Gujarat High Court
Navinbhai Mahyavanshi(Deceased) vs Songadh Nagarpalika Through Chief ... on 1 October, 2025
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C/SCA/15902/2010 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15902 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 7922 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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NAVINBHAI MAHYAVANSHI(DECEASED) & ORS.
Versus
SONGADH NAGARPALIKA THROUGH CHIEF OFFICER & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 1,11,12,2
MR PRATIK KHUBCHANDANI FOR M/S.VYAS ASSOCIATES(1559) for the
Petitioner(s) No. 10,1.1,11.1,12.1,13,14,15,16,17,2.1,3,4,5,6,7,8,9
MR HENIL SHAH, AGP for the Respondent(s) No. 3
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
MR VEDANT D GAIKWAD(10444) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/10/2025
COMMON ORAL JUDGMENT
1. As the facts and issue involved in both these
petitions are similar, they are disposed of by this common
oral judgment at the request of learned advocates for the
parties.
2. The prayers prayed for in these petitions are as
under :
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"28(A) The Hon'ble Court may be pleased
to issue writ of mandamus and/or any
other appropriate writ, direction and order
by directing the respondent authorities to
absorb/regularize the petitioners in the
service setup of the Songadh Nagar Palika;
(B) The Hon'ble Court may be pleased to
issue writ of Certiorari and/or any other
appropriate writ, direction and order by
directing quash and set aside the
communication dated 30/7/2009 and
17/4/2007;
(C) Pending hearing and final disposal of
this petition, this Hon'ble Court be pleased
to direct the respondents not to alter or
effect the service and/or service conditions
of the petitioner;
(D) xxxx"
3.1 It is the case of the petitioners that the
petitioners have been working with the Songadh Nagar
Panchayat since prior to year 1994; that the said Nagar
Panchayat which was governed under the provisions of the
Gujarat Panchayat Act, 1993, got converted into Songadh
Municipal Borough under the notification of State of Gujarat,
published in extraordinary Government of Gujarat Gazette on
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22.1.2004; that the notification provided for initial strength
with respect to each of the Nagarpalika, which would also
include the Songadh Nagarpalika; Condition No.7 of the same
provided for absorption of the staff working prior to
conversion; that a subsequent clarification was issued on
3.10.2006 that Condition No.7 under the circular dated
22.1.2004 would be applicable to the permanent and ad-hoc
employees; that on 21.7.2007, the Songadh Nagarpalika had
passed Resolution No.98 resolving for the staff continued with
the Nagar Panchyat prior to conversion be absorbed in the
set up; that the said resolution was challenged before the
learned Collector, Tapi, who, under Section 258 of the
Gujarat Municipalities Act, placed the said resolution in
abeyance and directed to maintain status-quo; that by
Resolution No.68 of the respondent Nagar Palika, it had
prescribed set up for itself, designating posts which it needed
to ensure discharge of functions and the same was forwarded
to the Director of Municipalities for approval; the same was
approved subject to conditions and item no.8 therein which
completely negates condition no.7 of the notification dated
22.1.2004; that the communication was received by the Chief
Officer from Deputy Director of Municipalities, directing the
respondent to process recruitment only in continuity with the
instructions.
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3.2 Since the issue of absorption of the petitioners was
pending for considerable time, the petitioners made
representation to the Chief Officer on 11.10.2010; that on
inquiry, it was found that the petitioners have been put to
the information on the direction, prohibiting the absorption by
the respondent Nagar Palika.
3.3 Hence, these petitions are filed by the petitioners
with the prayers noted above, as they have been working
since the year 1994.
