Pramila Kiran Mane v. Municipal Commissioner-Pimpri Chinchwad Municipal Corporation

Municipal Corporation are not Industrial Establishments. (viii)That even if it is assumed that posts occupied by the employees are not sanctioned, the Municipal Corporation has to blame itself for such conduct and it is arbitrary on its part to exploit services of employees for several years without creating posts. Some of the employees have worked for as many as 10 long years showing need for regular staff against posts occupied by the said employees.

(ix) That the Municipal Corporation has exploited the services of employees by paying them paltry amounts towards honorarium, when in fact they are under legal obligation to pay salary in regular pay scale to them.

(x) That the judgment of the Apex Court in State of Punjab and others V/s Jagjit Singh and Others 2 mandates payment at the minimum of pay scale to temporary employees during the period of their temporary services. That therefore, till. 2017 (1) SCC 148. ___Page No.37 of 70___ the employees are made permanent, they must be granted salaries at the minimum of pay scale and once they are made permanent in service, they must be allowed to draw yearly increments as well.

(xi) That the Industrial Court has erred in rejecting the claim of permanency without appreciating rendering of continuous service by the employees for several years.

11) On above broad submission, Mr. Kulkarni and Dr. Warunjikar have urged that the impugned orders of the Industrial Court denying the relief of permanency be set aside while maintaining the direction for payment of wages at the minimum of pay scale.

12) Mr. Bapat, the learned senior advocate has appeared on behalf of the Municipal Corporation in support of the Writ Petitions filed by the Corporation and to oppose the Writ Petitions filed by the employees. Mr. Bapat would submit that Industrial Court has erred in granting the prayer for wages at the minimum of pay-scales ignoring the fact that the employees have accepted their engagements on fixed honorarium basis. That the rights and entitlements of employees are governed by the terms and conditions in the appointment orders and the Industrial Court has exceeded its jurisdiction in awarding them something in excess of such terms and conditions. That the concerned employees have filed undertakings/bonds not to claim salaries in regular pay scale and that appointments were offered to them only on account of filing of such undertakings/bonds. That therefore the Industrial Court could not have permitted the employees to take volte face and demand wages in pay scale. He would therefore submit that the directions of the Industrial Court for payment of wages in the minimum of pay scale suffers from jurisdictional error warranting interference by this Court in exercise of provisions under Article 227 of the Constitution of India. ___Page No.38 of 70___ 13) So far as the Petitions filed by the employees are concerned, Mr. Bapat would submit that engagements of the employees were for temporary period of six months, which are extended on few occasions by the Municipal Corporation. That their engagements are made in excess of the staffing pattern by creating posts for temporary period after seeking approval of the Standing Committee. That the Municipal Commissioner is empowered to make temporary appointment under Section 53(3) of the MNC Act whereas only State Government can sanction posts on the establishment of a Municipal Corporation under Section 51 of the MMC Act. That in the present case State Government has not sanctioned posts against which temporary engagement of the employees were made. That therefore it cannot be contended that the employees have worked against regularly sanctioned posts. Mr. Bapat would further submit that even if it is assumed that engagement of some of the employees were against sanctioned posts, the same were made only temporary for conducting walk-in interviews or some sort of written test and the same cannot be equated with regular appointments made following the process of selection. That therefore the employees have not acquired any right to seek regularisation. M. Bapat would submit that the Hospitals in which the engagement are made are not industrial establishments within the meaning of Payment of Wages Act, 1936. That the complaints filed by the employees proceeded on their alleged rights under Clause 4-C of Model Standing Orders, which do not apply to the establishments of the Municipal Corporation. He would rely upon judgment of this Court in Sandip Baliram Sandbhor and Ors. vs. Pimpri Chinchwad Municipal Corporation and Others[3] in which Talera Hospital of the Pimpri Chinchwad Municipal Corporation is held to be not an industrial establishment. He would also rely upon judgment of this Court in Mangal Bharat Shinde (supra) in which again it was held that Talera 2016(3) Mh.L.J. 562 ___Page No.39 of 70___ Hospital is not an industrial establishment. Referring to the evidence of Smt. Manju Walmik Koli, one of the employees, Mr. Bapat would submit that her admissions have been given about temporary nature of the appointment. Mr. Bapat would also rely upon judgment of this Court in Medical Superintendent, Rural Hospital and Anr. vs. Rajashree Lakshman. Mr. Bapat would pray for dismissing the Petitions filed by the employees and for allowing the Petitions filed by Municipal Corporation.

14) Rival contentions of the parties now fall for my consideration.

15) Before considering the issue of permanency demanded by the employees, it would first be necessary to deal with the issue of payment of wages to the employees at the minimum of pay scale, which relief is already granted by the Industrial Court and which is the subject matter of challenge by the Municipal Corporation in Petitions filed by it. The employees have been engaged by the Municipal Corporation on temporary basis on fixed honorarium and therefore, it is the contention of Municipal Corporation that they do not have a right to claim wages higher than the one indicated in their respective appointment orders.

16) It is first necessary to draw a distinction between workers who are engaged through contractor and employees who are directly employed by the Municipal Corporation but on fixed term contract basis. The employees involved in the present petitions fall in the latter category. They are not the workers of a contractor to whom any contract is awarded by the Municipal Corporation. The employees are directly engaged by the Municipal Corporation and there is a contract of employment between them. This is also not a case where the employees are engaged on a project for which posts are sanctioned only during currency of that project. The case involves deployment of staff by the Writ Petition No.8801 of 2003 decided on 26/06/2024. ___Page No.40 of 70___ Municipal Corporation in its hospitals, dispensaries, etc. either because regular posts are not filled up or extra staff is required to handle the workload. The principle of ‘equal pay for equal work’ would not apply to cases were workers are engaged through a contractor or where the engagement is against the project. The issue is whether the said principle can be ignored when two staff nurses, directed employed by Municipal Corporation and deployed in same hospital for performing same work can draw different wages?

