The State of Maharashtra v. Anil Bhagwan Baviskar & Nana Baburao Sonawane

1. Rule. Rule made returnable forthwith. With the consent of parties, taken up for final disposal.

2. Petitioner-State Government has filed this petition challenging the judgment and order dated 17 June 2021 passed by the Maharashtra Administrative Tribunal (Tribunal) in Original Application No. 496 of 2020 as well as order dated 7 February 2023 passed by the Tribunal in Review Application No. 22 of 2022. The Tribunal has allowed the Original Application instituted by the Respondents holding that they are entitled to be absorbed in service in terms of the Government Resolution (GR) dated 16 October

2012. The Review Application filed by the State Government has been rejected by order dated 7 February 2023.

3. Briefly stated, facts of the case are that Respondents were engaged as Van Majoor (Forest Labourers) in Lion Safari Park of Sanjay Gandhi National Park, Borivali (SGNP) since the year 1998 onwards. GR was issued on 16 October 2012 inter-alia providing for absorption of Forest Labourers (Van Majoor), who have put in 240 days service in any of the five years during 1 November 1994 to 30 June 2004. For this purpose, 5089 supernumerary posts were created. Respondent claim that they have put in 240 days of service in five years and were eligible for being absorbed in terms of the GR dated 16 October 2012. Since the request for absorption was rejected, they instituted O.A. No.496 of 2020 before the Tribunal.

4. The Original Application filed by Respondents was resisted by the State Government by filing Affidavit-in-Reply taking Neeta Sawant 3/14 WP-7234-2023(fc) a vague stand that Respondents did not fulfill the criteria of working for 240 days in five years in terms of the requirement of GR dated 16 October 2012. It was also stated that records relating to Respondents were lost in the floods which occurred on 29 August 2017.

5. The Tribunal proceeded to allow the Original Application filed by Respondents by its judgment and order dated 17 June 2021 directing their absorption in service in terms of the G.R. dated 16 October 2012. The Tribunal held that failure on the part of the State Government to maintain records would not disentitle Respondents from seeking relief of regularisation. The Tribunal inter alia relied upon the report of the Chief Conservator of Forest & Director, SGNP, under which four employees including the two Respondents were held ineligible for absorption and order passed by it on 17 January 2020 in O.A. No.393 of 2019 directing absorption of the other two employees. The Tribunal therefore held Respondents to be eligible for absorption in service.

6. The Petitioner-State Government filed Review Application No. 22 of 2022 seeking review of the judgment and order dated 17 June 2021. In their Review Application, Petitioners contended that after the delivery of judgment dated 17 June 2021 by the Tribunal, confidential information was received from the administration of SGNP relating to attendance record relied upon the Respondents and that discreet enquiries conducted in pursuance thereof revealed commission of forgery on the part of Respondents. That Shri. Rasal who issued certificates to Respondents was never posted at Lion Safari Park, SGNP and that he had no authority to issue certificates to Respondents. Certain allegations were also leveled about the rubber stamp put on the certificates relied upon by Respondents. Neeta Sawant 4/14 WP-7234-2023(fc) The Tribunal however proceeded to reject the Review Application by its order dated 7 February 2023, holding that the application of the Respondents was beyond the scope of Order 47 Rules 1 and 2 of the Civil Procedure Code. Aggrieved by the main judgment and order dated 17 June 2021 allowing the OA as well as order dated 7 February 2023 rejecting the Review Application, Petitioner-State Government has filed the present petition.

7. Appearing for Petitioners, Mr. Samant, the learned AGP would submit that though specific case of forgery was put up before the Tribunal in Review Application, the Tribunal has brushed aside the same on the ground that the application was beyond the scope of Order 47 Rules 1 and 2 of the Civil Procedure Code. That the Tribunal ought to have considered and decided merits of the contentions raised in the Review Application. That the certificates relied upon by Respondents were forged as they were allegedly issued by an Officer having no authority to issue the same. That Shri. Rasal who issued those certificates was posted as Forester (Van Pal) at Tulshi Range of SGNP during the year 2013 and he had nothing to do with the administration of Lion Safari Park of SGNP. That conduct of discreet enquiries by the Superintendent of Lion Safari Park, SGNP revealed that Shri. Khadse was posted as Forester (Van Pal) at Lion Safari Park, SGNP during 2013 and he alone could have certified attendance of duties by Respondents. That the concerned certificates were not signed by Shri. Khadse. The charge of the post of ‘Forester (Van Pal), Lion Safari Park, SGNP’ was handed over by Shri. Khadse to Shri. Rasal on 6 June 2016 and that therefore Shri. Rasal had no authority to certify the attendance of duties by Respondents in the year 2013. This is particularly because the entire Neeta Sawant 5/14 WP-7234-2023(fc) records were lost in floods. He would further submit that the rubber stamp put on the certificates also does not inspire confidence as the same is different from the usual rubber stamp of the Forester (Van Pal), Lion Safari Park, SGNP.

