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2018 DIGILAW 2672 (BOM)

Madhukar v. State of Maharashtra

2018-10-31

R.G.AVACHAT, S.V.GANGAPURWALA

body2018
JUDGMENT : S.V. Gangapurwala, J. 1. Rule. Rule made returnable forthwith. With consent of the parties, matter is taken up for hearing at admission stage. 2. The petitioners in all these writ petitions claim regularization in service. The petitioners in these writ petitions are working as member of teaching and non-teaching staff in Post Basic Government Ashram Schools. All these petitions are based on similar set of facts and involve common question of law. To avoid rigmarole they are decided by common judgment. 3. Mr. Awate and Mr. Choudhari, learned counsel for petitioners strenuously contend that these petitioners are appointed by the respondents to officiate as Assistant Teachers and/or Class-III and Class-IV employees in the Post Basic Government Ashram Schools. Their names were called from employment exchange. The interviews were conducted and the petitioners were selected to officiate their duties as Assistant Teachers and some of them as members of the non-teaching staff. The majority of the petitioners are officiating their duties for more than 10 years. The respondents did not conduct selection process by issuing advertisement for all these years. According to the learned counsel, the respondents were not getting Assistant Teachers, so also Class-III and Class-IV employees to work in the tribal areas and so they have called for names from the employment exchange, conducted interviews and appointed these petitioners. The petitioners are diligently officiating their duties continuously. It is during the pendency of the writ petition, the respondents terminated the services of some of the petitioners. 4. The learned counsel submits that the respondents cannot keep the petitioners ad hoc and temporary for a long period of time. The respondent-State has to act as a model employer. The petitioners have time and again requested them to regularize their services. The posts on which the petitioners are working are sanctioned posts. The petitioners services be regularized considering the long service and the fact that they had rendered services from the time when the respondents were not getting teachers, so also Class-III and Class-IV employees to work in tribal areas. 5. The learned counsel submit that the respondent-State have regularized the services of teaching and non-teaching staff working in vocational courses run under the Tribal Development Department by issuing Government Resolution dated 8-7-2014. The petitioners are similarly situated. The respondents be directed to regularize the services of the petitioners. 6. 5. The learned counsel submit that the respondent-State have regularized the services of teaching and non-teaching staff working in vocational courses run under the Tribal Development Department by issuing Government Resolution dated 8-7-2014. The petitioners are similarly situated. The respondents be directed to regularize the services of the petitioners. 6. The learned counsel relies on the judgment of the Apex Court in a case of Sheo Narain Nagar and ors. vs. State of U.P. and ors., reported in 2017 MhLJ Online (S.C.) 61 : AIR 2018 SC 233 and submits that if the person completed ten years of service, then the person is entitled for regularization. The learned counsel also relies on the judgment of the Apex Court in a case of Secretary, State of Karnataka and others vs. Umadevi and others, reported in 2006 MhLJ Online (S.C.) 36 : (2006) 4 SCC 1 and submits that the services of the irregularly appointed employees having worked for ten years or more in duly sanctioned posts and not under the cover of the orders of the Court should be regularized. The learned counsel also relies on the judgment of the Apex Court in a case of Narendra Kumar Tiwari and others vs. State of Jharkhand and others, reported in (2018) 8 SCC 238 and submits that the employers are required to consider the case of regularization as one time measure as per the judgment in a case of Secretary, State of Karnataka and others vs. Umadevi and others (supra) and they would be considered in terms of the para 53 of the judgment of Apex Court in Umadevi case. 7. The learned Assistant Government Pleader submits that the sanctioned posts could not be filled in time. The petitioners were appointed purely on temporary basis by paying honorarium, so that the students should not suffer loss in their education. The petitioners have given undertaking at the time of issuing appointment orders that they will not claim any right on the posts on which they are appointed. In view of the judgment of the Apex Court the directions are issued by the Government through its General Administrative Department on 9-2-2018 not to regularize the services of employees appointed on contract or daily wages. Due to non-fulfillment of the posts there is available work load. However, considering the loss of education of ashram school students, the petitioners have been appointed on temporary basis. Due to non-fulfillment of the posts there is available work load. However, considering the loss of education of ashram school students, the petitioners have been appointed on temporary basis. It is further submitted by the learned A.G.P. that some of petitioner's services are recently taken on contract basis, some of them are discontinued as their vacant posts are filled in by regular transfer or appointments. 