RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON
Case Details
2024:BHC-AUG:1729-DB WP-2273-2018-judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2273 OF 20181.Bipin s/o Chhaburao PatoleAge: 40 years, Occu. ServiceR/o. Subedari Guest HouseQuarters, Aurangabad2.Feroz Khan s/o Nawab Khan PathanAge: 40 years, Occu: Service,R/o. Plot No.75, Chaush Colony,Himayat Bag, Aurangabad 3.Deepak Shivaji MagareAge: 43 years, Occu. Service,R/o. N-11, F-15/13, Navjeevan Colony,HUDCO, Aurangabad4.Shaikh Shahed Shaikh Ismail,Age: 37 years, Occu: Service,R/o. Plot/H.No.2-12-33, Delhi Gate,Himayat Bag, Aurangabad5.Nitin s/o Chhaburao Patole,Age: 46 years, Occu: ServiceR/o. Subedari Guest House Quarter,Aurangabad6.Latif Shah Shabbir ShahAge: 51 years, Occu: Service,R/o. Subedari Guest House Quarter,Aurangabad7.Shaikh Abdul Aziz Shaikh Abdul Gani,Age: 43 years, Occu: Service,R/o. Subedari Guest House Quarter,Aurangabad 1 of 25 (( 2 ))WP-2273-2018-judgment8.Chandrakant Rambhau DabhadeAge: 48 years, Occu: Service,R/o. Subedari Guest House Quarter,Aurangabad9.Shaikh Nisar Shaikh PapamiyanAge: 43 years, Occu: Service,R/o. Subedari Guest House Quarter,Aurangabad10.William s/o Ratan LalzareAge: 38 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad11.Dilip s/o Prabhakar Sutar Age: 41 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad12.Khalil Khan s/o Mahmood KhanAge: 40 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad 13.Sanjay s/o Murlidhar SatheAge: 42 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad 14.Dinesh s/o. Shivaji MagareAge: 41 years, Occu: Service,R/o Subhedari Guest House Quarters,Aurangabad15.Raju Uttam WaghAge: 38 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad 2 of 25
Legal Reasoning
(( 6 ))WP-2273-2018-judgmentsubject matter of Writ Petition No.9175 of 2016, which wasdecided by this Court on 21.7.2017, the petitioners cannotinvoke the supervisory jurisdiction of this Court by once againchallenging the said judgment dated 7.8.2014.3.In so far as the challenge to challenging the order of theState Government dated 12.1.2018 is concerned, which is saidto be an administrative function, the petitioners seek liberty toassail the said order before the learned Division Bench of thisCourt.4. As such, remove from the Board.”4.On 14.06.2018, the coordinate Bench of this Court[Coram: S. V. Gangapurwala (as His Lordship then was) and Sunil K.Kotwal, JJ.] has passed the following order:-“The prayer made in Clause-B cannot be considered by thisCourt as the same was assailed before this Court in WritPetition No.9175 of 2016 and the same is already decided on21.07.2017.2.The petition to extent of prayer Clause-B standsdismissed.3.Learned A.G.P. seeks time.4.Stand over to 19th July 2018.”5.In view of the above orders dated 01.03.2018 and14.06.2018, the present Petition is restricted only to the extent ofprayer Clauses (C), (D) and (E) as quoted above.6.The challenge in the present Petition is to the order dated12.01.2018 passed by Respondent No.1. The order dated 12.01.2018 6 of 25 (( 7 ))WP-2273-2018-judgmentpassed by this Court thereby refusing to regularise the services of thePetitioners, is mainly on the grounds as under:-(a)The Petitioners were not on daily wages, but they were onjob work basis.(b)The Petitioners never worked as nominal muster roll continuously for five years as per the recommendation of Kalelkar award.(c) The Petitioners were never worked for 240 days continuous service in any year.(d)The Petitioners were paid by vouchers (e)The Petitioners were never worked on work charge establishment.(f)The Government Resolution dated 24.04.2001 extending the benefits of Kalelkar settlement, are not applicable to the Petitioners, since the Petitioners have not completed five years continuous service or they have not completed 240 days continuous service in a year.7.The learned Advocate appearing for the Petitioners and thelearned AGP, have filed written notes of argument.8.The learned Advocate appearing for the Petitioners invehemence canvassed that all the Petitioners were continuouslyworking with the Respondent at Subhedari Guest House and theyhave completed more than 240 days in every year from their initialappointment. The Respondents have not extended the benefit ofpermanency. The Respondents have denied benefits of Kalelkar 7 of 25 (( 8 ))WP-2273-2018-judgmentsettlement. Therefore, the Petitioners had filed the Complaint bearingULP No.107 of 2008 before the Industrial Court, Aurangabad andprayed for permanency benefits and implementation of the Kalelkaraward, wherein it has been prayed that the employees who haveworked on the establishment of Public Works Department, IrrigationDepartment, Rural Department and Water Conservation Department,should be considered for bringing them on Converted RegularTemporary Establishment (in short “CRTE”). However, on 07.08.2014,the learned Member, Industrial Court dismissed the complaint of thePetitioners. 