Bombay High Court
Vilas Agaji Pawar And Others vs The Union Of India Additional Solicitor ... on 12 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:1383-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 WRIT PETITION NO. 379 OF 2024
VILAS AGAJI PAWAR AND OTHERS
VERSUS
THE UNION OF INDIA ADDITIONAL SOLICITOR
GENERAL AND OTHERS
...
Advocate for the Petitioner : Mr. Pawar Hemantkumar F.
Standing Counsel for Respondent 1/ UoI : S.W. Munde
Advocate for Respondents 2 to 4/ Bank : Mr. Kedar S. Warad
i/by Mr. Sunil V. Warad
...
CORAM : RAVINDRA V. GHUGE
&
Y. G. KHOBRAGADE, JJ.
DATE :- 12th January, 2024
ORAL ORDER (Per Ravindra V. Ghuge, J.) :-
1. This matter was heard extensively on 09.01.2024
and 10.01.2024.
2. On 10.01.2024, we passed the following order:-
"1. This matter was heard extensively yesterday,
and was granted an overnight pass over. Today,
the learned Advocate representing Respondent
Nos.2 to 4/Central Bank of India, submits that
the time for filing the applications is extended
upto 16/01/2024.
2. There are several issues that have cropped up
in this proceeding, primarily, the language in
which the Advertisement is available on the
website, which is in purely English and the
posts to be filled in are of 'Safai Karmachari
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Cum Sub-Staff'.
3. The learned Advocate for the Respondents/
Bank desires to take further instructions.
4. Stand over to Tomorrow i.e. on 11/01/2024 in
the same category.
5. In the meanwhile, the Petitioners are at liberty
to proceed to tender their application forms."
3. Extensive arguments were advanced by the litigating
parties on 11.01.2024 and today.
4. The Petitioners have put forth prayer clauses B,
and D as under:-
"B) By issuing a writ of mandamus or any other
appropriate writ, order or direction in the like
nature, quash and set aside the impugned
recruitment notification issued by the
respondent Bank for the post of Safai
Karmachari-cum- Sub-Staff and/or Sub-Staff.
C) By issuing a writ of mandamus or any other
appropriate writ, order or direction in the like
nature, the respondents be directed to
immediately initiate the selection process for
filling the post of impugned recruitment
notification issued by the respondent Bank for
the posts of Safai Karmachari-cum-Sub-Staff
and/or Sub-Staff as per the Memorandum of
Settlement in respect of the present petitioners
those who have worked as temporary and
casual workers as per the Memorandum of
Settlement.
D) During the pendency and final decision of this
Writ Petition, the further process of pursuant to
the impugned recruitment notification issued
by the respondent Bank for the post of Safai
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Karmachari-cum-Sub-Staff and/or Sub- Staff
may kindly be stayed."
BACKGROUND OF THE MATTER
5. The Petitioners before us are around 18 persons,
who have been working as Safai Karmacharis/ Kamgars (casual
workers) from prior to 2012. Some of them are working since
2015. Identically placed employees, as like the Petitioners, were
working as Peons and Sweepers from January, 2011. On
09.08.2012, Respondent Nos.2 to 4/ Central Bank of India
(hereinafter referred to as "the Respondent Bank"), entered into
the Memorandum of Settlement with the All India Central Bank
of India Employees Federation, admittedly a recognized Union
(hereinafter "the Recognized Union"), by which, it was agreed
that temporaries/ casual workers engaged in various branches of
the Respondent Bank all over India would be allowed to
participate in the recruitment process to be initiated in the
immediate future, but not in the subsequent process for selection
to the posts of Safai Karmachari- cum- Sub Staff and Sub Staff
on full time basis along with fresh candidates.
6. Thereafter, the selection process was commenced by
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the advertisement dated 12.01.2013. However, on 04.07.2014,
the Corporate Office of the Respondent Bank stayed the process
of selection initiated and subsequently, cancelled the selection
process. Employees of the Regional Offices from Barpeta Road,
Arunachal Pradesh and Assam challenged the cancellation of
selection process 2012-2013 in the High Court of Gauhati. By
the judgment dated 14.03.2016, the petition was allowed and the
Respondent Bank was directed to notify the results. The
Respondent Bank preferred a Petition before the Division Bench,
which was dismissed. It then approached the Honourable
Supreme Court and by order dated 27.10.2017, the Special Leave
Petition was dismissed and the order of the learned Single Judge
of the Gauhati High Court was confirmed. In January, 2018, the
results were notified in the Upper Assam Region in the regional
office as well as in the Gauhati office and successful candidates
who could be similar as the Petitioners, are learnt to have been
absorbed by the Respondent Bank and are working on regular
basis. As such, comparable daily wagers vis-a-vis the Petitioners,
were absorbed in service.
7. The contention of these Petitioners is that over a
period of time from 2012 till today, most of them have worked
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for more than a decade and some of them have been working
from 2015 onwards. They preferred Writ Petition No.14281/2019
(Vilas Agaji Pawar and others vs. Union of India and others )
before this Court at the Aurangabad Bench. By the order dated
30.08.2023, this Court disposed off the petition with certain
directions. It would be apposite to reproduce the order dated
30.08.2023, passed by this Court, hereunder:-
1. The Petitioners have put forth prayer clauses
(B), (C) and (D), as under :-
"B] By issue of writ of Mandamus or any other writ
or direction in the like nature, respondent No 2
to 4 and may kindly be directed to absorb the
petitioners in the employment of respondent
Bank as permanent employees on the post of
peon.
