Gujarat High Court
The Mangrol Nagarpalika Trhough Chief ... vs President, Garvi Gujarat General ... on 15 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8932 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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THE MANGROL NAGARPALIKA TRHOUGH CHIEF OFFICER
Versus
PRESIDENT, GARVI GUJARAT GENERAL KAMDAR MANDAL & ORS.
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Appearance:
HARSHESH R KAKKAD(7813) for the Petitioner(s) No. 1
MR MRUNAL DHOLARIA AGP for the Respondent(s) No. 2
MS MINI M NAIR(2689) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 15/07/2025
ORAL JUDGMENT
1. The present petition is filed under Articles 226 and 227 of
the Constitution of India, challenging the order passed by the
learned Industrial Tribunal in Reference (IT) No.78 of 2021,
whereby the reference filed by the respondent - Union came to
be partly allowed and the petitioner was directed to pay the
salary and other benefits to the workman at par with the regular
employees. It is further clarified that the interregnum period i.e.
from the date of joining till the date of the award, shall be
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treated as notional for the purpose of granting the benefits.
2. It is the case of the present petitioner that the respondent
was working on the post of Peon with the petitioner - Nagar
Palika since 01.06.2016 and doing work, which is perennial in
nature. However, instead of paying the regular pay which is paid
to the regular employees, the Nagar Palika has paid the minimum
wages. Therefore, a reference came to be filed seeking the relief
to treat the employee at par with regular employees and prayed
to grant the arrears with interest at the rate of 18%. The learned
Reference Court has partly allowed the same and granted the
relief as mentioned hereinabove, which is the subject matter of
challenge before this Court.
3. Heard learned advocate Mr. Harshesh R. Kakkad for the
petitioner - Municipality and leaned advocate Ms. Mini M. Nair for
the respondent No.1.
4. The learned advocate Mr. Kakkad submits that during the
cross-examination of the respondent - employee, he admitted
that his entry in the Nagar Palika was a backdoor entry and was
without following the recruitment process. It is submitted by the
learned advocate Mr. Kakkad that giving the benefits, which are
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at par with regular employees would amount to give the benefit
of regularization and the learned Reference Court has committed
an error in granting the same without considering the terms of
reference, where the benefit of regularization was not sought.
Learned advocate Mr. Kakkad submits that when the respondent
entered into the Nagar Palika, he was having the knowledge that
he was engaged as a daily wager. Therefore, subsequently, it is
not open for the respondent to seek the benefits which are
claimed before the learned Court. The learned advocate Mr.
Kakkad submits that without considering the above aspect, the
impugned award was passed. Hence, the present petition
deserves to be allowed by setting aside the impugned award.
5. Per contra, the learned advocate Ms. Nair has submitted
that the respondent has served with the petitioner - Nagar Palika
since 01.06.2016 continuously and, at present, also he is serving
with the petitioner - Nagar Palika. It is submitted by the learned
advocate Ms. Nair that as per the evidence adduced, the
respondent has performed work which is perennial in nature and
had been paid less salary than the regular employees who are
serving on the same post. The learned advocate Ms. Nair submits
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that after considering the sanctioned set up and as well as
considering the admission made during the oral evidence, the
learned Reference Court has allowed the reference by giving
cogent reasons. Therefore, no interference is required and the
present petition deserves to be dismissed.
6. Having considered the arguments advanced by the learned
advocates for the respective parties and on referring the reasons,
it emerges that the reference came to be filed by the respondent
seeking the benefits at par with regular employees. It was
contended before the learned Reference Court that the
respondent has been serving on the post of Peon since
01.06.2016 and in support of his contention, the certificate
issued by the Chief Officer was produced below Mark-18/1. The
communication directing the respondent regarding the allotment
of the work was produced below Mark-18/2, Form - A for the
period of September, 2017 was produced below Mark-18/3 and
the graduation certificate was produced below Mark-18/5. In
addition to that to establish that the respondent has been paid
less wages, the statement of the bank account was produced
below Mark-26/1 to 26/9 as well as the sanctioned set up of the
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Nagar Palika was produced below Mark-25/1. During the cross-
examination of the respondent, except for the aspect that the
respondent has not been appointed after following the
recruitment process, no further adverse material was placed on
record. It is not in dispute that the sanctioned set up is having a
vacant post, however, only to deprive the benefits to regular
employee, the appointment was made as a daily wager.
