Gujarat High Court
Dineshbhai Haribhai Vankar & 4 vs State Of Gujarat Through Special ... on 22 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3357/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3357 of 2013
[On note for speaking to minutes of order dated 04/02/2016 in
C/SCA/10829/2003 ]
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DINESHBHAI HARIBHAI VANKAR & 4....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH SPECIAL SECRETARY &
2....Respondent(s)
==========================================================
Appearance:
MR JA ADESHRA, ADVOCATE for the Petitioner(s) No. 1 - 5
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR NIRZAR S DESAI, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/03/2016
ORAL ORDER
1. By this note for speaking to minutes, it has been pointed out that while disposing of a batch of the writapplications, this Court has also included the Special Civil Application No.3357 of 2013 in the same.
2. By virtue of the order passed by this Court dated 4th February, 2016 in a batch of writapplications in inadvertently the Special Civil Application No.3357 of 2013 is also shown as disposed of. In fact, the following order was passed on 3rd August, 2015 in the Special Civil Application No.3357 of 2013. The order reads thus: "It is submitted by Mr. Adeshra, the learned counsel appearing for the petitioner that the Special Civil Application No.3357 of 2013 has been Page 1 of 2 HC-NIC Page 1 of 110 Created On Thu Feb 23 02:09:23 IST 2017 1 of 110 C/SCA/3357/2013 ORDER wrongly tagged with the other petitions. According to Mr. Adeshra, the subject matter of this writapplication i.e.Special Civil Application No.3357 of 2013 is altogether different.
In that view of the matter, the Special Civil Application No.3357 of 2013 be detached from the other matters."
3. Although the Special Civil Application No.3357 of 2013 was ordered to be detached from the other matters, yet the same has been included.
The Registry shall effect the necessary correction in that regard and the Special Civil Application No.3357 of 2013 shall not construe as disposed of. The same shall be posted for hearing in the next week. The note is accordingly disposed of.
(J.B.PARDIWALA, J.) aruna Page 2 of 2 HC-NIC Page 2 of 110 Created On Thu Feb 23 02:09:23 IST 2017 2 of 110 C/SCA/10829/2003 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10829 of 2003 With SPECIAL CIVIL APPLICATION NO. 4575 of 2014 With SPECIAL CIVIL APPLICATION NO. 4621 of 2014 With SPECIAL CIVIL APPLICATION NO. 4982 of 2014 With CIVIL APPLICATION NO. 10855 of 2014 In SPECIAL CIVIL APPLICATION NO. 3992 of 2014 With CIVIL APPLICATION NO. 3999 of 2015 In SPECIAL CIVIL APPLICATION NO. 3992 of 2014 With SPECIAL CIVIL APPLICATION NO. 1083 of 2015 With SPECIAL CIVIL APPLICATION NO. 4189 of 2012 With SPECIAL CIVIL APPLICATION NO. 10308 of 2012 With SPECIAL CIVIL APPLICATION NO. 13670 of 2012 With SPECIAL CIVIL APPLICATION NO. 13675 of 2012 With SPECIAL CIVIL APPLICATION NO. 15279 of 2012 With SPECIAL CIVIL APPLICATION NO. 15280 of 2012 With SPECIAL CIVIL APPLICATION NO. 15282 of 2012 With SPECIAL CIVIL APPLICATION NO. 17027 of 2012 With SPECIAL CIVIL APPLICATION NO. 17252 of 2012 TO Page 1 of 108 HC-NIC Page 3 of 110 Created On Thu Feb 23 02:09:23 IST 2017 3 of 110 C/SCA/10829/2003 CAV JUDGMENT SPECIAL CIVIL APPLICATION NO. 17275 of 2012 With SPECIAL CIVIL APPLICATION NO. 17279 of 2012 With SPECIAL CIVIL APPLICATION NO. 17293 of 2012 TO SPECIAL CIVIL APPLICATION NO. 17328 of 2012 With SPECIAL CIVIL APPLICATION NO. 17346 of 2012 With SPECIAL CIVIL APPLICATION NO. 17347 of 2012 TO SPECIAL CIVIL APPLICATION NO. 17455 of 2012 With SPECIAL CIVIL APPLICATION NO. 582 of 2013 With SPECIAL CIVIL APPLICATION NO. 583 of 2013 With SPECIAL CIVIL APPLICATION NO. 638 of 2013 With SPECIAL CIVIL APPLICATION NO. 639 of 2013 With SPECIAL CIVIL APPLICATION NO. 1235 of 2013 With SPECIAL CIVIL APPLICATION NO. 1261 of 2013 With SPECIAL CIVIL APPLICATION NO. 3247 of 2013 With SPECIAL CIVIL APPLICATION NO. 3309 of 2013 With SPECIAL CIVIL APPLICATION NO. 3344 of 2013 With SPECIAL CIVIL APPLICATION NO. 3652 of 2013 With SPECIAL CIVIL APPLICATION NO. 4046 of 2013 With SPECIAL CIVIL APPLICATION NO. 8450 of 2013 With Page 2 of 108 HC-NIC Page 4 of 110 Created On Thu Feb 23 02:09:23 IST 2017 4 of 110 C/SCA/10829/2003 CAV JUDGMENT SPECIAL CIVIL APPLICATION NO. 13079 of 2013 With SPECIAL CIVIL APPLICATION NO. 14153 of 2013 With SPECIAL CIVIL APPLICATION NO. 15839 of 2013 With SPECIAL CIVIL APPLICATION NO. 2206 of 2014 With SPECIAL CIVIL APPLICATION NO. 2229 of 2014 With SPECIAL CIVIL APPLICATION NO. 8596 of 2014 With SPECIAL CIVIL APPLICATION NO. 8717 of 2014 With SPECIAL CIVIL APPLICATION NO. 8718 of 2014 With SPECIAL CIVIL APPLICATION NO. 8719 of 2014 With SPECIAL CIVIL APPLICATION NO. 10811 of 2014 With SPECIAL CIVIL APPLICATION NO. 12398 of 2014 With SPECIAL CIVIL APPLICATION NO. 12424 of 2014 With SPECIAL CIVIL APPLICATION NO. 14826 of 2014 With SPECIAL CIVIL APPLICATION NO. 15094 of 2014 With SPECIAL CIVIL APPLICATION NO. 15109 of 2014 With SPECIAL CIVIL APPLICATION NO. 15110 of 2014 With SPECIAL CIVIL APPLICATION NO. 16645 of 2014 With SPECIAL CIVIL APPLICATION NO. 16651 of 2014 With SPECIAL CIVIL APPLICATION NO. 18532 of 2014 With Page 3 of 108 HC-NIC Page 5 of 110 Created On Thu Feb 23 02:09:23 IST 2017 5 of 110 C/SCA/10829/2003 CAV JUDGMENT SPECIAL CIVIL APPLICATION NO. 18533 of 2014 With SPECIAL CIVIL APPLICATION NO. 18556 of 2014 With SPECIAL CIVIL APPLICATION NO. 18557 of 2014 With SPECIAL CIVIL APPLICATION NO. 2106 of 2015 With SPECIAL CIVIL APPLICATION NO. 3042 of 2015 With SPECIAL CIVIL APPLICATION NO. 3071 of 2015 With SPECIAL CIVIL APPLICATION NO. 4688 of 2015 TO SPECIAL CIVIL APPLICATION NO. 4694 of 2015 With SPECIAL CIVIL APPLICATION NO. 5255 of 2015 With SPECIAL CIVIL APPLICATION NO. 8783 of 2015 With SPECIAL CIVIL APPLICATION NO. 8788 of 2015 TO SPECIAL CIVIL APPLICATION NO. 8792 of 2015 With SPECIAL CIVIL APPLICATION NO. 11154 of 2015 With SPECIAL CIVIL APPLICATION NO. 11155 of 2015 TO SPECIAL CIVIL APPLICATION NO. 11157 of 2015 With SPECIAL CIVIL APPLICATION NO. 18385 of 2013 With SPECIAL CIVIL APPLICATION NO. 6157 of 2014 With SPECIAL CIVIL APPLICATION NO. 7108 of 2014 With SPECIAL CIVIL APPLICATION NO. 17223 of 2012 With Page 4 of 108 HC-NIC Page 6 of 110 Created On Thu Feb 23 02:09:23 IST 2017 6 of 110 C/SCA/10829/2003 CAV JUDGMENT SPECIAL CIVIL APPLICATION NO. 616 of 2013 With SPECIAL CIVIL APPLICATION NO. 617 of 2013 With SPECIAL CIVIL APPLICATION NO. 3357 of 2013 With SPECIAL CIVIL APPLICATION NO. 6045 of 2013 With SPECIAL CIVIL APPLICATION NO. 6046 of 2013 With SPECIAL CIVIL APPLICATION NO. 12114 of 2013 With SPECIAL CIVIL APPLICATION NO. 23 of 2014 With SPECIAL CIVIL APPLICATION NO. 24 of 2014 With SPECIAL CIVIL APPLICATION NO. 9840 of 2014 With SPECIAL CIVIL APPLICATION NO. 9841 of 2014 With SPECIAL CIVIL APPLICATION NO. 12783 of 2014 With SPECIAL CIVIL APPLICATION NO. 1678 of 2012 With SPECIAL CIVIL APPLICATION NO. 18019 of 2014 With SPECIAL CIVIL APPLICATION NO. 355 of 2015 TO SPECIAL CIVIL APPLICATION NO. 361 of 2015 With SPECIAL CIVIL APPLICATION NO. 11474 of 2013 With SPECIAL CIVIL APPLICATION NO. 87 of 2014 With SPECIAL CIVIL APPLICATION NO. 16864 of 2014 With SPECIAL CIVIL APPLICATION NO. 18201 of 2014 With Page 5 of 108 HC-NIC Page 7 of 110 Created On Thu Feb 23 02:09:23 IST 2017 7 of 110 C/SCA/10829/2003 CAV JUDGMENT SPECIAL CIVIL APPLICATION NO. 5266 of 2015 With SPECIAL CIVIL APPLICATION NO. 5352 of 2015 With SPECIAL CIVIL APPLICATION NO. 7612 of 2015 With SPECIAL CIVIL APPLICATION NO. 7614 of 2015 With SPECIAL CIVIL APPLICATION NO. 12117 of 2013 With SPECIAL CIVIL APPLICATION NO. 11330 of 2015 With SPECIAL CIVIL APPLICATION NO. 11331 of 2015 With SPECIAL CIVIL APPLICATION NO. 9112 of 2014 With SPECIAL CIVIL APPLICATION NO. 9495 of 2014 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== GUJARAT MAZDOOR SABHA....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Page 6 of 108 HC-NIC Page 8 of 110 Created On Thu Feb 23 02:09:23 IST 2017 8 of 110 C/SCA/10829/2003 CAV JUDGMENT APPEARANCE IN :
S.C.A. No.10829 of 2003, S.C.As. NOs.4575, 4621, 4982, 9112, 9495 OF 2014, C.A. NO.10855 OF 2014, C.A. NO.3992 OF 2015:
MR MP PRAJAPATI, ADVOCATE for the Petitioners MR PRAKASH K JANI, ADDL ADVOCATE GENERAL WITH MS MANISHA LAVKUMAR SHAH, GP WITH MR SWAPNESHWAR GAUTAM, AGP for the Respondent - State of Gujarat S.C.As. NOs.4189, 10308, 13670, 13675, 15279, 15280, 15282, 17027, 17252 TO 17275, 17279, 17293 TO 17328, 17346, 17347 TO 17455 OF 2012, S.C.As. NOs.582, 583, 638, 639, 1235, 1261, 3247, 3309, 3344, 3652, 4046, 8450, 13079, 14153 OF 2013, S.C.As. NOs.2206, 2229, 10811, 12398, 12424, 14826, 15094, 15109, 15110, 16645, 16651, 18532, 18533, 18556, 18557 OF 2014, S.C.As. NOs.1083, 2106, 3042, 3071, 4688 TO 4694, 5255, 8783, 8788 TO 8792, 11154, 11155 TO 11157, 11330, 11331 OF 2015: MR TR MISHRA, ADVOCATE for the Petitioners MR PRAKASH K JANI, ADDL ADVOCATE GENERAL WITH MS MANISHA LAVKUMAR SHAH, GP WITH MR RUTVIJ OZA, AGP for the Respondent - State of Gujarat MR DG CHAUHAN, ADVOCATE for the Respondent No.1 IN S.C.A. NO.8450 of 2013 MR HS MUNSHAW, ADVOCATE for the Respondent No.2 IN S.C.A. NO.13670 OF 2012 S.C.As Nos.15839, 18385 OF 2013, S.C.As. NOs.8596, 8717, 8718, 8719, 6157, 7108 OF 2014: MR MURALIN DEVNANI, ADVOCATE for the Petitioners MR PRAKASH K JANI, ADDL ADVOCATE GENERAL WITH MS MANISHA LAVKUMAR SHAH, GP WITH MR RUTVIJ OZA, AGP for the Respondent - State of Gujarat S.C.As NOs.17223, 1678 OF 2012, S.C.As. NOs.616, 617, 3357, 6045, 6046, 12114, 11474, 12117 OF 2013, S.C.As. NOs.23, 24, 9840, 9841, 12783, 18019, 87, 16864, 18201 OF 2014, Page 7 of 108 HC-NIC Page 9 of 110 Created On Thu Feb 23 02:09:23 IST 2017
9 of 110 C/SCA/10829/2003 CAV JUDGMENT S.C.As. NOs.355 TO 361, 5266, 5352, 7612, 7614 OF 2015:
MR JA ADESHARA, ADVOCATE for the Petitioners MR PRAKASH K JANI, ADDL ADVOCATE GENERAL WITH MS MANISHA LAVKUMAR SHAH, GP WITH MR SWAPNESHWAR GAUTAM, AGP for the Respondent - State of Gujarat S.C.A. NO.15280 OF 2012:
MR MUKESH K RATHOD, ADVOCATE for the Petitioners MR HS MUNSHAW ADVOCATE for the Respondent No.1 MR PRAKASH K JANI, ADDL ADVOCATE GENERAL WITH MS MANISHA LAVKUMAR SHAH, GP WITH MR SWAPNESHWAR GAUTAM, AGP for the Respondent - State of Gujarat ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 04/02/2016 CAV COMMON JUDGMENT 1 Since the issues raised in the above captioned bunch of the writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 The following are the observations made by the Supreme Court, speaking through His Lordship Dipak Mishra, J., in a very recent pronouncement in the case of State of Jharkhand and another vs. Harihar Yadav and others [2014 (2) SCC 114]:
"How does a constitutional court respond to a situation when a human problem of great magnitude frescoed on constitutional canvas gets painfully projected with intense sincerity, possibly realizing pain is one of the "sovereign masters of mankind"? How is the Court required to react in law when the workmen are forced to grapple with a colossal predicament of sense of belonging due to a situation created making them feel that they are neither here nor there? We consider it as an unbearable tragedy faced by the unfortunate employees warranting serious attention of this Court, for some employees have Page 8 of 108 HC-NIC Page 10 of 110 Created On Thu Feb 23 02:09:23 IST 2017
10 of 110 C/SCA/10829/2003 CAV JUDGMENT breathed their last due to starvation, constant stress being unable to meet the keen demands of appetite, and the impecuniosity that hampered them to avail timely treatment, and some families have been unwillingly driven to a state of unmeaningful survival an animal existence sans proper food, sans clothes and sans real shelter."
