[Cites 36, Cited by 0]
Bombay High Court
Subhash S/O Sukhdev Sahare vs Nagpur Municipal Corporation Civil on 22 December, 2025
2025:BHC-NAG:14785
WP NO.4967 OF 2023 + 13.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4967 OF 2023
PETITIONERS :- 1 Subhash s/o Sukhdev Sahare, Aged
Ori. plaintiff
about 42 years, Occ : Nil
2 Vinod s/o Nilkanth Wanve, Aged about
48 years, Occ : Nil
3 Roopchand s/o Pralhad Sontake,
Aged about 53 years, Occu. : Nil
4 Roopchand s/o Narayan Gedam, Aged
about 58 years, Occ : Nil
5 Lokesh s/o Shiva Patil,
Aged about 43 years, Occu: Nil
All R/o C/o Subhash Sukhdeo Sahare,
Reshimbag Square, Siraspeth, Near
Gautam Wachanalaya, Nagpur.
..VERSUS..
RESPONDENTS :- 1 Nagpur Municipal Corporation Civil
Ori. defendants Lines, Nagpur Through its Municipal
Commissioner
2 The Member Industrial Court, Civil
Lines Nagpur
Deleted as per Hon'ble Court's
order dt.21.8.23
WITH
WRIT PETITION NO.4968 OF 2023
PETITIONERS :- 1 Bhimrao s/o Gautam Lingayat, Aged
Ori. applicant
about 52 years, Occu: Nil
2 Anil s/o Daulatrao Lokhande, Aged
about 55 years, Occu: Nil
WP NO.4967 OF 2023 + 13.odt
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3 Laxman s/o Anandrao Potpose, Aged
about 51 years, Occ. : Nil
4 Dilip S/o Daulatrao Lokhande,
Aged about 56 years, Occ : Nil
All C/o Shivaji Nagar, Near Ambedkar
Statue, Mahal, Nagpur.
..VERSUS..
RESPONDENTS :- 1 Nagpur Municipal Corporation Civil
Ori. respondent Lines, Nagpur Through its Municipal
Commissioner
2 The Member Industrial Court, Civil
Lines Nagpur
Deleted R.No.2, vide Hon'ble Court's
order dt.21.8.23
WITH
WRIT PETITION NO.4722 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
ori. respondent No.1 to 3.
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENTS :- 1 Rajkumar S/o Ramaji Burbure, aged
Ori. complainant about 54 years, occupation: Service, R/
o. Nandanwan Road, near Ambedkar
Putla, Rajendra Nagar, Nandanwan,
Nagpur-08.
WP NO.4967 OF 2023 + 13.odt
3
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2976 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Tejram S/o. Waman Gedam, aged
Ori. complainant about 62 years, occupation: Retired, R/
o. Plot No.335/A/13/B, nandanvan
Road, Near Buddha Vihar, Bagadganj,
Kumbhar Toli, Nagpur-08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2974 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3
through its Commissioner, having
office at Civil Lines, Nagpur.
WP NO.4967 OF 2023 + 13.odt
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2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Amit S/o. Wasudeo Wasnik, aged
Ori. complainant about 46 years, occupation: Service,
R/o Sakkardhara Road, Near Pragtishil
Buddha Vihar, Bhande Plot, Rani
Bhosle Nagar, Nagpur-08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2972 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3)
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENTS :- 1 Manoj S/o Bhaurao Date, aged about
Ori. complainant 55 years, occupation: Service,
R/o. Bhandara Road, Near Shiv
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Mandir, Old Bagadganj, Kumbhar Toli,
Nagpur -08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2978 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
(Ori. Respondent Nos.1 to 3)
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Tulshiram S/o Somaji Barsagde, aged
Ori. complainant about 57 years, occupation: Service,
R/o. Juni Mangalwari, Gangabai Ghat
Road, near Kanji House, Bagadganj,
Nagpur -08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2975 OF 2025
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PETITIONER :- 1 Nagpur Municipal Corporation,
(Ori. Respondent Nos.1 to 3)
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Kailash S/o. Raghunath Kamble, aged
Ori. complainant about 49 years, occupation: Service, R/
o. Plot No.A1/161, Railway Station
Road, Near Baghel Kirana Store,
Jaidurga Nagar, Bhandewadi, pardi
Ngapur-08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2980 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
WP NO.4967 OF 2023 + 13.odt
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..VERSUS..
RESPONDENT'S :- 1 Dinesh S/o. Ambadas Moon, aged
Ori. complainant about 53 years, occupation: Service,
R/o.Behind Buddha Vihar, Rajiv
Gandhi Nagar, Dr. Ambedkar Marg,
Nagpur-17.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.4723 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Jiwan Nilbaji Borkar, aged about 61
Ori. complainant years, occupation: Retired, R/o. Plot
No.161, Bhandara Road, Near Alok
Buddha Vihar, Gangabai Ghat, Nagpur-
08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WP NO.4967 OF 2023 + 13.odt
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WITH
WRIT PETITION NO.2979 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3.
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENTS :- 1 Jagdish S/o. Rajeram Borkar, aged
Ori. complainant about 48 years, occupation: Retired,
R/o. Near Buddha Vihar, Tah. Kuhi,
Mohadi, Titur, Kuhi, District: Nagpur -
440202.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2977 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
WP NO.4967 OF 2023 + 13.odt
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3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Dinesh S/o. Uddhav Patil, aged about
Ori. complainant 47 years, occupation: Service, R/o.
Gangabai Ghat Road, Near Ashok
Buddha Vihar, Kanji House, Juni
Mangalwari, Nagpur -08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2973 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
Ori. Respondent No.1 to 3.
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENT'S :- 1 Sunil S/o Ramdas Tirpude, aged about
Ori. complainant 52 years, occupation: Service, R/o.
House No.8, Sawari Amma Dargah
Road, Near Jian Kirana Store,
Pawanputra Nagar, Nagpur-23.
WP NO.4967 OF 2023 + 13.odt
10
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
WITH
WRIT PETITION NO.2970 OF 2025
PETITIONER :- 1 Nagpur Municipal Corporation,
ori. respondent No.1 to 3.
through its Commissioner, having
office at Civil Lines, Nagpur.
2 Nagpur Municipal Corporation,
through its Health Department, having
office at Civil Lines, Nagpur.
3 Nagpur Municipal Corporation,
through its Zonal Office, Lakadganj
Zone, Zone No.8, Lakadganj, Nagpur.
..VERSUS..
RESPONDENTS :- 1 Smt. Laxmibai W/o Lokmitra Babulkar,
Ori. complainant aged about 54 years, occupation:
Service, R/o. Old Mangalwari,
Gangabai Ghat Road, Bhandewadi,
Bagadganj, Nagpur-08.
Ori. Respondent No.4 2 The State of Maharashtra, Through its
Secretary, Nagar Vikas Vibhag,
Mantralaya, Vistar Bhavan, Mumbai-
400 032.
