Writ Petition Nos. 2388, 2771, 2773, 2781, 2794, 2705, 2738, 2739 and 2740 of 2015. Case: Vikas Ashokrao Dekate and Ors. Vs State of Maharashtra and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition Nos. 2388, 2771, 2773, 2781, 2794, 2705, 2738, 2739 and 2740 of 2015 |
| Counsel | For Appellant: R.L. Khapre, Advocate and For Respondents: S.V. Manohar, Senior Advocate and B.H. Dangre, Government Pleader |
| Judges | B. P. Dharmadhikari and P. N. Deshmukh, JJ. |
| Issue | Constitution of India - Articles 14, 19, 21, 226; Maharashtra Regional and Town Planning Act, 1966 - Section 14; Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 - Sections 100, 253BB; Societies Registration Act, 1860 - Section 5 |
| Judgement Date | May 06, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
B. P. Dharmadhikari, J.
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By these petitions under Article 226 of the Constitution of India, petitioners seek declaration that condition in their appointment order or restricting tenure of their appointments be declared as bad. They seek a direction to regularize their services from the date of their appointment, and to extend them pay-scales as mentioned in Government Resolutions dated 24.01.2007, 22.01.2010 and 13.03.2013. Prayers have been later on amended to seek regularization in services of Zilla Parishad and for quashing circular dated 14.09.2015 by which the respondents wanted to proceed with the recruitment. This Court has on 24.04.2014, after noticing interim orders passed at Aurangabad Bench in Writ Petition No. 4465/2014, directed the respondents not to take any steps to their prejudice and said interim orders continue to operate even today. On 14.10.2015, this Court also ordered that if any steps to fill in vacancies in respective respondent No. 5 Zilla Parishads were initiated, petitioners would be entitled to apply for consideration of their claim for regularization.
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It appears that efforts were being made to dispose of the Writ Petition finally at the stage of admission as respondents pointed out that similar challenge was dismissed by the Aurangabad Bench of this Court while considering Writ Petition Nos. 4896 and 4988 of 2015 on 07.05.2015.
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Accordingly, we have heard Shri R.L. Khapre, learned Counsel for the petitioners and Shri Sunil Manohar, learned Senior Advocate with Mrs. B.H. Dangre, learned Government Pleader for State of Maharashtra and its officers. Shri P. Thakare, learned Counsel has argued the matter on behalf of respondent Zilla Parishad, Wardha.
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As State Government has raised preliminary objection, we have heard Shri Manohar, Senior Counsel first. He has taken us through various pleadings in the memo of writ petition to urge that the challenge is to the scheme essentially formulated by the Union of India and being implemented by the State of Maharashtra through respondent No. 2 Association constituted/formed as per the directions of the Union of India. The "Pradhan Mantri Gram Sadak Yojna" (PMGSY), is a special Scheme evolved by the Union of India, and is being financed by it, in the interest of Rural people. The scheme is essentially temporary in nature and the respondent No. 1 State Government or then the Zilla Parishads do not have any say about the terms and conditions subject to which the scheme functions. He points out that there is no prayer seeking regularization or absorption in any service with State Government and a prayer to absorb in the employment of respective Zilla Parishads has been added by amendment. He has invited our attention to various clauses in the scheme and to contention of petitioners that it is necessary to lift veil of incorporation. He submits that respondent No. 2 is created as per the directions of the Central Government and if veil is to be lifted, in this situation, Union of India is an essential party. He submits that lifting of veil, and therefore, holding that the arrangement as evolved is, sham or bogus, essentially pertains to domain of appreciation of disputed facts. Facts cannot be ascertained without hearing Union of India and without giving the party an opportunity to produce evidence. He heavily relies upon the orders passed at Aurangabad on 07.05.2015, to seek dismissal of Writ Petitions on this ground.
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Shri Khapre, learned Counsel states that in order to understand the exact nature of challenge and to point out how Union of India is not necessary party, it is necessary to look into the fundamentals of the scheme, the provisions of Constitution of India, responsibility cast upon Panchayat Raj System thereby and obligations of Zilla Parishads under Maharashtra Zilla Parishad and Panchayat and Panchayat Samities Act, 1961 and role of District Planning Authority. He states that when all this is considered together, it becomes clear that the construction of roads is a State subject as per Constitution and duty of either State or Zilla Parishad. Central Government is only releasing funds for said purpose and through those funds, roads are being constructed. He does not dispute that the respondent No. 2 is constituted and registered as a Society, as directed by the Central Government, however, he invites attention to its composition to show that it is nothing, but, State Government. Aims and objects as also bye laws of respondent No. 2 are pressed into service to urge that it is State Government which is acting indirectly through respondent No. 2. He relies upon bye law No. 34 to show that dissolution of society is possible only with the prior approval of State Government.
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Though, Union of India releases funds for construction of roads, salary or wages of employees is the responsibility of the State Government. Our attention is invited to "concept paper" to urge that even therein duty of State Government to construct and maintain road is accepted. The actual cost of construction of road is shouldered 50% each by Central Government as also State Government. Thus, for money invested by State Government, equal amount is also invested for road construction by the Central Government. In this situation, according to him, the Central Government is not a necessary party. He has relied upon Section 5 of the Societies Registration Act, 1860 to demonstrate how property of Society vests. Bye law Nos. 13.2, 13.4, 13.5.4, 13.5.7 as also provisions contained in Bye law No. 34 are heavily relied upon by him to urge that the respondent No. 2 Society is nothing, but, an agent of the State Government. It is a nodal agency to monitor the entire scheme.
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Vision document is also relied upon for this purpose. Our attention is drawn to provisions of Chapter 14.3, Chapter 11 to point out that the planning of roads is left to State Government only and it is co- related and coordinated with 5 years development plan. It is therefore, perpetual work. Provisions contained in Chapter 19 are relied upon for this purpose. Chapter 40 is also pressed into service to urge that maintenance of road is an essential facet of entire PMGSY. The road is to be completed in stipulated time, and thereafter, maintained by a contractor for initial period of 5 years, thereafter duty of it's maintenance and repairs etc., shifts to local body. According to him, this activity of construction of various roads is to continue till 2025, and thereafter considering the schedule of maintenance by a contractor and by the Zilla Parishads, the work of PMGSY has to continue in any case, upto the year 2042. He therefore, argues that in this situation, the work is of permanent and perennial nature. He submits that the District Panchayats play an important role in the entire scheme.
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Our attention is invited to Central Government Road Fund Act, 2000 and the schedule appended thereto, as also 2007 Rules framed thereunder. The levy or surcharge is recovered on sale of petrol/diesel and that amount goes to Central Government, which ultimately comes to State Government for constructing and maintaining roads. In view of this statutory arrangement, Shri Khapre, learned counsel submits that the Central Government cannot withdraw from the scheme, and as...
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