Part-time employees cannot claim regularization or a permanent position without a sanctioned post, as established by the court's ruling.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present appeal filed under clause 15 of Letters Patent, 1865 emanates from the judgement and order dated 10.10.2017, wherein and whereby the learned Single Judge while allowing the captioned writ petition has directed the appellant-Ahmedabad Municipal Corporation to absorb the respondent as a permanent employee on the post of Teacher of Physical Education.

BRIEF FACTS

2. The respondent was appointed on 17.09.2007 pursuant to the advertisement issued by the appellant-Corporation purely on contractual basis on part time vide appointment order dated 14.09.2007 as a Physical Education Instructor / Teacher on a fixed salary of Rs.2,500/- per month initially for a period of 1 year and the same was extended from time to time. It appears that the appellant-Corporation published an advertisement dated 09.03.2015 inviting application appointing part time teacher of Physical Education on contractual basis, which prompted the respondent to file the captioned writ petition seeking regular pay scale from the date of his appointment.

SUBMISSIONS ON BEHALF OF THE APPELLANT-CORPORATION

3. Learned senior advocate Mr.Vyas appearing for the appellant-Corporation at the outset, has submitted that the direction issued by the learned Single Judge was uncalled for as there is no regular post of Physical Education Teacher in the Corporation and the respondent was engaged on part time basis on contractual terms initially for a period of one year. It is submitted that since there is no post available, there cannot be any question of conferring the regular pay-scale. He has submitted that the learned Single Judge fell in error in issuing such directions. He has referred to the recruitment process undertaken at the relevant time by the appellant-Corporation and has submitted that after the advertisement was issued, there was number of applications received by the Corporation and the Staff Selection Committee, on 03.08.2007 examined 122 applications including the application of the respondent. It is submitted that after such applications were examined, the candidates were called for an oral interview and accordingly, the waiting list of 30 candidates was prepared, in which the name of the respondent figures at Sr. No.13. Pursuant to the aforesaid selection process undertaken by the committee comprising of 5 members, the respondent was issued the appointment order dated 14.09.2007 appointing him on part time basis as Physical Education Teacher. He was appointed as Instructor in the Gym run by the appellant-Corporation.

4. It is submitted that in fact, the Corporation has not created any post of Physical Education Teacher and Corporation is appointing such persons like respondent in order to take their service in Gyms or Swimming Pools etc. He has submitted that the learned Single Judge has incorrectly held that the respondent is entitled for the regular pay-scale and he can be regularized after completion of 5 years of service in view of the policy of the Corporation. It is submitted that in fact, the respondent has tried to mislead this Court by placing reliance on the form at Annexure-C at Page No.16 and the instructions mentioned therein, more particularly at Page No.24, Instructions Nos.19 and 20. It is submitted that in fact, such instructions are not applicable to the respondent and the same can only be applied to the employees appointed by the Corporation on regular and sanctioned post. It is submitted that the form, which is annexed in the writ petition is a blank form and does not pertain to the respondent, who was appointed on part time basis as a Physical Education Teacher and there is no such sanctioned post in the establishment and hence, the Corporation takes service of the employees by preparing the waiting list and as and when their service is needed, the employees like the respondent are appointed on part time contractual basis.

5. It is further contended that in fact, the advertisement