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Judgment
,,,,,,,
Rule, made returnable forthwith and heard finally with the consent of the parties.",,,,,,,
2 The above writ petitions have been filed by the petitioners who were working as “Muster Assistants†principally for the relief of in the nature of,,,,,,,
a direction to the respondents to extend the benefits including service benefits, seniority, promotion, pensionary benefits to the petitioners from the date",,,,,,,
of their initial appointment. Incidental to the said relief is the relief sought by the petitioners by way of quashing and setting aside the LetterÂcumÂ‐,,,,,,,
Order dated 21/05/2015 by which the petitioners were given benefits from 2009. In seeking the benefit of the Government Resolution dated,,,,,,,
01/12/1995, the petitioners have also claimed the relief of a declaration that the petitioners are entitled to be paid the scale of Rs. 3050Â4590 for class",,,,,,,
'C' category and Rs. 22550Â3200 for class 'E' category as per 5th Pay Commission and Rs.5200Â20200 for class 'C' category and Rs. 4400Â7440,,,,,,,
for class 'E' category as per 6th Pay Commission. The aforesaid entitlement is claimed by the petitioners based on the Government Resolution dated,,,,,,,
01/12/1995. The said Resolution excluded the persons who were not in service between the period 26/05/1993 and 31/05/1993. It seems that by,,,,,,,
subsequent Government Resolution dated 21/04/1999, persons like the petitioners whose services were terminated between 26/05/1993 and",,,,,,,
31/05/1993 were also considered eligible for benefits of the said Government Resolution dated 01/12/1995.,,,,,,,
3 The above petitions had come up before a Division Bench of this Court (Coram: Anoop V. Mohta and Ravindra V. Ghuge, JJ.) on 04/05/2017. The",,,,,,,
issue of whether the petitioners in the above petitions had suffered a break in service between 26/05/1993 & 31/05/1993 was addressed by the said,,,,,,,
Division bench on the said day. The Division Bench adverted to the fact that the said controversy assumes importance in view of the fact that the,,,,,,,
employees working on the Employment Guarantee Scheme ('EGS' for short) who were not in employment between 26/05/1993 & 31/05/1993 cannot,,,,,,,
be held eligible for absorption as per the scheme comprised in the Government Resolution dated 01/12/1995. The Division Bench thereafter noted that,,,,,,,
though the petitioners had been terminated prior to 31/05/1993, the petitioners had adopted proceedings before the Labour Court/Tribunal challenging",,,,,,,
their termination. It was observed by the Division bench that in some cases, reinstatement with continuity of service was granted. The Division Bench",,,,,,,
therefore observed that as a consequence of the orders in favour of the petitioners, it would not be open for the Government to canvass before this",,,,,,,
Court that they were not in employment as on 31/05/1993. The Division Bench accordingly concluded that in all such cases wherein the petitioners,,,,,,,
have been granted reinstatement with continuity of service and which relief has attained finality, it would not be open for the respondent State to",,,,,,,
contend that they were not in employment on 31/05/1993 so as to be ineligible for the benefits flowing from the Government Resolution dated,,,,,,,
01/12/1995. The Division Bench accordingly observed that the said issue is settled as regards such of the petitioners who were terminated prior to,,,,,,,
31/05/1993 and who have been subsequently granted relief of reinstatement with continuity of service.,,,,,,,
4 In the light of the order passed by the Division Bench dated 04/05/2017, the respondents were required to take a call in respect of the petitioners as",,,,,,,
regards the date from which they would be entitled to absorption as regular employees.,,,,,,,