4. Heard learned advocates for the parties.
5.1 Learned advocate for the petitioners has submitted
that inspite of the fact that the petitioners have been
working long prior to conversion, they have not been
regularized/absorbed within the setup, which is ex-facie
arbitrary and discriminatory; that though the respondents
Songadh Nagar Panchayat and thereafter Songadh Municipal
Borough have availed the services of the petitioners, they are
not being absorbed under one pretext or other; that there
cannot be any retrospective operation of any Government
directive/policy/regulation, and now placed selection criteria
cannot relate to appointment of the petitioner; that the
petitioners have distinguished experience and the petitioners
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have acquired legitimate expectation that they would be
absorbed in the set up of the Municipal Borouch/Nagar
Palika; that the petitioners have got a legal and enforceable
right which would be affected by the impugned orders, which
were passed without an opportunity to the petitioners; that if
the petitioners may not be entitled to be absorbed in the
initial setup, they would certainly be entitled to be absorbed
in the extended setup, which is required to be appreciated by
the respondent authorities. He submitted that by not doing
so, the principles of natural justice are not followed and
therefore, these petitions are maintainable.
5.2 In support of his submissions, learned advocate for
the petitioners has relied on the following decisions:
(1) Dharam Singh and Others V/s State of U.P. and
Another reported in 2025 SCC Online SC 1735.
(2) Trivedi Amthalal Laljibhai V/s The Collector,
decided on 18.12.2001 in Special Civil Application
No.4985 of 2001.
5.3 He, therefore, submitted that the petitioners are
required to be absorbed in the new setup and the prayers
prayed for in these petitions are required to be granted.
6.1 Per contra, learned advocate appearing for
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respondent no.1-Songadh Nagarpalika has referred to the
affidavit-in-reply and submitted that the erstwhile Songadh
Nagar Panchayat came to be converted into Songadh
Municipal Borough by the State Government Notification
dated 14.4.1994, the respondent no.1 sought approval from
the Director of Municipalities for the existing staff of
Nagarpalika on 30.6.1994; the Collector also recommended for
such approval to the Director by letter dated 11.9.1995; the
Nagarpalika by letter dated 17.1.1995 provided supplementary
information to the Director as required; that by Government
Resolution dated 22.1.2004, the State Government has decided
the staff structure and their norms for all the Nagarpalikas,
which came to be amended by another Government
Resolutions dated 6.9.2004; the Director has approved the
Rules of Recruitment, Promotion and Conditions of Service of
the employees of the Songadh Nagarpalika by order dated
22.3.2005; thereafter, the Songadh Nagarpalika passed
Resolution No.68/1 in its General Body Meeting dated
21.8.2006 for deciding the staff strength of 60 employees as
per the category `D' as per Government Resolution dated
22.1.2004 and was decided to submit the appropriate proposal
and pay scales for necessary sanction and the same was
submitted by Nagarpalika to the Collector for his approval
with necessary proposal by letter dated 30.10.2006; thereafter,
by Resolution dated 30.1.2007, the State Government has
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decided the norms for strength of sweepers for the
Nagarpalikas; that by communication dated 17.4.2007, the
Director has granted approval for filling up the vacancies of
the minimum sanctioned staff on the conditions stated in the
said order; in condition no.8 of the said order, it is stated
that the present or past daily wager/temporary employees
shall not be directly absorbed in the said minimum
sanctioned strength. Thereafter, the Nagarpalika passed
Resolution No.98 in its meeting held on 21.7.2007 for
absorption of its existing employees and submitted the said
resolution for approval of the Director by letter dated
18.8.2007 and also addressed letter dated 15.7.2009 to the
Collector; the Collector has passed order dated 30.7.2009
whereby in exercise of powers under Section 258 of the
Gujarat Municipalities Act, has suspended the Resolution
No.98 dated 21.7.2007 passed by the Nagarpalika. Thereafter,
the Director has instructed the Nagarpalika by letter dated
27.1.2010 that the Nagarpalika is required to undertake the
procedure for filling up the minimum staff as per the
Government Resolution dated 22.1.2004 in accordance with
the order of the Director dated 17.4.2007 by following the
prescribed recruitment procedure. He submitted that as the
respondent no.1-Nagarpalika is duty bound to obey and to
implement the orders passed by the Director of Municipalities
and by the Collector, it is unable to absorb/regularize the
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petitioners in the service setup of the Songadh Nagarpalika
as prayed for by them in the present petition, even though it
does not have any objection to absorb/regularize the
petitioners in the service setup, if so ordered by this Court.
