Solapur Municipal Corporation vs Shankarrao Govindrao Patil

2024 INSC 423 Non-reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION {{{[

CIVIL APPEAL NOs. 9127-9132 OF 2018

Solapur Municipal Corporation … Appellant

Versus

Shankarrao Govindrao Patil and others Etc. … Respondents

with

CIVIL APPEAL NO. 9133 OF 2018

JUDGMENT

SANJAY KUMAR, J

1. Solapur Municipal Corporation, Solapur, preferred six appeals

aggrieved by the judgment dated 31.07.2013 passed by a Division

Bench of the High Court of Judicature at Bombay, in effect, allowing Writ

Petition Nos. 197 of 2012, 2011 of 2003 and 2432 of 2003, and also the Signature Not Verified

later order dated 08.08.2014 passed by the Division Bench, dismissing Digitally signed by Nisha Khulbey Date: 2024.05.15 18:15:24 IST Reason:

its review petitions filed in the aforestated three writ petitions. Thereafter,

1 another Division Bench of the High Court of Judicature at Bombay

followed the judgment dated 31.07.2013 and allowed W.P. No. 2463 of

2010 filed by another employee similarly situated to the petitioners in the

other three writ petitions on 09.03.2017. Assailing this order, Solapur

Municipal Corporation filed Civil Appeal No. 9133 of 2018.

2. By order dated 24.04.2015, this Court stayed the operation of the

impugned judgment dated 31.07.2013 till the next date of hearing.

Thereafter, while granting leave on 24.08.2018, the interim order was

made absolute.

3. The issue for consideration in these appeals is as to the status of

the respondents herein, viz., the petitioners in the four writ petitions

before the High Court, who were engaged in the service of Majarewadi

Gram Panchayat, which was merged with Solapur Municipal Corporation

(hereinafter, ‘the Corporation’) along with ten other gram panchayats

with effect from 05.05.1992. On 25.03.2003, the respondents herein,

along with others, were regularized in the service of the Corporation with

effect from 01.02.2003. Their claim before the High Court, however, was

that they should be treated as having been absorbed in the service of

the Corporation from 05.05.1992 itself, in view of the provisions of

Section 493(5)(c) of the Bombay Provincial Municipal Corporations Act,

1949. On the other hand, the Corporation contended that they were

2 continued on daily wage basis till 01.02.2003 and, therefore, their

employment from 05.05.1992 could not be treated as regular service.

4. The Division Bench placed reliance on the affidavit filed by a

Section Officer of the Urban Development Department, Government of

Maharashtra, confirming that 300 posts had been sanctioned in the

Corporation to accommodate the employees of the erstwhile gram

panchayats which had merged with it from 05.05.1992, and held that it

followed therefrom that the employment of such persons by the

Corporation stood regularized with effect from 05.05.1992. The Division

Bench, accordingly, disposed of the three writ petitions directing that the

services rendered by the writ petitioners before 05.05.1992 with the

gram panchayat till 05.05.1992 shall be treated as regular service

rendered to the Corporation; that the services rendered by them from

05.05.1992 till 01.02.2003 shall also be deemed to be regular service

rendered to the Corporation; and that, in view of the above, all service

benefits as well as retirement benefits should be extended to them, on

the footing that the services rendered by them from their respective

dates of appointment by the gram panchayat till 01.02.2003 shall be

deemed to be services rendered to the Corporation. The Corporation,

thereupon, preferred review petitions but the same were dismissed by

the Division Bench on 08.08.2014. The said order reflects that the Bench

found no error apparent on the face of the record, warranting review of

3 its judgment, and dismissed the review petitions. The order passed in

the fourth writ petition thereafter was on the same lines as the earlier

judgment.

5. The main issue for consideration before us is as to the

employment status of the respondents herein in the service of

Majarewadi Gram Panchayat. Pertinent to note, the respondents claim to

be the regular employees of the said gram panchayat as on the

appointed date, i.e., 05.05.1992. If so, they would be entitled to claim the

benefit of Section 493 of the Maharashtra Municipal Corporations Act,

1949 (hitherto, known as the Bombay Provincial Municipal Corporations

Act, 1949). Section 493 states that the transitory provisions in Appendix

IV shall apply to the constitution of the Corporation and other matters

specified therein. Clause 5 in Appendix IV is titled “Continuation of

appointments, taxes, budget estimates, assessments, etc.” and, under

sub-clause (a), to the extent relevant for our purpose, it states that any

appointment made under the Maharashtra Municipalities Act, 1965, or

any other law in force in any local area constituted to be a city

immediately before the appointed day, shall, in so far as it is not

inconsistent with the provisions of the Act, continue in force until it is

superseded by any appointment made under the Act or any other law as

aforesaid, as the case may be. Clause 5(c) states that all officers and

servants in the employ of the said municipality or local authority

4 immediately before the appointed day shall be officers and servants

employed by the Corporation under the Act and shall, until other

provision is made in accordance with the provisions of the Act, receive

salaries and allowances and be subject to the conditions of service to

which they were entitled to on such date. The first proviso thereto states

that the service rendered by such officers and servants before the

appointed day shall be deemed to be service rendered in the service of

the Corporation.

6. In the light of the above statutory setting, the employment status of

the respondents in Majarewadi Gram Panchayat assumes great

significance. It is only if they were regular employees of the said gram

panchayat that they would be entitled to seek protection of Clause 5 in

Appendix IV to the Maharashtra Municipal Corporations Act, 1949. The

Division Bench proceeded on the footing that they were regular

employees of the gram panchayat or, at least, treated them as such

upon the sanction of 300 posts by the Government of Maharashtra.