9.Being aggrieved by said order, the Petitioners filed WritPetition No.7844 of 2014 before this Court. On 15.01.2016, theSingle Bench Court of this Court passed the following order :-“1.I have heard the learned Advocate for the petitioners andthe learned AGP on behalf of the respondents at length.2.Learned Advocate for the petitioners has placed on recorda document dated 01/10/2012 alongwith the communicationdated 03/03/2015 and 24/06/2015 by which the names of thepetitioners have been included in a proposal seeking sanctionfor regularizing their services.3. Mr. Latange, learned Advocate submits that this proposalalso indicates the vacancies available with the respondents. 8 of 25 (( 9 ))WP-2273-2018-judgment4.The said proposal (28 pages) is taken on record andmarked as Exhibit “X” for identification.5. Mr. Latange submits that all the petitioners are still inemployment. They are willing to await the decision of therespondents on the proposal Exhibit “X”. They are willing to beabsorbed as and when the vacancies arise, provided theirservices are protected.6. The learned AGP submits that Exhibit “X” is pending withthe competent authorities. A decision thereon can be arrived atand the said decision would be communicated to thepetitioners expeditiously.7. In the light of the above, Mr. Latange submits that thispetition could be disposed of by giving necessary directions tothe respondents to decide Exhibit “X” and convey the decisionto the petitioners at the earliest.8. Considering the above, this petition is disposed of with adirection to the respondents to decide the proposal Exhibit “X”within a period of 6 (six) months from today and communicatethe decision thereon to the petitioners within a period of 6weeks thereafter. In the event, the respondents decide to absorbthe petitioners considering the vacancies available as is evidentfrom page No.1 and 2 of Exhibit “X”, the petitioners shall beabsorbed on the available vacancies and those vacancies/permanent posts which may be available even in future.9. Needless to state, the petitioners' services shall not beterminated merely on the ground that they are “temporaries” or“daily wagers” till Exhibit “X” is decided and the decision onExhibit “X” is communicated to them. This protection shallcontinue and also for a period of 6 (six) weeks after thepetitioners receive the decision of the respondents on Exhibit“X”. This protection, however, shall not be applicable to acts ofmisconduct or indiscipline, if any, committed by any of thepetitioners.” 9 of 25 (( 10 ))WP-2273-2018-judgment10.On 03.03.2016, the Administrative Officer of State ofMaharashtra issued a communication to the Superintending Engineer,P. W. D. Aurangabad and directed to submit the proposal whether thePetitioners Shri Dipak Shivaji Magar, Bipin Ghhaburao Patole, Mr.Shahid Shaikh Ismile and Firoz Khan Nawab Khan are still workingon daily wages and if they are absorbed, whether they are qualifiedfor an appointment on CRTE basis. Thereafter, on 01.07,.2016, theRespondent No.2 Superintending Engineer, passed the impugnedorder holding that the Petitioners were working on job work basis andthey were being paid by vouchers. 11.According to the Petitioners, they have completed 240days from the date of their initial appointment. Therefore, they areentitled for permanency or in the alternative, they are entitled to bebrought on CRTE as per the Kalelkar settlement on completion of fiveyears on daily wage service. So also, they are entitled for arrears ofwages. However, Respondent No.2 illegally passed the impugnedorder dated 01.07.2016 and denied permanency benefits/CRTEbenefits. 