The Bombay High Court has clarified a critical principle in public service law: while performance of higher duties does not automatically confer substantive promotion, it obligates the employer to provide corresponding monetary and service benefits. This judgment resolves the tension between procedural rigour and equitable treatment in government employment.
Background & Facts
The Dispute
The respondent, Suryakant Bhagwan Tawade, was appointed as a Cemetery Attendant with the Municipal Corporation of Greater Mumbai (MCGM) on 01.08.1973. He served at Reay Road Cemetery (E Ward) until 1983, then at Worli Cemetery (G Ward) until 1990, and finally at Madh Cemetery (P North Ward) until 13.06.2000. During his tenure at Madh Cemetery, residential quarters were allotted to him. The respondent claimed that each cemetery had three permanent sanctioned posts of Death Registration Karkoon (DRK) and one post of Reliever Death Registration Karkoon. He alleged that the DRK post at Versova Cemetery had remained vacant for a prolonged period.
Key Facts
- The respondent was initially appointed as Cemetery Attendant on 01.08.1973
- On 16.06.2000, the Commissioner of Health, K/West Ward, issued a communication directing the respondent to work as Death Registration Karkoon from that date
- The respondent performed duties of DRK continuously from 16.06.2000 to 02.06.2006
- Duties included: maintaining death registers, supervising cemetery attendants, preparing receipts for charges, depositing cash with ward offices, coordinating with the Medical Officer of Health, maintaining attendance registers, and preparing overtime forms
- Payslips for August, September, and October 2000 reflected his designation as DRK
- The relieving memorandum (Exhibit U-9) dated 10.05.2000 listed his designation as DRK
- Office memorandum (Exhibit U-10) dated 16.06.2000 referred to him as DRK
- On 03.06.2006, MCGM issued a letter instructing officers not to assign DRK duties to the respondent
- Two other employees, Mr. Lad and Mr. Surve, were appointed as DRKs during this period
- No formal promotion order was ever issued to the respondent
- The respondent received salary and allowances only as Cemetery Attendant despite performing DRK duties for nearly six years
Procedural History
- 16.06.2000: Communication issued directing respondent to perform DRK duties
- 03.06.2006: MCGM issued order withdrawing DRK duties from respondent
- 2008: Respondent filed Unfair Labour Practice complaint (ULP No. 49 of 2008) before Industrial Court, Mumbai
- 26.04.2012: Industrial Court held MCGM guilty of unfair labour practice under Items 5 and 9 of Schedule IV of the MRTU and PULP Act, 1971
- 26.04.2012: Industrial Court directed regularisation of respondent as DRK with effect from 16.06.2000 and payment of all consequential benefits
- 2012: Writ Petition No. 5860 of 2012 filed by MCGM before Bombay High Court
- 17.04.2026: Judgment reserved
- 30.04.2026: Judgment pronounced
Relief Sought
The respondent sought:
- Declaration that MCGM committed unfair labour practices under Items 5 and 9 of Schedule IV of the MRTU and PULP Act
- Regularisation as Death Registration Karkoon with effect from 16.06.2000
- Payment of difference in wages and all consequential service benefits from 16.06.2000
- Interest at 18% per annum on arrears
The Parties' Positions
Petitioners (MCGM): Contended that the respondent was never promoted to DRK, no formal order was issued, and any reference to DRK in documents was a clerical error. They asserted that public employment is governed by statutory rules and promotion requires due process.
Respondent: Argued that he was assigned DRK duties by official communication, paid as DRK in payslips, and his designation was recorded in official memoranda. He claimed that MCGM’s subsequent withdrawal of duties and appointment of others constituted unfair labour practice and discrimination.
The Legal Issue
The central question was whether an employee who has been made to perform the duties of a higher post for a prolonged period, with official recognition in documents and payslips, is entitled to monetary and service benefits for that period even in the absence of a formal promotion order, and whether such conduct amounts to an unfair labour practice under the MRTU and PULP Act.