3 I am confronted with almost a similar situation wherein about more than 700 employees, working in the different departments of the State Government, have complained that they are in the work charged establishment past almost 30 years. Till this date, the authorities concerned have not taken any steps to put them on the temporary establishment. It is complained that as a result of such inaction on the part of the State Government, they have been deprived of the benefits which an employee otherwise derives working on the temporary establishment. Few of the petitioners have complained that although they have been absorbed in the temporary establishment, yet the same was at a very belated stage rather than absorbing them in the temporary establishment on completion of the five years of service in the work charged establishment, according to the policy of the State Government, as laid down in the circular dated 6th August, 1973.
4 It appears that the entire claim put forward by the petitioners to absorb them in the temporary establishment from the work charged establishment is on the basis of the policy of the State Government which was prevailing at a point of time in the form of a resolution dated 6th August, 1973 issued by the Public Works Department. It also appears that before the benefit could be given to the petitioners of the resolution of 1973, the State Government thought fit to cancel the same or rather revoke vide Government Resolution dated 20th August, 2014. Thus, it appears that now, the stance of the State Government is that since the earlier resolution of 1973 has been cancelled, there is no question of Page 9 of 108 HC-NIC Page 11 of 110 Created On Thu Feb 23 02:09:23 IST 2017 11 of 110 C/SCA/10829/2003 CAV JUDGMENT giving effect to the same for the purpose of absorbing the work charged employees on the temporary establishment.
5 In such circumstances, the petitioners have more or less prayed for the following reliefs:
"13(A). Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to treat the petitioners on temporary establishment on completion of 5 years of service as workcharge employees and further be pleased to direct the respondents to grant them higher grade on completion of 9, 18 & 27 years of service from the date the petitioners completed 9 years of service on temporary establishment;
(B) That Your Lordships be further pleased to direct the respondents to convert the petitioners from workcharge establishment to temporary establishment and thereafter grant further benefit of higher grade on completion of 9, 18 & 27 years of service;
(C) That Your Lordships be pleased to quash and set aside the impugned G.R. dated 2082014 marked ANN.M to this petition, being arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India;
(D) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondents to consider the case of the petitioners in the light of the judgment rendered by this Hon'ble Court in SCA No.7464/1996 and LPA No.1360/2011;
(E) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice;"
● SUBMISSIONS ON BEHALF OF THE PETITIONERS:
6 The learned counsel appearing for the respective petitioners
vehemently submitted that the issue is more or less covered by the judgment and order rendered by a learned Single Judge of this Court in the case of Rashmikaben Trikamlal and others vs. State of Gujarat [Special Civil Application No.7464 of 1996 decided on 21st January, Page 10 of 108 HC-NIC Page 12 of 110 Created On Thu Feb 23 02:09:23 IST 2017
12 of 110 C/SCA/10829/2003 CAV JUDGMENT 2011]. They further submitted that the said judgment of the learned Single Judge came to be affirmed by the Division Bench, and further affirmed by the Supreme Court in the Special Leave Petition (Civil) (CC) No.17221 of 2012.
7 The learned counsel further submitted that the petitioners have been serving in the work charged establishment as work charged employees past almost three decades. If the State Government thought fit to avail the services of the petitioners for a period of almost three decades at a stretch, then it could be said that the nature of the work was permanent. They submitted that the petitioners should have been given the benefits of the Government Resolution of the year 1973 by absorbing them in the temporary establishment on completion of the five years service in the work charged establishment.
8 The learned counsel appearing for the petitioners vehemently submitted that the action on the part of the State Government in cancelling / revoking the resolution of the year 1973 by way of the resolution of the year 2014, not only could be termed as very highhanded and arbitrary, but the same could also be termed as unconstitutional and very unfortunate.
9 The learned counsel submitted that it was not permissible in law for the State Government to withdraw the resolution of the year 1973 with retrospective effect.
10 The learned counsel submitted that the impugned Notification of 2014 is violative of Section 9(A) of the Industrial Disputes Act, 1947. The learned counsel further submitted that probably the only idea in issuing the Government Resolution of the year 2014 was to meet with Page 11 of 108 HC-NIC Page 13 of 110 Created On Thu Feb 23 02:09:23 IST 2017 13 of 110 C/SCA/10829/2003 CAV JUDGMENT the financial implications. They submitted that the plea of financial implication is not tenable in law. They vehemently submitted that the State Government should not have compelled its employees to come before this Court in view of the settled position of law, more particularly, the decision rendered by the learned Single Judge referred to above, which came to be affirmed in the Letters Patent Appeal, and further affirmed in the Special Leave Petition.
11 The learned counsel appearing for the petitioners further submitted that all the petitioners were recruited in accordance with law through the Employment Exchange. Their appointments could not be termed as a back door entry. The recruitment was in accordance with the rules and regulations.
12 In support of their submissions, the learned counsel appearing for the petitioners placed reliance on the following case law:
(1) Management of Indian Oil Corporation Limited and its workmen [1975 (2) LLJ 319] (2) State of Jharkhand and another v. Harihar Yadav and others [2014(2) SCC 114] (3) U.P. State Electricity Board vs. Pooran Chandra Pandey and others [2007 (7) Supreme Today 374] (4) Banglore Water Supply and Sewage Board vs. Rajappa and Ors, [AIR 1978 SC 548] (5) Lokmant Newspapers Pvt Ltd. vs. Shankarprasad, [(1999) 6 SCC 275] (6) M/s. Tata Iron and Steel Co. Ltd. vs. The Workmen and others, [1972 (2) LLJ 259] (7) Calcutta Electric Supply Corp. Ltd. And Calcutta Electric Supply Page 12 of 108 HC-NIC Page 14 of 110 Created On Thu Feb 23 02:09:23 IST 2017
14 of 110 C/SCA/10829/2003 CAV JUDGMENT Workers' Union and Ors, [1995(1) LLJ 874] (8) CCE Lucknow vs. M/s. Wimco Ltd, [2007(7) Supreme 380] (9) Maharastra State Road Transport Corporation and another vs. Casteribe Rajya Parivahan Karmchari Sanghatana, [2009 (8) SCC 556] (10) Durgapur Casual Workers Union & Ors vs. Food Corporation of India & Ors, [2015 (1) CLR 379] (11) Umrala Gram Panchayat vs. Secretary, Municipal Employees Union and Others, [2015 (II) LLJ 403 (SC)] (12) Amarkant Rai vs. State of Bihar and others, [2015(II) LLJ SC 1] (13) Tamil Nadu Terminated Full Time Temporary L.I.C. Employees vs. Life Insurance Corporation of India and others, [Civil Appeal No.6950 of 2009 decided on 18th March, 2015 by the Supreme Court].
● SUBMISSIONS ON BEHALF OF THE STATE GOVERNMENT :
13 Mr. Prakash K. Jani, the learned Additional Advocate General assisted by the learned Assistant Government Pleader appearing for the respondent State of Gujarat vehemently opposed all the writ applications submitting that none of the petitioners have any legal or vested right to claim that on completion of five years of service in the work charged establishment, they should have been absorbed in the temporary establishment. Mr. Jani submitted that the entire claim based on the Government Resolution of 1973 is misconceived.
14 Mr. Jani submitted that the appointments of all the petitioners were not in consonance with Articles 14 and 16 of the Constitution of India.
15 Mr. Jani submitted that the Government Resolution of 1973 could Page 13 of 108 HC-NIC Page 15 of 110 Created On Thu Feb 23 02:09:23 IST 2017 15 of 110 C/SCA/10829/2003 CAV JUDGMENT be termed as conditional and it conferred no absolute or any legal right in favour of the petitioners to claim absorption in the temporary establishment.
16 Mr. Jani submitted that in fact, way back in the year 1978, the State Government had taken a policy decision not to appoint any person on the work charged establishment, but despite such policy decision, the respective departments recruited the petitioners.
17 Mr. Jani submitted that it is within the powers of the State Government to change its policy after due deliberations.
18 Mr. Jani submitted that in the wake of the Government Resolution of the year 2014, the petitioners cannot claim for the absorption in the temporary establishment.
19 Mr. Jani submitted that the judgment rendered by the learned Single Judge of this Court, referred to above, affirmed in the Letters Patent Appeal, and further affirmed by the Supreme Court, will not be helpful to the petitioners since the Government Resolution of 1973 no longer remains in existence. Mr. Jani submitted that there are highly disputed questions of fact involved in each of the petitions as regards the mode of appointment, qualifications, etc. In such circumstances, this Court may not issue any writ of mandamus upon the State Government to absorb the petitioners in the temporary establishment.
20 Mr. Jani submitted that the writ applications deserve to be rejected on the ground that the petitioners have an efficacious remedy under the Industrial Disputes Act, and they should have raised an appropriate dispute by way of reference accordingly.
Page 14 of 108HC-NIC Page 16 of 110 Created On Thu Feb 23 02:09:23 IST 2017 16 of 110 C/SCA/10829/2003 CAV JUDGMENT 21 Mr. Jani submitted that the State of Gujarat is guided by the overall welfare consideration. Having regard to the financial implications, it is not feasible for the Government to absorb the petitioners from the work charged establishment to temporary establishment. Mr. Jani submitted that the Government Resolution of 2014 could not be termed, in any manner, as unconstitutional or illegal as it does not take away any vested or legal rights of the petitioners.
22 In such circumstances referred to above, Mr. Jani prayed that there being no merit in any of the writ applications, those deserve to be rejected.
23 In support of his submissions, the reliance has been placed on the following decisions:
(1) The State of Jammu and Kashmir vs. Shri Triloki Nath Khosa and others [(1974) 1 SCC 19] (2) K.N. Thanaki vs. State of Gujarat [(1989) 2 GLH 254] (3) State of Himachal Pradesh and another vs. Kailash Chand Mahajan and others [1992 Supplementary (2) SCC 351] (4) Kusumam Hotels (P) Ltd. vs. Kerala State Electricity Board [(2008) 13 SCC 213] (5) State of Gujarat and others vs. Narsinhdas Krishnadas Agravat [2006(1) GLR 146] (6) Union of India and another vs. Kartick Chandra Mondal and Page 15 of 108 HC-NIC Page 17 of 110 Created On Thu Feb 23 02:09:23 IST 2017
17 of 110 C/SCA/10829/2003 CAV JUDGMENT another [(2010) 2 SCC 422] (7) State Bank's Staff Union (Madras Circle) vs. Union of India and others [(2005) 7 SCC 584] (8) Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] (9) Union of India and others vs. A.S. Pillai and others [(2010) 13 SCC 448] (10) Secretary to Government, School, Education Department, Chennai vs. R. Govindswamy and others [(2014) 4 SCC 769] (11) Nand Kumar vs. State of Bihar and others [(2014) 5 SCC 300] (12) State of Rajasthan and others vs. Daya Lal and others [AIR 2011 SC 1193] 24 Mr. Jani, the learned Additional Advocate General has also placed reliance on the following averments made in the affidavitinreply filed on behalf of the respondent No.1 duly affirmed through the Under Secretary, R & B Department, Gandhinagar:
"8. I respectfully submit that by way of Government Resolution dated 16.08.1973, initially Government of Gujarat has floated a policy of conversion of post of workcharged establishment in respect of maintenance and repairs of any works or irrigation management which are either required preliminary or for a very long term basis and for this reasons post of workcharged establishment was decided to converted into temporary establishment. Annexed hereto and marked as AnnexureRI is the copy of Government Resolution dated 16.08.1973.
At this juncture, it is very much significant to note that this process of conversion involves a main threefold process which embark on the Page 16 of 108 HC-NIC Page 18 of 110 Created On Thu Feb 23 02:09:23 IST 2017 18 of 110 C/SCA/10829/2003 CAV JUDGMENT eligibility, fulfillment of condition and posts available; the basic foundation of conversion starts from a Daily Waged Charged Establishment; then from Work Charged Establishment Conversion into a Temporary Establishment.
Therefore, in order to lucidly understand each process, firstly, it is very pertinent to refer the definition of Temporary Establishment and Work Charged Establishment and the respective policy of the government.
12. I further submit that the procedure for appointing daily wage worker is that the employee who is casually engaged for any job to whom the payment should be made and the intervals of a fort night or a month and their names are initially recorded in the muster roll. I respectfully submit that the workcharged employee were appointed for surveying, drawing,k tracing etc. in the several projects they may be treated as work charged, and the employee must be employed upon a specific work and the determination of the workcharged establishment is based upon the proportion to the cost of the projects. While according sanctioned for the such posts, the cost being allocated for the works in proportion to the time spent on those work and the workcharged should be discontinue when works of which they are appointed are suspended or stopped and they are reemployee as soon works are resumed. It is necessary to draw attention at this stage for workcharged establishment; the workcharged establishment can be incurred 2% of expenditure to be incurred on works.
13. I say and submit that the temporary establishment is to meet the demand for extra supervision which may arise from time to time and PWD establishment shall capable of contradiction as well as of expansion as the expenditure of the works and to such extend as may be necessary. I further submit that the temporary appointments should have always be made "until further orders", and the persons so appointed should clearly be given to understand that they are liable to be discharge at time without any reasons being given.
14. I say that in context above referred definitions it is pertinent to mention all the Government Resolution relating to conversion of daily wage workers to workcharged establishment and workcharged establishment to temporary establishment. It is significant to refer the Government Resolution by which daily workers can be converted into workcharged establishment. By way of Government Resolution dated 04.07.1973 first time the Government has introduce a policy for conversion of daily wage workers into workcharged establishment. The aforesaid Government Resolution was passed with certain conditions which are mentioned in the said resolution. The foremost requirement of conversion is completion of 5 years of service as daily wage worker. The chronological chart of the Government Resolutions pertaining to work charged establishment from daily wager is as under:Page 17 of 108
HC-NIC Page 19 of 110 Created On Thu Feb 23 02:09:23 IST 2017 19 of 110 C/SCA/10829/2003 CAV JUDGMENT Date of the Synopsis Government Resolutions '04/07/1973 • Conversion of Rojamdar to work charged establishment.
