[ad_1]
Bombay High Court
Balasaheb Punjahari Shinde And Ors vs The State Of Maharashtra And Ors on 10 July, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:18364-DB
Writ Petition No.2821/2010
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2821 OF 2010
1) Balasaheb s/o Punjahari Shinde
Age 38 years, Occ. Service
2) Rajendra s/o Krushnaji Achari,
Age 43 years, Occ. Service
3) Kashinath s/o Shankar Wakchaure
Age 47 years, Occ. Service
4) Prakash s/o Savaliram Wagh,
Age 46 years, Occ. Service
5) Popat s/o Murlidhar Jadhav,
Age 42 years, Occ. Service
6) Hemant s/o Vijayrao Wankhedkar,
Age 42 years, Occ. Service
7) Sunil s/o Babanrao Avhad,
Age 37 years, Occ. Service
8) Rajendra s/o Ramrao Chavan,
Age 42 years, Occ. Service
9) Anil s/o Bhaskar Roham,
Age 42 years, Occ. Service
10) Pradip s/o Wamanrao Shinde,
Age46 years, Occ. Service
11) Satish s/o Sudharak Bhalerao
Age 35 years, Occ. Service
Writ Petition No.2821/2010
:: 2 ::
12) Anil s/o Devidas Bhaskar,
Age 35 years, Occ. Servie
13) Tarachand s/o Babulal Biraris,
Died through L.R.
Ruchikesh s/o Tarachid Biraris
Age 25 years, Occ. Service,
R/o Ganpati Temple,
Nivara, Kojagiri Colony,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar.
14) Umesh s/o Vyankatrao Devsale,
Age 40 years, Occ. Service
15) Vijay s/o Tukaram Ghogare,
Age 40 years, Occ. Service
16) Rajendra s/o Shivram Panghavane,
Age 35 years, Occ. Service
17) Sarang s/o Mohan Ahirrao,
Died through L.Rs.
17A) Pallavi w/o Dinesh Vispute,
Age 34 years, Occ. Household,
R/o Dongargaon, Tq. Shahada,
Dist. Nandurbar
17B) Vidya w/o Anil Sonar,
Age 28 years, Occ. Household,
R/o 60, Wankhedkar Nagar, Deopur,
Dhule, Tq. & Dist. Dhule
17C) Vijay s/o Sarang Ahirrao
Age 25 years, Occ. Service
R/o Neharunagar, Jagruti Housing
Society, Behind Bus Stop, Jalgaon,
Tq. & Dist. Jalgaon
Writ Petition No.2821/2010
:: 3 ::
18) Kailash s/o Punjaji Kate,
Age 47 years, occ. Service
19) Rajendra s/o Yadavrao Nikam,
Age 37 years, Occ. Sevice
20) Kundal s/o Chhagan Lohar,
Died through L.Rs.
20A) Shakuntala Chudaman Lohar @
Shakuntala w/o Kundan Lohar,
Age 56 years, Occ. Service
20B) Simita d/o Kundan Lohar,
Age 30 years, Occ. Nil.
20C) Sumit s/o Kundan Lohar,
Age 27 years, Occ. Nil
Nos.20A to 20C R/o Shirurnaka,
Behind Durga Hospital, Amalner
Tq. Amalner, Dist. Jalgaon
21) Ashok s/o Changdeo Kekan,
Age 43 years, Occ. Service,
22) Chandrakant s/o Vitthal Parate,
Age 41 years, Occ. Service
23) Rajendra s/o Dyandeo Aghav,
Age 37 years, Occ. Service
24) Rajendra s/o Gangadhar Gorde,
Age 36 years, Occ. Service,
25) Raju s/o Rambhau Naikwade,
Age 42 years, Occ. Service
26) Balu s/o Bandu Avhad,
Age 42 years, Occ. Service
Writ Petition No.2821/2010
:: 4 ::
27) Kacharu s/o Haribhau Pathade,
Age 44 years, occ. Service
28) Pralhad s/o Gahinaji Dumbare,
Age 38 years, Occ. Service
29) Nivrutti s/o Hiralal Avhad,
Age 43 years, Occ. Service
All R/o Industrial Training Institute,
Old T.D.B. Building,
M.G. Udyan Pradarshan,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar
30) Smt. Manda Ashok Narode,
Deceased, through L.Rs.
30A) Sandip s/o Ashokrao Naqrode,
Age 38 years, Occ. Service
30B) Varsha Ashok Narode
age 36 years, Occ. Housewife,
Nos.30A & 30B R/o Shivaji Road,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar ... PETITIONERS
VERSUS
1) The State of Maharashtra
Through Principal Secretary,
Skill Development and Entrepreneurship
Department, Mantralaya,
Mumbai - 32
(Copy to be served on Govt. Pleader,
High Court of Bombay,
Bench at Aurangabad)
2) The Director,
Vocational Education and
Writ Petition No.2821/2010
:: 5 ::
Training, Mumbai
3) The Deputy Director,
Vocational Education and
Training, Regional Office, Nasik
4) Sanjeevani Rural Education Society,
Shahajahanandnagar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar
through its President/ Secretary
5) The Principal,
Industrial Training Institute,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar
6) Shivajirao s/o Manik Shelke,
Age 46 years, Occ. Agri.,
R/o Lavaki, Tq. Kopargaon,
Dist. Ahmednagar
7) Vaijinath s/o Changdeo Misal,
Age 41 years, Occ. Agri.