------------------------------------------------------------------------------------------------------------------------------------
Mr. V. P. Marpakwar, Advocate for Petitioner in W.P. No.4968 of 2023 and
4967 of 2023
Mr. S. N. Bhattad, Advocate for Respondent No.1 in W.P. No.4968 of 2023
and 4967 of 2023 and for petitioners in other respective petitions.
Mr. U. P. Aakare, Advocate for the Respondent No.1 in respective petitions
Mr. S. B. Bissa AGP for respondent/State in respective petitions.
------------------------------------------------------------------------------------------------------------
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CORAM :ROHIT W. JOSHI, J.
RESERVED ON :13.10.2025
PRONOUNCED ON 22.12.2025
ORAL JUDGMENT :
1) Rule. Rule made returnable forthwith. Heard
finally with consent of learned counsel for the respective
parties.
2) All these petitions give rise to identical questions
of law and the facts of the petitions are almost similar,
therefore, the petitions are being decided by a common
judgment. For the purpose of convenience, facts of writ
petition No.4722 of 2025 will be taken into consideration.
3) Petitioners are original respondent Nos. 1 to 3
and respondents are original complainant. Petitioners will be
referred as, "NMC" and the respondent No.1 as,
"complainant" for the sake of brevity.
4) Respondent No.1 in Writ Petition No.4722 of
2025 had filed a complaint under Section 28 of the
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act,1971, (hereinafter referred to as
WP NO.4967 OF 2023 + 13.odt
"MRTU & PULP Act" for the purpose of brevity), being
Complaint ULP No.413 of 2015. It is the case of the
complainant that he was appointed as a Safai Karmachari
with NMC on the post of cleaner/sweeper w.e.f. 27.07.1993.
Initially wages were paid at the rate of Rs.25/- per day. The
wages were increased from time to time to Rs.294/- per day.
According to the complainant he has rendered more than 240
days of service in each calendar year ever since his
appointment and his working was satisfactory, clean and
unblemished. The complainant raised a grievance that work
of a regular employee was being extracted from him while
treating him to be a substitute worker for a period of around
22 years. The complainant alleged that the NMC had
indulged in unfair trade practice under Item 6 and 9 of
Schedule-IV of MRTU & PULP, Act. It is also contended that
the service of complainant is governed by the provisions of
Bombay Industrial Relations Act & Industrial Employment
(Standing Orders), Act, 1946 and Model Standing Orders
("MSO") framed under the said Act. According to the
complainant, in view of Clause 4(C) of the MSO he is entitled
WP NO.4967 OF 2023 + 13.odt
to the benefit of regularization in service upon completion of
240 days of work in one calendar year. The complainant has
referred to resolutions dated 27.11.2015 and 21.01.2016
passed by the NMC for creation of 4,500 and odd posts of
Safai Karmacharis. It is, however, stated that NMC failed to
take effective steps for implementation of the said
resolutions, resulting in serious hardship to the Safai
Karmacharis like the complainant. Reference was also made
to resolution dated 30.11.2009, whereby benefit of
regularization in service was granted to certain employees
who were working as Safai Karmacharis.
5) The NMC filed its written statement opposing the
complaint. It raised a contention that since the complainant
was not appointed by following the procedure prescribed for
appointment of a regular employee, the claim of
regularization made by the complainant was not tenable. The
respondent also contended that there was no sanctioned post
against which services of the complainant could be
regularized. It is stated that the complainant was working as
a substitute Safai Karmachari and was not entitled to claim
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benefit of regularization merely on the ground that he had
completed 240 days of service in a calendar year. The NMC
also contended that Model Standing Orders are not
applicable since it has its own Certified Standing Orders. It is
contended that apart from Certified Standing Orders, service
conditions are also governed by the provisions of
Maharashtra Civil Services Rules, 1981. Lastly, the NMC
raised a contention that the State Government had granted
approval for creation of 4407 supernumerary posts of Safai
Karmacharis and pursuant to the said Government
Resolution, appointment order dated 28.02.2020 was issued
in favour of the complainant on a supernumerary post as a
regular employee. It is stated that the employees are not
entitled to benefit of previous service as per the said
appointment order. A contention is raised that since the
appointment order is accepted unconditionally, complainants
cannot seek benefit of previous employment in view of clause
19 of the appointment order which prohibits the employees
from claiming benefit of the previous service. It is contended
that the said clause is fully binding on the complainant. Apart
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from this, technical ground is also raised that complaint filed
on behalf of individual complainant was not maintainable.
6) The learned Industrial Court framed issues in the
matter on which the respective parties recorded their
evidence. After hearing the parties the learned Industrial
Court has allowed the complaint vide judgment and order
dated 30.09.2024. The learned Industrial Court has granted a
declaration that the NMC had indulged in unfair labour
practice under Items 6 and 9 in Schedule IV of MRTU &
PULP, Act and directed it to cease and desist from continuing
the same. Further directions are issued to submit proposal to
the State Government to grant benefit of permanency to the
complainant on completion of 240 days of service and
further upon acceptance of the proposal to grant all
consequential benefits including pension and gratuity. Similar
orders are passed in cases of several other Safai Karmacharis.
The said orders are subject matter of challenge in the present
writ petitions.
7) Mr. Sharad Bhattad, learned Advocate for the
petitioner, raised a preliminary objection that complaint filed
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by the individual employees is not maintainable and as such,
the complaint was liable to be dismissed on this ground
alone. He contends that even if the case of the complainants
is taken on their face value and accepted to be true, the case
would fall under Schedule IV, Item 6 and not under Item 9.
He further contends that a complaint with respect to unfair
labour practice under Schedule IV, Item 6 can be entertained
only at the behest of a recognized union, in view of Section
21 of the MRTU and PULP Act.
8) The contention is liable to be rejected in view of the
settled legal position that Standing Orders framed under the
Bombay Industrial Relations Act, 1946 (BIR, Act) constitute
service conditions and failure to follow Model Standing
Orders and/or deprive the employees of rights flowing
therefrom amounts to an unfair labour practice under
Schedule IV, Item 9. Legal position in this regard is well
settled by a catena of decisions of this Court, including in the
case of Narendra Thakre Vs. NMC, reported in (2006) 3 AIR
BomR, 551.
9) Apart from this, the record indicates that there is
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no recognized union to represent or espouse the cause of the
complainants and therefore, the complainants will be entitled
to file individual complaints even with respect to unfair
labour practice under Schedule IV, Item 6, in view of the
proviso to Section 21 of the Act.
10) Since, the foundation of the claim of the
employees' is clause 4(C) of the Model Standing Orders, it
will be appropriate to decide as to whether service conditions
of the employees will be governed by MSO. It is the case of
the employees that their services are governed by MSO. As
against this, the contention of NMC is that MSO are not
applicable to NMC since there are separate certified Standing
Orders which are duly sanctioned under the provisions of the
Act.
