Gujarat High Court
Mahuva Nagar Palika Through Chief ... vs Vijuben Bhikhabhai Gohil on 4 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11299 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16031 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 18869 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4980 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 4462 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 16530 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16588 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16526 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19526 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17827 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17826 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 18867 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MAHUVA NAGAR PALIKA THROUGH CHIEF OFFICER SANJAYBHAI
HATHIBHAI PATEL
Versus
VIJUBEN BHIKHABHAI GOHIL & ORS.
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Appearance:
MS.SANGEETA PAHWA for THAKKAR AND PAHWA ADVOCATES(1357)
for the Petitioner(s) No. 1
Page 1 of 26
Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 21:40:06 IST 2025
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KHUSHBU D CHHAYA(8093) for the Respondent(s) No. 1
MR.ADITYA DAVDA, AGP for the Respondent(s) No. 2,3 IN SCA NO.18869
OF 2021, 4462 OF 2022, 4890 OF 2022, 11299 OF 2021 & 16031 OF 2021.
MR.MRUNAL DHOLARIA, AGP for the Respondent(s) No. 2,3 IN SCA
NO.16530 OF 2021, 16588 OF 2021, 16520 OF 2021, 19526 OF 2021 &
17827 OF 2021.
MS.FORUM BIMAL SUKHADWALA, AGP for the Respondent(s) No. 2,3 IN
SCA NO.17826 OF 2021 & 18867 OF 2021.
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate
Ms.Khushbu Chhaya waives service of notice of Rule on
behalf of respondent No.1. Learned AGP's waive service
of notice of Rule on behalf of respondent-State.
2. Since the issue raised in these petitions are similar, they
are being decided by a common judgment. The facts of
Special Civil Application No.18869 of 2020 of 2021 are
taken for the purpose of adjudication.
3. These petitions have been filed by the petitioner-
Nagarpalika, challenging the judgment and award dated
18.03.2021 passed by the learned Industrial Tribunal,
Bhavnagar, in Reference (I.T.) No. 93 of 2016. By the
said award, the Tribunal directed the petitioner to
regularize the services of respondent No.1 on the post of
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Majoor with effect from 09.08.1998, and to pay the
differential salary payable to a regular employee from
the date of reference, i.e., 19.08.2016. The Tribunal
further directed that the period from 09.02.1991 to
19.08.2016 shall be treated as notional for the purpose
of continuity of service. However, it was clarified that
the respondent-workman shall not be entitled to claim
seniority, promotion, gratuity, or retirement benefits for
the said notional period.
4. The brief facts of the case, as stated by the petitioners,
are that the respondent-workman was engaged as a
daily wage Majoor with the petitioner-Nagarpalika since
09.02.1991. On 19.08.2016, the respondent filed a
complaint under Section 10(1) of the Industrial Disputes
Act, 1947, before the learned Industrial Tribunal,
Bhavnagar, seeking regularization of service on the post
of Majoor or any other equivalent post in Class IV cadre
from the date of initial appointment, along with all
consequential benefits applicable to regular employees.
In response, the petitioner-Nagarpalika entered
appearance and filed a written statement, inter alia,
contending that the respondent-workman, along with
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similarly situated employees, had been engaged without
following the due process of law; that none of them had
completed 240 days of continuous service in any
calendar year; that there was no sanctioned post of
permanent Majoor available in the establishment; that
the nature of the work was not perennial; and that the
Nagarpalika was under severe financial constraints and
unable to accommodate even its existing regular
employees. Upon considering the evidence adduced
during the adjudication proceedings, the learned
Tribunal came to the conclusion that the petitioner had
engaged in unfair labour practices, inasmuch as the
respondent-workman had been continuously working
since 1991 and was being paid minimum wages instead
of the regular pay scale. Accordingly, the Tribunal, while
partly allowing the reference, issued the impugned
directions, which are under challenge in the present
petitions.
5. Heard learned advocate Ms.Sangeeta Pahwa for the
petitioner employer and learned advocate Ms.Khushbu
Chhaya for the respondent employee.
6. Learned Advocate Ms. Pahwa, appearing on behalf of the
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petitioner-Nagarpalika, submits that the benefit of
permanency cannot be granted in the absence of a
sanctioned post. Relying upon the decision of the Apex
Court in Maharashtra State Road Transport
Corporation & Others v. Casteribe Rajya Parivahan
Karmachari Sanghatana reported in (2009) 8 SCC
556, it is contended that there is no sanctioned post of
permanent Majoor in the establishment of the petitioner.