6.1 This Court has referred the recent decision of the Hon'ble
Apex Court in the case of Jaggo V/s. Union of India reported in
2024 SCC Online SC 3826 wherein the Hon'ble Apex Court has
held the Para Nos.10 to 17 and 19 to 28 as under.
"10. Having given careful consideration to the
submissions advanced and the material on record, we
find that the appellants' long and uninterrupted service,
for periods extending well beyond ten years, cannot be
brushed aside merely by labelling their initial
appointments as part-time or contractual. The essence of
their employment must be considered in the light of their
sustained contribution, the integral nature of their work,
and the fact that no evidence suggests their entry was
through any illegal or surreptitious route.
11. The appellants, throughout their tenure, were
engaged in performing essential duties that were
indispensable to the day-to-day functioning of the offices
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of the Central Water Commission (CWC). Applicant Nos.
1, 2, and 3, as Safaiwalis, were responsible for
maintaining hygiene, cleanliness, and a conducive
working environment within the office premises. Their
duties involved sweeping, dusting, and cleaning of floors,
workstations, and common areas--a set of
responsibilities that directly contributed to the basic
operational functionality of the CWC. Applicant No. 5, in
the role of a Khallasi (with additional functions akin to
those of a Mali), was entrusted with critical maintenance
tasks, including gardening, upkeep of outdoor premises,
and ensuring orderly surroundings.
12. Despite being labelled as "part-time workers," the
appellants performed these essential tasks on a daily and
continuous basis over extensive periods, ranging from
over a decade to nearly two decades. Their engagement
was not sporadic or temporary in nature; instead, it was
recurrent, regular, and akin to the responsibilities
typically associated with sanctioned posts. Moreover, the
respondents did not engage any other personnel for
these tasks during the appellants' tenure, underscoring
the indispensable nature of their work.
13. The claim by the respondents that these were not
regular posts lacks merit, as the nature of the work
performed by the appellants was perennial and
fundamental to the functioning of the offices. The
recurring nature of these duties necessitates their
classification as regular posts, irrespective of how their
initial engagements were labelled. It is also noteworthy
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that subsequent outsourcing of these same tasks to
private agencies after the appellants' termination
demonstrates the inherent need for these services. This
act of outsourcing, which effectively replaced one set of
workers with another, further underscores that the work
in question was neither temporary nor occasional.
14. The abrupt termination of the appellants' services,
following dismissal of their Original Application before
the Tribunal, was arbitrary and devoid of any
justification. The termination letters, issued without
prior notice or explanation, violated fundamental
principles of natural justice. It is a settled principle of law
that even contractual employees are entitled to a fair
hearing before any adverse action is taken against them,
particularly when their service records are unblemished.
In this case, the appellants were given no opportunity to
be heard, nor were they provided any reasons for their
dismissal, which followed nearly two decades of
dedicated service.
15. Furthermore, the respondents' conduct in issuing
tenders for outsourcing the same tasks during the
pendency of judicial proceedings, despite a stay order
from the Tribunal directing maintenance of status quo,
reveals lack of bona fide intentions. Such actions not
only contravened judicial directives but also underscored
the respondents' unwillingness to acknowledge the
appellants' rightful claims to regularization.
16. The appellants' consistent performance over their
long tenures further solidifies their claim for
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regularization. At no point during their engagement did
the respondents raise any issues regarding their
competence or performance. On the contrary, their
services were extended repeatedly over the years, and
their remuneration, though minimal, was incrementally
increased which was an implicit acknowledgment of
their satisfactory performance. The respondents' belated
plea of alleged unsatisfactory service appears to be an
afterthought and lacks credibility.
17. As for the argument relating to educational
qualifications, we find it untenable in the present
context. The nature of duties the appellants performed--
cleaning, sweeping, dusting, and gardening--does not
inherently mandate formal educational prerequisites. It
would be unjust to rely on educational criteria that were
never central to their engagement or the performance of
their duties for decades. Moreover, the respondents
themselves have, by their conduct, shown that such
criteria were not strictly enforced in other cases of
regularization. The appellants' long-standing satisfactory
performance itself attests to their capability to discharge
these functions, making rigid insistence on formal
educational requirements an unreasonable hurdle.