10 of 25 (( 11 ))WP-2273-2018-judgment12.Per contra, Mr. Sunderdas Sukhdeorao Bhagat, ExecutiveEngineer, Public Works Department, Padampura, Aurangabad, videaffidavit-in-reply resisted the claim of the Petitioners. The learnedAGP Mr. S. K. Tambe, vehemently canvassed that, initially, thePetitioners filed Complaint ULP No.107 of 2008 before the IndustrialCourt, Aurangabad and had prayed for a declaration that keeping thePetitioners on temporary basis for years together, amounts to unfairlabour practice as contemplated under Items 5, 6, 9 and 10 ofSchedule-IV of the MRTU and PULP Act, 1971. Hence prayed forissuance of directions against the Respondents to regularise theirservices on completion of 240 days or alternatively to bring them onCRTE as per the Kalelkar Award. However, on 07.08.2014, thelearned Member, Industrial Court passed the judgment and order anddismissed the Complaint ULP No.107 of 2008. 13.Being aggrieved by said judgment and order, thePetitioners had filed Writ Petition No. 7844 of 2014. On 15.01.2016,the Single Bench of this Court had passed the order and directed theState Government to decide the proposal Exh. X within a period of sixmonths. In pursuance of said order, the Respondent No.1 StateGovernment issued a communication dated 01.07.2016 and rejected 11 of 25 (( 12 ))WP-2273-2018-judgmentthe proposal for regularisation of the Petitioners on the ground thatthe Petitioners were not on daily wages, but they worked on job workbasis and they never completed 240 days continuous service in a year.The wages of the Petitioners were being paid by vouchers and thePetitioners never worked on work charge establishment. So also therecommendations of Kalelkar Award as per Government Resolutiondated 24.04.2001 are not applicable to the Petitioners as thePetitioners have not completed five years continuous service nor theycompleted 240 days continuous service in a year. Therefore, thePetitioners have not made grounds for their regularisation. 14.In support of these submissions, the learned AGP reliedon following case law:-(i)Secretary, State of Karnataka & Ors Vs. Umadevi & Ors,reported in 2006 (4) SCC 1.(ii)Satya Prakash & Ors Vs. The State of Bihar, reported in(2010) 4 SCC 179.(iii)Yogesh Mahajan Vs. Prof. R. C. Deka Director, All IndiaInstitute of Medical Sciences, reported in (2018) 3 SCC 218.(iv)Union of India & Ors Vs. Ilmo Devi & Anr., in Hon’bleSupreme Court, Civil Appeal Nos. 5689 – 5690 of 2021.15.We have considered the strenuous submissions of therespective parties. 12 of 25 (( 13 ))WP-2273-2018-judgment16.It is submitted that, the Petitioners claimed that, theyhave been appointed with the Respondents establishment on differentdates and have been completed 240 days continuous service asunder:-Sr.No. Name of the Petitioners Date of Appointment1.Bipin s/o Chhaburao Patole01.03.19922.Feroz Khan s/o Nawab Khan Pathan01.03.19963.Deepak Shivaji Magare01.03.19924.Shaikh Shahed Shaikh Ismail,01.03.19965.Nitin s/o Chhaburao Patole,01.03.19926.Latif Shah Shabbir Shah01.03.19927.Shaikh Abdul Aziz Shaikh Abdul Gani,01.03.19938.Chandrakant Rambhau Dabhade01.03.19929.Shaikh Nisar Shaikh Papamiyan07.09.199410.William s/o Ratan Lalzare05.10.199711.Dilip s/o Prabhakar Sutar 05.10.199712.Khalil Khan s/o Mahmood Khan05.10.199713.Sanjay s/o Murlidhar Sathe05.10.199714.Dinesh s/o. Shivaji Magare05.10.199715.Raju Uttam Wagh02.07.199816.Kishor Dattu Gawai02.07.199817.Sanjay s/o Ukhaji Dudhe02.07.199818.Shaikh Zakir Shaikh Yusuf,02.07.199819.Shaikh Irfan Shaikh Raheem09.10.199920Smt. Aruna Ramdas Raut01.01.2001 13 of 25 (( 14 ))WP-2273-2018-judgment17.On 07.08.2014, the learned Member, Industrial Courtdelivered the judgment and order after considering the oral as well asdocumentary evidence, holding that the Petitioners failed to provethat they were appointed on daily wages on clear, vacant post or thatthey have worked for more than five years as daily wagers with theRespondents, within the purview of Clause 4-C of the model standingorders. So also, the Petitioners have failed to prove that they havecompleted five years service on daily wages with the Respondents.Therefore, they are not entitled for benefits of CRTE as per theGovernment Resolution dated 24.04.2001 and 03.05.2008. 