Chief Executive Officer, Zilla ... vs Sangita Shriram Madavi And Others on 19 November, 2019

[Cites 9, Cited by 14]

Bombay High Court

Chief Executive Officer, Zilla ... vs Sangita Shriram Madavi And Others on 19 November, 2019

Equivalent citations: AIRONLINE 2019 BOM 1170, 2020 (1) ABR 233 (2019) 4 LAB LN 616, (2019) 4 LAB LN 616

(2) Rule. Rule made returnable forthwith. Heard with consent of learned counsel for the rival parties. (3) These are 12 writ petitions filed by Zilla Parishad, Gondia and other petitioners concerning Public Health Centers under the Zilla Parishad in district Gondia, challenging identical orders passed by the Industrial Court, Maharashtra, Bhandara Bench. In Writ Petition No.5967/2018, Rule was granted on 18.10.2019 and it was directed that the same would be treated as the lead petition to decide the controversy between the parties and the entire bunch of writ petitions was kept for final hearing. Considering the fact that identical controversy is involved in all these writ petitions Rule is granted in 6400/2018, ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 11/43 WP5967+11 others-Judgment 6375/2018, 6376/2018, 6369/2018, 6379/2018, 6398/2018, 6399/2018, 6401/2018, 6402/2018, 6403/2018, 6404/2018.

(4) In all these writ petitions Mr. P. D. Meghe, learned counsel has waived notice on behalf of the first respondents who are contesting respondents and Mr. D. R. Dhumale, learned AGP has waived notice on behalf of the remaining respondents who are State Authorities. (5) The question that arises for consideration in all these writ petitions is, as to whether Industrial Court was justified in allowing the complaints filed by the first respondents in all these writ petitions, thereby granting their prayer for regularization in the post of Auxiliary Nurse Midwife (ANM) and holding that the petitioners had engaged in unfair labour practices as specified in Items 5, 6 and 9 of Schedule - IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act, 1971'). According to the petitioners, the impugned orders passed by the ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 12/43 WP5967+11 others-Judgment Industrial Court are in the teeth of a Division Bench judgment of this Court in the case of Pushpa Matthulal Katre & others vs. Collector, Gondia and others [W. P. No. 2791/2013], whereby Division Bench of this Court by order dated 28.10.2013, had categorically held that an employee identically situated like the contesting respondents herein, was not entitled to benefit of regularization under Government Resolution (GR) dated 02.05.2009, while the Industrial Court in the impugned orders relied upon the said GR to grant relief to the contesting respondents. (6) On 02.05.2009, a GR was issued by the State of Maharashtra concerning grant of powers to Divisional Commissioners in respect of appointments of qualified persons to the post of ANM for specific period of bond. A procedure was also specified in respect of identification of sanctioned vacant posts of ANM and the manner in which selection was to be made on the sanctioned posts. (7) On 19.10.2010, the contesting respondents herein along with others were sponsored by the Joint ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 13/43 WP5967+11 others-Judgment Director Health Services for appointment in the post of ANM for a bond period of two years in the Health Centers under Zilla Parishad, Gondia. The petitioner No.1 issued the appointment order, which specifically stated that the appointments were made temporarily for a period of two years of bond. A reference was made to the aforesaid GR dated 02.05.2009 in the said appointment order and in the terms and conditions appended to the appointment order, it was specifically stated that the appointment to the said post was only for a period of two years of bond, being temporary in nature and that the appointments would come to an end at the end of the period of two years.

(8) On 25.09.2012, an order was issued by the petitioner No.1, with reference to the said appointment orders, stating that since the period of two years was to expire on 18.10.2012, the services of the contesting respondents and those identically situated like them would come to an end on 18.10.2012. The contesting respondents filed complaints before the Industrial Court claiming that ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 14/43 WP5967+11 others-Judgment they were entitled to regularization under GR dated 02.05.2009 and that their services could not be discontinued by the petitioners, after the period of two years was over. It was claimed that by their action the petitioners had indulged in unfair labour practices under Items 5, 6 & 9 of Schedule-IV of the Act, 1971. It is an admitted position that the services of the contesting respondents stood discontinued by the time they pressed their prayer for interim relief before the Industrial Court and that upon a challenge raised by them before this Court, orders were passed directing their reinstatement on the said posts during pendency of their complaints till the Industrial Court decided their complaints on merits.

