Completion of 240 Days No Passport to Permanency in Absence of Sanctioned Post: Bombay High Court Rejects Safai Karmacharis’ Claim for Regularization

“Judicial Creation of Posts is Constitutionally Impermissible” – In a significant judgment reiterating constitutional discipline in public employment, the Nagpur Bench of the Bombay High Court has categorically held that “completion of 240 days of continuous service in a calendar year under Clause 4(C) of the Model Standing Orders does not confer a right to regularization or permanency if such employment is not against a duly sanctioned post.”

Delivering his decision on a batch of Writ Petitions, including Writ Petition Nos. 4967 and 4968 of 2023, Justice Rohit W. Joshi quashed a series of orders passed by the Industrial Court, Nagpur, which had directed the Nagpur Municipal Corporation (NMC) to initiate proposals for regularizing the services of long-serving Safai Karmacharis on the basis of their continuous engagement. The High Court found such directions legally unsustainable, stating that they were issued in defiance of binding precedent and constitutional constraints.

The petitions arose from industrial complaints filed by Safai Karmacharis who had worked for over two decades in a substitute or daily wage capacity, performing cleaning and sanitation duties for the NMC. The Industrial Court, while upholding their claims, had not only declared the existence of unfair labour practices under Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) but had also directed that proposals for regularization be submitted to the State Government. These findings now stand reversed.

“Merely Completing 240 Days Doesn't Create a Right to Regularization” – High Court Clarifies Misapplication of Model Standing Orders

Justice Joshi observed, “The contention of the workers that they are entitled to regularization in service upon completion of 240 days of service as per MSO 4(C), even in the absence of sanctioned vacant posts, is liable to be rejected.”

Rejecting the foundation of the complainants’ case, the Court held that Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, particularly Clause 4(C), cannot override statutory rules governing public employment under the Maharashtra Municipal Corporations Act. The High Court emphasized that Clause 4(C) only applies where the worker has been appointed against a sanctioned post and through a lawful process.

Citing the Supreme Court’s Constitution Bench ruling in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1, the Court stressed that “regularization cannot be a mode of recruitment”, and “appointments made dehors the constitutional and statutory recruitment process cannot be sanctified merely due to the passage of time.”

On Judicial Overreach: "Creation of Posts Lies in the Domain of the Executive"

Justice Joshi observed that the Industrial Court erred by “mechanically applying Clause 4(C) without examining whether the employees had been appointed against any sanctioned post.” He added that “Courts and Industrial/Labour Courts lack jurisdiction to direct the creation of posts or mandate a regularization policy.”

Placing reliance on a string of binding precedents, including CEO, ZP Thane v. Santosh Tukaram Tiware (2023) 1 SCC 456 and Union of India v. Ilmo Devi (2021) 20 SCC 290, the Court clarified that the judicial branch cannot mandate the creation of posts as it is the exclusive domain of the executive, and issuing such directions would transgress the doctrine of separation of powers.

Conflicting Precedents and the Authority of Earlier Judgments: The Court Stresses Precedence

The Court noted the reliance placed by the workmen on recent Supreme Court decisions such as Jaggoo v. Union of India (2024), Shripal v. Nagar Nigam Ghaziabad (2025), and Dharamsingh v. State of UP (2025), which emphasized the perennial nature of work and directed regularization even in the absence of sanctioned posts. However, the High Court made it clear that the correctness of such rulings—particularly the interpretation in ONGC v. PCLU (2015)—has been doubted by the Supreme Court itself and referred to a larger Bench in ONGC v. Krishan Gopal (2021) 18 SCC 707.

Quoting the Constitution Bench in Umadevi, the High Court reiterated: “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.”

On the question of which precedent ought to be followed where there are conflicting views of equal bench strength, the High Court relied on the principle laid down in National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680: “Where two judgments of co-equal benches cannot be reconciled, the earlier one must be followed.”

“Unfair Labour Practice Not Established When No Sanctioned Posts Exist”

Justice Joshi held that “continuation of workers as daily wagers cannot per se amount to unfair labour practice under Items 6 or 9 of Schedule IV of the MRTU & PULP Act where the appointments were not against sanctioned posts.”

The Court rejected the Industrial Court’s declaration that the NMC had engaged in unfair labour practices. Citing MSRTC v. Casteribe (2009) 8 SCC 556, it clarified that while Courts can step in to prevent deliberate suppression of regular posts, such power is limited to existing sanctioned posts and cannot be extended to force creation of posts.

On Government Policy and Supernumerary Posts

In a key factual development, the Court noted that the State Government had created 4407 supernumerary posts and had regularized the services of Safai Karmacharis upon completion of 20 years, including the complainants. These appointments, however, excluded any benefits of prior service. The Court ruled that “the policy decision to grant benefit of regularization on completion of 20 years is not in violation of Clause 4(C) of the MSO.”

Importantly, the appointment orders were accepted unconditionally by the complainants, which, in the Court’s view, further disentitled them from raising a challenge under Clause 4(C).

On Disparate Treatment and Allegations of Favouritism

The complainants had argued that similarly situated employees had been regularized, relying on past rulings in ULP No. 377 of 2011 and Writ Petition No. 2433 of 2019. However, the Court distinguished those cases, observing that “regularization was granted there against existing sanctioned posts and upon clear evidence of discrimination,” unlike in the present case where “no sanctioned posts were shown to exist.”

Thus, the Court held that the parity claim was without merit.

Industrial Court’s Orders Quashed, Workers’ Complaints Dismissed

Setting aside the impugned judgments dated 30.09.2024, 01.10.2024, and 10.10.2024, Justice Rohit W. Joshi concluded that “the complaints are not maintainable for want of substantive entitlement, and the Industrial Court had exceeded its jurisdiction by directing regularization and proposing creation of posts.”

The Writ Petitions filed by the Nagpur Municipal Corporation were allowed, and the reliefs granted to the Safai Karmacharis under the Industrial Court’s orders were entirely set aside.

Date of Decision: December 2025