• This conversion to the work charged shall be subject to the conditions mentioned in the GR.
• That requires completion of 5 years of service. • Filling up the new vacant post or fill up the post falling vacant in the work charged employee.
• First priority shall be given to the daily wager (Rojamdar). This shall be after taking into consideration long service of the Rojamdar.
• If, there is vacant post in the concerned cadre. The conversion has to be in consonance with Recruitment Rules.
'16/11/1973 • Earlier GR of 04/7/1973 was clarified in the present GR.
• Whereby it is was clarified that all those whose who have worked for minimum 180 day in a calender year their service would be consider as daily wager for one year. But, however, for the purpose of giving work charged benefits by considering the service for 5 years, the criteria of 240 days shall apply.
'03/02/1987 • No person to be recruited on the work charged establishment.
• New daily wager workers. Not to employ on the
muster roll.
'11/07/1988 • Instruction issued in GR of 3/02/1987 was repeated
not to recruit daily wager wager.
• By way of the said circular it was clarified in view of
the constitution of the committee and the process going on the given point of time, no daily wage wager was required to be recruitment in the work charged establishment. '31/3/1989 • In this circular the government, reissued the instructions issued by the GR 03/02/1987.
'30/05/1989 • In this circular again the government, reiterated the same preposition of GR03/02/1987 regarding the ban on conversion to work charged establishment.
'05/06/1989 • In this resolution - the government reiterated the same preposition of Gr of 03/02/1987 regarding the ban on conversion to work charged establishment. • By way of note 1 in this government resolution it was clarified that by way of resolution date 17.10.1988 pursuant to wages of the daily wagers order were published. There is no condition for conversion of daily Page 18 of 108 HC-NIC Page 20 of 110 Created On Thu Feb 23 02:09:23 IST 2017 20 of 110 C/SCA/10829/2003 CAV JUDGMENT wager into work charged establishment, therefore, daily wager are not to be included in toe work charged establishment. It was clarified and instructed in the present resolution that no daily wager shall be included in the work charged establishment.
'05/01/1990 • Supersession of old instructions in the wake of the new policy on wages and services for the daily wage workers.
• All earlier GR's are superseded regarding daily wage workers.
Annexed hereto and marked as AnnexureRII (Collectively) are the copies of the above mentioned Government Resolutions.
15. I further respectfully submit that by way of Government Resolution dated 16.08.1973 initially Government of Gujarat floated a policy of conversion of post of workcharged of conversion of post of workcharged establishment in respect of maintenance and repairs of any works or irrigation management which are either required preliminary or for a very long term basis and for this reasons post of workcharged establishment was decided to converted into temporary establishment.
16. I respectfully say in the aforesaid resolution it was clarified that previous proposal pending as disposed off and for conversion afresh proposal should be submitted in accordance with the instruction given in the aforesaid Government Resolution. At this stage it is necessary to mention that while sending a fresh proposal for conversion from work charged establishment to temporary establishment; it was mandatory to give proper justification for each of the post and indicate the existing norms and eligibility criteria which could be fixed at the time of conversion of the employee to temporary establishment. However, it is submitted that, workcharged employee cannot automatically be absorbed into temporary establishment but when the post in the "same cadre become vacant then only employee can be converted". Furthermore, it is also clarified that in past, all those workcharged employee who were converted into temporary establishment according to Government Resolution on the ground that they completed 5 years of service as workcharged. In fact, there was a justified requirement in the particular Division of circle in extending work for longer period therefore, to satisfy the need of time. The employees working as workcharged employee were considered to be converted employee into temporary establishment. It is also clarified herein that 'the conversion of workcharged employee into temporary establishment is not promotion'. It is clarified that was initiated to satisfy the need of people in establishment. I say that there is no sanctioned post for temporary establishment. There appointment is based on constant requirement of work. I say merely completing 5 years in service shall not entitle petitioners to claim benefits of conversion. It cannot be claimed as Page 19 of 108 HC-NIC Page 21 of 110 Created On Thu Feb 23 02:09:23 IST 2017 21 of 110 C/SCA/10829/2003 CAV JUDGMENT matter of right by the petitioner. I respectfully say the appointment of the petitioner is in form of back door entry, be that as it may.
17. I say that the claim of the petitioner cannot be granted for the reasons as explained above this shall be done only when there is acute need arisen in the specific establishment of a division or a circle.
18. I say that Road and Building Department of the State Government has issued regulations for workcharged establishment on 12.12.1989 by way of Government Resolution. Annexed hereto and marked as Annexure RIII is the copy of regulations issued on 12.12.1989.
19. I say and submit that the State Government has decided to prohibit the conversion of worked charged establishment into temporary establishment by way of Government Resolution dated 20.08.2014. Annexed hereto and marked as AnnexureRIV is the copy of Government Resolution dated 20.08.2014. The State Government has decided to cancel the Government Resolution dated 16.08.1973. At this stage, it is crucial to mention this policy decision of cancelling the GR of 1973 was taken pursuant to the proposal which was sent by the Gujarat Engineer Research Institute (GERI) dated 25.06.2006, the same was sent to the Principal Secretary, Finance Department of the State Government and on 26.04.2007 Principal Secretary, Finance Department has forwarded a recommendation for cancellation of Government Resolution dated 16.08.1973. On this background administrative procedure was started to cancel the Government Resolution dated 16.08.1973 and on 21.08.2009 Chief Secretary of the State has also recommend cacelling the same and also the proposal of GERI was denied. Thereafter, further deliberation on the issue was taken in the meeting dated 04.04.2013 under the Chairmanship of Finance Minister of the State Government and which was attended by Principal Secretary of Finance Department, Principal Secretary of Road and Building Department, Secretary of Legal Department, Principal Secretary (Personal) of General Administrative Department and Higher Officer of the concerned departments. After due deliberation in the meeting held on 04.04.2013, the decision was taken to cancel the Government Resolution dated 16.08.1973 and the same has been approved by the concerned Minister and also approved by the highest authority of the State Government as a policy in decision in this interest of state.
20. I say and submit that for different post in regular establishment there are different recruitment rules which are framed under Article 309 of the Constitution of India and eligibility was defined for each of the post as well as for the cadre. Annexed hereto and marked as AnnexureRV (Colly) are the copies of the recruitment rules framed by the State Government under Article 309 of the Constitution of India for 1. Hamal, Sair Kamdar and server ClassIV, 2. For the Cook ClassIV, 3. For the Penal Operator, 4.
Page 20 of 108HC-NIC Page 22 of 110 Created On Thu Feb 23 02:09:23 IST 2017 22 of 110 C/SCA/10829/2003 CAV JUDGMENT Electrician and Electrical Mechanical, Head Wiremen Mechanical, Lift Mechanics Instrument repairers and Armature, 5. Lorry Driver, Road Roller Driver, 6. For the Drivers, 7. Work Assistant ClassII, 8. Painter, Masseurs Firemen and Blacksmiths, 9. Telephone Operator, 10. Tracer,
11. Non Secretariat Clerks, ClerkcumTypist and Typist, 12. Cashier, 14. Fitters and Carpenters, 15. Boring Mechanics and foremen (Mechanics). It is necessary to clarified at this stage that for all posts, different eligibility criteria were defined in the recruitment rules. The employee who are serving under worked charged establishment has to fulfill the eligibility criteria defined in the recruitment rules then only the employee can be converted into temporary establishment.
21. I say and submit that it was clarified that by Government Resolution dated 03.02.1987 and by subsequent Government Resolution the restrictions in recruiting the daily wage workers into workcharged establishment. It was clarified herein that the policy of the State Government restricting the appointments of daily wage workers in the workcharged establishment was confirmed by the GR dated 05.01.1990 in the said GR the earlier instruction issued by the GR whereby the banned was superseded but however, the banned regarding recruitment of daily wage workers into workcharged establishment was continue. At this stage, it is significant to clarify that the GR dated 20.08.2014 cancels including the initial GR by which Government has floated a policy of conversion in temporary establishment from the workcharged establishment as its policy decision of the Government of Gujarat.
22. I say and submit that at the cost of repetition that after due deliberation as mentioned in aforesaid paragraphs and after due consideration of the Government of Gujarat; a policy decision to cancel earlier policy by way of Government Resolution dated 20.08.2014. Therefore, in my humble request this court should not to interfere in the policy decision of the State Government."
25 Having heard the learned counsel appearing for the parties and having considered the materials on record, the following questions fall for my consideration in this batch of writ applications:
(I) Whether the action of the State Government in not absorbing the writ applicants in the temporary establishment from the work charged establishment on completion of five years of continuous service could be termed as arbitrary, unconstitutional and contrary to the concept of social and economic justice?Page 21 of 108
HC-NIC Page 23 of 110 Created On Thu Feb 23 02:09:23 IST 2017 23 of 110 C/SCA/10829/2003 CAV JUDGMENT (II) Whether the State Government could have revoked the Government Resolution of the year 1973 with retrospective effect, thereby, depriving the employees of their rights to claim absorption in the temporary establishment from the work charged establishment on completion of five years of continuous service in the work charged establishment.
(III) Whether the Government Resolution dated 20th August, 2014 impugned in these writ applications is violative of Section 9(A) of the Industrial Disputes Act?
(IV) Whether the Government Resolution of the year 2014 impugned in these writ applications could be termed as unconstitutional and deserves to be quashed?
(V) Whether the plea of illegal appointments or irregular appointments put forward by the State Government after a period of almost thirty years of service is justified or tenable in law?
(VI) What was expected of the State Government as a model employer to protect the interest of its employees working in the work charged establishment past almost three decades?
● ANALYSIS:
26 Before adverting to the rival submissions canvassed on either sides,
let me look into the Government Resolution of the year 1973, which is the basis of filing these writ applications. The Government Resolution dated 16th August, 1973 reads as under:
"Conversion of workcharged posts of Maintenance repairs and Page 22 of 108 HC-NIC Page 24 of 110 Created On Thu Feb 23 02:09:23 IST 2017
24 of 110 C/SCA/10829/2003 CAV JUDGMENT Irrigation management under P.W.D. Into temporary establishment Government of Gujarat, Public Works Department, Resolution ECWCE1272(2)G, Dated the 16th August, 1973.
Read: Govt. Resolution P.W.D. No.WCE1270G90/(8)/G, dated 29121972.
RESOLUTION: Under Govt. Resolution, Public Works Deptt, No.WCE1270G99(8)G dated 29th December, 1971 referred to above, it was decided that conversion of work charged posts into temporary posts should not be considered in view of the improvement in service conditions of the persons working on work charged establishment. The question of conversion of work charged posts has been re considered by Govt. After reconsideration Govt. has accepted in principle that the various posts on work charged establishment in respect of only maintenance and repairs of any works or irrigation management which are either required permanently or on a very long term basis be converted into temporary posts and work charged posts to that extent should be abolished.
2. The Heads of department under P.W.D. are therefore requested to please ensure that work charged posts in respect of maintenance and repairs of any works or irrigation management which are proposed for conversion to temporary establishment should have been continuously in existence for a minimum period of five years and are required either permanently or on very long term basis say 10 to 15 years.
3. Separate proposals should be submitted for each division in the enclosed performa giving justification for conversion of each individual post and indicating the existing norms or standard for such posts or the norms which could be fixed. The number of temporary/permanent posts already existing may also be motioned in the Performa and taken into account while submitting the proposals.
4. All previous proposals pending at govt. level should be treated as disposed off and fresh proposals should be submitted in accordance with the instructions contained in this resolution.
5. This issues with the concurrence of Finance Department vide its note, dated 10773 on this Department's file of even number.
By order and in the name of the Governor of Gujarat.
P.H. Parekh, Deputy Secretary to Govt., Public Works Department."
Page 23 of 108HC-NIC Page 25 of 110 Created On Thu Feb 23 02:09:23 IST 2017 25 of 110 C/SCA/10829/2003 CAV JUDGMENT 27 Let me now look into the impugned Government Resolution dated 20th August, 2014. The free English translation of the same reads as under:
"Regarding cancellation of resolution dated 16.08.1973 of the then Public Works Department (now Road and Building Department) for absorption of work charged employees into temporary establishment.
Government of Gujarat Road and Building Department Resolution No.: EST/122007/6/56/G 14/1, Sardar Bhavan, Sachivalay, Gandhinagar Date: 20/8/2014 Reference:
(1) Resolution No: WCE/1272/(2)/G dated 16/8/2013 issued by the then Public Works Department.
(2) Circular No.DRI/1083/83/G2, dated 3/2/1987 issued by Roads and Building Department.
(3) Resolution No.DRI/2102/893/126/G2, dated 5/1/1990 issued by Road and Building Department.
(4) Resolution No.EST/1089/26/G, dated 12/12/1989 issued by Road and Building Department.
Preamble : At the relevant time when the Public Works Department was in existence, there was provision in the resolution dated 16/8/1973 that those work charged employees who have completed five years of continuous service on the work charged establishment on 16/8/1973 and in respect of the work charged employees whose 10 to 15 years services have remained, then in that case the resolution dated 16/8/1973 provides for absorption of such employees of the work charged establishment into temporary establishment. On the basis of such G.R. some work charged employees were conferred temporary status i.e. in temporary establishment and in this regard proposals were made which were granted approval at the relevant point of time. At the time of publication of the aforesaid resolution, the Narmada Water Resources, Water Supply and Kalpsar Department as well as Road and Building Department were in existence as one and sole Department as Public Works Department, however, Page 24 of 108 HC-NIC Page 26 of 110 Created On Thu Feb 23 02:09:23 IST 2017 26 of 110 C/SCA/10829/2003 CAV JUDGMENT subsequently both the aforesaid departments got separated and even after separation also, resolution came to be implemented in respect of both the separate independent departments. That as part of implementation of the same, the file for work charged employees of Gujarat Engineering Research Institute (GERI) being File No.WCE/1096/12/2/G was forwarded by the concerned Department i.e. Narmada Water Resources, Water Supply and Kalpsar Department, for conversion of the work charged employees of the Gujarat Engineering Research Institute (GERI) into temporary establishment on 25/6/2006 and the same was sent for approval of the Government and on receipt of the same, the Principal Secretary, Finance Department passed order dated 26/4/2007 for cancellation of the resolution dated 16/8/1973 issued by the Public Works Department and in pursuance of the same, the administrative procedure for cancellation of the resolution was put to motion and on 21/8/2009 the Chief Secretary issued directives for the cancellation of the resolution with immediate effect. Thus, from 25/6/2006 the Government has not granted proposals for conversion of employees on the work charged establishment into temporary establishment. Thereafter for cancellation of this resolution, further deliberations were made under the chairmanship of the Hon'ble Finance Minister, for cancellation of the resolution with immediate effect. One meeting of high ranked Officers of the respective Departments came to be convened on 4/4/2013 and accordingly orders came to be passed for cancellation of the said G.R. and as a part of the same, for cancellation of the resolution, as an outcome of administrative procedure undertaken, on placing the matter for seeking approval of the Finance Department, General Administrative Department, the Hon'ble Ministers of the respective Departments as well as of the Government and on the basis of the approval dated 31/7/2014 the said resolution is required to be cancelled.