17) The issue relating to payment of wages to temporary employees employed by Governments and their instrumentalities is no more than res integra and the law in this area is now well settled by the judgment of the Apex Court in Jagjit Singh (supra). After considering its previous judgments on the subject, the Apex Court held that the principle ‘equal pay for equal work’ needs to be made applicable when temporary employees perform same work as that of regular employees. The Apex Court held that employee engaged for same work cannot be paid less than another employee, who performs same duties and responsibilities, especially in a welfare State. The Apex Court held in paragraph 58, 60 and 61 of the judgment as under:

58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. xxx ___Page No.41 of 70___

60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work" summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.

61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.

18) The Industrial Court has relied upon the Apex Court judgment in Jagjit Singh (supra) while passing the impugned judgment and order. It has conducted factual enquiry as to whether the Complainants before it were performing the same work as that of regular employees. After conduct of such inquiry, the Industrial Court has arrived at a finding that the work performed by contract employees is same as that of regular employees, both being deployed in hospitals. Even otherwise, it would be ___Page No.42 of 70___ imprudent to contend that staff nurses engaged on temporary basis in a hospital would perform duties different than their counterparts engaged on regular basis. There is no doubt to the position that all the employees involved in the present Petitions are engaged on paramedical duties in Hospitals and Dispensaries of the Municipal Corporation and it can hardly be contended that there is any difference in the duties and responsibilities performed by them in comparison to the regular employees employed in the hospital. It is not even the case of Municipal Corporation that there is any vast difference in duties and responsibilities. Even otherwise, it would not be appropriate for this Court to interfere in finding of the fact recorded by the Industrial Court about performance of same duties and responsibilities by the employees involved in the present Petitions as that of the regular employees of the Municipal Corporation.

19) The law expounded by the Apex Court in Jagjit Singh (supra) has been reiterated in subsequent judgment in Sabha Shankar Dube V/s Divisional Forest Officer and others[5] in which it is held that in paragraph Nos.10 and 11 as under:

4. On 01st August, 2019, the status report was filed by the Central Government in which it was stated that the matter relating to equal pay for equal work for the workmen employed by the contractor is regulated by Rule 25(2)(v) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. Relevant portion of the status report is reproduced hereunder:

3. It is submitted that the DoPT has vide OM dated 29.07.2019 informed that DoPT has already issued an OM dated 07.06.1988 in respect of wages of casual labourers engaged by Ministries/Departments which is in consonance with the judgment of the Hon'ble Supreme Court in State of Punjab v. Jagjit Singh - (2017) 1 SCC 148. Para IV of the OM dates 07.06.1988 states as under:— “Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day” A copy of the OM dated 29.07.2019 along with OM dated 07.06.1988 is annexed herewith and marked as

ANNEXURE-A.

4. With regard to the implementation of the OM dated 07.06.1988 in the PSUs/Corporations under the Central Government, Department of Public Enterprises is required to be approached and consulted which will require some time.

5. The Central Government has produced OM NO. 49014/1/2017-Estt.(C)pt dated 04th September, 2019 issued to all the Ministries and Departments of Government of India reiterating OM No. 49014/2/86 Estt.

(C) dated 07th June, 1988. Relevant portion of the office memorandum is reproduced hereunder:— “No. 49014/1/2017-Estt.(C)Pf. Government of India Ministry of Personnel, PG & Pensions Department of Personnel & Training North Block, New Delhi Dated: 4th September, 2019 OFFICE MEMORANDUM Subject: ‘Equal pay for Equal Work’ for Casual workers: Compliance with earlier instructions and Hon'ble Court's Judgments thereon The undersigned is directed to refer to this Department's ___Page No.45 of 70___ O.M. No. 49014/2/86-Estt.(C) dated 07.06.1988 wherein it was, inter alia, stated that: -Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day. - In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour & Employment or the State Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. - Persons on daily wages (casual workers) should not be recruited for work of regular nature.

2. The above instructions have been issued keeping in view the judgements of the Hon'ble Supreme Court. It is reiterated that it is the responsibility of all Ministries/Departments to follow the above instructions in letter and spirit.”

6. The Central Government has also placed on record OM No. W-02/0038/2019-DPE (WC)-GL-XVIII/19 dated 13th September, 2019 issued by Ministry of Heavy Industries & Public Enterprises Department of Public Enterprises directing all administrative Ministries/Departments that all the casual workers/daily wagers employed by the Central Public Sector Enterprises (CPSEs) be paid wages equivalent to the minimum of the relevant pay scale plus dearness allowance. Relevant portion of the office memorandum is reproduced hereunder:— “No. W-02/0038/2019-DPE (WC)-GL-XVIII/19 Government of India Ministry of Heavy Industries & Public Enterprises Department of Public Enterprises ………Public Enterprises Bhawan, Block No. 14, CGO Complex, Lodhi Road, New Delhi-110003.Dated, the 13th September, 2019 OFFICE MEMORANDUM Subject: Equal pay for Equal work’ for Casual Workers: Compliance with Hon'ble Courts' Judgments thereon-reg. On the above subject, the undersigned is directed to refer to various instructions issued by the Hon'ble Supreme Court and also to the DOPT's OM dated 49014/1/2017- Estt.(C) pt. dated 04' September,2019.

2. The following provisions are hereby extended to casual worker/daily wager employed by Central Public Sector Enterprises (CPSEs): i. Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the ___Page No.46 of 70___ minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day. ii. In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour & Employment or the state Government/Union Territory Administration, whichever is higher as per the Minimum Wage Act, 1948. iii. Persons on daily wages (casual workers) should not be recruited for work of regular nature.