R/o Dahegaon, Tq. Kopargaon,
Dist. Ahmednagar
8) Babasaheb s/o Digambar Hon,
Age 35 years, Occ. Agri.
R/o Dauch, Tq. Kopargaon,
Dist. Ahmednagar
9) Subhash s/o Vitthal Khillari,
Age 45 years, Occ. Agri.,
R/o Savantsar, Tq. Kopargaon,
Dist. Ahmednagar
10) Laxman s/o Mahdu Randhwane,
Age 43 years, Occ. Agri.,
R/o Godhegaon, Tq. Kopargaon,
Dist. Ahmednagar
Writ Petition No.2821/2010
:: 6 ::
11) Gorakh s/o Eknath Bhokare,
Age 48 years, Occ. Agri.
R/o Godhegaon, Tq. Kopargaon,
Dist. Ahmednagar. ... RESPONDENTS
.......
Mr. R.N. Dhorde, Senior Counsel with
Mr. P.S. Dighe, Advocate for petitioners
Mr. Mukul Kulkarni, Advocate for Respondents No.1 to 3 & 5
Mr. A.D. Sonkawade, Advocate with
Mr. A.V. Hon, Advocate for respondent No.4.
.......
CORAM : R.G. AVACHAT AND
SANDIPKUMAR C. MORE, JJ.
Date of reserving judgment : 7th May, 2025
Date of pronouncing judgment : 10th July, 2025
JUDGMENT (PER : R.G. AVACHAT, J.) :
This petition, under Article 226 of the Constitution
of India, has been filed for following main reliefs :
BB) Hold and declare that the said notice dated 23/3/2010
issued by the respondent No.3 is illegal, arbitrary and
violative of Articles 14, 19(1)(g) and 39(d) of the
Constitution of India and therefore same is liable to
be quashed and set aside and for that purpose issue
necessary orders.
BBB) Issue writ of certiorari or any other appropriate writ,
order or direction in the nature of certiorari for
quashing and setting aside the order dated
31/3/2010, passed by the respondent No.3, thereby
terminating the services of petitioners and for that
purpose issue necessary orders.
Writ Petition No.2821/2010
:: 7 ::
C) Issue writ of mandamus or any other appropriate writ,
order or direction in the nature of mandamus directing
the respondents Nos.1 to 3 to pay salary of the
petitioners on equal footing as that of similarly
situated Government employees in ITI regularly and
for that purpose issue necessary orders.
E) Issue writ of mandamus or any other appropriate writ,
order or direction in the nature of mandamus directing
the respondent Nos.1 to 3 to regularize the services
of petitioners since the date of their appointment by
giving all service benefits with continuity of service as
per similarly situated employees in same or similar
Government ITI and for that purpose issue necessary
orders.
2. Heard. Original petitioners were 30 in number.
Pending the petition, petitioners No.13, 17, 20 and 30 passed
away. Their legal representatives have been brought on
record. For the sake of convenience, the L.Rs. and the
petitioners are referred as “the petitioners”.
3. The respondents No.1 to 3 are the officials of the
State Government (for short the State). Respondent No.4 was
the Educational Society, based at Shahajahanandnagar,
Kopargaon, District Ahmednagar. The respondent No.5 was
the Principal of the Industrial Training Institute (ITI) run by
respondent No.4 educational society.
Writ Petition No.2821/2010
:: 8 ::
4. The petitioners claim to have joined the services on
various posts with the educational institute. They claim to
have been appointed during the period from 1986 to 1996,
after following due procedure of law. The petitioners were
teaching and non-teaching staff in the cadre of Class III and
Class IV employees of the ITI. Initially, their appointments
were on temporary basis. They claim to have been made
permanent on completion of probation. The petitioners claim
to have been rendering services ever since their appointments.
5. It is the case of the petitioners that, the State took a
policy decision to start ITI in each Taluka. An agreement was
entered into between the State, the educational institute on
one hand and the owner of the land (respondent No.4 Society)
on the other. The State agreed to take over the ITI. A tri-party
agreement came to be executed amongst them on 24/2/2004.
The State granted provisional sanction on 11/10/2002 for
transfer of the management of the ITI. Vide letter dated
29/4/2003, it granted permanent sanction for transfer of the ITI
to the State. Salary to be paid to the petitioners was also
quantified. The State agreed to create posts and absorb the
Writ Petition No.2821/2010
:: 9 ::
petitioners thereon.
6. Since the State did not keep its word of creation of
the posts for absorption of the petitioners, the petitioners had
filed a Writ Petition and consequential proceedings as well. A
reference thereto would be made a little later. Since nothing
material could be fructified, the petitioners filed the present
petition.
7. The respondent- State, by filing affidavit-in-reply,
contested the Writ Petition on various amongst other grounds.
A reference thereto would be made while adverting to the oral
submissions made by learned Special Counsel.
8. The learned Senior Advocate appearing for the
petitioners first took us through the chronology of events and
correspondence made by the State authorities. It was
specifically submitted that the petitioners were not parties to
the tri-party agreement. The terms and conditions of the
agreement would, therefore, not be binding on the petitioners.
