[Cites 10, Cited by 0]
Bombay High Court
The Deputy Director (Health Service) vs Satish Baburao Gapat on 3 February, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:5358
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AGK
ATUL
GANESH IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KULKARNI CIVIL APPELLATE JURISDICTION
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.02.03 WRIT PETITION NO.8052 OF 2005
11:31:48 +0530
The Deputy Director, Health Services,
Nashik Circle, Nashik ... Petitioner
V/s.
Satish Baburao Gapat, since deceased
Through heirs and legal representatives
1) Rukmini Satish Gapat,
\Age 37 years, Occu.: Household.
2) Priyanka Satish Gapat,
Age 17 years, Occu.: Education.
3) Sonal Satish Gapat
Age 15 years, Occu.: Education
4) Deep Satish Gapat,
Age 7 years, Occu.: Education.
Nos.2 to 4 since minor through their
Natural Guardian and Mother
Sr. No.1 herein, all residing at
Vidya Colony, Dondaicha,
District Dhule. ... Respondents
Smt. Vaishali Nimbalkar, AGP for the petitioner-State.
Mr. Mohan Gawade for the respondents.
Mr. Prashant Dadaji Patil, Chief Administrative Officer,
Office of Deputy Director of Health Services, Nashik
Circle, Nashik, is present.
CORAM : AMIT BORKAR, J.
RESERVED ON : JANUARY 23, 2026
PRONOUNCED ON : FEBRUARY 3, 2026
1
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JUDGMENT:
1. The petitioner-State has filed this writ petition under Article
227 of the Constitution of India to challenge the Judgment and
Order dated 24 March 2004 passed by the Industrial Court, Nashik
in Revision (ULP) No. 99 of 2004. By the said order, the Industrial
Court confirmed the Judgment and Order dated 8 December 2003
passed by the Labour Court, Nashik in Complaint (ULP) No. 93 of
1997.
2. The relevant facts are stated as follows. The respondent filed
Complaint (ULP) No. 93 of 1997 before the Labour Court under
Items 1 a, b, d, f and g of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 challenging the termination of his service. The
respondent prayed for reinstatement with continuity of service and
full back wages. The respondent stated that he was appointed by
the petitioner as X Ray Technician on the basis of his earlier
experience of four years at Nagjee Memorial Hospital, Nashik. He
joined the petitioner on 28 June 1996 pursuant to order dated 27
June 1996. He received further appointment orders from time to
time. He worked from 28 June 1996 to 2 May 1997 for more than
240 days.
3. The respondent stated that his services were terminated from
3 May 1997 without any notice pay or retrenchment compensation
and without any inquiry or charge sheet. The respondent stated
that the nature of work was regular and that several posts of X Ray
Technician were vacant. According to him, the petitioner retained
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persons junior to him in service. The Selection Board by letter
dated 24 January 1997 informed the petitioner that it had no
objection to continue the respondent till the Board recommended
candidates. The respondent stated that after his termination the
petitioner appointed one Mr Sonavane in his place. The
respondent submitted that the termination amounted to unfair
labour practice and that he was entitled to reinstatement with
continuity of service and full back wages.
4. The petitioner filed written statement and denied the case of
the respondent. The petitioner denied commission of any unfair
labour practice. The petitioner stated that the respondent did not
possess the requisite qualification for the post of X Ray Technician.
The petitioner denied that the respondent had any prior
experience as X Ray Technician. The petitioner stated that the
respondent was appointed temporarily for three months and
therefore he did not gain permanent status so as to claim
reinstatement. According to the petitioner, the appointment was a
stop gap arrangement for a limited period to meet temporary
requirement in rural areas. The petitioner stated that after giving a
break of 10 days the respondent was reappointed temporarily for
specific work. The appointment was till availability of candidates
from the Staff Selection Board. The petitioner stated that the
respondent did not possess the required qualification. Therefore he
could not claim reinstatement or back wages. The petitioner stated
that the respondent had not worked for 240 days in one calendar
year between 28 June 1996 to 2 May 1997 or thereafter. The
petitioner denied that 16 posts of X Ray Technician were vacant or
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that the work was permanent. The petitioner stated that Mr
Sonavane was appointed by order dated 12 May 1997 and
resumed duty from 19 May 1997 as he had the required
qualification. The petitioner denied that any officials
recommended the respondent or that his services were necessary
in the Rural Hospital at Surgane. The petitioner stated that it was
not the competent authority to make regular appointments. The
respondent was appointed temporarily to meet local requirements
and hence no relationship of employer and employee was created.
