(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 736 OF 1998 1. Harshwardhan Kashinath Sonwane, Age : Major, Occupation : Service, R/o. Panchayat Samiti, Nagar, District : Ahmednagar. 2. Somnath Laxman Lembhe, Age : Major, Occupation : Service, R/o. Panchayat Samiti, Akola, District : Ahmednagar. 3. Vasant Nivrutti Kurhade, Age : Major, Occupation : Service, R/o. Panchayat Samiti, Shevgaon, District : Ahmednagar. 4. Baban Natha Chipade, Age : Major, Occupation : Service, R/o. Balikashram Road, Bagade Mala, District : Ahmednagar. 5. Anil Baburao Dhore, Age : Major, Occupation : Service, R/o. Panchayat Samiti, Rahuri, District : Ahmednagar. 6. Raosaheb Baban Funde, Age : Major, Occupation : Service, R/o. Panchayat Samiti, Pathardi, District : Ahmednagar. .. Petitioners. (2) versus 1. The State of Maharashtra. .. Respondent no.1 deleted. 2. Chief Executive Officer, Zilla Parishad, Ahmednagar. 3. Project Director, District Rural Development Agency, Near Social Centre, Market yard, Ahmednagar. .. Respondents. ....................... Mr. V.S. Bedre, Advocate, for the petitioners. Respondent no.1 deleted. Mr. S.T. Shelke, Advocate, for respondent no.2. Mr. P.G. Gunale, Advocate, for respondent no.3. ........................ CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 5TH AUGUST 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. By way of present petition, the petitioners have sought a direction to the respondent no.2, to include the name of (3) the petitioners in the seniority list, for the post of Deputy Accountant, from the date of joining their service with the respondent no.2. 2. The petitioners were appointed as Deputy Accountants vide order dated 11th November 1983, in the establishment of the District Rural Development Agency. According to the petitioners, vide communication dated 16th July 1984, the services of the Deputy Accountants were directed to be treated as services on the establishment of the Zilla Parishad. The petitioners further contend that accordingly they were absorbed in the services of the Zilla Parishad in the year 1984 and thereafter, were also asked to pass the qualifying examination. The petitioners submit that accordingly the petitioners have passed the qualifying examination which is necessary for bringing them in the cadre of Deputy Accountant in Zilla Parishad. The petitioners submit that though the petitioners were entitled to be regularized in the services of the Zilla Parishad, from the date of their entry into service i.e. in the year 1983, they have been illegally regularized in the year 2003. It is, therefore, submitted that the petitioners are entitled to get a deemed date in the year 1983. 3. Mr. V.S. Bedre, learned Counsel appearing for the petitioners, submits that in view of the letter dated 16th July (4) 1984, it is clear that the services of the petitioner are transferred on the establishment of the Zilla Parishad. He submits that not only that, but the Chief Executive Officer of the Zilla Parishad vide his order dated 6th September 1991, has also regularized the services of the petitioners on the establishment of the Zilla Parishad. He further submits that the qualifying examination, which is necessary for bringing the petitioners in the cadre of Deputy Accountants on the establishment of Zilla Parishad, has already been cleared by the petitioner and, as such, the respondent / Zilla Parishad is estopped from denying the seniority to the petitioners in the cadre of Deputy Accountant from the year 1983. 4. Mr. S.T. Shelke, learned Counsel appearing for respondent no.2 / Zilla Parishad, on the contrary, submits that the Chief Executive Officer of Zilla Parishad acts in a dual capacity. In so far as Zilla Parishad is concerned, he acts as Chief Executive Officer, and in so far as District Rural Development Agency (For short, "DRDA") is concerned, he acts as Chairman of the said Agency. It is submitted that the petitioners were initially appointed as employees of the DRDA, which is a Cooperative Society, and not as employees of Zilla Parishad. He submits that it is only in pursuance to the Government Resolution dated 21st October 2000, that the Government has resolved to absorb the services of the employees working in (5) DRDA, on the establishment of Zilla Parishad. He submits that in accordance with the said Government Resolution, the services of the petitioners have been absorbed vide order dated 9th October 2003. He submits that the aforesaid Government Resolution specifically provides that the petitioners would be entitled to seniority in the Zilla Parishad and their seniority would be counted from the date on which they entered into Zilla Parishad. He, therefore, submits that the petition, being devoid of merit, is liable to be dismissed. 