1. Heard finally with consent of learned advocates for the respective parties.

2. The present petition is preferred in order to challenge judgment and award dated 06.01.2023 passed by the learned Presiding Officer, Industrial Tribunal, Akola, in Reference (I.T.) No.02 of 2011. By the said Award, the learned Industrial Tribunal has directed the petitioner/Municipal Corporation to absorb the members of the respondent/Union in its employment in Class-IV category from 01.08.2011 along with all consequential and monetary benefits. The names of the members to whom benefits are ordered to be extended are included in Annexure of Statement of Claim filed by the respondent/Union.

3. At the behest of the respondent/Union, a reference was made by the Commissioner of Labour, Nagpur.

4. It is the case of the respondent/Union that its members, whose names are included in Annexure to the statement of claim, were working as ‘Safai Karmacharis’ with the petitioner/Corporation for years together and that in order to deprive them of the benefits admissible to regular employees, the members were shown as workers of a contractor. The petitioner/Corporation denied the claim.

5. In view of the aforesaid, reference was made by the Labour Commissioner to the Industrial Court, the terms whereof are as under:-

                   (a) Whether the workers engaged for collecting solid waste should be considered to be employees of the Corporation ?

                   (b) Whether the benefits admissible to regular employees should be granted to the employees engaged as Safai Karmacharis for collection of solid waste ?

6. The learned Industrial Tribunal allowed the reference. The learned Industrial Tribunal has held that it is not in dispute that the workers were engaged with the petitioner/Municipal Corporation for the work of waste collection for several years and that the work of collection of waste is a regular work of perennial nature. The learned Industrial Tribunal has also referred to resolution passed by the Municipal Corporation and minutes of meeting of Contract Labour Board recommending regularization of the employees of the respondent/Union.

7. Accordingly, the learned Industrial Tribunal directed that the employees whose names were included in the Annexure appended to the statement of claim should be absorbed in services of the petitioner/Municipal Corporation in Class-IV category from 01.08.2011 and all consequential benefits including monetary benefits must be granted to them accordingly. This award dated 06.01.2023 is impugned by the petitioner/Corporation in the present petition.

8. The contention of the learned advocate for the petitioner is that there are no sanctioned posts against which services of the employees can be absorbed. The learned advocate contends that authority to create posts in a Municipal Corporation is vested with the State Government and therefore, it cannot be contended that the Municipal Corporation has engaged in unfair labour practice within the meaning of Schedule 5 Entry 10 of the Industrial Disputes Act.

9. The learned advocate also contends that reliance placed on Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, is also completely misplaced. The learned advocate, therefore, contends that the impugned award is unsustainable and is liable to be quashed and set aside.

10. Per contra, Mr. Harkare, the learned advocate for the respondent/Union strongly supports the impugned award. The learned advocate contends that work of perennial nature is being extracted from the members of the respondent/Union without making payment of appropriate wages and without extending benefits of regular employees to them. The learned advocate has placed reliance on judgments of the Hon’ble Supreme Court in the cases of Secretary, State of Karnataka and others ..vs.. Uma Devi and others(2006 (4) SCC 1), Maharashtra State Road Transport Corporation and another ..vs.. Casteribe Rajya P. Karmachari Sanghatana(2009 8 SCC 556), Durgapur Casual Workers Union and others ..vs.. Food Corporation of India and others((2015) 5 SCC 786), and Umrala Gram Panchayat ..vs.. Secretary, Municipal Employees Union and others((2015) 12 SCC 775), so also judgment of this Court in the case of Municipal Corporation of Greater Mumbai ..vs.. Kachra Vahatuk Shramik Sangh, Mumbai(AIR 2002 SC 1815).

11. The issue that falls for consideration in the present case is as to whether employees of a Municipal Corporation which is a statutory body constituted under the Maharashtra Municipal Corporation Act are entitled to relief of regularization in service on the ground that they have rendered service for a long period as daily wagers. It is required to be considered as to whether relief of regularization in service can be granted to workers in the absence of any sanctioned post. The question as to whether the petitioner/Corporation has authority to create posts under the Maharashtra Municipal Corporation Act also needs to be considered.

12. Reliance on the judgment in Uma Devi is placed by the petitioner to contend that daily rated worker have a right of regularization in service upon completion of 10 years service. Likewise, reliance is also placed on the judgment of the Casteribe to contend that jurisdiction of Courts functioning under labour laws is not inhibited by Uma Devi.