8. Mr. Samant would further submit that at the time of filing of the Affidavit-in-reply opposing the O.A. on on 25 March 2021, Petitioner-State Government was not aware about the forgery committed by Respondents and the same came to light only after delivery of the judgment and order dated 17 June 2021. That therefore forgery committed by Respondents was a new and important fact, which was not within the knowledge of the Petitioners despite exercise of due diligence and that therefore this was a fit case where the Tribunal ought to have considered the merits of the contentions raised in the Review Application rather than rejecting the same being outside the scope of review. He would submit that absorption of two ineligible workers would put a huge financial burden on the State Government. That though State Government is not averse to absorption of eligible Forest Labourers, since certificates produced by Respondents are found to be fraudulent, Respondents cannot be absorbed in service. He would pray for setting aside impugned orders of the Tribunal.

9. Per-contra, Ms. Jagdale the learned Counsel appearing for Respondents would oppose the petition. She would submit that the theory of forgery was invented by the Petitioners after delivery of judgment and order dated 17 June 2021 by way of afterthought with sole objective of somehow denying legitimate right of absorption to Respondents. That Petitioners resorted to filing of Review Application and the present Writ Petition only after contempt Neeta Sawant 6/14 WP-7234-2023(fc) proceedings were initiated against them. She would further submit that if the records of the Respondents were indeed lost by the Petitioners, they could not have levelled bald and reckless allegations of forgery against Respondents. That Shri. Rasal has rightly certified service of Respondents after perusal of the records of the year 2013. That Shri. Rasal was also posted at SGNP and has necessary access to the relevant records relating to attendance by Respondents. She would pray for dismissal of the petition.

10. Rival contentions of the parties now fall for our consideration.

11. The issue that was raised by Respondents before the Tribunal was about their entitlement to absorption in service in terms of the G.R. dated 6 October 2012. Under that G.R., a special scheme was formulated by the State Government for absorption of daily labourers working in forests. As per the Scheme, daily labourers who had put in 240 days in five years during 1 November 1994 to 30 June 2004 were to be regularised w.e.f. 1 June 2012. It appears that the number of such daily labourers to be absorbed were identified as 6546. For absorption of such labourers, it was also decided to create 5089 supernumerary posts.

12. Respondents submitted representations for their absorption in terms of the G.R. dated 16 October 2012. They relied upon certificates issued by Forester (Van Pal) Lion Safari Park, Borivali certifying number of days of service put in during 1997 to

2004. However, they were not absorbed in service. It appears that a meeting was convened under the chairmanship of Chief Conservator of Forests and Director, SGNP, Borivali on 30 January 2014. In that meeting, cases of Respondents and two other labourers Shri. Pravin Neeta Sawant 7/14 WP-7234-2023(fc) Motiram Mire and Shri. Dharma Sonya Shanwar, working with Respondents at Lion Safari Park, SGNP were considered. It was held that after considering the number of days of service put in by them, they were not eligible to be absorbed in service. The other two individuals Pravin Motiram Mire and Dharma Sonya Shanwar approached the Tribunal by filing O.A. No.393/2019 seeking absorption in service. Their O.A. was allowed by the Tribunal on 17 January 2020 directing their absorption in service in terms of the GR dated 16 January 2012. Thus, the report of the Committee headed by the Chief Conservator of Forest and Director, SGNP was already a subject matter of scrutiny before the Tribunal and despite such an adverse report, the Tribunal directed absorption of Pravin Motiram Mire and Dharma Sonya Shanwar by its judgment and order dated 17 January 2020. Mr. Samant fairly concedes that the decision of the Tribunal in O.A. No.393 of 2019 was not challenged by the State Government and the same appears to have been implemented. The Tribunal has also relied upon similar decision delivered by it in O.A. No.1033/2016 (Sanjay B. Tokare & Ors. Vs. Chief Conservator of Forest) decided on 1 July 2017.

13. Thus the cases of the two Respondents were treated on par with Pravin Motiram Mire and Dharma Sonya Shanwar passed by the Committee headed by the Chief Conservator of Forest and Director, SGNP, Borivali. The other two workers are already absorbed in service. We therefore do not find any error on the part of the Tribunal in extending similar benefits to the Respondents. The Supreme Court has time and again held that similar benefits are required to be extended to similarly situated employees. Reference in this regard can be made to the Constitution Bench judgment in K.C. Neeta Sawant 8/14 WP-7234-2023(fc) Sharma and Others V/s. Union of India, (1997) 6 SCC 721 and another judgment of the Apex Court in the case of K.T. Veerappa and Others V/s. State of Karnataka and Others (2006) 9 SCC 406.