Bombay High Court
FILM AND TELEVISION INSTITUTE OF INDIA THR. ITS DIRECTOR DHIRAJ SINGHversusJAVED RASUL BANEDAR AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The Court held that the seven workers, having been employed continuously by FTII for over ten years, are entitled to regularisation (not permanency) from January 2023, and the Industrial Tribunal’s award stands.
Summary
The Film & Television Institute of India (FTII) employed seven workers on a casual, need‑based basis from 2005‑06 and later routed them through contractors from 2007, terminating them in 2018. The workers sought regularisation and permanency, leading the Industrial Tribunal to award them regularisation from January 2023. FTII challenged the award, while the workers contested the tribunal’s failure to grant permanency from January 2003. The High Court examined the applicability of the Umadevi judgment, the distinction between regularisation and permanency, and the tests for establishing an employer‑employee relationship, concluding that the workers were indeed FTII’s employees and qualified for regularisation under the exception for irregular appointments of over ten years. The Court upheld the Tribunal’s direction to grant regularisation (not permanency) from January 2023, ordered reinstatement of the workers, and dismissed both writ petitions. Consequently, the workers receive notional benefits for the period Jan‑2023 to Apr‑2024 and actual arrears from the Tribunal’s award date.
Issues considered
- The legality of FTII’s practice of routing long‑serving casual workers through contractors to avoid regularisation.
- Whether the Industrial Tribunal’s award of permanency from January 2023 can be set aside on the ground of procedural irregularities.
- Applicability of the Umadevi judgment and its exception for irregular appointments of more than ten years.
- Whether the workers qualify for regularisation versus permanency under the Industrial Employment (Standing Orders) Central Rules, 1946.
- Whether the termination of the workers in 2018 complied with Section 33 of the Industrial Disputes Act.
Legislation cited
Subjects
- regularisation
- permanency
- temporary workers
- contractual employment
- Industrial Disputes Act
- standing orders
- public sector employment
- Article 14
- autonomous body
- employment rights
Judgment
Neeta Sawant WP 1644 of 2025 and WP 14169 of 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1644 OF 2025
Film & Television Institute of India ...Petitioner
V/s.
1. Javed Rasul Banedar
2. Rahul Rajendra Pawar
3. Prakash Nivrutti Kamble
4. Ramchandra Nathu Ambekar
5. Amit Kalidas Jagtap
6. Maheboob H. Bagwan
7. Mahesh Atmaram Pawar
...Respondents
8. Sigma Human Resources (India) Pvt. Ltd.
WITH
WRIT PETITION NO.14169 OF 2025
1. Amit Kalidas Jagtap
2. Javed Rasul Banedar
3. Rahul Rajendra Pawar
4. Prakash Nivrutti Kamble
5. Ramchandra Nathu Ambekar
6. Maheboob H. Bagwan
7. Mahesh Atmaram Pawar ...Petitioners
V/s.
1. Film & Television Institute of India
...Respondents
2. Sigma Human Resources (India) Pvt. Ltd.
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Neeta Sawant WP 1644 of 2025 and WP 14169 of 2025
Ms. Priyanka Telang for the Petitioners in WP/1644/2025 and
Respondents in WP/14169/2025.
Mr. Shrikant Malegaonkar with Mr. Shubhankar Malegaonkar, Mr.
Prakash Yedage, Mr. Kunal Shirgire and Mr. Ishan Deshpande for the
Petitioners in WP/14169/2025 and for Respondents in WP/1644/2025.
CORAM : SANDEEP V. MARNE, J.
JUDGMENT RESD. ON : 17 SEPTEMBER 2026
JUDGMENT PRON. ON : 29 SEPTEMBER 2026
JUDGMENT:
1) These are cross Petitions filed by the employer and workmen
challenging the Award dated 2 April 2024 passed by the Presiding Officer,
Industrial Tribunal, Pune in Reference (IT) No. 45/2015. Answering the
Reference partly in favour of the workmen, the Industrial Tribunal has
held that the action of the employer in not regularising the services of 7
workmen and putting them on contract basis through contractors is
illegal and unjustified. The Industrial Tribunal has directed the employer
to grant benefits of permanency to the 7 workmen since January 2023.
The employer is aggrieved by the Award directing grant of permanency to
the 7 workmen and has filed Writ Petition No.1644 of 2025. On the other
hand, the 7 workmen are also aggrieved by the Award of the Industrial
Tribunal to the extent of denial of grant of permanency from January
2003 and have filed Writ Petition No. 14169 of 2025.
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2) Film and Television Institute of India (FTII) is an
autonomous body under the Ministry of Information and Broadcasting of
the Government of India and receives grant-in-aid. It provides high level
of professional education and technical expertise in the art and technique
of film making and television production. According to the employer-
FTII, the concerned 7 workmen were hired by it on ‘as and when required’
basis for odd jobs of light boy, studio boy etc. since 2005-06 on payment
as per mutually agreed terms. They were paid on daily wages basis and
were hired as and when the students needed their services for completion
of the exercise/project work. The FTII did not issue any appointment
letters to the workmen. On the other hand, it is the claim of the workmen
that they are in continuous services with the FTII since the year 2003. The
workmen complained that in the year 2007, FTII illegally started paying
them wages through contractors. The workmen raised a demand for
permanency and accordingly at their instance, Reference (IT) No. 45/2015
was made to the Industrial Tribunal by Ministry of Labour, Government of
India vide orders dated 12 November 2015 and 27 November 2015 in
respect of the demand of the 7 workmen for grant of permanency.
3) The workmen filed their Statement of Claim, which was
resisted by the FTII by filing Written Statement. The workmen examined
Mr. Javed Banedar and Mr. Rahul Rajendra Pawar. FTII did not lead any
oral evidence but produced several documents. After considering the
pleadings, oral and documentary evidence, the Industrial Tribunal
delivered Award dated 2 April 2024, answering the Reference partly in the
affirmative and holding that the action of FTII in not regularising the
services of 7 workers was illegal and unjustified and the Industrial
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Tribunal has directed FTII to grant benefit of permanency to 7 workers
since January 2023. As observed above, the FTII is aggrieved by the Award
dated 2 May 2024 and has filed Writ Petition No. 16444 of 2025. On the
other hand, the workmen are aggrieved by non-grant of permanency since
January 2003 and have filed Writ Petition No. 14169 of2025.
4) Ms. Telang, the learned counsel appearing for FTII would
submit that the Industrial Tribunal has grossly erred in granting
permanency to the workmen. That the workmen were not employed by
FTII in any manner. That their services were offered by their respective
contractors. Contractual engagements were accepted by the workmen
without any demur. Even initially their hiring was need-based. That
Studio Assistants are required only when students made projects at the
end of their course. That there was no requirement of permanent
personnel and therefore the workmen were hired as and when needed.
She submits that the claim for permanency was grossly barred by
limitation as their need based engagements with FTII came to an end in
2006 and that therefore, the reference for grant of permanency in services
of FTII in the year 2015 was grossly delayed. In support of her contention
of delay, Ms. Telang relies on judgment of the Apex Court in Nedungadi
Bank Ltd. vs. K.P. Madhavankutty and Ors. 1 and U.P. State Road
Transport Corporation vs. Babu Ram2. She submits that neither the
workmen claimed that the contract was sham and bogus nor any enquiry
is made by the Industrial Tribunal in that regard. That in any case, the six
tests laid down by the Hon’ble Apex Court in Balwant Rai Saluja and
1
(2000) 2 SCC 455
2
(2006) 5 SCC 433
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Anr. vs. Air India Limited and Ors. 3 are not satisfied in the facts of the
present case.
5) Ms. Telang further submits that direction for regularisation is
in the teeth of judgment of Constitution Bench in Secretary, State of
Karnataka and Ors. vs. Umadevi (3) and Ors. 4 That there were no
permanent sanctioned posts, against which the workmen were engaged.
That FTII does not have power to create posts and that the said power is
only with the Government of India. In support of her contention that
industrial adjudicator does not have jurisdiction to direct creation of
posts, Ms. Telang relies on judgment of Division Bench of this Court in
Municipal Council, Tirora and Anr. vs. Tulsidas Baliram Bindhade 5. She
also relies on judgment of the Apex Court in Mahatma Phule
Agricultutral University and Ors. vs. Nashik Zilla Sheth Kamgar Union
and Ors.6
6) Ms. Telang submits that 15 posts of Studio Assistants
subsequently created cannot be a ground for directing permanency for the
7 workers. The said 15 posts of Studio Assistants are created in the year
2023 on account of introduction of postgraduation courses in the FTII.