The petitioner stated that the case was covered by Section 2(oo)
(bb) of the Industrial Disputes Act, 1947 and therefore
reinstatement and back wages could not be claimed. The petitioner
contended that compliance with Section 25F of the Industrial
Disputes Act, 1947 was not necessary and there was no breach of
Rule 81 of the Industrial Disputes Bombay Rules, 1957. According
to the petitioner, there was no unfair labour practice. The
appointment order made it clear that the services would
automatically come to an end and the respondent accepted the
appointment with that condition. The petitioner stated that Section
25G of the Industrial Disputes Act, 1947 regarding Last Come First
Go had no application because the respondent was appointed on
ad hoc temporary basis. Breaks of 10 days and 20 days were given
and therefore there was no continuous service. The petitioner
stated that there was no colourable exercise of power and no
victimisation. The petitioner denied breach of natural justice.
According to the petitioner there was no termination and the
services ended automatically as per the order.
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5. The Labour Court framed issues and recorded evidence.
After hearing the parties the Labour Court held that the complaint
was partly proved. It directed reinstatement with continuity of
service but refused back wages. The complaint was partly allowed
by Judgment and Order dated 8 December 2003.
6. The petitioner filed Revision (ULP) No. 99 of 2004 before the
Industrial Court, Nashik against the Judgment and Order dated 8
December 2003. The Industrial Court held that no interference
was called for. It dismissed the Revision by Judgment and Order
dated 24 September 2004.
7. Smt Nimbalkar, learned AGP, submits that the respondent
was appointed on purely temporary basis for a specific period. She
submits that the respondent did not complete 240 days of
continuous service within one calendar year and that there was a
break of ten days in every appointment order. She submits that the
respondent did not possess the qualification of B.Sc. in Physics or
Chemistry as required under Government Resolution dated 6 June
1998. She submits that Section 2(oo)(bb) and Section 25F of the
Industrial Disputes Act, 1947 do not apply because the respondent
was not appointed by following due process of law on any
permanent sanctioned post. She submits that the writ petition
deserves to be allowed.
8. In support of her submissions, she relied on the judgments in
State of Karnataka vs Umadevi, 2006 (4) SCC 1, Sandip Balram
Bhor vs Pimpri Chinchwad Municipal Corporation, 2016 (3) MhLJ
562, Municipal Council Tirora vs Tulsidas Bindhade, 2016 (6)
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MhLJ 867, and Medical Superintendent Rural Hospital vs
Rajashree Yadav, 2024 SCC OnLine Bombay 1929.
9. Mr Gawade, learned Advocate for the respondent, submits
that with regard to the contentions that the respondent did not
possess requisite qualification or experience for the post of X Ray
Technician, that he was appointed only temporarily or on ad hoc
basis as a stop gap arrangement, that he never completed 240 days
of work in any calendar year, and that he was not appointed
against a sanctioned post but was only working temporarily, the
petitioner in cross examination admitted that the complainant had
passed 12th standard with a two year Diploma in X Ray
Technician. It is also admitted that no written order of termination
was issued to the complainant as his appointment was on ad hoc
basis for three months. It is admitted that the complainant worked
for 240 days from June 1996 to May 1997. It is admitted that the
Selection Board did not sponsor any candidate in place of the
complainant. It is admitted that four posts of X Ray Technician
were lying vacant. The petitioner has not disputed that the
complainant held a Diploma in X Ray Technician as shown from
the documents on record.
