JUSTICE Sandeep V Marne, at the Bombay High Court, has allowed 8 writ petitions filed by the State Government on June 26, 2024, after considering the overall conspectus of these cases, and expressed the view that the Industrial Court, Satara committed error in allowing the complaints filed by respondent - employees, who did not make out any case to seek either continuation of their services and in any case for seeking benefit of permanency. Industrial Court ought to have been mindful of the fact that these respondent-employees are back door entrants, who were engaged to meet temporary exigencies of service and who had put in hardly a year’s service, when they approached the Court. Their continuation in service has resulted in two incumbents working on one post. Sanctioned posts in Government service cannot be filled by regularising such appointees.

 

These petitions were filed by the State Government through the Medical Superintendents/ Civil Surgeons of respective Hospitals and Deputy Director of Health Services, Pune, challenging the common judgement and order of June 19, 2022 passed by the Member, Industrial Court, Satara, in 8 complaints filed by Respondents alleging unfair labour practices in the matter of their temporary appointments in various hospitals. The Industrial Court has directed continuation of services of respondents with further directions to grant benefit of permanency to them. It appears that the concerned hospitals were in need of staff. Some of the posts in those hospitals were being manned by temporary employees and the Medical Superintendents of the concerned hospitals had made correspondence with the petitioner -2, Dy.

 

Director of Health Services, Pune, for deployment of fresh staff on vacant posts. This is how, respondents came to be granted temporary appointments on various posts such as Junior Clerk, Laboratory Technician, Pharmacist, Sweeper etc. for a period of three months by various orders issued in the year 2000/2001. The appointment for three months was by giving break of one day at interval of 29 days. It appears that though initially appointments were made only for a period of three months, the same were continued on 2/3 occasions by issuing fresh appointment orders for further period of three months. The employees submitted undertakings in September, 2001 accepting temporary nature of their appointments. When their services were discontinued either on availability of regular employees or otherwise, the respondents approached the Industrial Court, Satara, by filing 8 complaints. What is more glaring is the admitted position that none of the respondents participated in the selection process.

 

Rather, no selection process was ever implemented by the petitioner-2 while issuing blatant, illegal and irregular orders of temporary engagement of the respondents. Perusal of complaints filed by respondent would indicate that there is no averment of conduct of any selection process before their engagements. The respondents went on making vague applications to the petitioner-2, who offered them engagements without conducting any selection process. The Industrial Court did not pay any heed to this admitted position that all the eight respondents are back door entrants into the Government service, who did not apply in pursuance of any advertisement, nor participated in any selection process. Their initial entry into service is detours the constitutional requirement under Articles 14 and 16. The exact reason why office of the Deputy Director of Health Services decided to offer engagements to respondents is difficult to fathom. It is possible that activities of hospital would have been affected if alternative arrangements were not made to man the temporarily vacated posts. However, grant of such temporary appointments created no right in favor of the appointees, who knew very well that the appointments were mere stop gap arrangements till the regular incumbents reported back for duties or regular appointments are made.

 

This is the reason why many of them submitted specific undertakings about temporary nature of their appointments with no right of regularisation. Mere deputation of regular staff for training was not a valid reason for making temporary appointments. The consequences of illegal Action by the office of the Deputy DHS coupled with erroneous orders passed by the Industrial Court has resulted in a situation where two persons have occupied one sanctioned post in Government service.

 

Though some repeatedly highlighted admissions given by the petitioner’s witness about respondents working against sanctioned vacant post , the admissions given by such witness , will not be an indicator to decide whether the posts occupied by respondents were indeed vacant sanctioned post or not. Initial engagements of most of the respondents were against posts temporarily vacated by regular incumbents due to deputation for training, leave, absence etc. Therefore, appointments of such respondents cannot be treated as the ones made against sanctioned vacant posts. Therefore, the HC has held that the appointments of the respondents were not made against sanctioned vacant posts. Respondents were engaged initially for a period of three months by giving breaks after each spell of 29 days. They had hardly rendered one or two years of service, when they filed complaints before the Industrial Court. No right got created in their favour to seek the benefit of permanency when their complaints were decided by the Industrial Court.

 

In HC’s view therefore, the relief of permanency granted to the respondents by the Industrial Court, on completion of 240 days of service is wholly unsustainable. Respondents do not satisfy the criteria of one time exception in para 53 of the Judgment in the case of UMADEVI. Their continuation in service is owing to the interim and final orders passed by the Industrial Court. Impugned order passed by the Industrial Court is found to be erroneous. Their continuation in service is actually void. They have earned salaries for continuation in service, all these years and now it is not possible to recover the same. However, to expect regularisation of their appointments on the strength of erroneous continuation in service is like adding premium to the illegality. Regularisation of service of respondents would put additional burden on the public exchequer. Therefore, in the HC’s view mere continuation in service during pendency of litigation would not be a fit ground to grant them regularisation. The High Court has allowed the writ petition and set aside the impugned judgement and order passed by the Member, Industrial Court, Satara on June 19, 2022. The High Court has dismissed the complaints filed by the respondent-employees.