high court judgement (help to sri&vijay) for considering service rendering.pdf
TRANSCRIPT
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2046/2010
1. Sachin Ambadas Dawale,
aged about 33 Yrs., Occu. Service, R/o C/o A.G. Dawale, Kishor Nagar, Amravati.
2. Ajay Madhukarrao Kalmegh, aged bout 33 Yrs., Occu. Service, R/o c/o S.M. Kalmegh, Sysanyog Colony, Kathora Road, Amravati.
3. Pankaj Madhukarrao Bhuyar, aged about 35 Yrs., Occu. Service, R/o C/o Bhugar Plot, Near Namdeo Mandir, Gadge Nagar, Amravati.
4. Ishwarprasad Sudhakar Ritapure, aged about 33 Yrs., Occu. Service, R/o Rector Qtr. Govt. Polytechnic College, Gadge Nagar, Amravati.
5. Vaishali Shahajirao Patil, aged about 28 Yrs., Occu. Service, R/o Rector Qtr. Govt. Polytechnic College, Gadge Nagar, Amravati.
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6. Ashwini Sahebrao Mahalle, aged about 32 Yrs., Occu. Service, R/o C/o Sahebrao Mahalle, Susantyog Colony, Khatora Road, Amravati.
7. Ku. Archana Pralhad Jane, aged about 35 Yrs., Occu. Service, R/o C/o N.P. Dapurkar, Riddhi Siddhi Apartment, F02, Kanta Nagar, Opp. Commissioner's Office, Amravati.
8. Ku. Vandana Shridharrao Paikane, aged about 40 Yrs., Occu. Service, R/o C/o Mr. S.K. Chaoji B9, Jeet Apartment, Tope Nagar, Amravati.
9. Ku. Suchita Ramesh Gabhane, aged about 31 Yrs., Occu. Service, R/o C/o R.V. Gabhane, Netaji Ward, Indira Square, At Po : Arvi, Distt. Wardha.
10. Ku. Jyosna Anandraoji Saonere, aged about 33 Yrs., Occu. Service, R/o C/o Suryawanshi Susantyog Colony, Khatara Road, Amravati.
11. Ritesh Omkar Patil, aged about 24 Yrs., Occu. Service, R/o Gadge Nagar, Amravati.
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12. Sandeep Sahebrao Thakare, aged about 33 Yrs., Occu. Service, R/o Ravikishan Colony, Navate Plot, Amravati.
13. Dinesh Shrawan Datar, aged about 26 Yrs., Occu. Service, R/o Shivarpan Colony, Amravati.
14. Gayatri Babarao Chavhan, aged about 23 Yrs., Occu. Service, R/o The Greater Kailash Nagar, Express Highway, Amravati.
15. Ku. Rupeshwari Janardhan Rangari, aged about 24 Yrs., Occu. Service, R/o Jai Nagar, MIDC Road, Amravati.
16. Ku. Sushma Harivijay Bailmare, aged about 26 Yrs., Occu. Service, R/o Mahatma Fule Nagar, Amravati.
17. Ku. Karuna Punjab Ukey, aged about 23 Yrs., Occu. Service, R/o Anju Colony, New Town, Badnera, Distt. Amravati.
18. Ku. K Sree Latha, aged about 36 Yrs., Occu. Service, R/o Rural S.P. Bungalow Opp. R.T.O.Office, Camp, Amravati.
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19. Ku. Poonam Chetankumar Fafat, aged about 24 Yrs., Occu. Service, R/o Patel Nagar, Brahmapuri, Distt. Chandrapur.
20. Abdul Jahir Abdul Hakim, aged about 38 Yrs., Occu. Service, R/o Near Shahid Urkude Chowk, Rampuri Ward, Camp Area, Gadchiroli.
21. Madhusudan Babaji Ramteke, aged about 36 Yrs., Occu. Service, R/o Gokul Nagar, Gadchiroli.
22. Vinod Rambhau Thorat, aged about 41 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
23. Prabhakar Somaji Chalakh, aged about 30 Yrs., Occu. Service, R/o at Po: Chichala, Tq. Mul, Distt. Gadchiroli.
24. Ravindra Shankar Sonone, aged about 30 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
25. Nitin Nilkanthrao Nikode, aged about 28 Yrs., Occu. Service, R/o Triveni Nagar, Sindewahi, Distt. Gadchiroli.
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26. Suhas Madhukar Meshram, aged about 25 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
27. Vilas Diwakar Alagadeve, aged about 32 Yrs., Occu. Service, R/o Narsary Colony, Sokari, Distt. Bhandara.
28. Prakash Wasudeo Katore, aged about 33 Yrs., Occu. Service, R/o 32, Pragati Colony, Sakdi, Bhandara.
29. Narendra Sukhdeorao Wadatkar, aged about 29 Yrs., Occu. Service, R/o 32, Pragati Colony, Sakdi,
Bhandara.