The sanctioned set-up includes posts such as Khatar
Majoor, Garden Majoor, and Anti Majoor, and the
respondent-workman was allegedly engaged in
miscellaneous construction-related work categorized as
Anti Majoor. However, the respondent was not working
under any of the sanctioned categories. It is also
submitted by learned advocate Ms.Pahwa that
admittedly, no juniors to the respondent workmen has
been regularized. It is further submitted that mere
continuation in service or length of service does not
confer a right to regularization, as held by the Apex
Court in Hari Nandan Prasad v. Employer I/R to
Mangmt.of FCI & Anr. reported in (2014) 7 SCC
190. Learned advocate Ms.Pahwa submits that the
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Tribunal committed an error in granting notional
benefits such as seniority, pensionary benefits, and
gratuity from 09.02.1991, even though regularization
was ordered only from 09.02.1998. Learned advocate
Ms.Pahwa submits that when regularization is granted
from a specific date, no retrospective financial or service
benefits prior to that date can be granted.
6.1. Learned advocate Ms.Pahwa submits that the reliance
was placed on the evidence of Mr.Jignesh Rashmikant
Shah who was regularized after seven years pursuant to
the order passed by the learned Tribunal, without
appreciating the fact that the said wager was appointed
as a Clerk in Class III cadre on compassionate ground
upon death of his father who was serving as an
Accountant in the petitioner Nagarpalika. Without
appreciating this factual distinction, the Tribunal
wrongly extended similar benefits to the respondent-
workman. Learned advocate Ms.Pahwa submits that it is
settle position of law that when the post is available in
the set up and the workers are working since many
years, the benefit of permanency can be granted.
However, in the present case, the post of Majoor is not
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available in the sanction set up and no juniors to the
present respondents were regularized, therefore, the
benefit of permanency cannot be granted in favour of
the respondents who are working on temporary basis.
Learned advocate Ms.Pahwa submits that none of the
respondents possessed the requisite educational
qualifications for appointment to a permanent post. It is
also submitted that the work performed by the
respondent-workman is neither permanent nor
perennial in nature and though the work done by the
respondent workmen and by the regular employees are
completely different and distinct, the learned Court has
directed to grant the benefit of regularization to the
respondent workman. Learned advocate Ms.Pahwa
submits that the respondents were called only when the
work was available, therefore, it cannot be said that they
have served continuously and therefore, also impugned
award deserves to be interfered with. Learned advocate
Ms.Pahwa submits that the Nagarpalika is facing a
severe financial crunch, with administrative expenditure
constituting 83.62% of its total income for the year
2019-20 and even if posts are created for regularization,
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the financial burden would be unsustainable. Therefore,
too the impugned award deserves to be set aside.
6.2. Learned Advocate Ms. Pahwa submits that the post of
Khatar Majoor falls under the Sanitation Department,
and the duties attached to the said post involve cleaning
garbage and removing fertilizers from the fields.
Similarly, the post of Garden Majoor pertains to cutting
grass and maintaining public gardens. The respondent-
workman, however, was not engaged in either of these
designated roles, and the nature of his work was entirely
different. Learned advocate Ms.Pahwa submits that all
the concerned workmen were engaged as Rojamdars,
whose services were utilized by the Nagarpalika purely
on a need-based, temporary basis. In the absence of any
sanctioned post for the work being performed by the
respondent, the learned Tribunal erred in directing the
benefit of regularization. It is further submitted by
learned advocate Ms.Pahwa that no similarly situated
workman has been regularized, and even those senior to
the respondent continue to work on a temporary basis.
Granting relief to the respondent in such circumstances
would result in discrimination against those senior
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employees who are yet to be regularized. It is submitted
by the learned advocate Ms.Pahwa that, as per the
statutory procedure, if any vacant post is to be filled, the
Regional Commissioner must submit a proposal to the
Commissioner of Municipalities to obtain the necessary
sanction. In the present case, on 21.04.2025, the
Mahuva Nagarpalika submitted a proposal for filling up
20 posts of Safai Kamdar in accordance with the
prevailing seniority list. However, till date, no such
sanction has been granted, as the expenditure of
Nagarpalika is around 53%. Learned advocate
Ms.Pahwa submits that although 154 Class IV posts are
shown as vacant in the sanctioned set-up, several senior
employees have been awaiting regularization for years.