(9) The contesting respondents and the petitioners herein led evidence in support of their respective stands before the Industrial Court. On the basis of the pleadings and the oral and documentary evidence on record, the Industrial Court passed identical judgments and orders in the complaints filed by the contesting ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 15/43 WP5967+11 others-Judgment respondents. The Industrial Court allowed the complaints and declared that the petitioners had engaged in unfair labour practice as claimed by the contesting respondents. On this basis, it was directed that the services of the contesting respondents be regularized on completion of two years of their service and a further direction was given to the petitioners to pay wages to the contesting respondents for the period between 18.10.2012 to 01.04.2014. These judgments and orders are subject matter of challenge in the writ petitions filed by the petitioners herein. (10) Mr. A. Y. Kapgate, learned counsel for the petitioners submitted that Industrial Court committed a grave error in allowing the complaints filed by the contesting respondents and that GR dated 02.05.2009 was completely misinterpreted by the Industrial Court. It was further submitted that Division Bench of this Court in the aforesaid judgment and order passed in W. P. No.2791/2013 (Pushpa Matthulal Katre & others vs. Collector, Gondia and others) had already held that regularization could not be ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 16/43 WP5967+11 others-Judgment claimed under GR dated 02.05.2009, but the Industrial Court ignored the said judgment, although specifically cited before it. It was submitted that proper interpretation of the GR dated 02.05.2009 would show that appointments for bond period of two years, like that of the contesting respondents herein, were to expire at the end of the two years period and that next set of eligible candidates were to be sponsored by the competent authority for appointment temporarily for the bond period of two years. Further that upon expiry of such period, all such candidates could take part in process of regular appointments as per the procedure envisaged in GR dated 19.10.2007. It was pointed out that the appointments for bond period of two years were not through regular selection process and the Joint Director of Health Services had merely sponsored the candidates like contesting respondents herein. It was further submitted that in GR dated 19.10.2007, a specific procedure of constitution of district level selection committee having seven members was provided, wherein Collector was the Chairman and Head of the Department of ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 17/43 WP5967+11 others-Judgment the concerned department was one of the members. It was pointed out that under the said GR, detailed procedure of written examination and allotment of marks and thereafter interview was laid down and that candidates like the contesting respondents herein could very well apply in response to advertisements issued in the process of selection. On this basis, it was submitted that there was no question of claiming regularization of appointment in the post of ANM, only because bond period of services of two years had been completed by candidates like contesting respondents herein.

(11) It was submitted that the Industrial Court committed an error in holding that the petitioners had committed unfair labour practice in the present case, because the petitioners could not be held guilty of continuing contesting respondents in employment on temporary basis for years together in order to deprive them of the benefits of permanent employees and there was no question of any favouritism shown by the petitioners and ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 18/43 WP5967+11 others-Judgment further there was no breach of any agreement or settlement or award, thereby showing that none of the ingredients of Items No.5, 6 & 9 of Schedule - IV of the Act, 1971, were found in the present case. The learned counsel placed reliance on the judgments in the following cases :-

(i) Umarani vs. Registrar, Co-operative Societies (2204) 7 SCC 112.

(ii) Secretary, State of Karnataka and ors. vs. Umadevi (3) and others (2006) 4 SCC 1.

(iii) Hari Nandan Prasad and anr. vs. Employer I/R to Management of Food Corporation of India and anr. 2015(1) Mh.L.J.209 = (2014) 7 SCC 190.

(iv) Ashok Kumar Sharma vs. Chander Shekhar, 1993 Supp (2) SCC 611.

(v) State of Punjab vs. Surinder Kumar, (1992) 1 SCC 489.

(vi) Rakesh Kumar Sharma vs. State (NCT of Delhi) and others (2013) 11 SCC 58 and

(vii) Judgment of this court in the case of Sandip Baliram Sandbhor vs. Pimpri Chinchwad Municipal Corporation and others 2016(3) Mh.L.J. and ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 19/43 WP5967+11 others-Judgment

(viii) Judgment and order dated 15.03.2013 passed in Writ Petition No.4841/2010 [Niranjana Duryodhan Panchbudhe and others vs. Zilla Parishad, Gondia and others and connected petitions and judgment and order dated 28.10.2013 based in W. P. No.2791/2013 [Pushpa Matthulal Katre & others vs. Collector, Gondia and others]. (12) Per contra, Mr. P. D. Meghe, learned counsel appearing for the contesting respondents submitted that the the Industrial Court had correctly interpreted GR dated 02.05.2009, to hold that it was a term and implied condition in the appointment order dated 19.10.2010, issued in favour of the contesting respondents. It was further submitted that the said GR clearly provided for regularization of services of contesting respondents.