:RESOLUTION: As per the resolution dated 16/8/1973 referred to herein above at Sr. No.(1) issued by the Road and Building Department, precisely of G Branch by which Government has resolved for absorption of the work charged employees into temporary establishment. As per the said resolution, those employees who have completed continuous five years services in work charged establishment and are having remaining services of 10 to 15 years, the said resolution which provides for absorption of work charged employees into temporary establishment was published at the relevant point of time and the representations have been made for seeking benefit out of the said resolution at different levels, however, due to the same various administrative questions have arisen and various questions/complications of financial burden has arisen and is being arising and considering the prevailing circumstances it has been considered by the Government to cancel the said resolution.
After thoughtful consideration the resolution of Public Works Page 25 of 108 HC-NIC Page 27 of 110 Created On Thu Feb 23 02:09:23 IST 2017 27 of 110 C/SCA/10829/2003 CAV JUDGMENT Department dated 16/8/1973 and other connected resolutions are accordingly cancelled from the date of issuance of the same. The case which have been regularized and final decisions have already been taken on the basis of the resolution, such cases shall not be reopened/reconsidered.
These orders have been passed on the basis of approval dated 17/1/2014 granted by the General Administrative Department as well as on the basis of approval dated 28/1/2014 granted by the Finance Department as well as on the basis of approval of the Government on the basis of notes dated 31/7/2014 and on the basis of the same the said orders are published.
By order and in the name of the Governor of Gujarat.
Sd/(illegible) (Ramesh Patel) Under Secretary Road & Building Department"
28 The definition of the terms "temporary establishment" and "work charged establishment" has been provided under the Gujarat Public Works Department Manual. The definitions figure under the Chapter II, Class IV at page 47 of the Gujarat Public Works Department Manual. I may quote the two definitions as under:
"(a) Temporary Establishment:
(i) In order to meet the demand for extra supervision which may arise from time to time as well as to ensure that the Public Works establishments shall be capable of contraction as well as of expansion at the expenditure on works diminishes or increases the permanent establishments may be supplemented by temporary establishments to such extent as may be necessary and varying in strength from time to time according to the nature of the work to be done. Temporary establishment will include all such nonpermanent establishment no matter under what titles employed as is entertained for the general purposes of a Division or Subdivision or for the purpose of the general supervision as distinct from the actual execution of a work or works.
(ii) If member of temporary establishment are engaged for a special work, their engagement lasts only for the period during which the work last. All the temporary appointments should always be made "until further Page 26 of 108 HC-NIC Page 28 of 110 Created On Thu Feb 23 02:09:23 IST 2017
28 of 110 C/SCA/10829/2003 CAV JUDGMENT order" and the persons so appointed should clearly be given to understand that they are liable to be discharged at any time without any reasons being given. The conditions should be clearly explained to the persons and a written declaration obtained from them that the term have been clearly understood by them.
Note : 1 : Pretty establishments and establishments whose pay is charged to works are exempted from submitting temporary service declaration.
Note2: Junior Engineer, Supervisors and Overseers recruited after the 16th December, 1958 should be required to give an advance notice of minimum 3 notice of their intention to resign the post and Government should, on its part give them similar advance notice of minimum 3 months if their services are to be terminated. The condition regarding giving advance notice of minimum three month, which will be binding on both the sides, should be specified in appointment orders.
(iii) Power of Chief and Superintendent Engineer and the Executive Engineers to sanction temporary establishment are given at Sr. No.2(1) in Appendix XXVII.
(iv) The leave, travelling and other allowances of temporary establishment are regulated by the relevant rules in the Bombay Civil Services Rules. They have ordinarily no claims to pensions.
(v) Superintendent Engineers are authorized to grant conveyance allowance to member of temporary revenue establishment at the rates and on the condition mentioned in the case of the members of the work charged establishment and in subclauses (iv) of clause (c) of Paragraph
92.
(vi) Transfers of temporary person ordered by local officer should be restricted within the divisions as far as possible.
(b) Workcharged Establishment:
89. Workcharged posts are just any posts whose pay is directly debited to the work, and workcharged staff are those employed in such posts without having any position in the regular establishment.
Works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision of a specific work or of subworks of a specific project or upon the subordinate supervision of a specific work or of subworks of a specific project, of the departmental labor, stores and machinery in connection with such a work or subworks. When employees borne on the permanent or temporary establishment are employed on work of this nature their pay, etc. should, Page 27 of 108 HC-NIC Page 29 of 110 Created On Thu Feb 23 02:09:23 IST 2017 29 of 110 C/SCA/10829/2003 CAV JUDGMENT for the time being be charged direct to the work; the pay etc, of their substitutes on the regular establishment being charged to the minor head 'Establishment'. At Establishment can be incurred is 2 per cent of Expenditure to be incurred on works.
Note1: The establishment provided for surveying drawing, tracing etc. in estimates for preparation of projects should be regarded as engaged on the execution of the work and should therefore be treated workcharged.
Note2: Competent authority may waive the rule, which prescribes that work establishments must be employed upon a specific work, and determine in such cases the proportions in which the cost of such establishment shall be allocated between the works concerned vide serial No.5 in Appendix XXVII.
Exception - In the case of workcharged establishment employed on various maintenance and repairs works and occasionally on original minor works, the names of works on which such establishment is employed need not be specially mentioned while according sanction to such posts, the cost being allocated by the Executive Engineers between the works concerned in proportion to the time spent on those works.
The Executive Engineers except those of Electrical Divisions should maintain a proper record of the data for distributing the cost of such establishment charged to various works for scrutiny at the time of local audit inspections.
Note3: The workcharged establishment should be discontinued when works on which they are employed are temporarily stopped or suspended and reemployed as soon as works are resumed.
Note4: Employees borne on the permanent establishment should be employed on the actual execution of work, only in the case of important major works.
Note5: Transfers of workcharged persons ordered by local officers should be restricted within the Divisions as far as possible.
Note6: If employees on permanent and temporary establishment transferred to workcharged establishment are followed the houserent allowance and compensatory local allowance on the condition that they continue drawing pay and allowance as admissible to them while on regular establishment, the substitutes appointed against these posts on regular establishment should not be granted house rent allowance and compensatory local allowance as these persons would have been appointed on the workcharged establishment but for the deputation of the employees on regular establishment to work charged establishment.
Page 28 of 108HC-NIC Page 30 of 110 Created On Thu Feb 23 02:09:23 IST 2017 30 of 110 C/SCA/10829/2003 CAV JUDGMENT
90. The cost of works establishment must be shown as a separate subhead of the estimate.
Note1: In the case of estimates for modernization of road surfaces, the provision for workcharge establishment should be made at 2 per cent of the estimated cost.
Note2: When provision for works establishment is made in an estimate on a percentage basis it should be invariably be calculated on the estimated cost of work inclusive of contingencies so that the provision may be adequate even when the amount for contingencies has to be utilized.
91. In all cases previous sanction of competent authority to the employment of workcharged establishment is necessary which should specify in respect of each appointment (1) the consolidated rate of pay, (2) the period of sanction and (3) the full name (as given in the estimate) of the work and the nature of duties on which the person engaged would be employed, powers of Chief and Superintendent Engineer and Executive Engineer to sanction workcharged establishment are detailed at Senior No.2(2) in Appendix XXVII of P.W.D. Manual Volume II.
91A. The Superintending Engineers of Circles, the Director of Ports, the Director of Engineering Research Institute, the Electrical Engineer to Government and the Executive Eng inners of Divisions are authorized to employ subordinates (Junior Engineer, Supervisors and Overseers) and Khalasis under them on workcharged establishment where necessary for detailed supervision of works provided their cost is met from the provisions for the workcharged establishment in the estimates of works and subject to the limits laid down at senior No.2 in Appendix XXVII of P.W.D. Manual Volume II."
29 The status of an employee in the work charged establishment has come for consideration in different judgments before the Hon'ble Supreme Court as well as before this Court. There are two types of establishment, one general establishment and the other work charged establishment. The workers of work charged establishment means an establishment of which the expenses, including wages and allowances of the staff, are chargeable against work. A work charged establishment differs from the regular establishment which is permanent in nature.
30 The setting up and continuation of work charged establishment is Page 29 of 108 HC-NIC Page 31 of 110 Created On Thu Feb 23 02:09:23 IST 2017 31 of 110 C/SCA/10829/2003 CAV JUDGMENT dependent upon the Government undertaking, project or a scheme of a work and the availability of the fund for executing it. The employees engaged in the work charged establishment, their nature of work and duties performed by them, their recruitment and condition of services are different than those employed in the regular establishment. The regular establishment and the work charged establishment, both are two separate types of establishment and the employees employed on those establishments, thus form two separate and distinct classes.
31 In the case of Jaswant Singh and Others v. Union of India and Others, (1979) 4 SCC 440, the Hon'ble Supreme Court has examined with bird's eye view and held that a work charged establishment broadly means an establishment of which expenses including wages and allowances of staff are chargeable to the work. The pay and allowance of the employees who are borne on the work charged establishment are generally shown as a separate subhead of the estimated cost of the work. The work charged employees are engaged on temporary basis and their appointments are made for execution of specified work. From the very nature of their employment, their services automatically come to an end on the completion of the work for the sole purpose of which they are employed.
32 The status of employees of the work charged establishment came up for consideration in the case of State of Rajasthan v. Kunji Raman, (1997) 2 SCC 517 and the Supreme Court has taken a view that the employees employed in the work charged establishment constitute a different class, cannot claim to be at par with the employees employed in the regular establishment and further held that framing of two sets of Rules, one for the employees of the work charged establishment and another for the employees of the regular establishment cannot be said to Page 30 of 108 HC-NIC Page 32 of 110 Created On Thu Feb 23 02:09:23 IST 2017 32 of 110 C/SCA/10829/2003 CAV JUDGMENT be illegal, arbitrary and discriminatory, as the Court has held that the appointment of the employees of the regular establishment is quite different and distinct to the employees employed in the work charged establishment. In the case of the employees employed in the regular establishment, the cost is borne from the general fund whereas in the case of employees employed as work charged establishment the cost including wages are borne on the Project. It will be relevant to quote Para 6, 7 and 8 of the judgment which is as follows:
"6. A workcharged establishment as pointed out by this Court in Jaswant Singh v. Union of India broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a workcharges establishment are generally shown as a separate subhead of the estimated cost of the works. The work charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. Thus a workcharged establishment is materially and qualitatively different from a regular establishment.
8. A workcharged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a workcharged establishment is dependent upon the Government undertaking a project or a scheme or a "work" and availability of funds for executing it. So far as employees engaged in workcharged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a workcharged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged in the workcharged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in a arbitrary and discriminatory manner by the Government. It is well settled that the Government has the power to frame different rules for different classes of employees. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that clauses (g), (h) and (i) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Page 31 of 108 HC-NIC Page 33 of 110 Created On Thu Feb 23 02:09:23 IST 2017
33 of 110 C/SCA/10829/2003 CAV JUDGMENT Court".
33 The Supreme Court in the case of State of Haryana vs. Piara Singh AIR 1992 SC 2130, after considering the decision in the case of Jaswant Singh (supra) observed that so far as the workcharged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by the Supreme Court, security of tenure is necessary for an employee to give his best to the job.
34 Let me now look into the decision of this Court rendered by a learned Single Judge referred to above on which strong reliance has been placed on behalf of the petitioners. In the Special Civil Application No.7464 of 1996, 54 employees prayed for extending the benefits of the higher pay scales on completion of 9, 18 and 27 years of service from their respective date of appointment. In the said case, the grievance redressed was that the Government had issued the Government Resolution dated 7th July, 1993, and accordingly, the persons who had completed five years of service in the work charged establishment were required to be converted into the employees on the temporary establishment. However, the persons, who were recruited on the work charged establishment in 1973, 1975 and 1977 respectively, were Page 32 of 108 HC-NIC Page 34 of 110 Created On Thu Feb 23 02:09:23 IST 2017 34 of 110 C/SCA/10829/2003 CAV JUDGMENT converted into the temporary establishment in 1990, though the benefits ought to have been granted to them on completion of five years of service on the work charged establishment. The learned Single Judge, while allowing the petition, observed as under:
"1. The present petition is filed by a group of 54 employees praying for extending the benefits of higher payscale on completion of 91827 years of service from their respective date of appointment. The prayer in para 14 (B) of the petition is for setting aside the Government Resolution dated 16th August, 1994 (AnnexureD). It is prayed in para 14 (BB) that the order dated 7th June, 1999 rejecting the claim of petitioners be also quashed. Prayer in para 14 (BBB) seeks direction to convert the petitioners from employees on WorkCharge Establishment to Temporary Establishment on completion of five years of service and grant the relief of higher payscale from the respective due dates.
2. Learned Assistant Government Pleader could not dispute that the benefit of converting the workcharge employees to Temporary Establishment was available to the petitioners. In fact, the petitioners have, vide AnnexureE, placed on record details about the dates of their respective appointments and dates from which they were taken on the Temporary Establishment.
3. The short grievance made in the present petition is that the Government has issued G.R. dated 7th July, 1993 (AnnexureB) and accordingly the persons who have completed five years of service in WorkCharge Establishment are required to be converted into employees on Temporary Establishment. But, in the present case, as could be seen from AnnexureE, the persons who were recruited on WorkCharge Establishment in 1973, 1975 and 1977 respectively, were converted into Temporary Establishment in 1990, though the benefit ought to have been granted on completion of five years of service on WorkCharge Establishment. To quote an example, petitioner No.1 Shri T.P.Patel was appointed on 15th March, 1973 and he was taken on Temporary Establishment on 4th August, 1990. According to the G.R. which has been placed on record, the petitioners ought to have been taken from WorkCharge Establishment to Temporary Establishment on completion of five years of service. This benefit was not granted, as a result of which the benefit of higher payscales on completion of 91827 years of service have also been inordinately delayed. The petitioners have placed on record the G.R. dated 17.01.2000 which states that employees who have completed five years of service on WorkCharge Establishment are required to be converted into employees on Temporary Establishment.Page 33 of 108
HC-NIC Page 35 of 110 Created On Thu Feb 23 02:09:23 IST 2017 35 of 110 C/SCA/10829/2003 CAV JUDGMENT
4. The petitioners have also relied upon the order dated 22.9.1998 of this Court (Coram: K.R.Vyas, J.) in another Special Civil Application No.2549 of 1998. Learned A.G.P. fairly conceded that the issue in the present petition is covered by that earlier order. Reliance is also placed on G.R.No.WCE1272/(2)/G dated 16th August, 1973 of which relevant para 2 reads as under:
"The head of the department under PWD are therefore requested to please ensure that work charged posts in respect of maintenance and repairs of any works or irrigation management which are proposed for conversion to Temporary Establishment should have been continuously in existence for a minimum period of five years and are required either permanently or on very long term basis; say 10 to 15 years."