C] Pending the hearing and final disposal of the
writ petition, respondent No 2 to 4 and may
kindly be directed to absorb the petitioners in
the employment of respondent Bank as
permanent employees on the post of peon.
D] Pending the hearing and final disposal of this
writ petition, the respondents bank shall be
restrained from discontinuing the petitioners
from the respective post."
2. Notice in this matter was issued on 27/11/2019.
On 18/02/2020, this Court had passed the
following order :-
"The learned counsel for the petitioners relies
on the judgment of the Division Bench of this
Court at Nagpur in Writ Petition No. 8275 of
2018 decided on 08.07.2019. The Division
Bench of this Court at Nagpur has pass the
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following order.
i. The writ petition is partly allowed.
ii. We direct to the respondent bank to
fulfill its obligation under the Memorandum of
Settlement dated 9th August, 2012 imposing a
duty to initiate the recruitment process only as
one time measure for selecting, from amongst
casual and temporary workers, "Safai
Karmachari cum Sub Staff" on full time basis
within a period of six months from the date of
the receipt of order.
iii. By issuing such directions, we have not
taken away discretion of the bank to determine
the availability of the vacancies and to adopt a
particular procedure for making recruitments or
select or reject candidates on the basis of
performance and on merit and other similar
factors.
iv. Rule is made absolute in these terms. No
order as to costs.
2. The respondents rely on the order passed by the
Division Bench at Principal Seat at Bombay in
Writ Petition No. 7559 of 2014 dated
20.03.2015 to contend that the action of the
respondent bank in disbanding the recruitment
process need not be interfered with. According
to the respondents, the said judgment is
confirmed by the Apex Court in the Special
Leave Petition.
3. Mr. Warad, learned counsel for respondent No.
4 submits that the respondent No. 4 has filed
application for review of the order dated
08.07.2019 before the Nagpur Bench.
4. The respondents shall give the status of the
review application and the steps taken for the
disposal of the review application by the next
date.
5. Stand over to 17.03.2020."
3. We are informed that the Review Petition
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challenging the judgment of the Nagpur Bench
of this Court, dated 08/07/2019 in Writ Petition
No.8275/2018 (Sandip Pralhad Ingole and
others Vs. Central Bank of India and others),
has been dismissed.
4. The learned Advocate Shri. Warad appearing
for Respondent No.4 has placed reliance upon
the judgment dated 20/03/2015, delivered at the
Principal Seat of this Court in Writ Petition
No.7559/2014 (Vishal Nandkumar Dhadvad
and others Vs. Central Bank of India and
others), to contend that, a similar relief sought
before the Principal Seat, has been refused and
the petition has been dismissed.
5. What we find in the judgment delivered at the
Principal Seat in Vishal Nandkumar Dhadvad
(supra), is as regards selection of the candidates
through a recruitment process pursuant to an
advertisement, which recruitment process was
subsequently aborted. The Court concluded
that, it was within the domain of the Employer
to abort the recruitment process and selection
does not give any right to the Petitioners. This
is a crystallized position of law standing for
more than 40 years.
6. Before the Nagpur Bench in Sandip Pralhad
Ingole (supra), the issue was as regards a
Memorandum of Settlement dated 09/08/2012,
which casts duty on the Central Bank of India,
to initiate a recruitment process only as a one
time measure for selecting 'Safai Karmachari
cum Sub Staff' from amongst the casual and
temporary workers, so as to take them on full
time basis. This Court, therefore, directed that,
the Bank has the discretion to determine the
availability of the vacancies and to adopt a
particular procedure for making recruitments or
for selecting/rejecting the candidates on the
basis of their performances and merit. This is a
part of the Settlement between the
Management of the Central Bank of India and
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the All India Central Bank of India Employees
Federation (AICBIEF), which is a recognized
majority Union for the Award Staff.
7. In view of the above, this petition is disposed
off in the light of the directions of the Nagpur
Bench of this Court in Sandip Pralhad Ingole
(supra), which judgment has been sustained by
the Hon'ble Supreme Court by the order dated
13/07/2023, delivered in Civil Appeal Nos.
2760-2761/2023 (Central Bank of India and
Others Vs. Sandip Pralhad Ingole and Others.).
The Respondent/Bank will, therefore, have to
adopt the same procedure. Needless to state, if
the terms of the Memorandum of Settlement
between the recognized Union and the Bank,
have undergone any modification, more
specifically in connection to cause taken up by
the Petitioners, which was considered by the
Nagpur Bench in Sandip Pralhad Ingole
(supra), the said terms and conditions of the
Settlement would prevail.
8. Pending Civil Application does not survive and
stands disposed off."
