1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.187 of 2005. Advocate Nanabhau s/o. Jangalrao Pawar and another. Petitioners. Versus The State of Maharashtra and others. Respondents. Mr. V.D. Sapkal, Advocate for the petitioners Mr. R.P. Phatke, Additional Govt. Pleader for respondent No.1 Mr. R.N. Dhorde, Advocate for respondent No.4 Mr. N.B. Suryawanshi, Advocate for respondent Nos.6, 11,21,24,25,26,31,33,35 and 37 Mr. V.D. Salunke, Advocate for respondent Nos. 15,16, 22,23,27,41 and 48 Mr. Ankush N. Nagargoje, Advocate holding for Mr. V.J. Dixit, Senior Counsel for respondent Nos. 9.10,19.20,30.39 and 49. Mr. L.V. Sangit, Advocate for respondent No.43. Mr. P.M. Shah, Senior Counsel instructed by Mrs. Vidhya Patil, Advocate for respondent No.34 Mr. P.V. Barde, Advocate for respondent No.17, Ms. M.G. Purnapatre, Advocate for respondent No.29 Mr. S.T.Shelke, Advocate for respondent NO.40 CORAM : D.B. BHOSALE R.M. BORDE,JJ.. DATE : 25TH JANUARY, 2011. 2 COURT'S ORDER [ PER D.B. BHOSALE, J.]: 1] This writ petition, in the nature of public interest, under Article 226 of the Constitution of India, has been filed for seeking direction to respondent Nos. 1 to 5, to initiate action under the provisions of the Bombay Local Fund Audit Act, 1930 (for short, “the Audit Act”) for recovery of salary/wages paid to the employees who are appointed illegally and unauthorizedly, from the persons responsible for their appointment. The petitioners have also prayed for direction to the Chief Officer of the Chalisgaon Municipal Council (for short, “the Council”) to submit a proposal as per the letter dated 3/1/2004, addressed to respondent No.2 – the Director of Municipal Administration (for short, “the Director”), for taking appropriate action on the basis of the note submitted in the Special General Body meeting, dated 30/9/2002. The petitioners have further prayed for direction to the respondents for fixing the liability for the illegal appointments under Section 96 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (for short, “the Act of 1965), as per the directions issued by this court in Writ Petition No. 640/1997, for recovery of the wages/salary from the then President and the councillors of the council. 2] We have heard this petition at considerable length and with the assistance of learned counsel for the parties, 3 perused the entire material placed before the court. Mr. Sapkal, learned counsel for the petitioner, at the outset, invited our attention to the judgment of this court, dated 3rd July, 2000, in Writ Petition No. 640/1997 and submitted that it is mandatory for the respondents to initiate action against the President and the councillors , who appointed about 250 persons, as daily wagers, during the period from 1993 till 27th March, 2000. He submitted that the appointments made are illegal, unauthorized and contrary to the Rules and the procedure for such recruitment. Their appointments, according to Mr. Sapkal, were made not only in violation of the rules and regulations, but, by overlooking the Government resolutions/circulars/standing orders/instructions issued from time to time. Our attention was specifically invited to the letter/circular dated 3rd January, 2004, issued by respondent No.2 to submit that the wages/salary paid to those persons are liable to be recovered, in view of the circular dated 24.6.1986. He submitted , by this circular (24.6.1986) the Government imposed ban on the Municipal Councils in the State on appointments of persons either on temporary or permanent or daily wages basis. 3] Our attention was also invited to the audit reports (Exhibits `D' and `E' to the writ petition) to contend that the appointments of the persons mentioned in the audit report were made illegally and that, the respondents as recommended by the auditor ought to have initiated action of recovery of the 4 wages/salary paid to those persons, from the persons/councillors who made their appointments. In short, the grievance of the petitioners is that, the appointments made by the then President and the councillors, on daily wages/temporary basis during the period from 1993 to 27/3/2000, were illegal and unauthorized, inasmuch as, they were made in violation of the instructions/Government Resolutions/Standing order issued by the Government from time to time and that they cannot be imposed on the council and make the council to suffer monetary loss. He submitted that by these circulars/G.R.s/Standing order the Government imposed ban on the municipal councils in the State on recruitment of employees since 1986 and that the ban is operating till this date. 4] At the outset, before we examine the merits of the contentions urged by learned counsel for the parties, we observe that the petitioners have not challenged the appointments made after 1993 and before 