Gujarat High Court
Mahuva Nagar Palika Through Chief ... vs Vijuben Bhikhabhai Gohil on 4 September, 2025
NEUTRAL CITATION
C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11299 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16031 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 18869 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4980 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 4462 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 16530 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16588 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16526 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19526 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17827 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17826 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 18867 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MAHUVA NAGAR PALIKA THROUGH CHIEF OFFICER SANJAYBHAI
HATHIBHAI PATEL
Versus
VIJUBEN BHIKHABHAI GOHIL & ORS.
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Appearance:
MS.SANGEETA PAHWA for THAKKAR AND PAHWA ADVOCATES(1357)
for the Petitioner(s) No. 1
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NEUTRAL CITATION
C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025
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KHUSHBU D CHHAYA(8093) for the Respondent(s) No. 1
MR.ADITYA DAVDA, AGP for the Respondent(s) No. 2,3 IN SCA NO.18869
OF 2021, 4462 OF 2022, 4890 OF 2022, 11299 OF 2021 & 16031 OF 2021.
MR.MRUNAL DHOLARIA, AGP for the Respondent(s) No. 2,3 IN SCA
NO.16530 OF 2021, 16588 OF 2021, 16520 OF 2021, 19526 OF 2021 &
17827 OF 2021.
MS.FORUM BIMAL SUKHADWALA, AGP for the Respondent(s) No. 2,3 IN
SCA NO.17826 OF 2021 & 18867 OF 2021.
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Ms.Khushbu Chhaya waives service of notice of Rule on behalf of respondent No.1. Learned AGP's waive service of notice of Rule on behalf of respondent-State.
2. Since the issue raised in these petitions are similar, they are being decided by a common judgment. The facts of Special Civil Application No.18869 of 2020 of 2021 are taken for the purpose of adjudication.
3. These petitions have been filed by the petitioner-
Nagarpalika, challenging the judgment and award dated 18.03.2021 passed by the learned Industrial Tribunal, Bhavnagar, in Reference (I.T.) No. 93 of 2016. By the said award, the Tribunal directed the petitioner to regularize the services of respondent No.1 on the post of Page 2 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined Majoor with effect from 09.08.1998, and to pay the differential salary payable to a regular employee from the date of reference, i.e., 19.08.2016. The Tribunal further directed that the period from 09.02.1991 to 19.08.2016 shall be treated as notional for the purpose of continuity of service. However, it was clarified that the respondent-workman shall not be entitled to claim seniority, promotion, gratuity, or retirement benefits for the said notional period.
4. The brief facts of the case, as stated by the petitioners, are that the respondent-workman was engaged as a daily wage Majoor with the petitioner-Nagarpalika since 09.02.1991. On 19.08.2016, the respondent filed a complaint under Section 10(1) of the Industrial Disputes Act, 1947, before the learned Industrial Tribunal, Bhavnagar, seeking regularization of service on the post of Majoor or any other equivalent post in Class IV cadre from the date of initial appointment, along with all consequential benefits applicable to regular employees. In response, the petitioner-Nagarpalika entered appearance and filed a written statement, inter alia, contending that the respondent-workman, along with Page 3 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined similarly situated employees, had been engaged without following the due process of law; that none of them had completed 240 days of continuous service in any calendar year; that there was no sanctioned post of permanent Majoor available in the establishment; that the nature of the work was not perennial; and that the Nagarpalika was under severe financial constraints and unable to accommodate even its existing regular employees. Upon considering the evidence adduced during the adjudication proceedings, the learned Tribunal came to the conclusion that the petitioner had engaged in unfair labour practices, inasmuch as the respondent-workman had been continuously working since 1991 and was being paid minimum wages instead of the regular pay scale. Accordingly, the Tribunal, while partly allowing the reference, issued the impugned directions, which are under challenge in the present petitions.
5. Heard learned advocate Ms.Sangeeta Pahwa for the petitioner employer and learned advocate Ms.Khushbu Chhaya for the respondent employee.