8. The learned A.G.P. relies on the judgment of the Apex Court in a case of Official Liquidator vs. Dayanand and others, reported in (2008) 13 SCC 558 and submits that the principle of equal pay for equal work would not apply nor the petitioners can claim the benefit of legitimate expectation. The creation of posts, the mode of recruitment, prescribing qualification and criteria for selection is within the exclusive domain of the employer. The learned A.G.P. also relies on the judgment of the Apex Court in a case of National Fertilizers Ltd. and ors. vs. Somvir Singh, reported in 2006 MhLJ Online (S.C.) 38 : (2006) 5 SCC 493 to contend that the appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from the eligible candidates and conducting selection process by a body of experts or a duly constituted selection committee. The learned A.G.P. also relies on the judgment of the Apex Court in a case of State of Orissa and anr. vs. Mamata Mohanty, reported in (2011) 3 SCC 436 to contend that no person can be appointed without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange that will not meet the requirement of the Articles 14 and 16 of the Constitution. As the petitioners are appointed without following the competitive procedure, they are not entitled to claim regularization. Further reliance is placed by the learned A.G.P. on the judgment of the Apex Court in a case of Kendriya Vidyalaya Sangathan and ors. vs. L.V. Subramanyewara and anr., reported in 2007(5) Mh.LJ. (S.C.) 522 : (2007) 5 SCC 326 . The learned counsel submits that the regularization cannot be a mode of recruitment. If the appointment itself is by infraction of the Rules or in violation of the provision of the Constitution of India, cannot be regularized. vs. L.V. Subramanyewara and anr., reported in 2007(5) Mh.LJ. (S.C.) 522 : (2007) 5 SCC 326 . The learned counsel submits that the regularization cannot be a mode of recruitment. If the appointment itself is by infraction of the Rules or in violation of the provision of the Constitution of India, cannot be regularized. The learned A.G.P. also relies on the judgment of the Apex Court in a case of Secretary, State of Karnataka and others vs. Umadevi and others, reported in 2006 MhLJ Online (S.C.) 36 : (2006) 4 SCC 1 . 9. We have considered the submissions canvassed by the learned counsel for the respective parties. 10. All these petitioners are appointed either as Assistant Teachers and/or Class-III and Class-IV employees in government ashram schools run under the Tribal Development Department. These petitioners are catering to the needs of the tribal students and more particularly in tribal areas. 11. It is not disputed by the respondent-State that all these petitioners are appointed on sanctioned posts. The affidavit filed by the respondents through its Assistant Project Officer, Integrated Tribal Development very categorically states that due to non-fulfillment of the posts and availability of work load, the petitioners are appointed on the temporary basis, so that the students of the ashram school should not suffer. It is in a way accepted by the respondents that at the relevant time the petitioners were appointed, they were not getting the teachers so also the Class-III and Class-IV employees to officiate in ashram schools situated in tribal areas. We may also refer to the Government Resolution dated 8-7-2014 issued by the Tribal Development Department. Under the Government Resolution dated 8-7-2014, the respondent-State regularized the services of the teaching and non-teaching staff of the vocational courses under the Tribal Development Department as one time measure. The preface of the said Government Resolution is self speaking. The preface states that as under the scheme the employees were on contract basis and the honorarium was very less, the teaching and non-teaching staff was not available to teach in the remote tribal areas and these persons were appointed. The position is no different in the present matters. The preface of the said Government Resolution is self speaking. The preface states that as under the scheme the employees were on contract basis and the honorarium was very less, the teaching and non-teaching staff was not available to teach in the remote tribal areas and these persons were appointed. The position is no different in the present matters. The State in the affidavit has specifically accepted that though the posts were sanctioned and the work load was available, the posts were not filled in, meaning thereby that the respondent-State was not in a position to get the candidates to teach and so also to work on Class-III and Class-IV posts in the ashram schools situated in remote tribal areas. It is at the time the respondent-State was not getting the man power to officiate in the ashram schools run by the Tribal Development Department in remote tribal areas, these petitioners have performed their duties. The respondents do not dispute that the petitioners are qualified for the posts on which they are officiating. Many of the petitioners have completed more than 10 to 15 years of service at the time of filing the writ petition. At the time they were appointed even means of communication and transportation to the tribal area were scarce. It is at that time in difficult situation they had officiated and performed their duties. The respondents are denying to regularize services of these persons only on the ground that General Administrative Department has issued a blanket direction that the employees appointed on contract or daily wages cannot be regularized. On one hand the Tribal Development Department regularized the services of more than 400 employees officiating as teaching and non-teaching staff in Vocational Courses run by Tribal Development Department under Government Resolution dated 8-7-2014. The circumstances existing in respect of the persons covered under the Government Resolution dated 8-7-2014 and the present petitioners are not different. 