Santosh Raghunath Ghavre vs Municipal Corporation Of Gr. ...
2004 Latest Caselaw 492 Bom

JUDGMENT

S. Radhakrishnan, J.

1. In the above petition, the petitioner is seeking a relief that the petitioner should be promoted to the post of Junior Engineer (Civil) in the respondent Corporation.

2. The brief facts are that the petitioner's father Raghunath S. Ghavre was working with the respondent Corporation and it appears that he had retired on 1-12-1993. Thereafter, it appears that the petitioner had applied to the respondent Corporation for being employed as a temporary Labourer. Ultimately, the respondent Corporation had issued a letter on 24-2-1995, informing him that he has been selected for the post of Labourer and he is having the seniority number three in the list, and by the said letter the respondent Corporation directed him to remain present in the Corporation for recruitment on 1-3-1995. In pursuance of the aforesaid letter, petitioner was duly selected as a Labourer and was recruited on 1-3-1995.

3. Simultaneously, while working as a Labourer with the respondent Corporation, the petitioner was also doing his Diploma Course in Civil Engineering (Part-Time). It may be noted here that right from 1-3-1995, the petitioner has been working as a temporary Labourer with the respondent Corporation cleaning the streets of Bombay and carrying out anti-flooding measures. While being in employment, the petitioner had been doing the aforesaid Part-Time Diploma Course in Civil Engineering. Finally, the petitioner passed the said Diploma in Civil Engineering (Part-Time), and the examination was conducted by the Board of Technical Examination, Maharashtra State and the results for the same were declared on 19-7-1997 wherein the petitioner has secured a First Class with 60% marks.

4. The petitioner had seen a circular dated 19-1-1998 issued by the respondent Corporation, wherein the respondent Corporation had sought applications from eligible Departmental candidates to prepare a waiting list for the post of Junior Engineer (Civil/Mechanical/Electrical). The said applications were invited from the Municipal Employees. The other requisite condition was that the aforesaid Diploma course should be atleast of three years after S.S.C. Examination and at least one full year or two last semesters of the Diploma Course should have been completed while in service with the respondent Corporation. The said circular also made it clear that the candidates ought to have passed the said Diploma course on or before the last date of the submission of application i.e. 19-2-1998.

5. The petitioner had duly applied for the said post of Junior Engineer (Civil). The petitioner was also called for an interview by the respondent Corporation by its call letter dated 10-8-1998, wherein he was directed to appear for the interview for the post of Junior Engineer (Civil) on 25-8-1998. It may be also noted that the petitioner had also submitted a Certificate issued by the Office Superintendent, "L" Ward, Mumbai Municipal Corporation, certifying that the petitioner was first appointed in "L" Ward on 1-3-1995 as a temporary Labourer for anti-flooding work. The Certificate is dated 19-3-1998. This Certificate was issued to the petitioner, and he produced the same in the respondent Corporation's office while appearing for the interview to the post of Junior Engineer (Civil). Ultimately on 25-8-1998, it appears that in the said interview, the petitioner was duly selected for the post of Junior Engineer (Civil) and was kept in the select list. It also may be noted that ten posts of Junior Engineer were available and for the same, ten in-service candidates had appeared, including the petitioner, and all the ten candidates had been duly selected for the post of Junior Engineer. Out of the said ten posts, eight candidates were appointed, ninth candidate had refused such a promotion and tenth candidate being the petitioner was not recruited. The petitioner's representations were turned down. Therefore the petitioner has approached this Court by filing the above Writ Petition for a direction, directing the respondent Corporation to recruit him as a Junior Engineer (Civil), for which post he has been duly selected. When this petition was filed, the learned Counsel for the petitioner states that, there were three vacant posts of Junior Engineer (Civil) and as such, the petitioner could have been easily appointed in any one of those posts.

