Long term continuation of employment does not create inherent right to regularization: Bombay High Court

A single court of Bombay High Court consisting of Justice Sandeep V. Marne while deciding a writ petition in the case of Principal Officer, Municipal Council Pen & Ors. c. Shekhar B. Abhang & Ors. has stated that regularization of services cannot be sought only on the basis of long-term continuation of employment as this does not create any inherent right to regularization

Background facts

Pena City Council (APPELLANT), established under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Towns Act, 1965, engaged Shekhar B. Abhang (ignorant), as a clerk on 04.12.1997, to address service emergencies. In 1998, the respondent, along with three other employees, filed a complaint in the Industrial Court, Thane, fearing termination. The court ruled in their favor on 06.09.2001, preventing their termination, which enabled the respondent to continue as an employee. Then, on 30.07.2003, the respondent was appointed as a Tax Inspector on a temporary basis, effective from 01.08.2003. However, the City Council argued that this appointment was invalid as the respondent was not qualified, was not selected through a regular process and bypassed senior officials. Consequently, his service was terminated on 31.01.2004. This led the respondent to file a complaint with the Industrial Court, alleging unfair labor practices and seeking continued employment and preference for a regular appointment as a Tax Inspector. The Industrial Court issued a temporary order prohibiting new ad hoc appointments to the position of Tax Inspector if there was work. The Municipal Council opposed the appeal, on the grounds that the Respondent was unqualified and that the position of Senior Clerk was the feeder post for the appointments of Tax Inspectors. Then, on 07.03.2009, the Industrial Court ordered the Municipal Council to regulate the respondent as a Tax Inspector and provide him with all subsequent benefits. Thus, the petitioner filed a written petition challenging the court’s order.

The petitioner contended that the order of the industrial tribunal was wrong in directing the regularization of the services of the respondent as Tax Inspector. The Petitioner argued that the Respondent was not qualified for the position, as the supplier after the promotion was a senior official, while the Respondent was a junior temporary employee. His six-month appointment lacked a proper selection process, giving no right to seek adjustment. Moreover, the post of Tax Inspector, sanctioned for the Municipal Council, was vacant since 31.06.1999 and had expired until the revival by the Directorate of Municipal Administration on 10.04.2003, with instructions to follow the appropriate selection procedures. The Respondent’s employment for six months did not follow these procedures, including the interview, thus not creating the right to adjustment. Consequently, the petitioner argued for the annulment of the order of the Industrial Court.

The respondent, on the other hand, contended that he was not a backdoor entrant as his name was sponsored by the Employment Exchange which was evident from a letter of the District Employment and Self-Employment Guidance Centre, Alibag, dated 14.07.2003. The responsible party asserted that his appointment followed a regular process, supported by a resolution approved by the General Body of the Municipal Council. The Respondent also referred to an order dated 10.04.2003, which revived the post of Tax Inspector, and an order dated 30.08.2015, sanctioning a revised staffing pattern for the Pen Municipal Council, confirming the existence of the post of Inspector Tax. The Respondent further argued that the Industrial Court did not err in directing the adjustment of the Respondent, who had worked as a Tax Inspector for a considerable time, making it unfair to prevent his appointment now.

Findings of the Court

The court relied on the historic decision of the Supreme Court Secretary of State of Karnataka & Ors. c. Umadevi & Ors. which held that public employment must adhere to the principles of equality enshrined in Articles 14 and 16 of the Constitution of India, and regularization can be considered only in cases of irregular (not illegal) appointments against duly sanctioned posts , where employees have worked for ten years or more without a court order. The Court observed that the appointment of the Respondent was, in fact, made against a sanctioned vacancy, he was entitled to be appointed to the post and was subjected to the selection process as his name was sponsored by the Employment Exchange and hence, the appointment his cannot be treated as a backdoor entry. Further, apart from six months of service, the respondent had worked as a Tax Inspector since 2012, which means he had rendered more than 10 years of service, and therefore, the respondent had made out a clear case. . for the regulation of services. However, the court observed that regularization of services cannot be claimed merely on the basis of long-term continuity of employment as this does not create any inherent right to regularization.

Based on the above remarks, the court rejected the written request.

Case: Principal Officer, Municipal Council Pen & Ors. c. Shekhar B. Abhang & Ors.

Case no. WP (C). No. 4129/2009

Lawyer for the applicants: God. Rahul D. Lisi

Defendant’s lawyer: mrs. Pavitra Manesh, Mr. MS Topkar

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