1. The petitioners herein have prayed for below mentioned relief and direction:
“27(A) Your Lordship be pleased to issue a writ of mandamus directing or commanding the respondent Corporation to make the petitioners permanent from 15.2.2011 as they have completed 5 years and 900 days of service as on 15.2.2011 with Ahmedabad Municipal Corporation and to also give them all consequential benefits.”
2. The relief which is prayed for by present petitioners is made on strength of various resolutions passed by the respondent corporation from time to time including the resolution dated 13/08/2004 (Annexure-D page-207).
3. The petitioners have prayed for the said relief on the ground that the persons who were engaged on daily wage/adhoc and temporary basis either by the corporation or other Panchayats which came to be merged with respondent corporation pursuant to different notifications issued by the respondent State, have been extended benefit of regularization and status of permanent workmen on the formula/policy evolved by the corporation in view of which the corporation takes into account completion of service of five years or 900 days, for extending the such benefit.
4. The petitioners herein came to be originally appointed by Nava Naroda Municipality. Thereafter, the respondent Government issued notification dated 14/02/2006 in view of which about seven municipalities including said Nava Naroda Municipality came to be merged into present respondent no.1 corporation. In view of such merger and in light of the said notification dated 14/02/2006 read with order dated 28/11/2006, the employees of the said seven municipalities (including said Nava Naroda Municipality) where the petitioners herein were working came to be transferred to the respondent corporation.
5. In September, 2007, a resolution came to be passed according to which the respondent corporation decided to absorb about 428 employees of the said municipalities including the said Nava Naroda Municipality which came to be merged into respondent corporation pursuant to notification dated 14/02/2006 and 20/07/2006.
6. The said resolution obtains on record of present petition at Annexure-E page-83 of the petition.
7. The petitioners' claim that since last many years the said formula-policy framed by the corporation i.e. to extend, in phased manner, the benefit of regularization and status of permanent employee to the employees engaged on ad hoc/temporary or daily wage basis upon their completing service of five years or 900 days, is in vogue and is being implemented by the corporation respondent. It is in light of the said policy and in view of the order dated 28/11/2006 read with notification dated 14/02/2006, the petitioners have claimed parity and similar benefits.
8. The request made by the petitioners in present petition is resisted by the respondent corporation on the ground that the petitioners are not employees of the respondent corporation. It is also claimed that the petitioners were employed by said Nava Naroda Municipality and on merger of said municipality, they have been transferred to the respondent corporation, however, it is important that even with the erstwhile municipality the petitioners were working on ad hoc or temporary or daily wage basis and they were not selected and recruited in regular course of recruitment. The respondent corporation claimed that therefore, the relief as prayed for by the petitioners cannot be and may not be granted.
9. So far as the petitioners are concerned, learned advocate Mr.Shalin Mehta for the petitioner has relied on the said notification dated 14/02/2006 and the order dated 13/08/2004 as well as the resolution no.6 dated 19/09/2007. Learned advocate Mr.Mehta has also placed reliance on the information supplied by the respondent municipal corporation to one of the petitioners.
10. Learned advocate Mr.Mehta has also claimed that the respondent corporation has actually recalled some of the employees who were earlier terminated by the corporation and after recalling them the respondent corporation has extended similar benefit to the said persons. As to the said submissions of learned advocate Mr.Mehta for the petitioner, learned advocate Mr.Munshaw appearing for the respondent quickly responded that the said persons were the employees of respondent corporation and that therefore they stand on different footing and the petitioners cannot claim comparison with them.
11. Having regard to the relief prayed for by the petitioner and the issues raised by the corporation and reliance placed on the resolutions passed by the respondent corporation, as well as notification dated 14/02/2006 read with order dated 28/11/2006, the petition deserves to be admitted. Therefore, Rule.
12. At the request of learned advocate for the petitioner and with consent of learned advocate for the respondent, the petition is taken up for hearing and final disposal today.
13. It is not in dispute that the respondent corporation has, since last several years, framed and adopted and implemented policy of extending benefit of regularization and status of permanent employee to the persons engaged on ad hoc/temporary and daily wage basis upon their completing service of five years or 900 days.
14. It is true that initially when the respondent corporation framed such policy and adopted said formula, it was restricted to the persons who were engaged by respondent corporation itself.
15. However, it also appears, as is evident from resolution no.447 dated 13/08/2004, that subsequently with passage of time, certain municipalities and some of the panchayats came to be merged into the respondent corporation pursuant to the decision taken by and notification issued by the State Government, and the respondent corporation extended the said benefit of the said policy-formula to the employees who were working with some of such municipalities/panchayats who came to be subsequently merged with the respondent corporation.
16. So far as present case is concerned, the municipality in which the petitioners herein were employed, of course on daily wage basis, came to be merged with effect from 14/02/2006 in view of the notification of even date issued by Urban Development and Urban Housing Department, Gandhinagar.