18.It is evident that the Petitioners challenged the judgmentand order dated 07.08.2014 passed in Complaint bearing ULP No.107of 2008 in Writ Petition No.7844 of 2014. During the course ofhearing, the learned Advocate for the Petitioners placed certainrecord along with the communications dated 03.03.2015 and24.06.2015, whereby the names of the Petitioners were included in aproposal seeking sanction for regularisation of their services.Therefore, considering the said communication, the Single Bench ofthis Court had directed the Respondents to decide the said proposalExh-”X” within a period of six months and to communicate the said 14 of 25 (( 15 ))WP-2273-2018-judgmentdecision to the Petitioners within a period of six weeks thereafter. Inpursuance of the directions issued by the Single Bench of this Court,on 01.07.2016, Respondent No.2 opined as under:-“R;kuqlkj fu;fer vLFkkiusojhy lnjhy eatqj ins R;k&R;k laoxkZP;keatqj inkaiSdh dk;Zjr vlysyh fu;fer ins otk tkrk moZjhr jkghysY;keatqj inkais{kk :ikarjhr vLFkkiusojhy inkaph la[;k deh >kY;kuarj R;klaoxkZph fu;fer vLFkkiusojhy fjDr gks.kkjh ins izpfyr i/nrhuqlkjHkj.;kr ;srhy] rlsp T;k osGsl ljG lsok Hkjrh gksbZy R;kosGsl R;kHkjrh izfØ;sr Jh chihu Ncqjko ikVksGs o brj gs fofgr vVh o‘krhZuqlkj ik= Bjr vlrhy rj rs foghr i/nrhuqlkj vtZ d:‘kdrkr-”[Emphasis supplied in Marathi]However, the Petitioners are working on job work basisand as and when they are being called. So also, their wages are beingpaid by vouchers, therefore, the services of the Petitioners cannot beregularised. 19.On perusal of record, it further reveals that, vide orderdated 15-01-2016 passed in W. P. 7844 of 2014, the single Judgebench of this court had directed the Respondents to decide theproposal “X” which is part of the record in said petition within periodof 6 months. However, said proposal “X” was turned down on 3rdMarch, 2016. Therefore, the petitioners again approached this Courtin Writ Petition No. 9175 of 2016, challenging order dated 3rd March, 15 of 25 (( 16 ))WP-2273-2018-judgment2016 passed by the Respondent No. 1. On 21.07.2017, the singleJudge Bench of this court passed the order in Writ Petition No. 9175of 2016 thereby directing the Respondents 2 & 3 to prepare aproposal of the petitioners within a period of 8 weeks and to forwardthe same to Respondent no. 1 for it’s consideration as per G. R. dated24th April, 2001. Accordingly, Respondent No.1 considered theproposal of the Petitioners and found that; (i)The Petitioners were working on petty contractor job work and their wages being paid on vouchers.(ii)The Petitioners were never appointed on nominal muster roll or work charge establishment.(iii)The Petitioners were never appointed on daily wages basis.(iv)The Petitioners never completed five years service or completed 240 days service in a year. 20.In the case of Secretary, State of Karnataka and others Vs.Umadevi, (supra), the Hon’ble Supreme Court has observed in paraNos. 4, 12, 13, 43, 45 and 49, thus:-“4.But, sometimes this process is not adhered to and theConstitutional scheme of public employment is by-passed. TheUnion, the States, their departments and instrumentalities haveresorted to irregular appointments, especially in the lowerrungs of the service, without reference to the duty to ensure aproper appointment procedure through the Public Service 16 of 25 (( 17 ))WP-2273-2018-judgmentCommission or otherwise as per the rules adopted and topermit these irregular appointees or those appointed oncontract or on daily wages, to continue year after year, thus,keeping out those who are qualified to apply for the postconcerned and depriving them of an opportunity to compete forthe post. It has also led to persons who get employed, withoutthe following of a regular procedure or even through thebackdoor or on daily wages, approaching Courts, seekingdirections to make them permanent in their posts and toprevent regular recruitment to the concerned posts. Courtshave not always kept the legal aspects in mind and haveoccasionally even stayed the regular process of employmentbeing set in motion and in some cases, even directed that theseillegal, irregular or improper entrants be absorbed into service.A class of employment which can only be called 'litigiousemployment', has risen like a phoenix seriously impairing theconstitutional scheme. Such orders are passed apparently inexercise of the wide powers under Article 226 of theConstitution of India. Whether the wide powers under Article226 of