11) Mr. Sharad Bhattad, the learned Advocate for the
NMC, contends that the learned Labour Court had erred in
allowing the complaint filed by the respondent-employee. It
is his contention that NMC is a public body and, therefore,
appointments in NMC are required to be made by following a
prescribed procedure. The learned Advocate contends that
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the initial appointment of the respondent-employee with
NMC was not made by following the procedure prescribed for
appointment of regular employees and therefore the
complainants cannot claim regularization or permanency. The
learned Advocate has placed reliance on judgment of the
Hon'ble Supreme Court in the matter of State of Karnataka
Vs. Umadevi reported in (2006) 4 SCC 1, in support of his
contention that since the complainants were not appointed by
following procedure prescribed for appointment of regular
employees, they cannot claim regularization in service as a
matter of right. The learned Advocate further contends that
although in the matter of MSRTC Vs. Casteribe Rajya
Parivahan Karmachari Sanghatna, reported in (2009) 8 SCC
556, the Hon'ble Supreme Court has explained that the law
laid down in Umadevi (supra) would not result in creating
any fetter on Courts dealing with labour laws from granting
relief to employees who are subjected to unfair labour
practices, relief of regularization in service cannot be granted
unless the service is rendered against a duly sanctioned post
and that too by following the prescribed procedure. He
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further contends that the judgment also clarifies that creation
of a post is beyond the powers of any Court of law and
therefore, creation of post cannot be ordered by a judicial
order. The learned Advocate contends that the learned
Industrial Court has erred in granting declaration that NMC
had indulged in unfair labour practice by continuing services
of complainants as daily wagers although the complainants
had not rendered service against any sanctioned vacant post.
12) The learned Advocate argues that in view of
Section 51(4) of the Maharashtra Municipal Corporations
Act, the power to create a post is not vested with NMC and,
therefore, it was not within the competence of NMC to
regularize services of the respondent-employee since posts
were not in existence.
13) In furtherance of his contention that there is no
right of regularization in service vested with any employee in
the absence of a sanctioned post and that creation of post is
beyond the competence of a Court of law, it being necessarily
an administrative function. He further contends that benefit
of regularization is granted to the complainants by creating a
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supernumerary post, on completion of 20 years service. He
contends that policy of regularization is an administrative
decision and that the learned Industrial Court was not
justified in directing the NMC to set fresh proposal for
regularization of service of complainants on completion of
240 days service. The learned Advocate has placed reliance
on the following judgments:-
(a). MSRTC Vs. Casteribe Rajya Parivahan
Karmachari Sanghatana, reported in (2009) 8 SCC
556,
(b). CEO, ZP, Thane Vs. Santosh Tukaram Tiware,
reported in (2023) 1 SCC 456,
(c). Union of India Vs. Ilmo Devi, reported in
(2021) 20 SCC 290,
(d). Hari Nandan Prasad and anr. Vs. Food
Corporation of India, reported in (2014) 7 SCC 190,
(e). Divisional Manager Aravali Golf Club and anr.
Vs. Chander Hass and anr., reported in (2008) 1 SCC
683.
(f). Municipal Council, Tirora Vs. Tulsidas Bidhade,
WP NO.4967 OF 2023 + 13.odt
reported in 2016 (6) MhLJ 867 (D.B.)
14) Apart from the aforesaid decisions, the learned
Advocate has drawn attention to the judgment by the Hon'ble
Supreme Court in the matter of ONGC..Vs...Krisan Gopal and
others reported in 2021 18 SCC 707. The Hon'ble Supreme
Court has dealt with the earlier decision in the matter of
ONGC Ltd., Vs. Petroleum Coal Labour Union (PCLU),
reported in (2015) 6 SCC 494 and referred the said decision
for reconsideration to a larger bench in view of the following
observations:-
28. The following propositions would emerge upon
analysing the above decisions:
28.1 Wide as they are, the powers of the Labour Court
and the Industrial Court cannot extend to a direction to
order regularisation, where such a direction would in
the context of public employment offend the provisions
contained in Article 14 of the Constitution.
28.2 The statutory power of the Labour Court or
Industrial Court to grant relief to workmen including
the status of permanency continues to exist in
circumstances where the employer has indulged in an
unfair labour practice by not filling up permanent posts
even though such posts are available and by continuing
to employ workmen as temporary or daily wage
WP NO.4967 OF 2023 + 13.odt
employees despite their performing the same work as
regular workmen on lower wages.
28.3. The power to create permanent or sanctioned
posts lies outside the judicial domain and where no
posts are available, a direction to grant regularisation
would be impermissible merely on the basis of the
number of years of service.
28.4. Where an employer has regularised similarly
situated workmen either in a scheme or otherwise, it
would be open to workmen who have been deprived of
the same benefit on a par with the workmen who have
been regularised to make a complaint before the
Labour or Industrial Court, since the deprivation of the
benefit would amount to a violation of Article 14.
28.5. In order to constitute an unfair labour practice
under Section 2(ra) read with Item 10 of Vth Schedule
to the ID Act, the employer should be engaging
workmen as badlis, temporaries or casuals, and
continuing them for years, with the object of depriving
them of the benefits payable to permanent workmen.
29. The decision in PCLU needs to be revisited in
order to set the position in law which it adopts in
conformity with the principles emerging from the
earlier line of precedent. More specifically, the areas on
which PCLU needs reconsideration are:
29.1 The interpretation placed on the provisions of
Cluase 2(ii) of the Certified Standing Orders.
29.2 The meaning and content of an "unfair labour
WP NO.4967 OF 2023 + 13.odt
practice" under Section 2(ra) read with Item 10 of the
Vth Schedule to the ID Act.
29.3 The limitations, if any, on the power of the Labour
and Industrial Courts to order regularisation in the
absence of sanctioned posts. The decision in PCLU
would, in our view, require reconsideration in view of
the above decisions of this Court and for the reasons
which we have noted above.
15) The Hon'ble Supreme Court recorded that, prima
facie, the law laid down in PCLU is not be in accordance with
earlier binding precedents in the matter of Mahatma Phule
Agricultural University V. Nasik Zilla Sheth Kamgar Union
reported in (2001) 7 SCC 346, in the matter of SBI Vs. Raja
Ram reported in (2004) 8 SCC 164, in the matter of SBI Vs.
Rakesh Kumar Tewari reported in (2006) 1 SCC 530 and in
the matter of ONGC Ltd., V. Engg. Mazdoor Sangh reported in
(2007) 1 SCC 250.
16) As against this, the learned Advocates for the
complainants argue that it is well settled that jurisdiction of
Labour and Industrial Court to grant relief restraining the
employer from indulging in acts of unfair labour practices
extends even in cases where the employer is the Government
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or any other authority, such as local body, statutory
corporation, government company, etc,. The learned
Advocates contend that merely because the employer is a
local body/Municipal Corporation, it cannot claim exemption
from applicability of provisions of enactments regulating
rights of employees. It is contended that in case where
employees are working continuously over a period of years as
daily wagers, thereby depriving them of the right of
regularization and permanency in service, a duty is enjoined
on the Courts of law to grant appropriate relief directing the
employer to desist from indulging in unfair labour practice
and to grant further appropriate relief to the employees, who
are victims of such unfair labour practice. They contend that
for years together the complainants have been forced to work
as daily wagers which is clearly an unfair labour practice
under Item 6 and 9 in Schedule IV of MRTU and PULP, Act.