17. In pursuance of the said notification, order dated 28/11/2006 was passed which, inter alia, contained below mentioned conditions:
“NOW, THEREFORE, in exercise of the powers conferred by sub-section
(3) of section-3A read with sub-section (1) of the said section3A of the Bombay Provincial Municipal Corporations act, 1949 (Bom. LIX of 1949), the Government of Gujarat with effect on and from the 14th February, 2006, hereby:-
(a) transfers, in whole all the assets and liabilities of the specified local authorities (including the rights and liabilities under any contract made by any of the specified local authorities) to the Municipal Corporation of the City of Ahmedabad (hereinafter referred to as “the said Municipal Corporation”);
(b) substitutes the said Municipal Corporation for the relevant specified local authorities or as the case may be, adds the said Municipal Corporation, as a party to any legal proceedings to which a said specified local authority is a party and transfers all proceedings pending before any specified local authority or any authority or officer subordinate to any such specified local authority to the said Municipal Corporation or any authority or officer subordinate to the said Municipal Corporation.
(c) transfers all such employees of the specified local authorities, who were in the employment of the specified local authorities on and immediately before the 14th February, 2006 and continued to be so employed, to the said Municipal Corporation on the same terms and conditions which governed them on the 13th February, 2006.”
18. Thereafter, as mentioned above, the respondent corporation passed resolution no.6 dated 19/09/2007 with reference to the merger of municipalities under the notification dated 14/02/2006 and 20/07/2006. By the said resolution no.6 of 19/09/2007, the respondent corporation resolved to take on its record/absorb about 428 employees including present petitioners, on the roll of respondent municipal corporation, however, on ad hoc basis. Accordingly the petitioners are treated as on roll of respondent corporation. It was clarified that they will be governed by the same terms and conditions which applied to them on 13/02/2006.
19. Before proceeding further, reference is required to be made of circular no.5 dated 25/04/2011 under which corporation has complied/gathered all information of employees of merged municipalities so as to extend the benefit of said policy.
20. In this background, it is also relevant to take into account the reply affidavit filed by the respondent municipality wherein it is inter alia, stated that:
“3. The respondent submits that the Government of Gujarat through its Urban Development and Urban Housing Department issued a Notification dated 14/02/2006 through which the areas of various Municipalities and Gram Panchayats were included within the limits of the City of Ahmedabad and thereupon number of Municipalities and Gram Panchayats were merged into Ahmedabad Municipal Corporation and a copy of the Notification is annexed herewith and marked as Annexure-A. It is stated that similarly through another notification dated 02/07/2006 issued by the Government of Gujarat through Urban Development and Urban Housing Department, the areas of various Municipalities and Gram Panchayats were included within the limits of the City of Ahmedabad and thereupon number of Municipalities and Gram Panchayats were merged into Ahmedabad Municipal Corporation. The respondent submits that the resultant affect of the said two notifications was that in all the areas of 17 Municipalities and 30 Gram Panchayats were brought within the limits of Ahmedabad Municipal Corporation along with staff members.
4. The respondent submits that through an order dated 28/11/2006, the Government of Gujarat through its Urban Development and Urban Housing Department has invited for such employment of such specified local authorities who were in the employment of specified local authorities and immediately before 28/07/2006 and continued to be so employed to the said Municipal Corporation on the same terms & conditions which governed with effect from 19/07/2006 and a copy of the said order is annexed herewith and marked as Annexure-B. It is stated that an identical order was earlier issued by the same Department on 28 Nov. 2006 subsequent to transfer of areas of various Gram Panchayats and Municipalities and a copy thereof is annexed herewith and marked as Annexure-C.
5. In view of the above, it is crystal clear that all the employees of such local authorities continued to be in employment of Ahmedabad Municipal Corporation on the terms and conditions which governed on the day of merger of such local authorities into Ahmedabad Municipal Corporation. In view of this, more particularly, the petitioners and such daily wagers who were employed by such Gram Panchayats and Municipalities purely on temporary, adhoc and daily wage basis cannot seek regularization and permanent employment as continued to be in the same capacity. It is stated that the petitioners herein are not employed by the erstwhile Nava Naroda Gram Panchayats / Municipalities after following due procedure of recruitments on any permanent / sanctioned posts and therefore, they cannot be given the benefit of regularization or permanency in the employment of Ahmedabad Municipal Corporation on the basis of its policy of 5 years and 900 days service and a copy of the policy is annexed herewith and marked as Annexure-D. It is stated that there are in all 428 daily wagers who are continued by Ahmedabad Municipal Corporation on merger of various Gram Panchayats and Municipalities pursuant to two notifications and none of them is given the same benefit of regularization and permanency as they are continued on the basis of order dated 28/11/2006 issued by the Government of Gujarat through its Urban Development & Urban Housing Department referred to hereinabove.”
21. In light of the above mentioned details when the resolution no.447 dated 13/08/2004 is taken into account, it emerges that the respondent corporation has passed the resolution of extending the benefit of the said policy-formula to the employees working in the respondent corporation and other establishments managed and run by the respondent corporation as well as in respect of employees of some of the merged municipalities e.g. Gujarat Municipal Corporation Services, V.S. Hospital, M.J. Library etc. However, benefit of the said resolution is not extended to the petitioners and other similarly situated persons i.e. to the employees who came to be transferred to the respondent corporation upon merger of the municipalities by virtue of notifications dated 14/02/2006 and 20/07/2006.
