( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3395 OF 1997 1. The State of Maharashtra 2. The Executive Engineer, Employment Guarantee Scheme (P.W.D. - Division Ahmednagar), Aurangabad Road, Ahmednagar. PETITIONERS VERSUS Shri Natha Rama Nimse, R/o Mandva Post Sandve, Tq. and Dist. Ahmednagar. RESPONDENT ..... Mr. D.V. Tele, A.G.P. for the petitioners. Mr. Pradep Shahane, advocate, holding for Mr. T.K. Prabhakaran, advocate for the respondent. ..... WITH WRIT PETITION NO. 3062 OF 2004 Madhukar s/o Parvat Dhivar, R/o at post Kokamthana, Tq. Kopargaon, Dist. Ahmednagar. PETITIONER VERSUS The Executive Engineer, (E.G.S.), Works Division, Nagar Aurangabad Road, Ahmednagar. RESPONDENT ( 2 ) ..... Mr. Pradeep Shahane, advocate for the petitioner. Mr. D.V. Tele, A.G.P. for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th July, 2009] ORAL JUDGEMENT : 1. By this common judgement, both the petitions are being decided together in as much as the questions raised therein are identical. 2. The petitioners impugn judgement and order rendered by the Labour Court, Ahmednagar in Reference (IDA) No. 131/1992 and Reference (IDA) No. 51/1996. The learned Judge of the Labour Court allowed the Reference of respondent Natha and directed to provide work to him as per seniority and eligibility whereas dismissed Reference of petitioner Madhukar. 3. The respondent – Natha and petitioner – Madhukar, who are present respondent and petitioner in ( 3 ) these petitions, were working as Mustering Assistants. They were engaged as such to work on Employment Guarantee Scheme (for short, “E.G.S.”). They asserted that they were illegally terminated by the petitioners (in References) and as such, the employer had committed unfair labour practices. The contention of the Executive Engineer before the Industrial Court was that the Scheme was being operated under special circumstances. The respondent – Natha and petitioner - Madhukar were not regularly appointed on any post as such. They were temporarily provided with the work under the E.G.S., which was operated on account of contingency. It was submitted that no right accrued to – Natha and Madhukar to claim reinstatement or the work as such. The learned Judge of the Labour Court held that the respondent Natha was entitled to seek reinstatement as Mustering Assistant. However, it was held that Madhukar was not entitled to seek reinstatement. The incidental benefits of backwages and continuity in service also have been granted to the respondent – Natha though no relief is granted to the petitioner – Madhukar. ( 4 ) 4. Heard learned counsel for the parties. 5. Clinching question involved in these petitions is whether the respondent – Natha and petitioner – Madhukar are entitled to claim reinstatement on the post of Mustering Assistant. The absorption of the persons working as Mustering Assistants in the E.G.S. is a question which the Government has considered under Government Resolution dated 01-12-1995. There cannot be any two opinion about the legal status of respondent – Natha and petitioner – Madhukar. The posts of Mustering Assistants were not filled up by regular process of recruitment. Nor such posts are created on Establishment of a particular Government Department. The very purpose of E.G.S. is to provide work to the needy persons during period of scarcity, drought or like situations. The special scheme is floated in order to combat the situation arising due to non-availability of work which is the source of living for a class of manual workers. At a times, due to drought or famine like situation, the class of agriculturists and other members from rural area are likely to suffer and, therefore, the ( 5 ) E.G.S. is operated to give financial support to such needy members of the said class. The temporary employees, who are assigned work under the E.G.S., cannot be regarded as “workman” within the meaning of section 2 (s) of the Industrial Disputes Act, 1947. The E.G.S. cannot be termed as an `industry’ as defined under section 2 (j) of the Industrial Disputes Act. Obviously, respondent – Natha and petitioner – Madhukar are not entitled to claim any benefit of continuity of the service or reinstatement as such. 6. In a group of similar petitions (writ petition Nos. 847/1996, 848/1996, 851/1996, etc.), a Single Bench of this Court held that the Mustering Assistants are not “workmen” and, therefore, cannot claim reinstatement or other benefits available to a workman under the provisions of the Industrial Disputes Act. Similar view is taken by another Single Bench vide judgement in Writ Petition No. 630/2008. There is no umbrella of protection available to the Mustering Assistants in view of the nature of the work. Consequently, the impugned judgement rendered by the Labour Court in case of ( 6 ) Reference (IDA) No. 131/1992 is quite unsustainable. 7. In the result, writ petition No. 3395/1997 is allowed and the impugned judgement and order is quashed. The writ petition No. 3062/2004 is dismissed. It is, however, made clear that the respondent – Natha and petitioner – Madhukar may be considered for absorption under the Scheme drawn as per Government Resolution dated 01-12-1995 if they are found eligible. They are granted liberty to make appropriate representations and if are found eligible, particularly, due to absorption of their juniors, their cases may be considered by the competent authority. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP3395-97-3062-04