Accordingly, when similarly situated candidates in various Zilla Parishads in Maharashtra had been regularized in service, non-implementation of GR dated 02.05.2009 in the case of the contesting respondents clearly amounted to an unfair labour practice under Item 9 of Schedule - IV of the Act, 1971. The petitioners indulged in unfair labour ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 20/43 WP5967+11 others-Judgment practice under Item 5 of the same, because regularization was granted to certain employees who were similarly situated like the contesting respondents while they were being deprived of such relief and further that unfair labour practice was also committed by the petitioners, because the contesting respondents were sought to be temporarily appointed, in order to deprive them of benefits of permanent employees. It was submitted that even if the Division Bench of this Court in Writ Petition No.2791/2013 [Pushpa Matthulal Katre & others vs. Collector, Gondia and others] by judgment and order dated 28.10.2013, had dismissed the writ petition of a person who had been appointed as ANM by virtue of said order dated 19.10.2010, in the said case regularization was denied by this Court exercising the jurisdiction under Article 226 of Constitution of India, while power of the Industrial Court to grant such relief was saved by judgment of the Hon'ble Supreme Court in the Maharashtra State Road Transport Corporation vs. Castribe Rajya Parivahan Karmachari Sanghatana [(2009) III CLR 262]. It was submitted that jurisdiction was ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 21/43 WP5967+11 others-Judgment correctly exercised by the Industrial Court in the present case and therefore, no interference was warranted in writ jurisdiction. It was further submitted that as many years 5767 staff nurses, some of whom were appointed for a bond period of two years, had been regularized by the State and this Court had granted relief of regularization to 13 such similarly situated staff nurses appointed on bond services of two years. On this basis, it was submitted that once the State policy was to grant regularization to such staff nurses, the same relief ought to be granted to the contesting respondents, who were appointed on the post of ANM. Reliance was also placed on certain communications sent by the State to the Zilla Parishads, wherein information was sought about the candidates who had been appointed for bond period of service of two years in order to facilitate their regularization and directions were given for such regularization. On this basis, it was claimed that the writ petitions deserved to be dismissed.

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      (13)                     The   learned   counsel   appearing        for    the

contesting respondents further submitted that Employment Standing Orders would apply in the present case and accordingly, upon completion of services of three months, the contesting respondents were entitled to be regularized in service. On this basis also it was contended that the writ petitions deserved to be dismissed. In order to support the said contentions, the learned counsel for the contesting respondents relied upon judgment of the Hon'ble Supreme Court in the case of MSRTC vs. Castribes (supra) and judgment of this Court in the case of Sachin Ambadas Dawale vs. Sate of Maharashtra 2014 (2) Mh L J 36 (supra), as also an interim order dated 27.02.2019 passed by this Court in Writ Petition No. 107/2019 [Zilla Parishad Bhandra and anr. vs. Sushila Sukhdeo Selote and ors.]. (14) Mr. D. R. Dhumale, learned AGP for the State Authorities supported the contentions raised on behalf of the petitioners and additionally invited the attention of this Court to an affidavit filed on 05.11.2019 on behalf of the ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 23/43 WP5967+11 others-Judgment State Authorities in one of the petitions, pointing out that by a specific communication it was clarified that regularization could not be granted under GR dated 02.05.2009 and that in any case, the said GR had now been withdrawn by the State.