8. Similarly situated Petitioners (79 persons), had
approached this Court at the Nagpur Bench vide Writ Petition
No.8275/2018 (Sandip Pralhad Ingole and others vs. Central
Bank of India and others). By judgment dated 08.07.2019, the
Nagpur Bench partly allowed the Writ Petition. It would be
apposite to reproduce paragraphs 3 to 7(i) to (iv) of the judgment
delivered at Nagpur, hereunder:-
"3. In order to fulfill the obligation under the said
Memorandum of Settlement, the bank indeed
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initiated recruitment process for selection of
"Safai Kamgar cum Sub Staff". But it
appears, midway through, the process was
cancelled. All the petitioners received
individually a communication dated 4th July,
2014 informing them that the recruitment
process has been cancelled.
4. Ordinarily, it was expected that all aggrieved
persons like the petitioners would have
approached this Court without any delay. After
all, the communication dated 4th July, 2014
had affected their right substantially. The
petitioners, however, did not approach this
Court and when they approached this Court,
month of December, 2014 had arrived and thus
there was inordinate delay. Unfortunately, the
petitioners have not given any explanation for
the delay. It is orally submitted on behalf of the
petitioners that petitioners were awaiting for
the result of one writ petition pending before
the Gauhatti High Court involving similar
facts and issues and when they learnt about the
decision having been rendered by the Gauhatti
High Court against the management
and in favour of some of the petitioners therein,
the petitioners approached this Court. We are of
the view that this could hardly be the
explanation, much less reasonable explanation
for the inordinate delay which has occurred in
the present case, as this petition has got nothing
to do with that case.
5. If there was delay on the part of the petitioners
and no explanation has been given by the
petitioners for the same, we feel, it has
nevertheless not substantially affected the
standing of the petitioners before this Court.
The reason for taking such a view is
that even the respondent bank has maintained
its complete silence as regards what it did
towards fulfillment of its obligation under
the Memorandum of Settlement dated 9th
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August, 2012. This is a fact which when
brought on record would significantly impact
the whole case and the answer is still not
available to us. When there was a settlement
between the bank and the majority recognized
union which obligated the bank to initiate the
recruitment process as one time measure for
giving opportunity of providing regular
employment to the persons like the petitioners,
the obligation was required to be fulfilled by
the bank. The respondent bank is a public
sector bank and is enjoined with a duty to act
reasonably, legally and in fulfillment of its
commitments given under the industrial
agreement. Therefore, it was necessary for the
respondent bank to have honoured its
commitment given under the Memorandum of
Settlement dated 9th August, 2012. It appears
that the bank is yet to fulfill its obligation.
6. It is these facts which would entitle the
petitioner to have an immediate relief from this
Court in the present matter, irrespective of the
delay on their part. We would have ordinarily
refused even a smallest of reliefs to the
petitioners, had it been the case that respondent
bank, a public sector undertaking, was never in
the wrong box and that not being the case, we
have made our conclusion and we have put it
into words just now.
7. In the present case, by the communication
dated 4th July, 2014 the recruitment process
initiated in terms of the Memorandum of
Understanding has been cancelled. Then, the
new recruitment process which was required to
be started in order to fulfill the obligation under
the said settlement, was never commenced by
the respondent bank. The grievance would not
arise from cancellation of a recruitment process
but it would certainly arise when after the
cancellation of the recruitment process, no new
recruitment process is initiated, in spite of the
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obligation imposed upon the bank in terms of
the settlement dated 9th August, 2012. That is
how, to this extent only, in our view the
petitioners would be entitled to a relief in law.
In the result, we allow the writ petition partly.
ORDER
i. The writ petition is partly allowed.
ii. We direct to the respondent bank to
fulfill its obligation under the Memorandum of
Settlement dated 9th August, 2012 imposing a
duty to initiate the recruitment process only as
one time measure for selecting, from amongst
casual and temporary workers, "Safai
Karmachari cum Sub Staff" on full time basis
within a period of six months from the date of
the receipt of order.
iii. By issuing such directions, we have not
taken away discretion of the bank to determine
the availability of the vacancies and to adopt a
particular procedure for making recruitments or
select or reject candidates on the basis of
performance and on merit and other similar
factors.
iv. Rule is made absolute in these terms. No
order as to costs."
9. It is, thus, obvious that the issue before this Court
and as was the issue before the Nagpur Bench, is as regards the
fate of these workers, who have been working for years together
and have been shown to be casual workers as Safai Karmacharis/
Kamgars. While dealing with this issue, the case turns upon the
clauses of the Memorandum of Settlement dated 09.08.2012
(hereinafter referred to as the "MoS") between the Respondent
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Bank and the recognized Union. As a background to the MoS, it
needs mention that the Respondent Bank had decided to recruit
subordinate staff with nomenclature as Safai Karmachari-cum-
Sub Staff and/or Sub Staff. It is an admitted position that this
Bank has been engaging temporaries and casual workers as Safai
Karmacharis for decades together and at various branches all
over India.
10. The recognized Union raised this issue on behalf of
such employees and it was agreed between the parties vide the
MoS that the Bank should initiate a "One Time Measure"
(hereinafter referred to as the "OTM") for considering these
workers for regularization. It is an admitted position, as set out in
the MoS, that the Bank decided to adopt a "Pro Employee
Initiative" and converted the Permanent Part Time Safai
Karmacharis (PTSKs) into full time workers with the
designation Safai Karmachari-cum- Sub Staff w.e.f. 01.04.2011.