She submits that there is no provision in the Industrial Employment
(Standing Orders) Central Rules, 1946 for grant of permanency on
completion of period of 3 months as falsely sought to be suggested on
behalf of the workmen. Ms. Telang has also relied on various other
judgments in support of her contention that it is impermissible to grant
3
(2014) 9 SCC 407
4
(2006) 4 SCC 1
5
2016 (6) MH.L.J. 867
6
(2001) 7 SCC 346
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regularization /permanency merely because of long length of service. On
above broad submissions, she prays for setting aside the impugned
Award.
7) So far as the Petition filed by the workmen is concerned, she
submits that there is no question of granting the benefit of permanency
since the year 2003 as there is no evidence of engagement of the workers
in the year 2003. That the case does not involve performance of
continuous services and what was initially done was only need-based
hiring. That in any case, Central Standing Orders do not provide for grant
of permanency on completion of merely 3 months of service. She
accordingly prays for dismissal of the petition filed by the workmen.
8) Mr. Malegaonkar, the learned counsel appearing for the
workmen opposes the petition filed by FTII. He submits that the
workmen were engaged since the year 2007 continuously and till the year
2007, they were being directly paid by FTII. In 2007, the workmen were
illegally shifted through contractors in violation of provisions of Section 9
of the Industrial Disputes Act, 1947 (ID Act). That no notice of change
was issued while undertaking illegal exercise of shifting of the workers
through contractors. That the workmen were utilised through contractors
for over 11 years till 2018. That with a view to frustrate the Reference, the
workers were terminated in the year 2018.
9) Mr. Malegaonkar further submits that the workmen had filed
an application seeking production of various documents relating to
services rendered by the workmen. That though the application was
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allowed, the FTII deliberately withheld the record and did not produce the
same. That therefore adverse inference needs to be raised against FTII. He
submits that the workmen have worked continuously for over 15 long
years. That Industrial Tribunal has rightly taken into consideration the
factum of existence of 15 posts of Studio Assistants, which are advertised
by the FTII. That therefore the direction for grant of permanency does not
suffer from any error. He prays for dismissal of the petition filed by FTII.
10) Mr. Malegaonkar further submits that the Tribunal ought to
have granted permanency to the workers on completion of 90 days of
service in accordance with the provisions of the Central Standing Orders.
That there is no basis for directing permanency since January 2023. That
termination of services of the workmen in the year 2018 is in the teeth of
provisions of Section 33 of the ID Act. He accordingly prays for allowing
the petition filed by the workmen and for grant of benefit of permanency
from January 2003.
11) Rival contentions urged on behalf of the parties now fall for
my consideration.
12) It is first necessary to consider the challenge raised by the
employer-FTII to the Award of Industrial Tribunal. This is because if the
FTII succeeds in setting aside the impugned Award, the petition filed by
the workmen would be rendered infructuous. Accordingly, first I proceed
to consider FTII’s challenge to the impugned Award.
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13) The impugned Award directs grant of permanency to the 7
workmen in the services of FTII since January 2022. The Industrial
Tribunal has directed grant of permanency since January 2023 by taking
into consideration the fact that FTII issued advertisement in January 2023
for filling up 15 posts of Studio Assistants.
14) The claim of the 7 workmen for grant of benefit of
permanency/regularisation is premised on their alleged services with FTII
since the year 2003. It is the claim of the workmen that during 2003 to
2007, they were directly paid wages by FTII and were later paid through
contractors from the year 2007 onwards. The details of various
contractors, through whom they are shown to have been engaged, were
pleaded by the workmen in their Statement of Claim. It appears that
during pendency of the Reference, the services of the workmen were
terminated on 2 July 2018. The impugned Award thus contemplates not
just grant of benefit of permanency but also reinstatement of the
workmen since they have been already terminated during pendency of the
Reference on 2 July 2018.
15) The law on the issue of regularisation of services of
temporary/casual/ad hoc/contract workers is well settled by the judgment
of Constitution Bench in Umadevi (supra). Now it is well-settled position
that appointments made in violation of constitutional scheme of equal
opportunity cannot be regularized. If a person accepts engagement either
in temporary or casual capacity, he cannot turn around and claim
permanency/regularisation merely on the strength of long continuation
in service. It is held by the Apex Court that mere continuation in service
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for a long duration does not ipso facto create a right to have the services
regularised. It is held by the Hon’ble Apex Court in paras-43, 45, 46 and
47 as under:
43. Thus, it is clear that adherence to the rule of equality in public employment
is a basic feature of our Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need to
comply with the requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public employment,
this Court while laying down the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an end at the end
of the contract, if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is discontinued. Similarly,
a temporary employee could not claim to be made permanent on the expiry of
his term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of selection as
envisaged by the relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who by the very nature
of their appointment, do not acquire any right. The High Courts acting under
Article 226 of the Constitution, should not ordinarily issue directions for
absorption, regularisation, or permanent continuance unless the recruitment
itself was made regularly and in terms of the constitutional scheme. Merely
because an employee had continued under cover of an order of the court, which
we have described as “litigious employment” in the earlier part of the judgment,
he would not be entitled to any right to be absorbed or made permanent in the
service. In fact, in such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to mould the relief in such a
manner that ultimately no prejudice will be caused to him, whereas an interim
direction to continue his employment would hold up the regular procedure for
selection or impose on the State the burden of paying an employee who is really
not required. The courts must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to facilitate the bypassing
of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularised or
made permanent, the courts are swayed by the fact that the person concerned
has worked for some time and in some cases for a considerable length of time. It
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is not as if the person who accepts an engagement either temporary or casual in
nature, is not aware of the nature of his employment. He accepts the
employment with open eyes. It may be true that he is not in a position to
bargain—not at arm's length—since he might have been searching for some
employment so as to eke out his livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to jettison the constitutional
scheme of appointment and to take the view that a person who has temporarily
or casually got employed should be directed to be continued permanently. By
doing so, it will be creating another mode of public appointment which is not
permissible. If the court were to void a contractual employment of this nature
on the ground that the parties were not having equal bargaining power, that too
would not enable the court to grant any relief to that employee. A total embargo
on such casual or temporary employment is not possible, given the exigencies
of administration and if imposed, would only mean that some people who at
least get employment temporarily, contractually or casually, would not be
getting even that employment when securing of such employment brings at
least some succour to them. After all, innumerable citizens of our vast country
are in search of employment and one is not compelled to accept a casual or
temporary employment if one is not inclined to go in for such an employment.
It is in that context that one has to proceed on the basis that the employment
was accepted fully knowing the nature of it and the consequences flowing from
it. In other words, even while accepting the employment, the person concerned
knows the nature of his employment. It is not an appointment to a post in the
real sense of the term. The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be considered to be of
such a magnitude as to enable the giving up of the procedure established, for
making regular appointments to available posts in the services of the State. The
argument that since one has been working for some time in the post, it will not
be just to discontinue him, even though he was aware of the nature of the
employment when he first took it up, is not one that would enable the
jettisoning of the procedure established by law for public employment and
would have to fail when tested on the touchstone of constitutionality and
equality of opportunity enshrined in Article 14 of the Constitution.
46. Learned Senior Counsel for some of the respondents argued that on the
basis of the doctrine of legitimate expectation, the employees, especially of the
Commercial Taxes Department, should be directed to be regularised since the
decisions in Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC
902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 :
(1992) 21 ATC 403 : (1992) 3 SCR 826] , Jacob [Jacob M. Puthuparambil v. Kerala
Water Authority, (1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15 ATC 697]
and Gujarat Agricultural University [Gujarat Agricultural University v. Rathod
Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S) 613] and the like, have given
rise to an expectation in them that their services would also be regularised. The
doctrine can be invoked if the decisions of the administrative authority affect
the person by depriving him of some benefit or advantage which either (i) he
had in the past been permitted by the decision-maker to enjoy and which he can
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legitimately expect to be permitted to continue to do until there have been
communicated to him some rational grounds for withdrawing it on which he has
been given an opportunity to comment; or (ii) he has received assurance from
the decision-maker that they will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they should not be
withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of
Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174
(HL)] , National Buildings Construction Corpn. v. S. Raghunathan [(1998) 7 SCC 66
: 1998 SCC (L&S) 1770] and Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3
SCC 485 : 2003 SCC (L&S) 322] .] There is no case that any assurance was given
by the Government or the department concerned while making the
appointment on daily wages that the status conferred on him will not be
withdrawn until some rational reason comes into existence for withdrawing it.