It is, therefore, submitted that the benefit of
regularization ought to be conferred, if at all, upon such
senior employees first. Granting such a benefit to the
present respondent, to the exclusion of those seniors,
would be inequitable and unjust. Accordingly, the
impugned award deserves to be set aside, and the
petition filed by the employer is liable to be allowed.
7. Per contra, learned Advocate Ms. Chhaya, appearing on
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behalf of the respondent-workmen, submits that all the
respondents have rendered continuous service with the
petitioner-Nagarpalika for more than 31 years. Learned
advocate Ms.Chhaya submits that the petitioner has
indulged in unfair labour practices by engaging the
respondents as daily wage Majoors while extracting
work of a permanent and regular nature. It is submitted
by the learned advocate Ms.Chhaya that persons junior
to the present respondents have already been
regularized and have been assigned duties under
different designations such as Clerk, Cleaner, Driver etc.
Learned advocate Ms.Chhaya submits that the principle
of "equal pay for equal work" is applicable in the present
case, and although the respondents have been
designated as Majoors, they have been discharging
functions comparable to those of permanent employees.
It is also submitted by learned advocate Ms.Chhaya that
the respondents are even willing to accept
regularization on equivalent posts such as Safai Kamdar
and are ready to resume duty on such posts, if so
directed. It is submitted by the learned advocate
Ms.Chhaya that there are multiple vacant positions in
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the Class IV category, including eight to ten posts of
Cleaners, two posts in City Bus Maintenance, six vacant
posts of Khatar Majoor, and two posts related to Bulb
Fitting. Learned advocate Ms.Chhaya submits that the
learned Labour Court, after duly considering evidence
on record and assigning cogent reasons, has rightly
allowed the reference in favour of the respondents.
Accordingly, no interference is warranted with the well-
reasoned award passed by the learned Tribunal, and the
present petition filed by the employer is liable to be
dismissed.
8. Having considered the submissions advanced by the
learned advocates for the respective parties, and upon
perusal of the material placed on record, it emerges that
the respondents have been engaged as Majoors and
have been discharging duties continuously since the
year 1991. It is an admitted position that no post of
Majoor exists in the sanctioned set-up of the petitioner-
Nagarpalika. The nature of the work carried out by the
respondents has been detailed in the affidavit filed by
the Chief Officer of the Nagarpalika, which is placed on
record at page 185 of the compilation. The relevant
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details of the duties performed by all the respondents
are reproduced hereinbelow:-
Sr.
Name of Workmen Actual work done
No.
Earlier, she was working in
Development Board for filling up pits
on the road, putting blocks on public
Vijuben Bhikhabhai Gohil
1 road, etc.
(SCA No. 11299 of 2021)
Now, she is working in offices of
Nagar Palika and serving drinking
water and cleaning work.
He is working in Development Board
Keshubhai Bhikhabhai
for filling up pits on the road, install
2 Chauhan
speed breaker, collecting wastes of
(SCA No. 16530 of 2021)
demolished building structure, etc.
Aljibhai Chhinterbhai He was doing repairing work of
3 Wagh handpumps of Nagar Palika. Retired
(SCA No. 16588 of 2021) on 30.6.2022.
Earlier, he was working in water
Pravinbhai Veljibhai works department and doing work of
4 Shiyal repairing valve.
(SCA No. 16526-of 2021) Now he is working as Valveman for
water supply.
Jayeshbhai Mohanbhai
Gohil Through his LRs
5 He was working as Garden Majoor
(SCA No. 19526 of 2021(
(Died on 7.4.2020)
Chhitarbhai Nanjibhai
He is doing work of repairing street
6 Jitiya
light.
(SCA No. 18869,of 2021)
7 Bipinbhai Devduttbhai Earlier he was doing work of repairing
Joshi of street light.
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Now he is working as peon in
(SCA No. 18867 of 2021) development department and serving
tea and water.
He is working in Development Board
Bhanjibhai Mangalbhai for filling up potholes on the road,
8 Parmar install speed breaker, collecting
(SCA No. 16031 of 2021) wastes of demolished building
structure, etc.
Earlier, he was working in
Development Board for filling up
potholes on the road, install speed
Nanjibhai Bhikhabhai
breaker, collecting wastes of
9 Chauhan
demolished building structure, etc.
(SCA No. 17826 of 2021)
Now he is working in water works
department and keeping watch in
filter plant of Nagar Palika.
Earlier, he was working in
Development Board for filling up
potholes on the road, install speed
Kantibhai UkabhaiJitiya
10 breaker, collecting wastes of
(SCA No. 17827 of 2021)
demolished building structure, etc.
