1. The petitioner herein has prayed to quash and set aside the impugned award dated 17.03.2012 passed by the Industrial Tribunal at Bhavnagar in Reference Case No. 15 of 1999 whereby the Tribunal has directed the petitioner Municipality to regularize the respondent workman to his original post with effect from November 1999 till the date of award after considering the interregnum period as notional. The Tribunal also directed the petitioner to pay salary at par with other regular employees.
2. It is the case of the petitioner that the respondent no. 1 who was working as peon with the petitioner municipality was not regularized on his original post though other persons quite junior to him were regularized. The petitioner along with two other employees therefore filed Reference Case No. 15/1999 before the Tribunal. The Tribunal after hearing the parties passed the aforesaid award qua present respondent no.1 but rejected the reference qua other two persons. Being aggrieved by the said award qua present respondent no. 1, the petitioner municipality has filed the present petition.
3. Mr. Deepak Sanchela, learned advocate appearing for the petitioner municipality submitted that the Tribunal has committed an error in directing the petitioner to regularize the respondent. He submitted that if a regular post is required to be filled up, there is a specific procedure and qualification prescribed for the said post and therefore unless and until the respondent workman holds due qualification and competes with other aspiring candidates, the respondent cannot be appointed on a regular post.
3.1 Mr. Sanchela has drawn the attention of this Court to Annexure ‘C’ of the petition which is a resolution wherein clause 5 states that in case of recruitment of a peon the municipality has to take prior permission from the director of Municipalities which shall be on fixed pay/minimum wages or by outsourcing.
4. Mr. Krunal Pandya, learned advocate appearing for respondent workman has supported the award passed by the Tribunal and submitted that considering the service of the workman and the fact that other employees who were junior to the respondent no. 1 have been regularized, the Tribunal is justified in regularizing the respondent workman. He has relied upon a decision of the Apex Court in a Constitution Bench judgment in the case of Secretary, State of Karnataka and others v. Umadevi and others [(2006) 4 SCC 1], para 53 which reads as under:
“53. One aspect needs to be clarified. There may be cases wehre irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 fo such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred 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.”
5. Having heard learned advocates for the parties and having perused the papers on record, this Court does not find any infirmity in the reasonings adopted and findings arrived at by the Tribunal. The resolution which is sought to be relied upon by learned advocate for the petitioner shall not be applicable on the facts of the present case inasmuch as the case of the petitioner is prior to 2010 when the circular came into force. It cannot be given effect retrospectively as the respondent workman was appointed in the year 1992. Therefore, considering the decision of the Apex Court in the case of Secretary, State of Karnataka (supra) no interference is called for in the matter. While considering the permanency of respondent workman, it shall be open to the petitioner to look into the overall seniority of the workmen. Petition stands dismissed accordingly. Rule is discharged. Interim relief if any stands vacated.
(K.S.JHAVERI, J.) DIVYA