1 WP No.10409/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10409/2010. Sunil Subhash Nikam Age;27 Yrs., occu.Nil. R/o Mahanubhav Galli, Parola, Tq. Parola, District Jalgaon. - PETITIONER VERSUS Municipal Council, Parola, Through Chief Officer, Parola, Tq. Parola, District Jalgaon. - RESPONDENT ***** Mr.AB Madke, Adv. h/for Mr. MS Deshmukh Advocate for Petitioner; Mr.PR Patil, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 9th DECEMBER, 2011. ORAL JUDGMENT: 1) Heard. Rule, made returnable forthwith. Heard finally. 2) The petitioner was working as Computer Training Assistant with Respondent/Municipal Council as a Daily Wager on payment of Rs.2,000/- since 3.1.2004. He canvassed, he was working continuously since it was a vacant post. He has studied 12th Std. and completed course of CCS in computer. The petitioner, based on Resolution from Municipal 2 WP No.10409/2010 Council, continued for a period of three years unblemished. He was kept on daily wages and permanency was not conferred. He was deprived for getting the benefits like other permanent employees. He has completed 240 days in each year and having placed three years service, he has been put in regular service on a meager salary though he was entitled to be branded as a permanent employee. There exists relationship of employer-employee between the petitioner and the respondent Municipal Council. 3) The petitioner challenged the acts of the municipal council in not conferring permanency to him. 4) The respondents denied that the petitioner was engaged on permanent vacant post of Computer Training Assistant on daily wage basis. It was pointed, there was no vacant and sanctioned post of Computer Training Assistant available with the municipal council. It is also denied that the petitioner has worked continuously since three years and has completed 240 days in each year. The Municipal Council claims that by virtue of Government Resolution, there operates ban on appointing any temporary, casual or daily wager against a vacant sanctioned post. Consequently, the petitioner has no right to assert any relief for permanency. 5) The learned Member of the Industrial Court did not notice any unfair labour practice under items 5,6,9 and 10 of Scheduled-IV of M.R.T.U. & 3 WP No.10409/2010 P.U.L.P.Act, 1971 (hereinafter to be referred as the said Act); and consequently, the Complaint (ULP) was dismissed. The same is questioned in this writ petition. 6) Learned Counsel for the petitioner submits that the act of not conferring permanency and keeping the petitioner as Daily Wager, amounts to unfair labour practice. The judgment of the Constitution bench in the matter of State of Karnatka Vs. Umadevi, reported in 2006 AIR SCW 1991, has been sufficiently dealt with and explained by the Division Bench in the matter of Mahindra and Mahindra Ltd., Nagpur Vs. Avinash D. Kamble and Anr. – 2008 (4) Mh.L.J. 125. He asserts, the effects and ratio in the judgment of Umadevi will not be applicable to facts in hand. 7) Learned Counsel for the Respondent/Municipal Council submits, the Municipal Council is regulated by the Rules and Specific Act under the Maharashtra Municipalities Act. Section 70 takes care of appointment of the employees. By virtue of Government Resolution dated 4th July, 2005, there was complete inhibition for employing the persons either on temporary basis or otherwise, barring engaging services on contract basis. There could not be an appointment, even on contract basis. 8) The appointment of the petitioner, as could be seen, was by virtue of Resolution No.149 dated 15.1.2005, as Computer Operator, on contract basis. He was to receive remuneration of Rs.2,000/-. The 4 WP No.10409/2010 appointment was for 11 months. This position is not disputed anywhere. He may have continued for further period, however, the basic feature of his appointment, being on contract basis and by virtue of Resolution No.149 dated 15.1.2005, makes the position quite clear. 9) The activities of the Municipal Council are governed by the special statute, viz. Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Section 75 thereof speaks of provisions regarding officers and servants, which in its terms indicate about appointment of Chief Officer, Engineer, Water Works Engineer. Heath Officer, Auditor, Education Officer and Fire Officer, including certain other officers. Section 75-A contemplates constitution of Maharashtra Municipal Services and provisions relating thereto. Section 76 informs about procedure of appointment of other officers and servants. It is explicit that a Council may, with the sanction of Director, create such post of officers and servants other than those specified in sub-sections (1) and (2) of Section 75 as it shall deem necessary for efficient execution of his duties under the Act. Appointment as per sub-clause (3) of Section 76 is by virtue of general or special orders made by the State Government. Appointments to the post created under sub-section (1) are permitted to be made by the Chief Officer from the list of the candidates selected by such Selection Committee, or such other body, as the State Government may, by general or special orders, specify. 