10. He submits that the complainant was working in a
Government Hospital. He submits that even if the complainant did
not have necessary experience for the post in 1997, he
subsequently acquired experience because he continued working
from 1997 till his death on 7 April 2010. He submits that it is
admitted that the complainant worked for more than 240 days
before the date of termination on 3 May 1997. He submits that the
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petitioner has not shown compliance with Section 25F of the
Industrial Disputes Act, 1947 by payment of notice pay and
retrenchment compensation.
11. He submits that the petitioner has taken a plea under Section
2(oo)(bb) of the Industrial Disputes Act, 1947. He submits that the
nature of work performed by the complainant was permanent. He
submits that Section 2(oo)(bb) does not apply in such a situation.
He submits that termination of the complainant amounts to unfair
labour practice under item 1(b) to (f) of Schedule IV of the MRTU
and PULP Act, 1971. He submits that the complainant is entitled to
reinstatement with continuity of service and full back wages. He
submits that the writ petition deserves to be dismissed.
Reasons and analysis:
12. The material placed on record indicates that the engagement
of the respondent was never intended to be permanent in nature.
Every order of appointment issued to the respondent clearly
specified a fixed tenure. The period was short. It was limited by a
outer limit. More importantly, each order expressly stated that the
appointment would remain operative only until candidates
recommended by the Selection Board became available. This
condition went to the root of the nature of engagement.
13. The correspondence from the Selection Board assumes
significance in this context. The communication on record reflects
that the Board had not objected to temporary continuation of the
respondent only till regular candidates were made available. This
indicates that the employer was conscious of the requirement of
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filling the post through the prescribed channel. It cannot be
inferred that the respondent was absorbed against a permanent
vacancy. On the contrary, the subsequent appointment of another
candidate on 12 May 1997 pursuant to the process contemplated
by the Selection Board fortifies the position that the earlier
engagement was purely interim.
14. The repeated issuance of short-term appointment orders and
the intervening breaks cannot be brushed aside. These breaks
demonstrate that the employer did not treat the respondent as
holding a continuous, uninterrupted tenure against a sanctioned
post. The pattern of engagement shows that the authority was
extending temporary arrangements from time to time to meet
immediate administrative needs. Such a pattern is consistent with
a stop-gap arrangement and inconsistent with any intention to
create or fill a permanent vacancy through the respondent.
15. The clause incorporated in each appointment order, stating
that the services would automatically come to an end upon expiry
of the stipulated period or upon availability of a duly selected
candidate reflects a contractual arrangement between the parties.
The respondent accepted those terms without protest. The
cessation of service flowed from the very terms of engagement and
not from an act of termination.
16. It must also be borne in mind that in matters of public
employment, existence of a sanctioned vacant post is a
foundational requirement. Sanction of a post flows from statutory
rules and budgetary approval. The power to create or fill such
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posts vests in the competent authority. If the employer
demonstrates that the appointment was made only to meet a
temporary exigency and that no sanctioned vacancy existed which
could lawfully be filled on a regular basis, the Court cannot direct
absorption or permanent reinstatement. Such a direction would
amount to compelling the State to create or fill a post dehors the
recruitment rules.
17. Viewed in this light, the documentary record does not
support any inference that the respondent was engaged against a
permanent sanctioned vacancy. The totality of circumstances
points in one direction only. The engagement was temporary. It
was contingent. It was intended to meet an interim requirement.
In such a situation, directing absorption or reinstatement as a
permanent employee would not only disregard the express terms
of appointment but would also run contrary to the established
principles governing public employment.
18. The judgment in Rajashree Yadav(Supra) has exhaustively
considered this issue. The Division Bench decision in Municipal
Council, Tirora was treated as binding authority on the point that
mere completion of 240 days of service does not, by itself, create a
right to permanency in public employment where no sanctioned
vacancy exists. The reasoning proceeds on first principles.
19. The Division Bench in Tirora clearly held that two
ingredients must be established before claiming permanency under
Clause 4C in public employment: first, existence of a vacant
sanctioned post; second, power of the employer to fill that post.
