1 WP 2928.2002 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2928 OF 2002 Mahatma Phule Krishi Vidyapeeth Through its Deputy Registrar Laxman Baburao Temkar Age : 56 Yrs., Occ. Service, R/o : Rahuri, At Post, Tal. Rahuri, Dist. : Ahmednagar. .... PETITIONER V E R S U S 1. Smt. Shahabai Ganpat Padekar Age : Major, Occ. Nil., R/o : Puntamba, Tq. Kopargaon, Dist. Ahmednagar. 2. Keru Mahadu Kokate (Since deceased - through L.Rs. ) : 2--A. Smt. Nandabai W/o Keru Kokate Age : 55 Yrs., Occ. Household, R/o : Puntamba, Tq. Kopargaon, Dist. Ahmednagar. 2--B. Smt. Tarabai W/o Vishnu Desai Age : 38 Yrs., Occ. Household, R/o : C/o Smt. Nandabai W/o Keru Kokate, Puntamba, Tq. Kopargaon, Dist. Ahmednagar. 2--C. Smt. Rukhmini W/o Bhimraj Wagh 2 WP 2928.2002 - [ J ] Age : 35 Yrs., Occ. Household, R/o : C/o Smt. Nandabai W/o Keru Kokate, Puntamba, Tq. Kopargaon, Dist. Ahmednagar. 2--D. Kailas S/o Keru Kokate Age : 32 Yrs., Occ. Household, R/o : C/o Smt. Nandabai W/o Keru Kokate, Puntamba, Tq. Kopargaon, Dist. Ahmednagar. 3. Vinayak S/o Bhikaji Tribhuwan Age : Major, Occ. Nil, R/o : Puntamba, Tq. Kopargaon, Dist. Ahmednagar. 4. Laxman Ramchandra Gaike Age : Major, Occ. Nil, R/o : Khadamba, Tq. Rahuri, Dist. Ahmednagar. .... RESPONDENTS Mr. Pradeep Shahane, Advocate for the Petitioner Mr. R.P.Phatake, Asstt. Govt. Pleader for State. Mr. S.T.Shelke, Advocate for Resp. Nos. 1,2-A to 2-D and 3. Mr. C.K.Shinde, Advocate for Resp. No. 4. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 08/11/2011 3 WP 2928.2002 - [ J ] ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2 . The petitioner assails the order passed by the Industrial Court dated 17/11/2000, thereby directing the present petitioner to consider the qualified service of the complainants from 01/01/1978 and extend the benefits of pension and gratuity. 3. Mr. Pradeep Shahane, the learned counsel for the petitioner submits that the Award came to be passed in Reference (I.D.) No. 27 of 1984 on 01/04/1985. The petitioner pursuant to the said Award, granted permanency to present respondent nos. 1 to 3 from 01/04/1985 i.e. the day when the Award was passed and the post was sanctioned by the Govt. The respondents have accepted the said order of permanency and now they are estopped to contend otherwise. The learned counsel further contends that the orders of permanency were issued to the respondents in the year 1987 and they have not challenged the same. They have also retired and thereafter in the year 1982 have filed the dispute before the Industrial Court. The learned counsel contends that the Award passed in Reference ( I.D.) No. 27 of 1984 does not lay down the date as to when 4 WP 2928.2002 - [ J ] the permanency is to be granted. As such, the permanency was granted to the respondents from the date of Award and the date when the post was sanctioned. Even otherwise, unless and until the posts are sanctioned, no permanency can be granted. The learned counsel further contends that from 1985, the qualifying service of respondent nos. 1 to 3 will have to be counted and they had not completed the period of qualifying service to be eligible for pension. According to the learned counsel, the Industrial Court has not considered all these aspects. The learned counsel relies on the Judgment of the Apex Court in the case of Mahatma Phule Agricultural University & Ors. V/s Nashik Zilla Sheti Kamgar Union & Ors. Reported in 2001 III CLR – 4. 4. According to the learned counsel, as earlier the respondent nos. 1 to 3 were working on daily wages, the said service can not be considered for payment of pension. Their service was not on work charge basis and the payment was not from contingency fund. 5. The learned counsel also relies on the Judgment of the Apex Court in the case of Seccretary State of Karnataka and others V/s Umadevi and others reported in 2006 II CLR – 261 and another Judgment of the Apex Court in the case of Punjab Water Supply & Sewerage Board, Hoshiarpur V/s Ranjodh Singh and others reported 5 WP 2928.2002 - [ J ] in [ 2007 ( 2 ) Bom. LC – 567 ( SC) ] and contends that the respondents were not appointed by following proper procedure and they would not be entitled for the benefit of permanency as it would amount to back door entry. 