6. Learned Advocate Ms. Pahwa, appearing on behalf of the Page 4 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined petitioner-Nagarpalika, submits that the benefit of permanency cannot be granted in the absence of a sanctioned post. Relying upon the decision of the Apex Court in Maharashtra State Road Transport Corporation & Others v. Casteribe Rajya Parivahan Karmachari Sanghatana reported in (2009) 8 SCC 556, it is contended that there is no sanctioned post of permanent Majoor in the establishment of the petitioner. The sanctioned set-up includes posts such as Khatar Majoor, Garden Majoor, and Anti Majoor, and the respondent-workman was allegedly engaged in miscellaneous construction-related work categorized as Anti Majoor. However, the respondent was not working under any of the sanctioned categories. It is also submitted by learned advocate Ms.Pahwa that admittedly, no juniors to the respondent workmen has been regularized. It is further submitted that mere continuation in service or length of service does not confer a right to regularization, as held by the Apex Court in Hari Nandan Prasad v. Employer I/R to Mangmt.of FCI & Anr. reported in (2014) 7 SCC
190. Learned advocate Ms.Pahwa submits that the Page 5 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined Tribunal committed an error in granting notional benefits such as seniority, pensionary benefits, and gratuity from 09.02.1991, even though regularization was ordered only from 09.02.1998. Learned advocate Ms.Pahwa submits that when regularization is granted from a specific date, no retrospective financial or service benefits prior to that date can be granted. 6.1. Learned advocate Ms.Pahwa submits that the reliance was placed on the evidence of Mr.Jignesh Rashmikant Shah who was regularized after seven years pursuant to the order passed by the learned Tribunal, without appreciating the fact that the said wager was appointed as a Clerk in Class III cadre on compassionate ground upon death of his father who was serving as an Accountant in the petitioner Nagarpalika. Without appreciating this factual distinction, the Tribunal wrongly extended similar benefits to the respondent- workman. Learned advocate Ms.Pahwa submits that it is settle position of law that when the post is available in the set up and the workers are working since many years, the benefit of permanency can be granted. However, in the present case, the post of Majoor is not Page 6 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined available in the sanction set up and no juniors to the present respondents were regularized, therefore, the benefit of permanency cannot be granted in favour of the respondents who are working on temporary basis. Learned advocate Ms.Pahwa submits that none of the respondents possessed the requisite educational qualifications for appointment to a permanent post. It is also submitted that the work performed by the respondent-workman is neither permanent nor perennial in nature and though the work done by the respondent workmen and by the regular employees are completely different and distinct, the learned Court has directed to grant the benefit of regularization to the respondent workman. Learned advocate Ms.Pahwa submits that the respondents were called only when the work was available, therefore, it cannot be said that they have served continuously and therefore, also impugned award deserves to be interfered with. Learned advocate Ms.Pahwa submits that the Nagarpalika is facing a severe financial crunch, with administrative expenditure constituting 83.62% of its total income for the year 2019-20 and even if posts are created for regularization, Page 7 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined the financial burden would be unsustainable. Therefore, too the impugned award deserves to be set aside. 6.2. Learned Advocate Ms. Pahwa submits that the post of Khatar Majoor falls under the Sanitation Department, and the duties attached to the said post involve cleaning garbage and removing fertilizers from the fields. Similarly, the post of Garden Majoor pertains to cutting grass and maintaining public gardens. The respondent- workman, however, was not engaged in either of these designated roles, and the nature of his work was entirely different. Learned advocate Ms.Pahwa submits that all the concerned workmen were engaged as Rojamdars, whose services were utilized by the Nagarpalika purely on a need-based, temporary basis. In the absence of any sanctioned post for the work being performed by the respondent, the learned Tribunal erred in directing the benefit of regularization. It is further submitted by learned advocate Ms.Pahwa that no similarly situated workman has been regularized, and even those senior to the respondent continue to work on a temporary basis. Granting relief to the respondent in such circumstances would result in discrimination against those senior Page 8 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined employees who are yet to be regularized. It is submitted by the learned advocate Ms.Pahwa that, as per the statutory procedure, if any vacant post is to be filled, the Regional Commissioner must submit a proposal to the Commissioner of Municipalities to obtain the necessary sanction. In the present case, on 21.04.2025, the Mahuva Nagarpalika submitted a proposal for filling up 20 posts of Safai Kamdar in accordance with the prevailing seniority list. However, till date, no such sanction has been granted, as the expenditure of Nagarpalika is around 53%. Learned advocate Ms.Pahwa submits that although 154 Class IV posts are shown as vacant in the sanctioned set-up, several senior employees have been awaiting regularization for years. It is, therefore, submitted that the benefit of regularization ought to be conferred, if at all, upon such senior employees first. Granting such a benefit to the present respondent, to the exclusion of those seniors, would be inequitable and unjust. Accordingly, the impugned award deserves to be set aside, and the petition filed by the employer is liable to be allowed.