27.3.2000, or are seeking the reliefs as prayed in the petition on the ground that the services of those 250 daily wagers were either not required by the council or they were not eligible to be so appointed. Mr. Sapkal, on the contrary, submitted that the petitioners do not intend to or desire to challenge the appointments of these daily wagers, being illegal. It is equally true that, at no point of time, the petitioners have approached any forum, seeking a 5 declaration that the appointments made during the aforementioned period were either illegal or unauthorized. The persons so appointed are not added as respondents in the writ petition. It further appears that for the similar reliefs, petitioner No.2 had approached the Collector, Jalgaon, under Section 308 of the Act of 1965. That application was rejected by the Collector, vide order dated 12th October, 2004. The order of the Collector, dated 12th October, 2004 had been confirmed by respondent No.3 – the Regional Director of Municipal Administration, Nasik Division, Nasik, vide order dated 28th January, 2005. Further it will have to be borne in mind that after 27.3.2000, the council has not made any appointments except 55 persons and 37 employees, to whom we would make reference little later, either on daily wages or on temporary or on permanent basis, nor have they made any of the daily wagers permanent. All the 250 daily wagers, appointed prior to 27.3.2000, however, are continued on daily wages till this date and that their services are utilized by the council for performing its duties under Section 49 of the Act of 1965. It is in this backdrop, we now proceed to examine the challenge in the writ petition. 5] Since learned counsel for the petitioners placed heavy reliance upon the judgment of this court dated 3/7/2000, rendered by the Division Bench in W.P. No. 640/1997 [ Mohd. Arif 6 Sk. Mohd. And others Vs. The Director of Municipal Administration), we have perused the said judgment very carefully. The said writ petition was filed by 10 petitioners, who were appointed to work in a hospital under the resolution passed by the Municipal Council, Malkapur. It further appears that the posts on which the petitioners were appointed, were created for functioning of the said hospital by the municipal council. The writ petition was filed seeking direction to the council to pay their salary. During pendency of the said writ petition, the Chief Officer, Municipal Council, Malkapur, had filed an application, seeking permission to terminate services of the petitioners, contending that their appointments were made by the President and members of the council in the vacancies at hospital, ignoring the minimum qualification required for appointment of candidates on the said posts, like Compounders, Clerks, Nurses, Dressers, Peons and Ayas. It is in this backdrop, the Division Bench of this court held that the petitioners cannot be imposed on the municipal council by its President and members and, made the following observations, heavily relied upon by learned counsel for the petitioners, for seeking similar action in the present petition against the councillors, who were responsible for the appointment of 250 daily wagers during the period commencing from 1993 till 27.3.2000. :- “This Court has come across several cases where the President and Councillors of Municipal Council recruit employees in Municipal Council, without bothering to verify whether their services are required or whether they have eligibility to be so 7 appointed, and by passing resolutions, create unnecessary financial burden on the municipal fund. In most of the cases, such resolutions are in dispute, but the Municipal Council appears to be a helpless body and is required to continue with the employment of such persons. Unfortunately, the Revenue Commissioner also does not take any steps under the Bombay Local Fund Audit Act, 1940, and the authorities sleep over the matter. In our opinion, in such cases, the Revenue Commissioner or the Director of Municipal Administration, is under statutory obligation not only to examine such appointments made by the President and the councillors, but in case it is found that the appointments are illegal and unauthorised and not in accordance with the Rules and procedure for such recruitment, they should initiate recovery of salaries and wages paid to such employees from the persons responsible for passing such a resolution. Therefore, before dismissing the petition, we direct the respondent No.2, Regional Director of Municipal Administration, Amravati Division, Amravati to initiate action under the Bombay Local Fund Audit Act, 1940, against the then President and councillors who have passed the Resolution appointing these petitioners and recover from them the salaries and wages paid to these petitioners/employees. We are