13. The Hon’ble Supreme Court has held in the case of Uma Devi that regularization is not a mode of employment and that employees of state or statutory bodies cannot claim right of regularization in service merely because they have rendered service with state or statutory bodies for some period. It is held that no right of regularization in service is vested in such employees. However, one exception is carved out to the general principle laid down that in cases where employees have rendered non-litigious service for 10 years or more, as a one time measure, their services can be regularized, provided the initial appointment, though irregular is not illegal. Relevant observation in paragraph 53 of Uma Devi, petitioner has placed reliance is herein below :-

                   “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), R.N. Nanjundappa((1979) 1 SCC 409), and B.N. Nagarajan((1979) 4 SCC 507), 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 courts or of tribunals. The question of regularization 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 regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

14. Likewise, Casteribe also contemplates relief of regularization only against sanctioned posts relevant observation in the said judgment in paragraphs 36 and 37 are reproduced herein below:-

                   “36. Umadevi (3)1 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.

                   37. … There cannot be any quarrel with the proposition that courts cannot direct creation of posts. …”

15. Thus, the observations are made with respect to regularization of employees in paragraph 53 of Uma Devi relate only employees who had rendered service against sanctioned posts, although on adhoc basis. Likewise, Casteribe (supra) also comes with a caveat that regularization in service must be only against sanctioned posts and further also holds that Courts cannot directly creation of post. Similar view with respect to sanction post is taken by the Hon’ble Supreme Court in the cases of Mahatma Phule Agricultural University ..vs.. Nashik Zilla Sheth Kamgar Union((2001) 7 SCC 346), SBI ..vs.. Raja Ram((2004) 8 SCC 164), SBI ..vs.. Rakesh Kumar Tewari((2006) 1 SCC 530) and ONGC Ltd. ..vs.. Engineer Mazdoor Sangh((2007) 1 SCC 250).

16. The members of respondent/union can raise a claim on the basis of continuous service for years together only if it is established that they have rendered service against sanctioned posts.

17. Perusal of the impugned judgment will indicate the learned Industrial Court has not recorded any finding that the members of respondent/union were engaged against any sanctioned post. In view of the aforesaid judgment, the relief of absorption in service granted by the learned Industrial Tribunal cannot be sustained.

18. In the case of Umrala Grampanchayat, relied upon by the respondent also relief of regularization was granted against existing vacancies as will be evident from reading of paragraph 11 of the judgment.

19. In the case of Durgapur casual workers union there was no question for creation of post. The workers were initially engaged through a contractor. The contract system was terminated and thereafter the worker were directly employed by the respondent/FCI. The question of existence of post did not arise in the said case. The ratio of the said judgment will therefore not applicable to the present case.

20. In a similar case relating to Safai Karmacharis, engaged as daily wages by Nagpur Municipal Corporation, this Court has in the case of Subhash Sukhdev Sahare ..vs. NMC(2025: BHC-NAG:14779) and held that in the absence of any sanctioned posts against which services of an employee can be accommodated, the employee will not have a right of regularization of service. It is also held that authority to create a posts in a Municipal Corporation is not vested with the Corporation in view of Section 51 of the Maharashtra Municipal Corporations Act, 1949. In the case of Subhash Sahare (supra) has referred to the judgments of the Honorable Supreme Court in the cases of Uma Devi, which hold that in the absence of sanctioned posts, there cannot be right of regularization in service, as also judgments in the case of Jaggo ..vs.. Union of India(2024 SCC OnLine SC 3826) and in the case of Dharam Singh ..vs.. State of U.P. and another(2025 INSC 998) in which benefit of regularization is granted having regard to nature of work performed by the employees. Having considered judgments with respect to both the views, this Court has recorded that in the absence of any sanctioned posts against which services can be regularized, an employee does not have a right of regularization. In the said case, the claim of employees was founded on Model Standing Order framed under Bombay Industrial Relations Act, 1946, which provide for right of regularization in service to a worker upon completion of 240 days service in a calendar year. Referring to earlier decision on the point it is held that benefit of Model Standing Orders for the purpose of regularization can be availed only in case where services rendered against a sanctioned post. The controversy involved in the present petition is similar to Writ Petition No. 4967 of 2023. In that view of the matter, this Court finds it difficult to take a different view of the matter.