This was the mode adopted with regard to those temporaries,
who were earlier working for decades and thereafter, their
nomenclature was changed to Permanent Part Time Safai
Karmacharis (PTSKs). We have every reason to be astonished by
this definition since no provision under the Industrial Disputes
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Act, 1947 and presently, the Industrial Relations Code, 2020, has
created any new category of workers as Permanent Part Time
Safai Karmacharis.
11. The MoS indicates that the Bank decided to recruit
Safai Kamgars by following the due process as a 'One Time
Measure'. The recognized Union persuaded the Bank to adopt a
humane approach and provide an opportunity to such
temporaries/ casual workers to settle their grievances/ disputes /
demands through an out of court mechanism. Keeping this in
focus, the recognized Union and the Respondent Bank agreed on
the following modalities:-
"WHEREAS after a series of discussions, it has
since been agreed by and between the
Management and All India Central Bank
Employees' Federation (AICBEF) (Recognised
Majority Union for Award Staff) that as a one
time measure such temporary/casual workers
so engaged by various branches within the
guidelines of Central Office Management will
be allowed to participate in the Recruitment
Process which will be Initiated In the
Immediate future (but not in the subsequent
processes, if any) for selection to the post of
sub-ordinate staff with the designation 'Safai
Karmachari-cum- sub-staff' and/or 'Sub-staff',
on Full-Time basis (as per the eligibility
criteria) alongwith fresh candidates, subject to
fulfilling all the following conditions:
(i) Such temporary/casual worker should have
been engaged in sub-ordinate cadre (including
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as Safai Karmachari) and have put in a
minimum 45 days service during a continuous
period of 12 months:
(ii) The age of the candidate should have been
between 18 to 26 (relaxable in eligible
categories as per rules) when they were initially
engaged as temporary/casual worker.
(iii) The age of the candidate as on the date of this
Settlement should not have been more than 45
years, Irrespective of category (le.,
SC/ST/OBC/GEN).)
(iv) The candidate should produce satisfactory
proof acceptable to the Bank in support of
his/her claim of having worked with the bank
on temporary/casual basis for a minimum 45
days in a continuous period of 12 months.
(v) The Registration for employment with
Employment Exchange by the candidate is
preferred, but not essential. Accordingly, the
candidates having valid Registration with
Employment Exchanges should attach the duly
attested cards/proof to this effect, at the time of
applying for the post in terms of this
Settlement.
(vi) In case of the candidate had hitherto filled
cases in Courts/ALC 'RLC/CGIT etc seeking
absorption in permanent employment in the
Bank and such cases are still pending for final
disposal, such candidates should willingly and
unconditionally withdraw such cases filed by
them before different fora prior to applying for
participating in the Recruitment Process in
which they are so allowed to participate in
terms of this Settlement for the post of Safai
Karmachari-cum-sub-staff' and/or 'Sub-staff',
subject to otherwise being eligible as per the
eligibility criteria prescribed for respective
post, and @ declaration to this effect should be
Given along with an undertaking that he/she
would abide by the results of the recruitment
process.
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(vii) Notwithstanding what is stated above, where
there are Awards/ judgments of any Tribunal /
Courts directing the Bank to include and
consider any candidate! while conducting
future process, such candidates would be
considered and allowed to appear in the
interview process initiated in pursuance of this
Settlement irrespective of the age and other
eligibility criteria provided under this
Settlement subject however that in any case the
age at the time of interview should not be
above 60 years.
(viii) The Recruitment for the post of 'Safai
Karmachari-cum-sub'staff' end 'Sub- staff'
under this dispensation (i.e., for fresh
candidates and also the candidates hitherto
worked as temporary/causal worker and being
eligible to apply for the same under this
Settlement), shall be done through personal
Interview of the eligible candidates by
Committee/s to be constituted by the
Management.
It is also agreed mutually that out of the
vacancies of 'Sub-staff' so identified to be filled
in through the Recruitment Process that will be
initiated in immediate future, the existing 'Safai
Karmachari cum-sub-staff' will be considered
for conversion as 'Sub-staff' (Peon) (after
following the due Process of conversion) to the
extent of 25% of vacancies of 'Sub- staff' (as
per the relevant guidelines of Government of
India) under this Recruitment process only.
It is mutually understood and agreed that
allowing the temporary/casual workers (being
otherwise eligible to participate under this
Settlement) alongwith the immediate
Recruitment Process which will be conducted
for selection of 'Safai Karmachari-cum-sub
staff' and/or 'Sub-staff', is a one-time measure
applicable only for this process under this
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Settlement and shall not be quoted as a
precedent, in future. Further, such
temporary/casual workers who do not apply for
the process under this dispensation (being
otherwise eligible to participate under this
Settlement) for the reasons what-so- ever
and/or those who, having participated in the
process but could not be selected therein, have
no right/claim what-so-ever to be called again
for such process in succession or in future.
It is understood and agreed that the provisions
of this settlement shall supercede the
provisions of all previous settlements, if any, In
this regard."
12. Shri Warad, the learned Advocate for the
Respondent Bank, has strenuously tried to persuade us that the
Bank does not have any desire of committing any unfair labour
practice. The Bank has a design to ensure that employees like the
Petitioners get an opportunity to be absorbed in employment.
Since an All India Recruitment Process has been initiated, these
Petitioners and similarly situated temporaries/ casuals will have
to compete with fresh candidates.