inclined to give these directions because what we find is that inspite of the respondent No.2 being aware of this fact, as is evident from his letter dated 4th September, 1997, he has not taken any steps in the matter against the President and Councillors who were responsible for appointing the petitioners. Not only this, the posts, which were created for the purpose of running a clinic at Parpeth, were filled in by incompetent persons, which has resulted in closure of the hospital as even a Medical Officer 8 could not be procured. We take serious note of the state of affairs. The respondent No.2 to take immediate action in the matter and also see that the respondent No.3 starts the hospital by recruiting competent staff and appointing a Medical Officer, so that it can serve the people in the locality.” [ Emphasis supplied ] 6] From bare perusal of the facts of the case before the Division Bench in W.P. No. 640/1997 and the present case, it is clear that the facts in the present case are totally different. In the present case, there is no allegation against the council that they created any posts and then appointed those daily wagers either on temporary and on permanent basis. Further, it is not the case of the petitioners that except, 37 employees referred to in the audit report to whom we would make reference little later, that the council appointed any of the 250 daily wagers on temporary/permanent basis against the permanent vacant posts. The 250 persons were appointed on daily wages and continued to be daily wagers till this date. It is not in dispute that their services are not required, apart from the fact that their eligibility is not under challenge. The petitioners have challenged their appointments being illegal, contending that they were appointed by private individuals, namely, the then President and the councillors, without their being any resolution passed by the council allowing the appointments on daily 9 wages. It is also not in dispute that after those persons were appointed by the then President and the coucillors,the council accepted their appointments, continued their services and has been paying daily wages to them. This further supports that their services for cleaning the city were/are required by the council. It may be true that the manner in which they were appointed was not proper, but fact remains and cannot be overlooked that they have been working since last more than 15 years and that fresh appointments in similar manner have not been made since 2000. 7] We have perused the circular issued by respondent No.2, dated 3rd January, 2004, so also, the Audit Reports ( Exhibit `D' and `E'). The circular dated 3rd January, 2004, makes reference to the circular/standing order issued on 24.6.1986, stating that action needs to be initiated against the persons responsible for appointing those 250 persons on temporary/permanent/daily basis in contravention of the said circular dated 24.6.1986. It also appears from the said circular that appointments made prior to 1993 on daily wages, were regularized. It is on the basis of this circular, it was vehemently submitted that appointments made after 1993 and before 27.3.2000 by the council even on daily wages were illegal and unauthorized and the respondents ought to have initiated action against the councillors, who were responsible for making 10 appointments of 250 persons on daily wages and the respondents having failed to do so, learned counsel for the petitioners submitted that such direction may be issued in the present petition. 8] We have also perused the Audit reports at Exhiibit D and E. These reports also make reference to the appointments of 37 employees made by the council on temporary basis against permanent vacancies, observing that their appointments were illegal, since they were made in contravention of the rules and regulations, so also, the circulars/Standing order issued by respondent No.2 and the Government. However, the Audit report Exhibit D, dated 7.1.2003, concludes, stating that the wages paid to these persons may either be recovered from the persons who were responsible for their appointments or the council should get these appointments regularized from the Government. 