7. Per contra, learned Advocate Ms. Chhaya, appearing on Page 9 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined behalf of the respondent-workmen, submits that all the respondents have rendered continuous service with the petitioner-Nagarpalika for more than 31 years. Learned advocate Ms.Chhaya submits that the petitioner has indulged in unfair labour practices by engaging the respondents as daily wage Majoors while extracting work of a permanent and regular nature. It is submitted by the learned advocate Ms.Chhaya that persons junior to the present respondents have already been regularized and have been assigned duties under different designations such as Clerk, Cleaner, Driver etc. Learned advocate Ms.Chhaya submits that the principle of "equal pay for equal work" is applicable in the present case, and although the respondents have been designated as Majoors, they have been discharging functions comparable to those of permanent employees. It is also submitted by learned advocate Ms.Chhaya that the respondents are even willing to accept regularization on equivalent posts such as Safai Kamdar and are ready to resume duty on such posts, if so directed. It is submitted by the learned advocate Ms.Chhaya that there are multiple vacant positions in Page 10 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined the Class IV category, including eight to ten posts of Cleaners, two posts in City Bus Maintenance, six vacant posts of Khatar Majoor, and two posts related to Bulb Fitting. Learned advocate Ms.Chhaya submits that the learned Labour Court, after duly considering evidence on record and assigning cogent reasons, has rightly allowed the reference in favour of the respondents. Accordingly, no interference is warranted with the well- reasoned award passed by the learned Tribunal, and the present petition filed by the employer is liable to be dismissed.
8. Having considered the submissions advanced by the learned advocates for the respective parties, and upon perusal of the material placed on record, it emerges that the respondents have been engaged as Majoors and have been discharging duties continuously since the year 1991. It is an admitted position that no post of Majoor exists in the sanctioned set-up of the petitioner- Nagarpalika. The nature of the work carried out by the respondents has been detailed in the affidavit filed by the Chief Officer of the Nagarpalika, which is placed on record at page 185 of the compilation. The relevant Page 11 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined details of the duties performed by all the respondents are reproduced hereinbelow:-
Sr. Name of Workmen Actual work done No. Earlier, she was working in Development Board for filling up pits on the road, putting blocks on public Vijuben Bhikhabhai Gohil 1 road, etc. (SCA No. 11299 of 2021) Now, she is working in offices of Nagar Palika and serving drinking water and cleaning work.
He is working in Development Board Keshubhai Bhikhabhai for filling up pits on the road, install 2 Chauhan speed breaker, collecting wastes of (SCA No. 16530 of 2021) demolished building structure, etc. Aljibhai Chhinterbhai He was doing repairing work of 3 Wagh handpumps of Nagar Palika. Retired (SCA No. 16588 of 2021) on 30.6.2022.
Earlier, he was working in water Pravinbhai Veljibhai works department and doing work of 4 Shiyal repairing valve.
(SCA No. 16526-of 2021) Now he is working as Valveman for water supply.
Jayeshbhai Mohanbhai
Gohil Through his LRs
5 He was working as Garden Majoor
(SCA No. 19526 of 2021(
(Died on 7.4.2020)
Chhitarbhai Nanjibhai
He is doing work of repairing street
6 Jitiya
light.
(SCA No. 18869,of 2021)
7 Bipinbhai Devduttbhai Earlier he was doing work of repairing
Joshi of street light.
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C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025
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Now he is working as peon in
(SCA No. 18867 of 2021) development department and serving
tea and water.
He is working in Development Board
Bhanjibhai Mangalbhai for filling up potholes on the road,
8 Parmar install speed breaker, collecting
(SCA No. 16031 of 2021) wastes of demolished building
structure, etc.
Earlier, he was working in
Development Board for filling up
potholes on the road, install speed
Nanjibhai Bhikhabhai
breaker, collecting wastes of
9 Chauhan
demolished building structure, etc.
(SCA No. 17826 of 2021)
Now he is working in water works
department and keeping watch in
filter plant of Nagar Palika.
Earlier, he was working in
Development Board for filling up
potholes on the road, install speed
Kantibhai UkabhaiJitiya
10 breaker, collecting wastes of
(SCA No. 17827 of 2021)
demolished building structure, etc.
Now he is working in water works
department and repairing motors.
Wakhatsinh Harjibhai Retired on 30.6.2023.
11 Wala He was working in Nagar Palika and
(SCA No. 4462 of 2022) repairing handpumps of Nagar Palika.
Earlier he was repairing street light.
Danabhai Somatbhai
Now he is working as peon in general
12 Bheel
department and serving tea and
(SCA No. 4980 of 2022)
water.