Now he is working in water works
department and repairing motors.
Wakhatsinh Harjibhai Retired on 30.6.2023.
11 Wala He was working in Nagar Palika and
(SCA No. 4462 of 2022) repairing handpumps of Nagar Palika.
Earlier he was repairing street light.
Danabhai Somatbhai
Now he is working as peon in general
12 Bheel
department and serving tea and
(SCA No. 4980 of 2022)
water.
9. Upon considering the nature of duties performed by the
respondents, it clearly emerges that although their
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designations were shown as Majoors, the work assigned
to them was of Class IV i.e. permanent and regular in
nature. A perusal of the sanctioned set-up, which forms
part of the petition at Page No. 189 dated 31.08.2016,
indicates that there are sufficient vacant posts available
in the Class IV cadre. This fact militates against the
petitioner's stand that regularization could not be
granted due to lack of sanctioned posts. At this stage,
this Court would refer the recent decision rendered by
the Apex Court in the case of Dharam Singh and
others versus State of U.P. and Another in Civil
Appeal No.8558 of 2018 dated 19.08.2025. In that case,
the issue before the Apex Court concerned denial of
regularization on the ground that recommendations for
sanctioning Group 'C' and Group 'D' posts were rejected
due to financial constraints and an alleged ban on
creation of new posts. The Apex Court after considering
the decisions rendered in Jaggo v. Union of India,
Ghaziabad, Secretary, State of Karnataka & Others
vs. Umadevi & Others and Shripal & Another v.
Nagar Nigam in the said case has held as under :-
"7. Having heard the learned counsel for the parties and perused
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the record, we are unable to endorse the approach adopted by the
High Court. The original writ petition before the High Court
expressly assailed the State's refusal dated 11.11.1999 to sanction
posts for the Commission and sought a mandamus for creation of
posts with consequential consideration for the appellants. The
Single Judge of the High Court, and the Division Bench of the
High Court in appeal, treated the matter as a bare plea for
regularisation, answered it only on the touchstone of absence of
rules and vacancy, and rested principally on Umadevi (Supra). In
doing so, the Courts below failed to adjudicate the principal
challenge to the State's refusal and the legality of its reasons. In
our opinion, such non-consideration amounts to a misdirection
and, in effect, a failure to exercise jurisdiction.
8. The State's refusal of 11.11.1999 cites "financial constraints"
and the subsequent decision of 25.11.2003 (taken after the High
Court's direction to reconsider) adverts to financial crisis and a
ban on creation of posts. Neither decision engages with relevant
considerations placed on record, namely, the Commission's 1991
resolution and repeated proposals, the acknowledged administrative
exigencies of a recruiting body handling large cycles, the
continuous deployment of these very hands for years, and the
existence of attendant work that is primarily perennial rather than
sporadic. While creation of posts is primarily an executive
function, the refusal to sanction posts cannot be immune from
judicial scrutiny for arbitrariness. We believe that a non-speaking
rejection on a generic plea of "financial constraints", ignoring
functional necessity and the employer's own long- standing
reliance on daily wagers to discharge regular duties, does not
meet the standard of reasonableness expected of a model public
institution.
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9. Moreover, it is undisputed that the nature of work performed
by the appellants, i.e. sorting and scrutiny of applications,
dispatch and office support, and driving, has been continuous and
integral to the Commission's functioning since their engagement
between 1989 and 1992. The Commission itself moved for sanction
of fourteen posts and furnished a list of fourteen daily wagers
including the appellants. That consistent internal demand, coupled
with uninterrupted utilisation of the appellants' labour on regular
office hours, fortifies the conclusion that the duties are perennial.
To continue extracting such work for decades while pleading want
of sanctioned strength is a position that cannot be sustained.
10. It must be noted that the premise of "no vacancy" is, in any
event, contradicted by the evidence on record. An RTI response of
22.01.2010 received from the office of Respondent No.2 indicated
existence of Class-IV vacancies. Furthermore, I.A. No. 109487 of
2020 filed before this Court by the appellants specifically pointed
to at least five vacant Class-IV/Guard posts and one vacant Driver
post within the establishment. That application also set out the
names of similarly situated daily wagers who were regularised
earlier within the same Commission. No rebuttal was filed to the
I.A. The unrebutted assertion of vacancies and the comparison
with those who received regularisation materially undermine the
High Court's conclusion that no vacancy existed and reveal
unequal treatment vis-à-vis persons similarly placed. Selective
regularisation in the same establishment, while continuing the
appellants on daily wages despite comparable tenure and duties
with those regularized, is a clear violation of equity.