3. All CEOs of CPSEs and administrative Ministries/Departments are requested to ensure strict compliance of the above provisions.”

7. All the Departments of the Ministry of Central Government as well as PSUs under the Central Government are directed to comply with the office memorandums dated 07th June, 1988, 04th September, 2019 and 13th September, 2019 and file the status report with respect to the compliance thereof before the Central Government. The compliance report shall clarify how many casual/temporary workers were working under those PSUs and the date from which they were given benefits. The Central Government shall produce all the compliance reports before this Court on the next date of hearing. The Central Government shall circulate the copy of this order to all the Ministries and PSUs.”

14. Thus, towards implementation of Jagjit Singh (supra), the Central Government has already issued instructions to its Ministries and PSUs that where the nature of work performed by causal workers is same as that of regular employees, wages at the minimum of the payscale are required to be paid. Thus it is now a settled law that the employees who are not regular, irrespective of their nomenclature such as ‘Temporary, Work Charge, Daily Wage, Casual, Ad-hoc or Contract Basis,’ are required to be granted minimum of pay scale at the lowest grade of regular pay scale as extended to the regular employees holding the same post.

15. We may also make useful reference to the case of Ambulance Drivers engaged by various Zilla Parishads through Contractors. Such Ambulance Drivers have filed series of petitions before this Court seeking wages at the minimum of payscale relying on the judgment in Jagjit Singh. It is pertinent to note that the Ambulance Drivers are engaged through contractors and not directly by Zilha Parishads. In Dhiraj S/o. Sudhakarrao Wankhede & Ors. V. Zilla Parishad, Chandrapur and Ors., Writ Petition No. 2247 of 2014 decided on 20.11.2019, this Court held that such Ambulance drivers are entitled to be paid wages at the minimum of the payscale. The decision in Dhiraj Wankhede & Ors. (supra) was followed by this ___Page No.47 of 70___ Court in Ashok Dhondiba Meher and Ors. v. The Chief Executive Officer, Zilla Parishad, Solapur. That judgment came to be assailed by the Zilla Parishad, Solapur before the Apex Court in Special Leave Petition (C) No. 8395 of 2021, The Chief Executive Officer, Zilla Parishad, Solapur. Vs. Ashok Dhondiba Meher and Ors. By its order dated 23.03.2022 the Apex Court upheld the decision of this Court relying upon the judgment in Jagjit Singh (Supra). The Apex Court held that,

Thus extension of payscale to Ambulance Drivers is upheld by the Apex Court, even though they are not appointed by Zilha Parishads but by contractors.

21) Considering the law expounded in various judgments, in my view no palpable error can be traced in the direction issued by the Industrial Court for payment of wages in the minimum of pay scale to the employees involved in these Petitions in respect of temporary services rendered by them.

22) The Industrial Court has however, directed payment of such wages from the date of joining of service of such employees. In my view, here slight modification in the direction issued by the Industrial Court might be necessary. Some of the employees claim initial appointment ___Page No.48 of 70___ from the years 2014 or 2015 but they filed respective complaints in the year 2017. It would therefore be unfair for the Municipal Corporation if such employees are held entitled for the difference in backwages from the date of their respective appointments. It would therefore be necessary to restrict the benefit of payment of wages at the minimum of the pay scale from the dates of filing of complaints by each employees. To this limited extent, the order passed by the Industrial Court warrants modification.

23) Having dealt with issue of entitlement of the employees to wages in the minimum of pay-scale, it would now be necessary to consider their prayer for grant of benefit of permanency, for which employees have filed Petitions challenging impugned orders passed by the Industrial Court. The chart reproduced above would indicate that some of the employees are appointed during the years 2014-2015, whereas most of the others appear to have been engaged during the year

2020. As observed above, though Petitioner-Pramila K. Mane claims her initial engagement as 9 September 2014, no evidence of such engagement is produced on record and her first engagement in the YCMH appears to have been made on 7 September 2016. In any case, it is not necessary to delve deeper into this factual dispute about the exact date of initial engagement of the said Petitioner. So far as the other illustration of Vrushali Amrutkar is concerned, her first date of engagement is 20 July 2015. However, both the said Petitioners filed their Complaints in April-2017, when they apprehended that their services would be discontinued by the Municipal Corporation. Therefore, by the time, the said two Petitioners filed their respective complaints, they had rendered hardly one or two years of services. Their further continuance in service is attributable to the interim orders granted by the Courts. As indicated above, initially applications filed by them for grant of interim relief were rejected by the Industrial Court and this Court ___Page No.49 of 70___ granted order of status-quo on 31 January 2020 with a request to the Industrial Court to decide their complaints expeditiously. Thus, in respect of those employees who claim sufficiently long length of service with Municipal Corporation, their continuation of service is clearly attributable to the interim orders and not otherwise. So far as the majority of employees, who are appointed in the year 2020 are concerned, their continuation in services is owing to the interim orders passed in the present Petitions. So this is not a case where the employees have continued in service for a long period of time by the Municipal Corporation on its own. On the contrary, if no interim orders were to be passed in favour of these employees, they would not have rendered more than two to three years of service in each case. The issue is whether such employees can be granted benefit of permanency?

