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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
BHARATI H. DANGRE, J.
Pandit Sandu Jadhav - Appellant
Versus
The Chief Executive Officer, Zilla Parishad, Aurangabad - Respondent
Writ Petition No.7985 of 2011
Decided on : 14-01-2022
MRTU and PULP Act, 1971 - Section 28(1) r/w Schedule 4 Item 3, 5 and 9 - Construction Supervisor - Unfair Labour Practice - Whether complainant has proved that respondents have engaged in unfair labour practice under Item 5 and 9 of MRTU and PULP Act - Held, Learned Judge has recorded that complainant was serving as a daily wager and thereafter he was appointed as a Muster Assistant and on completion of 5 years continuous service, he was taken on C.R.T.E. as per government policy - It is also recorded as an admitted fact that he was appointed as a 'Pump Operator' - Unification of various cadres and formation of new cadre of 'Civil Engineering Assistant' as a policy of State Government as contained in it's resolution, is also not disputed - Preface of resolution would indicate that Government did not intend to restrict scope of same only to 5 posts but intended that all those persons possessing technical knowledge and discharging various duties under whatever nomenclature available and known by, would be absorbed in post of 'Civil Engineering Assistant' - That is precise reason that recruitment rules are now amended by Act and which has been placed on record and it can be reflected in notification issued by Rural Development and Water Conservation Department thereby amending provisions contained in Maharashtra District Services (Recruitment) Rules - Rules now provide that any person holding any post, irrespective of his cadre, but has passed one year diploma in Civil Engineering Assistant or even any equivalent qualification, is held to be eligible to be appointed as 'Civil Engineering Assistant' - In wake of aforesaid, even if petitioner was extended benefit of amendment brought in force from 2014 since he was in service on 2006, he would have qualified himself to be absorbed on post of 'Civil Engineering Assistant', on bringing amendment in said rules - In light of said glaring fact, since after his appointment to post of 'Civil Engineering Assistant', by an order, petitioner has continuously rendered his services to Zilla Parishad as 'Civil Engineering Assistant' and accordingly being paid in pay scale applicable to said post - There is no reason why he shall not derive his pensionary benefits declaring that he has retired from the Zilla Parishad from post of 'Civil Engineering Assistant' - Petition allowed.
JUDGMENT :
1. Heard the learned counsel for the petitioner. The petitioner is aggrieved by the impugned judgment and order dated 23/09/2011 passed by the Industrial Court at Aurangabad in Complaint (ULP) No.69/2009, thereby dismissing his complaint. The petition, on being instituted in the year 2011, on the first date of it's hearing and to be precise on 12/10/2011, the following order came to be passed :-
2. Mr.Anand Chawre, learned counsel submits that after the judgment is delivered by the Industrial Court, the Industrial Court has continued the interim order passed earlier for three (3) weeks and the same is in force till 14.10.2011.
3. The interim order passed by the Industrial Court and operating till 14.10.2011 to continue till 09.11.2011."
While the petition came to be admitted on 14/02/2012, the interim order came to be continued and is in force till date. During the pendency of the writ petition, the petitioner has attained the age of superannuation and retired from service w.e.f. 30/04/2020. In the wake of the stay being operating in his favour and continued from time to time, at the time of his retirement, he continued to hold the post of 'Civil Engineering Assistant'. The learned counsel for the petitioner state that on account of pendency of the present writ petition, he has been granted provisional pension and he is deprived of the benefits of Regular Pension and post retiral benefits.
2. In order to appreciate the grievance of the petitioner, a brief background is necessary. The petitioner, Shri. Pandit Sandu Jadhav, was appointed as 'Muster Assistant' for the period of 3 months by an appointment order issued on 29/04/1987 by the Executive Engineer (Irrigation), Zilla Parishad, Aurangabad on payment of Rs.400/- per month. The appointment order states that the appointment was purely seasonal and shall be continued only till the work is available and will come to an end, either on expiry of the term of appointment or on the work under the project coming to an end, whichever occur earlier. The appointment of the petitioner continued on the said basis from year to year is not in dispute.
During the interregnum, the petitioner completed a certificate course of "Construction Supervisor" of one year duration and the Maharashtra State Board of Vocational Examinations, issued him a certificate certifying that he had passed the certificate examination held in April 2004 in First Class. It is pertinent to note that he cleared the said examination from the Government Technical High School Center Cum Industrial School.
3. Upon acquiring the said qualification, the petitioner sought benefit of the Government Resolution issued by the Rural Development and Water Conservation Department on 26/11/1997. The Government Resolution placed on record at page No.40 of the paper book under the signature of the Under Secretary of the State of Maharashtra in the said Department, declared that by exercising the powers available under the Maharashtra Zilla Parishad District Services (Recruitment) Rules, 1967 and in particular by invoking Rule 2(5) and Rule 2(7), the Government had declared that one year course in 'Construction Supervisor' shall be granted equivalence for the recruitment of the Jr.Engineering Assistant in Zilla Parishad either by nomination or by transfer. The said order came to be issued with the concurrence of the Higher Education Department of the State. The petitioner also place reliance upon another Government Resolution dated 20/05/1999 issued by the same department, which formulated the Rules regarding the creation of new cadre of 'Civil Engineering Assistant' by unification of various technical posts.
Careful reading of the said Government Resolution would reveal that in the Department, various persons were working in various technical and supervisory posts as set out in Schedule A appended to the said resolution and this included the post of Mist
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