(15) Having heard the learned counsel for the rival parties, it becomes evident that while on the one hand the petitioners have claimed that the appointments of the contesting respondents were only for a specific period of two years of bonded service, wherein regular selection process was not followed and hence there was no question of regularization, on the other hand the contesting respondents have claimed that they had vested right of being regularized in service under GR dated 02.05.2009, particularly when such regularization of service had been granted to similarly situated persons. Much would turn on interpretation of GR dated 02.05.2009, keeping in mind the fact that Division Bench of this Court in Writ Petition No.2791/2013 [ Pushpa Matthulal Katre & others vs. ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 24/43 WP5967+11 others-Judgment Collector, Gondia and others ] has held that a person identically situated like the contesting respondents who was also appointed for bonded service of only two years, was not entitled to claim regularization under the aforesaid GR dated 02.05.2009. Therefore, before discussing the law on the question of right of regularization of employees and the emphasis placed in various judgments on the necessity of filling posts in public employment through regular selection process, rather than back door entry, it would be necessary to advert to the GR dated 02.05.2009, in order to examine the rival claims made by the parties. A perusal of the GR dated 02.05.2009, shows that it is recorded that every year candidates like the contesting respondents herein are appointed for a period of bond of two years in Zilla Parishad of the districts. It is further recorded that upon the completion of the period of bond of two years, the appointments of such candidates come to an end and new set of candidates are appointed on bond for a period of two years in the post of ANM. Thereafter, it is recorded that upon deducting the said posts of ANM, in which candidates ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 25/43 WP5967+11 others-Judgment are appointed for specific period of two years of bond service, from the total sanctioned posts available of ANM, the number of posts available for appointment by regular procedure can be calculated. It is then provided that such posts to be filled through regular procedure would have to be filled as per the prescribed procedure of selection and appointment. In paragraph 2 of the said GR it is then recorded that the appointing authorities must follow the aforesaid steps specified in paragraph 1 and that it would be the responsibility of Chief Executive Officer of the Zilla Parishad to ensure that availability of sanctioned posts is ascertained and that regular appointments are made. It is further recorded that the Divisional Commissioner is granted powers to approve such appointments under the Maharashtra Zilla Parishads District Services (Recruitment) Rules 1967.

(16) In this context GR dated 19.10.2007, becomes significant, which specifically provides for procedure to be followed for making appointments. This GR specifically ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 26/43 WP5967+11 others-Judgment provides seven member District Selection Committee headed by the Collector, of which the Chief Executive Officer of Zilla Parishad is a member and further that Head of the department of the concerned department is also a member of the said committee. Detailed process of written examination and interview with the marks to be allotted is also specified. It is evident that the appointment against available vacancies of sanctioned posts through regular process specified in GR dated 02.05.2009, would mean selection by the aforesaid seven member District Selection Committee, so as to properly implement the scheme envisaged in GR dated 02.05.2009.

(17) In the present case, a perusal of the appointment order dated 19.10.2010, issued in favour of the contesting respondents would show that the appointments were made on the names of the contesting respondents and others being sponsored by the Joint Director of Health Services. The appointment was specifically only for a period of two years of bond service ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 27/43 WP5967+11 others-Judgment and condition No.1 of the appointment order specifically stated that the service would come to an end upon expiry of period of two years of bond service. Thus, such appointments, as per paragraph 1 of the GR dated 02.05.2009, were only for posts of bonded service of two years, upon expiry of which, the services would come to an end and a new set of candidates for such bonded service of two years would be appointed. After deducting the number of such posts for which appointments were being made only for a period of two years bonded service, the number of available sanctioned posts of ANM would be ascertained and appointments to such posts would have to be made through regular procedure of issuance of advertising and selection through the procedure specified and elaborated in GR dated 19.10.2007.

(18) It appears that the Industrial Court and the contesting respondents herein have completely misinterpreted GR dated 02.05.2009, to mean that all such persons appointed specifically only for a period of two years ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 28/43 WP5967+11 others-Judgment bond service were entitled to be regularized upon expiry of the said period, despite the fact that the appointment order stated that the services would come to an end on the expiry of the period of two years. A proper reading of GR dated 02.05.2009 would show that such a contingency is not contemplated. If the findings rendered by the Industrial Court and the contentions raised on behalf of the contesting respondents are to be accepted, candidates appointed for specific period of only two years of bonded service would continue to get regularized and there would be no posts available with passage of time for making appointments through the regular process as noted above. In this context, it is significant that while making appointments for bonded period of two years like that of contesting respondents herein, the procedure of issuing advertisement, inviting applications, conducting written tests and interviews through selection committee, was never undertaken. This is an admitted position, because in the evidence recorded before the Industrial Court, the contesting respondents admitted that they were not aware as to whether any ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 29/43 WP5967+11 others-Judgment advertisement was ever issued by the petitioner No.1, before issuing the appointment order dated 19.10.2010. In fact, a perusal of the said order itself shows that the names of the contesting respondents and others were simply sponsored by the Joint Director of Health Services. The claim made by the contesting respondents that interviews were conducted is falsified by the very document itself and it is evident that before sponsoring such names, the Joint Director Health Services merely verified the documents of the contesting respondents. In any case, there is no material on record to show that the contesting respondents were selected through a valid process of selection, involving issuance of advertisement, inviting applications, shortlisting of candidates, evaluation through written test or interviews by duly constituted selection committee, specificaly envisaged under GR dated 19.10.2007.