ONE TIME MEASURE- LEGAL PROCESS
13. It does not call for any debate that the judgment
delivered by the Honourable Supreme Court (five Judges Bench)
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in Secretary, State of Karnataka and others vs. Umadevi and
others, (2006) 4 SCC 1, paved the way for regularization of long
working temporaries/ casuals by introducing the principle of
'One Time Measure' (OTM). By the said judgment, the
Honourable Supreme Court concluded that such OTM would be
for those persons, who have been working regularly, though
appointed irregularly. It has been clarified that distinction
between "irregular appointments" and "illegal appointments"
would be that irregular appointments are of those category of
employees, who are not selected through a regular selection
process, but are otherwise legally eligible to be appointed.
Illegal appointments would include those persons, who may have
been appointed through the regular process, but were inherently
ineligible to be appointed. The Honourable Supreme Court also
dealt with the aspect of legitimate expectation of long standing
temporaries/ casual workers. It was then concluded that OTM
shall be adopted by the concerned Authority to ensure that such
appointments are regularized.
14. There is no dispute that the Respondent Bank and
the recognized Union arrived at the MoS for introducing OTM
for temporaries/ casuals. The learned Advocate for the
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Respondent Bank has tendered Written Notes of Submissions,
which are reproduced (verbatim) hereunder:-
"1) The recruitment notification 2024-2025 is
nation-wide and is in consonance with the
terms of the Memorandum of Settlement dt.
09-08-2012 entered into between the
Management (Bank) and the All India Central
Bank Employees Federation (AICBEF) and is
in adherence to the order dt. 08-07-2019 passed
in WP No. 8275/2018 by the Hon'ble High
Court at Nagpur and is also in adherence to the
order dt. 30-08-2023 passed by this Hon'ble
court in writ petition bearing WP No.
14281/2019.
2) As per the terms of the Memorandum of
Settlement dt. 09-08-2012 (The typed copy of
which is placed on record), the respondent-
Bank was to initiate the recruitment process for
selection to the post of sub-ordinate staff with
the designation 'Safai- Karmachari-cum-sub-
staff' and/or sub-staff.
3) The relevant term (Page 107) of the
Memorandum of Settlement dt. 09-08-2012
reads as :
"WHEREAS after a series of
discussions, it has since been agreed by and
between the management and the All India
Central Bank Employees Federation (AICBEF)
(Recognised Majority Union for Award Staff)
as a one-time measure such temporary/casual
workers so engaged by various branches within
the guidelines of central office management
will be allowed to participate in the recruitment
process which will be initiated in the future
(but not in the subsequent processes if any), for
selection to the post of subordinate staff with
the designation 'Safai-Karmachari-cum-sub-
staff' and/or sub-staff on full-time basis (as per
the eligibility criteria) along with fresh
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candidates, subject to fulfilling all the
following conditions :"
4) Thus, it was explicitly agreed between the
Bank and the Union that fresh candidates
would also be entitled to apply in the
recruitment process. As regards the above
quoted term is concerned, the Hon'ble High
Court at Nagpur in Para No. 5 (Pg. 246) of its
judgment and order dt. 08-07-2019 passed in
WP No. 8275/2018 has categorically held as
follows :
"... When there was a settlement between
the bank and the majority recognised union
which obligated the bank to initiate the
recruitment process as one time measure for
giving opportunity of providing regular
employment to the persons like the petitioners,
the obligation was required to be fulfilled by
the bank..."
5) The Hon'ble High Court at Nagpur, by referring
to the Memorandum of Settlement, has held as
above that even persons like the petitioners
who could not approach any court of law are
entitled to apply in the recruitment process
along with the petitioners.
6) It is submitted that the above phrases used in
the Memorandum of Settlement and also in the
order passed by the Hon'ble High Court at
Nagpur vis-a-vis "Fresh Candidates" and
"Persons like the petitioners", if read
conjointly, would simply connote that every
person who qualifies the minimum requisite
criteria would be entitled to apply in the
recruitment process.
7) The petitioners initially sought absorption in
service who are casual and temporary workers
which was not granted earlier. The prayer put-
forth by the petitioners in prayer clause 'c' of
the present petition for seeking initiation of the
selection process for filling the post of the
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impugned recruitment notification issued by
the respondent Bank for the posts of Safai-
Karmachari-cum-sub-staff and/or sub-staff
as per the Memorandum of Settlement in
respect of the present petitioners those who
have worked as temporary and casual workers
as per the Memorandum of Settlement has
already been paid heed to by the respondent
Bank itself by initiating the recruitment
process.
More particularly, the time limit for
filling up applications has also been extended
from 9-01-2024 to 16-01-2024.
8) The petitioners do not want to compete with
fresh candidates despite making it clear in the
Memorandum of Settlement for reasons best
known to them.
9) The petitioners and persons like petitioners
who have rendered casual/temporary services
to the Bank have offered intermittent services
with gaps in between as the words 'casual' and
'temporary' themselves convey.
10) Thus, a casual worker who has genuinely
rendered casual service may not be possessed
with relevant documents to establish that
he is not a fresh candidate. Likewise, a fresh
candidate who still wants to participate in the
recruitment process may acclaim himself to
have worked with the Bank as a casual and
temporary worker to which the Bank would
have no answer.