6.2 Learned AGP for respondent nos.2 and 3 has
submitted that the petitioners herein were appointed by the
said Nagarpalika being respondent no.1 herein vide a
resolution passed by the then managing body of the then
Nagar Panchayat and as such there was admittedly no
sanctioned setup by the said respondent no.1; that the
petitioners themselves have stated in the memo of the
petition that there was no regular setup which was
prescribed by respondent no.1 and therefore it is evident that
the said petitioners were working under a non-sanctioned
setup; that the respondent no.1-Nagarpalika is converted into
Municipal Borough and therefore the provisions of Gujarat
Municipalities Act, 1963 would be applicable in governing the
recruitment, regularization, conditions of service with respect
to its employees as well as employees of the then
Nagarpalika; that the respondent no.1 Nagarpalika passed the
resolution no.98 dated 21.7.2007 dehors the provisions of law
resolving to continue its erstwhile employees including the
petitioners who were working in the respondent no.1
Nagarpalika prior to conversion of the same to be absorbed
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under the new prescribed setup and therefore the same was
challenged before the Collector, wherein the Collector, vide its
order dated 30.7.2009, had suspended the resolution and
granted status quo as regards the absorption/regularization of
the said employees, as the absorption directly without
sanctioned setup would ultimately lead to back door entry or
appointment of employees including the petitioners without
going through proper channel/process of appointment and
therefore the said resolution was suspended; that the said
resolution was kept in abeyance in view of provisions of
Section 258 of the Gujarat Municipalities Act, 1963, since the
said resolution was passed against the settled position of law
and settled service jurisprudence as regards the appointment
of Government employees through proper procedure. He
submitted that the said order dated 30.7.2009 passed by the
Collector was never challenged by the petitioners and
therefore the said order has attained finality.
6.3 Learned AGP further submitted that Clause 8 of
the resolution dated 17.4.2007 specifically stipulates that the
employees who were working with the erstwhile respondent
no.1 Nagarpalika would not be absorbed in the new
prescribed sanctioned setup and therefore also the petitioners
are not liable to be absorbed in absence of any sanctioned
post. A representation was made by the petitioners for the
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purpose of absorption and the said representation came to be
rejected vide order dated 3.9.2016, which has not been
challenged further by the petitioners and therefore the said
order has also attained finality. He submitted that the clause
1 of the resolution dated 17.4.2007 clearly stipulates that the
recruitment/appointment of the employees of the respondent
would be in consonance with the rules prescribed by the
respondent under Section 271 of the Act and therefore it is
only through such process that the appointments shall be
made. He submitted that the services of the present
petitioners were time and again extended by the erstwhile
respondent no.1 Nagarpalika and therefore they cannot claim
any permanency/continuity of service since they have not been
appointed through a regular selection process. He submitted
that it is a settled position of law that in absence of
sanctioned setup, no employee can claim regularization and
cannot claim permanent continuance or continuity of service
even if the said employee is working for a long duration of
time. He, therefore, submitted that the prayers prayed for
cannot be granted.
6.4 In support of his submissions, learned AGP has
relied on the following citations:
(1) Upendra Singh V/s State of Bihar reported in
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2018(0) AIJEL-SC 61821.
(2) Das Bakuleshkumar Bachubhai V/s Govt of India
reported in 2025(0) AIJEL-HC 250310.
7. I have heard learned advocates for the parties and
perused the material on record.
7.1 The petitioners were appointed in the year 1994 in
Songadh Nagar Panchayat by resolution passed by the then
managing body and then the said Songadh Nagar Panchayat
got converted into Songadh Municipal Borough. The
petitioners themselves have stated that there was no regular
setup which was prescribed by respondent no.1 and therefore
it is evident that the said petitioners were working under a
non-sanctioned setup. As the respondent no.1-Nagarpalika is
converted into Municipality, the Gujarat Municipalities Act,
1963 would now be applicable in governing the recruitment,
regularization, conditions of service with respect to its
employees as well as employees of the then Nagarpalika.