5. The petitioners have placed on record G.R. dated 5th July, 1991, wherein it is mentioned that "the benefit shall be available even to the employees of Panchayat and Primary Teachers with necessary modification". That resolution is directly applicable to the petitioners who are working under the Executive Engineer, Roads and Buildings Department in its workshop at Ahmedabad.
6. The prayer in para 14 (B) of the petition is not pressed by learned advocate for the petitioners as the Government Resolutions directing conversion of workcharge employees as temporary employees on completion of five years of service are not disputed by learned A.G.P.
7. In view of undisputed facts about due conversion of the petitioners from WorkCharge Establishment to Temporary Establishment on the date they completed five years of service, the natural consequences would be that on completion of nine years of service from the date they are deemed to have been converted from WorkCharge Establishment to Temporary Establishment, the benefit of higher payscale under the scheme of 91827 years of service would be available to the petitioners.
8. Therefore, the respondents are directed to grant the benefit of conversion of the petitioners from WorkCharge Establishment to Temporary Establishment on completion of five years as workcharge employees from the date of their initial appointment which is indicated in column4 of the statement (AnnexureE to the petition) and accordingly further directed to grant higher payscales from the date the petitioners have completed nine, eighteen and twenty seven years of service on Temporary Establishment.
9. During the course of hearing of the petition, it was submitted by learned advocate for the petitioners that out of 54 petitioners, few of them have Page 34 of 108 HC-NIC Page 36 of 110 Created On Thu Feb 23 02:09:23 IST 2017 36 of 110 C/SCA/10829/2003 CAV JUDGMENT retired and few of them have expired. It is, therefore, directed that those petitioners who have retired and/or expired will also be entitled to the benefit of higher payscale and they or their legal heirs, as the case may be, shall be paid the amounts falling due by virtue of this order, within two months from the date of receipt of a copy of this order.
Rule is made absolute accordingly to the aforesaid extent, with no order as to costs."
35 The above referred judgment and order passed by the learned Single Judge was challenged by the State of Gujarat by filing the Letters Patent Appeal No.1360 of 2011. The said Letters Patent Appeal was ordered to be dismissed vide judgment dated 17th October, 2011, which reads as under:
"By way of this IntraCourt Letters Patent Appeal, the appellants - original respondents have challenged the judgment and order dated 21.01.2011 passed by the Learned Single Judge in Special Civil Application No.7464 of 1996.
2. We have heard Mr. N. J. Shah, learned Assistant Government Pleader appearing for the appellants and Mr. T. R. Mishra, learned counsel appearing for the respondents.
3. Learned Assistant Government Pleader on the basis of instructions received has submitted that after the judgment passed by the Learned Single Judge, the issue is pending with the State Government and no decision is taken.
3. In our view, while considering the case of the respondents herein, the Learned Single Judge has observed in impugned judgment and order in paragraphs 7 to 9 as under : "7. In view of undisputed facts about due conversion of the petitioners from WorkCharge Establishment to Temporary Establishment on the date they completed five years of service, the natural consequences would be that on completion of nine years of service from the date they are deemed to have been converted from WorkCharge Establishment to Temporary Establishment, the benefit of higher payscale under the scheme of 91827 years of service would be available to the petitioners.
8. Therefore, the respondents are directed to grant the benefit of conversion of the petitioners from WorkCharge Establishment to Temporary Establishment on completion of five years as work Page 35 of 108 HC-NIC Page 37 of 110 Created On Thu Feb 23 02:09:23 IST 2017 37 of 110 C/SCA/10829/2003 CAV JUDGMENT charge employees from the date of their initial appointment which is indicated in column4 of the statement (AnnexureE to the petition) and accordingly further directed to grant higher payscales from the date the petitioners have completed nine, eighteen and twenty seven years of service on Temporary Establishment.
9. During the course of hearing of the petition, it was submitted by learned advocate for the petitioners that out of 54 petitioners, few of them have retired and few of them have expired. It is, therefore, directed that those petitioners who have retired and/or expired will also be entitled to the benefit of higher payscale and they or their legal heirs, as the case may be, shall be paid the amounts falling due by virtue of this order, within two months from the date of receipt of a copy of this order."
4. In the above view of the matter, in our view, no error is committed by the Learned Single Judge. No interference is called for. The appeal is devoid of any merits and deserves to be dismissed. It is accordingly dismissed. It is made clear that this order may not be treated as precedent.
5. In view of dismissal of appeal, the Civil Application for stay also stands dismissed."
36 It appears that the State of Gujarat being dissatisfied with the above two referred judgments preferred a Special Leave Petition before the Supreme Court and the Special Leave Petition was also ordered to be dismissed vide order dated 5th October, 2010.
37 I take notice of the fact that few of the petitioners are working under the respondents as Daily Wagers on different posts, like Chowkidar, Waiter, Room Boy, Gardener, Sweeper, Karigar, Mason, Pumpman, Driver, Carpenter, etc. They have put in services between five years and thirty five years. They have put forward their claim for being absorbed in the work charged establishment in view of the two Government Resolutions dated 4th July, 1973 and 16th November, 1973 respectively. It is their case that they are fulfilling all the conditions mentioned in both the resolutions.
38 It is difficult for me to incorporate all the details of each of the Page 36 of 108 HC-NIC Page 38 of 110 Created On Thu Feb 23 02:09:23 IST 2017 38 of 110 C/SCA/10829/2003 CAV JUDGMENT petitioners having regard to the number of petitions before me. Therefore, I propose to give a fair idea without going much into the details of the individual petitioners as regards their status, and the benefits already extended to some of the employees under the different Government Resolutions insofar as the absorption to the work charged establishment from the Daily Wage, and temporary establishment from the work charged.
39 The learned counsel appearing for the respective petitioners have provided me in writing the necessary details, but as observed above, it is not possible to incorporate all the details otherwise the facts will become very voluminous.
40 Let me now look into the Government Resolution dated 16th August, 1973. The same is with regard to the conversion of the work charged posts into temporary establishment. I have quoted the entire resolution in para - 26. The plain reading of the said resolution would indicate that the Government accepted in principal that various posts on the work charged establishment in respect of the maintenance and repairs of any work or irrigation management required permanently or on a very long term basis should be converted into the temporary posts, and the work charged posts should be abolished. The resolution also indicates that the Heads of Departments under the Public Works Department were requested to ensure that the work charged posts remained in existence for a period of five years with requirement either permanently or on a very long term basis i.e. ten to fifteen years.
41 Thus, a policy decision was taken by the State Government conferring some benefit in favour of those employees who were working on the work charged establishment. It is not in dispute that the Page 37 of 108 HC-NIC Page 39 of 110 Created On Thu Feb 23 02:09:23 IST 2017 39 of 110 C/SCA/10829/2003 CAV JUDGMENT resolution dated 16th August, 1973 in the form of a policy decision continued till the time it was cancelled vide resolution dated 20th August, 2014. It is also not in dispute that between 1973 and 2014, hundreds of employees were extended the benefits of the said resolution as it is evident from the pleadings itself in each of the petitions and not controverted in any manner.
42 It appears that the Government thought fit to do away with the resolution dated 16th August, 1973 by passing the resolution dated 20th August, 2014 which I have incorporated in para - 27 on the ground that the resolution of 1973 was passed at a point of time when the Narmada Water Resources, Water Supply and Kalpasar Department as well as the Road & Building Department were considered as one integral part of the Public Works Department. However, later on, they all were bifurcated, and despite such bifurcation, the resolution was being implemented. It is only when the work charged employees of the Gujarat Engineering Research Institute, Vadodara took up the issue as regards conversion of the work charged employees into temporary establishment and a proposal in that regard was forwarded, the Government thought fit to do away with such policy. It appears that such decision was taken in the year 2006, but it took almost seven years before the same could be given effect to and that is how the resolution dated 20th August, 2014 came into picture. I have noticed that only one ground has been assigned and i.e. financial burden. The Government thought fit to clarify that all those cases, which had been regularized and final decision had already been taken on the basis of the resolution of 1973, would not be reopened. Thus, before the petitioners herein could be extended the benefits of the resolution of 1973, the same came to be cancelled in 2014 and it is now the say of the Government that as there is no such policy, no relief should be granted to the petitioners.
Page 38 of 108HC-NIC Page 40 of 110 Created On Thu Feb 23 02:09:23 IST 2017 40 of 110 C/SCA/10829/2003 CAV JUDGMENT 43 At this stage, I propose to examine two issues. First, the preliminary objection raised on behalf of the respondent - State, as regards the alternative remedy available to the petitioners to raise a dispute under the Industrial Disputes Act, and secondly, the applicability of Section 9A of the Industrial Disputes Act, 1947.
44 Before I deal with the contention as regards the alternative remedy, let me look into Section 9A of the Industrial Disputes Act, 1947. Section 9A reads as under:
"9A. Notice of change No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change,
(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twentyone days of giving such notice :
Provided that no notice shall be required for effecting any such change
(a) where the change is effected in pursuance of any [settlement or award;]
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply."
45 The Fourth Schedule under the Act, 1947 is with regard to the conditions of service for change of which notice is to be given. The Page 39 of 108 HC-NIC Page 41 of 110 Created On Thu Feb 23 02:09:23 IST 2017 41 of 110 C/SCA/10829/2003 CAV JUDGMENT Fourth Schedule reads as under:
"THE FOURTH SCHEDULE (See Section 9A) CONDITIONS OF SERVICE FOR CHANGE OF WHICH NOTICE IS TO BE GIVEN
1. Wages, including the period and mode of payment ;
2. Contribution paid, or payable, by the employer to any provident fund or for the benefit of the workmen under any law for the time being in force ;
3. Compensatory and other allowances ;
4. Hours of work and rest intervals;
5. Leave with wages and holidays ;
6. Starting alteration or discontinuance of shift working otherwise than in accordance with standing orders;
7. Classification by grades ;
8. Withdrawal of any customary concession or privilege or change in usage;
9. Introduction of new rules of discipline, or alteration of existing rules except insofar as they are provided in standing orders;
10. Rationalisation, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;
11. Any increase or reduction (other than casual ) in the number of persons employed or to be employed in any occupation or process or department of shift [ not occasioned by circumstances over which the employer has no control]"
46 An analysis of Section 9A of the Act 1947 clearly shows that this provision comes into operation when the employer proposes to change any condition of service applicable to any workman, and once this is Page 40 of 108 HC-NIC Page 42 of 110 Created On Thu Feb 23 02:09:23 IST 2017 42 of 110 C/SCA/10829/2003 CAV JUDGMENT done, twenty one days have to be given to the workmen. The question for my consideration would be whether by withdrawing the Government Resolution of the year 1973 which conferred some benefits to the work charged employees for being absorbed on the temporary establishment on completion of five years of service in the work charged establishment, the Government effected any substantial change in the conditions of service, because the petitioners could be said to have been deprived of being absorbed on the temporary establishment from the work charged posts according to the policy of the State Government prevailing at the relevant point of time.
47 To put it in other words, whether the policy decision of the State Government to absorb the work charged employees on the temporary establishment on their completion of five years of service on the work charged establishment and considering that their work was required for a period of ten to fifteen years and the withdrawal of the same all of a sudden after almost a period of 41 years could be termed as altering the conditions of service. What is the meaning of the expression "conditions of service" should also be looked into and understood.
48 In M/s. Tata Iron and Steel (supra), the Supreme Court while pointing out the object of Section 9A of the Industrial Disputes Act 1947 observed as follows:
"The real object and purpose of enacting S.9A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and if necessary to represent their view on the proposal. Such consultation further serves to stimulates a feeling of common joint interest in the management and the workmen in the industrial progress and increased productivity."
49 There can be conditions of service which are not either embodied Page 41 of 108 HC-NIC Page 43 of 110 Created On Thu Feb 23 02:09:23 IST 2017 43 of 110 C/SCA/10829/2003 CAV JUDGMENT as terms of contract or made as service rules (See : Purshotam Dal Dhinga vs. Union of India, AIR 1958 SC 36). A continued and uninterrupted service in the service matters would constitute a condition of service, whether or not, they are incorporated as a rule (See : M/s. Dalmia Cement (Bharat) Ltd., New Delhi vs. Their workmen and another, AIR 1967 SC 209).
50 In Lokmant Newspapers (supra), the Supreme Court explained in details the provisions of Section 9A of the Industrial Disputes Act. After quoting Section 9A and the Schedule in para 31, the Supreme Court proceeded to observe as under:
"So far as Item Nos. 19 and 11 are concerned, it becomes obvious that before any such change in conditions of service of the workmen is to be effected, as a precondition for such proposed change, notice under Section 9A has to be issued, without complying with such a precondition of notice, proposed change would not legally come into operation. We are directly concerned with Item No. 10 of this Schedule. It, therefore, becomes obvious that before any rationalisation, standardisation or improvement of plant or technique is to be resorted to by any management if by such an exercise retrenchment of workmen is likely to result, then before introducing such rationalisation, standardisation or improvement of plant or technique, as the case may be, a prior notice under Section 9A is to be issued to the workmen who can get an opportunity to show that they may not be retrenched because of the new scheme of rationalisation etc. which is in the offing and can suggest ways and means available to the management to avoid such proposed retrenchment of the workmen despite such introduction of a new scheme. Consequently, it must be held on the very wordings of Section 9A read with Item No. 10 of Fourth Schedule "that any management which seeks to introduce a new working pattern for its existing work force by any future scheme of rationalisation, standardisation or improvement of plant or technique which has a tendency to lead to future retrenchment of workmen" has to give prior notice of proposed change. Therefore, it must be held that notice under Section 9A must precede the introduction of rationalisation concerned, it cannot follow the introduction of such a rationalisation. In the present case, it is not in dispute between the parties that in the composing department of the appellant where the respondent was working composing work was earlier being done by hand i.e. manually. That was the existing condition of service of the respondent. By substitution of that type of work by mechanical work having resort to photo type composition through Page 42 of 108 HC-NIC Page 44 of 110 Created On Thu Feb 23 02:09:23 IST 2017 44 of 110 C/SCA/10829/2003 CAV JUDGMENT machine, the then existing service condition of the respondent was bound to be affected adversely. Consequently, before introducing such a change in the condition of service of the respondent by installing photo type composing machine, introduction of which was directly likely to lead to retrenchment of the respondent, a notice under Section 9A was a must before commissioning such a photo type machine at the work place of the appellant..."