The very engagement was against the constitutional scheme. Though, the
Commissioner of the Commercial Taxes Department sought to get the
appointments made permanent, there is no case that at the time of
appointment any promise was held out. No such promise could also have been
held out in view of the circulars and directives issued by the Government
after Dharwad decision. Though, there is a case that the State had made
regularisations in the past of similarly situated employees, the fact remains that
such regularisations were done only pursuant to judicial directions, either of the
Administrative Tribunal or of the High Court and in some cases by this Court.
Moreover, the invocation of the doctrine of legitimate expectation cannot
enable the employees to claim that they must be made permanent or they must
be regularised in the service though they had not been selected in terms of the
rules for appointment. The fact that in certain cases the court had directed
regularisation of the employees involved in those cases cannot be made use of
to found a claim based on legitimate expectation. The argument if accepted
would also run counter to the constitutional mandate. The argument in that
behalf has therefore to be rejected.
47. When a person enters a temporary employment or gets engagement as a
contractual or casual worker and the engagement is not based on a proper
selection as recognised by the relevant rules or procedure, he is aware of the
consequences of the appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate expectation for
being confirmed in the post when an appointment to the post could be made
only by following a proper procedure for selection and in cases concerned, in
consultation with the Public Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully advanced by temporary,
contractual or casual employees. It cannot also be held that the State has held
out any promise while engaging these persons either to continue them where
they are or to make them permanent. The State cannot constitutionally make
such a promise. It is also obvious that the theory cannot be invoked to seek a
positive relief of being made permanent in the post.
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16) Thus, as per the judgment of the Constitution Bench in
Umadevi, it is impermissible for Courts and Tribunals to regularize
services of temporary workers merely on the basis of their long length of
service. The Hon’ble Apex Court has, however, recognised only one
exception in para-53 of the judgment in Umadevi, in which it is held as
under:
53. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972)
1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC
(L&S) 4 : (1979) 3 SCR 937] 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 of such employees may have to be considered on
merits in the light of the principles settled by this Court in the cases
abovereferred 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.
17) Thus, an exception is made where irregularly appointed
persons have continued to work for 10 years or more (without the
intervention of the Court) and such persons are directed to be regularised
as a one-time measure.
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18) In Maharashtra State Road Transport Corporation
(MSRTC) vs. Casteribe Rajya Parivahan Karmchari Sanghatana 7, the
issue before the Apex Court was whether an industrial adjudicator was
bound by declaration of law by the Hon’ble Apex Court in Umadevi in the
light of provisions of Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices, 1971 (MRTU & PULP Act). While
holding that the powers given to the Industrial and Labour Courts under
MRTU & PULP Act are very wide and though the judgment of the Apex
Court in Umadevi does not denude the Industrial and Labour Courts of
their statutory power under Sections 31 and 32 of the MRTU & PULP Act,
permanency can be granted to the workers who are victims of unfair
labour practice on the part of the employer under Item-6 Schedule-IV of
the Act only where post on which they have been working exists. The
Apex Court in MSRTC vs. Casteribe (supra) also accepted the legal
proposition that the Courts cannot direct creation of posts as held in
Mahatma Phule Agricultural Universities (supra). The Apex Court ruled
in MSRTC vs. Casteribe that provisions of MRTU & PULP Act enable an
industrial adjudicator to take affirmative action against the erring
employer and since the powers are of wide amplitude, the same take
within their fold the direction to accord permanency.
19) In Hari Nandan Prasad and Anr. vs. Food Corporation of
India and Anr.8, the Apex Court again had an occasion to consider the
issue of regularisation/permanency by an industrial adjudicator in the
light of judgment of the Apex Court in Umadevi. The Apex Court held
that a balancing act and harmonious reading of the two judgments in
7
(2009) 8 SCC 556
8
(2014) 7 SCC 190
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Umadevi and MSRTC vs. Casteribe was required to be made and only in
cases where posts are available, direction for regularisation can be made
when a worker has continued as a daily wage worker for number of years.
In a case where the posts are not available, direction for regularisation
would be impermissible. It further held that regularisation can only be
directed of the concerned workers meeting the eligibility requirement for
the post. It further held that regularisation can also be directed where it
is found that similarly situated workmen are regularised violating the
equality clause under Article 14 of the Constitution of India. The Apex
Court held in para-39 of the judgment in Harinandan Prasad as under:
39. On a harmonious reading of the two judgments discussed in detail above, we
are of the opinion that when there are posts available, in the absence of any
unfair labour practice the Labour Court would not give direction for
regularisation only because a worker has continued as daily-wage worker/ad
hoc/temporary worker for number of years. Further, if there are no posts
available, such a direction for regularisation would be impermissible. In the
aforesaid circumstances giving of direction to regularise such a person, only on
the basis of number of years put in by such a worker as daily-wager, etc. may
amount to back door entry into the service which is an anathema to Article 14 of
the Constitution. Further, such a direction would not be given when the worker
concerned does not meet the eligibility requirement of the post in question as
per the recruitment rules. However, wherever it is found that similarly situated
workmen are regularised by the employer itself under some scheme or
otherwise and the workmen in question who have approached the
Industrial/Labour Court are on a par with them, direction of regularisation in
such cases may be legally justified, otherwise, non-regularisation of the left-
over workers itself would amount to invidious discrimination qua them in such
cases and would be violative of Article 14 of the Constitution. Thus, the
industrial adjudicator would be achieving the equality by upholding Article 14,
rather than violating this constitutional provision.
20) In Municipal Council, Tirora (supra), a reference was made
to Division Bench of this Court in the light of conflicting decisions of two
Single Judge Bench judgments of this Court on the issue of interpretation
of Clause-4C of the Model Standing Orders under the Industrial
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Employment (Standing Orders) Act, 1946. The Division Bench answered
the Reference by holding that industrial adjudicator does not have the
power to direct creation of posts through the relief of grant of
permanency on completion of 240 days of service. It has held that mere
completion of 240 days of service does not warrant a direction for grant of
permanency in an instrumentality of State. The Division Bench held thus:
19. In this reference, the position emerging before us is similar. There is no
conflict between the provisions of M.S.O. 4-C and the provisions of the S. 76 of
the 1965 Act. In the event of the appointment having been made validly, it may
be possible to invoke the provisions Cl. 4-C of M.S.O. A view to the contrary
would result in regularizing/validating a void act. Cl. 4-C neither permits nor
contemplates the same. As held in the above judgments, if the appointment is
not made in accordance with the constitutional scheme, it is void ab-initio and,
therefore, there can be no claim to its regularization or for grant of permanency
in any manner. This is all the more so as Cl. 32 of the M.S.O. clarifies that the
Standing Orders are not to operate in derogation of any other law i.e. S. 76 of
1965 Act. Definitely any interpretation of Clause 4C conducive to defeating the
Constitutional mandate is unwarranted. Violation of Clause 4C of the MSO may
tantamount to an unfair labour practice under item 9 of Sch. IV of the 1971 Act
but unless & until, other additional factors are proved on record, finding of
indulgence in an unfair labour practice under item 6 of Sch. IV thereof can not
be reached. As explained by the Hon. Apex Court in case of Maharashtra SRTC
v. Casteribe Rajya Parivahan Karmchari Sanghatana, (supra), existence of a legal
vacancy must be established & as discussed above, the power to recruit with the
employer must also be demonstrated. In absence thereof, workman can not
succeed in proving the commission of unfair labour practice under item 6 by the
employer. These two ingredients, therefore, also must be established when
benefit of Cl. 4-C is being claimed. Unless availability of a vacancy is shown or
then power with the employer to create the post and to fill it is brought on
record, mere continuation of 240 days can not and does not enable the workman
to claim permanency by taking recourse to Cl. 4C read with item 9 of Sch. IV of
1971 Act. Clause 4C does not employ word "regularisation" but then it is
implicit in it as no "permanency" is possible without it. Conversely, it follows
that when a statutory provision like S. 76 disables the employer either from
creating or filling in the posts, such a claim can not be sustained. This also
nullifies the reliance upon the judgment of learned Single Judge in case of
Maharashtra Lok Kamgar Sanghatana v. Ballarpur Industries Limited (supra)
where the employer was a private Company not subjected to such regulatory
measures by any Statute and enjoyed full freedom to create the posts and to
recruit. One of us (B.P. Dharmadhikari, J.) is party to the judgment of this Court
in Raymond UCO Denim Private Ltd. v. Praful Warade & Ors. (supra) which
again needs to be distinguished for the same reasons. The judgment of learned
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Single Judge in case of Indian Tobacco Company Ltd. v. The Industrial Court
and Ors. (supra), judgment of Hon'ble Apex Court affirming it or then judgment
of Hon'ble Apex Court reported at Western India Match Company Ltd. and
Workmen are all considered therein & are distinguishable as the same do not
pertain to the province of public employment or consider inherent
Constitutional restraints (the suprema lex - see Mahendra L. Jain v. Indore
Development Authority and others (supra) and Cl. 32 of the MSO. For same
reasons, law laid down by the Full Bench judgment of this Court in
MANU/MH/0888/2006 : 2007 (1) CLR 460 : 2007 (1) Mah. L.J. 754- Gangadhar
Balgopal Nair v. Voltas Limited & Anr. does not advance the cause of workmen.