(19) Therefore, it becomes evident that the claim of the contesting respondents that they were entitled to regularization under GR dated 02.05.2009, is wholly ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 30/43 WP5967+11 others-Judgment misplaced. It appears that the use of the word "regular" in GR dated 02.05.2009 in the context of appointments required to be made through regular process of selection has been confused with the word "regularization" by the contesting respondents. The Industrial Court has also erred in accepting the said contentions of the contesting respondents. In fact, the Industrial Court committed a grave error in holding that GR dated 02.05.2009 was an implied condition in the appointment order dated 19.10.2010, issued by the petitioner further erroneously holding that the GR specifically provided for regularization of candidates like the contesting respondents. (20) Even otherwise, Division Bench of this Court in Pushpa Matthulal Katre & others vs. Collector, Gondia and others (supra) in its order dated 28.10.2013, specifically rejected contentions raised on behalf of identically situated candidate who was appointed along with the contesting respondents for bonded service, regarding claim of regularization on the basis of GR ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 31/43 WP5967+11 others-Judgment 02.05.2009. Thus, it becomes evident that a Division Bench of this Court had already rejected an identical contention and that in any case, the GR dated 02.05.2009, as noted above, in no manner provided for regularization of service of candidates like the contesting respondents/complainants. (21) As regards the contentions raised on behalf of the contesting respondents that the claim of regularization of the aforesaid identically situated candidate was rejected by the Division Bench of this Court while exercising jurisdiction Article 226 of the Constitution of India and therefore it did not apply to the jurisdiction being exercised by the Industrial Court under the Act, 1971, by placing reliance upon decision of the Hon'ble Supreme Court in the case of MSRTC vs. Castribes (supra), suffice it to say that even if the Industrial Court under the provisions of the Act, 1971, did have the power to grant regularization, it would first have to conclude that the petitioners had indulged in unfair labour practice. In the present case, it is claimed by the contesting respondents that unfair labour practices ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 32/43 WP5967+11 others-Judgment under Items 5, 6 & 9 of Schedule - IV of the Act, 1971, were committed by the petitioners. But, it cannot be said in any manner that the petitioners had deliberately appointed the contesting respondents on temporary basis, continuously for years together with the object of depriving them of the status and privileges of permanent employees. In the present case, the appointment order dated 19.10.2010, was specifically only for a period of two years of bonded service and there was no question of the respondents having been continued temporarily for years. The contesting respondents were at liberty to participate in the process of regular appointment/recruitment to sanctioned posts in pursuance of advertisements. The petitioners did not continue the contesting respondents for years together in temporary service. In the present case, in fact, the contesting respondents have continued in service because of interim orders passed in their favour during the pendency of the case before the Industrial Court.

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      (22)                     Thus, unfair labour practice under Item 6 of

Schedule - IV of the Act, 1971 has not been proved by the contesting respondents at all.

