Sushil M. Ghodeswar, J.

1. Heard.

2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

3. Through the instant petition, the petitioner has made the following substantial prayers:-

                   “(B) By issuance of writ of certiorari or writ or order or direction in like nature, to quash and set aside the order dated 25/03/2009 passed by the respondent no.2; for that purpose issue necessary directions.

                   (C) By issuance of writ of Mandamus or writ or order in like nature, to direct the respondent no. 6 to prepare and forward the proposal before the competent authority for getting the retirement benefits to the petitioner and further direct to the respondent authorities to decide the same in stipulated time.

                   (D) By issuance of writ of Mandamus or writ or order in like nature, to direct the respondent authorities to confer the retirement benefits, pension, gratuity, arrears of salary and all other consequential benefits to the petitioner by considering the trained graduate primary teacher; for that purpose issue necessary directions.”

4. The learned advocate Shri Shelke appearing for the petitioner submitted that by the impugned order dated 25.03.2009, respondent No.2/ Divisional Commissioner i.e. Regional Director, Municipal Administration, Aurangabad, held that since no new posts are available, therefore, temporary teachers like the petitioner cannot be regularized.

5. Shri Shelke submitted that the petitioner possesses qualification of B.A., B.Ed. and he came to be appointed as ‘Assistant Teacher’ in the school run by respondent No.5 Municipal Council vide order dated 17.08.1992. According to the learned advocate, though his first appointment was on temporary basis, however, it is admitted position that his services were approved by the respondent authorities and he has rendered services without any break till his retirement on 31.10.2012.

6. Shri Shelke further submitted that in view of Government Resolution dated 17.06.2002, temporary Assistant Teachers, who are possessing requisite qualification and who are appointed in 1997-98, are to be regularized by absorption in vacant posts or by creating new posts. Therefore, the petitioner along with similarly situated teachers, approached this Court by filing Writ Petition No.910/2004 seeking direction to regularize their services from the date of their initial appointments. In Writ Petition No.910/2004, the learned AGP made the statement that respondent Nos.1 to 3 would grant necessary approval for regularization of the petitioners therein after considering their eligibility criteria and vacancy situation and bearing in mind the decision of this Court in Kondiba Dattarao Mirashee vs. State of Maharashtra and others, 2003(2) Mh.L.J. 432, within eight weeks. By accepting the said statement made by the learned AGP, this Court, vide order dated 18.03.2004, disposed of Writ Petition No.910/2004.

7. According to the petitioner, pursuant to the aforesaid order dated 18.03.2004, the proposal was submitted by the Municipal Council to the authorities for absorption of the petitioner and other similarly situated persons. However, respondent No.5 Municipal Council, vide letter dated 15.05.2004, has communicated the decision of respondent No.2 rejecting the proposal. Therefore, the petitioner along with other persons again approached this Court by filing Writ Petition No.3639/2005 challenging the order of rejection of proposal for regularization. This Court, vide judgment and order dated 29.01.2009, quashed and set aside the impugned order and remitted the matter back to respondent No.2 for a decision afresh in accordance with law.

8. It is the case of the petitioner that again respondent No.2, vide order dated 25.03.2009, rejected the proposal for regularization and absorption on the ground that 25% posts are already filled in by the Municipal Council and therefore, there is no vacancy at all to accommodate the petitioner. According to the petitioner, subsequently on 31.12.2012, the petitioner attained the age of 58 years, therefore, retired from service.

9. According to the petitioner, after his retirement, the petitioner approached the respondent authorities by filing representation dated 09.10.2013 requesting to confer retirement benefits, pension, gratuity and other consequential benefits. However, since the respondents did not consider the representation, the petitioner filed Writ Petition No.9917/2013. However, vide order dated 06.06.2016, Writ Petition No.9917/2013 was withdrawn with liberty to file the proceedings for challenging the order of respondent No.2 rejecting the proposal for regularization of service. Hence, the petitioner has filed the instant petition under Article 226 of the Constitution of India challenging the order of rejection dated 25.03.2009 and seeking other reliefs as quoted above.

10. In support of the above submissions, the learned advocate Shri Shelke has relied upon the judgment of the Hon’ble Supreme Court in Yashwant Hari Katakkar vs. Union of India and others, (1996) 7 SCC 113, wherein, it is held that the employee, who has put in 18 and ½ years of quasi-permanent service, shall be deemed to have become permanent and such services shall be treated as permanent and such employee shall be entitled to pensionary benefits.

11. The learned advocate Shri Shelke has also relied upon the judgment of this Court in Shivappa Bhujangappa Bembale vs. State of Maharashtra and another, 2005(3) Mh.L.J. 709, wherein, it is held that the petitioner therein, who served as part time peon in Zilla Parishad School for 20 years and was thereafter, taken on regular cadre in class-4 and served for three years in that cadre, is entitled to pension for rendering near about 13 years service in view of Note 1 of Rule 57 of the Maharashtra Civil Services (Pension) Rules, 1982.

12. Per contra, the learned advocate Shri Deshmukh appearing for respondent Nos.5 and 6 opposed the petition. He invited attention of this Court to the reply filed by the Municipal Council, dated 26.07.2019. According to Shri Deshmukh, the petitioner was appointed on temporary basis and was working in the school at the relevant time on temporary basis. Government Resolution dated 17.06.2002 relied upon by the petitioner as regards regularization and absorption, is in respect of appointment of Assistant Teachers on vacant posts. As there is no vacancy in the school of the Municipal Council in order to absorb the petitioner, therefore, his services could not be regularized.