30. Ku. Shweta Subhashrao Chichate, aged about 25 Yrs., Occu. Service, R/o Model Mills Closed Gate, Colonel Bang, Nagpur.
31. Bhupendra Sachchianand Deshmukh, aged about 25 Yrs., Occu. Service, R/o C/o Meshram, Brahmakumari Centre, New Laxmi Nagar, Hanuman Chowk, Gondia.
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32. Ku. Harshada Babarao Akotkar, aged about 29 Yrs., Occu. Service, R/o College of Engineering Sakoli.
33. Abdul Hamid Rashid Sheikh, aged about 33, Occu. Service, R/o Diwanpura, Mangrulpir, Tq. Mangrulpir, Distt. Washim.
34. Ms Shwetarani Ramdas Wankhade, aged about major, Occu. Service, R/o Govt. Polytechnic College, Washim.
35. Ms Smita Marotirao Pandit, aged about major, Occu. Service, R/o Govt. Polytechnic College, Risod Road, Lakhala, Washim.
36. Santosh s/o Girdharrao Tayade, aged about 35, Occu. Service, R/o Udangaon, Tq. Silod, Distt. Aurangabad.
37. Vinayak Shivajirao Kadam, aged about 25 Yrs., Occu. Service, R/o Govt. Polytechnic College, Risod Road, Lakhala, Washim.
38. Swati Shankar Jayade, aged about 32, Occu. Service, r/o Bakliwal Colony, Risod Road, Washim.
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40. Ms Rita Madhukar Bhangale, aged about 32, Occu. Service, R/o Govt. Polytechnic College,Risod Road, Lakhala, Washim.
41. Ms Priya Pandurang Morey, aged about 30, Occu. Service, R/o Govt. Polytechnic College,Washim.
42. Ms Megha Ramchandra Lolure, aged about 32, Occu. Service, R/o Govt. Polytechnic College,Washim.
43. Udaysingh Ajitsingh Bagade, aged about 31, Occu. Service, R/o Govt. Polytechnic College,Washim.
44. Anant s/o Dinkarrao Dhole, aged about 37, Occu. Service, R/o I.U.D.P. Colony, PhaseII, Tq. and Distt. Washim.
45. Nitin Rajendraprasad Soni, aged about 27, Occu. Service, R/o Civil Lines, Near BHMS CollegeKhamgaon, Distt. Buldhana.
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46. Vijay Vishwanath Diware, aged about 27 Yrs., Occu. Service, R/o Govt. Polytechnic College, Risod Road, Lakhala, Washim.
47. Vivek Sudhakar Joshi, aged about 37 Yrs., Occu. Service, R/o Ganeshpeth, Washim.
48. Ku. Pradhyna Prabhakar Rajhans, aged about 25 Yrs., Occu. Service, R/o Gopal Nagar, Khamgaon.
49. Vijay Tryambakrao Atole, aged about 33 Yrs., Occu. Service, R/o Deshmukh Plot, Khamgaon, Distt. Buldhana.
50. Sachin Rajendraprasd Soni, aged about 30 Yrs., Occu. Service, R/o Civil Lines, Near BHMS College, Khamgaon, Tq. Khamgaon, Distt. Buldhana.
51. Anil Laxman Telang, aged about 29 Yrs., Occu. Service, R/o Tayade Colony, Near Father's Bunglow, Khamgaon, Distt. Buldhana.
52. Manoj Kumar Wasudeo Mundhda, aged about 37 Yrs., Occu. Service, R/o AmrutKela Nagar, Khamgaon, Distt. Buldhana.
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53. Pravin Dayaneshwar Chopade, aged about 33 Yrs., Occu. Service, R/o Near Shivaji Statute, Buldhana Road Nandura, Tq. Nandura, Distt. Buldhana.
54. Sau. Seema Ajay Agarkar, aged about 39 Yrs., Occu. Service, R/o S.S. GMC Campus, Tukaram Building, Qtr. No.9, Shegaon, Distt. Buldhana.
