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2022 Supreme(Bom) 1602
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SANDEEP V. MARNE, J.
The Chief Officer, Municipal Council, Jalna – Appellant
Versus
Shaikh Moinoddin S/o. Shaikh Yusufoddin – Respondent
Writ Petition No.10298 of 2014
Civil Application No.8611 of 2021
Decided on : 21-12-2022
Advocate Appeared:
For the Appellant :Mr. Ashok R. Tapse h/f. Mr. Vaibhav Deshmukh, Advocate
For the Respondent:Mr. Tabrezuddin R. Quadri i/by. Mr. M.N. Sayyed, Advocate
The central legal point established in the judgment is the significance of the staffing pattern sanctioned by the State Government in determining entitlement to a regular appointment.
Headnote:
Pump Operator - Municipal Council - 09.05.2005 - The court discussed the staffing pattern sanctioned by the State Government on 09.05.2005, which included only three regular posts of Pump Operator and 7 temporary posts. The court emphasized that the reduction of regular posts of Pump Operator meant there was no question of operating the post on which the respondent was directed to work. The judgment highlighted the concept of 'staffing pattern' and its significance in determining the entitlement to a regular appointment.
Fact of the Case:
The respondent, initially recruited as a Sweeper, was directed to work as a Pump Operator on a stop-gap arrangement due to the retirement of the previous operator. The Municipal Council denied his request for regular promotion to the post of Pump Operator based on the staffing pattern sanctioned by the State Government.
Finding of the Court:
The court found that the respondent was not entitled to the pay scale of the Pump Operator as he was never appointed or promoted to that position. The Industrial Court's decision to partly allow the respondent's complaint was set aside, and the writ petition was allowed.
Issues: The main issue revolved around the respondent's entitlement to the pay scale, wages, and arrears of the Pump Operator position, based on his temporary assignment and the staffing pattern sanctioned by the State Government.
Ratio Decidendi: The court's decision was based on the lack of regular appointment or promotion of the respondent to the Pump Operator position, as well as the significance of the staffing pattern sanctioned by the State Government in determining entitlement to a regular appointment.
Final Decision: The judgment and order passed by the Industrial Court were set aside, and the writ petition was allowed.
JUDGMENT :
Rule. Rule is made returnable forthwith. With the consent of the parties, matter is taken up for final hearing at the admission stage. Mr. Tabrezuddin R. Quadri, learned Advocate for respondent waives notice on behalf of respondent.
2. By this petition, petitioner - Municipal Council has challenged the judgment and order dated 04.08.2014 passed by Member, Industrial Court, Jalna, thereby partly allowing respondents Complaint (ULP) No.57 of 2007 and directing petitioner to fix the respondent in the pay scale of post of Pump Operator and to pay him wages and arrears.
3. The admitted facts are that respondent was recruited in the services of the Municipal Council, Jalna on the post of Sweeper on 19.12.1988. One Shri. L.P. Kulkarni was working on the post of Pump Operator on regular basis, who retired on attaining the age of superannuation sometime in March-2003. Therefore, by order dated 25.03.2003 the Chief Executive Officer of the Municipal Council directed respondent to work as Pump Operator in place of Shri. L.P. Kulkarni till further orders.
4. It appears that the staffing pattern for the Municipal Council was sanctioned by the State Government on 09.05.2005, under which the State Government sanctioned only three regular posts of Pump Operator and 7 posts were sanctioned on temporary basis. It appears that petitioner made a request for his regular promotion to the post of Pump Operator and by communication dated 25/29.08.2005, the Municipal Council turned down his request on the ground that as per the staffing pattern, no regular post of Pump Operator was available for his promotion.
5. On 21.03.2007 petitioner filed Complaint (ULP) No.57 of 2007 before Industrial Court, Jalna seeking a declaration that he is regular Pump Operator with effect from 25.02.2003 and that he should be paid pay-scale, wages, increments and arrears on that post from 25.02.2003. The complaint was resisted by the Municipal Council by filing his written-statement inter alia contending that respondent did not fulfill the eligibility criteria for appointment on the post of Pump Operator. The Municipal Council also pointed out that the manner in which respondent was directed to work on the post of Pump Operator on account of retirement of Mr. Kulkarni. The defence of staffing pattern was also raised.
6. The Industrial Court, by its judgment and order dated 04.08.2014, partly allowed respondent’s complaint and has directed petitioner - Municipal Council to fix the pay of the complainant as per the pay scale provided for the post of Pump Operator. It has further been directed to pay wages to him from the date of judgment as well as arrears within two months. It must be observed here that though respondent had claimed for a declaration that he is a regular Pump Operator with effect from 25.02.2003, such declaration does not seem to have been issued by the Industrial Court. Also the exact date from which the pay-scale of the post of Pump Operator is to be granted to respondent is also not specified in the order of the Industrial Court.
7. I have heard the learned counsels appearing for the parties and have perused the record of the case. It is undisputed position that the substantive appointment of respondent is on the post of Sweeper w.e.f. 19.12.1988. Vide letter dated 25.03.2003 a stop-gap arrangement was made whereby petitioner was directed to discharge the duties of the post of Pump Operator on account of vacation of the post due to retirement of Shri. L.P. Kulkarni. By no stretch of imagination can order dated 25.03.2003 be termed as the one appointing petitioner on the post of Pump Operator on regular basis. Petitioner-Municipal Council is a public body and appointments to various posts are governed by rules and regulations. Respondent did not make out any case before the Industrial Court that the post of Sweeper is a feeder post for promotion to the post of Pump Operator. He did not demonstrate before the Industrial Court as to what was the eligi
