Mere Continuance Of Employee For A Long Period Does Not Create Any Right Of Regularisation In Service: Bombay HC
The Bombay High Court reiterated that mere continuance of an employee for a long period does not create any right of regularisation in the service.
The Court was dealing a writ petition filed by the Chief Officer, Pen Municipal Council, challenging the judgment of the Member, Industrial Court by which it partly allowed a complaint of a person and directed to regularise him on the post of Tax Inspector with a further direction to pay consequential and monetary benefits arising out of such regularisation.
A Single Bench of Justice Sandeep V. Marne said, “Industrial Court’s decision directing regularization of services of Respondent No.1 is under challenge in the present Petition. Since the issue involved in the Petition is about regularization of services, the discussion on the topic of regularization would be incomplete without making reference to the land judgment of Constitution Bench in Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., 2006 (4) SCC 1. The Apex Court has held that mere continuance of an employee for a long period does not create any right of regularisation in the service.”
The Bench added that the Apex Court has however carved out an exception in respect of only those employees whose appointments were made in an irregular manner against duly sanctioned vacant posts and where the employees have continued to work for ten years or more, but without the intervention of orders of the courts or of tribunals, the Union of India, the State Governments and their instrumentalities were directed to take steps to regularise their services as a one-time measure.
Advocate Rahul D. Oak appeared on behalf of the petitioners while Advocate Pavitra Manesh appeared on behalf of the respondents.
In this case, the petitioner, Pen Municipal Council was established under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The respondent person was engaged as Clerk to meet exigencies of service in accordance with the resolution adopted by the Municipal Council in 1997. He filed a complaint in the Industrial Court along with three other Clerks, apprehending the termination of their services. The said complaint was allowed and the petitioner was directed not to terminate the services of complainants.
In pursuance of such order of the Industrial Court, the services of the respondent were continued on the Clerk post. In 2003, he was appointed Tax Inspector on a temporary basis for 6 months. As per the petitioner, he was not entitled for the said post as he was neither qualified under the rules, nor was selected as a result of regular selection process. Hence, his services were terminated after expiry of 6 months and being aggrieved, he approached the Industrial Court and his complaint was partly allowed. Therefore, the petitioner was before the High Court.
The High Court after hearing the contentions of the counsel observed, “… in Hari Nandan Prasad, the Apex Court ruled that if posts are not available, issuance of directions for regularisation would be impermissible and that such directions cannot be issued only on the basis of number of years put in by a daily wager.”
The Court noted that the initial appointment of the respondent had all trappings of a regular appointment and though, he was virtually appointed on a regular basis, his tenure was restricted to 6 months, possibly on account of baseless apprehension expressed by the General Body of the Municipal Council that the post would lapse if not filled in within 6 months. It added that this was the only possible reason why the tenure of the appointment was limited to 6 months, though the same was virtually made on regular basis.
“The appointment of Respondent No.1 is thus made against the sanctioned vacant post. He was eligible to be appointed on the post and underwent selection process after his name was sponsored by the Employment Exchange. In my view therefore such appointment cannot be treated as backdoor entry. In addition to initial six months of service Respondent No.1 has been working on the post of Tax Inspector at least since the year 2012. Thus he has put in more than 10 years of service. The sanctioned staffing pattern vide order dated 30 October 2015 indicates one sanctioned post of Tax Inspector. In my view therefore Respondent No.1 clearly made out a case for regularization of his services”, it said.
Furthermore, the Court noted that the petitioner-Municipal Council raised fallacious defence before the Industrial Court that the respondent was not qualified to be appointed as Tax Inspector or that only Senior Clerks were eligible to be promoted to that post and the said defence was clearly contrary to the justification provided by the Regional Director, Municipal Administration.
“Petitioner-Municipal Council suppressed the fact that it had secured no objections from the other Senior Clerks for filling up the post of Tax Inspector by direct recruitment. This fact is borne out both by way of General Body resolution dated 24 June 2003 as well as letter of Regional Director of Municipal Council Administration dated 20 October 2006. Thus, the defences raised by Petitioner-Municipal Council before Industrial Court were clearly false and the material information was suppressed by them from the Industrial Court”, it also said.
The Court held that denying the relief of regularisation to the respondent would be against the principles of equity and fairness and therefore, the Industrial Court did not commit any error in allowing his complaint.
“No serious error can be traced in the impugned decision of the Industrial Court. Its order is unexceptional”, it concluded.
Accordingly, the High Court dismissed the writ petition.
Cause Title- The Chief Officer Pen Municipal Council & Anr v. Shekhar B. Abhang & Anr. (Neutral Citation: 2024:BHC-AS:20678)
Appearance:
Petitioners: Advocate Rahul D. Oak
Respondents: Advocates Pavitra Manesh and M.S. Topkar.