50.1 In para 34, it observed as under:
"As noted earlier, on the scheme of Section 9A read with Item 10 of the Fourth Schedule,before introducing such a new scheme of rationalisation which had a likelihood and a tendency to affect the existing service conditions of the workmen, a notice under Section 9A was required to be issued prior to the installation of the photo composing machine. Such a notice could have been sent before January, 1981 when such a machine was brought in the premises as an experimental measure or at least before 4111981 when the same was continued to be installed as a confirmed necessary component of machinery for printing at the appellant's premises at Nagpur. If such a notice was given to the respondentworkman and other workmen similarly situated they could have persuaded the appellant to resort to any other type of rationalisation or to absorb them on suitable jobs in the same premises in any other department of the appellant at Nagpur. That opportunity was never made available to the respondent. Therefore, notice under Section 9A issued after installation of the machine and after bringing into force the rationalisation scheme was ex facie a stillborn and incompetent notice and was clearly violative of the provisions of Section 9A of the Act which amounted to putting the cart before the horse. Such an incompetent and illegal notice under Section 9A could not legally enable the appellant to terminate the services of the respondent. We may mention at this stage that the impugned termination order dated 22 61982 clearly recites as follows :
"In the notice given on 25th March, 1982, under Section 9A of the Industrial Disputes Act, 1947, the Management had noted that it may require to reduce 25 workmen from service for the purpose of introducing new technology in the composing section.
The Conciliation Officer has noted in his order dated 22682 that the proceedings started on the basis of this notice have proved unsuccessful and, therefore, the Management has now decided to terminate with immediate effect the following 25 workmen.
Name of Workmen Post
1 Shri Maniram Choudhary Foreman
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2 Shri Shankarprasad Pathak Foreman
3 To 25 ..."
That is how the listed workmen, including the respondent herein, were sought to be discharged from service. Thus the foundation of the impugned order of discharge is the notice under Section 9A dated 25th March, 1982. Once that foundation is knocked off as incompetent, illegal and uncalled for the entire edifice of retrenchment order against the respondent falls to the ground.
50.2 In para 35 and 36, it observed as under;
"35.It may also be noted at this stage that by two decisions rendered by Bench of three learned Judges of this Court in connection with the time for issuance of notice under Section 9A read with item 10 Schedule IV with which we are concerned in the present case it has been clearly ruled that such notice must precede the introduction of rationalisation scheme. We may usefully refer to them at this stage. In the case of M/s. North Brook Jute Co. Ltd. v. Their Workmen, (1960) 3 SCR 364 : (AIR 1960 SC 879), a three Judge Bench of this Court had to consider the question whether in a reference regarding proposed introduction of rationalisation scheme which was preceded by notice under Section 9A of the I.D. Act, such a scheme could be actually introduced pending reference proceedings and whether such an act on the part of the management could be treated to be illegal entitling the workmen affected by such an introduction to go on strike and still earn wages for the strike period. Answering this question in affirmative it was held by this Court that after notice under Section 9A of the I.D. Act when a scheme of rationalisation was said to be introduced but was not actually introduced it could not be introduced till the dispute regarding such proposed introduction was resolved by the competent Court. Dealing with the scheme of proposed rationalisation as envisaged by Item No. 10 of Schedule IV of the I.D. Act it was observed that :
"Rationalisation which was introduced had therefore two effects first that some workers would become surplus and would face discharge; and secondly, the other workmen would have to carry more workload. The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen.
The alteration was made on the 16th December, when reference as regards the scheme had already been made and was pending before the Industrial Tribunal. The Tribunal has therefore rightly held that this introduction was a contravention of S. 33."Page 44 of 108
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36. The aforesaid decision, therefore, has clearly ruled that introduction of rationalised scheme by itself would amount to alteration of conditions of service of the workmen to their prejudice.It, therefore, follows that before effecting such a change, meaning thereby, before introducing such a rationalisation scheme which has a tendency to change the conditions of service of workmen, notice under Section 9A as a condition precedent becomes a must. If learned counsel for the appellant is right, that machine can be introduced on experimental basis first or even after it has already worked for some time and is required to be continued as a fullfledged machine, as and when the employer decides to terminate the services of the workmen as a direct consequence of such introduction of machine, he can give notice under Section 9A of the Act at any such time, then the very scheme of Section 9A read with Schedule IV Item No. 10 of the I.D. Act would be rendered ineffective and inoperative. The purpose of issuing such a notice prior to the introduction of the scheme of rationalisation would get frustrated and then there would remain no effective opportunity for the conciliator to try to arrive at an amicable settlement regarding the dispute centering round the proposed introduction of the scheme of rationalisation which is likely to result in the retrenchment of workmen. Equally there would remain no opportunity for the State Government on receipt of failure report from the conciliator to make a reference of such live industrial dispute for adjudication by the competent Court on merits.It is obvious that when such dispute regarding the proposed introduction of the rationalisation scheme is referred for adjudication of the competent Court, the said Court after hearing the parties and considering the evidence can come to the conclusion whether the proposed scheme is justified on facts or not and whether any violation of the provisions of Section 9A had resulted into illegality of the consequential orders of retrenchment. Such competent Court can also accordingly pass appropriate consequential orders directing the management to withdraw such a scheme of rationalisation or in any case, can order reinstatement of workmen with proper backwages if such retrenchment is found to be illegal on account of failure to comply with the provisions of Section 9A of the Act. The question regarding the stage at which notice under Section 9A can be issued in connection with proposed scheme of rationalisation which has likelihood of rendering existing workmen surplus and liable to retrenchment as mentioned in Item No. 10 of Schedule IV of the I.D. Act was once again examined by a three judge bench of this Court in Hindustan Lever Ltd. v. Ram Mohan Ray, (1973) 4 SCC 141 : (AIR 1973 SC 1156 : 1973 Lab IC 784). In that case, this Court was concerned with a scheme of rationalisation and reorganisation which were proposed to be introduced by Hindustan Lever Ltd., appellant before this Court, and for which a prior notice under Section 9A before introducing such reorganisation scheme was issued to the workmen but which had no tendency or likelihood of displacing or retrenching them. It was the contention of the workmen that even for such a scheme a notice under Page 45 of 108 HC-NIC Page 47 of 110 Created On Thu Feb 23 02:09:23 IST 2017 47 of 110 C/SCA/10829/2003 CAV JUDGMENT Section 9A was a must. Examining the scheme of reorganisation in question, it was held that once the scheme was not likely to result in retrenchment of any workman Section 9A read with Item No. 10 of Schedule IV did not get attracted on the facts of the case. In this connection the following pertinent observations on the scheme of Section 9A read with item No. 10 of Schedule IV were made by Alagiriswami J., while dealing with the contention of learned counsel for the workmen (para 7) :
"8. He also urged that rationalisation and standardisation per se would fall under Item 10 even if they were not likely to lead to retrenchment of workmen and only improvement of plant or technique would require that they should lead to retrenchment of workmen in order to fall under item 10. A further submission of his was that standardisation merely meant standardisation of wages. We are not able to accept this argument. It appears to us that the arrangement of words and phrases in that item shows that only rationalisation or standardisation or improvement of plant or technique, which is likely to lead to retrenchment of workmen would fall under that item. In other words, rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment of workmen. The reference to rationalisation at page 257 of the report of the Labour Commission and the reference to standardisation of wages in it are not very helpful in this connection. Standardisation can be of anything, not necessarily of wages. It may be standardisation of workload, standardisation of product, standardisation of working hours or standardisation of leave privileges. Indeed in one decision in Alembic Chemical Works Co. Ltd. v. The Workmen (AIR 1961 SC
647), there is reference to standardisation of conditions of service, standardisation of hours of work, wage structure. That case itself was concerned with standardisation of leave. The whole question whether this reorganisation falls under item 10 depends upon whether it was likely to lead to retrenchment of workmen."
In view of the aforesaid decision, it becomes obvious that if the proposed scheme of rationalisation has a likelihood of rendering existing workmen surplus and liable to retrenchment, then item No. 10 of Schedule IV would squarely get attracted and would require as a condition precedent to introduction of such a scheme a notice to be issued under Section 9A by the management proposing such an introduction of the scheme of rationalisation, but if the proposed scheme is not likely to displace any existing workmen then mere rationalisation which has no nexus with the possibility of future retrenchment of workmen would not attract item No. 10 of Schedule IV and would remain a benign scheme of rationalisation having no pernicious effect on the existing working staff."
Page 46 of 108HC-NIC Page 48 of 110 Created On Thu Feb 23 02:09:23 IST 2017 48 of 110 C/SCA/10829/2003 CAV JUDGMENT 50.3 While concluding as regards point No.3 raised, it observed as under in para 37:
"37. In view of the aforesaid settled legal position, there is no escape from the conclusion that the impugned notice dated 25th March, 1982 under Section 9A which was issued long after the actual installation of the photo composing machine had fallen foul on the touchstone of Section 9A read with Schedule IV item No. 10. Such a notice in order to become valid and legal must have preceded introduction of such a machine and could not have followed the actual installation and effective commission of such a machine. The decision rendered by the Division Bench in this connection is found to be perfectly justified both on facts and in law. It must, therefore, be held that the impugned termination or discharge of the respondent was violative of the provisions of Section 9A of the I.D. Act and he was discharged from service without the appellant's following the mandatory requirements of Section 9A of the I.D. Act. Effect of non compliance of Section 9A of the I.D. Act renders the change in conditions of service void ab initio . This legal position is well settled in the case of Workmen of the Food Corporation of India v. Food Corporation of India, (1985)2 SCC 136 : (AIR 1985 SC 670 : 1985 Lab IC 876), a three Judge Bench of this Court, speaking through Desai J, in para 19 of the report, laid down as under : "19. It is at this stage necessary to examine the implication of Section 9A of the I.D. Act, 1947. As hereinbefore pointed out, Section 9A makes it obligatory upon an employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give a notice of desired or intended change. It cannot do so without giving to the workman likely to be affected by the change, a notice in the prescribed manner of the nature of the change proposed to be effected and within 21 days of giving such notice.
There is a proviso to Section 9A which has no relevance here.......Therefore, obviously a notice of change was a must before introducing the change, otherwise it would be an illegal change. Any such illegal change invites a penalty under Section 31(2) of the I.D. Act, 1947. Such a change which is punishable as a criminal offence would obviously be an illegal change. It must be held that without anything more such an illegal change would be wholly ineffective."
Point No. 3, therefore, is answered in affirmative against the appellant and in favour of the respondent."
Page 47 of 108HC-NIC Page 49 of 110 Created On Thu Feb 23 02:09:23 IST 2017 49 of 110 C/SCA/10829/2003 CAV JUDGMENT 51 Thus, it appears that in Lokmant Newspapers (supra), the Supreme Court was called upon to consider Section 9A of the Industrial Disputes Act visavis the proposed scheme of rationalization which was likely to render the workmen surplus and liable to retrenchment. The Supreme Court took the view that item No.10 of Schedule IV in the facts of that case would require as a condition precedent to introduction of such a scheme a notice to be issued under Section 9A by the management proposing such an introduction of the scheme of rationalization, however, the Court proceeded to clarify that if the proposed scheme was not likely to displace any existing workmen then mere rationalization which had no nexus with the possibility of future retrenchment of workmen would not attract item no.10 of Schedule IV and would remain just a scheme of rationalization having no adverse effect on the working staff which existed at that point of time.
52 In the present case, we are concerned with the decision of the State Government to do away with the Government Resolution of 1973 by which the Government reviewed its earlier policy and thought fit not to absorb any work charged employee on the temporary establishment. Could it be said that the policy decision of the State Government taken in the year 1973 that a work charged employee on completion of five years of service and with ten to fifteen years of more service required would be absorbed on the temporary establishment conferred any customary concession on the employees and which became part of the conditions of service, and withdrawal of such concession, without following the provisions of Section 9A of the Industrial Disputes Act, would vitiate the action of the State Government.
53 The expression "conditions of service" has been explained by the Supreme Court in its many judgments. To quote few, in the case of State Page 48 of 108 HC-NIC Page 50 of 110 Created On Thu Feb 23 02:09:23 IST 2017 50 of 110 C/SCA/10829/2003 CAV JUDGMENT of Madhya Pradesh and others vs. Shardul Singh [1970 (1) SCC 108], the Supreme Court in paras 8 and 9 observed as under:
"8. One of the powers conferred under this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the Union or the State as the case may be. The expression "conditions of service" is an expression of wide import. As pointed by this Court in, Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court (1955) 2 SCR 1331, the dismissal of an official is a matter which falls within "conditions of service of public servants. The Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand (1948) LR 75 IA 343, took the view that a right of dismissal is a condition of service within the meaning of the words under s. 243 of the Government of India Act, 1935. Lord Thankerton speaking for the Board observed therein, "apart from consideration whether the context indicates a special significance to the expression "conditions of service" their Lordships are unable in the absence of any such special significance, to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory; they are therefore of opinion that the natural meaning of the expression would include such provisions."
In P. Balakataiali v. The Union of India and Ors. (1958) SCR 1052 this Court proceeded on the basis that a rule providing for the termination of the service of a railway official can be made in exercise of the powers conferred on the Government by Sections 241(2), 247 and 263(3) of the Government of India Act, 1935.
9. The expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc."
54 In Indra Sawhney vs. Union of India [1992 Supp (3) SCC 217], the Supreme Court in para 378 observed the following:
"It has been rightly held in Rangachari case that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). The conditions of service which are matters relating to employment are protected by the doctrine of equality of opportunity and do not form the subjectmatter of Page 49 of 108 HC-NIC Page 51 of 110 Created On Thu Feb 23 02:09:23 IST 2017 51 of 110 C/SCA/10829/2003 CAV JUDGMENT Article 16(4). It is settled proposition of law that right to promotion is a condition of service. Once a person is appointed he is governed by the conditions of service applicable thereto. Appointment and conditions of service are two separate incidents of service. Conditions of service exclusively come within the expression "matters relating to employment"
and are covered by Article 16(10 and not by Article 16(4). When all other conditions of service fall outside the purview of Article 16(4) and are exclusively covered by Article 16(1) then where is the justification to bring promotion within Article 16(4) by giving strained meaning to the expression 'posts'. The only conclusion by reading Articles 16(1), 16(2) and 16(4) which can be drawn is that all conditions of service including promotion are protected under Articles 16(1) and (2). Article 16(4) makes a departure only to the extent that it permits the State Government to make any provision for the reservation of appointments or posts at the initial stage of appointment and not in the process of promotion."
