1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.242 OF 2009 1. Arun s/o Hariharrao Kulthe, Age : 41 years, Occ.Service, R/o Nagar Parishad Colony, Darga Road, Parbhani, Tq. & Dist. Parbhani 2. Prakash s/o Manikrao Dudhate, Age : 46 years, Occ.Service, R/o Mauli Nagar, Khanapur Fata, Basmath Road, Parbhani, Tq. & Dist. Parbhani ..PETITIONERS VERSUS 1. The State of Maharashtra, Through : The Secretary, Rural Development and Water Conservation Department, Mantralaya, Mumbai – 32 2. The Divisional Commissioner, Aurangabad Division, Aurangabad 3. The Zilla Parishad, Parbhani, Dist. Parbhani Through : The Chief Executive Officer 2 4. The Zilla Parishad, Hingoli, Dist. Hingoli, Through : The Chief Executive Officer ..RESPONDENTS Mr V.D. Salunke, Advocate for the petitioners; Mr K.B. Choudhary, AGP for respondents no.1 & 2; Mr Sanjay Mundhe, Advocate for respondent no.3; Mr B.S. Munde, Advocate for respondent no.4. CORAM: P.V. HARDAS AND A.V. POTDAR, JJ. (Date of reserving the judgment : 20.07.2009 Date of pronouncing the judgment : 04.08.2009) JUDGMENT: [PER P.V. HARDAS, J.] Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. By this petition under Article 226 of the Constitution of India the petitioners pray for issuance of a writ of mandamus directing respondents no.2 to 4 to comply with the decision of the Government communicated as per letter dated 19.9.2007, which is annexed to the petition at Exh.”F” and to 3 absorb the services of the petitioner in Zilla Parishad, Parbhani. The petitioners also pray for issuance of a writ of certiorari for quashing and setting aside the communication dated 11.11.2008 issued by the Divisional Commissioner, Aurangabad, which is annexed to the petition at Exh.”K”. 3. Facts in brief as are necessary for the decision of this petition may be stated thus :- The petitioners claim to have been selected and appointed as Junior Clerk in the Zilla Parishad, Parbhani on 21.10.1986 and 12.4.1985, respectively. The petitioners thereafter were promoted to the post of Junior Accounts Officer. On 11.5.1999 Parbhani district came to be bifurcated and a new District i.e. Hingoli came to be formed. Accordingly, the Zilla Parishad at Hingoli came to be established from 11.5.1999. In order to cater to the newly established Zilla Parishad at Hingoli, the Government issued an order dated 29.4.1999 for transfer of several staff members of Zilla Parishad, Parbhani to Zilla Parishad, Hingoli with an option to seek for repatriation back to the parent Zilla Parishad. The Chief Executive 4 Officer of Zilla Parishad, Parbhani accordingly issued the aforesaid communications dated 31.5.2000 and 19.6.2000 and transferred the petitioners to Zilla Parishad, Hingoli. The order dated 19.6.2000 in very explicit terms refers to the general policy of the so called transfers from Zilla Parishad, Parbhani to Zilla Parishad, Hingoli and makes it clear that the persons like petitioners were transferred temporarily to Zilla Parishad, Hingoli. On 26.6.2001 the petitioners and other similarly situated employees submitted a representation for repatriation back to the parent Zilla Parishad and their absorption in the vacant posts in the parent Zilla Parishad. The proposal of the petitioners was pending consideration with the Government for quite some time and, therefore, other representations also came to be submitted which are annexed to the petition at Exh.”D”. Since no decision on the representations of the petitioners was taken by the State Government, one Govind Shankarrao Pagare filed Writ Petition No.2068 of 2004 in this Court and the Division Bench of this Court allowed the petition on 22.6.2005 directing the Government to decide the said representations within two months. Accordingly on 19.9.2007 the Government 5 took a decision to absorb the transferred employees in Zilla Parishad, Parbhani and communicated its decision to respondents no.2 to 4 by a communication dated 19.9.2007. Pursuant thereto, the respondent no.2 issued a communication dated 9.10.2007 and directed the authorities to comply with the order of the Government dated 19.9.2007. Pursuant thereto also, the respondent no.4 Zilla Parishad, Hingoli submitted its willingness for transfer of the employees back to Zilla Parishad, Parbhani on 24.12.2007. It is averred by the petitioners in this petition that Osmanabad District came to be bifurcated in 1982 and a new Zilla Parishad came to be established at Latur. Employees from Zilla Parishad, Osmanabad were transferred to the Zilla Parishad at Latur and subsequently they came to be absorbed in the parent Zilla Parishad as per the decision of the Government dated 3.11.2008. 4. Be that as it may, the Government again directed the Zilla Parishad, Parbhani by its communication dated 11.11.2008 and the Divisional Commissioner, Aurangabad to comply with the decision of the Government dated 19.9.2007. However, the Divisional 6 Commissioner by his impugned communication dated 11.11.2008 directed the Zilla Parishads not to absorb the petitioners. The petitioners, therefore, have accordingly filed the present petition. 5. On notice being issued to the respondents, respondents no.1 & 2 have filed their affidavit in reply. Respondents no.1 & 2 are the State of Maharashtra and the Divisional Commissioner. In the affidavit in reply which is sworn by Deputy Commissioner (Establishment) in the office of Divisional Commissioner, Aurangabad, it is stated that on account of bifurcation of Parbhani District, new District Hingoli came in existence. It is stated that after issuance of the final notification dated 17.3.2001 the services of the petitioners are permanently transferred to the Hingoli Zilla Parishad at Hingoli. It is the contention of respondents no.1 & 2 that the petitioners are permanent employees of Zilla Parishad, Hingoli and, therefore, they cannot seek their repatriation back to the parent Zilla Parishad and their consequent absorption in Zilla Parishad at Parbhani. Similar is the stand taken by the other respondents. 7 6. Undisputedly, the services of the petitioners came to be transferred to Zilla Parishad, Hingoli temporarily on account of establishment of the new Zilla Parishad at Hingoli consequent upon the bifurcation of Parbhani District. The Government orders issued in this behalf clearly stated that the employees had the option to seek repatriation back to the parent Zilla Parishad. The terms and conditions of seeking repatriation are also stated in this Government orders. Learned Counsel for respondents no.1 & 2 has not been able to substantiate their argument that the petitioners were transferred permanently from Zilla Parishad, Parbhani to Zilla Parishad, Hingoli. Learned Counsel for respondents no.1 & 2 has not been able to point out to us from the documents that the services of the petitioners were permanently transferred to Zilla Parishad, Hingoli. In that light of the matter, therefore, according to us it is not open for the respondents no.1 & 2 to contend for the first time, particularly in the face of the documents showing that the services of the petitioners were transferred temporarily, that the services of the petitioner were permanently 8 transferred to Zilla Parishad, Hingoli. At least no document has been brought to our notice during the course of argument to substantiate the aforesaid contention. In the light of that, therefore, according to us the petition deserves to succeed. 7. We accordingly allow this petition and direct the respondent no.2 Divisional Commissioner to pass necessary orders pursuant to the orders passed by the Government dated 19.9.2007. The order of the Divisional Commissioner dated 11.11.2008, therefore, is hereby quashed and set aside. Rule is thus made absolute on the terms indicated above with no orders as to costs. [ A.V. POTDAR, J ] [ P.V. HARDAS, J ] 9