Regularization of employees must adhere to seniority and position availability, ensuring fairness in employment practices.

JUDGMENT :

M. K. THAKKER, J.

1. Since the issue raised in these petitions are similar, they are being decided by a common judgment. The facts of Special Civil Application No.18868 of 2021 are taken for the purpose of adjudication.

2. The present petition is filed challenging the award passed by the learned Reference Court dated 18.03.2021, whereby directions were issued to the present petitioner to grant the benefit of regularization on the post of Clerk.

3. It is the case of the present petitioner that the dispute was raised before the learned Industrial Court, seeking regularization on the post of Clerk or any equivalent post. As per the statement of claim, the respondents have been working since 03.04.1996 and though they had completed many years of service, they have not been regularized neither granted the benefit of permanency. The learned Reference Court, considering the submissions made by the learned advocates for the respective parties, has partly allowed the reference in favor of the respondent by granting the benefit of permanency on the post of clerk from 03.04.2003 onwards. It was also directed to consider the period from 03.04.1996 to 19.08.2016 as a notional. However, the terminal benefits were directed to be paid from 03.04.1996 and the monetary benefits were directed to be paid from 19.08.2016.

4. Heard learned advocate Ms. Sangeeta Pahwa for the petitioner employer and learned advocate Ms. Khushbu Chhaya for the respondent employee.

5. Learned Advocate Ms. Pahwa, appearing on behalf of the petitioner–Nagarpalika, submits that the benefit of permanency cannot be granted. Relying upon the decision of the Apex Court in Maharashtra State Road Transport Corporation & Others v. Casteribe Rajya Parivahan Karmachari Sanghatana reported in (2009) 8 SCC 556. It is submitted that there are four sanctioned post for tax clerk available in Nagar palika, however many seniors to present 3 workmen are working as a Rojamadar in the Nagar palika. However, the respondent was not working under any of the sanctioned categories. It is also submitted by learned advocate Ms.Pahwa that admittedly, no juniors to the respondent workmen has been regularized. It is further submitted that mere continuation in service or length of service does not confer a right to regularization, as held by the Apex Court in Hari Nandan Prasad v. Employer I/R to Mangmt.of FCI & Anr. reported in (2014) 7 SCC 190. Learned advocate Ms.Pahwa submits that the Tribunal committed an error in granting notional benefits such as seniority, pensionary benefits, and gratuity from 03.04.1996, even though regularization was ordered only from 03.04.2003. Learned advocate Ms.Pahwa submits that when regularization is granted from a specific date, no retrospective financial or service benefits prior to that date can be granted.

5.1 Learned advocate Ms.Pahwa submits that the reliance was placed on the evidence of Mr.Jignesh Rashmikant Shah who was regularized after seven years pursuant to the order passed by the learned Tribunal, without appreciating the fact that the said wager was appointed as a Clerk in Class III cadre on compassionate ground upon death of his father who was serving as an Accountant in the petitioner Nagarpalika. Without appreciating this factual distinction, the Tribunal wrongly extended similar benefits to the respondent–workman. Learned advocate Ms.Pahwa submits that it is settle position of law that when the post is available in the set up and the workers are working since many years, the benefit of pe