Bombay High Court
Smt. Vandana Narsing Chinchwade Adn Ors vs The State Of Maharashtra And Ors on 22 January, 2018
Author: R.M.Borde
Bench: R.M.Borde, R.G.Ketkar
10.wp.11651.2016.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11651 OF 2016
1) Vandana Narsing Chinchwade
C-7 Omkar Colony, Vijaynagar
Kalewadi, Pimpri,
Pune 411 017.
2) Smt. Mansara Gopiram Kumavani
B 0/02, Vishrantwadi Police
Quarters, yerwada, Pune 411 006.
3) Shri. Siddharth Abhimanyu Kamble
Panchsheelnagar, Wakvasti Road,
Aundh Camp, Pimple Nilakh
Pune - 411 027
4) Smt. Hemali Balkrishna Konde
Sant Dnyaneshwar Colony, Kasarwadi
Pune - 411 034.
5) Smt. Sonali Pandurang Nilvarna
Regent Lake View, Flat No.B-8
Plot No.L.C.1, Sector No.26,
Pradhikaran Nigdi, Pune - 411 044 ...Petitioners.
Versus
1) The State of Maharashtra
2) The Commissioner,
Pimpri Chinchwad Mahanagar Palika
Pimpri, Pune - 411 018
3) Principal,
Industrial Training Institute (Girls)
Kasarwadi, Pimpri,
Pune - 411 018 ...Respondents.
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10.wp.11651.2016.doc
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Mr Nitin A. Kulkarni for the Petitioners
Mr G.H. Keluskar for Respondent No.2.
Mr N.C.Walimbe AGP for Respondent No.1.
.....
CORAM : R.M.BORDE &
R.G.KETKAR, JJ.
DATE : 22 nd JANUARY, 2018.
ORAL JUDGMENT (PER R.M.BORDE, J.) :
1 Heard. 2 Rule. Rule made returnable forthwith. With the
consent of parties, the Petition is taken up for final hearing at the admission stage.
3 The Petitioners who are functioning as an instructors in the Industrial Training Institute (ITI) operated by Respondent No.2-Pimpri Chinchwad Mahanagarpalika have approached this Court seeking directions against the Respondents to regularize their services confirming permanency on them on the date of sanction of the posts by the Government on 30.7.2009. The Petitioners are also seeking directions to the Respondents to pay the arrears of salary w.e.f. 30.7.2009 in the prescribed pay scales by making applicable Pg 2 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:09 :::
10.wp.11651.2016.doc pay-scales prescribed for the posts. The Petitioners hold requisite qualification prescribed for the post of the Instructors. Respondent No.2 in pursuance of the advertisement published in daily "Lokmat", "Samna" and "Pudhari" called the applications for making the appointments as an Instructors in Respondent No.3-Institute. In pursuance of the advertisement the Petitioners tendered their applications and participated in the process of selection. The selection committee was comprising of Principal, Chief Auditor, Assistant Commissioner, Education Officer and Additional Commissioner. The Petitioners were called upon to appear before the Selection Committee for the purpose of interview. After holding interviews, the Petitioners were found to be eligible and have been issued the letters of appointment in the month of June 2006. The Petitioners claim that they are functioning as an Instructors in Respondent No.3-Institute since 29.6.2006 continuously without any actual break and without any intervention of Court. According to the Petitioners, Section 53(3) of the Mumbai Provincial Municipal Corporation Act, 1949 (for short, "the Act") empowers the Commissioner to make temporary appointment for six months with the previous sanction of the Pg 3 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:09 :::
10.wp.11651.2016.doc standing committee. It is further contended that in view of the powers conferred upon Respondent No.2, the Standing Committee passed a resolution empowering the Commissioner to appoint the Petitioners. Considering the resolution of the Standing Committee empowering the Commissioner to make the appointment, the Petitioners have been appointed to the post of Instructors. The Petitioners also contend that Respondent No.2 while making appointments has followed the procedure prescribed in Rule 2, Chapter III of the Act. The Petitioners thus contend that their induction in the employment is in view of the due procedure prescribed in that behalf. It is the contention of the Petitioners that the State Government has also accorded the sanction to the posts in pursuance to the proposal tendered by the Municipal Corporation w.e.f. 30th July, 2009. The Petitioners are functioning since the date of their appointment i.e. since June 2006 till this date without any interruption in service. It is the contention of the Petitioners that the posts held by them are permanent in character, the work assigned to them is not temporary and is of a permanent nature and there is no denial to this aspect on behalf of the Respondents. Respondent No.2 is operating Industrial Training Institute since 2006 Pg 4 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc continuously. The nature of the employment of the Petitioners have to be considered to be of a permanent character. It also cannot be controverted that their appointments have been made without observing the procedure prescribed in that behalf. The request made by the Petitioners is objected by the Respondents on the second ground that the Petitioners have not been appointed as a permanent employee and that the order of appointment is itself mentioned that their appointments shall be on contract basis and for a particular period and the remuneration received by them is a fixed sum. Learned advocate appearing for the Petitioners contend that the Municipal Corporation in spite of sanction of the posts accorded by the State Government in 2009 has failed to regularize the services of the Petitioners. It is not the matter of denial that the posts sanctioned by the State Government which are of a permanent character have not been filled in by the Municipal Corporation and these posts are occupied by the Petitioners. The Petitioners are thus occupying permanent posts duly sanctioned by the State Government though their initial