Zibal Sadashiv Gajbhiye vs Municipal Council Thr. Chief ...
2021 Latest Caselaw 9536 Bom

                                                     1                   LPA-52-2011.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR

                 LETTERS PATENT APPEAL NO.52 OF 2011
                                  IN
                    WRIT PETITION NO. 4562 OF 2005

 Zibal Sadashiv Gajbhiye,
 Aged about : years,
 Occp : Service,
 R/o Kamptee, Tah. Kamptee,
 Distt. Nagpur.                                               ... APPELLANT

                               VERSUS

 1. Municipal Council, Kamptee,
    Tah. Kamptee, Distt. Nagpur,
    Through its Chief Executive Officer,

 2. State of Maharashtra,
    (Through its Secretary)
    Municipal Administration,
    Mantralaya, Mumbai - 32.

 3. President,
      Municipal Council, Kamptee,
      Dist. Nagpur.                                           ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 None for appellant.
 Shri S. W. Ghate, Advocate for respondent Nos.1 and 3.
 Ms. S. S. Jachak, AGP for respondent No.2.
 -------------------------------------------------------------------------------------------
                                CORAM: A.S. CHANDURKAR AND
                                             G. A. SANAP, JJ.

DATED : 20/07/2021

JUDGMENT : (PER : G. A. SANAP, J.)

1. The learned Member of the Industrial Court,

Nagpur vide order dated 02/08/2004 allowed the complaint filed

2 LPA-52-2011.odt

by the appellant in Complaint (ULP) No.798/1994 and granted

him permanency and all benefits arising therefrom for Class-IV

post with effect from the date of filing of the complaint i.e.

25/07/1994. The respondent No.1 had assailed the correctness of

this Judgment and order passed by the Industrial Court by filing

Writ Petition bearing No.4562/2005. The learned Single Judge

allowed the writ petition vide order dated 19/07/2010 and set

aside the order passed by the learned Member of the Industrial

Court, Nagpur and dismissed the complaint. The appellant has

assailed this Judgment and order passed by the learned Single

Judge in this Letters Patent Appeal.

The facts leading to the filing of this Letters Patent

Appeal are as follows :-

2. The respondent No.1 is a Municipal Council, a local

authority constituted under the Maharashtra Municipal Councils,

Nagar Panchayats and Industrial Townships Act, 1965. It is case of

the appellant that he has been in employment of respondent No.1

since 1983. He joined the employment on daily wages. He has put

in nearabout 30 years of service. It is stated that the respondent

3 LPA-52-2011.odt

No.1 granted benefits of permanency to other employees, who

have been similarly situated and joined in 1987. According to the

appellant, the respondent No.1 was under an obligation to grant

benefit of permanency to him and regularize his services.

3. The respondent No.1 opposed the case of the

appellant. It is contended that the appellant was employed on

daily wages. There was no vacancy when he was employed on

daily wages. The recruitment process was not initiated. It is,

therefore, contended that the claim of the appellant that he be

granted benefit of permanency in the public employment cannot

be sustained.

4. The learned Member of the Industrial Court,

Nagpur allowed the complaint filed by the appellant. The learned

Single Judge did not agree with the view taken by the learned

Member of the Industrial Court and as such, allowed the writ

petition and rejected the complaint (ULP) No.798/1994.

5. Being aggrieved by the Judgment and order passed

by the learned Single Judge, the appellant has come before this

4 LPA-52-2011.odt

Court in appeal. The grounds of challenge to the impugned order

have been set out in the Memo of Appeal. The main ground is that

the learned Single Judge has failed to appreciate the service of

nearabout 30 years put in by the appellant with the respondent

No.1. Another ground is that other employees appointed on daily

wages and more particularly, similarly situated have been granted

the benefit of permanency.

6. On the date of hearing, the appellant and his

advocate remained absent. With the help and assistance of the

learned advocate for the respondent Nos.1 and 3 and the learned

Assistant Government Pleader for respondent No.2, we have gone

through the record and proceedings. We have heard their

arguments on merits.