However, we find that in a similar writ petition, viz., W.P. No. 228 of 1996,

when the employees were referred to by the High Court in its interim

order as ‘part-time employees of the gram panchayat’, the employees

union filed a special leave petition before this Court, aggrieved by that

nomenclature. The special leave petition was dismissed, observing that

5 the status of the employees would have to be decided on its own merits

at the stage of the final hearing of the writ petition.

7. A copy of Resolution No. 98 dated 31.08.2002 passed by the

Corporation is placed before us and it reflects that the 300 employees

who were brought in due to boundary expansion of the Corporation were

resolved to be made permanent from the date of approval, but any

amount of earlier difference would not be permissible. It was further

resolved that their services with the Corporation would be considered for

pension and gratuity. It was also stated that, for including these 300

employees in permanent service from the date of Government approval,

the Resolution was approved. Acting upon this Resolution, the

Government sanctioned 300 posts on 25.03.2003 and consequential

proceedings of regularization were issued by the Corporation, stating

that the daily wage workers were appointed with effect from 01.02.2003

and clarifying that they would not be entitled to get any arrears in respect

of their service in the Corporation prior to that date.

8. The bone of contention between the Corporation and the

respondents is whether the respondents were daily wage workers in the

service of Majarewadi Gram Panchayat or whether they were its regular

employees, whereby they could be straightaway treated as servants of

the Corporation under Clause 5(c) in Appendix IV to the Maharashtra

Municipal Corporations Act, 1949.

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9. It is an admitted fact that no material was produced by the

respondents before the High Court to establish that they were regular

employees of Majarewadi Gram Panchayat before the appointed date.

However, before us, a photocopy of Majarewadi Gram Panchayat’s

Resolution No. 83(8) dated 20.03.1992, in Marathi along with an English

translation, has been produced. Therein, it is stated that all the

employees working with Majarewadi Gram Panchayat till the end of

31.03.1992 were permanently appointed on regular salary, together with

dearness allowance and other allowances. The names of such

employees, their designations and their salaries were set out thereafter.

Apart from this document, original orders of appointment in Marathi

issued by Majarewadi Gram Panchayat, along with English translations,

to some of the respondents have also been produced. The orders of

appointment are all dated 20.03.1992. These documents appear to be

genuine, on the face of it, and are duly authenticated by the officials

concerned.

10. The Corporation, on the other hand, would refer to Resolution

No.83(9) passed by Majarewadi Gram Panchayat on 20.03.1992,

whereby several appointments of seasonal nature were made on a

temporary basis. Details of some of the appointments so made are also

produced. It appears that, in all, 48 such appointments were made on

that day. A copy of the Resolution, filed as Annexure A-7, however

7 indicates that the appointments of those persons were to come into

effect only from 01.04.1992. Notably, Resolution No.83(8) was earlier

than Resolution No. 83(9), though both were passed on the same day,

viz., 20.03.1992. By Resolution No. 83(8), all the employees working

with the gram panchayat till 31.03.1992 were permanently appointed

whereas Resolution No. 83(9) specifically stated that the 48 temporary

appointments made thereunder were to come into effect only on

01.04.1992. Therefore, those 48 appointees were not entitled to claim

the benefit of Resolution No. 83(8).

11. It is further contended by the Corporation that some of the so-

called regular appointments are open to doubt and question. It is pointed

out that one Ilahibaksh Maqbool Bhagwan was only sixteen years of age

when he was appointed on 01.12.1990 as a ‘water man’ in the service of

the gram panchayat. Reference is also made to the Draft Notification

dated 01.11.1991, reflecting the details of the proposed merger of the

gram panchayats with the Corporation, issued by the Government of

Maharashtra long before the happening of the events in Majarewadi

Gram Panchayat in March, 1992, and it is contended that the entire

exercise of the gram panchayat, even if true, was not a bonafide one

and that no benefit could be extended to the respondents on the

strength thereof.

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12. Given the above controversy, we are conscious of the fact that the

High Court had no occasion to consider it, as the documents in question

were produced before us for the very first time. Though, ordinarily, we

would not allow documentary evidence to be produced belatedly at the

last stage, we are also mindful of the fact that the rights of several

workmen are at stake and the issue for consideration would invariably

turn upon the conclusions that are to be drawn from these new

documents. We are, therefore, of the view that minute verification and

examination of these documents would necessarily have to be

undertaken. Such an exercise would be more appropriate before the

High Court rather than this Court. Further documentary evidence may

have to be led, perhaps, in relation to these new documents and that is

not a task that we would normally undertake in exercise of jurisdiction

under Article 136 of the Constitution.

13. Ergo, we are of the opinion that the matter would have to be

reconsidered by the High Court of Maharashtra at Bombay in the light of

and on the strength of the new documents.

14. The appeals are accordingly allowed, setting aside the judgment

dated 31.07.2013 in Writ Petition Nos. 197 of 2012, 2011 of 2003 and

2432 of 2003 and the order dated 08.08.2014 passed in the review

petitions filed therein along with the order dated 09.03.2017 passed in

W.P. No. 2463 of 2010 and remanding the matter to the High Court for

9 reconsideration. The writ petitions shall stand restored to the file of the

High Court. Both parties may be permitted to bring on record such

documentary evidence as is deemed fit and necessary by the High

Court, for proper reconsideration of the case. The entire matter is left

open for adjudication afresh by the High Court. Given the antiquity of this

matter, we would request the High Court to give it due priority and

dispose it of as expeditiously as possible.

In the circumstances, the parties shall bear their own costs.

Pending applications, if any, shall stand disposed of.

............................,J (A.S. BOPANNA)

.............................,J (SANJAY KUMAR) May 15, 2024 New Delhi.

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