24) Perusal of pleadings in the Complaints filed by the employees would indicate that permanency was claimed essentially on the strength of completion of 240 days of service. By now the law relating to entitlement of an employee to secure benefit of permanency on completion of 240 days of service under Clause- 4C of Model Standing Orders is well settled as expounded by the Division Bench of this Court in Municipal Council, Tirora, Vs. Tulsidas Baliram Bindhade,8. A reference was made to the Division Bench on account of conflicting judgments of learned Single Judges of this Court. After considering the entire law on the subject, this Court held in Paragraphs 19 to 21 of Municipal Council, Tirora as under:

19. In this reference, the position emerging before us is similar. There is no conflict between the provisions of M.S.O. 4-C and the provisions of the S. 76 of the 1965 Act. In the event of the appointment having been made validly, it may be possible to invoke the provisions Cl. 4C of M.S.O. A view to the contrary would result in regularizing/validating a void act. Cl. 4C neither permits nor contemplates the same. As held in the above judgments, if the. 2016 (6) Mh.L.J. 867 ___Page No.50 of 70___ appointment is not made in accordance with the constitutional scheme, it is void abinitio and, therefore, there can be no claim to its regularization or for grant of permanency in any manner. This is all the more so as Cl. 32 of the M.S.O. clarifies that the Standing Orders are not to operate in derogation of any other law i.e. S. 76 of 1965 Act. Definitely any interpretation of Clause 4C conducive to defeating unwarranted. The Constitutional mandate is Violation of Clause 4C of the MSO may tantamount to an unfair labour practice under item 9 of Sch. IV of the 1971 Act but unless & until, other additional factors are proved on record, finding of indulgence in an unfair labour practice under item 6 of Sch. IV thereof can not be reached. As explained by the Hon. Apex Court in case of Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (supra), existence of a legal vacancy must be established & as discussed above, the power to recruit with the employer must also be demonstrated. In absence thereof, workman can not succeed in proving the commission of unfair labour practice under item 6 by the employer. These two ingredients, therefore, also must be established when benefit of Cl. 4C is being claimed. Unless availability of a vacancy is shown or then power with the employer to create the post and to fill it is brought on record, mere continuation of 240 days can not and does not enable the workman to claim permanency by taking recourse to Cl. 4C read with item 9 of Sch. IV of 1971 Act. Clause 4C does not employ word “regularisation” but then it is implicit in it as no “permanency” is possible without it. Conversely, it follows that when a statutory provision like S. 76 disables the employer either from creating or filling in the posts, such a claim can not be sustained. This also nullifies the reliance upon the judgment of learned Single Judge in case of Maharashtra Lok Kamgar Sanghatana Vs. Ballarpur Industries Limited (supra) where the employer was a private Company not subjected to such regulatory measures by any Statute and enjoyed full freedom to create the posts and to recruit. One of us (B.P. Dharmadhikari, J.) is party to the judgment of this Court in Raymond UCO Denim Private Ltd. Vs. Praful Warade & Ors. (supra) which again needs to be distinguished for the same reasons. The judgment of learned Single Judge in case of Indian Tobacco Company Ltd. vs. The Industrial Court and Ors. (supra), judgment of Hon'ble Apex Court affirming it or then judgment of Hon'ble Apex Court reported at Western India Match Company Ltd. and Workmen are all considered therein & are distinguishable as the same do not pertain to the province of public employment or consider inherent Constitutional restraints (the suprema lex – see Mahendra L. Jain v. Indore Development Authority and others (supra) and Cl. 32 of the MSO. For same reasons, law laid down by the Full Bench judgment of this Court in 2007 (1) CLR 460 2007 (1) Mah. L.J. 754 Gangadhar Balgopal Nair Vs. Voltas Limited & Anr. does not advance the cause of workmen. The Division Bench of this Court in May & Baker Ltd. v. Kishore Jaikishandas Icchaporia (supra) while construing Section 10- A(3) held that the expression "other law" would not refer to the model standing orders or the certified standing orders since they are laws made under the provisions of parent act itself and not under any other law. The Model Standing Orders and Certified Standing Orders, held the Division Bench, "are laws no doubt but they are laws made under the provisions of the Act". They were held not to be ___Page No.51 of 70___ provisions under any other law. This discussion therefore shows how these words “in derogation of any law for the time being in force” in Cl. 32 of MSO need to be understood & does not help Adv. Jaiswal or Adv. Khan.

20. In Vicechancellor, Lucknow University vs. Akhilesh Kumar Khare & Anr. (supra) relied upon by Adv. Parihar, Hon. Apex Court follows its Constitution Bench in Umadevi (III) and while rejecting relief of regularization to the daily wagers who were engaged in public employment without proper procedure, grants them compensation of Rs. 4 Lakh each by way of compassion. This judgment does not consider any welfare labour legislation and, therefore, can not provide direct answer to the reference made. Judgment of this Court taking similar view in the light of 1971 Act in the case of Punjabrao Krishi Vidyapeeth, Akola Vs. General Secretary, Krishi Vidyapeeth Kamgar Union & Anr. (supra) is already considered above. The Division Bench of this Court in State of Maharashtra and Anr. Vs. Pandurang Sitaram Jadhav (supra) finds that the respondents before it were employed as daily wagers in the establishment of the government milk dairy for a longer period of 12 to 20 years. There were no sanctioned posts and vacancies in existence in the concerned department. Respondents failed to demonstrate that their appointments were made in accordance with the procedure prescribed for selection. The Division Bench finds it wholly unjust to direct the appellant State Government to grant permanency to the respondents. It points out that the provisions of Model Standing Orders are subject to the Rules regulating selection and appointment so also subject to the constitutional scheme of public employment. Respondents Daily wagers are declared to possess no legal right to claim permanency. Order passed by the learned Single Judge to the contrary have been quashed. State Government is held obliged to make appointments in adherence to the constitutional scheme of Public employment. Respondents Daily Wagers appointed without following the prescribed procedure for selection by passing public participation did not acquire any legal right to claim permanency. It is apparent that no inconsistency exists and cannot be worked out in State of Maharashtra & Anr. Vs. Pandurang Sitaram Jadhav as also Pune Municipal Corporation v. Dhananjay Prabhakar Gokhale (supra) on one hand and Ballarpur Industries Limited Vs. Maharashtra Lok Kamgar Sanghatana (supra) on the other hand. Status of employer, nature of employment and inherent Constitutional limitation on public employer or absence of such fetters on any private employer or absolute freedom available to it to create post/s and recruit, are some of the distinguishing features which prohibit this exercise.