21. The respondent has however placed reliance on judgment in the case of Municipal Corporation of Greater Mumbai (supra), wherein relief of regularization in service was granted to Safai worker in view of long continuous service rendered by them. The said judgment was challenged by MCGM before the Hon’ble Supreme Court. The parties arrived at a broader understanding before the Hon’ble Supreme Court and the appeal was disposed of in terms of such understanding. The Hon’ble Supreme Court has observed in paragraph 3 of the order that since posts were required to be created, the appropriate relief would be to grant monetary relief w.e.f. the date of the award by the learned Industrial Tribunal, and has directed the MCGM to make payment of the amount accordingly. The Hon’ble Supreme Court has directed in paragraph-7 of the order that the said order shall not be treated as a precedent since it was based on a broader consensus between the parties. The order of the Hon’ble Supreme Court in appeal arising out of the said judgment passed by this Court will demonstrate that need for creation of posts to grant relief of regularization weighed with the Hon’ble Supreme Court as well, although the matter was finally disposed of on the basis of consensus between the parties.

22. It will also be appropriate to refer to Division Bench judgment of this Court in the case Municipal Corporation Tirora and another ..vs.. Tulsidas Baliram Binthade(2016(6) MhLJ 867), wherein it is held that benefit of regularization in service cannot be granted on completion of 240 days in calendar year as per MSO in case where work is performed against non-sanctioned posts. The said judgment is delivered by following earlier two division bench judgments in the cases of Pune Municipal Corporation ..vs.. Dhananjay Prabhakar Gokhale(2006 (4) MhLJ 66) and State of Maharashtra ..vs.. Pandurang Sitaram Jadhav(2008 (5) All MR 497) and arrived at conclusion that benefit of regularization in service upon completion of 240 days of services in calendar year as per clause 4 C of the Model Standing Orders cannot be granted to employees, who have not rendered service against a sanctioned post. It is also held that under the provisions of the Maharashtra Municipal Corporations Act, 1949, the Municipal Corporation by itself is not competent to create posts. Referring to earlier judgments on the point, it is held that it is beyond the province of learned Industrial Court to issue directions for creation of posts.

23. The respondent has also placed reliance on judgment of the Hon’ble Supreme Court in the case of Pawan Kumar and another ..vs.. Union of India and others(2026 SCC OnLine SC 200). In the said case, the claim of employees for regularization was rejected by the learned Administrative Tribunal and the High Court on the ground that the employees were not working on ad-hoc basis against any sanctioned post. in the income tax department. The Hon’ble Supreme Court allowed the appeal preferred by the employees and granted relief of regularization since several similarly situated daily wage workers were granted benefit of regularization in service pursuant to order passed by the Hon’ble Supreme Court. It will be pertinent to state that, the respondents have not established that similarly circumstanced employees, were granted benefit of regularization by petitioner/corporation. With respect, ratio of the said judgment cannot be made applicable to the facts of the present case.

24. The judgment in the case of Pawan Kumar (supra) must be viewed in the light of settled legal position that when a particular relief is granted to one set of employees, the same must be granted to other similarly circumstanced employees, as has been held by the Hon’ble Supreme Court in various cases including in the case of State of U.P. ..vs.. Arvind Kumar Srivastava and others((2015) 1 SCC 347). Therefore, in cases where the benefit of regularization is granted by the employer to one set of employees, either on its own volition or pursuant to a Court order, the same benefit will have to be extended to other similarly situated employees as well, in order to avoid discrimination. The judgment in Pawan Kumar (supra) recognizes the said settled legal principle.

25. The legal principle that their exists no right of regularization in the absence of a sanctioned post Courts cannot direct creation of post which is laid down in Uma Devi and Casteribe is reiterated in Union of India ..vs.. Ilmo Devi((2021) 20 SCC 290) (paragraphs 13 and 14) and Harinandan Prasad ..vs.. FCI((2014) 7 SCC 190).

26. In the light of reasons recorded above, it must be held that respondent has failed to make out right of regularization in service in the absence of any evidence with respect to service being rendered against sanctioned post.

27. As regards Section 10 of the Contract Labour (Regulation and Abolition) Act, it must be stated that the document on which reliance is placed by the learned Tribunal is merely minutes of meeting held by the Labour Board. Power to prohibit contract labour is vested with the Appropriate Government. The decision is required to be taken in consultation with the Central Board or as the case may be State Board. The decision taken is required to be published in the Official Gazette. In the case at hand, the respondent/Union has not brought on record any such notification prohibiting contract labour.

28. In view of absence of posts against which services of the members of the respondent/Union can be absorbed, as also having regard to the fact that power to create a post is not vested with the petitioner/Corporation, this Court is of the view that the learned Tribunal has erred in awarding relief of absorption in service to the members of the respondent/Union. Writ petition, therefore, deserves to be allowed and is allowed in the following terms :-

i) Judgment and award dated 06.01.2023 passed by the learned Presiding Officer, Industrial Tribunal, Akola, in Reference (I.T.) No.02 of 2011 is quashed and set aside and the said reference is dismissed with no orders as to costs.