the Constitution is intended to be used for a purposecertain to defeat the concept of social justice and equalopportunity for all, subject to affirmative action in the matter ofpublic employment as recognized by our Constitution, has to beseriously pondered over. It is time, that Courts desist fromissuing orders preventing regular selection or recruitment at theinstance of such persons and from issuing directions forcontinuance of those who have not secured regularappointments as per procedure established. The passing oforders for continuance, tends to defeat the very Constitutionalscheme of public employment. It has to be emphasized that thisis not the role envisaged for High Courts in the scheme ofthings and their wide powers under Article 226 of theConstitution of India are not intended to be used for thepurpose of perpetuating illegalities, irregularities orimproprieties or for scuttling the whole scheme of public 17 of 25 (( 18 ))WP-2273-2018-judgmentemployment. Its role as the sentinel and as the guardian ofequal rights protection should not be forgotten.12.In spite of this scheme, there may be occasions when thesovereign State or its instrumentalities will have to employpersons, in posts which are temporary, on daily wages, asadditional hands or taking them in without following therequired procedure, to discharge the duties in respect of theposts that are sanctioned and that are required to be filled interms of the relevant procedure established by the Constitutionor for work in temporary posts or projects that are not neededpermanently. This right of the Union or of the StateGovernment cannot but be recognized and there is nothing inthe Constitution which prohibits such engaging of personstemporarily or on daily wages, to meet the needs of thesituation. But the fact that such engagements are resorted to,cannot be used to defeat the very scheme of publicemployment. Nor can a court say that the Union or the StateGovernments do not have the right to engage persons invarious capacities for a duration or until the work in aparticular project is completed. Once this right of theGovernment is recognized and the mandate of theconstitutional requirement for public employment is respected,there cannot be much difficulty in coming to the conclusionthat it is ordinarily not proper for courts whether acting underArticle 226 of the Constitution or under Article 32 of theConstitution, to direct absorption in permanent employment ofthose who have been engaged without following a due processof selection as envisaged by the constitutional scheme. 13.What is sought to be pitted against this approach, is theso called equity arising out of giving of temporary employmentor engagement on daily wages and the continuance of suchpersons in the engaged work for a certain length of time. Suchconsiderations can have only a limited role to play, when everyqualified citizen has a right to apply for appointment, the 18 of 25 (( 19 ))WP-2273-2018-judgmentadoption of the concept of rule of law and the scheme of theConstitution for appointment to posts. It cannot also beforgotten that it is not the role of courts to ignore, encourage orapprove appointments made or engagements given outside theconstitutional scheme. In effect, orders based on suchsentiments or approach would result in perpetuating illegalitiesand in the jettisoning of the scheme of public employmentadopted by us while adopting the Constitution. The approvingof such acts also results in depriving many of their opportunityto compete for public employment. We have, therefore, toconsider the question objectively and based on theconstitutional and statutory provisions. In this context, we havealso to bear in mind the exposition of law by a ConstitutionBench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4)SCR 964). It was held therein, "In our opinion, where aGovernment servant has no right to a post or to a particularstatus, though an authority under the Government actingbeyond its competence had purported to give that person astatus which it was not entitled to give, he will not in law bedeemed to have been validly appointed to the post or given theparticular status."43.Thus, it is clear that adherence to the rule ofequality in public employment is a basic feature of ourConstitution and since the rule of law is the