6. This Writ petition was admitted by this Court on 14-9-1999 and hearing of the above petition was also expedited. Subsequently, this Court by its order dated 22-12-1999 had directed the respondent Corporation to keep one post of Junior Engineer (Civil) vacant until further orders.

7. The learned Counsel appearing on behalf of the petitioner, Shri Sawant, brought to our notice that there is a policy of the respondent Corporation to encourage in service candidates, who complete their further qualifications were to be promoted to higher posts. He brought to our notice the minutes of the Meeting held on 14-3-1997, wherein the Municipal Commissioner has indicated that the employees who have completed their studies while in service, their cases should be considered on a sympathetic ground and that they should be considered for appointment on vacant posts of Junior Engineer. The Municipal Commissioner had also observed that such employees experience in the Corporation would be useful, should be taken into consideration.

8. There is no dispute that right from 1-3-1995 the petitioner has been working as a temporary Labourer till date with intermittent breaks, carrying out the work of cleaning the streets, drains and adopting anti-flooding measures etc. While doing so, the petitioner has successfully completed his Diploma in Civil Engineering (Part Time) and had obtained a First Class, very creditably.

9. The learned Counsel for the petitioner Shri Sawant contended that the petitioner had duly applied to the respondent Corporation and had even forwarded the Certificate issued by the Office Superintendent dated 19-3-1998, wherein it is clearly mentioned that the petitioner's first appointment was in "L" Ward Office on 1-3-1995 as a temporary Labourer for anti-flooding measures. The said certificate also mentions that the certificate is being issued to produce the same before the Municipal Corporation while appearing for the interview for the post of Junior Engineer (Civil). Shri Sawant contended that the respondent corporation, after scrutiny of all the documents tendered by the petitioner, including the aforesaid certificate dated 19-3-1998 had duly called the petitioner for an interview for the post of Junior Engineer (Civil) by its letter dated 10-8-1998. Accordingly, the petitioner had appeared for an interview on 25-8-1998 and he was duly selected and his name was kept in the select list.

10. Shri Sawant, the learned Counsel for the petitioner, contended that the respondent Corporation being a Public body ought not keep the employees on a temporary basis for an indefinite period which causes tremendous misery to such an employee. In that behalf, Shri Sawant referred to a Division Bench Judgment of our High Court in Laxman Mahadev Teli v. Principal, Shri Pancham Khemraj Mahavidyalaya, 1988 Mh.LJ. 1039 wherein the Division Bench has observed as under :--

"A temporary employee cannot be kept in suspended animation indefinitely. It is unfair to an employee and an unwarranted privilege on an employer to keep an employee indefinitely in a temporary capacity and thereafter at his sweet will and pleasure and irrespective of the length of uninterrupted service put in, unceremoniously terminate the employment under the refuge that the employment was temporary."

11. Shri Sawant, also referred to the Judgment of the Hon'ble Supreme Court, in Delhi Municipal Karmachari Ekta Union (Regd.) v. P.L. Singh and Ors. . In the aforesaid Judgment also, the Hon'ble Supreme Court was of the view that there was no justification for the Corporation to extract the same amount of work from the workmen concerned on payment of daily wages at rates lower than the minimum salary which were being paid to other workmen who have been recruited regularly even though the workmen involved in that case have been working for a number of years, and the Supreme Court directed the respondent Corporation to pay the same wages to such temporary employees also as that of regular employees and also to provide corresponding dearness allowance. Therefore, the contention of the learned Counsel for the petitioner is that though the petitioner has been working since 1-3-1995 as a temporary Labourer with the respondent Corporation, the only ground on which the. petitioner though selected for the post of Junior Engineer (Civil), the respondent Corporation in denying him the said post, is that the petitioner was not employed as a "Regular Employee". It is the contention of the learned Counsel for the petitioner that the aforesaid action of the respondent Corporation is totally unreasonable, unfair and unjust and especially that too from a Public Corporation.