55. Dhananjay Ghanshyam Pardhi, aged about 34 Yrs., Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
56. Pradip Haridas Kotrange, aged about 33 Yrs., Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
57. Amol Ashokrao Fartode, aged about 28 Yrs., Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
58. Vaibhav Gajananrao Ingole, aged about major, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
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59. Miss Supriya Nilaknath Borkar,aged about 25 Yrs., Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
60. Miss Kamana Mahadeorao Yewale, aged about 28, Occu. Service, R/o govt. Polytechnic College, Brahmapuri. (Deleted – as per Court's
order dt.16.9.2011)
61. Miss Madhuri Tulsidas Nagdeve, aged about major, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
62. Miss Pritama Mangal Punekar, aged about major, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
63. Mrs. Minakshi Babarao Manalwar, aged about major, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
64. Vipin Anand Dahikar, aged about 32, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
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63. Rohit Dinkar Ramteke, aged about 30 Yrs., Occu. Service, R/o Govt. Polytechnic College, Brahmapuri, Distt. Chandrapur.
65. Miss Sarita Imandrao Bansod, aged about 26, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
66. Swapnil Shriram Raut, aged about 23, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
67. Rajni Maniram Sahare, aged about 26, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
68. Miss Manisha V. Rathod, aged about 29, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
69. Mrs Shalini Keshaorao Kharkate, aged about major, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
70. Shital Suidhakarrao Kontumwar, aged about 27 Yrs., Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
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71. Ashish Shantaramji Deshmukh, aged about major, Occu. Service, R/o Govt. Polytechnic College, Brahmapuri.
72. Ashwini Abaji Raipure, Aged about 25 years, Occ.Service, r/o. Govt. Polytechnic College, Bramhapuri. (Deleted – as per Court's order dt.13.6.2012)
73. Prashant M. Khanorkar, aged about 30 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
74. Indrajeet Surendra Sangole, aged about 36 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
75. Ku. Tejaswini Ambadas Wankhade, aged about 30 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
76. Mrs. Anagha Ashish Bokare, aged about 30 Yrs., Occu. Service, R/o Gokare Wada. Marodo Road, Mul, Distt. Chandrapur.
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77. Ku. Kavita Parmeshwar Kashyap, aged about 30 Yrs., Occu. Service, R/o B. Fashion Plaza, Gadchiroli.
78. Kailash Namdeorao Potode, aged about 42 Yrs., Occu. Service, R/o Govt. Polytechnic College Campus, Gadchiroli.
79. Jaiprakash s/o Sureshrao Ratale, aged about 31., Occu. Service, R/o Rector Quarter, Govt. Polytechnic, Sadar, Nagpur.
80. Anuradha Paresh Gandhi, aged about 33 , Occu. Service, R/o New Colony, Nagpur.
81. Uma Suryabhanji Dhingre, aged about 31 Yrs., Occu. Service, r/o Plot No.61, Govt. Press Colony, Dhaba Nagar, Nagpur.
82. Ashwini Uttamrao Digambar, aged about 28 Yrs., Occu. Service, R/o Ganesh Nagar, Nagpur.
83. Ku. Saroj Rajesh Bhagchandani, aged about 37 Yrs., Occu. Service, R/o Plot No.380, Hatiwali Bldg., Jaripatka, Nagpur.
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84. Ku. Rana Syeda, aged about 24 Yrs., Occu. Service, R/o Plot No.8, Near Church, Jafar Nagar, Nagpur.
85. Ku. Sheetal Moreshwar Gumgaonkar, aged about 29 Yrs., Occu. Service, R/o Bajrang Complex, B2206, Vakilpeth, Nagpur.
86. Atul Babarao Tatte, aged about 30 Yrs., Occu. Service, R/o Govt. Polytechnic Sadar,Nagpur.
87. Ku. Sushama Gulab Bawane, aged about 30 Yrs., Occu. Service, R/o Plot No.173, Near Sapatgiri Nagar, Narendra Nagar, Nagpur.
88. Ku. Monika Rathod, aged about 29 Yrs., Occu. Service, R/o Govt. Polytechnic, Sadar, Nagpur.
89. Ku. Isha Ghansham Lokhande, aged about 25 Yrs., Occu. Service, R/o Panchsheel Nagar, Nagpur.
90. Ku. Shifa Syed, aged about 22 Yrs., Occu. Service, R/o 1/7, Faraz Apartment, Jafar Nagar, Near Church, Nagpur 13.
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91. Ku. Priti laxman Tirpude, aged about 33 Yrs., Occu. Service, R/o Pot No.64, Nagsen Society, Mankapur, Nagpur. ..Petitioners.