9] The 37 employees named in the Audit Report at Exhibit D to the writ petition were appointed on temporary basis against the sanctioned posts before 27.3.2000 over and above the 250 daily wagers referred to in the foregoing paragraphs. These employees, apprehending their termination, approached the Industrial Court seeking permanency. The Industrial court, vide order dated 30.1.2001, allowed their complaints declaring that the council has engaged in an unfair labour practice and 11 directed to give the benefit of permanency to the complaints for the work done by them, from the date of filing of the complaint before that court. That order, we are informed, is the subject matter of a writ petition filed by the council, being Writ Petition No. 3049/2003. Though the said writ petition has been admitted, no interim relief, as prayed, is granted by this court. As a result thereof, the 37 employees named in the Audit Report are continued in service, obviously subject to result of the writ petition. There is no dispute that the council cannot terminate these employees and the employees, whose services are protected by the orders of court, are excluded from the instructions/standing orders issued by the State Government, from time to time. 10] It appears that after 27.3.2000, about 55 persons including petitioner No.2, were appointed on daily wages, since, according to the council, services of these persons were also required by them. However, their services were terminated in view of the Standing Order dated 15.1.2004. This court is informed that these 55 persons also approached the Labour Court against their termination. However, the Labour Court has not granted any interim relief in their favour. At this stage, it would be relevant to make reference to a letter dated 12.6.2000, whereby, the Council made a proposal to the Government seeking sanction for creating 200 posts of Sweepers. The proposal was made on the basis of the circular 12 issued by the Government dated 14th August, 1990. It is mentioned in the letter that the requirement of the council of Sweepers is 478. Though the proposal was made to the Government, the Government did not approve the same and as a result of which the Council has not appointed any persons either on daily wages or on temporary/permanent basis after 27.3.2000 over and above the 55 employees, whose services were terminated in view of the Standing Order dated 15.1.2004. Further, it cannot be overlooked that the issue of their appointments is still pending before the Labour Court, though there is no interim order passed in those proceedings. 11] As observed earlier, services of those 250 daily wagers were indubitably required by the council for carrying out its functions under Section 49 of the Act of 1965. It is also clear from the letter dated 9.9.2008 issued by the Collector, Jalgaon, addressed to the Commissioner/Director of Municipal Administration. In this letter, the collector has requested respondent No.2 to regularize appointments of 250 daily wagers made by the council, as their services are required by the council. 12] In view of the Government policy, which is reflected in different circulars/G.R.s/Standing Orders issued from time to time, it is clear that there was/is a ban on creating new posts and appointments on temporary/permanent basis since 1986 13 and in view thereof, the councils in the State appoint persons on daily waves, but even appointments on daily wages after 1.4.2004 are not allowed. At this stage it would be relevant to make reference to the Standing order dated 15th January, 2004 [Exhibit-C to the petition] issued by the Government, to which our attention was drawn by learned counsel appering for the parties. By this order, the Government has made it very clear that the persons appointed on daily wages during 11.3.1993 and 27.3.2000, should be retained in the service on daily wages and the permanent posts,if any, are available, they should be kept vacant. In other words, it is clearly mentioned in the said order (dated 15.1.2004) that the persons appointed on daily wages during the aforementioned period, should not be made permanent or given appointments on permanent vacancies. It further says that action, including the action of recovery of wages, be taken against the officers and office bearers, who are responsible for absorbing or regularizing the said daily wagers, who were appointed after 10.3.1993 and before 27.3.2000. In the present case, there is no allegation either in the petition or made acorss the bar that the 250 daily wagers who were appointed during the aforementioned period, are either absorbed or regularized by the council or its office bearers. Thus, it is clear that by this order, the Government has allowed all the councils to retain the daily wagers appointed by the councils or its office bearers, after 1993 and before 27.3.2000. This, in our opinion, also amounts to regularizing/ratifying the 14 action of the council, which appointed persons on daily wages. 