Gujarat High Court

Arvind Sukhlal Maiskar vs Ahmedabad Municipal Corporation on 25 July, 2025

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                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 15090 of 2018

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                                            ARVIND SUKHLAL MAISKAR & ORS.
                                                        Versus
                                        AHMEDABAD MUNICIPAL CORPORATION & ORS.
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                       Appearance:
                       MR VICKY B MEHTA(5422) for the Petitioner(s) No. 1,2,3,4,5,6,7
                       MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
                       NOTICE SERVED for the Respondent(s) No. 2,3,4,5,6,7,8
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                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 25/07/2025

                                                              ORAL ORDER

1. The present petition is filed by the petitioner for

seeking the following reliefs:

"(a) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, by declaring and holding that the petitioners are eligible and entitled for absorption from the post of part time multipurpose worker to full time worker with the respondents and further be pleased to direct the respondent no.1 to absorb the petitioners to give full time employment (8 hours) with the respondent pursuant to the resolution No. 22 dated 18/07/2014.

(b) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, declaring that the act and

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action of the respondents no. 1 and 2 in giving full time employment to the employees from Sr. No. 235 to Sr. No. 240 of the 2014 list i.e. respondents no. 3 to 8 is bad, illegal, arbitrary and discriminatory and the said employees are not entitled and eligible for full time employment.

(c) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent no.1 to absorb the petitioners as full time employees of respondent no. 2;

(d) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay further action of the respondents to give full time employment to the employees pursuant to the list of 2014 and further be pleased to restrain the respondents no. 1 and 2 by permitting the respondent no. 3 to 8 to continue in their service as full time multipurpose worker (8 hours) from part time multipurpose worker;

(e) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice."

2. Brief facts as stated in the memo of the petition

are as under:

2.1 It is the case of the petitioners in this petition that

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the petitioner No. 1 came to be appointed in the year,

2011 as part time multipurpose workers. The petitioner

Nos. 2 to 7 came to be appointed as part time

multipurpose workers in the year 2009. The petitioners

came to be appointed by the respondent No.1 herein and

were directed to work in the respondent no.2 hospital

which is exclusively run and administered by the

respondent no.1. The petitioners were either working as

part time Safai Kamdar or as part time Ward boy (Class

IV) with the respondent No. 2. It is further the case of

the petitioners in this petition that the petitioners were

appointed as part time multipurpose workers and they

were allotted work as required, they are not given any appointment orders. However, documents in respect of

their appointment would be available with the respondent

No. 2. As such, the appointment of the petitioners as

part time multipurpose workers would not be disputed.

It is further the case of the petitioners in this petition

that the respondent No. 1 herein is a corporation run,

administered and funded by the State Government and

the respondent No. 2 is the hospital which is a

municipal hospital run and administered under the

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supervision of respondent no.1 and therefore, both the

respondents are State are within Article 12 of the

Constitution of India. As such petitioners were appointed

as part time multipurpose worker and therefore, they

were required to do job of ward-boy, gardener, safai

kamdar etc. It is further the case of the petitioners in

this petition that the service condition of the petitioners

was fixed as part time safaikamdar and they were being

paid Rs.70/- per day. The respondent no.1 herein had

employed many workers as part time multipurpose

workers. It is further the case of the petitioners in this

petition that the respondent no. 1 herein took a decision

to give full time employment to the part time

multipurpose employees. On 18.07.2014, the respondent No. 1 corporation issued a resolution No. 22, whereby

conditions for absorbing par time multipurpose employees

to full time multipurpose employees are stated. Condition

No. 7 stipulates that those employees who are currently

working as part time workers would be given the above

benefit.

2.2 It is further the case of the petitioners in this

petition that in the year 2014, the respondent no.1

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published a list showing the period for which they had

worked since their appointment. The said list of year

2014 is available to the petitioners since they came to

know regarding filing of similar petition filed by other

employees. The said list was required to be taken into

consideration while giving full time employment to the

part time employees. It is submitted that, if the said list

is perused, then names of the petitioners are not

mentioned despite the fact that they had worked in year

2009, however, the name of petitioner No. 2 Arvind

Sukhlal is shown at Serial No. 172. Pursuant to the said

list of year 2014, the part time multipurpose workers

who were initially working for four hours a day, were

required to be given full time employment i.e. for 8 hours. The names of some of the employees who had

worked for some days in the year 2009, were not

considered in the list of year 2014. It is further the case

of the petitioners in this petition that as such for one or

the other reason, the present petitioners were not called

for work except they had worked. Despite the fact that

some of the employees who are given full time job from

part time multipurpose employees have worked for less

days that the petitioners, the case of the petitioners

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though being on better footing, is not considered by the

respondent No. 1. It is further the case of the petitioners

in this petition that if the said list of 2014 is perused,

it appears that the last 6 names i.e. the respondent Nos.

3 to 8 in the said list starting from Sr. No. 235 to 240,

have not worked for a single day for the year 2010 to

year 2013. They have only worked for very few days in

the year 2014. However, the said six persons i.e. the

respondent no. 3 to 8 are surprisingly given full time

employment for 8 hours, despite the fact that the case of

petitioners is much on better footing. The petitioner no.

