1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1944 of 1998 1. Shri Shivshankar Gundu Jawanjal 2. Shri Sanjay Bhalchandra Umbrajkar Petitioners Vs. 1. The State of Maharashtra, through the Secretary, Revenue & Forest Department, Mantralaya, Mumbai 400 043. 2. Settlement Commissiioner Land Records, Pune Region, Yerawada, Bunglow Nos.9 & 11, Pune 3. Deputy Director of Land Records, Pune Region, Opp. 15 August Lodge, Pune. Respondents With Writ Petition No.1908 of 1998 Smt.Megha Uday Savant/Desai Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2058 of 1998 1. Shri Jayant R. Gangurde 2. Smt. Vandana Meshram 3. Maruti C. Pagare Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2059 of 1998 1. Shri Bhagwant Y. Vispute 2. Smt. S.B.More 2 3. Shri Sunil Dasharath Mohre 4. Shri Sunil Mahadev Abunhavane Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2060 of 1998 1. Sanjay S. Bafna 2. Shri Govind H. Jadhav 3. Shri Anil G. Sankhe 4. Shri Raghunath H. Patil Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2061 of 1998 1. Shri Digambar R. Modak 2. Issmail Abdul Mukadam 3. Smt. Sandya R. Band 4. Smt. Shobha Rupvate Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2062 of 1998 1. Smt. Sunanda M. Sarwankar 2. Kum. Meera Laxman Kurle 3. Smt. Vidya Patil (Musale) Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2063 of 1998 Shri Manoj Kulkarni Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2064 of 1998 1. Shri Raju Dugaonkar 2. Kum. K.K.Chaubal Petitioners Vs. 3 The State of Maharashtra & ors. Respondents With Writ Petition No.2065 of 1998 1. Pramod T. Shetye 2. Smt.Sushila Ramchandra Fulpagare Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2066 of 1998 1. Smt.Rachana Anand Dharwadkar 2. Shri Dipak Vishnu Keluskar 3. Smt.Sheela Rajaram Mamlekar 4. Shri Sneha R. Sawant 5. Shri Vijay Radheshyam Meshram Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2067 of 1998 1. Mrs.Dipika D. Sawant (Shubhangi Pujare) 2. Shri Rajkumar S. Angolkar 3. Kum. Vandana Sawant (Mrs.Deepa Rane) 4. Shri Harishchandra Chandu Mamalekar Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2150 of 1998 1. Rajaram Babu Kokate 2. Shri Rajendra Tukaram Paramsagar 3. Shri Tukaram Hiralal Bhosale 4. Shri Arvind Anandrao Mithari 5. Shri Ajay Madhavrao Sathe 6. Shri Anaji Vasant Raorane 7. Shri Babasaheb Shankarrao Sankpal 8. Shri Murlidhar Krushnarao Rabade 4 9. Kum. Sunita Sadashiv Bhapkar 10. Shri Dattatray Ramchandra Varekar 11. Shri Salim Rahim Sheikh 12. Shri Girish Sadashiv Ingale 13. Shri Jahangir Gulab Jamadar 14. Shri Prashant Prabhakar Chorghe Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2151 of 1998 1. Rajendra Narayan Patwardhan 2. Shri Parshram Ramu Shinde 3. Shri Chandrakant Narsgonda Patil 4. Shri Lahu Malasu Narute 5. Smt. Malan Baburao Mote 6. Shri Gopal Raghunath Warande 7. Shri Sadanand Lakshman Kadam 8. Shri Vishwanath Narayan Kumathekar 9. Shri Rajendra Jaysingh Thorat 10. Shri Ashok Keshav Lad 11. Shri Parashuram Shankar Kamble 12. Shri Balwant Raghu Nalawade Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2152 of 1998 1. Shri Yashwant Arjun More 2. Shri Dilip Narayan Kamble 3. Smt. Kamalini Bhau Kamble 4. Kum. Asha Laxman Mandke alias Sau.Amruta Ravindra Parkhi 5. Kum.Chitra Namdeo Bahulikar alias Mrs.Chitra Ganesh Gare 6. Smt.Aruna Gopinath Ghume 7. Mrs.Kavita Prakash Dugal 8. Sau. Shanta Narsinha Joshi 9. Sou. Shahsikala Ashok Bhondwe 10. Sou. Nutan Dattatray Khedkar 11. Smt. Shahnaz Begam Mohmmad Ayub Sheikh 12. Kum. Netra Dattatray Ghumare 13. Smt. Malan Ramchandra Bhosale 14. Sou. Neeta Gajanan Dabhade 5 15. Shri Madan Vishwmbhar Desai 16. Kum. Vidya Vinayak Gosawi 17. Smt. Pramila Ganpat Pawar 18. Shri Yashwant Haribhau Padawe Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2153 of 1998 1. Chandrakant Haribhau Sawant 2. Shri Madhukar Shankar Gaikwad 3. Shri Anil Digambar Kharpe 4. Smt. Shaila Ramchandra Pathak Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2336 of 1998 1. Prabhavati Gangadhar Chavan 2. Suvarna Pandurang Ghadge 3. Pandurang Kashinath Devmare Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2638 of 1998 Sharad Sadanand Bandbe Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2639 of 1998 Smt. Kalpana Tukaram Chandekar Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2640 of 1998 6 Smt.Angha Arun Potale Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2644 of 1998 Gopal Laxman Kubal Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2647 of 1998 Pandharinath Shankar Chauhan Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2649 of 1998 Prashant P. Shivalkar Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2652 of 1998 Manohar Joshi Petitioner Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2653 of 