..V/s..
1. The State of Maharashtra, Principal Secretary Higher and Technical Education, Mantralaya, Mumbai : 32.
2. Director of Technical EducationState of Maharashtra, 3, Municipal Corporation Road, Post Box No.1967, Near Cama Hospital, Mumbai : 400 001. ..Respondents.
Mr. R. L. Khapre, Advocate with Mr. J.R. Kidilay, Advocate for petitioners.Mr. N.W. Sambre, Government Pleader for respondents.
CORAM : B.R. GAVAI AND Z.A. HAQ, JJ.
DATE : 19.10.2013
JUDGMENT (Per Z.A. Haq, J.)
1. Heard Shri R.L. Khapre, learned Advocate for the petitioners and
Shri N.W. Sambre, learned Government Pleader for respondents.
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2. Rule. Rule made returnable forthwith.
3. The petitioners are Lecturers in different departments of
Government Polytechnic in the State of Maharashtra. The petitioners have been
appointed as per the policy of the Government of Maharashtra incorporated in
the Government Resolution dated 25th July, 2002 as modified by the Government
Resolution dated 2nd August, 2003 and 3rd October, 2003. The grievance of the
petitioners is that though they have been in the employment of the respondents
for a period ranging from three years to ten years, they are not given
permanency and the benefits of permanent appointment.
4. The Finance Department of the Government of Maharashtra had
imposed a ban on recruitment in all the departments since 1998. In view of the
ban, the appointments were not made in Government and nongovernment
aided educational institutions which adversely affected the education of the
students. In 2001 – 2002 permission was granted to fill 50% to 2/3rd teaching
posts but the posts could not be filled and in the academic year 2002 – 2003,
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6453 teaching posts were vacant. In order to avoid the adverse effect on the
education of the students, the Government of Maharashtra issued resolution
dated 25th July, 2002 by which permission is granted to fill 2/3rd teaching posts in
Technical and Highertechnical Education Department on temporary contractual
basis.
5. The respondents had issued notification dated 25th August, 2003
inviting the applications from eligible candidates for the posts of Lecturers in
Government Polytechnic in the State of Maharashtra. As per the notification,
the appointments were to be made on contract basis for the period of two years
or until the candidates nominated by the Maharashtra Public Service
Commission were available.
The Government of Maharashtra had issued the resolution dated
2nd August, 2003 constituting the Selection Committee for appointment of the
Lecturers in the Government Polytechnics and the composition of the Selection
Committee was as follows :
i) Joint Director, Technical Education Divisional Office –
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Chairman.
ii) Lady representative – Member,
iii) Principal of concerned Institute – Member Secretary,
iv) Representative of backward classes (Engineering Graduate) – Member.
v) Subject Experts (2) – Member.”
6. The petitioners had submitted the applications pursuant to the
notification dated 25th August, 2003 and all the candidates who had applied for
the posts, including the petitioners, were interviewed and the selections were
made. At the time of the appointment, the petitioners were given a lumpsum
monthly pay package and their appointment was for the period of two years.
The respondent no.2 – the Director of Technical Education issued the order
dated 26th October, 2005 and continued the Lecturers whose names are
mentioned in the order for a further period of two years till 26th October, 2007
however, with the rider that the continuation will be till the regularly selected
candidates are available.
The Lecturers who were appointed on contractual basis submitted
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a charter of their demands to the Government of Maharashtra, which was
considered by the Government of Maharashtra and it was directed that those
Lecturers will be continued in service on contractual basis after giving a
technical break of 4 to 5 days, until the candidates regularly selected by the
MPSC are available. Thirty days leave was also sanctioned for these contractual
employees by the Government by resolution dated 18th February, 2006. The
monthly salary of these contractual employees was increased from Rs.8,000/ to
12,000/ in case of Lecturers, from Rs.12,000/ to Rs.16,000/ in case of
Assistant Professors and from Rs.16,400/ to Rs.20,000/ in case of Professors.
In due course Directorate of Technical Education had submitted the
proposal on 11th August, 2008 for grant of pregnancy leave and casual leave to
these contractual employees and the Government of Maharashtra by the
communication dated 15th August, 2008 had rejected the said proposals.
However, subsequently, by the communication dated 10th November, 2009, the
Government of Maharashtra permitted the Directorate of Technical Education to
continue the services of all the Lecturers appointed on contractual basis after
giving a technical break of 4 to 5 days. It is in these circumstances that the
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petitioners are working with the respondents in the Government Polytechnic
Institutions on contractual basis.