The learned Advocates contend that the unfair labour
practice by the employer cannot be continued by raising a
contention that there exist no post against which services of
employees can be regularized. The learned Advocates have
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placed reliance on the following decisions in support of their
contention:-
(a) Pandurang Sitaram Jadhav Vs. State of
Maharashtra, reported in 2019 (3) CLR 639.
(b) Jaggo Vs. Union of India and ors, reported
in (2024) SCC online SC 3826.
(c) Shripal and another Vs. Nagar Nigam,
Ghaziabad, reported in (2025) SCC online 221.
(d) Dharam Singh Vs. State of UP, reported in
(2025) SCC Online 1735.
(e) Judgment dated 08.11.2023 by Bombay
High Court (Civil Appellate Jurisdiction) in Writ
Petition No.5357 of 2021 in the matter of The
Commissioner, Municipal Corporation of Greater
Mumbai Vs. Kachara Vahatuk Shramik Sangh.
17) The said judgments are cited in order to contend
that relief of regularization in service can be granted even in
cases where there is no sanctioned post if the nature of work
is perennial. They therefore contend that the contention of
NMC that there were no sanctioned posts against which
services of the employees could be regularized is liable to be
rejected.
18) Apart from the aforesaid, the learned Advocates also
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contend that the employer/NMC is also guilty of favoritism
by treating similarly situated employees differently. It is
contended that in identical cases orders of regularization are
passed against NMC and that in compliance of the said orders
NMC has granted relief of regularization to similarly
circumstanced employees. The learned Advocates contend
that the employer/NMC ought not to have filed the present
petition since orders passed in favour of similarly
circumstanced employees are accepted and followed by it.
The learned Advocates have placed reliance on judgment of
the Learned Industrial Court, Maharashtra (Nagpur Bench) in
complaint ULP No.377 of 2011, whereby relief of
regularization in service was granted in favour of
complainants in the said case vide judgment and order dated
25.06.2018, which was confirmed by this Court vide
judgment dated 17.06.2019 passed in Writ Petition No. 2433
of 2019. It is pointed out that SLP No.21925 of 2019,
challenging the said judgment passed by this Court was also
dismissed by the Hon'ble Supreme Court on 31.01.2020. The
learned Advocates for the complainants have placed reliance
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on the following judgments in support of their contention:-
(I) State of U.P. Vs. Arvind Kumar Srivastava and ors
2015 (1) SCC 347
In the said judgment the Hon'ble Supreme Court
has held that in service matters when relief is granted by
Court of law to one set of employees, the employer must
extend the benefit of the judgment to all similarly
circumstanced employees. It is held that failure to extend
benefit of such a decision to employees who had not
approached the Court results in discrimination. It is held that
merely because some employees do not approach the Court,
they cannot be treated differently and that the benefits must
be extended to them even if they do not approach the Court.
(II) Pandurang Sitaram Jadhav Vs. State of Maharahstra
2019 (3) CLR 639
In this case, the employees were working for years
together as ad-hoc employees. The work performed by them
was that of regular employees. Their appointment was not
made by following regular selection process. However, similar
ad-hoc employees who were not selected by regular selection
process had approached the Industrial Court wherein order of
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regularization in service was passed and the said order was
confirmed up to the Hon'ble Supreme Court. In view of the
aforesaid, the Hon'ble Supreme Court held that the workers
in the said case were entitled to benefit of regularization.
CONSIDERATION
19) The contention of Mr. Bhattad that MSO will not
be applicable to the employees of NMC in view of certified
Standing Orders is liable to be rejected in view of the
judgment of this Court in the case of NMC Vs. Ramchandra
Sathe, reported in 1992(1) CLR 779.
20) The contention of the employees that orders
granting regularization in service are accepted by NMC in
cases of identically circumstanced employees is based on
judgment in complaint ULP No.377 of 2011. Perusal of the
said decision will demonstrate that the employees in the said
case were appointed as Safai Karmacharis on contractual
basis. The said employees were holding driving licenses and
their services were utilized by NMC as drivers. Additional
wages were paid to them while work of driver was extracted
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from them. The employees filed the complaint contending
that they were entitled for regularization of service on the
post of driver since they had completed more than 240 days
of service in a calendar year on the said post. The learned
Industrial Court found that NMC had failed to bring material
on record to substantiate that the appointment of the said
employees was made as a stop-gap arrangement and that
they were awarded work of drivers intermittently when the
regular drivers were not available for work. It is further
observed that four drivers who were juniors to the
complainants were granted benefit of regularization on the
ground that they had completed 240 days of service in a
calendar year. On this basis a finding was recorded that NMC
was guilty for showing favoritism to one set of employees by
ignoring the claim of the complainants who were identically
situated. Perusal of deposition of NMC witnesses which is
extracted in paragraph 34 of the judgment by the learned
Industrial Court indicates that the posts against which order
of regularization was passed were in existence. The said
decision therefore indicates that order of regularization was
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passed in favour of workmen (drivers) who had put in more
than 20 years of service as daily wagers against sanctioned
posts. In view of the fact that posts where in existence and
relief of regularization in service was granted to similarly
circumstanced employees, the said complaints were allowed.
The distinguishing feature in the present cases is that here
the posts were not sanctioned and therefore the contention of
favoritism to one set of employees cannot be accepted.
21) The core issue between the parties is as to
whether a workman who has put in more than 240 days of
continuous service in a calendar year is entitled to benefit of
regularization in service under Clause 4(C) of MSO, even in
the absence of a sanctioned vacant post.
22) The learned Advocates for the workmen have
placed reliance on following judgments:-
Dharamsingh Vs. State of UP, (AIR 2025 SC 3897,)
(a) The Hon'ble Supreme Court has held that when
workers perform permanent tasks, equity demands that those
tasks are placed on sanctioned posts so that the workers are
treated with fairness and dignity. The workers in the said case
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were employed on the posts of peons, attendants and drivers
as daily wagers. A proposal for sanction of 14 posts was
forwarded to the State Government by the U.P. Higher
Education Services Commission, which was rejected. Writ
petition was filed by the concerned employees challenging
the rejection of proposal for sanction of posts, which was
dismissed by the learned Single Judge of the High Court.
Intra-court appeal preferred by the employees was also
dismissed on the ground that there was no vacancy against
which services of the petitioners could be regularized and
further that there were no Rules in place for regularization.