He would further submit that, the petitioners were duly
appointed as found to have been qualified for the post. The
Writ Petition No.2821/2010
:: 10 ::
State Government, after taking over the ITI, started four more
courses in addition to 16 courses which were being conducted
by the ITI. Besides the petitioners, there are other staff
members appointed by the State Government. Those staff
members render the job/s equal to the nature of the job/s
rendered by the petitioners. These State Government
employees are paid salary and various perks in terms of the
respective Pay Commission recommendations. The
petitioners, in view of the principle of “equal pay for equal
work”, are entitled for the salary and perks equal to that of the
pay of those employees. The learned Senior Advocate for the
petitioners would further submit that, right to equal pay for
equal work has been crystalised as a fundamental right. He
would further submit that, the State Government has
regularised the appointments of the employees of some other
Departments. Government Resolutions (G.Rs.) issued in that
regard have been placed on record. He would further submit
that, the petitioners have rendered more than 15 years of
service. On the ground of alternate remedy is concerned,
learned Senior Advocate would submit that the Writ Petition
has been admitted and it would, therefore, not be in the fitness
Writ Petition No.2821/2010
:: 11 ::
of things now to drive the petitioners to avail alternate equally
efficacious remedy. He would, therefore, urge for allowing the
Writ Petition as prayed for. The learned Senior Advocate for
petitioners relied on the following authorities :
& ors. [ (2023) 2 High Court Cases (Bom) 258 ]
(2) State of Punjab & ors. Vs. Jagjit Singh & ors.
(3) Grih Kalyan Kendra Workers’ Union Vs. Union of
India & ors. [ AIR 1991 SC 1173 ]
(4) State of W.B. Vs. Pantha Chaterjee & ors.
AIR 2003 SC 3569
(5) State of Tripura & ors. Vs. K.K. Roy
2004 AIR SCW 1
(6) Central Inland Water Transport Corpn. Ltd. & anr.
Vs. Brojo Nath Ganguly & anr. [AIR 1986 SC 1571]
(7) Genpact India Pvt. Ltd. Vs. Deputy Commissioner
of Income Tax & ors. [ MANU/SC/1610/2019]
9. The learned Special Counsel for the respondent-
State would, on the other hand, submit that the petitioner No.1
Balasaheb s/o Punjahari Shinde signed the tri-party
agreement. The petitioners suppressed the fact that they had
executed consent letters-cum-undertakings to render their
Writ Petition No.2821/2010
:: 12 ::
services on contract basis. The consent letters executed by
the petitioners have all been placed on record along with the
affidavit-in-reply. The learned Special Counsel would further
submit that, there is no material to indicate the petitioners were
appointed by following due procedure of law. There is no
document indicating the concerned officer of the Education
Department to have granted approval to the appointments of
the petitioners. He would further submit that, even the
petitioners had filed Writ Petition No.6023/2006 for
enforcement of the terms of the tri-party agreement. The
learned Special Counsel would mean to say that, the
petitioners are now estopped. The petitioners agreed to
render the services on the salary quantified in terms of the tri-
party agreement. He would further submit that, the services of
the petitioners have in fact been terminated. Having been
conscious of their termination, the petitioners have suppressed
the said fact. He would further submit that, continuation of the
petitioners in service till date is only on the basis of interim
order passed by this Court. According to the learned Special
Counsel, since the petitioners claim to have been in
Government service, they have an equally efficacious alternate
Writ Petition No.2821/2010
:: 13 ::
remedy of approaching the Administrative Tribunal to have
their grievance redressed. He would further submit that, the
State is not under obligation to pay the petitioners equal pay
for equal work. According to him, those who have been paid
the salary in terms of Pay Commission recommendations,
were duly appointed. It is not a case of regular appointment of
petitioners. The learned Special Counsel would further submit
that, the State Government has returned the land and the
building to its original owner, which was taken over pursuant to
the tri-party agreement dated 24/2/2004. The owner of the
land has been paid yearly rent. The petitioners could not be
said to have been similarly placed to that of the employees
appointed by following due process. In support of his
submissions, the learned Senior Counsel has relied on the
following authorities :
(1) Secretary, State of Karnataka & ors. Vs. Umadevi (3)
& ors. [ 2006) 4 SCC 1(2) Mohd. Ashif & ors. Vs. State of Bihar & ors.
(3) Ramkrishna Chauhan Vs. Seth D.M. High School
& ors. [ 2013 (2) Mh.L.J. 713 ](4) L. Chandra Kumar Vs. Union of India & ors.
1997 (0) BCI 3
Writ Petition No.2821/2010
:: 14 ::
10. We have considered the submissions advanced.
Perused the documents on record. Let us now address the
issues raised in this Writ Petition.
Equally efficacious alternate remedy:
11. The learned Senior Advocate for the petitioners
relied on the judgment in the case of Rajesh Mankar (supra) to
submit that, since the Writ Petition has been admitted, the
same needs to he beard on merits.
12. This may not be the correct legal position in view of
the judgment of the Apex Court in case of Genpact India Pvt.
Ltd. (supra), wherein it has been observed in paragraph
Nos.15 and 16 as follows :
15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of alternative
remedy i.e. where the statutory authority has not acted
in accordance with the provisions of the enactment in
question, or in defiance of the fundamental principles
of judicial procedure, or has resorted to invoke the
provisions which are repealed, or when an order has
been passed in total violation of the principles of
natural justice, the proposition laid down in Thansingh
Nathmal case MANU/SC/0255/1964 : AIR 1964 SC
1419, Titaghur Paper Mills case MANU/SC/0317/1983
: (1983) 2 SCC 433 : 1983 SCC (Tax) 131 and other
Writ Petition No.2821/2010
:: 15 ::
similar judgments that the High Court will not
entertain a petition under article 226 of the
Constitution if an effective alternative remedy is
available to the aggrieved person or the statute under
which the action complained of has been taken itself
contains a mechanism for redressal of grievance still
holds the field. Therefore, when a statutory forum is
created by law for redressal of grievances, a writ
petition should not be entertained ignoring the
statutory dispensation.”
