Will Cast 'Financial Burden': Gujarat HC Quashes Order Directing Ahmedabad Municipal Corporation To Retrospectively Regularize Daily Wagers

In case pertaining to regularization of daily wage employees, the Gujarat High Court highlighted the importance of adhering to policy frameworks to avoid financial constraints and held that Ahmedabad Municipal Corporation cannot be forced to create supernumerary posts with a retrospective date as it would create financial burden and disrupt administrative uniformity.The court thus set aside the single judge's order which directed the Corporation to regularize the employees' services retrospectively with effect from November 1, 2005, observing that merely because they completed 5 years and 900 days of service, it does not entitle them to regularization. A division bench of Justice AS Supehia and Justice Gita Gopi while relying on a coordinate bench's 2018 decision which had similarly situated employees observed: "Thus, in a similar case to the present respondent employees, the Division Bench has held that the employees, who are similarly situated to the present respondents are not entitled to be regularized on their completion of 5 years and 900 days of service. It is also held that in view of the new policy, which is adopted by the Corporation, earlier policy would get obliterated and the same cannot be placed reliance by such employees. The Division Bench has categorically held that the services of such employees cannot be regularized merely on completion of 5 years and 900 days of service, and such service can only be regularized provided there are sufficient vacant posts. Thus, the claim of the similarly situated employees to the respondents-employees seeking regularization on completion 5 years and 900 days of service on the basis of Resolution dated 02.06.1983, is already delved into by the Division Bench and such claim is rejected. It is always within the domain of the appellant-Corporation to regularize its employees looking to their administrative requirement and financial constrain, more particularly, when they have to create supernumerary posts".The bench said that it is not inclined to differ from the view of the coordinate division bench in its 2018 order concerning similar situated employees which said that they cannot be regularized merely on completion of 5 years and 900 days of service. The respondent employees were hired on a daily-wage basis and demanded regularization of their services from November 1, 2005, the date when they completed 5 years and 900 days of their service. The appellant-Ahmedabad Municipal Corporation (AMC) had regularized their services in March 2008 as per their policy but not retrospectively. Against this the employees approached the high court wherein the Single Judge Bench observed that the respondent-employees are entitled to be regularized the service on which they completed their service and not from the date on which the regularization order was passed. Against this AMC moved the division bench in appeal. Referring to the application of Supreme Court's decision in Nihal Singh & Others vs State of Punjab by the Single Judge while granting the regularization retrospectively, the division bench observed that Nihal Singh pertains to statutory appointments under the Police Act whereas, in the present case, the appointments are policy-driven that doesn't not align with the ratio in Nihal Singh. The court said that the respondents-employees before it are employed as daily wagers, and are seeking regularization after completion of 5 years and 900 days of service. It sai that even if ratio of Nihal Singh (supra) is applicable, the appellant-Corporation has already regularized the services of the respondents-employees from March 17, 2008 by creating supernumerary posts.In doing so, the Division Bench observed “The respondents-employees cannot claim regularization retrospectively w.e.f 01.11.2005 on completion of 5 years and 900 days of service in wake of the fact that the appellant-Corporation cannot be compelled to create supernumerary posts with effect from retrospective date. If such an approach is adopted, the appellant-Corporation will face a huge financial burden and it will also resurrect the issue of regularization of 2823 employees, who are regularized with effect from 15.08.2004 (i.e. from the date of passing of such order), and not from their respective dates of completion of five 5 years and 900 days of service.”The high court observed that Single Judge had failed to appreciate the obligation of the Ahmedabad Municipal Corporation and also the decision of the Coordinate Bench, and also erred in allowing the writ petition filed by the respondents-employees by placing reliance on the judgment of the Supreme Court in case of Nihal Singh. "Thus, we hold the decision of the learned Single Judge in allowing the writ petition filed by the respondents-employees, and further directing the appellant-Corporation to regularize their services with retrospective effect from 01.11.2005, as erroneous," the court said while allowing the appeal and setting...

Will Cast 'Financial Burden': Gujarat HC Quashes Order Directing Ahmedabad Municipal Corporation To Retrospectively Regularize Daily Wagers

Lovina B Thakkar

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