19. It is evident from the foregoing that the appellants'
roles were not only essential but also indistinguishable
from those of regular employees. Their sustained
contributions over extended periods, coupled with
absence of any adverse record, warrant equitable
treatment and regularization of their services. Denial of
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this benefit, followed by their arbitrary termination,
amounts to manifest injustice and must be rectified.
20. It is well established that the decision in Uma Devi
(supra) does not intend to penalize employees who have
rendered long years of service fulfilling ongoing and
necessary functions of the State or its instrumentalities.
The said judgment sought to prevent backdoor entries
and illegal appointments that circumvent constitutional
requirements. However, where appointments were not
illegal but possibly "irregular," and where employees had
served continuously against the backdrop of sanctioned
functions for a considerable period, the need for a fair
and humane resolution becomes paramount. Prolonged,
continuous, and unblemished service performing tasks
inherently required on a regular basis can, over the time,
transform what was initially ad-hoc or temporary into a
scenario demanding fair regularization. In a recent
judgement of this Court in Vinod Kumar and Ors. Etc. Vs.
Union of India & Ors.5, it was held that held that
procedural formalities cannot be used to deny
regularization of service to an employee whose
appointment was termed "temporary" but has performed
the same duties as performed by the regular employee
over a considerable period in the capacity of the regular
employee. The relevant paras of this judgement have
been reproduced below:
"6. The application of the judgment in Uma Devi
(supra) by the High Court does not fit squarely with the
facts at hand, given the specific circumstances under
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which the appellants were employed and have continued
their service. The reliance on procedural formalities at
the outset cannot be used to perpetually deny
substantive rights that have accrued over a considerable
period through continuous service. Their promotion was
based on a specific notification for vacancies and a
subsequent circular, followed by a selection process
involving written tests and interviews, which
distinguishes their case from the appointments through
back door entry as discussed in the case of Uma Devi
(supra).
7. The judgment in the case Uma Devi (supra) also
distinguished between "irregular" and "illegal"
appointments underscoring the importance of
considering certain appointments [2024] 1 S.C.R. 1230
even if were not made strictly in accordance with the
prescribed Rules and Procedure, cannot be said to have
been made illegally if they had followed the procedures
of regular appointments such as conduct of written
examinations or interviews as in the present case..."
21. The High Court placed undue emphasis on the initial
label of the appellants' engagements and the
outsourcing decision taken after their dismissal. Courts
must look beyond the surface labels and consider the
realities of employment: continuous, long-term service,
indispensable duties, and absence of any mala fide or
illegalities in their appointments. In that light, refusing
regularization simply because their original terms did not
explicitly state so, or because an outsourcing policy was
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belatedly introduced, would be contrary to principles of
fairness and equity.
22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a broader
systemic issue that adversely affects workers' rights and
job security. In the private sector, the rise of the gig
economy has led to an increase in precarious
employment arrangements, often characterized by lack
of benefits, job security, and fair treatment. Such
practices have been criticized for exploiting workers and
undermining labour standards. Government institutions,
entrusted with upholding the principles of fairness and
justice, bear an even greater responsibility to avoid such
exploitative employment practices. When public sector
entities engage in misuse of temporary contracts, it not
only mirrors the detrimental trends observed in the gig
economy but also sets a concerning precedent that can
erode public trust in governmental operations.
23. The International Labour Organization (ILO), of
which India is a founding member, has consistently
advocated for employment stability and the fair
treatment of workers. The ILO's Multinational
Enterprises Declaration6 encourages companies to
provide stable employment and to observe obligations
concerning employment stability and social International
Labour Organization- Tripartite Declaration of Principles
concerning Multinational Enterprises and Social Policy.
security. It emphasizes that enterprises should assume a
leading role in promoting employment security,
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particularly in contexts where job discontinuation could
exacerbate long-term unemployment.
24. The landmark judgement of the United State in the
case of Vizcaino v. Microsoft Corporation7 serves as a
pertinent example from the private sector, illustrating
the consequences of misclassifying employees to
circumvent providing benefits. In this case, Microsoft
classified certain workers as independent contractors,
thereby denying them employee benefits. The U.S. Court
of Appeals for the Ninth Circuit determined that these
workers were, in fact, common-law employees and were
entitled to the same benefits as regular employees. The
Court noted that large Corporations have increasingly
adopted the practice of hiring temporary employees or
independent contractors as a means of avoiding payment
of employee 97 F.3d 1187 (9th Cir. 1996) benefits,
thereby increasing their profits. This judgment
underscores the principle that the nature of the work
performed, rather than the label assigned to the worker,
should determine employment status and the
corresponding rights and benefits. It highlights the
judiciary's role in rectifying such misclassifications and
ensuring that workers receive fair treatment.