21. Thus, in the light of this discussion, it follows that in absence of vacant sanctioned posts with the Municipal Council, a workman who has put in continuous service of 240 days or more in span of 12 months, can not invoke Clause 4C of the MSO to claim either permanency or regularization. We accordingly answer the question referred. Registry to place the writ petitions before the learned Single Judge as per roaster assignment for further consideration. ___Page No.52 of 70___ 25) Thus, mere completion of 240 days of service cannot be a factor for granting of benefit of permanency to temporary employees in State instrumentality in absence of existence of permanent sanctioned posts. Though Mr. Bapat has canvassed extensive submissions about Hospitals of the Municipal Corporation being treated as industrial establishments and applicability of Model Standing Orders, in my view considering the judgment of this Court in Municipal Council, Tirora (supra), it is not necessary to delve deeper into this aspect. However, a useful reference in this regard is also required to be made to a detailed judgment delivered by this Court in Sandip Baliram Sandbhor (supra) dealing with Talera Hospital of the same Municipal Corporation, in which this Court has held in paragraphs 42 and 43 as under:

42. On the issue of applicability of the Standing Orders Act, Mr. Bapat relied upon the decisions of the learned Single Judge of this Court in the case of Pune Municipal Corporation Vs. Keshav Ganpat Bhise and Another,(1983) 2 BCR 715 in addition, the Apex Court in the case of Messrs. Alloy Steel Project Vs. The Workmen,(1971) 1 SCC 536 to contend that the phrase ‘Establishment’ would mean place of work and merely because some part of the Corporation is covered under the definition of Industrial Establishment, the other department cannot be stated to be covered when it does not fulfill the conditions of being an industrial establishment. In the case of Pune Municipal Corporation (supra), the learned Single Judge considered the issue of subsistence allowance payable to an employee who was working as a Mixer Driver in Roads Division under Standing Orders Act. The learned Single Judge noted that the Division where the employee was employed conformed to the definition of Establishment and held that that particular Division or Establishment in which the workmen was working was covered by the Standing Orders Act and therefore, the employee was entitled to relief. In the case before the Apex Court, the Apex Court held that the phrase ‘Establishment’ is something different from a Company as defined under the Companies Act. It observed that suppose a Company has office premises and a workshop, which are entirely distinct, then the Act may apply to the factory and not to the other establishment if the criterion were not fulfilled there. In the present case, there cannot be any dispute that there is no manufacturing activity going on in Talera hospital. The reliance place by the Industrial Court on the decision of the Division Bench of Delhi High Court in the case of Indraprastha Medical Corporation vs. NCT of Delhi and Ors. 2006(110) FLR 1176 cannot be said to be misplaced.

43. Mr. Vaidya contended that the decision of the Apex Court in Alloy Steel was given in different fact and circumstances where the Apex Court was only considering whether the unit which had been recently ___Page No.53 of 70___ set up was entitled to certain exemptions under the provisions of law and the issue regarding a definition of establishment, did not arise directly for consideration. However, Mr. Vaidya has not been able to substantiate that, the irrespective of there being a distinct department, which does not conform to definition of an Establishment, because the other department conforms to the definition of Establishment, Industrial Employment (Standing Orders), would apply to all. Nothing is shown why the decision of the Industrial Court on this count is incorrect in law. Mr. Vaidya however contended that there is no such factual foundation led by the Respondents and there is a finding of fact that the Petitioners are employees of the Municipal Corporation. No benefit can be taken from this observation in the Judgment, when the Industrial Court has categorically proceeded on the basis that Talera hospital is severable. If the position of law is that there can be distinction between different departments, then it was up to the Petitioner to show that there was no such distinction and the Standing Orders Act applied to the hospital. In any case, an issue that would have wider implications as far as the Respondents are concerned need not concluded finally as the following discussion show that even if the Standing Orders so apply, the Petitioners are not entitled to succeed.

26) In Mangal Bharat Shinde (supra) another Judge of this Court (S.C. Gupte, J.) has followed the decision in Sandip Baliram Sandbhor (supra) and has held that the Industrial Establishment (Standing Orders) Act does not apply to Talera Hospital of the Municipal Corporation. Thus, on both the counts of non-applicability of the Standing Orders as well as impermissibility to grant permanency under Clause- 4C of the Model Standing Orders, in my view no case is made out by the employees for grant of relief of permanency.

27) Mr. Kulkarni and Dr. Warunjikar have strenuously submitted that employees are working against sanctioned posts and reliance in this regard is placed on order dated 23 August 2013 issued by the Municipal Commissioner with regard to sanction of staffing pattern of YCMH. Perusal of order dated 23 August 2013 shows that the same is issued in exercise of powers under Section 67 (3) of the MMC Act seeking to sanction various posts on the establishment of YCMH. However, at the end of the said order dated 23 August 2013 there is a clear caveat as under:- ___Page No.54 of 70___ सद्याच्या कायरत पदांचा आढावा घेऊन संख्या निनश्चि त करण्यात आली असल्याने नवीन पद निनर्मि ती / पदना ा ध्ये बदल करणे इ. बाबत स्वतंत्रपणे परिरपूण प्रस्ताव प्रशासन निवभागाकडे सादर करणे आवश्यक राहील.