12. The petitioners have been interviewed prior to their appointment. They have been found to be qualified and then are appointed. Of course, advertisement was not issued and applications at the relevant time from the public at large were not invited. However, it is in the circumstances as narrated above, the respondent-State was required to fill in the posts. In a case of National Fertilizers Ltd. and ors. They have been found to be qualified and then are appointed. Of course, advertisement was not issued and applications at the relevant time from the public at large were not invited. However, it is in the circumstances as narrated above, the respondent-State was required to fill in the posts. In a case of National Fertilizers Ltd. and ors. vs. Somvir Singh (supra) the Apex Court has observed that if the appointment is made without following the Rules the same would be in nullity and only because the employee has worked for some time, the same by itself could not be a ground for directing regularization of their services. In the said case employees were daily wagers in Government Company. In a case of State of Orissa and anr. vs. Mamata Mohanty (supra), the Apex Court observed that the notice should be published in appropriate manner calling for the applications and those who apply in response thereto should be considered fairly. The names should be invited of all eligible candidates from open market. In the case of Kendriya Vidyalaya Sangathan and ors. vs. L.V. Subramanyewara and anr. (supra) the same position has been reiterated by the Apex Court. In the said case the appointments were made on leave vacancy posts under stop gap arrangement. The Apex Court held that in such case the regularization cannot be directed. 13. In case of Sheo Narain Nagar and ors. vs. State of Uttar Pradesh and ors. (supra), the Apex Court has observed that employment cannot be on exploitative terms. The employees therein were conferred temporary status in the year 2006 work load was available and posts were also available, the order of regularization was held to be proper. In case of Secretary, State of Karnataka and others vs. Umadevi and others (supra) the Apex Court observed thus: "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 regularisation 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 regularise as a onetime 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. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 14. In the present case majority of the persons have been appointed prior to ten years and during the pendency of the writ petition some of them have completed ten years. They are regularly working on the said posts on meagre honorarium. The government is expected to be a model litigant. 15. One needs to keep in mind that these petitioners were appointed as the respondents were not getting Assistant Teachers so also Class-III and Class-IV employees to officiate in the government tribal ashram school run under the Tribal Development Department in the remote tribal areas. The respondents also did not conduct the selection process for all these years. Keeping the petitioners for a long period on honorarium would certainly amount to their exploitation. 16. Exceptional circumstances exist to consider the case of the petitioners for regularization of at least those who have completed ten years of service as laid down in the case of Secretary, State of Karnataka and others vs. Umadevi and others (supra). 17. The following circumstances persuades us to consider the case of the petitioners for regularization of those who have completed ten years in service: (1) The posts on which the petitioners are appointed are sanctioned posts. (2) The work load is available. 17. The following circumstances persuades us to consider the case of the petitioners for regularization of those who have completed ten years in service: (1) The posts on which the petitioners are appointed are sanctioned posts. (2) The work load is available. (3) The petitioners have agreed to officiate at the time when the respondents were not getting the necessary teaching and non-teaching staff to work in remote tribal areas and more particularly when the means of communication and transportation were scarce. (4) The respondents have not undertaken selection process for all these years to fill in the posts held by the petitioners. (5) The petitioners are working continuously for ten years or more on meagre honorarium. (6) Asking the petitioners to continue to work on meagre honorarium for such a long period would tantamount to their exploitation not expected from the welfare State. The State is expected to be a model litigant. 18. We have considered the case of only those petitioners who have completed ten years or more in the service. 19. The petitioners and the respondents have given the details of the number of years the petitioners have worked. During the pendency of the present writ petition some of the petitioners are terminated from the service. We would not be considering the case of the petitioners who are terminated from the service prior to the completion of ten years. However, those petitioners who have completed ten years of service and in spite of pendency of the writ petition are terminated are required to be reinstated. 20. There is not much difference in the chart given by the petitioners and the State with regard to the number of years the petitioners had worked. 21. In light of the above, we pass the following order: ORDER (i) The respondents shall regularize the services of the petitioners who have completed ten years of service with effect from the date they have completed ten years or the date of filing of writ petition whichever is later. (ii) Those petitioners who are terminated after completion of ten years of service during the pendency of the writ petition shall be reinstated and shall be granted regularization from the date they have filed the petition or after completion of ten years of service whichever is later. (ii) Those petitioners who are terminated after completion of ten years of service during the pendency of the writ petition shall be reinstated and shall be granted regularization from the date they have filed the petition or after completion of ten years of service whichever is later. (iii) For all practical purposes the services of the petitioners shall be considered regular from the date as observed above. However, we may not grant them actual financial benefit for the period prior to the present order. They will be entitled for the regular pay scale from 1-11-2018. (iv) The respondents shall count the services of the petitioners from their date of appointment continuously for counting ten years of their service. 22. We have not considered the cases of those petitioners who have not completed ten years of their service. We leave it to the respondent-State to consider their case on its own merits and as per their policy. 23. Writ Petitions are allowed. Rule is made absolute on aforesaid terms. No costs.