2 had also requested to the respondent no. 2 to include

his name in the list by his letter dated 17.01.2017. Even

the petitioner no. 2 had written a letter to include his name in the list. It is further the case of the petitioners

in this petition that pursuant to the resolution dated

18/07/2014, the respondent No. 1 had to grant sanction

to the concerned employees who are given full time

employment. Initially, a list of 70 employees was

published by the respondent No. 2 and the respondent

No. 1 had granted sanction to give them full time

employment. The said list of 70 employees is not

available to the petitioners. It has come upon the

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knowledge of the petitioners that on or around

03.01.2017, the respondents have absorbed six employees

from Sr No. 235 to 240 i.e. the respondent Nos. 3 to 8

from the list of 2014 and the respondents have given

those people full time employment. It is further the case

of the petitioners in this petition that though the case of

the petitioners is on better footing on many grounds and

though they have served for more days and years from

those given employment at Sr. 235 to 240 i.e. the

respondent Nos. 3 to 8, then also the petitioners are

given discriminatory treatment. Hence, the present

petition has been preferred.

3. Heard Mr. Vicky Mehta, learned advocate for the petitioner and Mr. Hamesh Naidu, learned advocate for

the respondent No.1 - Corporation. Though notice is

served, none appears or filed appearance on behalf of

respondent Nos.2 to 8. Hence, the matter is heard

finally.

4. Mr. Vicky Mehta, learned advocate for the

petitioner has submitted that the respondent No.1 has

not considered the fact that the employees at Sr.No.235

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to 240 of 2014 of the list i.e. present respondent Nos.3

to 8 have not actually worked for the period for which

the petitioners have worked and then also they are

absorbed as full time workers from part time multi-

purpose workers. He has referred to the circular of the

corporation dated 18.07.2014 and has submitted that

pursuant to that, the case of the petitioners is required

to be considered by the respondent Authority and,

therefore, the present petition is filed for seeking the

prayers made in the present petition and has prayed to

allow the present petition.

5. Per contra, Mr. Hamesh Naidu, learned advocate for the respondent No.1 - Corporation has contested the matter and has drawn the attention of this Court

towards affidavit-in-reply filed by the respondent

Corporation and has pointed out that after the year

2009, none of the petitioners have worked and, therefore,

there is no question of not consideration of the case of

the petitioners. Furthermore, he has referred to the

various averments made in the affidavit-in-reply. In

support of his submissions, he has relied upon the

decision of Division Bench of this Court in the case of

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State of Gujarat Vs. Mahesh Ramjibhai Purabai reported

in 2024 (0) AIJEL-HC 248889, more particularly,

paragraphs 10, 12 and 13 are relevant, and has

submitted that part timers are not entitled to

regularization as they are not on any sanctioned post

and, therefore, he has prayed to dismiss the present

petition.

6.1 I have considered the rival submissions made bar.

It is fruitful to refer the decision of Division Bench of

this Court relied upon by learned advocate for the

respondent in the case of State of Gujarat (supra), more

particularly, paragraphs 10, 12 and 13 are relevant, as

under:

"10. The learned Single Judge has set aside the order dated 24.04.2007 and further held that the respondent No.1 is held entitled to Class-IV post from the date of his termination. In our opinion, such direction is uncalled for since the respondent No.1 was a part-timer and he was terminated or discontinued from services in the year 1998 and never served as Class-IV employee. After a period of seven years, he is ordered to be treated as Class-IV employee through no sanctioned post of Class-IV was available. This vital aspect has been ignored by the learned

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Single Judge, while issuing the said direction. So far as the observations made by the learned Single Judge of regularizing 67 another employees by the State Government are concerned, it is pertinent to note that when the respondent No.1 was terminated, he assailed his termination by filing the writ petition however, the learned Single Judge at the relevant time relegated the matter to the State Authorities. His status remained as such till the year 2014, when the writ petition was filed. It is not pointed out whether these employees were terminated and regularized on Class-IV posts.

12. The said judgment has been further considered by the Supreme Court in case of Union of India vs. Ilmo Devi (passed in Civil Appeal Nos.5689-5690 of 2021 vide judgment dated 07.10.2021) reported in 2021 SCC OnLine SC 899 and the Supreme Court has reiterated that the part-timers are not entitled to regularization as they are not working on any sanctioned post. The Supreme Court has held thus :

8.5 Even the regularization policy to regularize 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 the case of R.S. Bhonde and Ors. (supra), it is observed and held by this Court that the status of permanency cannot be granted when there is no post.

It is further observed that mere continuance every

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year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done. 8.6 In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:-

"12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:

(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme.

While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of

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ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working

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against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees.

The right to claim a particular salary against the State must arise under a contract or under a statute.

[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1], M. Raja v. CEERI Educational Society [(2006) 12 SCC 636], S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279], Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1.]

8.7 Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any

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permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.

8.8 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact

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that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.

8.9 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group 'D' posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group 'D' posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents' employees are concerned.

13. Thus, no order directing the State Government to regularize the part-timer, that too after his termination can be passed in absence of any sanctioned post in existence at the relevant time. The status of a part-timers can not be altered to that of a Class-IV employees."

6.2 Considering the submissions made at the bar and

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considering the averments made in present petition as

well as considering the affidavit-in-reply, whereby it

transpires that the petitioners have not worked after the

year 2009 as well as considering the aforesaid judgment

of Division Bench of this Court, I found no substance in

the present petition, as well as prayers, which is prayed

in the present petition by the petitioners and, therefore,

the present petition is required to be dismissed.