Bombay High Court Denies Regularisation To Senior Citizen Under Employment Guarantee Scheme, Enhances Compensation Due To 37 Yrs Of Litigation

A division bench of Justice Ravindra V Ghuge and Justice YG Khobragade sitting at Aurangabad observed, “…workers working on the EGS are not a part of the process of recruitment and they neither have a right for continued employment, nor can they file ULP complaints under the MRTU and PULP Act, 1971 for claiming regularisation or permanency, nor can they raise an Industrial Dispute on account of being discontinued from the EGS.”

The court, while dismissing the man's writ petition, granted compensation of Rs. 2 lakhs to the petitioner considering that he had been litigating for 37 years and was now 60 years of age.

The petitioner, one Ashok Deshmukh, sought absorption under a Government Resolution (GR) dated December 01, 1995, for absorption of Mustering Assistants in Government services.

The petitioner was appointed under EGS on daily wages from November 01, 1985, to February 11, 1987. He was orally terminated on February 11, 1987. A labour court award on March 29, 1996, granted him reinstatement with continuity from February 11, 1987.

The HC in 2009 quashed the labour court award. The petitioner was, however, permitted to represent his case under the ambit of the GR dated December 01, 1995.

The State via an order dated October 27, 2010, concluded that the petitioner was ineligible for absorption, citing his non-employment on the cut-off date of May 31, 1993. Thus, he filed the present petition.

Advocate BR Warma for the petitioner drew attention to three juniors who were absorbed in service under the same Government Resolution even though they were not in employment as on May 31, 1996.

State relied on an affidavit-in-reply filed on July 01, 2011, by then Deputy Collector (EGS), Dhule. The affidavit emphasized that the mentioned candidates had court orders in their favour. He said the petitioner was a temporary worker during specific periods in 1985 and 1986.

He submitted that as per Clause 3.1 of the Government Resolution, only those Mustering Assistants who were in continuous service as on May 31, 1993, and whose names were included in the seniority list could be considered.

The court cited Chief Executive Officer, Zilla Parishad, Ahmednagar v. Daulat Narsingrao Deshmukh (2001) and Arvind G. Chaudhari v. Dhanraj Nathu Patil (2008) to emphasize that EGS workers are not entitled to relief under the MRTU & PULP Act, 1971 or the Industrial Disputes Act, 1947.

The court noted that the petitioner was working on EGS for limited durations over two calendar years and had put in around 370 days. Clauses 1.2 and 3.1 of the Government Resolution disentitled him from seeking regularisation, the court held.

However, the court relied on various Supreme Court judgments which awarded Rs. 40,000/- to 50,000/- per year of services to employees who worked for a very short period and were out of employment for a long duration as reinstatement in service or absorption would be impracticable.

“We are inclined to enhance the compensation amount since the Petitioner has worked for two years and is litigating for the last about 37 years. He has reached the age of 60 years as on date”, the court observed and awarded compensation of Rs. 1 Lakh per year of service.

The court directed the Executive Engineer, Public Works Division to deposit Rs. 2 Lakhs in court within sixty days. The petitioner was granted the liberty to withdraw the amount, subject to proper identification by the representing advocate and the submission of necessary documents.

Case no. – Writ Petition No. 2149 of 2011

Case Title – Ashok Bhikanrao Deshmukh v. State of Maharashtra and Ors.