The Division Bench of this Court in May & Baker Ltd. v. Kishore Jaikishandas
Icchaporia (supra) while construing Section 10-A(3) held that the expression
"other law" would not refer to the model standing orders or the certified
standing orders since they are laws made under the provisions of parent act
itself and not under any other law. The Model Standing Orders and Certified
Standing Orders, held the Division Bench, "are laws no doubt but they are laws
made under the provisions of the Act". They were held not to be provisions
under any other law. This discussion therefore shows how these words "in
derogation of any law for the time being in force" in Cl. 32 of MSO need to be
understood & does not help Adv. Jaiswal or Adv. Khan.
20. In Vice-chancellor, Lucknow University v. Akhilesh Kumar Khare & Anr.
(supra) relied upon by Adv. Parihar, Hon. Apex Court follows its Constitution
Bench in Umadevi (III) and while rejecting relief of regularization to the daily
wagers who were engaged in public employment without proper procedure,
grants them compensation of Rs. 4 Lakh each by way of compassion. This
judgment does not consider any welfare labour legislation and, therefore, can
not provide direct answer to the reference made. Judgment of this Court taking
similar view in the light of 1971 Act in the case of Punjabrao Krishi Vidyapeeth,
Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union & Anr. (supra) is
already considered above. The Division Bench of this Court in State of
Maharashtra and Anr. v. Pandurang Sitaram Jadhav (supra) finds that the
respondents before it were employed as daily wagers in the establishment of the
government milk dairy for a longer period of 12 to 20 years. There were no
sanctioned posts and vacancies in existence in the concerned department.
Respondents failed to demonstrate that their appointments were made in
accordance with the procedure prescribed for selection. The Division Bench
finds it wholly unjust to direct the appellant State Government to grant
permanency to the respondents. It points out that the provisions of Model
Standing Orders are subject to the Rules regulating selection and appointment
so also subject to the constitutional scheme of public employment.
Respondents - Daily wagers are declared to possess no legal right to claim
permanency. Order passed by the learned Single Judge to the contrary have
been quashed. State Government is held obliged to make appointments in
adherence to the constitutional scheme of Public employment. Respondents -
Daily Wagers appointed without following the prescribed procedure for
selection by passing public participation did not acquire any legal right to claim
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permanency. It is apparent that no inconsistency exists and cannot be worked
out in State of Maharashtra & Anr. v. Pandurang Sitaram Jadhav as also Pune
Municipal Corporation v. Dhananjay Prabhakar Gokhale (supra) on one hand
and Ballarpur Industries Limited v. Maharashtra Lok Kamgar Sanghatana
(supra) on the other hand. Status of employer, nature of employment and
inherent Constitutional limitation on public employer or absence of such fetters
on any private employer or absolute freedom available to it to create post/s and
recruit, are some of the distinguishing features which prohibit this exercise.
21. Thus, in the light of this discussion, it follows that in absence of vacant
sanctioned posts with the Municipal Council, a workman who has put in
continuous service of 240 days or more in span of 12 months, can not invoke
Clause 4C of the MSO to claim either permanency or regularization. We
accordingly answer the question referred. Registry to place the writ petitions
before the learned Single Judge as per roaster assignment for further
consideration.
21) The judgment of the Division Bench in Municipal Council,
Tirora has been followed by the Single Judge of this Court in Raigad Zilla
Parishad V/s. Kailash Balu Mhatre and Ors. 9, in which this Court has
held that regularization cannot be automatic on completion of 240 days
of service under Clause-4C of Model Standing Orders in absence of
sanctioned vacancies. In that case, this Court has adopted the formula of
sending proposal to the State Government for sanction/creation of posts
for considering regularization of temporary workers who had rendered
substantially long service.
22) However, recently, there have been at least four judgments
delivered by the Hon’ble Apex Court directing regularisation of services of
temporary workers, who were found to have been employed for a
considerable period of time. The judgments take into consideration the
ratio of the judgment in Umadevi, but have directed regularization of
temporary workers who were found to have been engaged for several
9
2022 (2) Mh.L.J.146
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years by applying the exception recognised in para 53 of the judgment of
the Constitution Bench. It would be apt to take into consideration ratio of
those judgments.
23) In Jaggo vs. Union of India10, the Apex Court has held that
the judgment in Umadevi sought to curtail the practice of backdoor
entries and ensure appointments adhere to constitutional principles, its
principles are often misinterpreted or misapplied to deny legitimate
claims of long-serving employees. It is held that the judgment in
Umadevi is aimed at distinguishing between “illegal” and “irregular”
appointments and that the judgment holds that employees in irregular
appointments, who were engaged in duly sanctioned posts and had served
continuously for more than ten years, should be considered for
regularization as a one-time measure. It is further held that the laudable
intent of the judgment is being subverted when institutions rely on its
dicta to indiscriminately reject the claims of employees, even in cases
where their appointments are not illegal, but merely lack adherence to
procedural formalities. It is held in paras-21 to 26 of the judgment in
Jaggo has held as under:
21. The High Court placed undue emphasis on the initial label of the appellants'
engagements and the outsourcing decision taken after their dismissal. Courts
must look beyond the surface labels and consider the realities of employment :
continuous, long-term service, indispensable duties, and absence of any mala
fide or illegalities in their appointments. In that light, refusing regularization
simply because their original terms did not explicitly state so, or because an
outsourcing policy was belatedly introduced, would be contrary to principles of
fairness and equity.
22. The pervasive misuse of temporary employment contracts, as exemplified in
this case, reflects a broader systemic issue that adversely affects workers' rights
and job security. In the private sector, the rise of the gig economy has led to an
10
2024 SCC Online 3826
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increase in precarious employment arrangements, often characterized by lack of
benefits, job security, and fair treatment. Such practices have been criticized for
exploiting workers and undermining labour standards. Government
institutions, entrusted with upholding the principles of fairness and justice,
bear an even greater responsibility to avoid such exploitative employment
practices. When public sector entities engage in misuse of temporary contracts,
it not only mirrors the detrimental trends observed in the gig economy but also
sets a concerning precedent that can erode public trust in governmental
operations.
23. The International Labour Organization (ILO), of which India is a founding
member, has consistently advocated for employment stability and the fair
treatment of workers. The ILO's Multinational Enterprises Declaration
encourages companies to provide stable employment and to observe obligations
concerning employment stability and social security. It emphasizes that
enterprises should assume a leading role in promoting employment security,
particularly in contexts where job discontinuation could exacerbate long-term
unemployment.
24. The landmark judgment of the United State in the case of Vizcaino v.
Microsoft Corporation serves as a pertinent example from the private sector,
illustrating the consequences of misclassifying employees to circumvent
providing benefits. In this case, Microsoft classified certain workers as
independent contractors, thereby denying them employee benefits. The U.S.
Court of Appeals for the Ninth Circuit determined that these workers were, in
fact, common-law employees and were entitled to the same benefits as regular
employees. The Court noted that large Corporations have increasingly adopted
the practice of hiring temporary employees or independent contractors as a
means of avoiding payment of employee benefits, thereby increasing their
profits. This judgment underscores the principle that the nature of the work
performed, rather than the label assigned to the worker, should determine
employment status and the corresponding rights and benefits. It highlights the
judiciary's role in rectifying such misclassifications and ensuring that workers
receive fair treatment.
25. It is a disconcerting reality that temporary employees, particularly in
government institutions, often face multifaceted forms of exploitation. While
the foundational purpose of temporary contracts may have been to address
short-term or seasonal needs, they have increasingly become a mechanism to
evade long-term obligations owed to employees. These practices manifest in
several ways:
• Misuse of “Temporary” Labels: Employees engaged for work that is
essential, recurring, and integral to the functioning of an institution are
often labeled as “temporary” or “contractual,” even when their roles
mirror those of regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that regular employees are
entitled to, despite performing identical tasks.
