Kanija Asad Mehatar & Ors. vs The State Of Maharashtra & Ors.

“a)

This Hon'ble High Court may be pleased to issue appropriate writ, order or direction to quash and set aside the decision dated 13.06.2022 rendered by the Divisional Committee for municipal administration (respondent no.3 to 5 member of committee), Nasik Division Nasik, whereby rejected the proposal of petitioners for grant of Permanency, further be pleased to direct to grant permanency benefits to petitioners.”

“ORDER

(1)

Complaint ULP No. 41/2016 is hereby allowed with costs.

(2)

It is hereby declared that, the Respondents No.1 and 2 have been engaged in unfair labour practices under Items 5, 6 and 9 of the Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, regarding the service, particularly absorption and regularization and payment of wages; of the Complainant.

(3)

The Respondent No.1 and 2 are hereby directed by permanent injunction to cease and desist from being engaged in unfair labour practices declared as above or otherwise in regard with the services of the Complainant.

(4)

The Respondents are hereby directed to take affirmative action for the absorption and regularization of the complainant on sanctioned vacant and permanent post of Sweeper on the establishment of Respondent No. 1 Nagar panchayat Shindkheda, with effect from the date of the sanction and creation of permanent post by approving the staffing pattern for the Respondent No.1.

(5)

The Respondent No.1 and 2 shall ensure that the Respondent No. 1 shall pay the Complainant the pay and allowances for the permanent, vacant, sanctioned post of Sweeper in accordance with the recommendation of 5th and 6th pay commission as have been made applicable by the orders No. नपप्रस / शिदखेडा न. प. / आकृतीबंध / समावेशन/ स 3572/2013/का-६ dated 17/06/2013 and नपप्रस / शिदखेडा न. प./ आकृतीबंध / समावेशन /स 3572/2013/का-6/4696 19/12/2016 with effect from the date of the absorption and regularization of the Complainant on sanctioned vacant permanent post on the establishment of Respondent No. 1.

(6)

If the Respondents fail to pay the arrears of pay and allowances to the Complainant within a period of three months from the date of this order, it shall carry interest at the rate of six percent per annum till realization.”

“8.

In view of the settled position of law, all these petitions are disposed off with the following directions :-

a)

The directions in Clause Nos.2, 3, 5 and 6 are quashed and set aside.

b)

The direction No.4 shall be replaced with the following direction :-

(i)

The proposals forwarded by the petitioner with regard to the ‘Safai Kamgar’ shall be considered by the newly constituted Committee headed by the Divisional Commissioner, Nashik with reference to these cases and considering the vacant posts available and the seniority of such Safai Kamgar, these 8 posts shall be filled in by granting regularization to such Safai Kamgar;

(ii)

The above exercise shall be completed, on or before 30/06/2022 and the order directing absorption would be passed prior to 31/07/2022.

(iii)

Insofar as the other Safai Kamgar amongst these respondents are concerned, their proposal will be forwarded as and when there are vacancies available and they would be considered for absorption along with all similarly situated Safai Kamgar, strictly as per their seniority and on the availability of the vacant posts.

c)

Insofar as the request of Dayaram Morchand Bhil is concerned, the same shall be considered by the petitioner within the prescription of law and if a post of driver is available, the proposal of the respondent Dayaram alongwith any other driver, if already in employment and not freshly recruited subsequently, would be forwarded to the concerned Committee, which shall consider the proposal for regularization strictly by the seniority of the drivers who are included in the proposal.

d)

The direction of the Industrial Court that such regularization will be from the date of vacancies has occurred, provided that the employee is in employment on the said date, is sustained.

9.

Needles to state, until the proposal of these original complainants are decided, they shall not be disengaged only on the ground that they are temporaries or daily wagers. This protection will not include cases of disciplinary action.”

“i)

The initial appointment of the Petitioners were on the temporary basis and that too not as per the due procedure of Law.

ii) The Shinkheda Grampanchayat was converted to Nagarpanchayat in the year 2012 and initial notification for the same was being issued in the year 2010. All those employees who were having permanent orders and those who were appointed by the resolution of the Grampanchayat were entitled for the absorption in the establishment of the Shindkheda Nagarpanchayat.

iii) The services of the Petitioners doesn't fit into the conditions laid down in the Government Resolution dated 5.7.2016, hence the initial services of the Petitioners were found not eligible for absorption in the services of the Shindkheda Nagarpanchayat.”

13.

The claim by the respondents that these were not regular posts lacks merit, as the nature of the work performed by the appellants was perennial and fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same tasks to private agencies after the appellants’ termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional.

17.

As for the argument relating to educational qualifications, we find it untenable in the present context. The nature of duties the appellants performed—cleaning, sweeping, dusting, and gardening—does not inherently mandate formal educational prerequisites. It would be unjust to rely on educational criteria that were never central to their engagement or the performance of their duties for decades. Moreover, the respondents themselves have, by their conduct, shown that such criteria were not strictly enforced in other cases of regularization. The appellants’ long-standing satisfactory performance itself attests to their capability to discharge these functions, making rigid insistence on formal educational requirements an unreasonable hurdle.

21.

The High Court placed undue emphasis on the initial label of the appellants’ engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary to principles of fairness and equity.

22.

The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.

25.

It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

•

Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

•

Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

•

Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

•

Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

•

Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.

26.

While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.

27.

In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.”

O R D E R