1998 Smt. Dipti Pradeep Ketkar Petitioner Vs. The State of Maharashtra & ors. Respondents 7 With Writ Petition No.2780 of 1998 1. Baban Shivaji Bodekar 2. Shri Tanaji Ananta Mane 3. Shri Raghavendra Shriram Foujdar 4. Shri Yashwant Ganesh Khaladkar 5. Shri Yashwant Manohar Rawal 6. Shri Vinayak Ganesh Khaladkar 7. Shri Manohar Kisan Parthe 8. Shri Ramchandra Gopalrao Jadahv Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2785 of 1998 1. Laxman Vasant Mhatre 2. Shri Ravindra Raghunath Salavkar 3. Shri Vikas Bhikoba Kokane 4. Shri Subhash Laxman Raut 5. Mrs.Yayashree Rajaram Shirgaonkar 6. Shri Prakash Ramkrishna Asabhe 7. Mrs. Pradnya Parvina Bovane 8. Shri Sayaji Namdeo Jawale Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.2928 of 1998 1. Anant Ambadas Chumbalkar 2. Mrs.Kanchanmala Dattajirao Dalvi 3. Shri Prasad Hari Ashtekar 4. Shri Santosh Madhukar Dikshit 5. Shri Anisahemad Kutubuddin Kotwal Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.3127 of 1998 1. Smt.Sulochana Lakshman Lokhande 2. Smt. Nisha Shantaram Bhosale Petitioners Vs. The State of Maharashtra & ors. Respondents 8 With Writ Petition No.4849 of 1998 1. Mrs.Shraddha Prabhakar Panchakshri 2. Mr.Rajendra Dagadu Borase 3. Mr.Vasant Prabhakar Misal Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.5394 of 2004 1. Jaywant R. Gangurde 2. Smt. Vandana Meshram 3. Maruti C. Pagare 4. Sanjay Shantilal Bafna 5. Govind Harishchandra Jadhav 6. Anil Gandhar Sankhe 7. Raghunath Hadkya Patil 8. Digambar R. Modak 9. Ismail Abdul Mukadam 10. Sandhya R. Band 11. Shobha Rupwate 12. Sunanda Sarwankar 13. Meera Kurle 14. Rajesh Dugaonkar 15. Ms. K.K.Chaubal 16. Pramod Shetye 17. Ms.Sushila Fulpagar 18. Dipak Keluskar 19. Sheela Mamlekar 20. Dipika D. Sawant (Shubhangi Pujare) 21. Rajkumar S. Angolkar 22. Kum. Vandana Sawant (Mrs.Deepa Rane) 23. Harishchandra Chandu Mamalekar 24. Vijay Meshram Petitioners Vs. The State of Maharashtra & ors. Respondents With Writ Petition No.6818 of 1998 Shri Rajiv Kamalakar Gupte Petitioner Vs. The State of Maharashtra & ors. Respondents 9 Mr.B.P.Apte,Sr.Counsel with Mrs.S.S.Deshpande for petitioners in all the petitions except mentioned below. Mrs.Kumud Bhatia for petitioners in W.P.Nos.1908, 2638, 2639, 2640, 2644, 2647, 2649, 2652 and 2653 all of 1998. Mr.S.D.Thokade for petitioners in W.P.No.2336/98. Mr.N.P.Deshpande, AGP for State. CORAM: B.H.MARLAPALLE & J.H.BHATIA,JJ. Reserved on: December 21, 2006. Pronounced on: January 19, 2007. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This group of petitions is being disposed off by a common judgment as all the petitioners are seeking a common relief for being absorbed as permanent / confirmed employees of the State Government in Class III posts with retrospective effect, on the basis of the judgment of the Maharashtra Administrative Tribunal in O.A. No.153 of 1991 dated 20th October 1992 and in O.A. No.895 of 1995 dated 30/11/1995, as well as the Government Resolutions issued on 21/10/1995, 22/10/1996 and 10/3/2005. 2. The Government of Maharashtra by its Resolution dated 30/10/1961 revised Rules for the recruitment of 10 Revenue Clerks and fixed the minimum qualifications of S.S.C. and maximum age limit of 23 years (open category) and 26 years (backward category). The selected candidates were to be assigned to an office to work in a clerical post and when not employed, he/she would be employed as a copyist and allowed to receive the fees. The enlisted candidates were to be sent for training with stipend and at the end of the training period if he/she would pass the test, he/she would remain as a candidate till a vacancy became available for appointing as a Clerk. A candidate who failed in the first training test would be kept on the waiting list as enlisted candidate till the result of the next such training test. Whereas the next test would be within a period of three months and if he/she again failed, the name would be removed from the list of the enlisted candidates. No person except from the approved list would be appointed to a purely temporary post. Accordingly those who were on the enlisted list but could not be absorbed against an available vacancy either on temporary or permanent post were called upon to work on payment of fees, under the Revenue Department, Settlement Commissioner Land Records, City Survey Office and the Forest Department etc. 11 3. The petitioners claim to be such candidates who were enlisted from 1968 onwards but could not be appointed against any available vacancies and, therefore, continued as "Unpaid Candidates" as per an appointment order issued for a Class III post. They were engaged in copying work from the public documents on the basis of sharing of fees. Out of the fees received for such public documents, 70 per cent of the amount could be paid to the petitioners while the remaining 30 per cent was to be credited in the Government Treasury. A regular muster roll was being maintained by the concerned departments in respect of these "Unpaid Candidates’. They were also required to follow the office timings, were not entitled for any salary including salary for paid/festival holidays etc. Sometimes they were given artificial breaks of few days. The earnings on fees sharing basis were to the tune of Rs.3000/- per month. 