5 On behalf of the respondents, an additional affidavitÂinÂreply dated 08/10/2018 has been filed by one Ajit Baburao Pawar working as Deputy",,,,,,,
Commissioner (EGS), Pune Division, Pune. In the said affidavit the factual position insofar as the service of the petitioners is initially mentioned. It is",,,,,,,
thereafter mentioned that petitioners have been granted relief of reinstatement in service with continuity and back wages i.e. by the concerned Labour,,,,,,,
Court/Tribunal. It is further mentioned that the petitioners had not demanded the relief in the matter of getting benefits under the said Government,,,,,,,
Resolution dated 01/12/1995. However, what is significant to note is that in the affidavit a reference is made to the order dated 04/05/2017 passed in",,,,,,,
the above writ petitions and it is mentioned that as per the said order it is held that the petitioners are entitled to the benefits of absorption as per,,,,,,,
Government Resolution dated 01/12/1995. It is stated that the State Government out of 31 petitioners had absorped 23 petitioners in Government,,,,,,,
service from 04/05/2017 and that 8 petitioners have already retired as “Muster Assistantsâ€. The choice of the date i.e. 04/05/2017 is justified on,,,,,,,
the ground that the Division Bench by order dated 04/05/017 has held the petitioners as entitled to absorption and therefore, the petitioners have been",,,,,,,
absorbed from 04/05/2017. Hence the choice of the date i.e. 04/05/2017 is attributed to the order of the same date passed by the Division Bench. The,,,,,,,
petitioners have a grievance and justifiably so of the said date of 04/05/2017 as being the date of their absorption.,,,,,,,
6 During the course of the hearing of the above writ petitions, our attention was drawn to the Judgment and order dated 19/07/2012 passed by the",,,,,,,
Division Bench of this Court in Writ Petition No. 2946 of 1997. The petitioners therein were also “Muster Assistants†who were working in the,,,,,,,
Irrigation Department of the State of Maharashtra. The grievance of the said Petitioners was also as regards the grant and privileges of a permanent,,,,,,,
employee to them. The Division Bench after referring to the facts of the case of the said petitioner, issued the following directions which for the sake",,,,,,,
of ready reference are reproduced hereinunder.,,,,,,,
(a) It will be open for the Petitioner to make a representation to the concerned Authorities for grant of pensionary benefits;,,,,,,,
(b) If such representation is made, the same shall be decided as expeditiously as possible and preferably within a period of four months from the date",,,,,,,
on which the representation is made;,,,,,,,
(c) In view of the judgment and order dated 19th September, 1996 of the Industrial Court at Solapur in Complaint (ULP) No.443 of 1990, for the",,,,,,,
purposes of considering the case for grant of pensionary benefits, the Petitioner shall be treated as a permanent employee with effect from 1st",,,,,,,
October, 1988 till the date of his superannuation;",,,,,,,
(d) We make it clear that apart from issuing the direction regarding the date of permanent employment of the Petitioner, we have not examined the",,,,,,,
case of the Petitioner as regards his eligibility to pensionary benefits.,,,,,,,
7 The learned counsel had thereafter brought to our notice the Judgment and Order dated 06/09/2017 of the Division Bench of this Court sitting at,,,,,,,
Aurangabad. The said Judgment was also rendered in a number of petitions being Writ Petition no. 12043 of 2016 in the matter of Kadu Mahadu,,,,,,,
Bhawar Vs. The State of Maharashtra and others and companion writ petitions. The Division Bench sitting at Aurangabad has referred to the,,,,,,,
Judgment and Order of the Division Bench of this Court in Writ Petition No. 2946 of 1997 and has thereafter issued the directions which are,,,,,,,