core of ourConstitution, a Court would certainly be disabled from passingan order upholding a violation of Article 14 or in ordering theoverlooking of the need to comply with the requirements ofArticle 14 read with Article 16 of the Constitution. Therefore,consistent with the scheme for public employment, this Courtwhile laying down the law, has necessarily to hold that unlessthe appointment is in terms of the relevant rules and after aproper competition among qualified persons, the same wouldnot confer any right on the appointee. If it is a contractualappointment, the appointment comes to an end at the end of 19 of 25 (( 20 ))WP-2273-2018-judgmentthe contract, if it were an engagement or appointment on dailywages or casual basis, the same would come to an end when itis discontinued. Similarly, a temporary employee could notclaim to be made permanent on the expiry of his term ofappointment. It has also to be clarified that merely because atemporary employee or a casual wage worker is continued for atime beyond the term of his appointment, he would not beentitled to be absorbed in regular service or made permanent,merely on the strength of such continuance, if the originalappointment was not made by following a due process ofselection as envisaged by the relevant rules. It is not open tothe court to prevent regular recruitment at the instance oftemporary employees whose period of employment has come toan end or of ad hoc employees who by the very nature of theirappointment, do not acquire any right. High Courts actingunder Article 226 of the Constitution of India, should notordinarily issue directions for absorption, regularization, orpermanent continuance unless the recruitment itself was maderegularly and in terms of the constitutional scheme. Merelybecause, an employee had continued under cover of an order ofCourt, which we have described as 'litigious employment' in theearlier part of the judgment, he would not be entitled to anyright to be absorbed or made permanent in the service. In fact,in such cases, the High Court may not be justified in issuinginterim directions, since, after all, if ultimately the employeeapproaching it is found entitled to relief, it may be possible forit to mould the relief in such a manner that ultimately noprejudice will be caused to him, whereas an interim direction tocontinue his employment would hold up the regular procedurefor selection or impose on the State the burden of paying anemployee who is really not required. The courts must be carefulin ensuring that they do not interfere unduly with the economicarrangement of its affairs by the State or its instrumentalities orlend themselves the instruments to facilitate the bypassing ofthe constitutional and statutory mandates. 20 of 25 (( 21 ))WP-2273-2018-judgment45.While directing that appointments, temporary or casual,be regularized or made permanent, courts are swayed by thefact that the concerned person has worked for some time and insome cases for a considerable length of time. It is not as if theperson who accepts an engagement either temporary or casualin nature, is not aware of the nature of his employment. Heaccepts the employment with eyes open. It may be true that heis not in a position to bargain -- not at arms length -- since hemight have been searching for some employment so as to ekeout his livelihood and accepts whatever he gets. But on thatground alone, it would not be appropriate to jettison theconstitutional scheme of appointment and to take the view thata person who has temporarily or casually got employed shouldbe directed to be continued permanently. By doing so, it will becreating another mode of public appointment which is notpermissible. If the court were to void a contractual employmentof this nature on the ground that the parties were not havingequal bargaining power, that too would not enable the court togrant any relief to that employee. A total embargo on suchcasual or temporary employment is not possible, given theexigencies of administration and if imposed, would only meanthat some people who at least get employment temporarily,contractually or casually, would not be getting even thatemployment when securing of such employment brings at leastsome succor to them. After all, innumerable citizens of our vastcountry are in search of employment