7. The submission of the petitioners is that they have been selected
by a duly constituted Selection Committee by following the procedure of issuing
advertisement and inviting the applications from all the eligible candidates and
they have been working to the satisfaction of the respondents and therefore,
they are entitled for the regularization and/or permanency in the posts in which
they are working. The petitioners have submitted that the Government of
Maharashtra has framed rules in exercise of the powers conferred by the proviso
to Article 309 of the Constitution of India which are known as “Principal,
Government Polytechnic, Principal, Hotel Management and Catering
Technology, Head of Department in Engineering Disciplines or Workshop
Superintendent (Head of Department Level) in Government Polytechnic, Head of
Department in NonEngineering Disciplines, Head of Department in Hotel
Management and Catering Technology, Lecturer in Various Engineering
Disciplines or System Analysts or Workshop Superintendent (lecturer level) or
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Controller of Examinations in Government Polytechnic or Maharashtra State
Board of Technical Education, Lecturer in Various Nonengineering Disciplines,
Lecturer in Hotel Management and Catering Technology in the Maharashtra
Polytechnic Services in Group “A” under the Directorate of Technical Education
in the Higher and Technical Education Department (Recruitment) Rules, 2008.”
It is submitted that the Government of Maharashtra by the
communication dated 29th March, 2008 had informed the Director of Education
(Higher Education) that the teaching posts which fall within the purview of the
MPSC and which were to be filled only on the basis of the interviews have been
taken out of the purview of the MPSC and the Cabinet has granted its approval
for the same. The petitioners have submitted that the Government of
Maharashtra being a “Model Employer” has to treat its similarly situated
employees alike and it cannot discriminate between different sets of similarly
situated employees. The petitioners have submitted that the following categories
of employees have been regularized by the Government of Maharashtra :
(i) Shikshan Sevak working in the private schools
appointed on contractual basis as per the policy incorporated in the
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Government Resolution dated 27th April, 2000, have been
regularized.
(ii) Gram Sevak appointed on contractual basis, have
been regularized.
(iii) 3761 employees appointed in the various
departments of Mantralaya, who were not selected through the
procedure of Selection Board, have been regularized by the
Government resolution dated 8th March, 1999.
(iv) Lecturers working in the Government Medical
Colleges and Government Dental Colleges, who were appointed on
contractual basis, have been regularized by the Government
resolution dated 22nd January, 2009.
(v) Assistant Engineers classII in the Maharashtra
Engineering Services Group B appointed till 16th June, 1997, have
been regularized subject to passing the oral qualifying examination
conducted by the MPSC.
The petitioners, thus, complain of discrimination by the
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Government of Maharashtra in the matter of regularization of the services of the
petitioners.
8. Shri Khapre, learned Advocate for the petitioners, has submitted
that the Private Polytechnic Institutions in the State of Maharashtra are governed
by the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (for short “Act of 1977”) by virtue of the definition of
“School” under Section 2(24) of the Act of 1977. The Teachers/Lecturers
appointed in the Private Polytechnic Institutions are appointed by the School
Committee as laid down in Schedule “A” of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981. These appointments are
made after following the procedure of issuing advertisements, inviting the
applications and conducting interviews by the School Committee. Learned
Advocate for the petitioners has submitted that the Government of Maharashtra
has issued the resolution dated 27th April, 2000 by which the “Shikshan Sevak
Scheme” is introduced and as per this policy the candidates are appointed on
contractual basis for a tenure of three years and after they complete the
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contractual term of three years, their services are regularized. Learned
Advocate for the petitioners has submitted that the petitioners, who are
appointed in the Government Polytechnic Institutions, cannot be given a different
treatment than their counterparts appointed in the Private Polytechnic Institutions
and some of which are also receiving grantinad from the State Exchequer.
According to the petitioners, the Teachers/Lecturers working in the Private
Polytechnic Institutions and the Teachers/Lecturers working in the Government
Polytechnic Institutions are appointed on the basis of the same qualifications and
are required to do the same work and therefore, the discrimination only
regarding the regularization of their services is impermissible in law and is
violative of the guarantee enshrined under Article 14 of the Constitution of India.
