Gujarat High Court

Karjan Municipality Through Its Chief ... vs Shri Gujarat Pradesh Municipal ... on 27 June, 2025

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                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 8391 of 2025
                                                           With
                                   CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
                                      In R/SPECIAL CIVIL APPLICATION NO. 8391 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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                                 KARJAN MUNICIPALITY THROUGH ITS CHIEF OFFICER
                                       MAHENDRAKUMAR AMBELAL SOLANKI
                                                     Versus
                             SHRI GUJARAT PRADESH MUNICIPAL KARMCHARI MAHASANGH
                        ==========================================================
                        Appearance:
                        MR CHIRAG B PATEL(3679) for the Petitioner(s) No. 1
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                           CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                              Date : 27/06/2025
                                                              ORAL JUDGMENT

1. This petition is filed under Articles 226 and 227 of the

Constitution of India challenging the award passed by the

learned Labour Court dated 20.09.2024 in Reference Demand

No.16 of 2024, whereby the learned Labour Court has directed to

regularize the service of 4 employees and to pay the benefit of

regularization from the date of award and the interregnum

period was ordered to consider for notional benefits.

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2. It is the case of the present petitioner that the 20

employees have preferred the reference seeking the

regularization on the ground that though there is a vacant post

available as well as they are working since more than 10 years,

their services were not regularized and though work, which was

carried out by the respondent, who was permanent in nature, by

not filling up the vacant post, the unfair labour practice has been

adopted. Learned Reference Court, on considering the evidence

adduced by both the parties as well as on relying on the decision

rendered by the Hon'ble Apex Court in the Case of Umrala Gram

Panchayat vs The Sec.Municipal Employee Union, has awarded

the reference in favour of the petitioner, which is the subject

matter of the challenge before this Court.

3. Heard learned advocate Mr. Patel for the petitioner -

Municipality.

4. Learned advocate Mr. Patel submits that as the respondent

is appointed without following due recruitment process and the

expenditure of the Municipality is more than 46%, therefore, the

benefit, which was awarded in favour of the respondent -

Employee cannot be granted. Learned advocate Mr. Patel that

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though the vacant post of Sweeper is available, however,

considering the back door entry, if the same was granted then it

would be violation of Articles 14 and 16 of the Constitution of

India. Learned advocate Mr. Patel has relied on the decision

rendered by this Court in the case of Amreli Municipality V/s

Gujarat Pradesh Municipal Employees Union reported in 2004

(3) GLR 1841 as well as relied on the decision rendered by the

Hon'ble Apex Court in the case of Vibhuti Shankar Pandey V/s.

State of Madhya Pradesh and others reported in 2023 (3) SCC

639 and in the case of Upendra Singh V/s State of Bihar and

others reported in 2018 (3) SCC 680 and has submitted that since

initial appointment of the respondent was not by Competent

Authority nor against the sanctioned post, therefore, the

respondent is not entitled to be regularized.

4.1 In view of above submissions, Learned advocate Mr. Patel

has prayed to allow this petition by setting aside the impugned

order.

5. Having considered the arguments advanced by the learned

advocate Mr. Patel and on referring the records along with the

memo of the petition, it emerges that the reference was filed

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before the learned Industrial Tribunal, Vadodara seeking

regularization by 19 employees. It was contended that all the

employees have been working with the Municipality since more

than 10 years, though they perform the working, which are

perennial in nature and which are identical performed by the

regular employees. They have been paid meager wages in

comparison to the regular employees. It is contended by the

workmen in the statement of claim as well as affidavit in the

form of the chief examination that many of the employees were

retired or died. Therefore, at present, 4 employees, who are

contemplating their grievance, though it was filed by the 19

employees. Details of the each employee is mentioned

hereinbelow.

                                          (i)             Dilipbhai Devendubhai Solanki
                                                          Working Experience -12 years
                                                          Class -IV Employee.
                                          (ii)            Kanubhai Gordhanbhai Solanki
                                                          Working Experience -22 years
                                                          Class -IV Employee.
                                          (iii)           Pushpaben Kanubhai Solanki
                                                          Working Experience -10 years
                                                          Class -IV Employee.
                                          (iv)            Laxmiben Damodardas Solanki
                                                          Working Experience -10 years
                                                          Class -IV Employee.

                        5.1      It is undisputed fact that as per the sanctioned set up,






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which is part of the petition at page 76 of the year 2024-25, total

post of the Sweeper mentioned is 45 out of which 26 are served

by the regularize employees and 19 posts are still remained

vacant. Learned Reference Court, after considering the evidence,

more particularly the sanctioned vacant post set up, has awarded

the reference in favour of the 4 employees. It is submitted by the

learned advocate Mr. Patel that out of this, employee No.2,

namely, Kanubhai has been retired. The reliance on the judgment

which was placed by learned advocate Mr. Patel with regard to

the Amreli Municipality (supra), wherein it is held that if there is

no sanctioned set up, no regularization or permanency can be

affected dehors the statutory provision or guidelines. In

identically situated case before the Hon'ble Apex Court in the

case of Vibhuti Shankar Pandey (supra), it is held that if the

recruitment is not made against the sanctioned post then benefit

of regularization cannot be granted. The same was before the

Hon'ble Apex Court in the case of Upendra Singh (Supra).

Therefore, the ratio laid down by the Hon'ble Apex Court in all

the cases is that if there is no sanctioned vacant post, the benefit

of regularization or permanency cannot be awarded in favour of

the employees. This Court has referred the recent decision of the

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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 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.

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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 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

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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 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--

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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 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

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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 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

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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 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

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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, 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

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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 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

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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 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

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"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 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

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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."

5.2 This Court has also referred the decision rendered in the

case of Dwarka Municipality V/s Mantri, Jamnagar Jilla

Majdoor Sangh & Anr. rendered in the Special Civil Application

No.3556 of 2021, which was confirmed by the Hon'ble Division

Bench in the LPA No. 421 of 2025, wherein the Hon'ble Division

Bench has relied on the decision rendered in the case of Shripal

and Another V/s. Nagar Nigam Ghaziabad and others rendered

in Civil Appeal No.8157 of 2024 has observed the para No.9 as

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under.

"9. In light of the aforesaid established facts, we may now refer to the observations of the Hon'ble Supreme Court in the recent judgment of Shripal and Others (supra). The Supreme Court, after considering the Constitution Bench judgment in the case of State of Karnataka vs. Uma Devi, (2006) 4 SCC 1, has held as under: -

"14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are "illegal" and those that are "irregular," the latter being eligible for regularization if they meet certain conditions. More importantly, (2006) 4 SCC 1. Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor- based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.

15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's

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failure to furnish such records --despite directions to do so--allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite "temporary"

employment practices as done by a recent judgement of this court in Jaggo v. Union of India3 in the following paragraphs:

5.3 Considering the above ratio, this Court is of the view that if

the work is taken by the employer continuously as a daily wager

for long number of years without considering the regularization

for its financial gain as against employees' legitimately claim, it

would be unfair labour practice. Taking the work from daily

wager or ad-hoc employee is always viewed to be only for a short

period or as a stop gap arrangement, but in the cases where they

work for long time either for financial gain or for controlling its

workers more effectively with sword of Damocles hanging over

their heads or to continue with favoured one with staling

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competent and legitimate claims, is prohibited under the Act.