IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10298 OF 2014 The Chief Officer, Municipal Council, Jalna, Tq. & Dist. Jalna. .. Petitioner Versus Shaikh Moinoddin s/o. Shaikh Yusufoddin Age : Major, Occu : Service, R/o. Old Jalna, Mastgad, Jalna, Tq. & Dist. Jalna. .. Respondent …

Mr. Ashok R. Tapse h/f. Mr. Vaibhav Deshmukh, Advocate for petitioner Mr. Tabrezuddin R. Quadri i/by. Mr. M.N. Sayyed, Advocate for respondent …

WITH CIVIL APPLICATION NO.8611 OF 2021 IN WRIT PETITION NO.10298 OF 2014 …

CORAM : SANDEEP V. MARNE, J.

DATE : 21-12-2022 ORAL 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