28) Under Section 67(3) of the MMC Act, the entire executive power for the purpose of carrying out provisions of the Act vests in the Municipal Commissioner and it appears that in pursuance of exercise of that power, the Municipal Commissioner is shown to have sanctioned the staffing pattern in respect of YCMH Hospital. However, under Sub Section 4 of Section 51 of the MMC Act, no new posts of officers and servants of the Corporation can be created without prior sanction of the State Government. Section 51 reads thus:

51. Number, designations, grades, etc. of other municipal officers and servants. (1) Subject to the provisions of sub-section (4), the Standing Committee shall from time to time determine the number, designations, grades, salaries, fees and allowances of auditors, assistant auditors', officers, clerks and servants to be immediately subordinate to the Municipal Chief Auditor and the Municipal Secretary respectively. (2) The Commissioner shall, from time to time, prepare and bring before the Standing Committee a statement setting forth the number, designations and grades of the other officers and servants who should in his opinion be maintained, and the amount and nature of the salaries, fees and allowances which he proposes should be paid to each. (3) The Standing Committee shall, subject to the provisions of subsection (4), sanction such statement either as it stands or subject to such modifications as it deems expedient. (4) No new posts of the officers and servants of the Corporation shall be created without the prior sanction of the State Government:

29) Thus, if the order dated 23 August 2013 results in creation of any new post, the Municipal Commissioner is not vested with power of creation of posts nor Municipal Corporation, on its own, can create a new post. Municipal Commissioner can merely authorise temporary appointments for a period of 6 months under sub-section (3) of Section ___Page No.55 of 70___

53. However the ultimate source of power for sanctioning creation of posts is with the State Government under Section 51(4). Section 53 of MMC Act provides thus:

53. Power of appointment in whom to vest: (1) The power of appointing municipal officers, whether temporary or permanent, 2[to the posts equivalent to or higher in rank than the post of the Assistant Municipal Commissioner] shall vest in the Corporation: Provided that temporary appointments for loan works 3[to the posts equivalent to or higher in rank than the post of the Assistant Municipal Commissioner] may be made for a period of not more than six months by the Commissioner with the previous sanction of the Standing Committee on condition that every such appointment shall forthwith be reported by the Commissioner to the Corporation and no such appointment shall be renewed on the expiry of the said period of six months without the previous sanction of the Corporation. (2) Save as otherwise provided in sub-section (1), the power of appointing municipal officers and servants, whether temporary or permanent, under the immediate control of the Municipal Chief Auditor and the Municipal Secretary shall vest in the Municipal Chief Auditor or the Municipal Secretary, as the case may be, subject, in either case, to the approval of the Standing Committee unless the said Committee in any particular case or class of cases dispenses with this requirement. (3) Save as otherwise provided in this Act, the power of appointing municipal officers and servants whether permanent or temporary vests in the Commissioner: Provided that such power in respect of permanent appointments shall be subject to the statement for the time being in force prepared and sanctioned under section 51: Provided further that no temporary appointment shall be made by the Commissioner for any period exceeding six months and no such appointment carrying a salary equivlent to higher in rank than the post of clerk shall be renewed by the Commissoner on the expiry of the said period of six months without the previous sanction of the Standing Committee.

30) This is the reason why the Municipal Commissioner apparently included a caveat for sending complete proposal to the administrative department since creation of any post on the establishment of Municipal Corporation requires previous sanction of the State Government. The order dated 23 August 2013 cannot be read to mean that Municipal ___Page No.56 of 70___ Commissioner has sanctioned any post in YMCH since he has no authority to do so.

31) In fact, lack of authority on the part of local bodies to create any post on its establishment is the reason why the larger Bench in Municipal Council,Tirora (supra) held that it is impermissible to grant the benefit of permanency for temporary employee by having recourse to provisions of Clause-4C of the Model Standing Orders.

32) In Raigad Zilla Parishad Vs. Kailash Balu Mhatre, 9 a learned Single Judge of this Court (Ravindra V. Ghuge, J.) while following the judgment in Municipal Council, Tirora (supra) took note of the fact that the employees therein had worked for substantial period of time and therefore instead of rejecting their case for permanency altogether, this Court thought it appropriate to direct sending of a proposal to the State Government by the concerned Zilla Parishad for sanction of posts for absorption of the employees therein. In the present case, the course of action adopted in Raigad Zilla Parishad (supra) cannot be followed in view of the fact that none of the employees have rendered sufficiently long period of service (excluding the one covered on account of interim orders passed by courts) so as to direct sending of proposals for creation of posts.

33) The contractual employees in the present case are seeking the relief of permanency in the services of a State instrumentality. No discussion on the issue of regularization of temporary employees in service can be complete without making reference to the Constitution Bench Judgment in Secretary, State of Karnataka V/s. Umadevi and Ors.10 which marks a watershed moment in the development of law. 2022 (2) Mh.L.K. 146. 2006 II CLR 261-SC ___Page No.57 of 70___ relating to regularization of services. In paragraph 43 of the judgment, the Apex Court has held as under:

43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

34) The sound exposition of law by the Apex Court in Umadevi now renders regularization of casual, ad-hoc, temporary or contractual ___Page No.58 of 70___ employees impermissible even if they have rendered long years of service. Even though a one-time exception was carved out by Apex Court in Umadevi for regularisation of irregularly appointed employees against sanctioned posts completing 10 years of service, the said exception cannot be invoked in the present case considering the fact that neither the employees have completed 10 years of service nor their services are continued without interception by the Court. In Umadevi period of 10 years’ service is prescribed for one time exception only if the same is without intervention by Courts/Tribunal. Para 53 of judgment in Umadevi reads thus:

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa 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 abovereferred 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 one-time 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. (emphasis and underlining added)

35) Thus, an employee continuing in service for more than 10 years but on account of interim orders passed by the Court, would not be entitled to even one time exception of regularisation recognised in paragraph 53 of the judgment in Umadevi.