11) I submit that, to let only those persons who
have rendered casual and temporary services to
the Bank and not any other person,
despite the Memorandum of Settlement and
judgment and order passed by the Hon'ble High
Court at Nagpur (Page 246), would rather
invite dubious and false claims from persons
who have not worked with the Bank and the
same, in turn, would affect the cases of those
who have genuinely worked. Resultantly, the
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said exercise of recruitment would turn futile
and would also invite multiplicity of the
proceedings throughout the country.
12) Lastly, I humbly submit that the petitioners are
very much entitled to apply as they claim to
have requisite criteria. The petitioners may
apply for the recruitment process as the Bank
has now even extended the time for applying
which now is 16-01-2024.
13) The present writ petition may kindly be
dismissed as it does not call for interference."
15. Before the Nagpur Bench, in Sandip Pralhad Ingole
(supra), it was concluded that the Bank is a public sector
undertaking and is obliged to perform a duty to act legally,
reasonably and ensure fulfillment of it's commitments under the
industrial agreement. It is beyond debate that the settlement with
a recognized union assumes a character of a supreme document
and that binds not only the signatories to the settlement, but the
entire establishment. The Nagpur Bench concluded that the Bank
was under a commitment to honour the MoS. Earlier recruitment
drive was cancelled/ aborted by the communication dated
04.07.2014. Since then, this is the first recruitment process vide
the impugned advertisement published on the website of the
Respondent Bank titled as "Recruitment of Safai Karmachari-
cum- Sub-Staff and/or Sub Staff 2024-2025". Insofar as the
*22* 902wp379o24
Petitioners and similarly placed persons in the State of
Maharashtra are concerned, the Bank published a notice in daily
Marathi "Loksatta". It is, thus, apparent that after more than 11
years, the Respondent Bank has decided to adopt OTM for
recruiting Safai Karmacharis and Sub Staff.
16. It is strenuously canvassed on behalf of the
Respondent Bank that none of these candidates have completed
240 days in continuous employment. Each one of them used to
work for various spells over a period of two months, three
months or more and were replaced by a different batch of Safai
Karmacharis. Naturally, this raises a question as to whether, the
work of Safai Karmacharis was a seasonal employment with the
Respondent Bank. This defies logic. It cannot be disputed that
sweeping and cleaning the establishments and branches of the
Respondent Bank is a continuous nature of work having a
perennial character. By no stretch of imagination can it be termed
or even attempted to be branded as seasonal employment. If the
work of cleaning and sweeping the establishments and branches
is of a perennial character, any argument contending that one
batch of Safai Karmacharis worked for a particular duration to be
replaced by another batch of Safai Karmacharis for another spell/
*23* 902wp379o24
duration, has to be rejected outright keeping in view the law laid
down by the Honourable Supreme Court in H.D. Singh vs.
Reserve Bank of India and others, (1985) 4 SCC 201, State of
Haryana and others vs. Piara Singh and others, (1992) 4 SCC
118 and Bajaj Auto Ltd. vs. Bhojane Gopinath D., 2004 I CLR
502.
17. The judgment of the Nagpur Bench in Sandip
Pralhad Ingole (supra) was sought to be reviewed and there is no
dispute that the Review Application was dismissed vide the order
dated 08.02.2021. The judgment was carried to the Honourable
Supreme Court by the Respondent Bank in Civil Appeal
Nos.2760-2761/2023 and by order dated 13.07.2023, the Civil
Appeals preferred by the Respondent Bank were dismissed with
a reasoned order, which reads thus:-
"These appeals arise out of the orders
dated 08.07.2019 and 08.02.2021 passed by the
High Court of Judicature at Bombay, Nagpur
Bench, in W.P. No. 8275 of 2018 and MCAST
No. 19326 of 2019 respectively. The High
Court, while allowing the writ petition, issued
certain directions relying upon the
Memorandum of Settlement dated 09.08.2012
entered into between the Management- Bank
and the Employees' Federation which
prompted/culminated into the Management-
Bank issuing a Circular Letter No.
CO:HRD:IRP:2012:13:17 dated 14.08.2012.
*24* 902wp379o24
The directions read as follows:-
"i. The writ petition is partly allowed.
ii. We direct to the respondent bank to fulfil its
obligation under the Memorandum of
Settlement dated 9th August, 2012 imposing a
duty to initiate the recruitment process only as
one time measure for selecting, from amongst
casual and temporary workers, "Safai
Karmachari cum Sub Staff" on full time basis
within a period of six months from the date of
the receipt of order.
iii. By issuing such directions, we have not taken
away discretion of the bank to determine the
availability of the vacancies and to adopt a
particular procedure for making recruitments or
select or reject candidates on the basis of
performance and on merit and other similar
factors.
iv. Rule is made absolute in these terms. No order
as to costs."
As per the said Memorandum of
Settlement, it was agreed that the temporary
and casual workers engaged in the Bank and
who have put in a minimum 45 days' service
during a continuous period of 12 months may
be permitted to participate in the ensuing
recruitment process for the selection of "Safai
Karmachari-cum-sub-staff" and/or 'Sub- Staff'
as a one-time measure.
