Case Note & Summary
The judgment pertains to five writ petitions filed under Article 226 of the Constitution of India challenging an order dated 16th November 2015 by the Chief Judge, Court of Small Causes, Mumbai, removing the petitioners from government service. The petitioners were appointed on the establishment of the Small Causes Court as Hamal, Bailiff, and Clerk-Typist under a Government Scheme for appointment of relatives of retired Class IV government employees, as outlined in Government Resolutions dated 14th April 1981 and 10th December 1981. They had served for varying periods, with some claiming 18 years of service, and argued that their appointments were made following due procedure against sanctioned posts and that they were entitled to benefits on par with permanent government servants. They sought absorption or regularization of their services, asserting that their initial appointments were legal and that the subsequent removal was unconstitutional, violating Articles 14, 16, and 21. The respondents, including the Registrar of the Small Causes Court, the Registrar of the Bombay High Court, and the State of Maharashtra, contended that the appointments were invalid as they did not adhere to the regular recruitment process, particularly the requirement of notifying vacancies to the employment exchange, as mandated by earlier Government Circulars of 1956 and 1968. They argued that the 1981 circulars only relaxed certain conditions but did not dispense with the mandatory procedure, rendering the appointments back-door entries. The core legal issues revolved around the validity of compassionate appointments made in deviation from standard recruitment norms, the right to regularization after long service in such circumstances, and the interpretation of the applicable government circulars. The judgment excerpt, however, does not contain the final reasoning or decision of the court, leaving the outcome undetermined within the provided text.
Headnote
A) Service Law - Compassionate Appointments - Government Circulars allowing appointment of dependents of retiring Class IV employees do not override the constitutional requirement of equality in public employment under Articles 14 and 16 - Maharashtra Government Resolutions dated 14.04.1981 and 10.12.1981 - Petitioners claimed appointments under these circulars, but respondents argued that they only relaxed the condition of employment exchange recommendation, not the requirement to follow a fair and transparent selection process (Paras 4-8)
B) Service Law - Regularization of Back-Door Entries - Long service alone does not confer right to regularization if initial appointment was illegal and contrary to recruitment rules - Petitioners sought regularization after 18 years of service, but respondents contended that appointments made without following due process are void ab initio and cannot be regularized (Paras 4-5)
C) Constitutional Law - Public Employment - Articles 14 and 16 of the Constitution of India require that all public appointments be made through a transparent process, and any dispensing with such process for compassionate appointments must be strictly construed - The High Court was called upon to interpret the scope of the Government Circulars and whether they permitted back-door entries (Paras 4-5)
Issue of Consideration
Whether the removal of the petitioners, appointed under a government scheme for dependents of retired Class IV employees, was valid, and whether they were entitled to absorption/regularization after long years of service.
Law Points
- compassionate appointment
- back-door entry
- Articles 14 and 16
- absorption
- regularization
- employment exchange
- void ab initio
Case Details
2017 LawText (BOM) (04) 28
Writ Petition No. 11250 of 2015 with Writ Petition Nos. 11251, 11252, 11253, and 11254 of 2015
S.C. Dharmadhikari, B.P. Colabawalla
Mr. Gunratan Sadavarte for the Petitioners, Mr. S.R. Nargolkar for Respondent Nos.1 & 2, Ms. Sushma Bhende, AGP for Respondent No.3
Mr. Sandeep Tulshiram Mohite, Mrs. Smruti Sandesh Lingayat, Mr. Avinash Bandu Jadhav, Mr. Uttam Gangaram Tambe, Mr. Satish Damodar Salvi
Registrar, Small Causes Court, Mumbai; Registrar, Bombay High Court, Mumbai; State of Maharashtra
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Nature of Litigation
The litigation involves a challenge to an administrative order of removal from government service, raising issues of employment law and constitutional rights.
Remedy Sought
The petitioners sought a writ of mandamus to quash the removal order dated 16th November 2015 and to direct their absorption into service or, alternatively, regularization of their services.
Filing Reason
The petitioners were removed from service by the Chief Judge of the Small Causes Court, Mumbai, based on directions from the High Court that their appointments were not in accordance with recruitment rules.
Issues
Whether the removal of the petitioners from government service by the order dated 16th November 2015 was lawful.
Whether the petitioners, appointed under a compassionate appointment scheme for dependents of retiring Class IV employees, could claim absorption or regularization after long service.
Whether the appointments made under Government Resolutions dated 14th April 1981 and 10th December 1981 were illegal and void ab initio for not following the mandatory requirement of calling candidates from the employment exchange.
Whether the impugned removal violated Articles 14, 16, and 21 of the Constitution of India.
Submissions/Arguments
The petitioners argued that they were appointed under a valid government scheme for dependents of retired Class IV employees, that all procedural requirements were followed, and that their long, blemishless service entitled them to regularization.
The respondents contended that the appointments were illegal because they bypassed the mandatory requirement of notifying vacancies to the employment exchange, and that the government circulars relied upon did not dispense with this requirement, making the appointments back-door entries that could not be regularized.
Judgment Excerpts
In view of direction of the Hon'ble High Court contained in its letter No.F.3720/2001, dated 11th December, 2001, at Sr. No.31 and further directions issued by the Hon'ble High Court in Inspection Note of this Court, 2015, vide its letter dated 12th October, 2015, at Sr. No.43, the following staff members who were initially appointed to the post of “Hamal” on the establishment of this Court are hereby removed from the Government Service with effect from Monday, the 16th November, 2015 (A.O.H.).
The petitioners submit that though initially appointed on temporary basis, but by following due procedure of law, he is rightly continued in service. The post is a sanctioned post. There is no technical break.
The respondent contends that the appointments of five employees have been made in accordance with the Government Circular, but the Government Circular of 14th April, 1981, does not contain any directions as are stipulated in the earlier Government Circular dated 2nd December, 1968.
Procedural History
The writ petitions were filed in 2015 and assigned to the bench presided over by Justice S.C. Dharmadhikari on 15th December 2015. The matters were heard together and reserved for judgment on 13th January 2017, with judgment pronounced on 21st April 2017.
Acts & Sections
- Constitution of India, 1950: Article 14, Article 16, Article 21, Article 226