When there is no sanctioned set up, which is not disputed by
the petitioners themselves, the resolution no.98 passed by the
said respondent no.1 Nagarpalika to absorb its erstwhile
employees directly without sanctioned setup would ultimately
lead to a back door entry or appointment of employees
including the petitioners without going through proper
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channel/process of appointment and therefore, the Collector, in
exercise of powers under Section 258 of the Gujarat
Municipalities Act, has suspended the said resolution vide
order 30.7.2009. The petitioners could have filed an appeal
before the State Government challenging the same if
aggrieved by the said order of the Collector, but, instead of
doing so, the petitioners have filed these petitions directly.
7.2 Further, during the pendency of these petitions,
the representation made by the petitioners was rejected vide
order dated 3.9.2016 which is also not challenged by the
petitioners and therefore, it has attained finality and they
have accepted the same.
7.3 Further, on perusal of the resolution dated
17.4.2007 passed by the respondent no.4-Regional
Commissioner of Municipalities, in Clause 1, it is specifically
stipulated that the recruitment/appointment of the employees
would be in consonance with the Rules prescribed by the
respondent no.4 under Section 271 of the Act and as per
proper recruitment process as carried out by the respondent
and therefore, it is only through such process that the
appointment shall be made by the respondent. Clause 8 of
the said resolution stipulates that the employees who were
working with the erstwhile respondent no.1-Nagarpalika would
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not be absorbed in the new prescribed sanctioned setup and
therefore also the petitioners are not liable to be absorbed in
absence of any sanctioned post. The resolutions dated
30.7.2009 and 17.4.2007, which are challenged in these
petitions are passed in consonance with the provisions of the
Gujarat Municipalities Act which is applicable to the
respondent-Municipal Borough and therefore, it cannot be said
that the same are illegal or against the provisions of law.
7.4 At this stage, it would be fruitful to refer to the
judgment relied on by learned AGP Mr.Shah for the
respondents in the case of Das Bakuleshkumar Bachubhai
(supra) of this Court, wherein this Court, while dealing with
similar issue, has referred to the judgment of the Hon'ble
Apex Court in the case of State of Rajasthan & Ors. V/s
Daya Lal & Ors., reported in (2011) 2 SCC 429, wherein, the
Hon'ble Apex Court has held in paragraph 12 as under:
"12. We may at the outset refer to the
following well settled principles relating to
regularization and parity in pay, relevant in
the context of these appeals:
(i) High Courts, in exercising power under
Article 226 of the Constitution will not issue
directions for regularization, absorption or
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permanent continuance, unless the employees
claiming regularization 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 regularization of services of an
employee which would be violative of
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 regularized, back door entries,
appointments contrary to the constitutional
scheme and/or appointment of ineligible
candidates cannot be regularized.
(ii) Mere continuation of service by an
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
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one or two years, will not entitle such
employee to claim regularization, if he is not
working against a sanctioned post. Sympathy
and sentiment cannot be grounds for passing
any order of regularization in the absence of
a legal right.
(iii) Even where a scheme is formulated for
regularization 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 regularization as they are not working
against any sanctioned posts. There cannot
be a direction for absorption, regularization
or permanent continuance of part time
temporary employees.
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(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 : Secretary, State of Karnataka vs. Uma
Devi - 2006 (4) SCC 1, M. Raja vs. CEERI
Educational Society, Pilani - 2006 (12) SCC
636, S.C. Chandra vs. State of Jharkhand -
2007 (8) SCC 279, Kurukshetra Central Co-
operative Bank Ltd vs. Mehar Chand - 2007
(15) SCC 680, and Official Liquidator vs.
Dayanand - 2008 (10 SCC 1) "
7.5 The facts of the citations relied on by learned
advocate are different from the facts of the present case and
therefore, they are not helpful to the petitioners.
7.6 In the case on hand, indisputably, there is no
sanctioned post. The petitioners claim regularization only on
the basis of sympathy as they have been working since so
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many years. Any order of absorption/regularization of the
petitioners, who are not appointed by regular mode, would
result in denial of equal opportunity to other eligible
candidates. However, in absence of any legal right, in view of
the settled position of law, this Court cannot pass any order
in favour of the petitioners. Therefore, these petitions fail and
are required to be dismissed. Accordingly, dismissed. Rule is
discharged.
(SANDEEP N. BHATT,J)
SRILATHA
