Gujarat High Court

Manisha Bhagvandas Patil vs Regional Director Of Municipalities on 5 February, 2024

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    C/SCA/18042/2011                             JUDGMENT DATED: 05/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 18042 of 2011
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 320 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                          Sd/-

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1    Whether Reporters of Local Papers may be allowed                 Yes
     to see the judgment ?

2    To be referred to the Reporter or not ?                          Yes

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                    MANISHA BHAGVANDAS PATIL
                              Versus
           REGIONAL DIRECTOR OF MUNICIPALITIES & 1 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MS NIRALI SARDA AGP for the Respondent(s) No. 1
MR MP SHAH(2418) for the Respondent(s) No. 2
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                             Date : 05/02/2024

                            ORAL JUDGMENT

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1. In view of the fact that both the petitions are identical

and the issue involved in both the petitions is common,

both the petitions are taken up for final disposal together

by this common judgment/order.

2. By way of present petitions, the petitioners have

challenged the inaction on the part of the respondent

municipality terminating the services of the petitioners.

3. In Special Civil Application No. 18042 of 2011 the

petitioner has prayed, inter alia, that:-

"17 (A) Your Lordships may be pleased to issue a writ of certiorari or a writ in nature of mandamus and/or any other appropriate writ, order or direction, quashing and setting aside impugned order dated 30.11.2011 being arbitrary, illegal and discriminatory.

(B) Your Lordships may be pleased to direct the respondent to grant regular time scale of pay on completion of 5 years of service as if the petitioner is a permanent employee of the respondent Nagarpalika.

(C) Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to stay the operation, implementation and execution of the letter dated 30.11.2011 at Annexure A to this petition, and be

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pleased to further restrain from making termination and/ or discontinue the service of the petitioner.

(D) Any other and further reliefs may be granted in favour of petitioners as this Hon'ble Court may deem fit and proper under the circumstances of the case with cost"

3.1 In Special Civil Application No. 320 of 2012 the

petitioner has prayed, inter alia, that:-

"6 (a) issue a writ of mandamus or a writ certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order dated 30/11/2011 being arbitrary, illegal and discriminatory passed by the respondent no.2 Nagarpalika as being unjust, unreasonable, arbitrary, without competence and without authority of law, jurisdiction and also violative of Article 14 of the Constitution of India in the interest of justice.

(b) to stay the implementation, operation and execution of the impugned order dated 30/11/2011 passed by the respondent no.2 Nagarpalika and further be pleased to direct the respondent no.2 Nagarpalika to regularize the services of the petitioner in pursuance of the resolution dated 16/2/2006 and as well as order dated 26/9/2007 by the respondent no.2 Nagarpalika and also to give the petitioner regular salary, pending the admission, hearing and final disposal of this petition.

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(c) pending admission, hearing and final disposal of this petition Your Lordship may be pleased to restrain the respondent Nagarpalika to stay the operation, implementation and execution of the letter dated 30/11/2011 at Annexure "A" to this petition and be pleased to further restrain from making termination and/ or discontinue the service of the petitioner.

(d) to grant such other and further relief as may be deemed fit by this Hon'ble Court in the interest of justice."

4. Since both the petitions are identical, the facts

mentioned in Special Civil Application No. 1804 of 2011,

which is lead matter, are taken into account.

5. The Songadh Nagarpalika has issued an

advertisement on 17.10.2005 addressed to the Director of

Information and accordingly, the advertisement was

issued in daily newspaper dated 21.10.2005, inviting

applications for the post of 'Community Organizer'. The

petitioner accordingly applied vide application dated

25.10.2005 and he was selected vide appointment order

dated 29.9.2006. The Nagarpalika sought for approval of

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the Director of Municipalities vide letter dated 4.10.2006

and the Director of Municipalities has issued circular to

all the Nagarpalik vide letter dated 16.5.2006. The

respondent No.2, issued a letter dated 11.9.2007

terminating the service of the petitioner w.e.f. 30.9.2007.

Thereafter, the petitioner received another letter dated

26.9.2007 cancelling the aforesaid termination order.

Thereafter, petitioner received another letter dated

23.11.2007 terminating the service of the petitioner w.e.f.

23.11.2007.