9. Upon considering the nature of duties performed by the respondents, it clearly emerges that although their Page 13 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined designations were shown as Majoors, the work assigned to them was of Class IV i.e. permanent and regular in nature. A perusal of the sanctioned set-up, which forms part of the petition at Page No. 189 dated 31.08.2016, indicates that there are sufficient vacant posts available in the Class IV cadre. This fact militates against the petitioner's stand that regularization could not be granted due to lack of sanctioned posts. At this stage, this Court would refer the recent decision rendered by the Apex Court in the case of Dharam Singh and others versus State of U.P. and Another in Civil Appeal No.8558 of 2018 dated 19.08.2025. In that case, the issue before the Apex Court concerned denial of regularization on the ground that recommendations for sanctioning Group 'C' and Group 'D' posts were rejected due to financial constraints and an alleged ban on creation of new posts. The Apex Court after considering the decisions rendered in Jaggo v. Union of India, Ghaziabad, Secretary, State of Karnataka & Others vs. Umadevi & Others and Shripal & Another v. Nagar Nigam in the said case has held as under :-
"7. Having heard the learned counsel for the parties and perused Page 14 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined the record, we are unable to endorse the approach adopted by the High Court. The original writ petition before the High Court expressly assailed the State's refusal dated 11.11.1999 to sanction posts for the Commission and sought a mandamus for creation of posts with consequential consideration for the appellants. The Single Judge of the High Court, and the Division Bench of the High Court in appeal, treated the matter as a bare plea for regularisation, answered it only on the touchstone of absence of rules and vacancy, and rested principally on Umadevi (Supra). In doing so, the Courts below failed to adjudicate the principal challenge to the State's refusal and the legality of its reasons. In our opinion, such non-consideration amounts to a misdirection and, in effect, a failure to exercise jurisdiction.
8. The State's refusal of 11.11.1999 cites "financial constraints"
and the subsequent decision of 25.11.2003 (taken after the High Court's direction to reconsider) adverts to financial crisis and a ban on creation of posts. Neither decision engages with relevant considerations placed on record, namely, the Commission's 1991 resolution and repeated proposals, the acknowledged administrative exigencies of a recruiting body handling large cycles, the continuous deployment of these very hands for years, and the existence of attendant work that is primarily perennial rather than sporadic. While creation of posts is primarily an executive function, the refusal to sanction posts cannot be immune from judicial scrutiny for arbitrariness. We believe that a non-speaking rejection on a generic plea of "financial constraints", ignoring functional necessity and the employer's own long- standing reliance on daily wagers to discharge regular duties, does not meet the standard of reasonableness expected of a model public institution.
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9. Moreover, it is undisputed that the nature of work performed by the appellants, i.e. sorting and scrutiny of applications, dispatch and office support, and driving, has been continuous and integral to the Commission's functioning since their engagement between 1989 and 1992. The Commission itself moved for sanction of fourteen posts and furnished a list of fourteen daily wagers including the appellants. That consistent internal demand, coupled with uninterrupted utilisation of the appellants' labour on regular office hours, fortifies the conclusion that the duties are perennial. To continue extracting such work for decades while pleading want of sanctioned strength is a position that cannot be sustained.
10. It must be noted that the premise of "no vacancy" is, in any event, contradicted by the evidence on record. An RTI response of 22.01.2010 received from the office of Respondent No.2 indicated existence of Class-IV vacancies. Furthermore, I.A. No. 109487 of 2020 filed before this Court by the appellants specifically pointed to at least five vacant Class-IV/Guard posts and one vacant Driver post within the establishment. That application also set out the names of similarly situated daily wagers who were regularised earlier within the same Commission. No rebuttal was filed to the I.A. The unrebutted assertion of vacancies and the comparison with those who received regularisation materially undermine the High Court's conclusion that no vacancy existed and reveal unequal treatment vis-à-vis persons similarly placed. Selective regularisation in the same establishment, while continuing the appellants on daily wages despite comparable tenure and duties with those regularized, is a clear violation of equity.
11. Furthermore, it must be clarified that the reliance placed by the High Court on Umadevi (Supra) to non- suit the appellants is misplaced. Unlike Umadevi (Supra), the challenge before us is not Page 16 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined an invitation to bypass the constitutional scheme of public employment. It is a challenge to the State's arbitrary refusals to sanction posts despite the employer's own acknowledgement of need and decades of continuous reliance on the very workforce. On the other hand, Umadevi (Supra) draws a distinction between illegal appointments and irregular engagements and does not endorse the perpetuation of precarious employment where the work itself is permanent and the State has failed, for years, to put its house in order. Recent decisions of this Court in Jaggo v. Union of India4 and in Shripal & Another v. Nagar Nigam, Ghaziabad5 have emphatically cautioned that Umadevi (Supra) cannot be deployed as a shield to justify exploitation through long-term "ad hocism", the use of outsourcing as a proxy, or the denial of basic parity where identical duties are exacted over extended periods. The principles articulated therein apply with full force to the present case. The relevant paras from Shripal (supra) have been reproduced hereunder:
"14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are "illegal" and those that are "irregular," the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor-based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on Page 17 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.