(23) As regards Item 9 of Schedule - IV of the Act, 1971, pertaining to failure to implement award, settlement or agreement, it was submitted on behalf of the contesting respondents that such unfair labour practice was committed, because, GR dated 02.05.2009, was not implemented in their case for granting them regularization. Since this Court has found that no right of regularization accrued to the contesting respondents under GR dated 02.05.2009, there is no question of unfair labour practice committed by the petitioners under the said Item. (24) In respect of Item 5 of Schedule - IV of the Ac, 1971, regarding favouritism or partiality to one set of workers, the same is wholly inapplicable in the present case, because the contesting respondents have not been able to show that the petitioners herein had granted regularization to a set of employees while depriving only the contesting ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 34/43 WP5967+11 others-Judgment respondents of such relief. The previous litigation referred to by the parties in the present case would show that the petitioners had been denying claim of regularization made by candidates like the contesting respondents/complainants and that this Court in order passed by the Division Bench had rejected claims of regularization made by such candidates. As regards certain communications relied upon by the contesting respondents, showing that State Authorities had asked for information from Zilla Parishad and in some cases directed regularization of candidates like the contesting respondents, there are other communications on record, particularly letter dated 04.01.2018 sent by the State to Chief Executive Officers of all Zilla Parishads, stating that regularization of such candidates in the post of ANM could not be granted and that regular appointments through process of advertisement and selection on merit would have to be undertaken. On an order passed by this Court dated 13.08.2019, in these writ petitions, asking the State to clarify regarding the apparently conflicting communications, an affidavit has been placed on record on ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 35/43 WP5967+11 others-Judgment behalf of the State, reiterating that there was no question of grant of regularization under GR dated 02.05.2009, and that in any case the said GR had been revoked by subsequent GR dated 05.05.2018. It was clarified that the State had consistently instructed various authorities to follow the law laid down by the Hon'ble Supreme Court, laying down that there cannot be any back door entry and that appointments were to be made through proper selection process based on merit.

(25) Therefore, it becomes evident that the petitioners cannot be said to have indulged in favouritism in respect of a particular set of employees, while depriving the contesting respondents of similar relief. This makes it clear that unfair labour practice under Item 5 of Schedule - IV of the Act 1971, was also not made out in the present case. Once it is found that unfair labour practice itself was not proved by the contesting respondents, there was no question of the Industrial Court exercising jurisdiction for grant of regularization to the contesting respondents, even ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 36/43 WP5967+11 others-Judgment when it was held by the Hon'ble Supreme Court that notwithstanding the judgment in the case of Secretary, State of Karnataka vs. Uma Devi (supra), the Industrial Court under the provisions of the Act, 1971, had the power to grant regularization as laid down in the judgment in the case of MSRTC vs. Castribe (supra).

(26) The learned counsel appearing for the petitioners is justified in relying upon the judgment of this Court in the case of Sandip Baliram Sandbhor vs. Pimpri Chinchwad Municipal Corporation and others (supra). This Court in the aforesaid judgment has discussed the law laid down by the Hon'ble Supreme Court concerning necessity of making appointments in public employment through the process of merit and not through back door entries. (27) In the case of Hari Nandan Prasad and anr. vs. Employer (supra) the position of law laid down in the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (supra) and the subsequent judgment in the case of MSRTC ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 37/43 WP5967+11 others-Judgment vs. Castribes (supra) has been reconciled. It has been laid down that insofar as public employment is concerned, selection and appointment has to be made through regular process of advertisement and inviting applications so that thousands who are waiting for employment are given a fair opportunity to compete and that persons who have somehow got public employment and have kept litigating, ought not to be granted relief on the ground of sympathy. (28) The judgments in the cases of State of Punjab vs. Surinder Kumar (supra) and Rakesh Kumar Sharma vs. State (supra) relied upon by the learned counsel appearing for the petitioners, also emphasized on the necessity of prohibiting back door appointments and making sure that selection and appointments to posts in public employment are made on merit through the process of advertisement and invitation of applications from eligible candidates. Applying the said position of law to the facts of the present case it becomes clear that the Industrial Court committed a grave error in proceeding on the basis that the petitioners ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 38/43 WP5967+11 others-Judgment had committed unfair labour practice and that the contesting respondents were entitled to relief of regularization. In the present case, the appointment orders for bond period of two years was absolutely clear, wherein it was stated that such appointments would come to an end on the expiry of the period of two years. Nothing prevented the contesting respondents from applying for appointment on sanctioned posts of ANM whenever advertisements were issued by the petitioners for selection and appointment on merit through regular process of selection.

(29) In fact, in the writ petition of Pushpa Matthulal Katre & others vs. Collector, Gondia and others (supra), challenge had been raised by the petitioners to advertisement inviting applications for sanctioned posts of ANM, thereby showing that attempts were being made to scuttle the process of regular selection on merits and candidates appointed on specific bond service of two years, including the contesting respondent herein, were seeking to continue in employment without facing the regular process ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 39/43 WP5967+11 others-Judgment of selection. In this context it becomes evident that the reliance placed by the learned counsel for the contesting respondents on judgment of Division Bench of this Court in the case of Sachin Ambadas Dawale vs. Sate of Maharashtra (supra) is wholly misplaced. A perusal of the said judgment would show that in the said case appointment of Lecturers to Government Polytechnics were made through Selection Committee consisting of five members and that such selections were made after eligible candidates had applied pursuant to notifications, thereby showing that their selection was on merits. This is clearly distinguishable from the present case where admittedly advertisement was never issued and contesting respondents were appointed only for bonded service of two years upon being sponsored by Joint Director of Health Services. The regular selection process was never undertaken and therefore, reliance on the said judgment could be of no assistance to the contesting respondents.