In this backdrop, the workers/petitioners approached the
Hon'ble Supreme Court. The Hon'ble Supreme Court allowed
the appeal preferred by the workers, holding that there
cannot be any justification on the part of the State in refusing
to grant sanction to posts despite availability of work which is
of perennial nature. It is held that financial constraints
cannot be cited as a valid ground for not granting sanction to
posts when work of regular and perennial nature is
performed by workers who are engaged as daily wagers. The
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ratio of the said judgment is that Government cannot refuse
to grant sanction for creation of posts on the ground of
financial constraints. In the said case decision taken by the
Government refusing to grant sanction for creation of posts
was under challenge. The ratio of the said judgment will not,
therefore, be directly applicable to the present case. It will be
appropriate to refer to paragraph 6 of the judgment, wherein
the Hon'ble Supreme Court has observed that although the
principal challenge in the petitions was to refusal on the part
of the State Government to grant sanction to creation of
posts, the petition was decided as if it was merely a case of
regularization in service. The Hon'ble Supreme Court has also
held that although creation of posts is primarily an executive
function, the decision of the Government refusing to grant
sanction to creation of posts cannot be immune from judicial
scrutiny.
Jagoo Vs. Union Of India, 2024 Scc Online 3826.
(b) In this case, the Hon'ble Supreme Court has held that
since the nature of work which was performed by the
employees was of perennial nature and fundamental to the
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functioning of the offices of the employer, the contention of
the employer regarding lack of regular posts against which
services of the employees could be regularized was liable to
be rejected. It is held that having regard to the nature of
work, it was necessary to hold that the posts were regular
posts irrespective of the method by which the employees
were initially appointed. It was also found that the employees
in the said case were treated indifferently inasmuch as
benefit of regularization in service was granted to individuals
who had put in lesser years of service as compared to the
workers in the said case, although they were performing
work of similar nature. It is held that benefit of regularization
cannot be denied to the employees by treating them as
temporary and by taking shelter under procedural
formalities. The Hon'ble Supreme Court has placed reliance
on the Constitution Bench decision in the matter of Uma Devi
and has observed that in the said case it was held that
employees who were engaged against sanctioned posts and
had served continuously for more than 10 years should be
considered for regularization as a one-time measure.
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Shripal Vs. Nagar Nigam Ghaziabad (2025) SCC online 221
(c) In this case, the workers were working continuously
since the year 1998-99. They had filed a case seeking
regularization. Their services were terminated during
conciliation proceedings. They had challenged the said
termination. In this situation, the matter reached to the
Hon'ble Supreme Court. The Hon'ble Supreme Court allowed
the appeal, finding that the work performed by the workers
was integral part of essential municipal functions of the
employer/Municipal Council. It must be stated that in the
said case, the High Court had held that the employer-
Municipal Council was not justified in terminating the
services of the workers abruptly. It had issued orders
directing reinstatement in service of the workers as daily
wagers. The Hon'ble Supreme Court set aside the order
passed by the High Court to the extent that direction was
issued for re-engagement of the workers on daily wages. It
was found that the termination of services of the workers
during pendency of conciliation proceedings was in breach of
provisions of the U.P. Industrial Disputes Act,1947 and was
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accordingly illegal. Accordingly, order of termination was
quashed and set aside by the Hon'ble Supreme Court, relief of
reinstatement was granted with continuity, holding that the
workers shall be eligible for all the consequential benefits
such as seniority and eligibility for future promotions. The
Hon'ble Supreme Court directed the Municipal Council to
initiate fair and transparent process for regularization of
services of the workmen in the said case having regard to the
perennial nature of work. The relevant observations of the
Hon'ble Supreme Court are as under:-
12. The evidence, including documentary
material and undisputed facts, reveals that the
Appellant Workmen performed duties integral to
the Respondent Employer's municipal functions
specifically the upkeep of parks, horticultural
tasks, and city beautification efforts. Such work is
evidently perennial rather than sporadic or
project-based. Reliance on a general "ban on fresh
recruitment" cannot be used to deny labor
protections to long-serving workmen. On the
contrary, the acknowledged shortage of Gardeners
in the Ghaziabad Nagar Nigam reinforces the
notion that these positions are essential and
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ongoing, not intermittent.
13. By requiring the same tasks (planting,
pruning, general upkeep) from the Appellant
Workmen as from regular Gardeners but still
compensating them inadequately and
inconsistently the Respondent Employer has
effectively engaged in an unfair labour practice.
The principle of "equal pay for equal work,"
repeatedly emphasized by this Court, cannot be
casually disregarded when workers have served
for extended periods in roles resembling those of
permanent employees. Long-standing assignments
under the Employer's direct supervision belie any
notion that these were mere short-term casual
engagements.
16. The High Court did acknowledge the
Employer's inability to re-justify these abrupt
terminations. Consequently, it ordered
engagement on daily wages with some measure of
parity in minimum pay. Regrettably, this only
perpetuated precariousness: the Appellant
Workmen were left in a marginally improved yet
still uncertain status. While the High Court
recognized the importance of their work and
hinted at eventual regularization, it failed to afford
them continuity of service or meaningful back
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wages commensurate with the degree of statutory
violation evident on record.
17. In light of these considerations, the
Employer's discontinuation of the Appellant
Workmen stands in violation of the most basic
labour law principles. Once it is established that
their services were terminated without adhering to
Sections 6E and 6N of the U.P. Industrial Disputes
Act, 1947, and that they were engaged in
essential, perennial duties, these workers cannot
be relegated to perpetual uncertainty. While
concerns of municipal budget and compliance with
recruitment rules merit consideration, such
concerns do not absolve the Employer of statutory
obligations or negate equitable entitlements.
Indeed, bureaucratic limitations cannot trump the
legitimate rights of workmen who have served
continuously in de facto regular roles for an
extended period.
Writ Petition No.5357 of 2021 (Bombay High Court Civil
Appellate Jurisdiction), Dated 08.11.2023
(d) The principal dispute in the said matter was as to
whether the employees in the said case were employees of
the contractor or direct employees of the Municipal
WP NO.4967 OF 2023 + 13.odt
Corporation. In the context of the said dispute, a contention
was raised that there was no vacant post in the establishment
of Municipal Corporation. This Court held that the argument
about lack of posts cannot be accepted and that the
Corporation cannot continue to exploit its workers stating
that there is no post against which their services can be
regularized. It was directed that the workers in the reference
were entitled to all benefits at par with permanent workers of
the Municipal Corporation.
23) As against this, there are other line of decisions
by the Hon'ble Supreme Court and this Court, on which the
learned Advocate for the NMC has placed reliance. Following
are the decisions on which reliance is placed by the NMC.