Recently, in Authorised Officer, State Bank of
Travancore & Anr. v. Mathew K.C.
MANU/SC/0054/2018 : (2018) 3 SCC 85, the
principles laid down in Chhabil Dass Agarwal MANU/
SC/0802/2013 : (2014) 1 SCC 603 were reiterated as
under:
“The discretionary jurisdiction under Article 226 is not
absolute but has to be exercised judiciously in the
given facts of a case and in accordance with law. The
normal rule is that a writ petition under Article 226 of
the Constitution ought not to be entertained if alternate
statutory remedies are available, except in cases falling
within the well-defined exceptions as observed in CIT
v. Chhabil Dass Agrawal [MANU/SC/0802/2013 :
(2014) 1 SCC 603 … ].
16. We do not, therefore, find any infirmity in the
approach adopted by the High Court in refusing to
entertain the Writ Petition. The submission that once
the threshold was crossed despite the preliminary
objection being raised, the High Court ought not to
have considered the issue regarding alternate remedy,
may not be correct. The first order dated 25.01.2017
passed by the High Court did record the preliminary
objection but was prima facie of the view that the
transactions defined in Section 115QA were initially
confined only to those covered by Section 77A of the
Writ Petition No.2821/2010
:: 16 ::
Companies Act. Therefore, without rejecting the
preliminary objection, notice was issued in the matter.
The subsequent order undoubtedly made the earlier
interim order absolute. However, the preliminary
objection having not been dealt with and disposed of,
the matter was still at large.
In State of U.P. v. U.P. Rajya Khanij Vikas Nigam
Sangharsh Samiti and others MANU/SC/7603/2008 :
(2008) 12 SCC 675 this Court dealt with an issue
whether after admission, the Writ Petition could not be
dismissed on the ground of alternate remedy. The
submission was considered by this Court as under:
“38. With respect to the learned Judge, it is neither the
legal position nor such a proposition has been laid
down in Suresh Chandra Tewari MANU/UP/0076/
1992 : AIR 1992 All 331 that once a petition is
admitted, it cannot be dismissed on the ground of
alternative remedy. It is no doubt correct that in the
headnote of All India Reporter (p. 331), it is stated that
“petition cannot be rejected on the ground of
availability of alternative remedy of filing appeal”. But
it has not been so held in the actual decision of the
Court. The relevant para 2 of the decision reads thus:
(Suresh Chandra Tewari case, AIR p. 331).
“2. At the time of hearing of this petition a threshold
question, as to its maintainability was raised on the
ground that the impugned order was an appealable one
and, therefore, before approaching this Court the
petitioner should have approached the appellate
authority. Though there is much substance in the above
contention, we do not feel inclined to reject this
petition on the ground of alternative remedy having
regard to the fact that the petition has been entertained
and an interim order passed.”
Writ Petition No.2821/2010
:: 17 ::
Even otherwise, the learned Judge was not right in law.
True it is that issuance of rule nisi or passing of interim
orders is a relevant consideration for not dismissing a
petition if it appears to the High Court that the matter
could be decided by a writ court. It has been so held
even by this Court in several cases that even if
alternative remedy is available, it cannot be held that a
writ petition is not maintainable. In our judgment,
however, it cannot be laid down as a proposition of law
that once a petition is admitted, it could never be
dismissed on the ground of alternative remedy. If such
bald contention is upheld, even this Court cannot order
dismissal of a writ petition which ought not to have
been entertained by the High Court under Article 226
of the Constitution in view of availability of alternative
and equally efficacious remedy to the aggrieved party,
once the High Court has entertained a writ petition
albeit wrongly and granted the relief to the petitioner.
13. The legal position is that, Article 226 confers very
wide powers in the matter of issuing writs on the High Courts.
The remedy of writ is absolutely discretionary in character.
The Court, in extraordinary circumstances, may exercise the
powers if it comes to the conclusion that there has been a
breach of the principles of natural justice. The ground of
objection raised by the learned Special Counsel for the
respondent- State is not without exception. The facts of the
present case indicate the petitioners have been agitating their
claim since 2006. Earlier the Writ Petition was filed. Therein,
no such objection, as has been raised herein, was urged. It is
Writ Petition No.2821/2010
:: 18 ::
only in the additional affidavit-in-reply filed in April 2025, the
said ground has been raised. This Court has granted interim
relief in the petition. In these peculiar facts and circumstances
of the case, it would not be legitimate to drive the petitioners to
avail the alternate remedy and start de novo. We, therefore,
propose to decide the Writ Petition on its own merit.
Direction for creation of posts and absorption of the
petitioners:
14. Way back in 1984, the educational institute started
ITI at Kopargaon. The petitioners were appointed by the
educational institute on various dates. A tri-party agreement
was executed on 24/2/2004 between the State on one hand
and the educational institute and the owner of the land on the
other. Although it has been averred in the petition that the
petitioners are duly qualified and have been recruited by
following due procedure of law, no document has been placed
on record in support of the said claim. The terms of the tri-
party agreement, relevant for deciding this Writ Petition are
referred to and reproduced below in verbatim :
And Whereas the Government has on the faith of the
Writ Petition No.2821/2010
:: 19 ::
statement and representation made by the President
Sanjivani Rural Education Society has accepted his
application and agreed to transfer the Sanjivani
Industrial Training Centre to Government by merging it
into existing Government Industrial Training Institute.