9. Shri Sambre, learned Government Pleader, has submitted that the
petitioners have no legal right to make the claim by invoking the extraordinary
jurisdiction of this Court. According to the respondents, the petitioners are
contractual employees and they have accepted the employment with full
knowledge that they cannot claim regularization or permanency. Learned
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Government Pleader has relied on the judgment of the Hon'ble Supreme Court
in case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors.
reported in AIR 2006 SC 1806 (1) and has submitted that as per the ratio of the
above referred judgment, it is not possible for the respondents to confer
regularization or permanency on the petitioners as the appointments of the
petitioners are not according to the rules and not through the MPSC.
10. We have considered the submissions on behalf of the petitioners
and the respondents. It is undisputed that the appointments of the petitioners
are as per the policy incorporated in the Government resolution dated 25th of
July, 2002 in which it is laid down that the appointments will be on contractual
basis and till the availability of the candidates appointed through regular
selection process. However, it is important to consider that the petitioners are
appointed after following the procedure of issuance of advertisement and
conducting interviews by a duly constituted Selection Committee. The Selection
Committee constituted as per the Government resolution dated 2nd August, 2003
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comprises of highly experienced and technical persons like :
(i) Joint Director,Technical Education Department,
(ii) representative of women,
(iii) Principal of the concerned institution,
(iv) representative of backward class, and
(v) two Experts of concerned subject.
In view of the above facts, it cannot be said that the appointments
of the petitioners are back door or illegal. It cannot be said that the petitioners
are appointed arbitrarily or haphazardly or clandestinely without issuing
advertisement and without giving an opportunity to all the eligible candidates to
participate in the selection process. From the record it clearly appears to be an
undisputed position that in response to the advertisement several candidates
had participated in the selection process and it is the petitioners who were found
eligible and suitable for the posts and as such were selected and appointed. It is
not the case of the respondents that any illegalities took place during the
selection process.
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11. We have discussed earlier, that after the tenure of two years of the
appointment of the petitioners came to an end, the respondent – Government
issued the resolution dated 26th October, 2005 and continued the Lecturers for
the further period of two years. It is to be noted that the Government of
Maharashtra has stated in the affidavit filed before this Court that it had decided
to continue the services of the contractual employees after giving four to five
days' break until the candidates selected through MPSC are available and that
the Government of Maharashtra had decided to grant 30 days' leave to these
employees and had increased monthly package of these employees. These
factors show that the posts, in which these employees are appointed on
contractual basis, are permanent and full time posts and the services of these
employees were required by the Government of Maharashtra to discharge its
“constitutional obligation” of imparting education.
12. The contention of the State Government as to whether the posts
should be filled on a regular basis or contractual basis is a policy matter and
cannot be within the domain of the judicial review of this Court is without
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substance. The State Government is a “Model Employer” and is obliged to
follow the Constitutional Scheme. It is not in dispute that after their selection,
the petitioners have worked for a period between 3 years to 10 years. In this
respect we may gainfully refer to the following observations of the Hon'ble Apex
Court in case of Radha Dubey V/s. Govt. of NCT of Delhi and Ors. in the order
dated 16th August, 2010 in Special Leave to Appeal (Civil) No.CC10388/2010 :
“We are prima facie of the view that appointment of a person on contract basis for an uninterrupted period of ten years amounts to exploitation. The State, as a model employer in a welfare State, is not expected to take advantage of its position and impose wholly unequitable and unreasonable condition of employment on the prospective employees, who do not have the choice but to accept the appointment on terms and conditions offered by the employer. This practice seems to be contrary to the ratio of the judgments of this Court in Central Inland Water Transport Corporation Ltd. and another versus Brojo Nath Ganguly and another [AIR 1986 SC 1571] and Delhi Transport Corporation versus D.T.C. Mazdoor Congress [AIR 1991 SC 101].”
It is to be noted that having observed this, the Hon'ble Apex court in the
peculiar facts of the case had directed the respondents to take the petitioners
back in service by an interim order. The facts of the present case are almost
identical. The Government has extracted the work from the petitioners for years
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together after they were found eligible and suitable in the selection process,
conducted by the Selection Committees, which are constituted in pursuance to
the Government Resolution.
13. Insofar as the contention of the respondents that the petitioners
were aware that their appointment was for a limited period on contract basis and
as such they are not entitled to claim regularization is concerned, the said
submission is also without substance. It is not in dispute that during this period
i.e. up to 2010 the appointments which were made, were made only through the
process by which the petitioners were selected. It is not as if during the said
period MPSC was also conducting the selection process simultaneously. It is
not therefore as if the petitioners had choice to participate in the selection
process through MPSC as well as through the Committees constituted under the
said Government Resolution. The petitioners had no choice but to participate in
the selection process conducted through the Committees constituted under the
said Government Resolution. The Hon'ble Apex Court in case of Central Inland
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Water Transport Corporation Ltd. V/s. Brojo Nath Ganguly (AIR 1986 SC
1571) has observed as follows :
“.........Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power...... it will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them.”