12. Under these circumstances, the petitioner prays that the respondent Corporation ought to be directed to recruit the petitioner as a Junior Engineer (Civil), as he has been duly selected for the said post as per the interview conducted by the respondent Corporation.

13. The learned Counsel Shri Mehta, appearing on behalf of the respondent Corporation sought to contend that the petitioner was only a "Khada Badlee" and as the petitioner has not been appointed as a regular Municipal employee, the petitioner was not eligible to get promoted as a Junior Engineer (Civil). However, the learned Counsel for the respondent Corporation could not dispute the letters issued by the respondent Corporation itself as indicated hereinabove i. e. letter dated 24-2-1995, indicating clearly that the petitioner was selected as a temporary Labourer with seniority number 3 and that he was asked to report for recruitment and also another letter dated 10-8-1998 calling the petitioner for an interview on 25-8-1998 for the post of Junior Engineer (Civil), so also the Certificate dated 19-3-1998 issued by the Office Superintendent, "L" Ward, certifying the first appointment of the petitioner on 1-3-1995 in that Wrd, as a temporary labourer.

14. Even after reporting for recruitment in pursuance of the letter dated 24-2-1995, the petitioner was issued a letter of appointment, indicating that he has been recruited as a temporary Labourer, whereas "Khada Badlee" is a daily wage employee, in a sense that "Khada Badlee" are employees on a day to day basis during the absence of regular employees.

15. The petitioner has been recruited clearly as a temporary Labourer. Therefore, the contention of the learned Counsel for the respondent Corporation that the petitioner is not at all eligible for recruitment to the post of Junior Engineer (Civil), as he was a "Khada Badlee", cannot be sustained. Shri Mehta contended that even if the petitioner were not to be a Khada Badlee, and as the petitioner has been a temporary Labourer, he is not a regular employee of the respondent Corporation, and as such, he is not entitled to be selected as a Junior Engineer (Civil).

16. After having considered all the aforesaid arguments and the material produced before us, we are clearly of the view that the petitioner was appointed as a temporary Labourer on 1-3-1995, as the above mentioned correspondence makes it abundanatly clear that the petitioner was not recruited as a "Khada Badlee". There is no dispute that right from 1-3-1995 till today, i.e. for over nine years, the petitioner has been working as a temporary Labourer with the respondent Corporation, as a Sweeper, and while in service, the petitioner has also obtained his Diploma in Civil Engineering with a First Class. There is also no dispute that the respondent Corporation, including the Municipal Commissioner have taken a decision that Municipal employees should be given a sympathetic treatment for recruitment to the higher post, who have completed their Diploma while in service. The petitioner apparently had completed his Diploma while in service with the respondent Corporation since 1-3-1995. The petitioner has complied with all the requisite conditions to be eligible for being considered for the post of Junior Engineer.

17. The only question is whether a temporary employee working for such a long period ought to be denied the post of Junior Engineer (Civil), though he was duly selected for the said post by the respondent Corporation. In the light of the aforesaid Judgment of our Court, as well as the Hon'ble Supreme Court, it is clear that a temporary employee cannot be kept in a state of suspended animation for an indefinite period. The respondent Corporation after scrutinizing all the requisite certificates, found the petitioner to be eligible for being called for an interview and duly selected him and had kept his name in select list of Junior Engineer (Civil), however, declined to appoint him solely on ground that he was not a regular Municipal employee. This conduct on the part of the respondent Corporation is unfair, unjust and unreasonable and also reprehensible and cannot be sustained. The same is clearly violative of Article 14 of the Constitution of India. It does not behove a public body like respondent Corporation to act in the above manner.

18. Under these circumstances, we hold that the petitioner was duly and appropriately selected for the post of Junior Engineer (Civil) and he was also eligible to such a post. We direct the respondent Corporation to promote the petitioner as a Junior Engineer (Civil), within a period of four weeks from today. Rule is made absolute in the above terms with costs. Issuance of certified copy is expedited.

19. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary or the Associate.