Absorption Out of 33 teaching and non-teaching
of staff post of Sanjivani ITC. The post of
Principal, Workshop Attendant,
Storekeeper, these 3 posts will not be
absorbed in Government. While
remaining 30 posts along with
working staff on that post will be
absorbed in Government on contract
basis. Each individual staff has to
execute an agreement regarding his
willingness to work on contract basis.
During 2004-05 only 8 units will be
started and only 50% staff of related
trades will be absorbed on contract
basis. Depending upon response of
the students remaining 8 units will be
started in 2005-06 and remaining50%
staff will be absorbed at that time.
Claims of The absorbed staff will not be given
Government any benefits of Government service
Service : including leave, encashment of leave,
medical facilities, and pension/
retirement benefits etc. They will be
paid only a fixed amount as described
above. The services of absorbed staff
will be of purely temporary in nature
and they will not have any right of
Government service or continuation.
Their services may be terminated
giving one month notice.
15. In terms of tri-party agreement, the State
Writ Petition No.2821/2010
:: 20 ::
Government took over the ITI. It is true that, the petitioners are
not parties to the tri-party agreement. The fact is, however,
that, the petitioners had filed Writ Petition No.6023/2006 for
enforcement of the terms of the tri-party agreement. The
petitioners had thus agreed for their absorption on contract
basis. There is a communication indicating the State to have
created the posts. The question is, whether direction for
absorption of the petitioners thereon could be given. It is
reiterated that, there is nothing on record to indicate the
petitioners to have been duly appointed nor is there anything to
indicate the State to have had undertaken to appoint the
petitioners permanently. Reliance is placed on the G.Rs.
dated 8/3/1999, 22/1/2009 and 8/7/2014 indicating the State to
have taken decision to make certain employees permanent.
The petitioners will have to make out their case in their own
right. In the petition, there is no reference to these G.Rs.
According to the State, those employees have been
regularised since their appointments were by following due
process of law and they held the requisite qualification. The
same is not the case herein.
Writ Petition No.2821/2010
:: 21 ::
16. The Constitution Bench of the Apex Court in case
of Umadevi & ors. (3) (supra), has observed :-
4. But, sometimes this process is not adhered to
and the Constitutional scheme of public employment
is by-passed. The Union, the States, their
departments and instrumentalities 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
compete for the post. It has also led to persons who
get employed, without the following of a regular
procedure or even through the backdoor or on daily
wages, approaching Courts, seeking directions to
make them permanent in their posts and to prevent
regular recruitment to the concerned posts. The
Courts have not always kept the legal aspects in
mind and have occasionally even stayed the regular
process of employment being set in motion and in
some cases, even directed that these illegal, irregular
or improper entrants be absorbed into service. A
class of employment which can only be called
‘litigious employment’, has risen like a phoenix
seriously impairing the constitutional scheme. Such
orders are passed apparently in exercise of the wide
powers under Article 226 of the Constitution of
India. Whether the wide powers under Article 226 of
the Constitution are intended to be used for a
purpose certain to defeat the concept of social justice
and equal opportunity for all, subject to affirmative
action in the matter of public employment as
recognized by our Constitution, has to be seriously
pondered over. It is time, that Courts desist from
Writ Petition No.2821/2010
:: 22 ::
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. The passing of orders for continuance,
tends to defeat the very Constitutional scheme of
public employment. It has to be emphasized that this
is not the role envisaged for High Courts in the
scheme of things and their wide powers under
Article 226 of the Constitution of India are not
intended to be used for the purpose of perpetuating
illegalities, irregularities or improprieties or for
scuttling the whole scheme of public employment.
Its role as the sentinel and as the guardian of equal
rights protection should not be forgotten.
5. ……
6. The power of a State as an employer is more
limited than that of a private employer inasmuch as
it is subjected to constitutional limitations and
cannot be exercised arbitrarily (See Basu’s Shorter
Constitution of India). Article 309 of the
Constitution gives the Government the power to
frame rules for the purpose of laying down the
conditions of service and recruitment of persons to
be appointed to public services and posts in
connection with the affairs of the Union or any of
the States. That Article contemplates the drawing up
of a procedure and rules to regulate the recruitment
and regulate the service conditions of appointees
appointed to public posts. It is well acknowledged
that because of this, the entire process of recruitment
for services is controlled by detailed procedures
which specify the necessary qualifications, the mode
of appointment etc. If rules have been made under
Article 309 of the Constitution, then the
Government can make appointments only in
accordance with the rules. The State is meant to be a
model employer. The Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959
Writ Petition No.2821/2010
:: 23 ::
was enacted to ensure equal opportunity for
employment seekers. Though this Act may not
oblige an employer to employ only those persons
who have been sponsored by employment
exchanges, it places an obligation on the employer
to notify the vacancies that may arise in the various
departments and for filling up of those vacancies,
based on a procedure. Normally, statutory rules are
framed under the authority of law governing
employment. It is recognized that no government
order, notification or circular can be substituted for
the statutory rules framed under the authority of law.
This is because, following any other course could be
disastrous inasmuch as it will deprive the security of
tenure and the right of equality conferred on civil
servants under the Constitutional scheme. It may
even amount to negating the accepted service
jurisprudence. Therefore, when statutory rules are
framed under Article 309 of the Constitution which
are exhaustive, the only fair means to adopt is to
make appointments based on the rules so framed.
………….