25. It is a disconcerting reality that temporary
employees, particularly in government institutions, often
face multifaceted forms of exploitation. While the
foundational purpose of temporary contracts may have
been to address short-term or seasonal needs, they have
increasingly become a mechanism to evade long- term
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obligations owed to employees. These practices manifest
in several ways:
• Misuse of "Temporary" Labels: Employees engaged for
work that is essential, recurring, and integral to the
functioning of an institution are often labeled as
"temporary" or "contractual," even when their roles
mirror those of regular employees. Such misclassification
deprives workers of the dignity, security, and benefits
that regular employees are entitled to, despite
performing identical tasks.
• Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as seen in
the present case. This practice undermines the principles
of natural justice and subjects workers to a state of
constant insecurity, regardless of the quality or duration
of their service.
• Lack of Career Progression: Temporary employees often
find themselves excluded from opportunities for skill
development, promotions, or incremental pay raises.
They remain stagnant in their roles, creating a systemic
disparity between them and their regular counterparts,
despite their contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly
resort to outsourcing roles performed by temporary
employees, effectively replacing one set of exploited
workers with another. This practice not only perpetuates
exploitation but also demonstrates a deliberate effort to
bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary
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employees are often denied fundamental benefits such
as pension, provident fund, health insurance, and paid
leave, even when their tenure spans decades. This lack of
social security subjects them and their families to undue
hardship, especially in cases of illness, retirement, or
unforeseen circumstances.
26. While the judgment in Uma Devi (supra) sought to
curtail the practice of backdoor entries and ensure
appointments adhered to constitutional principles, it is
regrettable that its principles are often misinterpreted or
misapplied to deny legitimate claims of long-serving
employees. This judgment aimed to distinguish between
"illegal" and "irregular" appointments. It categorically
held that employees in irregular appointments, who
were engaged in duly sanctioned posts and had served
continuously for more than ten years, should be
considered for regularization as a one-time measure.
However, the laudable intent of the judgment is being
subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even in
cases where their appointments are not illegal, but
merely lack adherence to procedural formalities.
Government departments often cite the judgment in
Uma Devi (supra) to argue that no vested right to
regularization exists for temporary employees,
overlooking the judgment's explicit acknowledgment of
cases where regularization is appropriate. This selective
application distorts the judgment's spirit and purpose,
effectively weaponizing it against employees who have
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rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is
imperative for government departments to lead by
example in providing fair and stable employment.
Engaging workers on a temporary basis for extended
periods, especially when their roles are integral to the
organization's functioning, not only contravenes
international labour standards but also exposes the
organization to legal challenges and undermines
employee morale. By ensuring fair employment practices,
government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold
the principles of justice and fairness that they are meant
to embody. This approach aligns with international
standards and sets a positive precedent for the private
sector to follow, thereby contributing to the overall
betterment of labour practices in the country.
28. In view of the above discussion and findings, the
appeals are allowed. The impugned orders passed by the
High Court and the Tribunal are set aside and the original
application is allowed to the following extent:
i. The termination orders dated 27.10.2018 are quashed;
ii. The appellants shall be taken back on duty forthwith
and their services regularised forthwith. However, the
appellants shall not be entitled to any pecuniary
benefits/back wages for the period they have not worked
for but would be entitled to continuity of services for the
said period and the same would be counted for their
post-retiral benefits."
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6.2 The learned advocate Ms. Nair for the respondent has also
relied upon the decision rendered by this Court as well as the
Hon'ble Division Bench for the same Nagar Palika, rendered in
LPA No.1890 of 2019, where the appeal was filed by the same
Nagar Palika, in which an award passed by the learned Reference
Court with regard to regularization was upheld and the
petitioner has also implemented the said award by granting the
benefits to the concerned employees. Undisputedly, the
reference was not filed for seeking the regularization. However,
when the respondent has worked continuously and the work
which is perennial in nature, then there is no option left for the
petitioner - Nagar Palika except to give the all benefits which are
given to the regular employees.
6.3 In that background, this Court does not find any infirmity in
the impugned award. Hence, the present petition deserves to be
dismissed.
7. Resultantly, the present petition is dismissed.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