and one is not compelledto accept a casual or temporary employment if one is notinclined to go in for such an employment. It is in that contextthat one has to proceed on the basis that the employment wasaccepted fully knowing the nature of it and the consequencesflowing from it. In other words, even while accepting theemployment, the person concerned knows the nature of hisemployment. It is not an appointment to a post in the real senseof the term. The claim acquired by him in the post in which heis temporarily employed or the interest in that post cannot be 21 of 25 (( 22 ))WP-2273-2018-judgmentconsidered to be of such a magnitude as to enable the giving upof the procedure established, for making regular appointmentsto available posts in the services of the State. The argumentthat since one has been working for some time in the post, itwill not be just to discontinue him, even though he was awareof the nature of the employment when he first took it up, is notone that would enable the jettisoning of the procedureestablished by law for public employment and would have tofail when tested on the touchstone of constitutionality andequality of opportunity enshrined in Article 14 of theConstitution of India. 49.It is contended that the State action in not regularizingthe employees was not fair within the framework of the rule oflaw. The rule of law compels the State to make appointments asenvisaged by the Constitution and in the manner we haveindicated earlier. In most of these cases, no doubt, theemployees had worked for some length of time but this has alsobeen brought about by the pendency of proceedings inTribunals and courts initiated at the instance of the employees.Moreover, accepting an argument of this nature would meanthat the State would be permitted to perpetuate an illegality inthe matter of public employment and that would be a negationof the constitutional scheme adopted by us, the people of India.It is therefore not possible to accept the argument that theremust be a direction to make permanent all the personsemployed on daily wages. When the court is approached forrelief by way of a writ, the court has necessarily to ask itselfwhether the person before it had any legal right to be enforced.Considered in the light of the very clear constitutional scheme,it cannot be said that the employees have been able to establisha legal right to be made permanent even though they havenever been appointed in terms of the relevant rules or inadherence of Articles 14 and 16 of the Constitution.” 22 of 25 (( 23 ))WP-2273-2018-judgment21.In the case of Satya Prakash and others (supra), it hasbeen held that the Appellants therein are not entitled to get benefitof regularisation of their services, since they were never appointed onany sanctioned post and the Appellants were only engaged on dailywages. 22.In the case of Yogesh Mahajan (supra), the Hon’ble ApexCourt held that the contractual employee has no right to have his/hercontract renewed in absence of any statutory or other right in hisfavour for regularisation of his/her services. 23.In the case of Union of India and Ors Vs. Ilmo Devi(supra), the Hon’ble Apex Court delivered the judgment in CivilAppeal Nos. 5689 – 5690 of 2021 on 07.10.2021. Considering theratio laid down in case of Uma Devi (supra), as well as various caselaw, it has been held that the part-time employees are not entitled toseek regularization as they are not working against any sanctionedpost and there cannot be any permanent continuance of part-timetemporary employees as held. Part-time temporary employees in aGovernment run institution cannot claim parity in salary with regularemployees of the Government on the principle of equal pay for equalwork. 