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• Arbitrary Termination: Temporary employees are frequently
dismissed without cause or notice, as seen in the present case. This
practice undermines the principles of natural justice and subjects
workers to a state of constant insecurity, regardless of the quality or
duration of their service.
• Lack of Career Progression: Temporary employees often find
themselves excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain stagnant in their
roles, creating a systemic disparity between them and their regular
counterparts, despite their contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly resort to
outsourcing roles performed by temporary employees, effectively
replacing one set of exploited workers with another. This practice not
only perpetuates exploitation but also demonstrates a deliberate effort
to bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are often
denied fundamental benefits such as pension, provident fund, health
insurance, and paid leave, even when their tenure spans decades. This
lack of social security subjects them and their families to undue
hardship, especially in cases of illness, retirement, or unforeseen
circumstances.
26. While the judgment in Uma Devi (supra) sought to curtail the practice of
backdoor entries and ensure appointments adhered to constitutional principles,
it is regrettable that its principles are often misinterpreted or misapplied to
deny legitimate claims of long-serving employees. This judgment aimed to
distinguish between “illegal” and “irregular” appointments. It categorically held
that employees in irregular appointments, who were engaged in duly sanctioned
posts and had served continuously for more than ten years, should be
considered for regularization as a one-time measure. However, the laudable
intent of the judgment is being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even in cases where their
appointments are not illegal, but merely lack adherence to procedural
formalities. Government departments often cite the judgment in Uma
Devi (supra) to argue that no vested right to regularization exists for temporary
employees, overlooking the judgment's explicit acknowledgment of cases where
regularization is appropriate. This selective application distorts the judgment's
spirit and purpose, effectively weaponizing it against employees who have
rendered indispensable services over decades.
24) In Vinod Kumar and Ors. vs. Union of India and Ors.11, the
Hon'ble Apex Court has held that the essence of employment and the
rights thereof cannot be determined merely by the initial terms of
appointment when the actual course of employment has evolved
11
(2024) 9 SCC 327
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significantly over time. It is further held that the failure to recognise the
substantive nature of employees’ roles and their continuous service akin
to permanent employees runs counter to the principles of equity, fairness,
and the intent behind employment regulations. The Court held in paras-5
to 9 of the judgment as under:
5. Having heard the arguments of both the sides, this Court believes that the
essence of employment and the rights thereof cannot be merely determined by
the initial terms of appointment when the actual course of employment has
evolved significantly over time. The continuous service of the appellants in the
capacities of regular employees, performing duties indistinguishable from those
in permanent posts, and their selection through a process that mirrors that of
regular recruitment, constitute a substantive departure from the temporary and
scheme-specific nature of their initial engagement. Moreover, the appellants'
promotion process was conducted and overseen by a Departmental Promotional
Committee and their sustained service for more than 25 years without any
indication of the temporary nature of their roles being reaffirmed or the
duration of such temporary engagement being specified, merits a
reconsideration of their employment status.
6. The application of the judgment in Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] by the High Court does not fit squarely
with the facts at hand, given the specific circumstances under which the
appellants were employed and have continued their service. The reliance on
procedural formalities at the outset cannot be used to perpetually deny
substantive rights that have accrued over a considerable period through
continuous service. Their promotion was based on a specific notification for
vacancies and a subsequent circular, followed by a selection process involving
written tests and interviews, which distinguishes their case from the
appointments through back door entry as discussed in Umadevi (3).
7. The judgment in Umadevi (3) also distinguished between “irregular” and
“illegal” appointments underscoring the importance of considering certain
appointments even if were not made strictly in accordance with the prescribed
Rules and Procedure, cannot be said to have been made illegally if they had
followed the procedures of regular appointments such as conduct of written
examinations or interviews as in the present case. Para 53 of Umadevi (3) case is
reproduced hereunder:
xxxx
8. In light of the reasons recorded above, this Court finds merit in the
appellants' arguments and holds that their service conditions, as evolved over
time, warrant a reclassification from temporary to regular status. The failure to
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recognise the substantive nature of their roles and their continuous service akin
to permanent employees runs counter to the principles of equity, fairness, and
the intent behind employment regulations.
9. Accordingly, the appeals are allowed. The judgment [Vinod Kumar v. Central
Administrative Tribunal, 2016 SCC OnLine All 4489] of the High Court is set
aside, and the appellants are entitled to be considered for regularisation in their
respective posts. The respondents are directed to complete the process of
regularisation within 3 months from the date of service of this judgment.
25) In Rajkaran Singh and Ors. vs. Union of India and Ors. 12,
the Hon'ble Apex Court has held in paras-31 to 34 as under:
31. As held in Vinod Kumar (supra), “the essence of employment and the rights
thereof cannot be merely determined by the initial terms of appointment when
the actual course of employment has evolved significantly over time.”
32. This Court fully associates with this principle and finds it wholly applicable
in the present case, especially in light of the administrative orders and Board
proceedings referred to supra that have consistently treated the appellants as
equivalent to regular government employees. The mere classification of
employees as ‘temporary’ or ‘permanent’ is not merely a matter of
nomenclature but carries significant legal implications, particularly in terms of
service benefits and protections.
33. In the present case, the totality of circumstances indicates that despite their
formal classification as temporary employees, the appellants’ employment
bears substantial hallmarks of regular government service. The denial of
pensionary benefits solely on the basis of their temporary status, without due
consideration of these factors, appears to be an oversimplification of their
employment relationship with the government. This approach runs the risk of
creating a class of employees who, despite serving the government for decades
in a manner indistinguishable from regular employees, are deprived of the
benefits and protections typically accorded to government servants.
34. Thus, we are of the opinion that the denial of pensionary benefits to the
appellants is not tenable or justifiable in the eyes of law as the same is arbitrary
and violates the fundamental rights as guaranteed by Articles 14 and 16 of
the Constitution of India. It is indeed relevant to note that the appellants’ batch
seems to be the last in their genre of SSD Fund temporary employees and thus,
manifestly, the direction to extend the benefits of the 6th CPC and the RP Rules
to the appellants shall not form a precedent so as to have a detrimental effect
on the financial health of the SSD Fund.
12
2024 SCC OnLine SC 2138
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26) In Shripal and Another Vs. Nagar Nigam Gaziabad 13, the
Apex Court has dealt with a case where a claim was raised that the
workers were engaged through contractors. It is held that the Horticulture
Department was actually supervising their work and was paying them
wages. The Apex Court also held that there was no evidence of issuance of
tenders for engagement of contractors. The Apex Court also held that the
termination of the workers without following statutory obligations was
illegal. It is held by the Apex Court in the judgment as under:
10. The Respondent Employer consistently labelled the Appellant Workmen as
casual employees (or workers engaged through an unnamed contractor), yet
there is no material proof of adherence to Section 6N of the U.P. Industrial
Disputes Act, 1947, which mandates a proper notice or wages in lieu thereof as
well as retrenchment compensation. In this context, whether an individual is
classified as regular or temporary is irrelevant as retrenchment obligations
under the Act must be met in all cases attracting Section 6N. Any termination
thus effected without statutory safeguards cannot be undertaken lightly.
11. Furthermore, the Employer's stance that there was never a direct employer-
employee relationship is wholly unsubstantiated. If, in fact, the Appellant
Workmen had been engaged solely through a contractor, the Employer would
have necessarily maintained some form of contract documentation, license
copies, or invoices substantiating the contractor's role in hiring, paying, and
supervising these workers. However, no such documents have been placed on
record. Additionally, the Employer has failed to establish that wages were ever
paid by any entity other than its own Horticulture Department, which strongly
indicates direct control and supervision over the Workmen's day-to-day tasks is
a hallmark of an employer-employee relationship. Had there been a legitimate
third-party contractor, one would expect to see details such as tender notices,
contract agreements, attendance records maintained by the contractor, or
testimony from the contractor's representatives. The absence of these crucial
elements undermines the Employer's claim of outsourced engagement. In fact,
it appears that the Workmen were reporting directly to the Horticulture
Department officials, receiving instructions on their duties, and drawing wages
issued under the Municipality's authority. This pattern of direct oversight and
wage disbursement substantially negates the narrative that they were
“contractor's personnel.” Consequently, the discontinuation of their services
carried out without compliance with statutory obligations pertaining to notice,
retrenchment compensation, or approval under Section 6E of the U.P. Industrial
Disputes Act, stands on precarious ground. The very foundation of the
13
2025 SCCOnline SC 221
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Employer's defense (i.e., lack of an employer-employee relationship) is not
supported by any credible or contemporaneous evidence.