36) It is often contended that the Constitution Bench Judgment in Umadevi does not circumscribe powers of an industrial adjudicator in ___Page No.59 of 70___ granting regularization on completing 240 days of service even in State instrumentalities. Very often reliance is placed on judgment of the Apex Court in Maharashtra State Road Transport Corporation and Anr. Vs. Casteribe Rajya Parivahan Karmchari Sanghatana 11 and Hari Nandan Prasad V/s. Employer I/R to Management of FCI & Anr.12 However, even in Hari Nandan Prasad (supra), which is decided after considering the judgment in MSRTC Vs. Casteribe it is held that the Industrial/Labour Courts can direct regularization only if similarly placed workmen are regularized or if there is any scheme formulated by the employer for regularization. The Apex Court held in Hari Nandan Prasad as under:

13. Subsequently, the said Resolution was modified by Government Resolution dated 15.09.2006. In the said Resolution, the column specifying “Pay Scale” was substituted with column “Combined Permissible Monthly Pay + Telephone & Travel Expenses”. However, there was no change in the decision of the government on filling up the posts on contractual basis. Government Resolution dated 15.09.2006 stipulates the terms and conditions of the contractual appointments. Clauses 'A', 'B', 'C' and 'D' read as under:- “A) The appointment of the said posts would be completely on contractual basis. These officers/employees would not be counted as government employees. B) The said appointments should be made on contract basis firstly for 11 months. After 11 months the term of the agreement could be increased from time to time if necessary. Whereas, the appointing authority would take the precaution while extending the terms in this manner that, at one time this term should not be more than 11 months. The appointment in this way could be made maximum three times. Thereafter, if the competent authority is of the opinion that the reappointment of such candidate is necessary then such candidate would have to again face the selection process. ___Page No.62 of 70___ C) The concerned appointing authority at the time of the appointment would execute an agreement with the concerned candidate in the prescribed format. The prescribed format of the agreement is given in Appendix 'B'. It would be the responsibility of the concerned office to preserve all the documents of the agreement. D) Except for the combined pay and permissible telephone and travel expenses (more than the above mentioned limit) any other allowances would not be admissible for the officers/employees being appointed on contract basis.”

14. The intention of the State Government to fill up the posts of Legal Advisors, Law Officers and Law Instructors on contractual basis is manifest from the above clauses in Government Resolutions dated 21.08.2006 and 15.09.2006. While creating 471 posts vide Resolution dated 21.08.2006, the Government made it clear that the posts should be filled up on contractual basis as per terms and conditions prescribed by the Government. As per clause 'B' of the Government Resolution dated 15.09.2006, the initial contractual period of appointment is eleven months and there is a provision for extension of contract for further eleven months. Clause 'B' makes it clear that the appointment could be made maximum three times and extension of contract beyond the third term is not allowed. If the competent authority is of the opinion that the reappointment of such candidates is necessary then such candidates would again have to face the selection process.

15. It is relevant to note that the respondents at the time of appointment have accepted an agreement in accordance with Appendix 'B' attached to Government Resolution dated 15.09.2006. The terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the government. We may usefully refer to the relevant clauses in the format of the agreement which read as under:- “1. The First Party hereby agrees to appoint Shri/Smt._________ (Party No. II) as a ________ on contract basis for a period of 11 months commencing from __________ to __________ (mention date) on consolidated remuneration of Rs.___________ (Rupees _____________ only) per month, and said remuneration will be payable at the end of each calendar month according to British Calendar. It is agreed that IInd party shall not be entitled for separate T.A. and D.A. during the contract period….

2. ….......

3. …......

4. …........ ___Page No.63 of 70___

5. Assignment of 11 months contract is renewable for a further two terms of 11 months (i.e. total 3 terms), subject to the satisfaction of Competent Authority, and on its recommendations.

6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government.”

16. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents’ engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.

17. The High Court did not keep in view the various clauses in the Government Resolutions dated 21.08.2006 and 15.09.2006 and also the terms of the agreement entered into by the respondents with the government. Creation of posts was only for administrative purposes for sanction of the amount towards expenditure incurred but merely because the posts were created, they cannot be held to be permanent in nature. When the government has taken a policy decision to fill up 471 posts of Legal Advisors, Law Officers and Law Instructors on contractual basis, the tribunal and the High Court ought not to have interfered with the policy decision to hold that the appointments are permanent in nature.

39) Thus, in Anita the Apex Court held that mere sanctioning of posts does not mean that the posts automatically become permanently sanctioned posts. The Apex Court further held that having accepted contractual appointments, the employees therein were estopped from challenging the terms of their appointment. The judgment in Anita would squarely apply to the facts of the present case.

40) In Medical Superintendent, Rural Hospital (supra) this Court has dealt with cases of temporary employees engaged in various State Government hospitals, who had sought the relief of permanency. The employees therein were engaged for a short period of time mostly ___Page No.64 of 70___ against leave vacancies. However, on account of interim orders passed by the Industrial Court, the said employees continued in services for a long period of time. In that case, the employees relied upon rendering of services against sanctioned vacant posts. However, this Court refused to grant the relief of permanency to those employees even though they had rendered 23/24 years of service on account of interim and final orders passed by the Industrial Court and interim order passed by this Court. This Court also considered recent judgment of the Apex Court in Vinod Kumar and Others Vs. Union of India and Ors.14 and held in paragraph 29 to 33 as under:- 29) Respondents were engaged initially for a period of 3 months by giving them breaks after each spell of 29 days. They had rendered hardly one or two years of service when the filed complaints before the Industrial Court. No right got created in their favour to seek the benefit of permanency when their complaints were decided by the Industrial Court. In my view, therefore the relief of permanency granted to the Respondents by the Industrial Court of completion of 240 days of service is wholly unsustainable.