Arguments Presented
For the Petitioner
Senior Advocate Suresh Pakale submitted that public employment is governed by statutory service regulations, and promotion to a higher post can only occur through due process - whether by seniority, selection, or departmental procedure. He argued that no substantive right arises merely from performance of duties or clerical entries in office memoranda. He contended that the Industrial Court erred in ignoring the absence of a formal promotion order and in treating incidental designations as conclusive proof of appointment. He relied on service jurisprudence that distinguishes between duties assigned and substantive appointment.
For the Respondent
Mr. Shan Clifford Cardoz argued that the respondent’s designation as DRK was consistently reflected in official documents including payslips, relieving memoranda, and office communications. He pointed to admissions in the written statement and cross-examination of MCGM’s witness, where attendance registers and receipts signed by the respondent as DRK were accepted. He contended that MCGM’s unilateral withdrawal of duties after six years, while appointing others to the same post, amounted to unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act.
The Court's Analysis
The Court acknowledged the foundational principle that public employment is governed by statutory rules and that substantive promotion requires a formal order issued by the competent authority. > "Public employment is not governed by convenience. It is governed by rules, regulations and settled procedure."
It held that no employee can claim a vested right to a higher post merely because they performed its duties or were occasionally referred to by its designation. > "A substantive post is not gained merely because an employee is asked to perform some functions attached to that post."
However, the Court rejected the petitioners’ attempt to dismiss the entire claim as a clerical error. It noted that the designation "DRK" appeared not once but repeatedly - in payslips, relieving memoranda, and official communications. The Court observed: > "One isolated typing error may happen. Repeated description across different documents invites deeper scrutiny."
The Court further emphasized that the petitioners’ own conduct supported the respondent’s case. The 03.06.2006 order directing officers to stop assigning DRK duties to the respondent implicitly confirmed that he had been performing those duties for years. > "Such direction indicates that prior thereto he was in fact being asked to function as DRK."
The Court distinguished between substantive promotion and de facto assignment of duties. While the respondent could not be deemed promoted without due process, the Court held that the Corporation could not exploit his labour for nearly six years without providing corresponding benefits. > "The Corporation is a public employer. It is expected to act with fairness. If it makes an employee discharge higher duties for long period, then it cannot deny consequence of that work by later taking shelter behind plea of clerical mistake."
The Court also found merit in the respondent’s claim of differential treatment. Though comparative records were incomplete, the fact that others were appointed as DRK while the respondent was demoted raised a prima facie case of discrimination, which the employer failed to rebut.
The Verdict
The writ petition was partly allowed. The Industrial Court’s order dated 26.04.2012 was modified as follows:
- The finding that MCGM committed unfair labour practice by denying benefits for DRK duties performed from 16.06.2000 to 02.06.2006 is upheld
- The direction for regularisation as Death Registration Karkoon is quashed
- The respondent is not deemed substantively promoted or appointed to the post of DRK
- MCGM shall compute and pay the respondent the difference in wages and all consequential service benefits legally admissible for the period he performed DRK duties, based on official service records
- MCGM shall complete computation within twelve weeks of receipt of this order
- Payment shall be made within eight weeks thereafter
- If payment is delayed, the amount shall carry interest at 6% per annum from the date it became payable until realization
- No order as to costs
What This Means For Similar Cases
Performance of Duties Creates Entitlement, Not Appointment
- Practitioners must distinguish between substantive promotion and de facto assignment of higher duties
- Employees performing higher duties for prolonged periods are entitled to monetary and service benefits, even without formal promotion
- Employers cannot use absence of promotion orders to evade liability for work actually performed
Documentary Evidence and Conduct Trump Denials
- Repeated references to a higher designation in payslips, memoranda, and official records create a strong evidentiary presumption
- Admissions in written statements and cross-examination carry significant weight
- Sudden withdrawal of duties after years of assignment raises a presumption of unfair labour practice
Public Employers Must Act Fairly and Consistently
- Public bodies are held to higher standards of equity and transparency
- Differential treatment of similarly placed employees without justification invites adverse findings under labour laws
- Delayed or arbitrary reversal of duty assignments cannot be justified by technicalities of appointment procedure
