1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5791 OF 1997 Pune Municipal Corporation ) through the Municipal Commissioner, Municipal Corporation ) Building, Shivaji Nagar, Pune-411005 )..Petitioners Vs 1. Shri Umesh Rajaram Kavathekar ) 2. Shri Dhananjay Pandurang Page ) 3. Shri Ramesh Gulabrao Marane ) 4. Shri Praveen Gajanan Raje ) 5. Shri Vijay Dattatray Rahatekar ) 6. Shri Suresh Shankarrao Jagtap ) 7. Shri Ashok Anna Gaikwad ) 8. Shri Rajendra Bandu Jadhav ) 9. Shri Mukund Mahadeo Kokate ) 10.Shri Ganesh Prabhakar Buwa ) 11.Shri Raju Narayan Tayade ) 12.Shri Aslam Hussen Mujavar ) 13.Shri Mandar Prabhakar Shahane ) 14.Shri Ganesh Jagannath More ) 15.Shri Vijay Shankar Kolapkar ) 16.Shri Pandharinath Nivruti Kothavale ) through Mahatma Phule Samata Pratisthan, Plot No.11 ) New Timber Market, Pune-411 042 ) 17.State of Maharashtra )..Respondents ---- W I T H WRIT PETITION NO.5792 OF 1997 Pune Municipal Corporation ) through the Municipal Commissioner, Municipal Corporation ) Building, Shivaji Nagar, Pune-411 005 )..Petitioners V/s. 1 Shri Bhau Pandurang Dhende ) 2 Shri Ashok Sadashiv Mokashi ) 3 State of Maharashtra )..Respondents 2 Mr.R.S.Khadapkar for the petitioners. Mrs.Seema Sarnaik for the respondent nos.1 to 6. Mr.A.P. Vanasare AGP for the respondent/State. ---- Coram : R.S.MOHITE,J Date : 17th November, 2009. Judgment :- 1 Heard both parties and perused the record. Both the petitions have been filed by the Pune Municipal Corporation impugning a judgment and order passed by the Member, Industrial Court, Pune on 30.7.1997 allowing two complaints being complaint ULP Nos. 914/91 and 929/91 and giving further directions. The operative part of the impugned order is as follows :- “ 1 Complaints (ULP) Nos.914/91 and 929/91 are allowed 2 It is hereby declared that the respondent-corporation has committed unfair labour practice under Items 5, 6 & 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 3 The respondent-Corpn is hereby directed to desist from engaging in such unfair labour practice 4 The respondent-Corpn is further directed to make the complainants at Sr. Nos.1 to 15 & 17 in Complaint (ULP) No.914/94 and the complainants at Sr.Nos.3, 4 & 5 in Complaint (ULP) No.929/91 permanent in service by taking the necessary sanction from the Govt., with retrospective effect from the date of filing the complaints, i.e. From 1-8-1991, with all the 3 benefits of permanency 5 The respondent-Corpn is further directed to pay the arrears of wage-scales to all the above-said complainants equal to the wage-scales payable to the permanent employees of the respondent-Corpn within two months from the date of this order 6 No order as to costs.” 2 The brief facts of the case are that on 20.10.1987 the Standing Committee of the Pune Municipal Corporation considered the request made by the Pune Municipal Corporation vide its letter dated 15.10.1987 and resolved to accept the recommendations of the Municipal Commissioner asking for the appointments of the meter readers on contract basis. The resolution contemplated that such meter readers on contract basis may be suitable citizens and they would be appointed for the purpose of taking meter readings during holidays. The resolution lastly contemplated that such meter readers would be paid Rs.1 for each meter reading taken by them. 3 It is an admitted position that thereafter the respondents in these petitions were required to give a declaration in the following terms :- “ 1 that I will deposit an amount of Rs.100/- with the Corporation ; 2 that every month I will take atleast 300 meter readings or will take meter readings as per quota given by the department and will submit the report to the concerned authority in time ; 3 that I am aware that I will not get paid for incomplete or wrong work done 4 If I want to leave the work of meter reading in between, then I will give 4 atleast one months written notice ; 5 That I am aware that the candidate who has been served with a quit notice by the Municipal Corporation, will be liable to return all documentation regarding work done and give accounts before the period of the notice and it is only on doing so that the deposit will be returned; 6 If there are any complaints made by the citizens or if the work of any candidate is found unsuitable then the work entrusted to him can be taken away without giving him any notice ; 7 That I will do the work of meter reading and bill distribution honestly and will not disclose any information regarding the work whether written or oral to any person except to the concerned officer of the corporation ; 8 That I am aware that I have been appointed in view of the existing work and that if there is no work, then I can be terminated. 4 It is an admitted position that no separate appointment letter as such was issued to the respondents by the Pune Municipal Corporation. However, they started to do the work of water meter readings sometime in or about 1987. 5 The record indicates that there existed 38 sanctioned posts of water meter readers but these were occupied by regular water meter readers duly appointed. 6 In this background on 1.8.1991, two complaints came to be filed by the water meter readers appointed on contract basis in pursuance of resolution dated 20.10.1987. The 5 complaint ULP No.914/91 was filed by 18 such persons, whereas complaint ULP No.929/91 was filed by 6 such persons. Both the complaints were heard together and decided by the common impugned judgment and order referred to here-in-above. It appears from the judgment that the Counsel for the complainants in the two complaints had filed a pursis stating that the complainants at serial nos.16 & 18 in complaint ULP No.914/91 and complainants at serial nos.1, 2, 3 & 6 in ULP No.929/91 had left the services of Municipal Corporation. The Industrial Court therefore, granted relief of permanency against the remaining complainants. 7 Being aggrieved by the impugned judgment and order the present Writ Petitions came to be filed in October-1997. 8 It appears that pending the disposal of these petitions on 7.4.1998, 31 new posts of water meter readers came to be sanctioned and in the circumstances, all the petitioners who had been granted permanency were granted regular appointments by appointment orders dated 15.7.1998 w.e.f 7.4.1998. 9 After hearing both sides, I find that there is no dispute that on the date when the complaints were filed as also on the date when complaints were decided, there were 38 sanctioned posts of water meter readers, out of which 4 posts were vacant. It is clear from the record that these 38 posts were occupied by regular water meter readers. In the circumstances, if there were no sanctioned posts of water meter readers in existence in 1987, then it was not competent for the Industrial Court to grant the relief of permanency in favour of the complainants as was done by the impugned order. In this regard, reliance 6 can be placed upon a judgment of the Apex Court in the case of MSRTC Vs. Casteribe Rajya P .Karmachari Sangathana, reported in 2009 III CLR 262, wherein in paragraph-31, the Apex Court has observed as under :- “ Thus there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the Courts.” 10 In this view of the matter, the Industrial Court could not have granted the reliefs sought for by the complainants and it is not necessary to go into the question as to whether the complainants were employees within the meaning of the MRTU & PULP Act 1971. Both the petitions must therefore be allowed in terms of prayer clause-(b). Both the petitions stand disposed of in the above terms. It is clarified that the respondents who were absorbed on 15.7.1998 with effect from 7.4.1998 will retain their status under the appointment order. (R.S.MOHITE,J) 7 8