6. In view thereof, the petitioner filed Special Civil

Application No. 31010 of 2007 and the said petition was

disposed of by the co-ordinate bench of this Court vide

order dated 12.11.2008. Thereafter, the respondent

issued letter dated 11.11.2008 taking the petitioner in the

service. Thereafter, the petitioner has make

representation to regularize the service and to grant

regular pay scale. Thereafter the petitioner again

addressed a letters dated 7.10.2011 and 13.10.12011 and

thereafter the petitioner received a letter from the Chief

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Officer for production of certain documents, which was

replied by the petitioner vide letter dated 18.10.2011

stating that the information sought for from the petitioner

is already on the record of the nagarpalika. Despite said

fact, the petitioner received letter dated 30.11.2011,

terminating the service of the petitioner w.e.f. 1.1.2012.

Similarly, the petitioner of Special Civil Application

No.320 of 2012 was also received termination letter

dated 30.11.2011.

7. Being aggrieved and dissatisfied with the orders of

terminations of services of the petitioners, the petitioners

have preferred present petitions.

8. Heard Mr. T.R. Mishra, learned Counsel for the

petitioner in Special Civil Application No. 1804 of 2011,

Mr. V.V. Bhamre, learned Counsel for the petitioner in

Special Civil Application No. 320 of 2012, Ms. Kruti Shah,

learned Counsel for the concerned nagarpalika and Ms.

Nirali Sarda, learned Assistant Government Pleader for

the Regional Director of Municipalities.

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9. Learned Counsel for the petitioners has submitted that

the petitioners were appointed by the respondent

nagarpalika after completing the formalities on

sanctioned posts. He has submitted that inspite of that

the petitioners were not given a salary of regular

employees and till date the petitioners are considered as

'temporary employees' and paid the salary without their

being any other benefits. Learned Counsel for the

petitioners has submitted that this is clear case of unfair

labour practice on the part of the respondent nagarpalika

and therefore, the impugned action of respondents by not

treating the petitioners as regular employees is required

to be quashed and set aside and respondents may be

directed to treat the petitioners as appointed on regular

post and on the regular basis and to pay all the

consequential benefits. It is further submitted that though

at the first instance their appointments were for the

yearly basis and in 2006 again the fresh order for a year

was issued. Thereafter, the petitioners' services came to

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be terminated. He has submitted the petitioner of Special

Civil Application No. 18042 of 2011 has approached this

Court by way of preferring Special Civil Application

No.31010 of 2007, wherein the respondent nagarpalika

entered into a settlement with the petitioner and

therefore, the petitioner has withdrawn the said petition

on 12.11.2008. The said order reads as under:-

"Communication dated 11/11/2008 by Songadh Nagarpalika is taken on record. In view of the said communication dated 11/11/2008, learned counsel for the petitioner is not pressing the matter at this stage. Present petition is disposed of accordingly. Interim relief, if any, stands vacated."

10. The petitioner of Special Civil Application No. 320 of

2012 has approached this Court by way of preferring

Special Civil Application No.18126 of 2011 and the

petitioner has withdrawn the said petition on 19.12.2011

The said order reads as under:-

"Learned advocate for the petitioner, on instructions, seeks permission to withdraw this petition, at this stage. Permission, as prayed for, is granted. This petition stands disposed of as withdrawn. It is made clear that this Court has not entered into the merit of the subject

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matter."

11. Learned Counsel for the petitioners has submitted

that on the basis of that the petitioners are continued in

service in the respondent municipality till date. He has

submitted that though, there is sanctioned post in the

municipality for Community Organizer, so far as

petitioner of Special Civil Application No. 1804 of 2011 is

concerned and the petitioner is also qualified for the said

post however, the respondent nagarpalika has not

granted the benefits of permanent employee and treated

the petitioner as temporary employee and therefore, this

is arbitrary action on the part of the respondents and

therefore, the petitioner is entitled to get the benefit as

prayed for in the petition.

12. Learned Counsel for the petitioners has referred to

and relied upon the circular issued by the State of Gujarat

wherein the posts were sanctioned and the petitioners

are working on the said sanctioned post since 2006 from

their appointments till date.