4. The State Government framed the Maharashtra Land Revenue (Inspection, Search and Supply of Copies of Land Records) Rules, 1970 and they were brought into force with effect from 6th July 1970. The rates of fees were fixed for certified copies of any record to be paid by the persons applying for the same and such 12 work of copying was to be entrusted to the candidates appointed as copyists and popularly known as "Unpaid Candidates". The remuneration for copying each document was again on the sharing basis of 70 per cent to be paid to the candidate and the balance 30 per cent to be credited to the Government treasury under the head of account "I-Land Revenue Miscellaneous". The copying work was entirely entrusted to such Unpaid Candidates and it was not required to be undertaken by a regular member of the office establishment. However, as and when such regular employees were assigned the work of copying documents, the entire amount of fees received was to be remitted to the State Treasury, as was made clear by a subsequent Resolution dated 15/6/1972 by the State Government. 5. O.A. No.153 of 1991 was filed in the representative capacity by the Secretary of Bhoomi Abhilekh Vina-vetan Karmachari Sanghatna (an unregistered organisation) praying for the Government policy of employing "Unpaid Candidates" as arbitrary, illegal and null and void, as well as to issue directions for their regular absorption against the vacant posts and to extend them all such benefits under the Service Rules applicable to a regular permanent 13 employee with effect from the initial date of appointment in the Revenue and Forest Department. While partly allowing the said application, the Maharashtra Administrative Tribunal by its judgment dated 20/10/1992 directed as under : (a) Unpaid candidates who have put in more than ten years of service should be given preference by relaxing their age for their absorption in Land Records Department, if they fulfil the conditions of qualifications and registration with the Employment Exchange in accordance with the orders issued by the Government vide Government Resolution dated 17/10/1978 without referring them to the Regional Subordinate Selection Board. (b) Unpaid candidates who had put in less than ten years service but were overage should be given three more chances to apply to the Regional Subordinate Selection Board. (c) Unpaid candidates who were within the age limit should be permitted to apply to the 14 Regional Selection Board or MPSC whenever posts suitable to their qualifications were advertised. And (d) Unpaid candidates should be selected for initial appointment from amongst the candidates sponsored by the District Employment Exchange instead of entertaining the direct applications and the condition that they would be free to apply to the Regional Selection Board or MPSC whenever posts suitable to their qualifications are advertised should be incorporated in the appointment order itself. 6. The State Government had belatedly challenged this decision of the Maharashtra Administrative Tribunal in an SLP which came to be dismissed by the Supreme Court on 14/7/1995. Per force, the State Government issued its Resolution dated 21/10/1995 for implementation of the directions set out by the MAT in O.A. No.153 of 1991. The Unpaid Candidates with more than ten years of service were directed to be absorbed against available vacant posts if they satisfied the prescribed requirements of educational qualifications 15 and their names were registered with the employment exchange, but without referring their cases to the Regional Selection Board and also by relaxing the maximum age limit. Those who had put in less than ten years of service but had crossed the higher age limit were allowed to apply to the Regional Selection Board three times, as and when proclamations for recruitment were issued. It is thus clear that those who were appointed as Unpaid candidates on or upto 20/10/1982 were required to be absorbed against available regular vacancies whereas those who joined after 20/10/1982 were allowed to take three chances by applying to the Regional Selection Board for regular employment under the State Government