12. The evidence, including documentary material and undisputed facts, reveals
that the Appellant Workmen performed duties integral to the Respondent
Employer's municipal functions specifically the upkeep of parks, horticultural
tasks, and city beautification efforts. Such work is evidently perennial rather
than sporadic or project-based. Reliance on a general “ban on fresh
recruitment” cannot be used to deny labor protections to long-serving
workmen. On the contrary, the acknowledged shortage of Gardeners in the
Ghaziabad Nagar Nigam reinforces the notion that these positions are essential
and ongoing, not intermittent.
13. By requiring the same tasks (planting, pruning, general upkeep) from the
Appellant Workmen as from regular Gardeners but still compensating them
inadequately and inconsistently the Respondent Employer has effectively
engaged in an unfair labour practice. The principle of “equal pay for equal
work,” repeatedly emphasized by this Court, cannot be casually disregarded
when workers have served for extended periods in roles resembling those of
permanent employees. Long-standing assignments under the Employer's direct
supervision belie any notion that these were mere short-term casual
engagements.
14. The Respondent Employer places reliance on Umadevi (supra)2 to contend
that daily-wage or temporary employees cannot claim permanent absorption in
the absence of statutory rules providing such absorption. However, as
frequently reiterated, Uma Devi itself distinguishes between appointments that
are “illegal” and those that are “irregular,” the latter being eligible for
regularization if they meet certain conditions. More importantly, Uma
Devi cannot serve as a shield to justify exploitative engagements persisting for
years without the Employer undertaking legitimate recruitment. Given the
record which shows no true contractor-based arrangement and a consistent
need for permanent horticultural staff the alleged asserted ban on fresh
recruitment, though real, cannot justify indefinite daily-wage status or
continued unfair practices.
15. It is manifest that the Appellant Workmen continuously rendered their
services over several years, sometimes spanning more than a decade. Even if
certain muster rolls were not produced in full, the Employer's failure to furnish
such records—despite directions to do so—allows an adverse inference under
well-established labour jurisprudence. Indian labour law strongly disfavors
perpetual daily-wage or contractual engagements in circumstances where the
work is permanent in nature. Morally and legally, workers who fulfil ongoing
municipal requirements year after year cannot be dismissed summarily as
dispensable, particularly in the absence of a genuine contractor agreement.
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27) Recently in Deepak Prakash Ghole and Ors. vs. Savitribai
Phule Pune University14, this Court had an occasion to decide
regularisation of services of temporary employees working in Pune
University. After considering the ratio of the judgments of the Apex Court
in Jaggo, Vinod Kumar, and Rajkaran Singh (supra), this Court held in
paras-8 and 12 of the judgment as under:
8. In my view, the cases of the Petitioners need to be reconsidered by the
Respondent-University in the light of the changed scenario. This Court is not
proposing to direct Respondent-University to create posts for absorption of the
Petitioners. However, in the event there are vacant sanctioned posts in the
University for the purpose of accommodation of the Petitioners, the
Respondent-University can absorb the Petitioners against such posts rather
than filling them up through open advertisements. Mr. Naidu contends that
there is no dispute about the eligibility of the Petitioners to hold the respective
posts. Though Mr. Apte disputes this position, the Management Council has not
recorded any finding about non-holding of requisite qualifications while
considering the cases of the Petitioners for regularization. What essentially
came in their way was absence of regularly sanctioned posts at the time of their
initial engagements and non-conduct of proper selection process at that time.
However, if the posts are now existing for the purpose of absorption of the
Petitioners, I do not see any reason why Petitioners should be continued on
temporary basis forever. In view of the limited injunction passed by the
Industrial Court, and as per decision taken by the Management Council in
meeting dated 19 July 2016, and particularly in view of need of the Respondent-
University, services of Petitioners are likely to be utilized in future as well. In
such circumstances, it is appropriate that the cases of the Petitioners are
considered for regular absorption against available posts, if any.
xxx
12. I am sure, the Respondent-University would keep in mind the ratio of the
above-quoted judgments while considering the cases of the Petitioners for
absorption. In the event regular posts are not available for absorption of the
Petitioners, the Respondent-University would be justified in rejecting the cases
of the Petitioners for absorption. However, if posts are available, the long
length of service rendered by the Petitioners needs to be borne in mind for
considering their cases for conferment of benefit of permanency on them.
28) Having discussed the law on the issue of regularisation, I now
proceed to decide whether the directions issued by the Industrial Tribunal
14
Writ Petition No. 14337 of 2024 decided on 11 June 2026
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for grant of permanency to the workmen in the present case warrant any
interference. As observed above, the Industrial Court has directed grant of
permanency to the seven workmen w.e.f. January 2023. Here it must be
noted that there is a very fine distinction between the concepts of
‘regularisation’ and ‘permanency’, which is noted by the Constitution
Bench in Umadevi after taking into consideration its judgments in R. N.
Nanjundappa vs T. Thimmiah & Anr 15 and B.N. Nagarajan Versus.
State of Karnataka16. It is held that the words ‘regular’ or ‘regularisation’
are calculated to condone any procedural irregularities and are meant to
cure only such defects as are attributable to methodology followed in
making the appointments. Keeping in mind the distinction in
‘regularisation’ and ‘permanency’, the Apex Court has held in Umadevi
that only something that is irregular for want of compliance with one of
the elements in the process of selection which does not go to the root of
the process, can be regularized and that it alone can be regularized and
granting permanence of employment is a totally different concept and
cannot be equated with regularization. The Industrial Adjudicators very
often use the word ‘permanency’ possibly on account of the concept
under the Standing Orders. However, when a benefit is sought to be
granted to the workmen on the basis of long length of service, the Courts,
Tribunals and even industrial adjudicators should ideally direct grant of
regularisation and not grant of permanency. This is because the
irregularity in making initial appointments are being condoned on the
strength of long length of service and therefore what is undertaken is the
exercise of ‘regularisation’ and not conferment of ‘permanency’. This
Court has dealt with the difference in the two concepts in ONGC Vs.
15
1972 2 SCR 799
16
(1979) 4 SCC 507
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Central Government Industrial Tribunal17. It is held in para 30 and 31 of
the judgment as under:
30. Mr. Cama has attempted to highlight the inconsistencies in use of
the word ‘regularisation’ in the Reference as against use of the word
‘permanency’ in the Award. He has relied on judgment of the Apex Court
in Umadevi (3) in support of his contention that regularization and
permanency are two different concepts. After referring to the judgment
in R. N. Nanjundappa vs T. Thimmiah & Anr and B.N. Nagarajan
Versus. State of Karnataka, the Apex Court held in paragraphs 15 and
16 as under:
15. Even at the threshold, it is necessary to keep in mind the
distinction between regularization and conferment of
permanence in service jurisprudence. In State of Mysore v. S.V.
Narayanappa MANU/SC/0232/1966 : [1967]1SCR128 , this Court
stated that it was a mis-conception to consider that
regularization meant permanence. In R.N. Nanjundappa v. T.
Thimmiah and Anr. MANU/SC/0680/1971 : (1972)ILLJ565SC , this
Court dealt with an argument that regularization would mean
conferring the quality of permanence on the appointment. This
Court stated:-
Counsel on behalf of the respondent contended that
regularization would mean conferring the quality of
permanence on the appointment, whereas counsel on
behalf of the State contended that regularization did not
mean permanence but that it was a case of regularization
of the rules under Article 309. Both the contentions are
fallacious. If the appointment itself is in infraction of the
rules or if it is in violation of the provisions of the
Constitution, illegality cannot be regularized. Ratification
or regularization is possible of an act which is within the
power and province of the authority, but there has been
some non-compliance with procedure or manner which
does not go to the root of the appointment.
Regularization cannot be said to be a mode of
recruitment. To accede to such a proposition would be to
introduce a new head of appointment in defiance of rules
or it may have the effect of setting at naught the rules.
16. In B.N. Nagarajan and Ors. v. State of Karnataka and
Ors. MANU/SC/0450/1979 : (1979)IILLJ209SC , this Court
clearly held that the words "regular" or "regularization" do
not connote permanence and cannot be construed so as
to convey an idea of the nature of tenure of
17
Writ Petition No. 13673 of 2025 decided on 9 September 2026
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appointments. They are terms calculated to condone any
procedural irregularities and are meant to cure only such
defects as are attributable to methodology followed in
making the appointments. This court emphasized that
when rules framed under Article 309 of the Constitution
of India are in force, no regularization is permissible in
exercise of the executive powers of the Government under
Article 162 of the Constitution in contravention of the
rules. These decisions and the principles recognized
therein have not been dissented to by this Court and on
principle, we see no reason not to accept the proposition
as enunciated in the above decisions. We have, therefore,
to keep this distinction in mind and proceed on the basis
that only something that is irregular for want of
compliance with one of the elements in the process of
selection which does not go to the root of the process, can
be regularized and that it alone can be regularized and
granting permanence of employment is a totally different
concept and cannot be equated with regularization.