12. In spite of this scheme, there may be
occasions when the sovereign State or its
instrumentalities will have to employ persons, in
posts which are temporary, on daily wages, as
additional hands or taking them in without following
the required procedure, to discharge the duties in
respect of the posts that are sanctioned and that are
required to be filled in terms of the relevant
procedure established by the Constitution or for
work in temporary posts or projects that are not
needed permanently. This right of the Union or of
the State Government cannot but be recognized and
there is nothing in the Constitution which prohibits
such engaging of persons temporarily or on daily
wages, to meet the needs of the situation. But the
fact that such engagements are resorted to, cannot be
used to defeat the very scheme of public
Writ Petition No.2821/2010
:: 24 ::
employment. Nor can a court say that the Union or
the State Governments do not have the right to
engage persons in various capacities for a duration
or until the work in a particular project is completed.
Once this right of the Government is recognized and
the mandate of the constitutional requirement for
public employment is respected, there cannot be
much difficulty in coming to the conclusion that it is
ordinarily not proper for the courts whether acting
under Article 226 of the Constitution or under
Article 32 of the Constitution, to direct absorption in
permanent employment of those who have been
engaged without following a due process of
selection as envisaged by the constitutional
scheme.”
………..
17. We have already indicated the constitutional
scheme of public employment in this country, and
the executive, or for that matter the Court, in
appropriate cases, would have only the right to
regularize an appointment made after following the
due procedure, even though a non-fundamental
element of that process or procedure has not been
followed. This right of the executive and that of the
court, would not extend to the executive or the court
being in a position to direct that an appointment
made in clear violation of the constitutional scheme,
and the statutory rules made in that behalf, can be
treated as permanent or can be directed to be treated
as permanent.
18. Without keeping the above distinction in mind
and without discussion of the law on the question or
the effect of the directions on the constitutional
scheme of appointment, this Court in Daily Rated
Casual Labour Vs. Union of India & Ors. (1988 (1)
SCC 122) directed the Government to frame a
scheme for absorption of daily rated casual labourers
continuously working in the Posts and Telegraphs
Writ Petition No.2821/2010
:: 25 ::
Department for more than one year. This Court
seems to have been swayed by the idea that India is
a socialist republic and that implied the existence of
certain important obligations which the State had to
discharge. While it might be one thing to say that the
daily rated workers, doing the identical work, had to
be paid the wages that were being paid to those who
are regularly appointed and are doing the same
work, it would be quite a different thing to say that a
socialist republic and its executive, is bound to give
permanence to all those who are employed as casual
labourers or temporary hands and that too without a
process of selection or without following the
mandate of the Constitution and the laws made
thereunder concerning public employment. The
same approach was made in Bhagwati Prasad Vs.
Delhi State Mineral Development Corporation (1989
Suppl. (2) SCR 513) where this Court directed
regularization of daily rated workers in phases and
in accordance with seniority.
……………..
45. While directing that appointments, temporary
or casual, be regularized or made permanent, the
courts are swayed by the fact that the person
concerned has worked for some time and in some
cases for a considerable length of time. It is not as if
the person who accepts an engagement either
temporary or casual in nature, is not aware of the
nature of his employment. He accepts the
employment with open eyes. It may be true that he
is not in a position to bargain — not at arm’s length —
since he might have been searching for some
employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground alone,
it would not be appropriate to jettison the
constitutional scheme of appointment and to take the
view that a person who has temporarily or casually
got employed should be directed to be continued
permanently. By doing so, it will be creating another
Writ Petition No.2821/2010
:: 26 ::
mode of public appointment which is not
permissible. If the court were to avoid a contractual
employment of this nature on the ground that the
parties were not having equal bargaining power, that
too would not enable the court to grant any relief to
that employee. A total embargo on 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 get
employment temporarily, contractually or casually,
would not be getting even that employment when
securing of such employment brings at least some
succor to them. After all, innumerable citizens of our
vast country are in search of employment and one is
not compelled to accept a casual or temporary
employment if one is not inclined to go in for such
an employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person
concerned knows the nature of his employment. It is
not an appointment to a post in the real sense of the
term. The claim acquired by him in the post in
which he is temporarily employed or the interest in
that post cannot be considered to be of such a
magnitude as to enable the giving up of the
procedure established, for making regular
appointments to available posts in the services of the
State. The argument that since one has been working
for some time in the post, it will not be just to
discontinue him, even though he was aware of the
nature of the employment when he first took it up, is
not (sic) one that would enable the jettisoning of the
procedure established by law for public employment
and would have to fail when tested on the
touchstone of constitutionality and equality of
opportunity enshrined in Article 14 of the
Constitution.
Writ Petition No.2821/2010
:: 27 ::
17. In view of the Constitution Bench judgment of the
Apex Court, referred to hereinabove, we do not propose to
refer to the other authorities relied on by the learned Special
Counsel for the respondent- State on the same issue.
18. Since the record indicate the petitioners to have
agreed to serve on contract basis and there being no material
to indicate the State to have agreed to make them permanent,
there is also no record to indicate the petitioners to have been
appointed by following due procedure, we are not inclined to
grant the petitioners relief of absorption in service.
PAY :
19. In most of the Talukas and in each District, the
State runs ITI. Almost all the teaching and non-teaching staff
of the other ITIs. and even the staff members, other than the
petitioners, of the ITI in question appear to have been
appointed by the State and paid salary and other perks in
terms of respective Pay Commission recommendations.
20. It is true that, in terms of the tri-party agreement
Writ Petition No.2821/2010
:: 28 ::
and even the communication by the State, the salary of the
petitioners way back in 2004 was as under :
Peon : 2500/-. Junior Clerk: 3000/-. Senior Clerk: 3500/-. Head Clerk: 4000 /-.
