Long-Term Continuance Of Employment Does Not Create Inherent Right To Regularization: Bombay High Court

Background of Facts

The Pen Municipal Council (Petitioner), established under the Maharashtra Municipal Councils, Nagar Panchayats, and Industrial Townships Act, 1965, engaged Shekhar B. Abhang (Respondent), as a clerk on 04.12.1997, to address service exigencies. In 1998, the Respondent, along with three other clerks, filed a complaint in the Industrial Court, Thane, fearing termination. The court ruled in their favor on 06.09.2001, preventing their termination, which allowed the Respondent to continue as a clerk. Then on 30.07.2003, the Respondent was appointed as a Tax Inspector on a temporary basis, effective from 01.08.2003. However, the Municipal Council argued that this appointment was invalid as the Respondent was not qualified, was not selected through a regular process, and bypassed senior clerks. Consequently, his service was terminated on 01.31.2004. This led the Respondent to file a complaint in the Industrial Court, alleging unfair labour practices and seeking continued employment and preference for a regular appointment as Tax Inspector. The Industrial Court issued an interim order preventing new ad hoc appointments to the Tax Inspector position if work was available. The Municipal Council challenged the complaint, arguing that the Respondent was unqualified and that the Senior Clerk position was the feeder post for Tax Inspector appointments. Then, on 07.03.2009, the Industrial Court directed the Municipal Council to regularize the Respondent as Tax Inspector and provide him with all consequential benefits. Thus, the Petitioner filed a writ petition challenging the order of the court.

The Petitioner contented that the Industrial court order was erroneous in directing the regularization of the Respondent's services as a Tax Inspector. The Petitioner argued that the Respondent was not qualified for the position, as the feeder post for promotion was senior clerk, while the Respondent was the junior-most clerk employed temporarily. His six-month appointment lacked a regular selection process, conferring no right to seek regularization. Furthermore, the post of Tax Inspector, sanctioned for the Municipal Council, had been vacant since 31.06.1999 and had lapsed until revived by the Directorate of Municipal Administration on 10.04.2003, with a directive to follow due selection procedures. The Respondent's engagement for six months did not follow these procedures, including an interview, thus creating no entitlement for regularization. Consequently, the petitioner argued for the Industrial Court's order to be set aside.

The Respondent on the other hand, contended that he was not a backdoor entrant, as his name was sponsored by the Employment Exchange, which was evident from a letter by the District Employment and Self-Employment Guidance Center, Alibag, dated 14.07.2003. The Respondent maintained that his appointment followed due process, backed by a resolution adopted by the General Body of the Municipal Council. The Respondent also referenced an order dated 10.04.2003, which revived the post of Tax Inspector, and an order dated 30.08.2015, sanctioning a revised staffing pattern for the Pen Municipal Council, confirming the existence of the Tax Inspector post. The Respondent further argued that the Industrial Court did not err in directing the regularization of the Respondent, who had been working as a Tax Inspector for a considerable time, making it unjust to disturb his appointment now.

Findings of the Court

The court relied on the landmark Supreme Court Judgment of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. which established that public employment must adhere to the principles of equality enshrined in Articles 14 and 16 of the Constitution of India, and regularization can only be considered in cases of irregular (not illegal) appointments against duly sanctioned posts where the employees have worked for ten years or more without court orders. The Court observed that the Respondent's appointment was, in fact, made against a sanctioned vacant post, he was eligible to be appointed on the post and underwent selection process after his name was sponsored by the Employment Exchange and therefore, his appointment cannot be treated as a backdoor entry. Further, in addition to the six months of service, the Respondent had been working on the post of Tax Inspector for since the year 2012, meaning he had put in more than 10 years of service, and therefore, the Respondent had made a clear case for regularization of services. However, the court observed that regularization of services cannot be claimed merely based on long-term continuance of employment as this does not create any inherent right to regularization.

Based on the above observations, the court dismissed the writ petition.

Case: The Chief Officer, Pen Municipal Council & Ors. v. Shekhar B. Abhang & Ors.

Case No. W.P. (C). No. 4129/2009

Counsels for the Petitioners: Mr. Rahul D. Oak

Counsel for the Respondent: Ms. Pavitra Manesh, Mr. M.S. Topkar