CEO, ZP, Thane, Vs. Santosh Tukaram Tiware,
(2023) 1 SCC 456
(i) In the case of said judgment the workers were
appointed as drivers at Public Health Centre on contractual
basis till finalization of tenders. The appointments were made
in the year 2010. Thereafter, transportation tender was
finalized in the year 2021 and services of the
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employees/drivers were terminated on 15.07.2021, in view
of allotment of work of transportation to a third agency. The
termination was effected after a period of around 11 years of
service rendered by the drivers on contractual basis. The
petition preferred by the drivers was allowed by the High
Court. Directions were issued by the High Court to regularize
the drivers in service. In this backdrop, the employer/ZP
approached the Hon'ble Supreme Court. The Hon'ble
Supreme Court allowed the appeal preferred by the employer,
holding that merely because the worker had held the post of
driver for a long period of time will not mean that he was
entitled to regularization of service when decision to avail
services of a contractor was taken by the employer (ZP).
Relevant observations of the Hon'ble Supreme Court while
rejecting the claim of the employee are as under:-
16. Merely because Respondent 1 continued in
service for longer period on contractual basis the
High Court ought not to have passed the order of
regularisation more particularly, when a policy
decision was taken to avail the services of the
driver by the agency/contractor and that the
WP NO.4967 OF 2023 + 13.odt
appointment of Respondent 1 and other similarly
situated drivers was not made after any selection
procedure. The appointment of Respondent 1
was purely on stopgap and on contractual basis.
The Hon'ble Supreme Court referred to and
distinguished its earlier decision in the matter of Pandurang
Sitaram Jadhav Vs. State of Maharashtra, reported in (2020)
17 SCC 393 and held that in the said case appeal preferred by
the employee was allowed since benefit of regularization was
granted to similar employees working in the same
establishment. Likewise, the Hon'ble Supreme Court also
dealt with earlier decision in the matter of Sheo Narain
Nagar Vs. State of UP, reported in (2018) 13 SCC 432 where
benefit of regularization in service was granted to the worker
from the date on which temporary status was granted to him,
on the ground that in the said case there was requirement of
work of the employee and that a post was also available for
granting the benefit of regularization. Existence of post is
considered to be a distinguishing factor. Based on these
reasons, the Hon'ble Supreme Court distinguished the earlier
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two decisions and quashed the order passed by the High
Court granting benefit of regularization in service to the
worker although he had completed around 11 years of
service on temporary basis.
Union of India Vs. Ilmo Devi. 2021 (20) SCC 290
(ii) In the said case, the respondents-workers were
working as part time Safai Karmacharis, at post office. The
workers had approached the Central Administrative Tribunal
seeking directions to frame policy for absorption/
regularization in service with a further prayer to grant benefit
of temporary status to the employees. The original
application was opposed on the ground that the workers
were rendering service for less than 5 hours in a day and that
they were not rendering service against any sanctioned post.
The claim of the workers for regularization in service was
rejected by the Tribunal. The Tribunal directed the employer
to initiate the process of recruitment for appointment of Safai
Karmacharis on regular basis and issued a direction that the
workers (Safai Karmacharis) who had filed the original
application should be allowed to participate in the selection
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process. It was also directed that in case any decision is taken
for granting benefit of regularization in service as a onetime
measure as per judgment of the Hon'ble Supreme Court in
the case of Umadevi (supra), the case of the workers should
also be taken into consideration. Both sides approached the
High Court challenging the said judgment. In the meantime,
a fresh regularization scheme was framed by the
employer/Union of India. The High Court directed the
employer/Union of India to consider the claim of
regularization of workers as per the scheme framed. The
claim of regularization by the workers was rejected on the
ground that there were no sanctioned posts and further that
the workers had not put in 10 years of service as on
10.04.2006 i.e. the date of judgment in the matter of Uma
Devi (supra). The High Court directed the Union of India-
employer to reformulate the policy and take decision to
sanction the posts in a phasewise manner within a period of 6
months. This order by the High Court was assailed before the
Hon'ble Supreme Court. In this backdrop, the Hon'ble
Supreme Court has held that in absence of any sanctioned
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post, the High Court could not have issued directions for
regularization of service. It is further held that High Court
cannot, in exercise of its jurisdiction under Article 226, issue
a direction to the Government for creation of posts or
formulating a policy for regularization in a particular manner.
It is further held that no employee can claim regularization in
service as a matter of right irrespective of policy for
regularization. Relevant observations of the Hon'ble Supreme
Court while rejecting the claim of the employees are as
under:-
"13......As observed above, there are no
sanctioned posts in the Post Office in which the
respondents were working, therefore, the
directions issued by the High Court in the
impugned judgment and order are not
permissible in the judicial review under Article
226 of the Constitution. The High Court cannot,
in exercise of the power under Article 226, issue a
mandamus to direct the Department to sanction
and create the posts. The High Court, in exercise
of the powers under Article 226 of the
Constitution, also cannot direct the Government
and/or the Department to formulate a particular
WP NO.4967 OF 2023 + 13.odt
regularisation policy. Framing of any scheme is no
function of the Court and is the sole prerogative
of the Government. Even the creation and/or
sanction of the posts is also the sole prerogative of
the Government and the High Court, in exercise
of the power under Article 226 of the
Constitution, cannot issue mandamus and/or
direct to create and sanction the post.
14. Even the regularisation policy to regularise
the services of the employees working on
temporary status and/or casual labourers is a
policy decision and in judicial review the Court
cannot issue mandamus and/or issue mandatory
directions to do so. In R.S. Bhonde, it is observed
and held by this Court that the status of
permanency cannot be granted when there is no
post."
Hari Nandan Prasad Vs. FCI, (2014) 7 SCC 190,
(iii) In this judgment of the Hon'ble Supreme Court has
reconciled the law laid down by the Hon'ble Supreme Court
in the matter of UP Power Corporation Ltd., Vs. Bijli Mazdoor
Sangh (2007) 5 SCC 755 and Maharashtra SRTC Vs.
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Casteribe Rajya Parivahan Karmachari, reported in (2009) 8
SCC 556. In the case of UP Power Corporation Ltd., (supra).
The Hon'ble Supreme Court held that in the light of judgment
in the matter of Uma Devi, (supra) Courts functioning under
Acts regulating labour laws could not grant relief of
regularization to a daily wager who was not appointed in
service after undergoing a proper selection procedure, since it
would lead in violation of right to equality. In the case of
MSRTC Vs. Casteribe (supra), the Hon'ble Supreme Court has
held that the law laid down in Uma Devi, (supra) cannot
denude the labour Courts of their power to grant appropriate
relief of regularization in cases where unfair labour practice
was established. The Hon'ble Supreme Court, after taking
into consideration both these judgments has laid down that
two judgments are not contrary to each other. It is explained
that Labour/Industrial Court can exercise jurisdiction to grant
relief of regularization to workers only where the employer
has indulged in unfair labour practice by not filling up
permanent posts and continuing workers on temporary basis
or on daily wages against sanctioned posts. It is held that
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even if posts are available and case of unfair labour practice
is not made out, direction for regularization in service cannot
be issued by Labour/Industrial Court. It is also held that
direction for regularization cannot be issued in the absence of
any post. A further rider is added that in case where benefit
of regularization in service is granted to similarly situated
workmen, the benefit of regularization will have to be
extended to all similarly circumstanced workers.