55 Mr. Prakash K. Jani, the learned Additional Advocate General vociferously submitted that it is within the power of the Government to alter, amend or change its policy as the circumstances may demand. He submitted that the policy decision of the State Government taken in the year 1973 could not be said to have conferred an absolute or vested right in favour of the petitioners herein to be absorbed on the temporary establishment on completion of five years as work charged employees. He also submitted that such benefit which was being given pursuant to such policy would not fall within the expression "conditions of service", and therefore, Section 9A of the Industrial Disputes Act would not be applicable in the present case. There was no need or any obligation on the part of the State Government to comply with the provisions of Section 9A of the Industrial Disputes Act. In support of his submissions, he relied on two decisions of this Court, one in the case of K.N. Thanaki (supra) and the other in the case of M.I. Isani, Executive Engineer, Surendranagar District Panchayat vs. Surendranagar Jilla Bandhakam Majoor Sangh [1989 (1) GLR 380].
56 The Division Bench decision of this Court in the case of K.N. Page 50 of 108 HC-NIC Page 52 of 110 Created On Thu Feb 23 02:09:23 IST 2017 52 of 110 C/SCA/10829/2003 CAV JUDGMENT Thanaki (supra) observed as under:
"2. It is the grievance of the petitioners that even though they had completed five years' service as work charged employees, they are not treated as temporary Government servants and are not given all the benefits on that basis. It is submitted that continuing the employees on work charged establishment even though they had completed more than five years' service, is illegal and in violation of Article 14 of the Constitution. It is also the contention of the petitioners that they are entitled to the status of temporary or permanent Govt, servants in view of the Resolution No. PAS/5575/(45)/C dated 811976.
In response to the rule issued by this Court, the respondents have filed their reply affidavits and therein, they have pointed out that the Government is giving benefit to these employees on work charged establishments as per the said Government Resolution. It is further pointed out that as per the said Resolution and the policy of the Government, the work charged employees are given the benefits given to temporary employees, but they are not entitled to the status of a temporary employee. It is further pointed out that on completion of number of years as specified by the Government, they become eligible for being absorbed as temporary employees, but actual absorption has to take place as and when vacancies arise.
The fact that the petitioners are work charged employees, is not in dispute. Merely because they have put in certain number of years' service That cannot entitle them to the status of a temporary or permanent Government servants. As rightly pointed out in the reply affidavit, on completion of certain number of years, they become eligible for absorption as temporary servants. That does not mean that they become entitled to be appointed and treated as temporary employees immediately after they become eligible to be absorbed as temporary employers. Their actual absorption has to take place in accordance with their seniority and availability of posts. We are, therefore, of the opinion that the action of the respondents in not treating them as temporary or permanent servants and not giving all the benefits on that basis, cannot be said to be illegal or arbitrary."
57 In the case of M.I. Isani, Executive Engineer, Surendranagar District Panchayat vs. Surendranagar Jilla Bandhakam Majoor Sangh [1989 (1) GLR 380], the Division Bench had the occasion to consider almost an identical issue. It observed as under:
"2. The learned counsel for the petitioner - Management has submitted Page 51 of 108 HC-NIC Page 53 of 110 Created On Thu Feb 23 02:09:23 IST 2017 53 of 110 C/SCA/10829/2003 CAV JUDGMENT that the Labour Court has relied on the Government Resolutions Ex. 16 and 17 for making these workmen permanent. However according to the petitionerManagement those Circulars have been thoroughly misread and misapplied by the Labour Court. According to the petitionerManagement under those Circulars the daily wagers who are working on nominal muser roll are to be brought on work charged establishment and it only provides that after minimum service of five years as daily rated workers on nominal muser roll such persons will become eligible for being taken on work charged establishment. Ex.17 is the Government Resolution dated 47 1973. It recites that daily workers are taken on nominal muster roll and such workers are working since years are not getting any benefits of service and the question of treating such daily rated workers to work charged establishment was under consideration of the Government and after due consideration the Government had decided that whenever the question of recruitment to the posts on work charged establishment arises preference shall be given to the daily rated workers subject to certain conditions; such as seniority at least five years service relaxation of requirement of coming through employment exchange compliance with the recruitment rules providing for educational qualification experience as regards relaxation in age limit etc. By Exh. 16 the Government Resolution dated 16 1973 a clarification was made to the effect that if a workman has worked for a minimum 180 days a calendar year he will be considered to have completed one year of service. However for reckoning five years daily rated service average presence shall be of 240 days in a year for becoming eligible to be appointed on work charged establishment. These Government Resolutions which have been relied on by the workmen and which have been relied on by the Labour Court only go to show that the workmen on the nominal muster roll become eligible after five years of service for being taken on work charged establishment. These Resolutions do not provide that at the end of five years of service as daily rated workers they are to be made permanent. Status of permanency is far away from daily rated workmen on nominal muster roll. The Resolutions relied on by the workmen provide that such daily rated workmen on nominal muster roll would become eligible for being taken on work charged establishment. Therefore relying on these two Resolutions the demand for permanency could not have been granted by the Labour Court.
The learned counsel for the workmen has submitted that the demand of permanency is also based on the permanent nature of work which these workmen have been doing for all these years. The Labour Court has only proceeded on the basis of two Government Resolutions Ex. 16 and 17 which provide for making eligible the daily rated workmen for being taken up on the work charged establishment and the Labour Court has not gone into the question whether these workmen were entitled to be taken as work charged or temporary or regular or permanent workmen. The Labour Court has not gone into the question of these different stages from daily rated workmen on nominal muster roll to permanency. It Page 52 of 108 HC-NIC Page 54 of 110 Created On Thu Feb 23 02:09:23 IST 2017 54 of 110 C/SCA/10829/2003 CAV JUDGMENT would therefore be in the interest of justice to send the matter back to the Labour Court for fresh decision in accordance with law by setting aside the impugned award."
58 Considering the two Division Bench decisions referred to above, the submission of Mr. Jani to a certain extent gets fortified that the Government Resolution of 1973 did not confer any absolute or vested right on the work charged employees to claim absorption on the temporary establishment. Their actual absorption would be dependent on their seniority and availability of posts. However, this would not absolve the State Government from looking into the claim of the work charged employees, like the petitioners herein. It is not in dispute that even after thirty years of service in the work charged establishment, the Government did not deem fit to consider their case for being absorbed on the temporary establishment.
59 The rule that emerges from the decisions referred to above is that a change in the conditions of service must be brought about by the employer albeit with a view to conform to a provision of law, which adversely affects the workmen in relation to a preexisting condition of service which was being enjoyed by them, inter alia, by way of usage or customary privilege. Further, where such a change is made in a condition of service without complying with the statutory provision necessary to follow, a justiciable issue arises between the parties which can be gone into by an appropriate forum envisaged for disposal of such disputes.
60 It is difficult for me to appreciate the contention that the policy of the State Government, as reflected in the year 1973 resolution, would Page 53 of 108 HC-NIC Page 55 of 110 Created On Thu Feb 23 02:09:23 IST 2017 55 of 110 C/SCA/10829/2003 CAV JUDGMENT fall within the ambit of any "customary concession" or "privilege".
"Privilege" is a "right, advantage or immunity granted to or enjoyed by a person, or class of person, beyond the common advantage of others".
Concession is a grant and the statute speaks about a customary concession. That means, the concession must have the backing of a custom.
61 In the case in hand, none of the petitioners actually got the benefits which could be said to have been withdrawn in violation of the provisions of Section 9A of the Industrial Disputes Act. Before the benefits, if any, could be extended, the Government thought fit to do away with the policy and cancelled the Government Resolution of 1973.
62 That is one aspect of the matter.
63 Another is, even assuming for a moment that Section 9A of the Industrial Disputes Act is attracted in the case of this nature and that happens before giving effect to the very conditions of service, then an employee will have to comply with the conditions provided under Section 9A of the Industrial Disputes Act, and thereafter, it would be certainly open to the concerned workmen as stated in the several decisions of the Supreme Court, to raise an industrial dispute, if necessary. In that view of the matter, noncompliance with Section 9A of the Industrial Disputes Act may not have any significance in this case.
64 Be that as it may, I am not enamoured by the argument canvassed on behalf of the petitioners so far as Section 9A of the Industrial Disputes Act is concerned. Therefore, I have reached to the conclusion that the impugned Government Resolution of 2014 is not liable to be quashed only on the ground of violation of the provisions of Section 9A Page 54 of 108 HC-NIC Page 56 of 110 Created On Thu Feb 23 02:09:23 IST 2017 56 of 110 C/SCA/10829/2003 CAV JUDGMENT of the Industrial Disputes Act.
65 The above takes me to consider the argument of alternative remedy available to the petitioners herein. According to Mr. Jani, these petitions should be rejected as the petitioners have an alternative remedy. It would be too much now at this stage to ask the petitioners to raise the industrial dispute before the appropriate forum and nonsuit them from this Court.
66 It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and cannot be curtailed by other provision of the Constitution of India or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution of India. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertain a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitutional Bench of the Supreme Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and another, reported in AIR 1961 SC, which still holds the field, are quite apposite :
"The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad Page 55 of 108 HC-NIC Page 57 of 110 Created On Thu Feb 23 02:09:23 IST 2017 57 of 110 C/SCA/10829/2003 CAV JUDGMENT lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus preeminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.
67 In Harbanslal Sahnia and another v/s. Indian Oil Corporation Limited and others, reported in (2003) 2 SCC 107, enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, the Supreme Court observed thus:
"...that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged."
68 I propose to examine the present matter from altogether a different perspective or dimension. Is there any justification on the part of the State Government to keep the petitioners herein as work charged employees past more than thirty years? Whether the action deserves to be condemned? Is it for paying the lower wages? Does it amount to exploitation of labour? Whether the impugned resolution could have been passed or the same could have been given a retrospective effect or not are the issues which I shall consider but my entire concentration is on the unreasonable and unfair action on the part of the Government which could be termed as violative of Articles 14 and 16 of the Constitution of India.
Page 56 of 108HC-NIC Page 58 of 110 Created On Thu Feb 23 02:09:23 IST 2017 58 of 110 C/SCA/10829/2003 CAV JUDGMENT 69 In Kusumam Hotels (P) Limited (supra), the Government of Kerala announced a new policy of concession. The benefit of one of the concessions made available to the appellant by reason of G.O. dated 11th July, 1996 was taken away. The issue before the Supreme Court was whether the said G.O. dated 26th September, 2000 was reasonable having been given retrospective effect and retroactive operation. The Supreme Court, while holding that the Electricity (supply) Act, 1948 did not authorize the State to issue a direction with retrospective effect and holding the impugned G.O. dated 27th June 2000 to be prospective in operation, made the following observations:
"17. It is now a well settled principle of law that the doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must have power to do so. The Board, having acted pursuant to the decision of the State, could not have taken a decision which would be violative of such statutory directions.
15.5.1999 was fixed as the cutoff date by the Board. It, by itself, could not have done so. But the State for issuing the GO dated 26.9.2000 could have fixed the said cutoff date on its own. We although do not agree that by granting retrospectivity to the said order, the entirety of the Government Order should be set aside the same or per se would be held to be unreasonable, but what we mean to say is that it could be given effect to only from the date of the order, i.e., prospectively and not from an anterior date, i.e., retrospectively.
26.The law which emerges from the above discussion is that the doctrine of promissory estoppel would not be applicable as no foundational fact therefor has been laid down in a case of this nature. The State, however, would be entitled to alter, amend or rescind its policy decision. Such a policy decision, if taken in public interest, should be given effect to. In certain situations, it may have an impact from a retrospective effect but the same by itself would not be sufficient to be struck down on the ground of unreasonableness if the source of power is referable to a statute or statutory provisions. In our constitutional scheme, however, the statute and/or any direction issued thereunder must be presumed to be prospective unless the retrospectivity is indicated either expressly or by Page 57 of 108 HC-NIC Page 59 of 110 Created On Thu Feb 23 02:09:23 IST 2017 59 of 110 C/SCA/10829/2003 CAV JUDGMENT necessary implication. It is a principle of rule of law. A presumption can be raised that a statute or statutory rules has prospective operation only."
70 In MGB Gramin Bank vs. Chakrawarti Singh [(2014) 13 SCC 583], the Supreme Court explained the meaning of the word "vested". The following was observed by the Supreme Court in paras 11, 12 and 13:
"11. The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as "'vested', Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights."
12. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide: Mosammat Bibi Sayeda v. State of Bihar AIR 1996 SC 1936 : (1996 AIR SCW 2283); and J.S. Yadav v State of Uttar Pradesh (2011) 6 SCC 570) : (AIR 2011 SC (Supp) 659 : 2011 AIR SCW 3078).
13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v. Government, NCT Delhi, AIR 2006 SC 2652)"
71 In State of Rajasthan vs. Ucchab Lal Chhanwal [(2014) 1 SCC 144], the Supreme Court was called upon to consider the respective applications of impugned circular affecting the promotional policy. The impugned circular was dated 26th July, 2006, whereas the controversy regarding promotion pertained to the year 199697. The Supreme Court observed in paras 8 and 9 as under:Page 58 of 108
HC-NIC Page 60 of 110 Created On Thu Feb 23 02:09:23 IST 2017 60 of 110 C/SCA/10829/2003 CAV JUDGMENT "8. Learned counsel for the respondents in both the appeals submitted that censure which is a minor punishment cannot be an impediment for the entire service career and it has to be restricted to a specified period of time and when there is consideration on the base of senioritycummerit, seniority has to be given due weightage. For the aforesaid purpose they pressed into service the decisions which have been relied upon by the High Court. It is also canvassed by them that the High Court has correctly opined that the circular cannot be made applicable retrospectively having been issued in the year 2006 to a promotional matter pertaining to the year 199697.
9. There can be no scintilla of doubt that the finding recorded by the High Court pertaining to the circular is absolutely correct and unassailable. The said circular could not have been placed reliance upon by the State to contend that the respondents could have been deprived of promotion.
However, the said circular is totally inconsequential for the present case, for what we are going to hold."
72 In Gulf Goans Hotels Hotels Company Limited and another vs. Union of India and other [AIR 2015 SC 2032], the Supreme Court explained the principle that so long as the policy remains in the realm of even rules framed for the guidance of executive and administrative authorities it may bind those authorities as declarations of what they are expected to do under it. I may quote the observations made in paras 11, 12 and 13 as under:
"11. The cases of the respective parties having been noticed the necessary discourse may now commence. In Bennett Coleman & Coleman & Co. vs. Union of India, a 'Newsprint Policy', notified by the Central Govt. for imposing conditions on import of newsprint came to be challenged on the ground of violation of fundamental rights. Beg, J., in a concurring judgment, observed:
"What is termed "policy" can become justiciable when it exhibits itself in the shape of even purported "law". According to Article 13(3)(a) of the Constitution, "law" includes "any Ordinance, order, byelaw, rule, [pic]regulation, notification, custom or usage having in the territory of India the force of law". So long as policy remains in the realm of even rules framed for the guidance of executive and administrative authorities Page 59 of 108 HC-NIC Page 61 of 110 Created On Thu Feb 23 02:09:23 IST 2017 61 of 110 C/SCA/10829/2003 CAV JUDGMENT it may bind those authorities as declarations of what they are expected to do under it. But, it cannot bind citizens unless the impugned policy is shown to have acquired the force of "law".