The same continued till this Court passed interim
order dated 21/10/2021.
There is no clause at all to indicate hike in the pay
of the petitioners commensurate with inflation. Article 39
clause (d) of the Constitution of India provides that, the State
shall, in particular, direct its policy towards securing that there
is equal pay for equal work for both men and women.
21. The Apex Court, in case of Jagjit Singh (supra),
held :
A. Service Law – Pay – Parity in pay/ pay scale –
Principle of “equal pay for equal work” – Applicability
to temporary employees – Entitlement of temporary
employees to minimum regular pay scale (along with
dearness allowance as revised from time to time) on
account of their performing same duties as discharged
by regular employees against sanctioned posts,
Writ Petition No.2821/2010
:: 29 ::
affirmed. –
Held, principle of “equal pay for equal work”
expounded through various decisions of Supreme Court
constitutes law declared by Supreme Court, which is
binding on all courts in India – As such, it is also
applicable to temporary employees performing the same
duties and responsibilities as regular employees – It is
fallacious to determine artificial parameters to deny
fruits of labour – More so, in a welfare State – any act
of paying less wages as compared to others similarly
situated, constitutes act of exploitative enslavement
emerging out of domineering position of the State –
Thus held, temporary employees possessing requisite
qualifications and appointed against posts which were
also available in regular cadre, performing similar
duties and responsibilities as being discharged by
regular employees holding same/ corresponding posts,
were entitled to claim wages on a par with minimum
pay scale of regular employees holding the same posts –
Constitution of India, Arts. 14 and 16.
B. Service Law – Pay – Parity in pay/ pay scale –
Principle of “equal pay for equal work” – Parameters for
applicability of – Summarised, on extensive survey of
case law.
– Held, (i) claimant must prove that subject post
occupied by him requires him to discharge equal work
of equal value and sensitivity as reference post; (ii)
mere fact that subject post occupied by claimant is in
different department vis-a-vis reference post
inconsequential; (iii) principle cannot be automatically
invoked merely because subject and reference post have
same nomenclature; (iv) differentiation of pay scales for
posts with difference in degree of responsibility,
reliability and confidentiality fall within realm of valid
classification justifying pay differentiation; (v) persons
performing similar functions, duties and responsibilities
can be placed in different pay scales such as “selection
grade” in same post but such difference must have
Writ Petition No.2821/2010
:: 30 ::
legitimate foundation such as merit, seniority, etc; (vi)
reference post with which parity is claimed must be in
same hierarchy as subject post; (vii) principle
inapplicable where subject post and reference post are
in different establishments having different management
or even where establishments are in different
geographical locations though owned by same master;
(viii) priority given to different types of post under
prevalent Government policy can be relevant factor for
placing different posts under different scales; (ix)
principle inapplicable where differential higher pay
scale is extended to persons discharging same duties
and holding same designation with objective of
ameliorating stagnation of decrease of lack of
promotional avenues.
D. Service Law – Pay – Parity in pay/ pay scale –
Classification of temporary employees on basis of
length of service – Held, is violative of Arts. 14 and 16
of the Constitution and hence unsustainable.
– On facts held, categorisation of temporary employees
who were in continuous service (with notional breaks)
for 10 years or more for granting benefit of minimum
regular pay scale by Full Bench of High Court
unsustainable and liable to be set aside – Constitution of
India, Arts. 14 and 16.
22. The Apex Court has referred and relied on number
of its judgments on similar issue and taking the same view. In
para 51.1, it has been observed :
“51.1 It is apparent, that this Court in State of Punjab
v. Surjit Singh (2009) 9 SCC 514, did hold, that the
determination rendered in paragraph 55 of the
judgment in case of State of Karnataka V. Umadevi (3)
(2006) 4 SCC 1, was in exercise of the power vested in
Writ Petition No.2821/2010
:: 31 ::
this Court, under Article 142 of the Constitution of
India. But the above observation does not lead, to the
conclusion or the inference, that the principle of ‘equal
pay for equal work’ is not applicable to temporary
employees. In fact, there is a positive take-away for the
temporary employees. The Constitution Bench would,
in the above situation, be deemed to have concluded,
that to do complete justice to the cause of temporary
employees, they should be paid the minimum wage of
a regular employee, discharging the same duties. It
needs to be noticed, that on the subject of pay parity,
the findings recorded by this Court in the Umadevi (3)
case, were limited to the conclusions recorded in
paragraph 55 thereof (which we have dealt with above,
while dealing with the case law, on the principle of
“equal pay for equal work”).
23. In case of Grih Kalyan Kendra Workers’ Union
(supra), the Apex Court held :
12, Art.39(d) – Equal pay for equal work – It has
assumed status of fundamental right – Is applicable
with full vigour to establishment which is
instrumentality of State.
24. In case of Olga Tellis & ors. Vs. Bombay
Municipal Corporation & ors. (1985) 3 SCC 545, it has been
held :
“No individual can barter away the freedoms conferred
upon him by the Constitution. A concession made by
him in a proceeding, whether under a mistake of law or
otherwise, that he does not possess or will not enforce
Writ Petition No.2821/2010
:: 32 ::
any particular fundamental right, cannot create an
estoppel against him in that or any subsequent
proceeding. Such concession, if enforced, would defeat
the purpose of the Constitution.”