31. No doubt, the concept of regularization and permanency are distinct
and different. Regularization envisages conversion of irregular
appointments into regular ones. In paragraph 53 of the judgment in
Umadevi (3), the Apex Court has explained the scope of regularization
and held that only duly qualified employees engaged against duly
sanctioned and vacant posts may be considered for regularization, even
though the regular selection process was not followed at the time of
their initial engagements. In the present case also, the workers were
duly qualified and also participated in the selection process by appearing
in written tests. Whether posts were sanctioned at the oil rigs is itself a
matter of debate, particularly in view of the peculiar nature of the
activities undertaken by ONGC. However, the fact that services of the
workers are continued for over 25 years can give rise to an assumption
about need for their services. Therefore, the benefit of regularization
cannot be denied to them.
29) In the present case, the Industrial Tribunal has granted the
benefit to the workmen w.e.f. 1 January 2023 after noting existence of
regular posts. Therefore, what is granted in the real sense is
regularization. Be that as it may. I now proceed to determine whether the
direction of the Industrial Tribunal to grant even regularization from 1
January 2023 is in order or not.
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30) The seven workmen have undoubtedly worked with the FTII
since 2003 till they were terminated during pendency of the Reference in
2018. However, In the present case, there is slight twist added on account
of conversion of temporary services of the workmen into contractual
services since the year 2007. It appears that during 2003 to 2007, the
concerned workmen had worked directly with FTII. Though they were
temporary and were engaged without issuance of any appointment
orders, there is no denial to the fact that direct payments were made to
them by FTII. May be after the judgment of the Constitution Bench in
Umadevi, the FTII turned smarter and decided to convert direct
engagement of the workmen into contractual arrangement. From 1
January 2007 onwards, it appears that the workmen were routed through
the contractors. It is not a matter of coincidence that when contracts
were issued to different contractors from 1 January 2007, the contractor
chose to hire services of the same workmen who had earlier worked with
FTII. Ordinarily, when a work is outsourced to a contractor, the contractor
brings in his own workmen to perform the contract. To illustrate, if
housekeeping contract is awarded, the contractor quotes rates and
accordingly deploys his own workers to perform the contract. When the
contract ends and some other contractor is appointed, the earlier
contractor withdraws his staff and they get replaced by the staff of the
new contractor. The contractor whose contract ends thereafter may
secure a contract with some other organisation and the staff withdrawn
from earlier establishment gets deployed with the new establishment.
This is the broad framework of outsourcing of work to a contractor.
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31) In the present case however, when Aces India Pvt. Ltd was
awarded contract from 1 January 2007 to 31 March 2008, the contractor
engaged services of the 7 workmen instead of bringing in its own staff.
When the contract of Ace India Pvt. Ltd. ended and the new contractor
was appointed (Global Enterprises) on 1 May 2008, the new contractor
again hired the services of the 7 workmen. This saga continued upto the
last contractor-Sigma Human Resources (India) Pvt. Ltd. who was the
contractor at the time of making of the Reference. Thus, services of the
workmen are continued by four distinct contractors. Thus, the contractors
changed, but the 7 workmen continued to work at FTII. There is thus
continuity in services of the 7 workmen with FTII, initially as direct
workers of FTII during 2003 to 2006 and later through distinct contractors
till they were terminated in 2018. In my view, this is the most important
factor which needs to be kept in mind for holding that the 7 workmen
were indeed the workers of FTII and they were merely routed through
contractors with a view to avoid liability to regularise their services. This
is one of the most vital tests prescribed by the Apex Court in Balwant Rai
Saluja and Anr. (supra). The six tests laid down by the Apex Court in its
judgment in Balwant Rai Saluja for establishment of employer-employee
relationship are as under:
65. Thus, it can be concluded that the relevant factors to be taken into
consideration to establish an employer-employee relationship would include,
inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there exists
complete control and supervision.
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As regards extent of control and supervision, we have already taken note of the
observations in Bengal Nagpur Cotton Mills case ((2011) 1 SCC 635),
International Airport Authority of India case ((2009) 13 SCC 374) and Nalco case
((2014) 6 SCC 756).
32) In the present case, the first test is satisfied as FTII made the
initial engagement. The second test is also satisfied as initially for three
years, the wages were paid by the FTII. During initial spell of services,
FTII had the authority to dismiss. The decision to terminate the services
in 2018 is also taken by FTII. There is continuity of services despite
change of contractors, which satisfies the fifth condition. The test of
supervision and control is also satisfied as it is the case of FTII that the
workers used to be utilised by the students for their projects in the
studios. Also, since same workmen continued under different contractors,
supervision and control over them by FTII can easily be inferred. If the
workers had relationship only with the contractor without any semblance
of relationship with FTII, same workers could not have continued over a
period of 15 long years initially as direct workers of FTII and later through
different contractors. Another important test fulfilled in the present case
is initial direct employment by the FTII and their subsequent routing
through the contractor. In the present case therefore, several tests laid
down by the Apex Court in its judgment in Balwant Rai Saluja are clearly
established. It therefore becomes difficult to believe that the workers did
not have a right to be considered for regularisation/permanency in
services of FTII merely because they were paid through different
contractors.
33) Having held that the seven workers were indeed the direct
temporary workers of FTII, I now proceed to decide as to whether in the
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light of the law laid down by the Apex Court in various judgments, they
have established right of regularization in the facts of the present case. As
observed above, the workers continued to work with FTII for 15 long
years. They were terminated during pendency of the Reference. The
termination was effected in order to avoid the liability to regularise their
services. Though FTII has raised a defence that engagement of workers
was made based on need of the students, it has ultimately come on record
that FTII has created 15 posts of Studio Assistants and issued
advertisement No.1/2023 for filling them up. Therefore, at least since
2023, there is no concept of need-based engagements. Now, the FTII has
finally realised the need for services of at least 15 Studio Assistants and
has accordingly created 15 posts. The defence of need-based engagement
therefore deserves outright rejection.
34) Ms. Telang has submitted that FTII does not have the power
to create posts. She has relied on Office Memorandum dated 4 January
2024 issued by the Government of India, Ministry of Finance, Department
of Expenditure by which a compendium of instructions for creation,
revival, conversion and transfer of posts in autonomous bodies of the
Central Government is issued. The Office Memorandum, however, lays
down mere guidelines for creation of posts in the autonomous bodies of
the Central Government. In the present case, creation of posts has
occurred either in the year 2023 or before that year, since the
advertisement was issued in the year 2023 for filing up the posts. In that
sense, the Office Memorandum dated 4 January 2024 has no relevance to
creation of posts of Studio Assistants in FTII. However, since Mr. Telang
has strenuously relied on the Office Memorandum dated 4 January 2024,
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this Court repeatedly queried with her as to whether there is any letter or
order of the Ministry of the Central Government sanctioning 15 posts of
Studio Assistants. Ms. Telang, however, is unable to invite attention of
the Court to any such letter or order. On the other hand, this Court has
noted the submission of Ms. Telang that FTII is now an autonomous
institute and has undertaken several Postgraduate courses, for which
there is need for posts of Studio Assistants. Since the defence of
“autonomous institute” is raised, it gives room to infer that the decision
to create posts may have been taken by FTII itself in exercise of the
autonomy extended to it. Be that as it may. It is not necessary to delve
deeper into that aspect. This Court is not directing creation of posts for a
period prior to 1 January 2023. Whoever might have created the posts,
what is of relevance is the fact that the posts have been created in the
year 2023 and that they do exist.
35) The Industrial Tribunal has rightly taken into consideration
the factum of existence of 15 posts of Studio Assistants for the purpose of
considering the prayer of the 7 workers for regularisation/permanency.
Thus, the present case is clearly covered by the exception recognised by
the Hon'ble Apex Court in para-53 of its judgment in Umadevi. The 7
workers have worked with FTII for more than 10 years. Their
appointments may have been irregular on account of non-following of
selection process at the time of their initial engagements. In my view
therefore, the case involves regularisation of irregularly appointed staff,
who have worked for more than 10 years. Therefore, even in the light of
the judgment of the Apex Court in Umadevi, the workmen did establish
their right of regularisation before the Industrial Tribunal. If the
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subsequent judgments of the Hon'ble Apex Court in Jaggo, Vinod Kumar,
Rajkaran Singh and Shripal (supra) are taken into consideration, it is
difficult to hold that regularisation can be denied to the 7 workers.
