Point of Law: Service Matter - Policy decision of Government - No sufficient and cogent reasons and grounds which would enable this Court to transgress the administrative power of the State Government by undertaking a judicial review.

JUDGMENT :

MANGESH S. PATIL, J.

1. Heard. Rule in both the Writ Petitions. It is made returnable forthwith. At the joint request of the parties, the petitions are heard finally at the stage of admission.

2. The petitioners in both these Writ Petitions are coming with following prayers:

Writ Petition No. 9868/2017

(C) By issuing writ of Certiorari or any other writ, order or direction in the like nature, the impugned order/communication dated 03.04.2017 issued by the Desk Officer, Urban Development Department, Mantralaya, Mumbai, may kindly be quashed and set aside.

(D) By issuing appropriate writ, order or direction in the like nature, the respondents be directed to make the petitioner employees permanent as per the judgment and order dated 18.02.1999 passed by the Ld. Member, Industrial Court, Ahmednagar on available vacant posts.

Writ Petition No. 10964/2017

(C) By issuing writ of Certiorari or any other writ, order or direction in the like nature, the impugned order/communication dated 07.01.2017 issued by the Desk Officer, Urban Development Department, Mantralaya, Mumbai, may kindly be quashed and set aside.

(D) By issuing appropriate writ, order or direction in the like nature, the respondents be directed to make the petitioner employees permanent as per the judgment and order dated 17.07.1998 passed by the Ld. Member, Industrial Court, Ahmednagar on available vacant posts.

3. The limited facts which are necessary to be mentioned are as follows:

(i) The petitioners were working with the respondent No. 3 - Municipal Council which was subsequently transformed into a Corporation under the Maharashtra Municipal Corporation Act were working on daily wages. Having completed 240 days in a calendar year but were continued for years together, filed complaints with the Industrial Court under Section 28(1) read with Item Nos. 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter the ULP Act) seeking permanency and consequential benefits. The Industrial Court allowed the complaints by separate judgments dated 18.02.1999 and 17.07.1998 respectively. The respondent No. 3 Corporation challenged these judgments and orders before this Court in Writ Petition Nos. 3333/1999 and 3339/1999. The Writ Petitions were admitted but operation of the judgments of the Industrial Court were not stayed.

(ii).........(a) In both the Writ Petitions the in charge Assistant Commissioner of the respondent Corporation filed separate affidavits. In Writ Petition No. 3333/1999 in his affidavit he stated that out of 40 employees only 3 were in service and the rest were not in service for more than 10 to 15 years.

(b) In affidavit filed in Writ Petition No. 3339/1999 he submitted that due to sanction of 305 post by the Directorate of Municipal Administration, out of 336 employees, only 212 employees were made permanent. It was also mentioned that 117 employees out of those 336 were not in service since long and had not reported to the duty.

(iii) A coordinate bench of this Court partly allowed both these writ petitions on 05.01.2017 and 08.09.2016 respectively holding that since the respondent No. 3 was a Municipal Corporation could not have itself created posts and therefore it could not have been held guilty of any unfair labour practice. The judgments of the Industrial court were modified with following observations in paragraph No. 7 and 15 of the Writ Petition No. 3339/1999 and Writ Petition No. 3333/1999 respectively which are relevant for decisions of the present Writ Petitions are as under:

Writ Petition No. 3339/1999

7. The impugned common judgment of the Industrial Court dated 17.1.1998 stands modified as under:

“(A) The complaints are partly allowed.

(B) There shall be no declaration of ULP under Item 9 of Schedule IV against the petitioner.

(C) The petitioner shall forward the proposals of those 117 complainants, mentioned in Annexure X-4 to the affidavit dated 10.3.2016 of Shri Ashok D