22. It is true that in a petition like present one the Court cannot direct the respondent corporation to regularize the petitioners and other similarly situated employees and/or to extend the benefit of regularization and status of permanent employees with consequential benefits. Ordinarily the position would be such.
23. However, in present case the issue arises in light of vital fact that the corporation itself has framed the policy-formula whereby the employees employed by it as well as some of the merged municipalities and even in other institutions which are run by it, have been granted the benefit of the said policy- formula.
24. Thus, when the above mentioned municipalities have been merged into the respondent corporation and the employees have been transferred to the respondent corporation and when the respondent corporation itself has passed resolution no.6 dated 19/09/2007 to take the employees on its own roll, the say of the respondent corporation is to claim that the respondent corporation has not extended and is not extending similar benefits to the employees of the respondent municipalities which came to be merged under notification dated 14/02/2006 and 20/07/2006 because the order dated 28/11/2006 read with notification dated 14/02/2006 provides that the employees shall be governed by the same terms and conditions which was applicable to them on 13/02/2006.
25. In view of this Court, the attempt of the corporation to suggest that for all times to come the employees would be governed only by those terms and conditions as on 13/02/2006 i.e. before the said municipality came to be absorbed in the respondent corporation reflects corporation's unfair and insensitive attitude and approach.
26. Once the said municipality has merged into the respondent corporation, it has lost its identity and the employees who came to be transferred to the respondent corporation pursuant to said merger, can not be said to be or treated as employees of the municipality after the municipality lost its identity pursuant to merger and they would be deemed to be employees of corporation and would be deemed to have been taken on the roll of respondent corporation. Had the corporation not framed and adopted and implemented the above mentioned policy, then the corporation could be heard to say that ad hoc employees can not claim such benefit. However once a policy is adopted and implemented then the corporation cannot be heard to say, or permitted to say, that it will be applied in respect of one set of employees and will not be applied for other set of employees (unless the scheme itself contains such clause of selective applicability, which is not the case in present matter). Thus the decision and action of the corporation of denying the benefit of policy to the petitioners would be discriminatory and violative of Article-14 and amounts to depriving them of the benefit of similar policy- formula.
27. It is true that the respondent corporation has to take decision considering all facts and circumstances of the case including its final resources and such other connected aspects which would have bearing regarding such matters.
28. However, it does not mean that the respondent corporation can inordinately delay the decision and can defer or avoid to take necessary and appropriate decision for long time.
29. In present case, since February, 2006, i.e. for more than six years, the event of merger of the municipalities and transfer of employees has taken place.
30. It appears from the record that subsequently the respondent corporation itself has, vide resolution dated 13/08/2004, implemented the said policy and extended the said policy-formula to even various other employees i.e. to even the persons employed in sister organizations like V.S. Hospital, M.J.Library etc. Therefore, action of the respondent corporation of not taking necessary decision and not extending similar benefit in favour of the petitioners is unreasonable and unjust. The Court cannot allow such inaction and delay to continue further. It is duty of the Court to arrest and stop unfair and unjust action which amounts to injustice to petitioners and similarly situated employees of erstwhile/merged municipality.
31. Under the circumstances and on over all consideration of factual aspects it appears that present petition can be disposed of with below mentioned order: -
(A) The petitioners herein shall submit appropriate applications to their departmental head/supervisor requesting the respondent corporation to extend the benefit of the above mentioned policy in their favour.
(B) For the said purpose, the respondent corporation shall take into consideration the date on which the petitioners came to be transferred to the respondent corporation.
(C) Learned advocate for the petitioners has submitted and stipulated that the petitioners shall not claim that their service with erstwhile municipality may be taken into account for the purpose of calculating completion of five years service or 900 days service. Therefore, the service rendered by them only with respondent corporation after they came to be transferred shall be taken into consideration.
(D) For verifying compliance of specified requirement viz. minimum five years' service or 900 days' service, upon receipt of the applications, the Supervisor or departmental head shall immediately forward the said applications to the competent authority.
(E) Thereafter, the respondent corporation shall take into account the request made by the petitioners and after due and proper consideration take appropriate policy decision with regard to the request made by the petitioners.
(F) However, while doing so, the respondent corporation shall take into consideration the said policy and shall also consider the fact that similar benefit has been extended by the respondent corporation to other similarly situated persons and even to the sister establishments.
(G) The respondent corporation shall also take into consideration that the petitioners are claiming similar benefit on ground of parity.
(H) After proper consideration of factual aspects, the respondent corporation would take necessary and appropriate decision as early as possible preferably within a period of four months i.e. preferably by 31/08/2012.
(I) The respondent corporation shall take into consideration the contentions/grounds raised by the petitioners in present petition and present order.
(J) The decision shall be conveyed to the petitioners.
32. With the aforesaid clarifications, present petition stands disposed of. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) (ila)