13. Shri Deshmukh further submitted that the petitioner is appointed on purely temporary basis and as the petitioner was not made permanent, therefore, he is not entitled for any kind of retiral benefits. Thus, the main contention of Shri Deshmukh is that as the petitioner is not appointed on clear and vacant post, he is not entitled to receive benefits of Government Resolutions dated 17.06.2002 and 11.11.2011. He, therefore, prayed for dismissal of this petition.

14. The learned AGP has supported the submissions of Shri Deshmukh and additionally submitted that respondent No.2 has rightly rejected the proposal of the petitioner for regularization.

15. After perusing the record and after hearing the parties, admitted position is that the petitioner possesses qualification of B.A., B.Ed. and was appointed as Assistant Teacher in the school run by respondent No.5 Municipal Council vide order dated 17.08.1992 on temporary basis. Since his initial appointment in 1992, he was continued in service till his retirement on 31.10.2012 on attaining the age of superannuation.

16. Government Resolution dated 17.06.2002 issued by the State of Maharashtra prescribes that the teachers, who are possessing requisite qualification and are appointed on temporary basis till 1997-98, are entitled for regularization by absorption either on vacant posts or by creating new posts.

17. Initially, this Court disposed of Writ Petition No.910/2004, by recording the statement of the learned AGP that necessary approval for regularization would be granted within eight weeks by considering eligibility criteria and bearing in mind vacancy position in pursuance of the judgment of this Court in Kondiba Dattarao Mirashee (supra). However, since the proposal for regularization was rejected, the petitioner again approached this Court in Writ Petition No.3639/2005 and while allowing the said petition vide order dated 29.01.2009, this Court observed in paragraph No.4 as under:-

                   “4. It appears that pursuant to the directions of this Court the proposal submitted by the petitioners has been rejected by the respondents for reasons which we have referred to above. This petition has been filed in the year 2005 and has remained pending. At present the respondent Municipal Council is not in a position to point out to us the vacant posts which are available. Vaguely it is urged before us that on account of reduction of the schools certain Teachers have already been rendered surplus. Since the proposal submitted by the respondent Nagar Parishad to the respondent no.2 for regularisation of the services of the petitioner though has been decided but it has not been decided in the light of the ratio of Kondiba’s case (supra) as was directed by this Court to the respondents to consider, we allow this petition, quash and set aside the impugned order and remit the matter back to the respondent no.2 for a decision afresh in accordance with law. Respondent no.4 shall forward the earlier proposal with the present position of vacancy to respondent no.2 within four weeks from today. On receipt of the said proposal, respondent no.4 shall decide the said proposal in accordance with law within four weeks of its receipt and communicate the decision thereon to the petitioners.”

18. Despite the above directions of this Court, respondent No.2 again rejected the proposal vide impugned order dated 25.03.2009 citing the reason that no vacant post is available for graduate teacher in the school of Municipal Council. Therefore, presently since there are no posts vacant for graduate teachers, temporary teachers cannot be regularized. It was mentioned in the order dated 25.03.2009 that though there are 10 D.Ed. Teachers posts vacant, however, 27 D.Ed. teachers are claiming absorption on said 10 posts.

19. It is pertinent to note here that the petitioner has rendered service of about 20 years 02 months and 19 days in the schools run by respondent No.5 Municipal Council and that too without any break. Therefore, it is inconceivable that during such prolonged period of more than 20 years, no steps were taken by the authorities either to create posts or accommodate the petitioner, particularly when similarly situated employees were required to be considered under the Government Resolution dated 17.06.2002. It is also not appreciable that during all these 20 years, no post fell vacant where the petitioner could have been otherwise absorbed. It is also admitted position that the petitioner is qualified trained graduate teacher, therefore, he is entitled to receive salary as per regular Assistant Teacher.

20. It is also pertinent to mention here that Government Resolution dated 11.11.2011 prescribes that the teachers, who worked in local self government and were possessing B.Ed. qualification, were to be considered as trained teachers from the date of their initial appointments and they should be conferred with all retirement benefits.

21. The principle laid down in the judgment in Yashwant Hari (supra) squarely applies to the facts of the present case. The petitioner has rendered more than two decades of continuous service with the respondent Municipal Council, which cannot be termed as casual or intermittent. The long and uninterrupted tenure of service creates a legitimate expectation of being treated on par with regular employees, particularly for the purpose of retiral benefits. Denial of such benefits, despite continuous service, would defeat the very object of pensionary provisions, which are in the nature of social welfare measures.

22. In view of the above admitted factual position and in view of the specific averment of the petitioner in the petition that inspite of having vacant post in the schools run by the Municipal Council, the petitioner was not regularized or absorbed, the explanation submitted by the respondent authorities as regards not absorbing or regularizing the petitioner is not acceptable. We, therefore, hold that the petitioner being qualified graduate teacher and having worked for more than 20 years, is entitled for the reliefs sought by him in this petition. Hence, we allow this Writ Petition in terms of prayer clauses ‘B’ to ‘D’ as reproduced above.

23. Considering the prolonged service rendered by the petitioner, the repeated rounds of litigation forced upon him due to inaction on the part of the authorities, and the fact that he has now retired in 2012, any further delay in granting benefits would amount to a grave miscarriage of justice. In order to render complete justice, we direct respondent Nos.1 to 6 to complete all formalities with regard to prayer clauses B to D and grant all benefits as prayed by him in those prayer clauses, within THREE MONTHS from today.

24. Rule is made absolute in the above terms.