and by relaxing the higher age limit prescribed and provided that every one of them possessed the minimum qualification of SSC. 7. Some of the unpaid candidates from Revenue Department approached the Aurangabad Bench of MAT and filed O.A. No.895 of 1995. When O.A. No.895 of 1995 was decided on 30/11/1995 the G.R. dated 21/10/1995 was already holding the field but the applicants were working on licence basis for more than ten years. The Tribunal made it clear that by no stretch of imagination the applicants could claim to have a right 16 of preference over the applicants in O.A. No.153 of 1991 and in the matter of getting regular employment under the Government. Only on account of compassionate consideration the Tribunal directed the State Government to frame a scheme as envisaged in its earlier judgment dated 20/10/1992 for ad-hoc appointments. The State Government issued a G.R. dated 22/10/1996 for the absorption of the Unpaid candidates in the Revenue Department and fixed 30th November 1995 as the cut off date which implied that those Unpaid candidates who had completed ten years of service as on 30/11/1995 would be entitled for absorption by following the order dated 30/11/1995 in O.A. No.895 of 1995. It was also made clear that such absorbed candidates would not be eligible for leave salary and pensionary benefits for the period they had worked as Unpaid candidates. 8. Inspite of both these Resolutions issued by the State Government for absorption of the Unpaid candidates, the petitioners were either sought to be discontinued or were in fact discontinued as Unpaid candidates and when some of them had approached the Maharashtra Administrative Tribunal, it was contended by the State Government that the applicants being 17 Unpaid candidates, could not be termed as Government servants so as to invoke the Tribunal’s jurisdiction under the Administrative Tribunals Act, 1985 thereby implying that the applications filed by them were not maintainable before the Tribunal. Consequently this set of petitions came to be filed and admittedly a total of 184 Unpaid candidates were either discontinued or sought to be discontinued. Barring a total of 33 Unpaid candidates all others were continued in the respective Departments on account of the stay orders granted by this Court or by the Tribunal. The Unpaid candidates who were directed to be continued are about 151 and on account of the orders passed by this Court on 18th December 2003, 150 posts were directed to be kept vacant for their absorption subject to the final outcome of these petitions. In Writ Petition No.2150 of 1998 a Division Bench of this Court passed an order on 16/10/2002 and by referring to the amended Maharashtra Land Revenue (Inspection, Search and Supply of Copies of Land Records) Rules, 2001 the Unpaid candidates were directed to be paid a minimum salary of Rs.3200/- in addition to sharing of the fees if it exceeded the said minimum salary. These directions more particularly read as under: 18 "In our view the demand of the Unpaid candidates that they should be paid minimum salary of Rs.3200/- deserves to be accepted. Therefore, sharing ratio between the Government and Unpaid candidates shall be 30 percent and 70 percent respectively till Unpaid candidate receives a minimum salary of Rs.3200/-. However, over and above, the amount of Rs.3200/-, the sharing ratio of fees between the Government and Unpaid candidates shall be 75 per cent for the Government and 25 per cent for Unpaid Candidates. In other words Unpaid candidates shall be entitled to minimum salary of Rs.3200/- irrespective of whether they have been assigned any work or not, provided they attend the work place on all working days. However, in case copying charges payable to Unpaid candidates exceed Rs.3200/-, then ratio of sharing the fees shall be 75 per cent for the Government and 25 per cent for Unpaid candidates." These revised rates were directed to be made effective from October 2001 and the arrears were to be paid in two equal instalments. 19 9. When the State Government through the concerned Departments filed affidavits-in-reply in all these petitions, the reliefs sought for were opposed solely on the ground that the petitioners did not fulfil the qualifying service period of ten years as set out in the G.Rs. dated 21/10/1995 and 22/10/1996. It appears that during the pendency of these petitions one more G.R. came to be issued by the State Government on 10/3/2005. This GR refers to the orders passed by this Court in Writ Petition Nos.2067, 1885 and 1882 of 2002 for absorption of 126 Unpaid candidates as per the scheme framed by the State Government vide its G.R. dated 22/10/1996. Some of the petitioners who had not put in ten years of