11. Furthermore, it must be clarified that the reliance placed by
the High Court on Umadevi (Supra) to non- suit the appellants is
misplaced. Unlike Umadevi (Supra), the challenge before us is not
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an invitation to bypass the constitutional scheme of public
employment. It is a challenge to the State's arbitrary refusals to
sanction posts despite the employer's own acknowledgement of
need and decades of continuous reliance on the very workforce.
On the other hand, Umadevi (Supra) draws a distinction between
illegal appointments and irregular engagements and does not
endorse the perpetuation of precarious employment where the
work itself is permanent and the State has failed, for years, to put
its house in order. Recent decisions of this Court in Jaggo v.
Union of India4 and in Shripal & Another v. Nagar Nigam,
Ghaziabad5 have emphatically cautioned that Umadevi (Supra)
cannot be deployed as a shield to justify exploitation through
long-term "ad hocism", the use of outsourcing as a proxy, or the
denial of basic parity where identical duties are exacted over
extended periods. The principles articulated therein apply with full
force to the present case. The relevant paras from Shripal (supra)
have been reproduced hereunder:
"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, 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
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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 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 judgment of this court in Jaggo v. Union
of India3 in the following paragraphs:
"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
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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.
.........
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 labelled 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 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
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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.""
12. We also note the Commission's affidavit filed in 21.04.2025
pursuant to the order of this Court dated 27.03.2025, wherein
reference has been made to a supervening reorganisation in 2024,
whereby the U.P. Higher Education Services Commission was
merged into the U.P. Education Services Selection Commission
and, by a Government Order of 05.07.2024, certain Group-C posts
were sanctioned while Class-IV/Driver requirements were proposed
to be met through outsourcing. We must point out however, that
supervening structural change cannot extinguish accrued claims or
pending proceedings. The successor body steps into the shoes of
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its predecessor subject to liabilities and obligations arising from
the prior regime. More fundamentally, a later policy to outsource
Class- IV/Driver functions cannot retrospectively validate earlier
arbitrary refusals, nor can it be invoked to deny consideration to
workers on whose continuous services the establishment relied for
decades.
13. As we have observed in both Jaggo (Supra) and Shripal
(Supra), outsourcing cannot become a convenient shield to
perpetuate precariousness and to sidestep fair engagement practices
where the work is inherently perennial. The Commission's further
contention that the appellants are not "full-time" employees but
continue only by virtue of interim orders also does not advance
their case. That interim protection was granted precisely because
of the long history of engagement and the pendency of the
challenge to the State's refusals. It neither creates rights that did
not exist nor erases entitlements that may arise upon a proper
adjudication of the legality of those refusals.
14. The learned Single Judge of the High Court also declined
relief on the footing that the petitioners had not specifically
assailed the subsequent decision dated 25.11.2003. However, that
view overlooks that the writ petition squarely challenged the
11.11.1999 refusal as the High Court itself directed a fresh
decision during pendency, and the later rejection was placed on
record by the respondents. In such circumstances, we believe that
the High Court was obliged to examine the legality of the State's
stance in refusing sanction, whether in 1999 or upon
reconsideration in 2003, rather than dispose of the matter on a
mere technicality. The Division Bench of the High Court
compounded the error by affirming the dismissal without engaging
with the principal challenge or the intervening material. The
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approach of both the Courts, in reducing the dispute to a
mechanical enquiry about "rules" and "vacancy" while ignoring
the core question of arbitrariness in the State's refusal to sanction
posts despite perennial need and long service, cannot be sustained.
15. Therefore, in view of the foregoing observations, the impugned
order of the High Court cannot be sustained. The State's refusals
dated 11.11.1999 and 25.11.2003, in so far as they concern the
Commission's proposals for sanction/creation of Class-III/Class-IV
posts to address perennial ministerial/attendant work, are held
unsustainable and stand quashed.
16. The appeal must, accordingly, be allowed.
17. Before concluding, we think it necessary to recall that the
State (here referring to both the Union and the State governments)
is not a mere market participant but a constitutional employer. It
cannot balance budgets on the backs of those who perform the
most basic and recurring public functions. Where work recurs day
after day and year after year, the establishment must reflect that
reality in its sanctioned strength and engagement practices. The
long-term extraction of regular labour under temporary labels
corrodes confidence in public administration and offends the
promise of equal protection. Financial stringency certainly has a
place in public policy, but it is not a talisman that overrides
fairness, reason and the duty to organise work on lawful lines.