5 WP No.10409/2010 10) The appointment of the petitioner, from the record, illustrates, it was not by virtue of any advertisement or by regular interview. It was the Resolution passed by the Municipal Council to get its employees to have imparting knowledge of computerization, the specific contract arrangement with the petitioner was enunciated. The petitioner was also aware of his position to be a contract labour as such appointment flowed from 8.12.2004 for 11 months and the resolution was passed subsequently on 15.1.2005. He, even did not get wages for earlier few days and consequently, the Municipal Council was required to pass the resolution. Thus, primarily, it is indicative that the initial appointment of the petitioner on contract basis itself was under the whims of certain authorities in Municipal Council to accommodate him and it was not a regular appointment, as contemplated under the statutory scheme within the brackets therein by following the required procedure. 11) The law is quite settled : “If appointment itself is in infraction of the rules or if it is in violation of the provisions of constitutional, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power of and province of the authority, but there has been some non-compliance within procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be mode of recruitment. 12) The judgment in the matter of Umadevi was 6 WP No.10409/2010 again referred by Hon’ble Supreme Court in the matter of Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and ors. reported in (2006) 5 SCC 127. Incidentally, the judgment relates to the activities of Municipal Council and the observations of the Lordships of the Supreme Court in para Nos.14 and 16 are of importance, which are reproduced as under : “14. The High Court, however, did not go into the aforementioned questions at all. The High Court dismissed the said writ petition only on the premise that the workmen having completed 240 days of continuous service and as they had been reinstated in service pursuant to the interim order passed by the High Court, it would not be appropriate to displace the workmen from employment and to offer other reliefs, particularly, when a relief of reinstatement can be granted for violation of the provisions of Section 6-N of the Act in view of the decision of this Court in Hindustan Tin Works Pvt. Ltd. v. Employees of M/s Hindustan Tin Works Pvt Ltd. and Others, [(1979) 2 SCC 80 : [1978] INSC 157; AIR 1979 SC 75]. However, they were directed to be paid 50% of the back wages. 16. This is one of those cases which clearly depict as to how the officers of the local-self government at their own whims and caprice have been making appointments without following the procedures laid down under the Adhiniyam. The Administrator of a Municipal Corporation is a public servant. He was bound to follow the provisions of the Adhiniyam and the Rules. It is surprising how the Respondents could be appointed even prior to creation of the temporary 7 WP No.10409/2010 posts by the State. The Appointing Authority has now taken a stand that the Respondents had been appointed in terms of the order of sanction dated 19.12.1985. The offers of appointment, precede the said date. The Respondents although purported to have been appointed as apprentices, were appointed as clerks on daily wages in the Assessment Department. Evidently, the provisions of the Apprentice Act, 1961 have also not been followed. The officers appeared to be absolutely ignorant of the provisions of the said Act. They even do not know how offers of appointment should be issued." 13) Taking survey of above situation, the factual matrix illustrate that the petitioner was employed by the Municipal Council for discharge of certain temporary work of imparting computer training to its employees and it was on contract basis. Consequently, he cannot be permitted to claim and assert violation of Items 5, 6, 9 and 10 of Schedule- IV of the said Act. 14) The petition lacks merit, dismissed. Rule discharged. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/