It can, thus, be clearly seen that the Apex Court in the said case
has held that Article 14 requires that the State action should be right and
reasoned and intended to secure social and economic justice and to conform to
the mandate of equality clause enshrined in Article 14 of the Constitution. It has
been equally held that when an unfair or unreasonable condition is imposed by
the State, the Court can very well strike it down. The Constitution Bench of the
Apex Court in case of Delhi Transport Corporation V/s. D.T.C. Mazdoor
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Congress and others reported in AIR 1991 SC 101(1) has approved the
principle laid down in the case of Central Inland Water Transport Corporation
Ltd. V/s. Brojo Nath Ganguly (supra). In that view of the matter, we are unable
to accept the contention of the State, on account of whose inaction, the
appointments could not be made for a period of more than a decade. The
petitioners had no choice but to participate in the selection process as per the
said Government Resolution to get the employment.
14. In the facts of the present case, the Government did not hold
selection through MPSC for a period of more than 10 years and selected the
Lecturers only through the selection process as provided under the said
Government Resolution and the petitioners were duly selected through that
process. The respondent – State has extracted the work from the petitioners for
years together. Now, by efflux of time and on account of the respondent – State
not holding the selection process for years together, many of the petitioners have
become overaged and would not be in a position to participate in the selection
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process through MPSC. It could be clearly seen that the issue before the Apex
Court in case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors.
(supra) was pertaining to the appointments which were made clandestinely and
without advertisement and the persons were appointed without following due
selection process. The facts of the present case are totally different. In the
present case the petitioners have been appointed after the posts were
advertised, they were selected in a selection process by Committee of Experts
duly constituted as per the said Government Resolution. In that view of the
matter, the law laid down by the Apex Court in the case of Secretary, State of
Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be applicable to the
facts of the present case.
15. The submission of the Government of Maharashtra that whether
the posts should be filled in on regular basis or contractual basis is a matter of
policy and falls within the domain of the Government of Maharashtra (employer),
does not appeal to us. It being an admitted position that the posts, in which
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these employees have been appointed and continued for a considerable length
of time, on contractual basis, are regular and full time posts; the appointments in
these posts cannot be at the whims and fancies of the Government of
Maharashtra. The State cannot adopt a policy of hire and fire or use and throw.
16. In our view the submissions made on behalf of the respondents
relying on the judgment in the case of Secretary, State of Karnataka & Ors.
V/s. Umadevi & Ors. (supra) would not be applicable in the facts of the present
case. It is undisputed that the posts, in which the petitioners are working, are
sanctioned posts. As discussed earlier, the Government of Maharashtra had
issued the resolution dated 2nd August, 2003 by which the Selection Committee
came to be constituted for the selection of the candidates. The respondents
have not disputed that though the petitioners were initially appointed for a fixed
term, they are continued in service. It is not disputed that the leave facility is
made available by the resolution dated 18th February, 2006 to such employees.
The respondents have stated in their affidavit that the monthly pay to these
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employees has been increased. It is not disputed that the petitioners are having
the qualifications required for the posts in which they are working. The
respondents have not disputed that the appointments for the teaching posts are
taken out of the purview of the MPSC as informed by the communication dated
29th March, 2008.
17. The submission on behalf of the respondents relying on the
judgment of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors.
(supra) cannot be accepted in the facts of the present case. In above case, the
Hon'ble Supreme Court has observed in paragraph 3 of the judgment that the
States have resorted to irregular appointments, especially in the lower rungs of
the service, without reference to the duty to ensure a proper appointment
procedure through the Public Service Commission “or otherwise as per the rules
adopted” and to permit these irregular appointees or those appointed on contract
or on daily wages, to continue year after year, thus, keeping out those who are
qualified to apply for the post concerned and depriving them of an opportunity to
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compete for the post. The Hon'ble Supreme Court has observed that Courts
should desist from issuing orders preventing regular selection or recruitment at
the instance of such persons and from issuing directions for continuance of
those who have not secured regular appointments as per procedure established.