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13. Learned Counsel for the petitioners has further

submitted that the respondents referred to a circular

dated 16.2.2006, wherein the government has resolved

that after completion of initial period of five years for a

fixed salaried persons, their services be considered for a

permanent post and therefore, the service rendered by

the petitioners after completion of five years may be

regularized and all the consequential benefit may be paid

to the petitioners. He has emphasized upon the letter

issued by the respondents that the set up was sanctioned

by the State Government and therefore, the petitioners'

case may be considered on regular post and pay the

regular salary with all the consequential benefits.

14. Learned Counsel for the petitioner has relied upon

the decision of the Hon'ble Supreme Court in the case of

Secretary, State of Karnataka and others vs.

Umadevi (3) and others reported in (2006) 4 SCC 1,

he has more particularly relied upon paragraph No. 53

which reads as under:-

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"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N.NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment.

In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the

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constitutional scheme."

15. Learned Counsel for the petitioner has also relied

upon the decision of the Hon'ble Apex Court in case of

Karnataka and others vs. M.L. Kesari and others

decided on 3.8.2010 arising out of Special Leave

Pettiion No.15774 of 2006.

16. Learned Counsel for the petitioners has submitted

that the petitioner has filed affidavit in reply and further

affidavit and in his support the petitioner has produced

the documents on record which clearly establishes that

the respondent has already considered that the

petitioners are working on 'sanctioned post' and since

2006, they are working on the sanctioned post.

16.1 Mr. V.V. Bhamre, learned Counsel for the petitioner

in Special Civil Application No. 320 of 2012 has

submitted that since both the petitioners are similarly

situated, he has adopted the arguments canvassed by Mr.

T.R. Mishra, learned Counsel for the petitioner in Special

Civil Application No. 18042 of 2011.

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17. As against the same Ms. Kruti Shah, learned Counsel

for the respondent municipality has relied upon the

affidavit-in-reply filed by the respondent and submitted

that the initial appointments of both the petitioners are

not a regular appointment but it is backdoor entry, since

they were not appointed by municipality after following

due process of rules and regulations for the appointment.

Learned Counsel for the respondent has relied upon

following paragraph of the affidavit-in-reply:-

"5. It is submitted that after the publishing of public notice dated 21.05.05, Songadh Nagar Palika at the relevant time did not make appointment immediately and even the interviews of any candidates were also not held. Thereafter the Government Resolution of Finance Department dated 16.02.2006 was published which was pertaining to the direct appointment on fixed pay on probation on the post of Class-III and IV of State of Gujarat. The said resolution is pertaining to the appointment on the post of Class-III and IV of State Government employees only. The copy of the said Government Resolution dated 16.02.2006 is annexed herewith and marked as Annexure-R-4.

6. It is submitted that the petitioner was appointed by the order dated 29.09.06 as community organizer on

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probation for the period from 01.10.2006 to 30.09.2007 and it is stated in the reference that the said appointment was made as per the Government Resolution of Finance Department dated 16.02.2006 which was pertaining to the direct appointment on fixed pay as probation on the post of Class-III and IV of State of Gujarat. Though the said Government Resolution is not applicable to the appointment of the petitioner at the relevant time because of her close association with the President of Songadh Nagar Palika she was given appointment by citing the said Government Resolution. The copy of the appointment letter of the petitioner dated 29.06.06 is annexed herewith and marked as Annexure-R-5. Assuming for the moment that she was given appointment on the basis of said Government Resolution then also the said appointment is not legal because as per the stipulation made in the said Government Resolution dated 16.02.2006 the new appointments were to be made only in the case of the necessity and only with the prior approval of the Finance Department and all such appointments are to be treated contractual appointment and it was also further stipulated that the said appointment is restricted up to 5 years and the appointments are to be strictly made as per the recruitment rules and regulations of the State Government. It was further stated that Board/ Corporation/ Grand in ad institution are required to take prior approval of the Finance Department through Administrative Department before making appointment

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in Class-III & IV. It was also stipulated in Clause 14 of the said Government Resolution dated 16.02.2006 that if any advertisement is published for the appointment on the said cadre prior to the said Government Resolution then the said advertisement is required to be canceled and the new advertisement is to be published and if the selection process is over then the written consent of the candidate is to be obtained after narrating the stipulation of the said Resolution.