36) It appears that there was dispute before the Industrial
Tribunal about the exact dates of initial engagements. The Tribunal has
recorded following findings on the issue:
27. Letter dated 28/04/2015 was not proved by the Second Party. However, as
per direction of this Tribunal dated 12/04/2023 below Exh. U-18, the Labour
Commissioner Authority has produced original letter dated 28/04/2015 bearing
signature of the Registrar of FTI. This document is admitted by the second
party. Though, this document is disputed by the First Party, but it is on the
count of admissibility only and mode of proof. Objection regarding
genuineness/truthfulness of the said document is not raised by the First Party.
Furthermore, First Party No.1 in its written statement has clearly admitted that
workers concerned were performing work of ‘Studio Assistant’ during the year
2005-2006.
26. In my view for the purpose of deciding the question as to whether workers
concerned were in employment of First Party No.1 prior to 2007, letter dated
28/04/2015 coupled with admission of First Party No.1 in its Written Statement,
are very important. This is an admission of FTII in respect of engagement of
workers concerned with FTII prior to 2007. Therefore, this admission can very
well be considered for determination of question referred for adjudication.
27. From letter dated 28/04/2015, it can be inferred that workers namely Ram
Ambekar was working on daily wages since June 2005 upto December 2006,
Mahesh Pawar was working on daily wages since June 2005 up to December
2006 except November 2006, Prakash Kamble was working since November 2005
till December 2006, Javed Banedar was working on daily wages since July 2006
up to October 2006 and December 2006, Rahul Pawar was working on daily
wages since June 2006 up to October 2006 and December 2006, Amit Jagtap was
working on daily wages since May 2006 upto October 2006 and December 2006,
Mehboob Bhawan was working on daily wages since June 2006 upto September
2006.
28. It is the case of second party workers that since January 2007 onwards they
are shown to be working under Contractors. In fact, they were working with FTII
but were falsely shown as working under Contractors. The Ld. Counsel for the
Second Party strenuously submitted that change of employer since January 2007
is a change in service condition of workers concerned. No notice was given
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under Section 9-A of the I.D. Act. Therefore, act of First Party No.1, being in
breach of provisions of law, is illegal.
37) Mr. Malegaonkar submits that the workmen had filed an
application before the Industrial Tribunal seeking production of
documents relating to their initial engagements and that despite passing
of order for production of the documents, FTII failed to produce the same.
It appears that in absence of any concrete evidence about the exact dates
of initial engagements, the Industrial Tribunal has relied on letter dated
28 April 2015 for inferring that the workmen were engaged before 1
January 2007. The exact dates of initial engagements are not very relevant
for the purpose of determining the entitlement for regularization and
what really matters is the fact that FTII paid wages to the workers
directly. However since FTII withheld the records from the Industrial
Tribunal, this Court has accepted the contention of the workers that they
began services with FTII since 2003. However, nothing really turns on
whether the initial engagements were since 2003 or since the dates
indicated in Para 27 of the Industrial Tribunal’s Award.
38) Ms. Telang has highlighted the issue of delay in seeking
Reference and has relied on judgments of the Apex Court in U.P. State
Road Transport Corporation and Nedungadi Bank Ltd. (supra). In my
view, however, the claim for regularisation gives rise to continuous cause
of action. The claim for regularisation needs to be raised only after
rendering some length of service. No one can file claim for regularisation
immediately after appointment. In the present case, if the exception
recognised by the Hon’ble Apex Court in Umadevi is applied to the facts
here, it can be seen that the cause for making Reference seeking
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regularisation arose only after putting in 10 years of service. In my view
therefore, Reference made in the year 2015 cannot be treated as stale by
any stretch of imagination. Even if the factum of conversion of the
workmen from direct workers of FTII to workers of the contractors since
2008 is taken into consideration, it cannot be stated that in the context of
the prayer for regularization, the cause of action arose in the year 2008.
When the Reference was made, the seven workmen were working with the
FTII. Their grievance was not only about conversion of nature of their
services. If they were to seek restoration of their status as direct
temporary workers of FTII (which existed prior to the year 2008), what is
sought to be contended by Ms. Telang may have been true. However, the
relief sought in the reference was for grant of regularization for which the
entire stretch of service from 2003 onwards is of relevance. The point of
the contract being sham and bogus is raised only for the purpose of
establishment of a link and continuity between the two spells of service
from 2003 to 2007 and from 2008 onwards. Thus, the objection of delay
raised by FTII deserves rejection.
39) The FTII has erred in terminating the services of the
workmen during pendency of the Reference. While terminating their
services, the statutory requirements are not followed. The workmen are
not paid the retrenchment compensation or issued notice before
terminating their services. The statutory requirements are not followed
possibly on account of FTII’s stand that the workmen were not its
employees. The said plea is found to be erroneous. Therefore the
statutory requirements ought to have been followed even if the
termination was necessitated. Here termination is found to be
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unnecessary and the statutory requirements are also not followed. Also
provisions of Section 33 of the ID Act are violated in the present case as
termination was resorted to during pendency of the Reference. However,
it appears that the Industrial Tribunal has failed to pass formal order for
reinstatement while directing grant of benefit of permanency.
40) In view of the above discussion, it is seen that the workmen
did make out a case for grant of benefit of regularisation after working
with FTII for over 15 long years. This is particularly in view of existence of
15 vacancies of Studio Assistants since the year 2023. Ms. Telang has
fairly pointed out that FTII has kept on hold the recruitment process
initiated vide Advertisement No.1/2023 awaiting outcome of the present
petitions. Thus, none of the 15 vacancies are filled up and they are
available for consideration of cases of the 7 workmen for regularisation.
Thus there is no warrant for interference with the Award of the Industrial
Tribunal. Writ Petition filed by FTII therefore deserves to be dismissed.
41) So far as Writ Petition No. 14169 of 2025 filed by the 7
workmen is concerned, I do not find any merit in the same. The Petition
is filed seeking permanency from January 2003. Grant of permanency
since January 2003 is premised on Central Standing Orders. However,
perusal of the Standing Orders nowhere makes it mandatory that a casual
worker must be regularised or made permanent on completion of 90 days
of service as sought to be suggested by Mr. Malegaonkar. Even if there is
any such Standing Order, the same cannot be utilised for the purpose of
seeking permanency on completion of 90 days of service as held by this
Court in Municipal Council, Tirora (supra) in the context of Model
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Standing Order-4(c) applicable to establishments where State
Government is the Appropriate Government. Industrial adjudicator
cannot direct creation of posts on establishment of state
instrumentalities by granting permanency on completion of 240 days of
service. Applying similar analogy, mere completion of 90 days of service
in the Central Autonomous bodies is not a ground for granting
permanency to temporary workers. An industrial adjudicator cannot
indirectly ensure creation of posts on the establishment of FTII by
directing grant of permanency on completion of 90 days of service. In my
view therefore, Writ Petition No. 14169 of 2025 filed by the 7 workers
deserves to be dismissed.
42) The conspectus of the above discussion is that there is no
warrant for interference in the order passed by the Industrial Tribunal
directing grant of permanency to the workers since January 2023. It is
however necessary to clarify that the 7 workers shall not be entitled to
any benefits in respect of the period they were not in service i.e., from the
date of their termination w.e.f. 2 July 2018. Also, since permanency is
granted from January 2023 in Award delivered on 2 April 2024, the
workers shall be entitled to any notional benefits in respect of the period
from January 2023 to 2 April 2024. They shall be entitled to actual arrears
from the date of the judgment of the Industrial Tribunal w.e.f. 2 April
2024. Thus, there shall not be any benefit admissible to the workers in
respect of the period prior to January 2023. They would be entitled to
notional benefits from January 2023 to 1 April 2024 and actual benefits
from 2 April 2024 onwards.
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43) I accordingly proceed to pass the following order :
(i) Both the Petitions are dismissed.
(ii) The FTII shall reinstate the seven workmen in its service
on/or before 31 October 2026 as regular employees.
(iii) FTII shall grant notional benefits of permanency to the
seven workmen from January 2023 to 1 April 2024.
(iv) From 2 April 2024 onwards, the seven workmen shall be
entitled to actual arrears of pay, allowances and other
benefits.
44) With the above directions, both the Petitions are disposed of.
Considering the facts and circumstances of the case, there shall be no
order as to costs.
[SANDEEP V. MARNE, J.]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2026.09.29
18:10:30
+0530
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