Considering the said Memorandum of
Settlement, the High Court found that though
there was some delay in moving the writ
petition, but looking to the obligation of the
Bank, as agreed, which has not been discharged
in its right perspective, the above directions
were issued. In fact, the High Court found that
to fulfil the obligations under the Memorandum
of Settlement, the Bank had indeed initiated
recruitment process for selection of "Safai
Karmachari-cum-sub-staff", but midway
*25* 902wp379o24
through, the process of recruitment was
cancelled for some of the regions.
In the said context, while allowing the
writ petition, it was directed that the Bank shall
fulfil its obligations under the Memorandum of
Settlement dated 09.08.2012 and initiate the
recruitment process only as a one-time measure
for selecting from amongst the casual/
temporary workers, 'Safai Karmachari-cum-
sub-staff' on full time basis within a period of
six months from the receipt of the order.
The High Court has further observed
that, while issuing such a direction, the right of
the Bank to determine the availability of the
vacancies and to adopt a particular procedure
for making recruitments or select or reject
candidates on the basis of performance and on
merit and other similar factors, has not been
taken away.
After hearing Shri Dhruv Mehta, learned
senior counsel for the appellant-Bank and Mr.
Rituraj Biswas, learned counsel for the
respondents, and considering the contents of
the Memorandum of Settlement and the
obligation, which is required to be discharged
by the Bank, we are of the opinion that the
Management Bank has not honoured its
commitment given under the Memorandum of
Settlement. In fact, the Bank had taken steps to
initiate the recruitment process in furtherance
of the Settlement and by a subsequent
communication cancelled the process
selectively for some of the regions. The High
Court, while allowing the petition, directed the
Bank to fulfil its obligation within the time
stipulated therein by the impugned order(s). In
our view, the High Court has not committed
any error, while dealing with the terms of the
Memorandum of Settlement in passing the
impugned order(s).
In view of the foregoing, we are not
*26* 902wp379o24
inclined to interfere with the order(s)
impugned. The appeals are, accordingly,
dismissed. However, the process of selection,
as directed by the High Court, may now be
completed within a period of six months from
today.
Pending interlocutory application(s), if
any, is/are disposed of."
18. In view of the above, it is apparent that the
Honourable Supreme Court concluded, in it's above reproduced
order dated 13.07.2023, that "In the said context, while allowing
the writ petition, it was directed that the Bank shall
fulfil its obligations under the Memorandum of Settlement dated
09.08.2012 and initiate the recruitment process only as a one-
time measure for selecting from amongst the casual/ temporary
workers, 'Safai Karmachari-cum-sub-staff' on full time basis
within a period of six months from the receipt of the order." It
was further noted that the High Court had permitted the Bank to
adopt a particular procedure for selecting or rejecting candidates
on the basis of the performance and merit. The Honourable
Supreme Court, thereafter, recorded that "we are of the opinion
that the Management Bank has not honoured its commitment
given under the Memorandum of Settlement. In fact, the Bank
had taken steps to initiate the recruitment process in furtherance
*27* 902wp379o24
of the Settlement and by a subsequent communication cancelled
the process selectively for some of the regions. The High
Court, while allowing the petition, directed the Bank to fulfil its
obligation within the time stipulated therein by the impugned
order(s). In our view, the High Court has not committed any
error, while dealing with the terms of the Memorandum of
Settlement in passing the impugned order(s)" .
19. It is, thus, crystal clear that the OTM was meant
only for those Safai Karmacharis or Sub-Staff, who were already
working with the Bank. These directions of the Honourable
Supreme Court read with the law laid down in Umadevi (supra),
lead to a sine-qua-non that the only option available for the Bank
was to ensure that the long serving employees as like the
Petitioners at it's various establishments and branches in India,
were considered for the OTM.
FALLACY IN THE ADVERTISEMENT
20. We are surprised that the Bank has not published the
advertisement in any of the regional languages in any of the
regional newspapers, which are largely circulated in the
respective regions. In this case, in the State of Maharashtra, a
*28* 902wp379o24
small notice is published in the local Marathi newspaper that the
recruitment drive is taken up by the Bank and those who are
interested, should go through the website of the Bank and read
the advertisement. The last date for filling in the forms was
09.01.2024. The Petitioners have canvassed that those who could
read a Hindi notice published in the local newspaper, visited the
website of the Bank and found that the advertisement was in 35
pages along with annexures comprising of 20 more pages. In all,
the advertisement was of 55 pages. Each word of the
advertisement was in English. The Petitioners are candidates,
who have passed their 10th standard examination. They are not
conversant with English language. We have perused the
advertisement and we find that though it is articulately scripted,
it would certainly be very difficult for such candidates, who are
working as Class-IV labourers/ Safai Karmacharis, to read or
barely attempt to read the advertisement.
21. We appreciate the efforts of the learned Advocate
Shri Warad, who has graciously accepted our request to have the
advertisement translated in local languages and could convince
the Respondent Bank, firstly, to extend the date for filling in the
forms till 16.01.2024 and secondly, for publishing the translated
*29* 902wp379o24
version of the advertisement in Hindi. With the aid of his efforts,
the Petitioners have been able to fill in their forms/ are in process
of filling in their forms. Notice was also published in the
newspapers indicating that the advertisement was translated in
Hindi and was available on website.