6. Mr. S.T.Shelke, the learned counsel for respondent nos. 1 to 3 submits that the Award in Reference (ID) No. 27 of 1984 has become final and now can not be subject matter of challenge. The said Award has been confirmed by this Court in the Writ Petition filed by the petitioner. According to the learned counsel, even the Judgment relied by the petitioner of the Apex Court in the case of Mahatma Phule Agricultural University [ supra ] specifically says that it is not dealing with the Award passed in Reference ( ID) No. 27 of 1984. The learned counsel contends that the Industrial Court while passing the impugned order has properly considered all the aspects. 7. Mr. C.K.Shinde, the learned counsel for respondent no. 4 submits that respondent no. 4 was made permanent on 22/08/1978 and he retired on 31/01/1988. The petitioner was appointed in the year 1970 on work charge basis. So, 50 % earlier service shall be counted for pensionery benefit and the petitioner completes the qualifying service for the pension. 6 WP 2928.2002 - [ J ] 8. The fact that the Award in Reference ( ID ) No. 27 of 1984 has become final, is not disputed. The Industrial Court in the said Award has observed thus, “ I, therefore, accept this demand and direct that those who have completed more than six months on or before 01/01/1978 should be made permanent. The management is directed to make such of the employees as permanent who have completed more than six month’s services on or before 01/01/1978. They should also follow the same rules in respect of such employees who will be completing their services for more than six months after 01/01/1978 ”. 9. In view of the fact that the said Award has been made final and it specifically says that those who have completed more than six ( 6 ) months services on or before 01/01/1978 should be made permanent. There is no room for interpretation that the date was not mentioned and so the employee shall be made permanent from the date of Award. The Industrial Court has specifically said that those who have completed six ( 6 ) months services on or before 01/01/1978 shall be made permanent, so also has observed that the same rule would be followed in respect of the employees who would be completing their services of six ( 6 ) months after 01/01/1978. In view of that, the Industrial Court has not committed 7 WP 2928.2002 - [ J ] any error while passing the impugned order. The Judgment relied by the learned counsel for the petitioner in the case of Mahatma Phule Agricultural University [ supra ] also specifically observes that all the orders, wherein permanency has been granted ( except Award dated 01/04/1985 in Reference ( ID ) No. 27 of 1984 ) also stands set aside. The Award in in Reference ( ID ) No. 27 of 1984 was not set aside and the same would be binding on all the parties. 10. As far as respondent no. 4 is concerned, he was made permanent on 22/08/1978 and retired on 31/01/1988. It is also not disputed that respondent no. 4 was appointed in the year 1970 on work charge basis. As such, 50 % of his service from 1970 to 21/08/1978 shall be computed for pensionery benefits and full service from 22/08/1978 till the date of retirement shall be computed. 11. The arguments based on the Judgment in the case of Seccretary State of Karnataka and others V/s Umadevi and others [ supra ] can not be countenance at this stage as the respondents have already retired from the service. On the contrary, even the Award passed in Reference ( ID ) No. 27 of 1984 has become final, wherein directions were given to give permanency to these respondents. 8 WP 2928.2002 - [ J ] 12. In view of the above, no error is committed by the Industrial Court in passing the impugned order. 13. Rule is discharged. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 2928.2002 - [ J ]