24) As regards the decisions relied upon by the
learned Advocates for the workers including the judgment in
the matters of Dharamsingh (supra), Jaggo (supra), Shripal
(supra) and WP No.5357 of 2021 (supra), which hold that
benefit of regularization can be granted if the work is
perennial in nature, the same appears to be in tune with the
law laid down by the Hon'ble Supreme Court in the matter of
PCLU (supra). The correctness of PCLU is doubted by the
Hon'ble Supreme Court in the case of ONGC..Vs...Krisan
Gopal (supra) while making reference to a larger bench.
25) Judgments in the matters of Jaggo, Dharamsingh
and Shripal, do not take into consideration earlier decisions
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in the matter of MSRTC Vs. Casteribe, CEO, ZP, Thane Vs.
Santosh and Harinandan Prasad Vs. FCI, which hold that
relief of regularization cannot be granted in the absence of a
sanctioned post and further that creation of post is beyond
the province of a Court of law.
26) The Hon'ble Supreme Court has held in the
matter of National Insurance Co. Vs. Pranay Sethi, reported
in (2017) 16 SCC 680 that when two judgments equal bench
strength are pressed into service and the ratio thereof cannot
be reconciled, the judgment which is prior in point of time
will be a good law and must be followed as a binding
precedent.
27) Whereas the judgments of the Hon'ble Supreme
Court which are relied upon by the NMC lay down that relief
of regularization cannot be granted to workers in the absence
of any sanctioned post, the decisions relied upon by the
complainants indicate that the Hon'ble Supreme Court has
laid emphasis on nature of work to hold that if workers are
continued as temporary employees for years together
extracting work of perennial nature, the Courts will have the
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authority to grant relief of regularization even in the absence
of sanctioned post. Having regard to the judgment in the
matter of ONGC Vs. Krishan Gopal (supra), which has
doubted the correctness of the decision in the matter of
ONGC Vs. PCLU (supra) and also having regard to the
judgment of the Hon'ble Supreme Court in the case of Pranay
Sethi (supra), which holds that if ratio of two judgments
cannot be reconciled, the judgment prior in point of time
must be followed as a binding precedent unless the
subsequent decision takes into consideration the earlier
judgment, I am of the considered opinion that the ratio laid
down in the matter of CEO, ZP Thane, Vs. Santosh (supra),
Union of India Vs. Ilmo Devi (supra), Hari Nandan Prasad Vs.
FCI (supra), MSRTC Vs. Casteribe (supra) needs to be
followed as against judgments in the matter of Dharamsingh
Vs. State of UP (supra), Jaggoo Vs. UOI (supra) and Shripal
Vs. Nagar Nigam(supra). It will also be appropriate at this
stage to refer to paragraph 53 of the judgment of
Constitution Bench of the Supreme Court in the case of
Secretary, State of Karnatka Vs. Umadevi (supra), wherein
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the Hon'ble Supreme Court has, in no uncertain terms, held
that regularization in service cannot be a mode of
recruitment and that daily wagers or ad-hoc employees who
are initially appointed in public institutions dehors the
statutory and constitutional scheme of public employment do
not have any right to the post on which they work and cannot
claim regularization in service on the strength of the length
of service rendered with the employer as daily wagers or on
temporary basis. In paragraph 53 of the judgment the
Hon'ble Supreme Court has issued a clarification. The
relevant portion of paragraph 53 is extracted herein-below
for ready reference.
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa,
R.N. Nanjundappa and B.N. Nagarajan and
referred to in para 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 the courts or
of tribunals. The question of regularisation of the
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services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases abovereferred 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
regularise 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 the 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 regularisation, if any already
made, but not sub judice, need not be reopened
based on this judgment, but there should be no
further bypassing of the constitutional
requirement and regularising or making
permanent, those not duly appointed as per the
constitutional scheme."
28) Perusal of aforesaid portion will demonstrate that
directions for regularization as a onetime measure is issued
only in cases where persons have rendered service on ad-hoc
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basis against duly sanctioned vacant posts. Thus, Umadevi
also permits regularization as a onetime measure only against
duly sanctioned posts. The direction for taking steps for
regularization of services of irregularly appointed employees
is also issued in cases where such employees were employed
against duly sanctioned vacant posts. Umadevi also does not
direct creation of posts for granting benefit of regularization.
29) In this regard, it will be appropriate to refer to
the judgment of the Hon'ble Supreme Court in the matter of
MSRTC Vs. Casteribe, reported in (2009) 8 SCC 556. The
said judgment lays down the ratio that Umadevi cannot be
considered to be an authority to hold that Labour and
Industrial Courts constituted under the MRTU and PULP, Act
cannot pass appropriate orders restraining the employer from
indulging in unfair labour practices by continuing employees
as badlis, casuals or temporaries and to continue them for
years together with object of depriving them of the benefit of
permanency in service. In paragraph 36 of the judgment, it is
held that the Labour and Industrial Courts do have power to
grant the benefit of permanency to workers in case unfair
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labour practice under Item 6 of Schedule IV is established
and the post against which the worker is employed does
exist. In paragraph 37, the Hon'ble Supreme Court has
reiterated the settled legal position that Courts cannot direct
the creation of posts. It has referred to and follow the law
laid down in the judgment of Mahatma Phule Agricultural
University Vs. Nashik Zilla Shet Kamgar Union, reported in
2001 (7 ) SCC 346.
30) The issue as regards applicability of MSO to local
bodies is considered by the Division Bench in the matter of
Municipal Council, Tirora and another Vs. Tulsidas Baliram
Bindhade, reported in 2016 (06) MhLJ 867. The said
judgment is delivered in a reference in view of divergent
views of learned Single Judges in relation to applicability of
clause 4(C) of MSO and the right of regularization of
employees who have completed 240 days of service in a
calendar year in a Municipal Council, in the absence of any
sanctioned post. The Division Bench observed that the
controversy was covered by two earlier Division Bench
judgments in the matters of Pune Municipal Corporation Vs.
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Dhananjay Prabhakar Gokhale reported in 2006 (4) MhLJ 66
and State of Maharashtra Vs. Pandurang Sitaram Jadhav
reported in 2008 (5) All MR 497. Referring to Section 76 of
the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act,1965, it is held that the right to
sanction posts under Section 76 is not vested with the
Municipal Council and likewise, the Municipal Council is also
not the competent authority for making appointments of
employees in view of Section 76(3) of the Act and, therefore,
the workers who had completed more than 240 days in
service in a calendar year cannot fall back on clause 4(C) of
the MSO in order to claim regularization in service. It is held
that, in such cases, a worker cannot contend that the
Municipal Council had engaged in unfair labour practice. The
Division Bench held that applicability of MSO was subject to
the appointment being made in accordance with the Section
76 of the Act.
31) As regards judgment in the matter of PMC Vs.