22. There is no dispute that the design of the Bank, as
emerging from the advertisement, is that all these existing Safai
Karmacharis, who are already working as temporaries/ casuals in
various establishments and branches of the Bank, will have to
compete with freshers from the open market. An online
examination is scheduled for the following subjects :-
Subject Medium of Exam Total Duration
Marks
English Language English 10 90 Minutes
Knowledge
Arithmetic
(Reasoning)
23. As such, each of these candidates would be required
to appear for the examination of each subject. "English Language
Knowledge" subject is of 10 marks to assess their knowledge of
*30* 902wp379o24
the language. Subjects like General Awareness, Elementary
Arithmetic and Psychometric Test (Reasoning) are for 20 marks
each and the medium of examination for these three subjects is as
per the Star/asterisk and for the State of Maharashtra, it is
English, Hindi, Marathi and Konkani.
24. In these circumstances, we do appreciate the
predicament of these Petitioners, on whose behalf it is canvassed
before us that these daily wagers, who have been working for
more than a decade and who are in their early forties or late
thirties, would be all at "sea" while appearing for such tests.
According to the learned Advocate for the Petitioners, their fate
in the examination is sealed even before appearing for the same
since they would find it very difficult to express their English
knowledge, elementary arithmetic and psychometric test.
25. In view of the above, we are left to ponder as to
whether, the purpose of this recruitment drive, in the light of
Sandip Pralhad Ingole (supra), as well as the order delivered at
the Aurangabad Bench dated 30.08.2023 in Vilas Agaji Pawar
(supra) and more specifically in the light of the directions of the
Honourable Supreme Court vide it's order dated 13.07.2023 in
Central Bank of India vs. Sandip Pralhad Ingole, was to absorb
*31* 902wp379o24
long serving employees under the OTM or whether, the
examinations are meant for eliminating such candidates, who are
barely educated and semi-literate, paving the way for recruiting
fresh hands since the Respondent Bank has declared in the
advertisement that the existing temporaries/ casuals will have to
compete with freshers. The very purpose of the OTM is lost if
freshers are permitted to compete with the existing long serving
employees like the Petitioners.
26. Further pitfall in the advertisement is that if the
candidates fail in the examination, they would be eliminated
even for the next local language test of 30 marks. Freshers would
gain a "walkover" over these Petitioners. The very purpose of the
OTM would, therefore, be lost and we have reason to believe the
submissions of the Petitioners that after they fail the examination
and are eliminated and freshers are recruited on the available
vacancies, they would be disengaged/ terminated on the ground
that they have failed the examination. The reason for such
contention of the Petitioners is that after some of the Petitioners
approached this Court at the Aurangabad Bench in Writ Petition
No.14281/2019 (supra), they were terminated by the Respondent
Bank unceremoniously only as a backlash to their approaching
*32* 902wp379o24
the High Court. Those terminated employees are now on the
streets and will first have to canvass their cases for reinstatement
by litigating with the Bank, after apparently having lost this
opportunity of recruitment.
CONCLUSIONS
27. To conclude, we find that the impugned
advertisement is arbitrary and deserves to be quashed and set
aside. Time and again, the employees like the Petitioners have
engaged in legal battle with the Respondent Bank. Valuable 12
years have been lost ever since the last advertisement published
in 2012, which recruitment process was unilaterally aborted in
2013. Children of these Petitioners must have surely grown in the
last 12 years. Many of them must be of marriageable age and
must be taking higher education at senior levels. To keep the
mind, body and soul together, the Petitioners have to earn
regularization/absorption with certain service benefits/ monetary
benefits and the job security is the only way by which these
Petitioners can sustain themselves and hope for a brighter future
for their children. These hopes are dashed by the approach of the
Respondent Bank.
*33* 902wp379o24
28. Considering the view expressed by this Court at
Aurangabad in the order dated 30.08.2023 (supra), the order of
the Nagpur Bench dated 08.07.2019 (supra) and the observations
of the Honourable Supreme Court in the order dated 13.07.2023
reproduced above, we deem it appropriate to direct the
Respondent Bank to lend a literal meaning to the term "One
Time Measure" and initiate the recruitment process for those
employees, who are working as Safai Karmacharis/ temporaries/
casuals in the Safai Karmachari cadre and Sub- Staff cadre in
view of the MoS. It is also mentioned in the MoS (reproduced
above) that after such OTM, these candidates would not be
allowed to participate in the recruitment process which would be
initiated by the Respondent Bank subsequently.
29. In view of the above, this Writ Petition is allowed.
The impugned advertisement is quashed and set aside. We direct
the Respondent Bank to follow the above directions and the
observations of the Honourable Supreme Court in paragraphs 3
and 4 of the order dated 13.07.2023 (supra) and publish an
advertisement in English language as well as local languages in
the various States where the employees like these Petitioners are
working as Safai Karmacharis/ casuals/ temporaries and copies
*34* 902wp379o24
of such advertisements in local languages shall be published at
conspicuous places and notice boards of each establishment and
branch of the Respondent Bank, pan India. We expect the
Respondent Bank to complete this exercise of publishing the
advertisement and for commencing the recruitment process,
within a period of 60 days.
kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)
Signed by: Kalyan Sangvikar
Designation: PS To Honourable Judge
Date: 23/01/2024 18:42:04