7. It is submitted that the present petitioner was informed by order dated 11.09.07 passed by Songadh Nagar Seva Sadan to the effect that the period of the contract is expiring on 30.09.07. A copy of the order dated 11.09.07 is annexed herewith and marked as Annexure-R-6.

8. Thereafter, another order dated 26.09.07 was passed informing the petitioner that the earlier order dated 11.09.07 is canceled and the petitioner was continued in service. The copy of the order dated 26.09.07 is annexed herewith and marked as Annexure-R-7. The answering respondent had forwarded the order dated 16.09.07 bearing outward No. 261/2007 to Gujarat Municipal Finance Board along with the resolution passed by the Nagar Palika in respect of the appointment of the petitioner. However, Gujarat Municipal Finance Board has informed the answering respondent to cancel the said resolution as well as the order, in the month of October, 2007 through the letter written to the

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Chairman and Collector, District Urban Development Agency (DUDA) stating to the effect that there is no provisions for a permanent appointment of community organizer in "Suvarn Jayanti Saheri Rojgar Yojna". The power to appoint for a period of 1 year on a fixed pay is with the committee headed by Addl. Collector DUDA and the answering respondent therefore asked to cancel the resolution as well as the order. The copy of the letter dated 20.10.07 received by the answering respondent from the Gujarat Municipal Finance Board is annexed herewith and marked as Annexure-R-8. Thus the Gujarat Municipal Finance Board has specifically directed the respondent to cancel the resolution and the order dated 26.09.07 in respect of the appointment of the petitioner.

9. It is respectfully submitted that in view of the above the order dated 23.11.07 terminating the service of the petitioner w.e.f. 23.11.07 was passed. The copy of the order dated 23.11.07 is annexed herewith and marked as Annexure-R-9. The said order was challenged by the petitioner before this Hon'ble Court by filing SCA No. 31010 of 2007 which was disposed off on 12.11.08 on the basis of the communication dated 11.11.08. In the said proceeding the specific affidavit was filed by the answering respondent by stating that there is no power to make an appointment with the Nagar Palika under the Suvarn Jayanti Saheri Rojgar Yojna and therefore not possible for the answering respondent to continue the petitioner in service particularly in view of the letter of

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the Gujarat Municipal Finance Board, Gandhinagar and it was also specifically averred in the said petition that the petitioner belongs to the same caste or community as that of the then President of Songadh Nagar Palika Shri Mandakiniben V. Patil and that is how the present petitioner was given the appointment initially without following any procedure of law.

10. It is respectfully submitted that as per Circular dated 08.05.06 of the Urban Development Department, there is no provision or instruction of making appointment of community organizer on the fixed pay for 5 years and as per said Circular the respondent no. 1 herein has sanctioned the set-up of Songadh Nagar Palika vide order dated 17.04.07 and all the appointments are required to be made as per the recruitment rules and the respondent no. 1 has directed vide letter dated 17.10.11 to make appointment as per the recruitment rules and the Government resolution/ circulars etc. issued in this behalf. The copy of the recruitment rules along with the set up sanctioned by vide order dated 17.04.07 is annexed herewith and marked as Annexure- R-10. It is submitted that appointment of the petitioner is also not in accordance with the recruitment rules of the Songadh Nagar Palika."

18. In light of the aforesaid the respondent municipality

has objected present petition and submitted that the

petitioners are not appointed on regular post and they are

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not entitled to get any benefits as regular employees,

since their appointments were terminated and by virtue

of interim relief passed by this Court their services came

to be protected and therefore, they are not entitled to get

any benefit under present petition.

19. So far as Special Civil Application No.320 of 2012 is

concerned the respondents have referred to and relied

upon the affidavit-in-reply filed in the main petition i.e.

Special Civil Application No. 18042 of 2011 and averred

that the petitioner of Special Civil Application No.320 of

2012 is also similarly situated person and therefore, the

contention raised in the affidavit-in-reply be treated as

part and parcel of this petition also. However, till date

there is no interim relief order granted by this Court in

that petition i.e. in Special Civil Application No. 320 of

2012 and the petitioner is continued in service and he is

not relieved from the service and till today he is working

on the same post since last 17 years.

