Permanency Of Post Not To Be Granted Merely On The Completion Of Certain Days Of Service; But To Be Considered If Scheme Present For The Same:Bombay High Court
The Bombay High Court Bench of Justice Sandeep V Marne considered a petition against an order passed by the Industrial Court allowing Respondents grant of permanency as well as other benefits. The Court ordered that simply completion of 240 days of service is not enough to mandate permanent post, however, in case creation of permanency was in consideration, via scheme provision or...
The Bombay High Court Bench of Justice Sandeep V Marne considered a petition against an order passed by the Industrial Court allowing Respondents grant of permanency as well as other benefits. The Court ordered that simply completion of 240 days of service is not enough to mandate permanent post, however, in case creation of permanency was in consideration, via scheme provision or otherwise, then the case of employees must be considered fairly.
Background Facts
The petitioner in this case was Directorate of Medical Education and Research, who had given the staffing pattern for Rajshri Government Medical College (“the College”), under which certain regular and contract posts were sanctioned. The contract posts included academic, technical and administrative posts. Next, the Government had constituted a committee for the selection process for the filling of contractual posts.
These posts were sanctioned by the Government in May 2003, but the College had started making contractual appointments for technical categories back in January. The names of some of these employees (“respondents”) were sponsored by the Regional Employment Exchange. Thus, before the Selection Committee was constituted, the respondents had already been selected via appointment orders issued in January 2003.
The employees had approached the Industrial Court to seek the benefit of permanency on completion of 240 days of service as well as to restrain the petitioners from discontinuing their services. The Industrial Court directed the grant of permanency. Aggrieved by the same, Directorate of Medical Education and Research filed a petition with the Bombay High Court, against the respondents, the employees.
Findings of the Court
The Court referred to Municipal Council Tirora V/s. Tulsidas Baliram Bindhade 2016 (6) Mh.L.J. 867 which had held that permanency cannot be granted in the services of the Government and its Instrumentalities in accordance with Clause 4(C) of the Model Standing Orders and that the Industrial Adjudicator cannot indirectly create posts on establishment of the Government and its Instrumentalities by issuing order for permanency.
Thus, the Court ordered that in view of Municipal Council, permanency cannot be granted to employees merely on the strength of completion of 240 days of service. However, it was also noted that evidence indicates that petitioners themselves were considering regularizing services of employees working on contract basis in the college. Considering this, Justice Sandeep V Marne noted the case of respondents for grant of regularisation needs to be considered by the State Government.
Further, the Court highlighted the case of Hari Nadan Prasad V/s. Employer I/R to Management of FCI & Anr. (2014) 7 SCC 190, where the Supreme Court had held that an Industrial Adjudicator can direct regularisation in the services of Government and its instrumentalities if there is a scheme formulated for such regularisation.
Thus, while disposing the Writ Petitions, the Court decided that though the Industrial Court order directing permanency is not sustainable, the employees cannot be denied opportunity of having their cases considered for regularisation. Hence, the petitioners were directed to forward employees' proposals 'of consideration of grant of regularisation by converting the posts occupied by them on contract basis as regular posts'.
Advocates who appeared in this case:
For Petitioner(s): Mrs. Vaishali S. Nimbalkar, AGP
For Respondent(s): Mr. Pandit Kasar
Case Title: The State of Maharashtra, through Directorate of Medical Education and Research & anr Versus Smt. Sunita Shankarrao Vhatkar & Ors.