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Without these, mere continuation for 240 days does not confer any
enforceable right. The Standing Orders cannot override statutory
restrictions or constitutional limitations. Clause 32 of the Model
Standing Orders itself clarifies that the Standing Orders operate
subject to other laws in force. Therefore, interpretation of Clause
4C cannot defeat statutory provisions governing creation and
filling of posts.
20. The judgment in Rajashree Yadav reiterates that when
regular incumbents were only temporarily absent due to
deputation, training or leave, engagement of temporary hands to
meet exigency cannot be equated with filling a sanctioned vacant
post. Such appointments are stop-gap in nature. If permanency
were granted in such cases, it would lead to an anomalous
situation where two individuals occupy the same sanctioned post.
21. The Constitution Bench in Umadevi laid down that courts
cannot direct regularisation of temporary, contractual or daily-
wage employees unless their appointments were made in
accordance with the prescribed procedure and against sanctioned
posts. The only limited exception carved out was for irregular
appointments against sanctioned vacant posts where employees
had completed long years of service without intervention of courts.
22. The argument that industrial adjudicators possess wide
powers under labour legislation was also examined. In Hari
Nandan Prasad, the Supreme Court clarified that though powers
are wide, they are not unbridled. Industrial adjudication must
operate within the framework of existing industrial law and
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constitutional limitations. Regularisation cannot be ordered solely
on the basis of long service where posts do not exist or where
initial entry was by back door. Equality under Article 14 cannot be
achieved by perpetuating an illegality.
23. Even if 240 days of service are proved, that fact alone is
insufficient. The underlying rationale is that public posts cannot be
filled through judicial orders when the executive has neither
sanctioned the post nor followed recruitment rules.
24. Learned counsel for respondent submitted that four posts of
X-Ray Technician were vacant requires close scrutiny. Mere use of
the word "vacant" is not decisive. The question is not whether
work was available, but whether there existed sanctioned vacant
posts capable of being filled in accordance with recruitment rules.
25. A distinction must be drawn between a sanctioned vacant
post and a post temporarily vacated due to leave, deputation or
training of a regular incumbent. If a regular employee proceeds on
leave or is deputed for training, the post is not abolished. It
remains occupied in law. Engagement of a substitute during such
period is only a stop-gap arrangement. Such a situation cannot be
equated with existence of a vacant sanctioned post.
26. Even if four posts were shown as vacant in the
establishment, it must be established that the competent authority
had sanctioned those posts and that the appointing authority had
power to fill them on regular basis. In public employment, filling a
post requires adherence to recruitment rules and selection
procedure consistent with Articles 14 and 16. A vacancy by itself
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does not authorise ad hoc regularisation.
27. If the alleged vacancies arose after the complainant's
engagement or after cessation of service, they cannot
retrospectively validate his claim. The right to permanency must
exist on the date when the claim is adjudicated and must be
supported by lawful availability of posts at that time.
28. Therefore, the plea that four posts of X-Ray Technician were
vacant, even if factually correct, is not by itself sufficient to sustain
a claim for permanency or regularisation. It must be coupled with
proof that the posts were duly sanctioned by competent authority;
the appointing authority had power to fill them; the complainant's
initial entry was not in violation of the constitutional scheme; the
vacancy was not merely temporary due to absence of a regular
incumbent. Unless all these elements are established, the existence
of vacant posts cannot override constitutional and statutory
limitations governing public employment.
29. The Labour Court and the Industrial Court erred in treating
case of temporary engagement as a fit case for reinstatement. The
Industrial Court's direction of reinstatement without separation of
stop-gap appointments from de facto long-term deployments was
unsustainable.
30. For the reasons stated above, the writ petition is allowed.
31. Judgment and Order dated 8 December 2003 of the Labour
Court and the Judgment and Order dated 24 March 2004 of the
Industrial Court are set aside insofar as they direct reinstatement
and continuity of service. The complaint is dismissed to that
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extent.
32. No order as to costs.
(AMIT BORKAR, J.)