5. From the record, it clearly appears that the petitioners were initially appointed as employees on the establishment of DRDA. It further appears that since the services in the said Agency are not pensionable, a demand was made by an association of the employees working in DRDA, for absorbing them in the services of Zilla Parishad. The Government of Maharashtra had appointed a Committee under the chairmanship of the Joint Secretary, Rural Development and Water Conservation, vide Government Resolution dated 26th May 1998. The Committee, taking into consideration the difficulties working in the DRDA and particularly, that the employees in the DRDA were not entitled to get pension and gratuity, recommended that the services of the said employees should be absorbed in the establishment of Zilla Parishad. On the basis of the recommendations of the Committee, the State legislature (6) amended the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (For short, hereinafter referred to as "the said Act") and inserted Section 242D therein. The said Section specifically provides for transfer of the employees of DRDA to Zilla Parishad. 6. Perusal of Section 242D of the said Act would reveal that the employees in Class-III and Class-IV cadre, who were directly recruited by DRDA, were to be transferred to the concerned Zilla Parishad, against the existing posts in appropriate cadres. The said services were to be absorbed from the date as may be specified by the State Government. The said Section clearly provides that the Government would specify different dates for different employees. Sub-Section 2 of Section 242D provides that after absorption of the services of such employees of DRDA, on the establishment of Zilla Parishad, all terms and conditions of services in respect of pay, allowances, leave, transfer, retirement, pension, provident fund, etc. are to be regulated by the rules and orders which regulate the conditions of service of the members of the appropriate cadres of the Zilla Parishad. Sub-Section 3 of the said Section clearly provides that the employees so transferred to Zilla Parishad shall be treated as the junior most in the appropriate cadre of the Zilla Parishad from the specified date. (7) 7. After amendment to the said Act, by insertion of Section 242D, the State Government issued Government Resolution dated 21st October 2000. The said Government Resolution specifically provides that for absorption of employees of DRDA, no separate post would be created. It has been provided that the employees of DRDA would be absorbed against the appropriate posts falling vacant in the Zilla Parishad. Clause 3 of the said Government Resolution provides that on the date of absorption, such employees would be treated as junior most in the said cadre. Clause 4 of the said Government Resolution further provides that the services rendered by such employees, on the establishment of DRDA, would not be considered for the purpose of seniority, but would only considered for the purpose of pension and gratuity. Vide the communication dated 28th October 2002, the State of Maharashtra again directed the concerned Zilla Parishad to take necessary steps for absorption of such employees on the establishment of Zilla Parishad. Accordingly, the respondent / Zilla Parishad, vide order dated 9th October 2003, has absorbed the petitioners on the establishment of Zilla Parishad. 8. It is, thus, clear that the statute specifically provides that the employees who were initially working on the establishment of DRDA, on their absorption in the services of Zilla Parishad, would be treated as junior most employees in (8) their cadre. Needless to state, that if there is conflict between a statutory provision and any communication by any authority of the State, it is always the statutory provision that would prevail. In any case, we also do not find any conflict between the statutory provision and the communication on which Mr. Bedre, learned Counsel for the petitioners, relies. The communication dated 16th July 1984 only provides that the employees working in DRDA should be treated as temporary additions to the respective cadres in the Zilla Parishad. So also, the order dated 6th September 1991, issued by the Chief Executive Officer, Zilla Parishad, Ahmednagar, only provides for temporary absorption of the petitioners. Neither of these orders provide for temporary absorption of petitioners in the cadre of Zilla Parishad. 9. In that view of the matter, the petition is found to be without merit and, as such, it is dismissed. Rule is discharged. However, there shall be no order as to costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp736