Bombay High Court

The Chief Officer, Municipal ... vs Vijaykumar Dnyaneshwar Goralkar on 17 March, 2016

Bench: R.V. Ghuge

                                                                                WP/11984/2014
                                                  1

                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                                
                                   WRIT PETITION NO. 11984 OF 2014




                                                        
     The Chief Officer,
     Municipal Council Bhusawal,
     Tq. Bhusawal, Dist.Jalgaon.                                  ..Petitioner




                                                       
     Versus

     Vijaykumar Dnyaneshwar Goralkar,
     Age 43 years, occ.Service,
     R/o 15, Pralhad nagar,




                                             
     Varangaon Road, Bhusawal,
     District Jalgaon.        ig                               ..Respondent
                                               ...
                          Advocate for Petitioner : Shri Wani Girish V.
                            Advocate for Respondent : Shri Patil S.R.
                                               ...
                            
                                   CORAM : RAVINDRA V. GHUGE, J.

Dated: March 17, 2016 ...

ORAL JUDGMENT :-

1. Heard.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition is

taken up for final disposal.

4. The petitioner is aggrieved by the judgment and order dated

21.2.2014 delivered by the Industrial Court, Jalgaon, by which, Complaint

(ULP) No.66 of 2008, filed by the respondent has been partly allowed.

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5. Shri Wani, learned Advocate for the petitioner has strenuously

criticized the impugned judgment. Contention is that though the

respondent has been working as a Sanitary Inspector from 1.8.2002 and is in

employment even today, his entry in service can be termed as being a back

door entry. While responding to his ULP complaint before the Industrial

Court, the petitioner has submitted its written statement denying that

there was any post of Sanitary Inspector vacant or available with the

petitioner. The petitioner can neither create posts nor appoint any person

on such posts without following the due procedure of law. Shri Wani further

submits that an employee can be appointed only through the District

Selection Board or the Maharashtra Public Service Commission. Merely

because the respondent has completed 240 days in continuous employment

and has been working with the petitioner, would not entitle him to seek the

benefit of regularization.

6. He further submits that the work of sanitation is performed by the

petitioner through contracts. The basic appointment of the petitioner was

without following any procedure. His temporary engagements were a result

of political influence and such an appointment cannot be regularized.

7. He further submits that the Industrial Court should have considered

these aspects before granting regularization. In fact, as the petitioner can

neither create post nor independently appoint any person on a vacant post,

the declaration of ULP made by the Industrial Court vide the impugned

judgment is a perverse and erroneous conclusion. He, therefore, submits

WP/11984/2014

that this petition be allowed and the impugned judgment be quashed and

set aside.

8. Shri Patil, learned Advocate appearing on behalf of the respondent

submits that though he was appointed on 1.8.2002 by the petitioner, till he

made a claim for regularization, the petitioner had no grievance as regards

the nature of his appointment. It is only after he made a claim for

regularization after working for almost six years, that the petitioner

suddenly realized that his appointment was made in an irregular manner.

9. He further submits that it is not the contention of the petitioner that

the respondent is incompetent or is not qualified to work as a Sanitary

Inspector. In short, the petitioner does not contend that his appointment is

illegal. It is only contended that his appointment is irregular since he was

appointed without following a particular procedure. He further states that

as on date he has put in about 14 years in employment. His past record is

unblemished and no disciplinary proceedings are pending against him.

10. I have considered the submissions of the learned Advocates.

11. This Court had called upon Shri Wani to respond to the document at

Exhibit "X", which is the information received by the respondent from the

petitioner under the Right to Information Act, indicating therein that newly

created two posts of Sanitary Inspector are available. Shri Wani tenders

across the Bar, a communication dated 29.2.2016, which is marked as

WP/11984/2014

Exhibit "Y" for identification. It is indicated by Exhibit "Y" that presently,

there are three posts in the Class III category of Sanitary Inspectors that are

vacant. They have to be filled in by following the due procedure of law and

the petitioner does not have the powers to issue any appointment order

without the Selection Process having been conducted by the District

Selection Committee.

12. In the light of the above, I do not find that there is any dispute as

regards the fact of appointment of the respondent, his unblemished past

service and his discharging of duties as on date. He has put in about 14

years in employment. The Industrial Court has considered the oral and

documentary evidence and on the basis of which the Complaint filed by the

respondent was partly allowed.

13. The Honourable Supreme Court in the matter of Secretary, State of

Karnataka Vs. Umadevi & Others [(2006) 4 SCC 1], has held in paragraph

No.44 as under:-

"44. One aspect needs to be clarified. There may be cases where

irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the

WP/11984/2014

principles settled by this Court in the cases above referred to and in

the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to

regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of

tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are

being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any

already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the

constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

14. It is thus apparent that the Honourable Supreme Court has

considered the difference between the irregular appointments and illegal

appointment. Directions have been issued to regularize the irregular

appointments, in relation to those employees who have worked for ten

years or more.

15. Considering the above, I deem it proper to direct the petitioner to

regularize the petitioner on one of the three posts of Sanitary Inspectors,

which are vacant from the date the said post has been created.

16. This petition being devoid of merits is, therefore, dismissed.

17. The petitioner shall accordingly submit the proposal of the

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respondent for his regularization as Sanitary Inspector on one of the three