13] The petitioners have also prayed for fixing the liability for illegal appointments against the then President and the Councillors under Section 96 of the Act of 1965. As pointed out earlier, all these appointments were made during 1993 and before 27.3.2000. At no point of time, the petitioners and, more particularly, petitioner No.2, though were aware about these appointments, ever approached the Government for the action as contemplated under Section 96 of the Act of 1965. Sub- section (5) of Section 96, makes it clear that no suit shall be instituted under section after expiration of six years from the date when the cause of action arose. It is thus clear that since this remedy rendered ineffective as time barred, the petitioners have approached this court for seeking such direction under Section 96 of the Act of 1965 by way of the present writ petition, which, in our opinion, deserves to be rejected outright. That apart, it is also clear from the record that the then President, who allegedly made most of the appointments, died long back and some of the councillors who are joined as respondents to the present writ petition, were not even councillors at the relevant time, nor were they responsible for these appointments. It appears that these councillors are added as parties because they, after 27.3.2000, allegedly approved the appointments of those 250 persons. We are thus satisfied that none of the prayers made in the writ petition 15 deserves to be allowed. 14] Apart from merits of the case, it was also submitted by learned counsel for the respondents that this is not a genuine and bonafide PIL. The respondents, on affidavit, have tried to demonstrate as to how personal interest of the petitioners in filing this petition is involved. In other words, in the affidavit, respondents have tried to demonstrate that there was private motive/oblique motive behind filing this petition. 15] We have perused those affidavits. It is true that petitioner No.2 was an employee of the council on daily wages and he made all possible efforts for his absorption on permanent basis. It also appears that at one point of time, he had made an application to the President stating he was ailing from 15.7.2000 to 10.7.2001. Believing his representation as true, he was temporarily taken on duty on 17.7.2001 on daily wages. However, subsequently, it revealed that during 19.7.2000 and 7.7.2001 he was working in a sugar factory at Nagpur. Despite this, we have examined the merits of the case and we are satisfied that on merits, the petition deserves to be dismissed summarily. Order accordingly. [R.M. BORDE,J] [D.B. BHOSALE,J.] grt/wp 16 RIDER-I 9] The 37 employees named in the Audit Report at Exhibit D to the writ petition were appointed on temporary basis against the sanctioned posts before 27.3.2000 over and above the 250 daily wagers referred to in the foregoing paragraphs. These employees, apprehending their termination, approached the Industrial Court seeking permanency. The 17 Industrial court, vide order dated 30.1.2001, allowed their complaints declaring that the council has engaged in an unfair labour practice and directed to give the benefit of permanency to the complaints for the work done by them, from the date of filing of the complaint before that court. That order, we are informed, is the subject matter of a writ petition filed by the council, being Writ Petition No. 3049/2003. Though the said writ petition has been admitted, no interim relief, as prayed, is granted by this court. As a result thereof, the 37 employees named in the Audit Report are continued in service, obviously subject to result of the writ petition. There is no dispute that the council cannot terminate these employees and the employees, whose services are protected by the orders of court, are excluded from the instructions/standing orders issued by the State Government, from time to time. RIDER-II It appears that after 27.3.2000, about 55 persons including petitioner No.2, were appointed on daily wages, since, according to the council, services of these persons were also required by them. However, their services were terminated in view of the Standing Order dated 15.1.2004. This court is 18 informed that these 55 persons also approached the Labour Court against their termination. However, the Labour Court has not granted any interim relief in their favour. At this stage, it would be relevant to make reference to a letter dated 12.6.2000, whereby, the Council made a proposal to the Government seeking sanction for creating 200 posts of Sweepers. The proposal was made on the basis of the circular issued by the Government dated 14th August, 1990. It is mentioned in the letter that the requirement of the council of Sweepers is 478. Though the proposal was made to the Government, the Government did not approve the same and as a result of which the Council has not appointed any persons either on daily wages or on temporary/permanent basis after 27.3.2000 over and above the 55 employees, whose services were terminated in view of the Standing Order dated 15.1.2004. Further, it cannot be overlooked that the issue of their appointments is still pending before the Labour Court, though there is no interim order passed in those proceedings.