qualifying service as on the cut off date i.e. 30/11/1995 claim that as on 10/3/2005 they had completed ten years of service and, therefore, they are entitled for being absorbed under the scheme framed by the Government vide G.R. dated 10/3/2005. It has been admitted that none of the petitioners who are before us are given the benefit of the latest G.R. dated 10/3/2005 and all of them or the others who are similarly placed and are included in the total figure of 150 candidates are not given the benefit of absorption as per the said G.R. Though no reasons are given by the State Government for denying the benefits 20 of absorption as per the latest G.R. dated 10/3/2005, by filing an additional affidavit, it has been now contended by the State Government that in view of the Constitution Bench decision in the case of Secretary, State of Karnataka and ors. Vs. Umadevi and ors. [(2006) [(2006) [(2006) 4 SCC 1] 4 SCC 1] 4 SCC 1], the relief prayed for by the petitioners cannot be granted, though it is admitted that some of the petitioners were eligible for absorption pursuant to the G.R. dated 21/10/1995 as well as the second G.R. dated 22/10/1996. 10. In Writ Petition No.3127 of 1998 the Superintendent of Land Records, Mumbai Suburban District has filed an affidavit-in-reply and to the same the details of all these Unpaid candidates, most of whom are the petitioners before us, have been furnished. In the said affidavit the cut off date was treated to be 20/10/1992. However, we do not find any justification in fixing the cut off date as 20/10/1992 when in the G.R. dated 22/10/1996 the State Government itself has shifted the cut off date from 20/10/1992 to 30/11/1995 i.e. the date on which the second judgment of the Maharashtra Administrative Tribunal was rendered in O.A. No.895 of 1995. We, therefore, have no doubt in our mind that the abovementioned candidates were 21 illegally denied benefit for absorption as per the scheme formulated by the State Government vide its G.R. dated 22/10/1996 and they are eligible for being absorbed against the 150 posts directed to be kept vacant by this Court as per the order dated 18th December 2003 passed in Writ Petition No.2151 of 1998 and this has not been very seriously disputed by the learned AGP who addressed before us on behalf of the State Government. 11. Coming to the case of the remaining petitioners i.e. those who are not covered by the G.R. dated 22/10/1996, our attention has been invited by the learned AGP to the order passed by this Court in Writ Petition No.942 of 2004 on 4/2/2005, by relying upon the law laid down by the Apex Court in the case of A. Umarani vs. Registrar, Co-operative Societies & ors. [(2004) [(2004) [(2004) 7 SCC 112] 7 SCC 112] 7 SCC 112]. The petitioner in Writ Petition No.942 of 2004 had relied upon the G.R. dated 22/10/1996 and the cut off date as 30/11/1995 and prayed for directions for being regularised as the State Government employee. The order dated 4/2/2005 concluded in the following words: "4. It would, therefore, be clear that in 22 such appointments there can be no case of regularisation. No writ, therefore, could have been issued by this Court in such matters. We reiterate the said proposition as carved out from the judgment in A. Umarani (Supra). For the aforesaid reasons Rule discharged. There shall be no order as to costs. 5. Considering the law as laid down by the Apex Court in A. Umarani vs. Registrar, Co-operative Societies & ors. [(2004) 7 SCC [(2004) 7 SCC [(2004) 7 SCC 112] 112] 112] the State Government may take steps to issue G.R. in the matter of regularisation strictly in terms of the judgment in A. Umarani (supra) and as explained by this Court in this Judgment." If regards be had to the order of this Court in Writ Petition No.942 of 2004 following the law laid down in A. Umarani’s case (Supra), the State Government would have done well in not issuing the G.R. dated 10/3/2005, though the said G.R. states that it was issued in obedience of the orders passed by this Court in Writ Petition Nos.1882, 1885 and 2067 of 2002. It is not known whether the orders passed by this Court in 23 these three petitions were placed on record when Writ Petition No.942 of 2004 was decided on 4/2/2005 and even otherwise the G.R. has been issued thereafter i.e. on 10/3/2005. Nothing stopped the State Government from filing a civil application in Writ Petition No.942 of 2004 to seek appropriate directions / modifications before issuing the G.R. dated 10/3/2005. The scheme framed for absorption vide the G.R. dated 10/3/2005 has, in fact, removed the cut off date and the scheme clearly envisages ten years or more service as on the date the G.R. was issued and now the State Government appears to have woken