23 of 25 (( 24 ))WP-2273-2018-judgment24.In the case of Municipal Council, Tirora and another Vs.Tulsidas Baliram Bindhade, 2016(6) Mh.L.J. 867, it has been heldthat, mere completion of 240 days of service by itself is not a carteblanche to an employee to claim permanency in service of hisemployer in absence of vacant sanctioned post. 25.In the case in hand, though the Petitioners have claimedthat they have completed 240 days continuous service from the dateof their initial appointment, but they failed to prove about completionof 240 days continuous service from the date of their respectiveappointment, before the Industrial Court.26.Per contra, the Respondents proved that, the Petitionerswere working on job work basis and their wages were being paid byvouchers. The Petitioners never worked on nominal muster roll andthey never worked on work charge establishment. Therefore, as perthe Government Resolution dated 24.04.2001 and 22.02.2011, theRespondent No.2 Superintending Engineer, Public Works Department,issued the impugned communication dated 01.07.2016 and declinedto regularise the services of the Petitioners as the appointment of thePetitioners were not against the sanctioned post and they wereworking on job work basis. 24 of 25 (( 25 ))WP-2273-2018-judgment27.In view of above discussions, the present Petitionfails and is dismissed. Accordingly, Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 25 of 25
Arguments
(( 3 ))WP-2273-2018-judgment16.Kishor Dattu GawaiAge: 38 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad17.Sanjay s/o Ukhaji DudheAge: 37 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad18.Shaikh Zakir Shaikh Yusuf,Age: 41 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad19.Shaikh Irfan Shaikh RaheemAge: 37 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad20.Smt. Aruna Ramdas RautAge: 46 years, Occu: Service,R/o. Subhedari Guest House Quarters,Aurangabad… PETITIONERS VERSUS1.The State of Maharashtra Through the Secretary,Public Works DepartmentMantralaya, Mumbai – 322.The Superintending Engineer Public Works Department,Bandhkam BhavanDistrict Court PremisesAdalat Road, Aurangabad 3 of 25 (( 4 ))WP-2273-2018-judgment3.The Executive Engineer Public Works Department,Padampura, Opp Divekar Auto Garage,Aurangabad … RESPONDENTS .…Mr. V. P. Latange, Advocate for Petitioners Mr. S. K. Tambe, AGP for Respondents – State .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON :: 03.01.2024 25.01.2024JUDGMENT (Per Y. G. Khobragade, J.) :- 1.Rule. Rule is made returnable forthwith. Heard finally byconsent of the parties.2.The present Petitioners have put forth prayer clauses,(B), (C), (D) and (E) as under:-“(B)This Hon’ble Court may be pleased to quash and set asidethe impugned order dated 07.08.2014 in Complaint ULPNo.107/2008 passed by the Ld. Industrial Court, Aurangabadthereby hold and declare that, the respondents have engaged inand is being engaging in unfair labour practice as contemplatedunder item-5, 6, 9 & 10 of Schedule-IV of the MaharashtraRecognisation of Trade Unions and Prevention of Unfair LabourPractice Act, 1971 (MRTU & PULP) thereby keeping theservices of petitioners temporary for years together and also therespondents be directed to seize and desist from the same andfor that purpose issue necessary orders. 4 of 25 (( 5 ))WP-2273-2018-judgment(C)This Hon’ble Court may be pleased to quash and set asidethe impugned order dated 12.01.2018 passed by Resp. No.1and directed the respondents to make a proposal in accordancewith the order passed in Writ Petition No.9175/2016 anddirected the respondents to grant a proposal of CRTE/KalelkarAward of the petitioners in view of Government Resolutiondated 24.04.2001 and for that purpose issue necessary orders.(D)This Hon’ble Court may be be pleased to direct therespondents to brought the services of the petitioners shown inAnnexure-A on Converted Regular Temporary Establishmentbasis by extending the benefits of Kalelkar Settlement aftercompletion of five years service from the date of their initialappointment and pay the arrears of wages if not possible togrant permanency as prayed by the petitioners.(E)This Hon’ble Court may be pleased to direct therespondents to regularize the services of the petitioners shownin Annexure-A by granting them permanency since aftercompletion of 240 days of each of petitioners from the date oftheir initial appointment as shown in Annexure-A withretrospective effect and pay the arrears of wages.”3.On 01.03.2018, the Single Judge Bench of this Court waspleased to pass the following order:-“1. The petitioners have challenged the judgment of theIndustrial Court dated 7.8.2014 delivered in Complaint (ULP)No.107 of 2008 and have also challenged the order of theGovernment dated 12.1.2018, rejecting the proposal forregularization.2. Since the judgment of the Industrial Court dated7.8.2014 in Complaint (ULP) No.107 of 2008, was already a 5 of 25