18. Moreover, it must necessarily be noted that "ad-hocism"
thrives where administration is opaque. The State Departments
must keep and produce accurate establishment registers, muster
rolls and outsourcing arrangements, and they must explain, with
evidence, why they prefer precarious engagement over sanctioned
posts where the work is perennial. If "constraint" is invoked, the
record should show what alternatives were considered, why
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similarly placed workers were treated differently, and how the
chosen course aligns with Articles 14, 16 and 21 of the
Constitution of India. Sensitivity to the human consequences of
prolonged insecurity is not sentimentality. It is a constitutional
discipline that should inform every decision affecting those who
keep public offices running.
19. Having regard to the long, undisputed service of the
appellants, the admitted perennial nature of their duties, and the
material indicating vacancies and comparator regularisations, we
issue the following directions:
i. Regularization and creation of Supernumerary posts: All
appellants shall stand regularized with effect from 24.04.2002, the
date on which the High Court directed a fresh recommendation by
the Commission and a fresh decision by the State on sanctioning
posts for the appellants. For this purpose, the State and the
successor establishment (U.P. Education Services Selection
Commission) shall create supernumerary posts in the corresponding
cadres, Class-III (Driver or equivalent) and Class-IV
(Peon/Attendant/Guard or equivalent) without any caveats or
preconditions. On regularization, each appellant shall be placed at
not less than the minimum of the regular pay-scale for the post,
with protection of last-drawn wages if higher and the appellants
shall be entitled to the subsequent increments in the pay scale as
per the pay grade. For seniority and promotion, service shall
count from the date of regularization as given above.
ii. Financial consequences and arrears: Each appellant shall be
paid as arrears the full difference between (a) the pay and
admissible allowances at the minimum of the regular pay-level for
the post from time to time, and (b) the amounts actually paid, for
the period from 24.04.2002 until the date of regularization
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/retirement/death, as the case may be. Amounts already paid
under previous interim directions shall be so adjusted. The net
arrears shall be released within three months and if in default, the
unpaid amount shall carry compound interest at 6% per annum
from the date of default until payment.
iii. Retired appellants: Any appellant who has already retired shall
be granted regularization with effect from 24.04.2002 until the
date of superannuation for pay fixation, arrears under clause (ii),
and recalculation of pension, gratuity and other terminal dues.
The revised pension and terminal dues shall be paid within three
months of this Judgement.
iv. Deceased appellants: In the case of Appellant No. 5 and any
other appellant who has died during pendency, his/her legal
representatives on record shall be paid the arrears under clause (ii)
up to the date of death, together with all terminal/retiral dues
recalculated consistently with clause (i), within three months of
this Judgement.
v. Compliance affidavit: The Principal Secretary, Higher Education
Department, Government of Uttar Pradesh, or the Secretary of the
U.P. Education Services Selection Commission or the prevalent
competent authority, shall file an affidavit of compliance before
this Court within four months of this Judgement."
10. Considering the above decision of the Apex Court, as
well as the facts of the present case, this Court is of the
view that although the respondents were appointed
under the nomenclature of Majoor, the work taken from
the respondent employees by the the Nagarpalika was
primarily perennial rather than sporadic. Denying the
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benefit of regularization on the ground that no
sanctioned post is available, despite the fact that the
individuals have served for decades, would, in the
opinion of this Court, amount to exploitation and
constitute an unfair labour practice prohibited under the
Industrial Disputes Act. One of the grounds raised for
not regularizing their services was financial constraint;
however, the employer's own longstanding requirement
for daily wagers to discharge regular duties itself
highlights the unreasonableness of the public
institution's stance. It is true that this Court cannot
direct the creation of posts while exercising jurisdiction
under Article 226 of the Constitution of India, as that
falls within the domain of executive functions.
Nevertheless, considering the nature of work performed,
as reflected in the employer's own affidavit, if directions
were issued to regularize the services on equivalent
posts of Class-IV employees, it would serve the ends of
justice.
11. Resultantly the petition is disposed of. The impugned
award passed by the learned Labour Court is modified to
the limited extent that the petitioner-Nagarpalika shall
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grant the benefit of regularization to the respondents on
an equivalent Class IV post, in accordance with law. The
rest of the award shall remain unaltered.
12. Rule made absolute to the above extent.
(M. K. THAKKER,J)
NIVYA A. NAIR