25. Moreover, in the judgment in case of Umadevi
(supra), relied on by learned Special Counsel for the
respondent – State, it is observed in para 18 as under :
“18. . . . While it might be one thing to say that the
daily rated workers, doing the identical work, had to
be paid the wages that were being paid to those who
are regularly appointed and are doing the same
work . . . . . .
44. The concept of “equal pay for equal work” is
different from the concept of conferring permanency
on those who have been appointed on ad hoc basis,
temporary basis, or based on no process of selection as
envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal
work and has laid down the parameters for the
application of that principle. The decisions are rested
on the concept of equality enshrined in our
Constitution in the light of the directive principles in
that behalf.”
26. It is true that, the State, vide its communication
dated 23/3/2010, seems to have terminated the services of the
petitioners. The matter has, however, a chequered history.
The State being a model employer, ought not to have resorted
to such action when it had in principle, agreed to absorb the
Writ Petition No.2821/2010
:: 33 ::
petitioners on contract basis. Even the State had created the
posts. The so called termination of services of the petitioners
is on the ground that they did not report on duty after executing
requisite undertaking. In the meanwhile, the petitioners had
approached this Court. Notice was issued. Head Master of
respondent No.5 (ITI) was present. That time no whisper was
made about termination of the services of the petitioners. It
appears that, the respondent State did not have a good ground
like misconduct or alike to issue order of termination of
services of the petitioners. This Court, vide interim order,
directed the State to allow the petitioners to resume duty and
not to insist upon execution of an undertaking. In the peculiar
facts and circumstances of the case, we find the said
communication terminating the petitioners’ services to be liable
to be set aside. It should not be taken that the State has no
right to terminate the services of the petitioners. It may
exercise its right on the touchstone of the legal principle.
27. We are concerned with the petitioners’ prayer for
equal pay for equal work. In the authorities referred to
hereinabove, it has been held that, the said claim has now
Writ Petition No.2821/2010
:: 34 ::
been crystalised into a constitutional right. Admittedly, for
more than 20 Trades, training is imparted to the students in the
ITI in question. Admittedly, there are other staff members/
employees (teaching and non-teaching) serving with the very
ITI. True, their services are transferable. Admittedly, they are
being paid salary in terms of Pay Commission
recommendations. There is no dispute that the petitioners
have been rendering the services equal to the services
rendered by those employees. It is true that, salaries of those
employees must have been different and even higher in view
of them to have rendered services more than the years
petitioners have put in.
28. A glaring circumstance needs to be referred to. Up
till recent past, the petitioners were paid salary in terms of the
quantum given in tri-party agreement. On 21/10/2021, this
Court passed the order. Paragraph Nos.4, 5 and 8 thereof
read thus :
“4. Shri. Dhorde, the learned Senior Advocate has
placed before us a chart of the salary of these petitioners,
which are ranging from Rs.5,500/- p.m. paid to the
‘Group Instructor’ to Rs.2,000/- p.m. to the ‘Peon’. The
said chart is taken on record and marked as ‘X-1’ for
Writ Petition No.2821/2010
:: 35 ::
identification.
5. A single glance at the above stated chart would
shock the conscience of any prudent person. As has been
said quite often, it is impossible for a person to keep his
mind, body and soul together and ensure the survival of
his family in a monthly income of Rs.2,000/- p.m. to
Rs.5,500/- p.m. Our judicial conscience is also shocked.
………..
8. We find favour with such recommendation
without prejudice to the rights and claims of the
petitioners set out in this petition. Having considered
their earlier salary scales which would surely not enable
a human being to survive even for a week, we find that
the proposal forwarded deserves urgent attention and
sanction.”
Thereafter only the State enhanced the salary of
the petitioners to some extent.
29. In view of the authorities relied on by the petitioners
to claim pay parity on the ground of the said right to have been
recognised as a constitutional right, we grant the petitioners
the said relief.
Ex-gratia payment to those who have passed away
pending the petition :
30. It is unfortunate that, four of the petitioners have
died in harness. In view of the contractual employment, their
Writ Petition No.2821/2010
:: 36 ::
legal representatives would not be entitled for the monetary
benefits and even other benefits as well which are paid to the
permanent employees. It would be travelling beyond our
powers to direct the State to pay the legal representatives of
the deceased employees a lumpsum amount towards ex-gratia
payment. We are, therefore, not inclined to grant such a
prayer or even other benefits which are available to the
permanent employees.
31. For all the aforesaid reasons, the Writ Petition
stands partly allowed in terms of the following order :
ORDER
(i) The Writ Petition is partly allowed. The communication
dated 23/3/2010 issued by the respondent No. is set aside.
(ii) The respondents No.1 to 3 are directed to pay the
petitioners salary on a par with minimum pay-scale of regular
employees (in the concerned I.T.I.) holding the same post/s
plus Dearness Allowance as has been/ may be revised from
time to time from the date of the petition to the date of this
order and shall continue to pay until they are in service
(iii) The amount payable to the deceased employees
Writ Petition No.2821/2010
:: 37 ::
(petitioners) be paid to their legal representatives (heirs) on
production of succession certificate.
(iv) The amount shall be paid within a period of six months
from the date of this order, failing which the amount shall carry
interest at the rate of 6% p.a. thereafter to the date of payment.
(v) Due set off be given of the amount/ salary paid to the
petitioners/ deposited with this Court.
Rule made absolute in above terms.
(SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.)
At this stage, learned Advocate for Respondents
No.1 to 3 & 5 urged for stay of this order. Since six months’
time has been granted for compliance of the order, we are not
inclined to grant stay.
(SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.)
fmp/-
[ad_2]
Source link