7. Learned advocate for the respondent Nos.1 and 3

submitted that the learned Single Judge has appreciated the facts

and the evidence in proper perspective and has applied the settled

law to the facts. The learned advocate submitted that the

employment with the respondent No.1 is public employment and

therefore, nobody can be allowed to take a backdoor entry without

5 LPA-52-2011.odt

giving an opportunity to compete with the other eligible

candidates. The learned advocate submitted that in view of the

law laid down by the Hon'ble Supreme Court of India in the case

of Secretary, State of Karnataka and others Vrs. Umadevi and

others, reported in AIR 2006 1806, the claim of the appellant

cannot be sustained. The learned Advocate further submitted that

the view similar to the one taken by the learned Single Judge

(Coram : A. S. Chandurkar, J.) in this case has been taken in Writ

Petition No.190 of 2009 and other connected matters vide

decision dated 05/09/2019.

8. Learned Assistant Government Pleader appearing

for respondent No.2 supported the arguments advanced by the

learned advocate for respondent Nos.1 and 3. The learned AGP

submitted that the view taken by the learned Single Judge is the

only possible view in the backdrop of the facts and applicable law.

9. The appellant was working on daily wages since

1983, as per the appointment given to him by the President of

Municipal Council, Kamptee. The parties have adduced oral and

documentary evidence before the Industrial Court. It has come on

record in the evidence of the appellant that his appointment had

6 LPA-52-2011.odt

no approval from the Regional Director of Municipal

Administration. The appellant has further categorically admitted

that there were no vacancies in the Municipal Council, Kamptee

when he joined on daily wages in 1983. In his cross-examination,

he has categorically admitted that many daily wage workers like

him and he was not sponsored by the Employment Exchange. His

evidence would further show that the Municipal Council would

appoint persons first and then their names would be sent to the

office of Collector for approval. Perusal of evidence would further

show that the Elected Ward Members on Committee gave

permanency only to those daily wages, who were close to them. It

is, therefore, crystal clear that at the time of employment of the

appellant, there was no vacancy and employment given to the

appellant was not in accordance with law. The employment with

the Municipal Council is the public employment. The employment

being public employment, all eligible persons must be given

opportunity to compete and there has to be an open selection

process. In this case, many daily wage workers like appellant were

not sponsored by the Employment Exchange.

7 LPA-52-2011.odt

10. A Constitution Bench of Hon'ble Supreme Court of

India in the case of Umadevi (supra) has considered the question

of regularization in the public employment. The Hon'ble Supreme

Court has held that there cannot be any misplaced sympathy in

such matters and a person cannot claim the public employment

through backdoor entry. The required procedure has to be

followed. If the procedure is not followed, then the appointment

made without following procedure is void ab initio.

11. In the decision rendered by one of us (Coram :

A.S.Chandurkar, J.) in Writ Petition No.190/2009 and other

connected matters, the same view has been taken. In our view, the

point involved in this appeal is squarely covered by this decision.

12. The learned Single Judge has considered the

decisions relied upon by the learned advocate for the appellant.

The learned Single Judge on the basis of law laid down in the case

of Umadevi (supra) came to the conclusion that the ratio in those

Judgments would not be applicable to the facts of the case of the

appellant. In our view, learned Single Judge has not committed

any mistake. The legal position as set out hereinabove does not

8 LPA-52-2011.odt

permit us to accept the case of the appellant. The appointment

given to the appellant on daily wages, cannot be granted

permanency. The facts are crystal clear. We, therefore, conclude

that there is no substance in the appeal. The appeal deserves to be

dismissed. Hence, the following order :

ORDER I] The Letters Patent Appeal stands dismissed. II] In the peculiar facts and circumstances of the case, the parties shall bear their own costs.

               (G. A. SANAP, J.)               (A.S. CHANDURKAR, J.)



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