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      (30)                     Insofar as interim order dated 27.07.2019,

passed by this Court in Writ Petition No.107/2019 [Zilla Parishad Bhandra and anr. vs. Sushila Sukhdeo Selote and ors.] is concerned, a perusal of the same shows that by the said order, Rule was granted and reference was made to certain orders pertaining to regularization of services of staff nurses issued by the State under the said GR. On this basis, contentions was specifically raised on behalf of the contesting respondents that when such large number of staff nurses were granted regularization by the State, some of whom had been appointed on bonded service of two years, similar relief was required to be granted to the contesting respondents. But a perusal of the orders passed by this Court granting relief to such staff nurses, who were appointed on bonded service, shows that this Court took into consideration a specific policy of the State of Maharashtra to grant regularization of service to such staff nurses. It was found by this Court that when, as a matter of policy decision of the State, large number of staff nurses were granted regularization, 13 staff nurses who were before this Court could not have been deprived of benefit of such policy decision.

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      (31)                     Apart from the fact that the post of staff nurse

could be distinguished from the post of ANM, in the present case, this Court is concerned with the claim of the contesting respondents for regularization, wherein Zilla Parishad is the employer and there is no State policy showing that a large number of candidates like the contesting respondents were granted regularization in the post of ANM, even when they were appointed only for a period of two years of bonded service. In fact, if the contentions raised on behalf of contesting respondents were to be accepted, only those candidates passing out of government institutions would enjoy employment in the post of ANM while eligible candidates from the open market, including those who had acquired qualifications from private institutions would be deprived of even an opportunity to compete on merits. Such a situation cannot be contemplated in the face of law laid down by Hon'ble Supreme Court and this Court repeatedly, that back door entries are to be shunned and posts of public employment are to be filled on merits through regular process. (32) As regards the contention raised on behalf of contesting respondents that Standing Orders would apply ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 42/43 WP5967+11 others-Judgment and that upon completion of three months of service, the contesting respondents were entitled to regularization, a perusal of the appointment orders dated 19.10.2010 in the present case, would show that such an argument cannot be accepted. The order specifically states that the appointment is only for a period of two years, and on the expiry of the said period of two years, the same would come to an end. Therefore, reliance placed on the judgment of the Hon'ble Supreme Court in the case of Western India Match Co. Ltd. vs. Workmen 1974 (3) SCC 330, on behalf of contesting respondents, is wholly misplaced.

(33) Therefore, it is found that the Industrial Court in the present case committed a grave error in allowing the complaints filed by the contesting respondents and holding that the petitioners had committed unfair labour practice under the Act, 1971. The Industrial Court committed an error in directing the petitioners to regularize services of the contesting respondents upon completion of period of two years of service. Accordingly, it is found that the impugned orders passed by the Industrial Court are unsustainable. (34) In view of the above, the writ petitions are allowed. The impugned judgments and orders passed by ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 ::: 43/43 WP5967+11 others-Judgment the Industrial Court in favour of the contesting respondents are quashed and set aside and the complaints filed by them are dismissed.

      (35)                     Rule made absolute in above terms.

      (36)                     Upon   pronouncement      of    judgment,         the

learned counsel appearing for contesting respondent prays for stay to the effect of this judgment for a period of two months to enable the contesting respondents to approach the Hon'ble Supreme Court for challenging this judgment and order. This Court has specifically held in this judgment and order that no case was made out by the contesting respondents at all for grant of regularization and consequent continuation of their services in the post of ANM. The contesting respondents were continued in service by virtue of interim order passed in their favour during pendency of the proceedings before the Industrial Court. Hence, request made on behalf of the contesting respondent is rejected.

JUDGE KOLHE ::: Uploaded on - 19/11/2019 ::: Downloaded on - 20/11/2019 03:49:11 :::

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Bombay High Court