) No.15654 of 1991
(State of Maharashtra and others vs. Subhash
Narayan Ahirrao). It is submitted that the muster
assistant is not a "workman" under the provisions
of the Industrial Disputes Act . It is further
submitted that as per Government Circular dated
15th April, 2009, the date of absorption of muster
assistant in Government service is the date of
starting his Government service. The benefits of
permanent Government service have been given to
the Petitioner from the date of joining the post
of peon. It is submitted that there is no
substance in the contentions raised by the
Petitioner. Hence it is prayed that the Writ
Petition may be rejected.
We have carefully considered the
submissions of the learned counsel appearing for
the Petitioner and learned A.G.P appearing for
the State. With their able assistance, we have
perused the grounds taken in the Petition,
annexures thereto, and the affidavit in reply
filed on behalf of the Respondents.
In the similar fact situation, the
Division Bench of this Court (CORAM: S.S. SHINDE &
SANGITRAO S. PATIL, JJ.), in Writ Petition
No.11183 of 2015 and other two Writ Petitions,
referred above, on 7th April, 2016, this Court has
passed following order:
"1. In view of the Judgment and order dated 29.12.1994 passed by the learned Industrial Court, Ahmednagar, for the purpose of considering the grant of pensionary benefits, the petitioners shall be treated as permanent employees with effect from the date of their complaints i.e. from the date of filing of their respective ULP''s till the respective dates of superannuation.
In case of the Petitioners who were already superannuated, it will be open for them to make a representation to the concerned Authorities for grant of pensionary benefits.
If such representation is made, same shall be decided as expeditiously as possible and preferably within a period of four months from the date on which the representations are made.
We make it clear that, apart from issuing directions regarding the date of permanent employment of the respective Petitioners, we have not examined the case of the Petitioners as regards the eligibility of pensionary benefits.
Rule is made partly absolute on above terms with no order as to costs."
The Petitioner herein is in employment
and not yet superannuated. Taking the same view
and for the same reasons as stated in the Judgment
and order dated 7th April, 2016 passed in Writ
Petition No.11183 of 2015 and other connected Writ
Petitions, referred above, we pass following
order:
O R D E R
I) In view of the Judgment and Order dated 29th December, 1994 passed by the learned Industrial Court, Ahmednagar, for the purpose of considering the grant of pensionary benefits, the Petitioner shall be treated as Permanent Employee with effect from the date of his filing complaint, till the date of superannuation.
II) We make it clear that apart from issuing directions regarding the date of permanent employment of the Petitioner, we have not examined the case of the Petitioner as regards the eligibility of pensionary benefits.
III) Rule made absolute on above terms.
IV) The Writ Petition stands disposed of, accordingly.