In the present case though the petitioners are not selected through MPSC, it is
undisputed that the petitioners are selected after the procedure for selection is
followed and through the duly constituted Selection Committee as constituted by
the Government of Maharashtra. The advertisement was issued before the
petitioners were selected and all interested candidates had applied for the posts
for which the petitioners are selected. Thus, it cannot be said that the petitioners
have got the employment through back door entry. It cannot be said that the
candidates qualified for the posts were deprived of the opportunity to compete
for the selection for the posts in which the petitioners are working.
In case of Union Public Service Commission V/s. Girish Jayanti
Lal Vaghela and Others reported in 2006 (2) SCALE 115 the Hon'ble Supreme
Court has laid down as follows :
“Article 16 which finds place in Part III of the Constitution relating
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to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)."
The said judgment is considered by the Hon'ble Supreme Court in
case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra).
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18. The submissions made by Shri Khapre, learned advocate for the
petitioners, regarding the discrimination of the Lecturers working in the
Government Polytechnics vizaviz Lecturers working in the Private Polytechnics
is not without substance. The Lecturers who are appointed in the Private
Polytechnic Institutions are selected by the School Committee which comprises
of the Members of the Trust which administers the Private Polytechnic
Institutions. The Committee which is constituted under the Government
resolution dated 2nd August, 2003 is a broad based Committee comprising of
Joint Director (Technical Education), two Subject Experts, representative of
women, representative having technical knowledge, a member who belongs to
backward classes and the Principal of the Polytechnic Institution concerned.
The Lecturers who are appointed in the Private Polytechnic
Institutions after selection through the School Committee are appointed on
contractual basis as “Shikshan Sevak” for the period of three years as per the
policy of the Government of Maharashtra incorporated in the resolution dated
27th April, 2000. It is not in dispute that the selection process through which the
petitioners are selected is much less stringent than the selection process of the
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Private Polytechnic. We see no reason as to why the petitioners, who are
otherwise eligible and qualified for the posts and who are selected by a duly
constituted Selection Committee appointed by the Government of Maharashtra
and who are appointed in sanctioned posts after the issuance of advertisement
and following regular procedure of selection should not be treated at par with
their counterparts in the Private Polytechnic Institutions. We are of the view that
the petitioners cannot be discriminated vizaviz their counterparts working in the
Private Polytechnic Institutions. We are conscious that the Lecturers working in
the Government Institutions form a different class than the Lecturers working in
the Private Institutions. However, when all other service conditions are similar,
we are of the view that the petitioners are also entitled for the same benefits as
their counterparts working in the Private Polytechnic Institutions are entitled as
far as the conferment of regularization and permanency are concerned.
19. One more fact that needs to be taken into consideration is that
even according to the respondent – State there are more than 5000 teaching
posts which are still vacant and the advertisement issued by the MPSC is only
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for 400 posts. It can, thus, be clearly seen that even after the candidates who
would be selected through the selection process conducted by the MPSC are
available, more than 4500 posts will be vacant. It is, therefore, clear that the
petitioners' absorption would in no way affect the candidates who would now be
selected through the MPSC. It is, thus, clear that the petitioners' continuation in
service would not adversely affect the fundamental right guaranteed under
Article 16 to the citizens. We are of the considered view that the respondent –
State having extracted the work from the petitioners for years together, the
petitioners cannot be deprived of the right of regular employment particularly
when their entry can neither be termed as “illegal” nor “back door”.
20. In view of the above, the writ petition needs to be partly allowed.
21. The writ petition is partly allowed.
22. The respondents are directed to regularize the services of such of
the petitioners and confer permanency on such petitioners who have completed
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three years’ service with technical breaks. The respondents shall absorb the
petitioners within a period of six weeks. Needless to state that the petitioners
who are in continuous employment till 15.10.2013 shall be continued in service
as regular employees.
However, in the facts and circumstances of the case, we direct that
the petitioners shall be entitled to regular salary from 1st November, 2013 and
would not be entitled to claim any monetary benefits for the past services
rendered by them in spite of their regularization. Needless to state that since the
petitioners’ services are regularized, they shall be entitled to the continuity in
service for all other purposes except monetary purposes from the date of their
first appointment.
23. At this stage, Shri N.W. Sambre, learned Government Pleader,
requests for stay to this judgment.
However, taking into consideration the facts and circumstances of
the case and particularly the fact that most of the petitioners were in regular
service till 15.10.2013, we are not inclined to consider the request as made.
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C.C. is expedited.
Respondents to act on authenticated copy of the judgment.
JUDGE JUDGE
Tambaskar.
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