Ashok Yadav Kamble vs State of Maharashtra & Ors.

Heard. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.

This Petition is filed praying therein to quash and set aside the order dated 27.06.2013 issued by the Commissioner, Women and Child Development Department.

It is the case of the petitioner that respondent appointed the petitioner as Watchman on daily wages on permanent available work. The respondents are giving artificial work break of one day to the petitioner. The immediate superior of the petitioner forwarded a proposal of the petitioner for permanency to the respondent

nos.1 and 2, but it was pending as it is.

Even after 16 years, the respondents have not advanced permanency benefits to the petitioner, hence the petitioner approached Industrial Court by filing Complaint [ULP] No.38/2011. On 14.10.2011, by filing written statement, respondent opposed the claim of the petitioner. On 05.07.2012, the Industrial Court arrived at a conclusion that the respondent has unnecessarily kept the petitioner as temporary employee though the permanent work is available, but in stead of granting relief of permanency, directed respondent no.2 to decide the claim of the petitioner in regards to permanency. By its order dated 27.06.2013, respondent no.2 rejected the claim in respect of permanency.

It is further the case of the petitioner that the petitioner assailed the order of Industrial Court along with rejection of claim in respect of permanency

in Writ Petition No.9051/2013, the learned Single Judge considering the merits of the matter pleased to issue notices to the respondents. Thereafter, on 27.02.2014, to defeat the legitimate and legal claim of the petitioner, the respondents issued an advertisement No.1/2014 to fill in the post of Watchman on which the petitioner is working. The petitioner's application is rejected, on the ground that the age of the petitioner is barred.

On 20.03.2014, the petitioner filed Civil Application Stamp No.7642/2014 challenging an advertisement and praying for stay to the same. Thereafter, on 25.03.2014, the learned Single Judge in Writ Petition No. 9051/2013 recorded a finding that Circular dated 25.08.2005 cannot overwhelm finding of fact arrived by the Industrial Court on the basis of which the respondent has rejected the claim of permanency. The learned Single Judge further protected services of the petitioner and granted stay to fill in the post of Watchman for 8 weeks from the date of order with liberty to challenge the decision dated 27.06.2013 passed by the Commissioner, Women and Child Welfare Department, before appropriate Court. Hence this Petition.

Learned counsel appearing for the petitioner invites our attention to the judgment and order passed by the Industrial Court, Ahmednagar in complaint [ULP] No.38/2011 [Ashok Yadav Kamble Vs. Secretary, Maharashtra State & others], and also to the judgment and order passed by the learned Single Judge of this Court in Writ Petition No.9051/2013 [Ashok Yadav Kamble Vs. State of Maharashtra & others] and submits that, respondent no.4, before passing the impugned order, has not kept in view the order passed by the Industrial Court and the High Court.

It is submitted that, the petitioner is continuously discharging his duties as Watchman since the Year 1995; the Industrial Court has held that the respondents are involved in unfair labour practices. It is submitted that, due to more than 20 years service, the petitioner is entitled for the benefit of permanency and regularization, and therefore, the Petition deserves to be allowed.

On the other hand, learned AGP appearing for the respondent-State relying upon the affidavit in reply filed on behalf of respondent nos.1 to 4 submits that, the petitioner was appointed on ad-hoc basis and in view of the Circular dated 25th August, 2005, issued by the General Administration Department, the ad-hoc and daily wager employees, who have not been working on the sanctioned posts, cannot claim for permanency and regularization.

We have considered the submissions of the learned counsel appearing for the petitioner, and learned AGP appearing for the respondent-State. We have perused the grounds taken in the Petition, annexures thereto, and reply filed by the respondents, judgments and orders passed by the Industrial Court and learned Single Judge of this Court. Upon careful perusal of the documents placed on record, it appears that, the petitioner has rendered more than 20 years service; he is working as Watchman. It appears that, the respondents have given technical break in his service. The Industrial Court entertained the complaint filed by the petitioner and specifically observed in the order, as under:

"VERNACULAR MATTER OMITTED"

It further appears that, the petitioner herein filed Writ Petition No.9051/2013 [Ashok Yadav Kamble Vs. State of Maharashtra & others]. In the said Writ Petition, Civil Application Stamp No.7642 of 2014 was filed. It appears that, during pendency of the said Petition, respondents advertised the post of Watchman, therefore, the petitioner filed said Civil Application for amendment of the Petition. The Bench presided over by the learned Single Judge of this Court, by judgment and order dated 25th March, 2014 passed in Writ Petition No. 9051/2013 in para nos.7 and 8, held thus:

In the instant case, the Industrial Court has considered the pleadings of the respondents that they require the services of the petitioner, who has been working as a Watchman for more than 16 years, is eligible to be absorbed as a Peon as per the scheme of the respondents and that there is a permanent post of Peon available and vacant. So also the Industrial Court, by the impugned judgment, has directed the respondents to decide the proposal of the petitioner.

In these circumstances, I find that the circular dated 25/08/2005 cannot overwhelm the findings on facts arrived at by the Industrial Court.

On conjoint reading of the judgment of the Industrial Court, and learned Single Judge of this Court and in particular para nos.7 and 8 thereof, the petitioner has legitimate claim for the post of Watchman.

In that view of the matter, the impugned communication/order passed by respondent no.2 on 27th June, 2013, and further advertisement issued on 27th February, 2014, to fill up the post of Watchman, deserves to be quashed.

Accordingly, the Petition is allowed in terms of prayer clause-A, which reads as under:

A] By issuing appropriate writ, order, direction or any other appropriate order in the nature of writ, the Hon'ble High Court may be pleased to quash and set aside the order dated 27.6.2013 issued by the Commissioner, Women and Child Development Department;

Consequently, the advertisement issued on 27th February, 2014, also stands quashed and set aside. The respondents are directed to re-consider the claim of the petitioner afresh for permanency keeping in view directions issued by the Industrial Court and observations made by the learned

Single Judge referred herein above, as expeditiously as possible, however, within 4 months from today. The Petition is allowed on above terms, and the same stands disposed of accordingly.