contained in paragraph 7 of the said Judgment and order which for the sake of ready reference are produced hereinunder:,,,,,,,
I) In view of the Judgment and Order passed by the learned Industrial Court 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.,,,,,,,
II) 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.,,,,,,,
III) 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.,,,,,,,
Sr. No.,"N a m e of
Petitioner","D a t e of
appointment",Termination,"Reference ID
No. &
decision date","H i g h Court
WP No.","D a t e of
Rejoining as
per Court
order","Present
Status
1,"Kishor
Digambar
Gaikwad",25.03.1986,01.04.1988,"78/92
25.04.2001","4814/1999
28.11.2000
Disposed off",25.09.1997,Peon
2,"Ramhari
Mahadeo
Parade",08.10.1982,23.11.1987,"17/93
24.12.1997","5458/1998
Disposed off",01.09.1998,"Retired
30.06.2016
3,"Balu Nagnath
Gadekar",25.03.1986,01.04.1988,"27/92
12.04.2001","1893/2004
14.06.2004
Disposed off",28.09.1998,Peon
4,"Nivruti
Pandurang
Bhosale",31.03.1986,19.02.1988,"76/92
16.04.2001","1898/2004
13.04.2004
Disposed off",01.09.1998,Peon
5,"Rajabhau
Ramrao
Gavali",15.05.1986,19.02.1988,"66/92
17.04.2001","1837/2004
14.06.2004",01.09.1998,Talathi
6,"Kumar
Kundalik
Shinde",07.10.1986,01.04.1988,"10/91
13.05.1999","7324/1999
03.07.2015
Disposed off",17.02.2000,Peon
7,"Mukund
Namdeo
Ghogardare",03.07.1986,01.04.1988,"97/93
17.09.1993","7323/1999
15.01.2001
Disposed off",04.05.1999,Talathi
8,"Pandit
Kisanrao
Jagtap",08.10.1982,01.04.1988,"32/93
26.04.2001","1860/2004
14.06.2004
Disposed",25.01.1999,"Retired on
31.05.2011
9,"Ganpat
Mahipat
Bhore",01.06.1986,01.05.1989,"20/93
04.04.2001","5415/1998
28.03.2000
Disposed off",01.09.1998,Peon
10,"Hanumant
Ramkrishna
Tonape",15.12.1986,31.03.1989,"84/92
18.4.2001","6018/1998
28.03.2000
Disposed off",31.08.1998,Peon
11,"Suresh
Ramdas
Ubale",16.10.1986,01.06.1988,"68/92
19.04.1998","5420/1998
28.03.2000
Disposed off",01.09.1998,Peon
12,"Shaikh
Maksud
Ahemad
Mohammed",18.03.1986,31.01.1988,"R e v . Appl.
22/98
30.09.2010","2011/2011
15.30.2011
admitted and
stay",16.02.1999,Peon
13,"Subhash
Maruti
Deshmukh",06.07.1977,15.11.1988,"Com.749/9 6
14.12.1993",Nil,07.07.1994,"Retired on
30.04.2016
14,"Baliram Bhoja
Kengar",16.09.1985,01.08.1988,"23/95
17.04.2000","3371/2001
Admitted",14.03.2001,Peon
15,"Shivaji
Shamrao
Bichukale",16.08.1986,06.12.1988,"6/92
02.12.1998","2703/99
11.06.1999
Disposed",12.04.1999,Peon
16,"Tatyasaheb
Dhondiram
Khot",17.11.1984,07/12/1990,"Complaint
600/90
31.08.1994","2059/2011
30.09.2010
Admitted",01.12.1994,Peon
17,"Dinkar Maruti
Satpute",30.11.1984,10.12.1990,"Complaint
601/90
31.08.1994","2085 / 2011
29.03.2011
Admitted",01.12.1994,Peon
18,"Dashrath
Shankar
Chaudhari",10.08.1984,31.01.1988,"Rev.
No.225/94
14.07.1998",Nil,18.07.1998,"Watchmen
Retired
31.05.2018
19,"Sadashiv
Dada Pandole",01.10.1982,20.10.1985,"231/1995
22.04.1999",Nil,28.05.1999,Peon
20,"Balaso
Dhondiba
Tilekar",10.01.1984,30.05.1985,"R e v . No.
102/1995
26.09.2000","5223/2004
admitted and
stay
20.04.2006",01.10.1995,Peon
21,"B a b a Dada
Shinde",07.09.1989,15.10.1986,"R e v . No.
167/1991
11.04.","2717/1997
filed by State
dismissed
22.07.1997",25.07.1997,"Retired
31.07.2017
22,"Shivaji
Laxman Pisal",07.09.1980,15.10.1986,"R e v . No.
167/1991
11.04.1997","2717/1997
filed by State
dismissed
22.07.1997",28.07.1997,"Retired
31.01.2018
Sr. No .,"N a m e of
Petitioner","D a t e of
appointment",Termination,"Reference ID
No. &
decision date","H i g h Court
WP No.","D a t e of
Rejoining as
per Court
order","Present
Status
,"Rajaram
Shyamrao
Kokare",27.07.198,01.01.1990,"23/92
01.10.1999",Nil,15.09.1993,Peon
,"Vilas Ramhari
Pawar",06.10.1987,"Not
terminated.","Complaint
ULP No
114/1990.
Labour Court
restrained
from
terminating
services by
order dated
26.03.1990
and same is
dismissed on
11.02.1998","Nil
.","Continuous ly
he is in
service",Peon