20. Ms. Shah, learned Counsel for the respondent has

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referred to and relied upon the judgment of the Hon'ble

Apex Court in case of Umadevi (supra) wherein she has

emphasized upon the observation made by Hon'ble Apex

Court that in the sanctioned post without there being any

interim order or any order passed by any Court, the

workman has rendered their services for the 10 years

without there being any interruption then only their case

can be considered for regularization and herein the

present case their services came to be protected by the

interim order passed by this Court and therefore, the

petitioners cannot be entitled to get any benefits of the

decision of the Hon'ble Apex Court in case of Umadevi

(supra). She has also relied upon the decision of the

Hon'ble Apex Court in case of M.L. Kesari (supra), more

particularly she has relied upon following observations:-

"5. It is evident from the above that there is an exception to the general principles against "regularization"

enunciated in Umadevi, if the following conditions are fulfilled:-

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or

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tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years

(ii) The appointment of such employee should not be illegal, even if irregular. where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006)

6. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise

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and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services."

21. She has also referred to and relied upon the order

issued by the nagarpalika by terminating the services of

the petitioners and submitted that in view of that the

services of the petitioners came to be terminated but

because of the interim order passed by this Court, they

are continued in service of the nagarpalika till date.

However, Ms. Shah, learned Counsel for the respondent

has admitted that till date they are working on the said

post, they are getting salary of temporary employee.

22. Ms. Nirali Sarda, learned Assistant Government

Pleader for the respondent has submitted that though the

State of Gujarat has not filed any affidavit to the petition,

however, she has emphasized the fact that the

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nagarpalika has not requested the State to accord

sanction for the post, on which the petitioners are

working and therefore, it is without the sanction granted

by the State Government and therefore, State

Government is not liable for an act on the part of the

respondent municipality and the State cannot be fastened

with any liability.

23. I have perused the material placed on record and

relevant documents as well as the decisions relied upon

by both the sides. Considering the fact that in 2005 the

respondent had issued public advertisement and in

response thereto the petitioners were appointed for a

period of one year and thereafter, their services came to

be continued. Then again the respondent municipality

issued a letter and passed an order on 26.9.2007 and

appointed the petitioners for further period of five years.

24. In the said order, it was clarified that the initial

appointment for a year will be extended for further four

years on the same terms and conditions and after

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completion of five years for the temporary period, the

petitioners will be entitled for regular salary.

25. Even thereafter, the petitioner of Special Civil

Application No. 1804 of 2011 had approached this Court

by way of preferring petition being Special Civil

Application No.31010 of 2007 and nagarpalika entered

into the settlement with the petitioner and on the basis of

the settlement, the petition came to be withdrawn and

therefore, their services remained to be continued on the

said post.

26. Further, the Government has already sanctioned the

post of Social Organizer for the nagarpalika and in all

nagarpalika, the post came to be filed up and herein

present case, the respondent nagarpalika, though there is

sanctioned post, is not treating the petitioners as

permanent employees and not paid the regular salary to

the petitioners.

27.It is relevant to take into account the decision of the

Hon'ble Apex Court in case of State of Punjab vs. Jagjit

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Singh and others reported in 2017(1) SCC 148. The

relevant head notes read as under:-

"(C). Service Law-Pay-Parity-Claim of parity by temporary employees in those cases where they were performing same duties as discharged by regular employees against sanctioned posts-Law applicable, clarified.

(D) Service Law-Pay-Parity in pay/pay scale-

Classification of temporary employees on basis of length of service-Held, is violative of Arts. 14 and 16 of the Constitution and hence unsustainable.

(E) Service Law-Pay-Parity in pay/pay scale-Equal pay for equal work-Claim to-Onus of proof-Held, onus of proof of parity in duties and responsibilities of subject post with reference post under principle of "equal pay for equal work" lies on person who claims it-Further held, claimant must prove that subject post occupied by him requires him to discharge equal work or equal value as the reference post."

28. Considering the above facts, present petition

deserves consideration and requires to be allowed and

the case of the petitioners require to be considered as

regular employees from the date of completion of five

years.

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29. It is clarified that after completion of five years, the

petitioners are entitled to get all the relief as prayed for

in the petitions and they are to be treated as permanent

employees of the municipality.