30) Mr. Pakale has relied on judgment of this Court in Chief Officer, Alibaug Municipal Council (supra). However the facts in the said case were entirely different. The Respondents therein were initially engaged as Badli Safai Kamgars and upon sanction of 13 posts in 1997, Standing Committee of the Municipal Council adopted a resolution for their regularisation and a proposal to that effect was sent to the State Government, which was rejected. Their services were terminated by withdrawing pay scales and they were reinstated as daily wage workers. The Industrial Court allowed their complaints on the ground of completion of 240 days of service under MSO 4C. This Court held that regularisation as per clause 4C of MSO was impermissible but did not disturb the relief of regularisation as Respondents therein complied with one time exception in para 53 of Umadevi as the appointment was held to be against sanctioned posts and completion of 10 years of service (without Court intervention) as on the judgment in Umadevi. The judgment in Chief Officer, Alibaug Municipal Council is thus clearly distinguishable as initial engagements of Respondents were not against sanctioned posts, they did not complete 10 years of service without Court’s intervention and their initial appointments were made only to meet temporary exigencies of service such as regular incumbent’s deputation on training, leave, absence, etc. Therefore Respondents are not entitled to the benefit of one time exception in para-53 of the judgment in Umadevi.. SLP © 2241-42 of 2016 decided on 30 January 2024 ___Page No.65 of 70___ 31) Before parting, a quick reference to the recent judgment of the Apex Court in Vinod Kumar & Ors. vs. Union of India & Ors. would be necessary. The Apex Court had an occasion to once again visit the issue of regularisation of service of government employees. The Apex Court has dealt with case of Accounts Clerks in the office of Divisional Regional Manager, who were appointed to ex-cadre posts after conducting selection process involving written test and viva voce interviews in pursuance of Notification dated 21 February 1991. After putting in considerable period of service, the Appellants approached Central Administrative Tribunal. Their original applications were dismissed by the Tribunal holding that their appointments were temporary and for specific scheme. After their Writ Petitions were dismissed by the High Court, the Appellants approached the Supreme Court. The Apex Court, after referring to its decision in Umadevi has held in paragraphs 5, 6, 7, 8 and 9 as under: "5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.

6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).

7. The judgment in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures ___Page No.66 of 70___ of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder: -- --

8. In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations.

9. Accordingly, the appeals are allowed. The judgment of the High Court is set aside, and the appellants are entitled to be considered for regularization in their respective posts. The respondents are directed to complete the process of regularization within 3 months from the date of service of this judgment."

32) I am afraid the judgment in Vinod Kumar again does not assist the case of Respondents. In Vinod Kumar, the appointments were made after conducting selection process involving written test and viva voce interviews in pursuance of a Notification. In the present case, Respondents are back door entrants who are engaged without conducting any selection process.

33) Mr. Pakale has contended that by now it has been 23-24 years that Respondents continue to be in service and that they deserve to be regularised in service at least at some point of time if not from the date of completion of 240 days’ of service. As observed above, Respondents do not satisfy the criteria of one-time exception in para 53 of judgment in Umadevi. Their continuation in service is owing to the interim and final orders passed by the Industrial Court. Since impugned Order of the Industrial Court is found to be erroneous, their continuation in service is actually void. They have earned salaries for continuation in service all these years and now it is not possible to recover the same. However, to expect regularisation of their appointments on the strength of erroneous continuation in service is like adding premium to the illegality. Public exchequer is already bled by making two persons works against one post. Regularising services of Respondents would put additional burden on the public exchequer. In my view therefore, mere continuation in service during pendency of litigation would not be a fit ground to grant them regularisation. (emphasis added)

41) Thus, no right is created in contractual or temporary employees to claim regularization/permanency merely on the strength of few years ___Page No.67 of 70___ of casual/contractual service. PCMC being an instrumentality of State is under obligation to fill up vacant sanctioned post by conducting regular selection. Contractual appointees having secured temporary engagements for 6 months by participating in selections held for effecting such contractual engagements cannot brand themselves to be irregularly appointed employees on vacant sanctioned posts. By their very nature, the initial engagements of the employees covered by these petitions were for fixed period. No right is acquired on the strength of such engagements to remain in services of the Municipal Corporation. I am therefore of the view that the employees covered by these petitions cannot be granted permanency in service. With a view to avoid creation of any further hopes in their minds, the interim protection granted in their favaour must also come to an end.

42) After considering overall conspectus of the case, no case is made out by the employees for grant of relief of permanency and the Industrial Court has rightly refused the same. No interference in the orders of the Industrial Court, to the extent of denial of relief of permanency, is therefore warranted.

43) In my view therefore, all the Writ Petitions, filed by the employees deserve to be dismissed. Though relief of payment of wages at the minimum of pay-scale granted by the Industrial Court warrants no interference, slight modification with regard to the date from which said benefit is to be granted is necessary.

44) I accordingly proceed to pass following order:

(i) It is held that employees involved in the Petitions are not entitled to the relief of permanency in service and the orders ___Page No.68 of 70___ passed by the Industrial Court refusing permanency to the employees do not warrant any interference.

(ii) The employees covered in the Petitions are entitled to be paid wages in the minimum of pay-scale applicable to regular employees holding similar posts w.e.f. the date of filing of Complaints by each one of them. To this limited extent of the date from which this benefit is to be granted, the orders passed by the Industrial Court shall stand modified.

(iii) The Municipal Corporation shall pay to all employees covered by these petitions difference in the wages arising out of grant of benefit of wages in minimum of pay scale within a period of three months.

(iv) Interim orders granted in the Petitions shall stand vacated.

45) With the above directions all the Petitions stand disposed of.

46) Interim applications stand disposed of. [SANDEEP V. MARNE, J.]

47) After the judgment is pronounced, the learned counsel appearing for the employees pray for continuation of interim order that was operating during pendecncy of the Petitions. The request is opposed by the learned counsel appearing for Municipal Corporation. ___Page No.69 of 70___ 48) Considering the facts and circumstances of the present case, the interim order shall operate for a period of four weeks from today. [SANDEEP V. MARNE, J.] ___Page No.70 of 70___