Dhanajay Gokhale (supra) the Division Bench has held that
merely completion of 240 days service in a year will not be
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good enough for an employee working with the Municipal
Corporation to claim regularization as per clause 4(C) of
MSO. It is held that unless it is established that the service
was rendered against a vacant post which is duly sanctioned
by the competent authority, the employee will not have any
right of regularization. In the said case, the employees had
entered into an agreement with the employer-Municipal
Corporation that their claim for permanency would be
available only upon completion of 5 years' continuous service
and that too subject to availability of vacancy against
permanent post.
32) As regards judgment in the matter of State of
Maharashtra Vs. Pandurang Jadhav (supra), the appointment
of employees was made by the State Government on
temporary basis. There was no sanctioned post or vacancy in
existence against which the workers were employed. The
appointments were not made by following the prescribed
procedure. The Division Bench has held that since the
workers had failed to establish that their appointments were
made after following prescribed procedure, coupled with the
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fact that the appointment was not against any sanctioned
vacant post, it was not possible to grant benefit of
regularization or permanency to the workers. It is held that in
such cases, clause 4(C) of MSO will not be applicable.
33) In the case of Shrirampur Municipal Council Vs.
V. K. Barde, reported in 2011 (4) MhLJ 875, the learned
Single Judge has held that Industrial Tribunal does not
possess jurisdiction to order creation of post. It is further held
that principle of "equal pay for equal work" cannot be made
applicable in cases where daily-rated employees perform the
same work as regular employees.
34) In the matter of Ramesh Vitthal Patil Vs. Kalyan
Dombivali Municipal Corporation, the petitioners/employees
sought a declaration that they had assumed character of
permanent employees by placing reliance on clause 4(C) of
MSO on the ground that they had put in more than 240 days
of service in a calendar year. The claim of the employees that
they had attained status of permanent employees was
rejected by this Court, holding that a worker cannot claim the
right of permanency under Clause 4(C) of MSO irrespective
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of the nature of appointment. It is held that the provisions of
MSO are made subject to provisions of any other law for the
time being in force and, therefore, unless an appointment is
made in accordance with the provisions of the Municipal
Corporation Act, the right of regularization or permanency
cannot be claimed under Clause 4 (C) of MSO.
35) The aforesaid five decisions of this Court in the
matter of Municipal Council Tirora Vs. Tulsidas, Pune
Municipal Corporation Vs. Dhananjay, State of Maharashtra
Vs. Pandurang, Shrirampur Municipal Council Vs. B.K. Barde
and Ramesh Vitthal Patil Vs. Kalyan Dombivali Municipal
Corporation leave no doubt at all that right to claim
regularization in service based on clause 4(C) of MSO cannot
be claimed unless the appointment is made against a
sanctioned post in accordance with the procedure prescribed
under the Corporations Act or Municipal Councils Act.
36) The judgment dated 08.11.2023 in Writ Petition
no.5357/2021 (Civil Appellate Jurisdiction at Bombay) does
not take into consideration the earlier Division Bench
decisions in the matter of PMC Vs. Dhananjay Gokhale and
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Municipal Council, Tirora Vs. Tulsidas. I am therefore unable
to follow the law laid down in the said judgment in view of
the aforesaid two Division Bench judgments. The said
decision is also not in tune with other Single Bench
judgments in the matters of State of Maharashtra Vs.
Pandurang and Ramesh Vitthal Patil Vs. Kalyan Dombivali
Municipal Corporation.
37) In view of the aforesaid authoritative
pronouncements of Division Benches of this Court in relation
to employees appointed against posts that are not sanctioned
in Municipal Council as also Municipal Corporation, in the
considered opinion of this Court, the judgment delivered by
the learned Industrial Court cannot be sustained.
38) The complainants have failed to make out any
right to claim regularization or permanency upon completion
of 240 days service in a calendar year as per MSO 4(C) of the
MSO, since their appointments were not against any
sanctioned vacant post.
39) It must also be stated that the proposal forwarded
by the NMC for creation of additional posts is accepted by the
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State Government and accordingly 4407 supernumerary
posts have been created. The complainants have been
accommodated against the said posts by regularizing their
services upon completion of 20 years of service. Based on the
decision by the State Government, the NMC has issued
appointment orders in favour of the complainants. It is,
however, provided that the complainants(employees) will not
be entitled to the benefit of their previous service. In view of
the said development which has taken place during the
pendency of the complaint, the controversy between the
parties is narrowed down as to whether benefit of
regularization in service can be claimed by the workers upon
completion of 240 days service as per MSO 4(C), or they will
be entitled to the benefit of regularization upon completion
of 20 years of service as per Government Resolution issued by
the Government of Maharashtra and the consequent
appointment orders issued in their favour by NMC. In the
considered opinion of this Court, merits of a policy decision
for regularization of services of daily wagers cannot be
adjudicated by the Industrial Court. It needs to be mentioned
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that the complainants were not appointed by strictly
following the prescribed procedure. Their appointments were
also not against sanctioned posts. Therefore, complainants
cannot claim benefit of MSO 4(C). The policy decision to
grant benefit of regularization on completion of 20 years is,
therefore, not in violation of MSO 4(C). The learned
Industrial Court has not even set aside the said Government
Resolution.
40) In view of the above, the learned Industrial Court
was not justified in directing the NMC to forward fresh
proposal to the State Government to grant the benefit of
permanency in service to the comdplainants upon completion
of 240 days of service and to grant all consequential benefits
upon proposal being accepted. The conclusion that NMC had
indulged in unfair labour practice is also not sustainable,
since the complainants have failed to make out any right to
regularization in service upon completion of 240 days of
service in a calendar year.
41) In view of the above, in the considered opinion of
this Court, the contention of the workers that they are
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entitled to regularization in service upon completion of 240
days of service as per MSO 4(C), even in the absence of
sanctioned vacant posts, is liable to be rejected.
42) In that view of the matter, the petitions deserve to
be allowed and are accordingly allowed. The following
judgments and orders passed by the learned Industrial Court,
Nagpur are quashed and set aside and the said complaints
are dismissed.
Sr. Date of impugned Case No.
No. judgment
i 30.09.2024 Complaint ULP No.413 of 2018,
ii 01.10.2024 Complaint ULPA No.421 of 2015
iii 30.09.2024 Complaint ULPA No.418 of 2015
iv 30.09.2024 Complaint ULPA No.419 of 2015
v 30.09.2024 Complaint ULPA No.414 of 2015
vi 30.09.2024 Complaint ULPA No.417 of 2015
vii 10.10.2024 Complaint ULPA No.07 of 2016
viii 01.10.2024 Complaint ULPA No.423 of 2015
ix 01.10.2024 Complaint ULPA No.422 of 2015
x 30.09.2024 Complaint ULPA No.416 of 2015
xi 30.09.2024 Complaint ULPA No.415 of 2015
xii 01.10.2024 Complaint ULPA No.06 of 2016
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43) Writ Petition Nos.4967 of 2023 and 4968 of 2023
are dismissed.
(ROHIT W. JOSHI, J.)
Tanmay...
