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9) Apart from this, the record indicates that there is WP NO.4967 OF 2023 + 13.odt no recognized union to represent or espouse the cause of the complainants and therefore, the complainants will be entitled to file individual complaints even with respect to unfair labour practice under Schedule IV, Item 6, in view of the proviso to Section 21 of the Act.

10) Since, the foundation of the claim of the employees' is clause 4(C) of the Model Standing Orders, it will be appropriate to decide as to whether service conditions of the employees will be governed by MSO. It is the case of the employees that their services are governed by MSO. As against this, the contention of NMC is that MSO are not applicable to NMC since there are separate certified Standing Orders which are duly sanctioned under the provisions of the Act.

30) The issue as regards applicability of MSO to local bodies is considered by the Division Bench in the matter of Municipal Council, Tirora and another Vs. Tulsidas Baliram Bindhade, reported in 2016 (06) MhLJ 867. The said judgment is delivered in a reference in view of divergent views of learned Single Judges in relation to applicability of clause 4(C) of MSO and the right of regularization of employees who have completed 240 days of service in a calendar year in a Municipal Council, in the absence of any sanctioned post. The Division Bench observed that the controversy was covered by two earlier Division Bench judgments in the matters of Pune Municipal Corporation Vs. WP NO.4967 OF 2023 + 13.odt Dhananjay Prabhakar Gokhale reported in 2006 (4) MhLJ 66 and State of Maharashtra Vs. Pandurang Sitaram Jadhav reported in 2008 (5) All MR 497. Referring to Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act,1965, it is held that the right to sanction posts under Section 76 is not vested with the Municipal Council and likewise, the Municipal Council is also not the competent authority for making appointments of employees in view of Section 76(3) of the Act and, therefore, the workers who had completed more than 240 days in service in a calendar year cannot fall back on clause 4(C) of the MSO in order to claim regularization in service. It is held that, in such cases, a worker cannot contend that the Municipal Council had engaged in unfair labour practice. The Division Bench held that applicability of MSO was subject to the appointment being made in accordance with the Section 76 of the Act.

33) In the case of Shrirampur Municipal Council Vs. V. K. Barde, reported in 2011 (4) MhLJ 875, the learned Single Judge has held that Industrial Tribunal does not possess jurisdiction to order creation of post. It is further held that principle of "equal pay for equal work" cannot be made applicable in cases where daily-rated employees perform the same work as regular employees.

34) In the matter of Ramesh Vitthal Patil Vs. Kalyan Dombivali Municipal Corporation, the petitioners/employees sought a declaration that they had assumed character of permanent employees by placing reliance on clause 4(C) of MSO on the ground that they had put in more than 240 days of service in a calendar year. The claim of the employees that they had attained status of permanent employees was rejected by this Court, holding that a worker cannot claim the right of permanency under Clause 4(C) of MSO irrespective WP NO.4967 OF 2023 + 13.odt of the nature of appointment. It is held that the provisions of MSO are made subject to provisions of any other law for the time being in force and, therefore, unless an appointment is made in accordance with the provisions of the Municipal Corporation Act, the right of regularization or permanency cannot be claimed under Clause 4 (C) of MSO.

39) It must also be stated that the proposal forwarded by the NMC for creation of additional posts is accepted by the WP NO.4967 OF 2023 + 13.odt State Government and accordingly 4407 supernumerary posts have been created. The complainants have been accommodated against the said posts by regularizing their services upon completion of 20 years of service. Based on the decision by the State Government, the NMC has issued appointment orders in favour of the complainants. It is, however, provided that the complainants(employees) will not be entitled to the benefit of their previous service. In view of the said development which has taken place during the pendency of the complaint, the controversy between the parties is narrowed down as to whether benefit of regularization in service can be claimed by the workers upon completion of 240 days service as per MSO 4(C), or they will be entitled to the benefit of regularization upon completion of 20 years of service as per Government Resolution issued by the Government of Maharashtra and the consequent appointment orders issued in their favour by NMC. In the considered opinion of this Court, merits of a policy decision for regularization of services of daily wagers cannot be adjudicated by the Industrial Court. It needs to be mentioned WP NO.4967 OF 2023 + 13.odt that the complainants were not appointed by strictly following the prescribed procedure. Their appointments were also not against sanctioned posts. Therefore, complainants cannot claim benefit of MSO 4(C). The policy decision to grant benefit of regularization on completion of 20 years is, therefore, not in violation of MSO 4(C). The learned Industrial Court has not even set aside the said Government Resolution.