appointment is for a temporary duration. It also cannot be controverted that the Petitioners have been granted Pg 5 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc continuation for a period more than 12 years since the date of initial appointment. It also shall be noted that the General Body of the Pimpri Chinchwad Municipal Corporation in its meeting dated 20.10.2010 has resolved to regularize the services of the Petitioners since they have been appointed in observance of the procedure prescribed in that behalf and the posts held by them are of a permanent nature. The Municipal Corporation, however, has not complied with the resolution and has not implemented the resolution passed in General Body meeting and kept the Petitioners temporary. The Petitioners are being paid a fixed sum and not the monthly salary in the prescribed pay scales under the relevant regulation prescribed by the State Government. It is the responsibility of Respondent No.2 to pay the wages to the employees in the prescribed pay scales in observation of the regulations prescribed by the State Government in that behalf. The Municipal Corporation has committed an illegality in refusing to pay the monthly remuneration to the Petitioners in the prescribed pay scales and refusing to grant permanency to them in spite of resolution passed by the General Body of the Municipal Corporation and in spite of sanction of the posts by the State Government way back Pg 6 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc in 2009.
4 It cannot be contended that since the initial appointment of the Petitioners itself is for a prescribed duration, the Petitioners are not entitled to claim permanency. Learned advocate appearing for the Respondents has placed reliance on the judgment in the matter of State of Karnataka Vs Uma Devi & Ors. reported in (2006) 4 SCC page 1 and contended that it would be illegal to regularize the services of the Petitioners whose appointment shall be construed as a back door entry. The contention raised by the Respondents is devoid of substance for the reason that in view of the Judgment of the Supreme Court in the matter of S. V. Narayanappa, R. N. Nanjundappa and B. N. Nagarjan reported in AIR 1967 (1) SCR 128, 1972 (1) SCC 409 and 1979 (4) SCC 507, the appointment of the employees can be termed as an irregularity and not illegality.
5 In view of the Judgments referred to above the question of regularization of services of such employees can be considered in the light of the proposition settled by the Supreme Pg 7 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc Court in the cases referred to above. Thus the direction issued by the Supreme Court in the matter of Umadevi (supra) to the State Government and their instrumentalities that they should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in case where temporary employees are being now employed also shall be adhered. The process ought to have been set in motion within six months from the date of judgment in Umadevi. It shall be appropriate to reproduce the observations of the Supreme Court in the matter of the State of Karnataka & Ors. Vs. M.L.Kesari & Ors. reported in 2010(9) SCC 247, wherein the Supreme Court has analyzed the directions issued earlier in the matter of Umadevi and have observed in paragraphs 4,5 and 8 as quoted below:
"4. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right Pg 8 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below :
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."
5. It is evident from the above that there is an exception to the general principles against Pg 9 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc `regularization' enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one- time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
6. ..........
7. ..........
8. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad- hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional Pg 10 of 12 ::: Uploaded on - 01/02/2018 ::: Downloaded on - 02/02/2018 00:21:10 :::
10.wp.11651.2016.doc or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure." 6 In the instant matter, it is not a matter of dispute that the employees have worked for more than 10 years in duly sanctioned posts without benefits or protection of the Courts or Tribunal and as such, though their appointment on the posts can be termed as irregularity needs to be regularized. The appointment of the Petitioners cannot be termed as an illegal since they have been appointed in observance of the procedure prescribed in that behalf by a duly constituted committee and have been continued in the employment for a period more than 10 years on a duly sanctioned posts. It was thus the responsibility of the Municipal Corporation to regularize the services of the Petitioners and pay them the wages as applicable to the posts of the instructors as prescribed by the State Government under relevant Rules.
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10.wp.11651.2016.doc 7 For the reasons recorded above, the Writ Petition deserves to be allowed and the same is accordingly allowed. 8 The Respondents are directed to regularize the services of the Petitioners from the date of sanction of the posts by the State Government i.e. 30.7.2009 onwards. The necessary orders shall be issued forthwith. The Respondents are shall also pay the regular salary in the prescribed pay scales excluding the amount already paid to them as expeditiously as possible and preferably within a period of eight weeks from today. The arrears of salary excluding the amount already paid to the Petitioners in the prescribed pay scales shall be paid from 30.7.2009 till now within the time stipulated as above. 9 The Rule is made absolute in the above terms. There shall be no order as to costs.
( R.G.KETKAR , J . ) ( R.M.BORDE, J.)
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