15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records- despite directions to do so-allows an adverse inference under well-established labour jurisprudence.
Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite "temporary" employment practices as done by a recent judgment of this court in Jaggo v. Union of India3 in the following paragraphs:
"22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such Page 18 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.
.........
25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:
• Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. • Arbitrary Termination: Temporary present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for Page 19 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.""
12. We also note the Commission's affidavit filed in 21.04.2025 pursuant to the order of this Court dated 27.03.2025, wherein reference has been made to a supervening reorganisation in 2024, whereby the U.P. Higher Education Services Commission was merged into the U.P. Education Services Selection Commission and, by a Government Order of 05.07.2024, certain Group-C posts were sanctioned while Class-IV/Driver requirements were proposed to be met through outsourcing. We must point out however, that supervening structural change cannot extinguish accrued claims or pending proceedings. The successor body steps into the shoes of Page 20 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined its predecessor subject to liabilities and obligations arising from the prior regime. More fundamentally, a later policy to outsource Class- IV/Driver functions cannot retrospectively validate earlier arbitrary refusals, nor can it be invoked to deny consideration to workers on whose continuous services the establishment relied for decades.
13. As we have observed in both Jaggo (Supra) and Shripal (Supra), outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission's further contention that the appellants are not "full-time" employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State's refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals.
14. The learned Single Judge of the High Court also declined relief on the footing that the petitioners had not specifically assailed the subsequent decision dated 25.11.2003. However, that view overlooks that the writ petition squarely challenged the 11.11.1999 refusal as the High Court itself directed a fresh decision during pendency, and the later rejection was placed on record by the respondents. In such circumstances, we believe that the High Court was obliged to examine the legality of the State's stance in refusing sanction, whether in 1999 or upon reconsideration in 2003, rather than dispose of the matter on a mere technicality. The Division Bench of the High Court compounded the error by affirming the dismissal without engaging with the principal challenge or the intervening material. The Page 21 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined approach of both the Courts, in reducing the dispute to a mechanical enquiry about "rules" and "vacancy" while ignoring the core question of arbitrariness in the State's refusal to sanction posts despite perennial need and long service, cannot be sustained.
15. Therefore, in view of the foregoing observations, the impugned order of the High Court cannot be sustained. The State's refusals dated 11.11.1999 and 25.11.2003, in so far as they concern the Commission's proposals for sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, are held unsustainable and stand quashed.
16. The appeal must, accordingly, be allowed.
17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.
18. Moreover, it must necessarily be noted that "ad-hocism"
thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If "constraint" is invoked, the record should show what alternatives were considered, why Page 22 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running.
19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions:
i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization Page 23 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined /retirement/death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment.
iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgement.
iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgement.
v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgement."
10. Considering the above decision of the Apex Court, as well as the facts of the present case, this Court is of the view that although the respondents were appointed under the nomenclature of Majoor, the work taken from the respondent employees by the the Nagarpalika was primarily perennial rather than sporadic. Denying the Page 24 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined benefit of regularization on the ground that no sanctioned post is available, despite the fact that the individuals have served for decades, would, in the opinion of this Court, amount to exploitation and constitute an unfair labour practice prohibited under the Industrial Disputes Act. One of the grounds raised for not regularizing their services was financial constraint;
however, the employer's own longstanding requirement for daily wagers to discharge regular duties itself highlights the unreasonableness of the public institution's stance. It is true that this Court cannot direct the creation of posts while exercising jurisdiction under Article 226 of the Constitution of India, as that falls within the domain of executive functions. Nevertheless, considering the nature of work performed, as reflected in the employer's own affidavit, if directions were issued to regularize the services on equivalent posts of Class-IV employees, it would serve the ends of justice.
11. Resultantly the petition is disposed of. The impugned award passed by the learned Labour Court is modified to the limited extent that the petitioner-Nagarpalika shall Page 25 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025 NEUTRAL CITATION C/SCA/11299/2021 JUDGMENT DATED: 04/09/2025 undefined grant the benefit of regularization to the respondents on an equivalent Class IV post, in accordance with law. The rest of the award shall remain unaltered.
12. Rule made absolute to the above extent.
(M. K. THAKKER,J) NIVYA A. NAIR Page 26 of 26 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025