1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5390 OF 1997 1. Azamiya S/o Rajabmiya Age : 30 Yrs., Occ. Motor Mechanic, in Agricultural Engineering Deptt., Agricultural College, Parbhani. 2. Shaikh Abdul Majeed S/o Sk. Mahboob, Age : Major, Occ. Auto Electrician in Agricultural Engineering Deptt., Agricultural College, Parbhani. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through the Govt. Pleader High Court of Bombay, Bench at Aurangabad. 2. The Registrar Marathwada Agricultural University Parbhani. 3. The Principal Agricultural College, Parbhani. .... RESPONDENTS Mr. S.K.Shelke, Advocate for petitioner. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. E.P.Sawant, Advocate for respondent no. 2 & 3. 2 CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE : 30/6/2010 ORAL JUDGMENT : [ PER – B.R.GAVAI, J. ] 1. The petitioners have filed the present petition directing respondent nos. 2 and 3 to pay daily wages to the petitioners as per Govt. Resolution dated 8/4/1994. 2. It is the case of the petitioners that they were working as skilled workers with the respondent – University. It appears that the matter regarding parity of the payment to the skilled workers working in the respondent – University as was payable to the workers working in Punjabrao Agricultural University was pending consideration before the Government. Vide Govt. Resolution dated 8/4/1994, the Govt. approved wages to the workers working in respondent – University as were paid to the workers of the Punjabrao Deshmukh University. In accordance with the said Govt. Resolution, the respondent – University prepared the list of workers, who were entitled to the benefit of the Govt. Resolution of 1994 on 24/5/1994. The name of the petitioners are very much there in the said list. Petitioner no. 1 has been shown driver, whereas petitioner no. 2 has been shown as agricultural assistant. According to the petitioners, though both the petitioners were working as skilled workers, their 3 designation were shown erroneously as aforesaid. According to them, they were working as Motor Mechanic and Auto Electrician respectively. It was submitted that due to said error, though the petitioners were entitled for the benefit of resolution they were paid at the rate as payable to the unskilled worker. 3. Mr. S.K.Shelke, the learned counsel for the petitioners submits that the respondents having found that the petitioners were eligible for the benefit of the Govt. Resolution of 1994, had included their names in the list of beneficiaries. It is, therefore, submitted that having done this, there was no occasion for the University to have unilaterally withdrawn the said benefit to the petitioners. 4. Mr. E.P.Sawant, the learned counsel for respondent nos. 2 & 3 submits that the petition is liable to be dismissed on disputed questions of facts and availability of alternative remedy. He submitted that whether the petitioners have in fact worked or not is a disputed question of fact which can not be gone into in the extra ordinary jurisdiction of this Court. The petitioner can raise this point very well before the Labour Court and on the ground of availability of an alternate remedy, the petition is liable to be dismissed. 4 5. On merits, the learned counsel for respondent nos. 2 and 3 has submitted that the benefit has been given to the petitioner from 1998. It is submitted that since in the year 1994 as their names were erroneously included, error has been rectified in the year 1998. He further submits that as and when they worked during earlier period, they were paid at the rate of unskilled worker. He, therefore, submits that the petition is liable to be dismissed. 6. In so far as the preliminary objections raised by the petitioners are concerned, it is the settled law that the preliminary objection regarding tenability has to be raised at the very first occasion. The petition has been admitted in the year 1998 and it will not be in the interest of justice to non suit the petition on the technical ground after the period of 12 years. It is further to be noted that “ Rule ” has been granted. Respondent nos. 2 and 3 not having raised objection regarding tenability of the petition at the stage of grant of Rule, can not be permitted to raise the same at this stage. 7. On merit, we find that exhaustive list has been prepared by respondent nos. 2 and 3 in the year 1994. The names of the petitioners very much finds place in the said list. The petitioners were brought in the said list so as to make available them the benefit of Govt. Resolution of 1994. If the respondents wanted to delete the names of the petitioners, they could not do so 5 without following the procedure. The affidavit is filed in the year 2010. The respondents can not be heard after the period of 12 years that an error was committed by them while preparing list in 1994. Even according to the respondents, prior to bringing them in the scale of semi skilled workers in 1998, they have worked as unskilled workers and paid for the same. It is difficult to understand as to how the nature of work which is found to be semi skilled in 1998, can be said to be unskilled prior to that period. 8. In that view of the matter, we find that the petitioners are entitled to the benefits of Govt. Resolution of 1994. Rule is made absolute by directing respondent nos. 2 and 3 to pay difference of wages to the petitioners by treating them to be entitled to the benefit of Govt. Resolution of 1994. The difference of arrears be paid within the period of six months from today. However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 5390.97