(para 93 - emphasis added)
12. The question 'what is "law"? has perplexed many a jurisprude; yet, the search for the elusive definition continues. It may be unwise to posit an answer to the question; rather, one may proceed by examining the points of consensus in jurisprudential theories. What appears to be common to all these theories is the notion that law must possess a certain form; contain a clear mandate/explicit command which may be prescriptive, permissive or penal and the law must also seek to achieve a clearly identifiable purpose. While the form itself or absence thereof will not be determinative and its impact has to be considered as a lending or supporting force, the disclosure of a clear mandate and purpose is indispensable.
13. It may, therefore, be understood that a Govt. policy may acquire the "force of 'law'" if it conforms to a certain form possessed by other laws in force and encapsulates a mandate and discloses a specific purpose..."
73 I am of the view that the Government Resolution dated 16th August, 1973 was issued with a definite object. The object was to see that the persons who complete five years of service in the work charged establishment are converted into the employees on the temporary establishment. It is very unfortunate to note that the petitioners herein, despite such policy in force and having represented relentlessly in that regard, continued as work charged employees in the work charged establishment for years together. The fact that they continued almost for a period of almost three decades itself is suggestive of the fact that they could not have been treated as work charged employees for all these years. According to the Government Resolutions, the petitioners ought to have been absorbed from the work charged establishment to the temporary establishment on completion of five years of service. As this benefit was not granted, they were not given the benefits of the higher pay scales on completion of 9, 18 and 27 years of service. It is not in dispute that they were all appointed in accordance with the rules and Page 60 of 108 HC-NIC Page 62 of 110 Created On Thu Feb 23 02:09:23 IST 2017 62 of 110 C/SCA/10829/2003 CAV JUDGMENT regulations and that too, after a regular recruitment process. It is very unfortunate to note that they continued to work in the work charged establishment as work charged employees for years together without any promotional avenue.
74 The Supreme Court in the case of Council of Scientific and Industrial Research and another vs. K.G.S. Bhatt and another reported in (1989) 4 SCC 635 held:
"...It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employees a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both no managerial employees and their supervisors". There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions..."
75 The very same issue came up for consideration again wherein the Supreme Court in Dr. Ms. O.Z. Hssain vs. Union of India, 1990 (Supp) SCC 688 laid down the law:
"...Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the nonmedical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers..."Page 61 of 108
HC-NIC Page 63 of 110 Created On Thu Feb 23 02:09:23 IST 2017 63 of 110 C/SCA/10829/2003 CAV JUDGMENT 76 In the State of Tripura vs. K.K. Roy [(2004) 9 SCC 65 : AIR 2004 SC 1249], the Supreme Court observed in para 6 as under:
"6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India, Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle."
77 In Food Corporation of India vs. Parashotam Das Bansal, (2008) 5 SCC 100, the Supreme Court observed in paras 12 and 13 as under:
"12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the Superior Court will have the jurisdiction to issue necessary direction.
13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and Page 62 of 108 HC-NIC Page 64 of 110 Created On Thu Feb 23 02:09:23 IST 2017 64 of 110 C/SCA/10829/2003 CAV JUDGMENT officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country."
78 In U.P. State Electricity Board vs. Pooran Chandra Pandey and others, 2007 (7) Supreme Today 374, the Supreme Court observed in paras 18 and 19 as under:
"18. We may further point out that a sevenJudge Bench decision of this Court in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 has held that reasonableness and nonarbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and nonarbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhis case (supra) is a decision of a sevenJudge Bench, whereas Uma Devis case (supra) is a decision of a fiveJudge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhis case (supra) does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.
19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."
79 In State of Jharkhand (supra), the Supreme Court, while explaining the role of the State as a model employer and its responsibility to sustain social and economic security, observed in paras 52, 53, 54, 55, 56 and 57 as under:
"52. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India(1981) 1 SCC 449 : (AIR 1981 SC 212), Krishna Iyer, J., has stated thus: Page 63 of 108 HC-NIC Page 65 of 110 Created On Thu Feb 23 02:09:23 IST 2017 65 of 110 C/SCA/10829/2003 CAV JUDGMENT "70. Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt."
53. In Gurmail Singh and others v. State of Punjab and others (1991) 1 SCC 189 : (AIR 1993 SC 1388) it has been held that the State as a model employer is expected to show fairness in action.
54. In Balram Gupta v. Union of India and another 1987 (Supp) SC 228 : (AIR 1987 SC 2354), the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees.
55. In State of Haryana v. Piara Singh (1992) 4 SCC 118 : (AIR 1992 SC 2130 : 1992 AIR SCW 2315) the Court has ruled that the main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
56. In Bhupendra Nath Hazarika and another v. State of Assam and others .(2013) 2 SCC 516 : (AIR 2013 SC 234 : 2013 AIR SCW 401), while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed:
"65...It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised."
57. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of "model employer". It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their Page 64 of 108 HC-NIC Page 66 of 110 Created On Thu Feb 23 02:09:23 IST 2017 66 of 110 C/SCA/10829/2003 CAV JUDGMENT role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so."
80 In the case of Chief Conservator of Forest and another vs. Jagannath Maruti Kandhare and another [AIR 1996 SC 2898], the Supreme Court held as under:
"18. This takes us to the second main question as to whether on the facts of the present case could it be held that the appellants were guilty of adopting unfair labour practice. As already pointed out, the respondents alleged the aforesaid act by relying on what has been stated under item 6 of Schedule IV of the State Act which reads as below :
"To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees".
19. The Industrial Court has found the appellants as having taken recourse to unfair labour practice in the present case because the respondentsworkmen who had approached the Court had admittedly been in the employment of the State of 5 to 6 years and in each year had worked for period ranging from 100 to 330 days. Ms. Jaising draws our attention in this context to the statement filed by the appellants themselves before the Industrial Court, a copy of which is at pages 75 to 76 of C.A.No.4375/90. A perusal of the same shows that some of the respondents had worked for a few days only in 1977 and 1978, though subsequently they themselves had worked for longer period, which in case of Gitaji Baban Kadam, whose name is at serial No.4 went up to 322 in Page 65 of 108 HC-NIC Page 67 of 110 Created On Thu Feb 23 02:09:23 IST 2017 67 of 110 C/SCA/10829/2003 CAV JUDGMENT 1982, though in 1978 he had worked for 41/2 days. (Similar is the position qua some other respondents).
21. Shri Dholakia would not agree to this submission as, according to him, the item in question having not stopped merely by stating about the employment of persons as casuals for years being sufficinet to describe the same as unfair labour practice, which is apparent from what has been in the second part of the item, it was the burden of the workmen to establish that the object of continuing them for years was to deprive them of the status and privileges of permanent employees. Ms. Jaising answers this by contending that it would be difficult for any workmen to establish what object an employer in such a matter has, as that would be in the realm of his subjective satisfaction known only to him. She submits that we may not fasten a workman with such a burden which he cannot discharge.
22.We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, causals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment pollutioncare work of Ahmednagar, whose need is on increase because of increase in pollution. Permanancy is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants."
81 The Supreme Court in Durgapur Casual Workers Union vs. Food Corporation of India [(2014) 13 Scale 644] observed as under:
"19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3) in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Page 66 of 108 HC-NIC Page 68 of 110 Created On Thu Feb 23 02:09:23 IST 2017 68 of 110 C/SCA/10829/2003 CAV JUDGMENT Corporation in Civil Appeal No.6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed and held as follows:
"20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees."
82 It appears that the Government thought fit to do away with the policy only with a view to overcome the judgment rendered in the Special Civil Application No.7464 of 1996 by a learned Single Judge of this Court. The reference of which is in para 34 of the judgment, which was affirmed by the Division Bench of this Court in appeal, and further reaffirmed by the Supreme Court.
83 I may reiterate without going into the issue for the present of retrospective operation or retroactive or prospective that the Government could not have continued the petitioners in the work charged establishment for thirty odd years and this action itself is unfair and unreasonable. The very action of the Government to cancel the Government Resolution from the date of its issue smacks of lack of bona fide.
84 Let me assume for the moment that there was no such Government Resolution at any point of time. Let me assume for the moment that there was no such policy to absorb the work charged Page 67 of 108 HC-NIC Page 69 of 110 Created On Thu Feb 23 02:09:23 IST 2017 69 of 110 C/SCA/10829/2003 CAV JUDGMENT employees on the temporary establishment on completion of five years of service, even then as a part of the social obligation, the Government was obliged to grant the status of temporary employment for the work charged as it cannot act arbitrarily and unreasonably.
85 The Heads of Departments under the Public Works Department were requested to ensure as regards making an appropriate proposal for conversion to temporary establishment. They were asked to submit separate proposals for each Division in an enclosed proforma giving justification for conversion of each individual post and indicating the norms which existed or standard for such posts or the norms which could have been fixed. Thus, an obligation was cast on the authority concerned, that is, the Heads of Departments for conversion of the work charged posts to temporary. Once it is not in dispute or shown that all the conditions for absorbing a person from the work charged on the temporary establishment existed, it becomes the duty that the authority exercises his power for the purpose for which such power has been vested in the authority.
86 Principle is succinctly stated by Lord Cairns more than a century ago in Julius v. Lord Bishop of Oxford:
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
87 About enforceability of duty to exercise such power when conditions for the exercise of such power is established, through court Page 68 of 108 HC-NIC Page 70 of 110 Created On Thu Feb 23 02:09:23 IST 2017 70 of 110 C/SCA/10829/2003 CAV JUDGMENT was too accepted. Lord Cairns said :
"Where a power is deposited with a public officer for the purpose, of being used for the benefit of persons specifically pointed out with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the court will require it to be exercised."
88 The principle has withstood the test of time. The Supreme Court has consistently approved and applied the principle. The principle laid in Julius v. Lord Bishop was approved and applied in Punjab Sikh Regular Motor Service, Moudhapara v. Regional Transport Authority, Raipur and another [AIR 1966 SC 1318] by a Constitutional Bench of the Apex Court, while construing enabling power to renew a permit whose period had expired. The Court said : "The exercise of such power of renewal depends not upon the discretion of the Authority but upon proof of particular case out of which such power arises."
89 In L. Hirday Narain v. I.T. Commr. [AIR 1971 SC 33], the Apex court approving the principle enunciated by Lord Cairns said :
"If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is vested in aid of enforcement of a right public or private of a citizen."
90 It appears that for years together, no such steps were taken by the Heads of Departments.
Page 69 of 108HC-NIC Page 71 of 110 Created On Thu Feb 23 02:09:23 IST 2017 71 of 110 C/SCA/10829/2003 CAV JUDGMENT 91 As observed by me earlier, the continuance of an employee for an indefinite long period in the work charged establishment results in denial of the legitimate emoluments due for the work discharged by such employee for the employer and a presumption arises that there exist permanent work for continued employing of such person for that purpose. Such a practice amounts to unfair labour practice and exploitation of the employee. Such practice clearly violates Articles 14 and 16 of the Constitution and also cannot be defended on the jejune ground that the exercise of power being in the discretion of the authority, such authority is not bound to exercise such power, and that there does not vest correspondingly an enforceable right in a person for whose benefit such provision has been made.
92 It now stands firmly ingrained in constitutional guarantee under Article 14 for equal protection of law that its protecting umbrella reaches all areas of state action which is unreasonable and arbitrary. Arbitrariness is antithesis of equality. I remind myself of what the Supreme Court said while laying bare the far reaching third but hither to undiscovered dimension of the fundamental rights enshrined in Articles 14 and 16, one of the specie of Article 14, said in E.P. Royappa v. State of Tamil Nadu [1974 AIR 555].
"Article 14 is the genus while Article 16 is a species....The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. ....Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness Page 70 of 108 HC-NIC Page 72 of 110 Created On Thu Feb 23 02:09:23 IST 2017 72 of 110 C/SCA/10829/2003 CAV JUDGMENT and equality of treatment."
93 While cautioning that appointments made in public employment on ad hoc/casual/temporary basis breeds the abuse of Article 16 and is not to be countenanced, at the same time the court has recognised as a part of fair deal at the hands of state to its employees need to frame scheme for regularising services of such persons who had been working for long in such state of affairs, without a permanent status and rights equal to those who have been appointed permanently for discharging the same or similar work. The obligation of the state in this regard is explained and enunciated in State of Haryana v. Piara Singh (supra). The Apex Court said :
"The normal rule is regular recruitment through prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. Secondly an ad hoc or temporary, employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. If for any reason an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
94 These observations were made in regard to the appointments made on the regular establishment of the employee. However, the court clearly drew distinction between the ad hoc employee appointed to any post in the regular establishment and the work charged employees which are employed as a casual labour on need basis. The Court observed :
"So far as the members of the work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say 2 or 3 years a presumption may arise that there is regular need for his services. In such a situation, it Page 71 of 108 HC-NIC Page 73 of 110 Created On Thu Feb 23 02:09:23 IST 2017 73 of 110 C/SCA/10829/2003 CAV JUDGMENT becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job."
95 The very term 'unfair labour practice' indicates arbitrariness inherent in it. If the remedy against such arbitrariness in the action of employer in general has been accepted by legislature it cannot be less arbitrary if adopted by State or any of its instrumentality. Such an arbitrariness in the State action results in violation of Articles 14 and 16 cannot be over emphasised. In case an unfair labour practice is adopted by the State or its instrumentality, it brings in violation of Articles 14 and 16 of the Constitution. With this, comes in existence his right to seek its enforcement, even through constitutional remedies by invoking extra ordinary jurisdiction of the High Court. Any arbitrary action of the State, correspondingly vest in the citizen so attested an enforceable right in not to be treated unfairly, arbitrarily and unjustly by the State in any sphere of its activities.
96 The issue received detailed consideration in the case of Daily Rated Casual Labour vs. Union of India [AIR 1987 SC 2342]. This case arose out of a claim made by the casual employees in the Post & Telegraph Department of Union of India at various places. While deprecating the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs on the department and further classifying such casual employees into three classes for the purpose of making different levels of payment of wages as violative of Article 14 & 16 of the Constitution, the Court said: Page 72 of 108 HC-NIC Page 74 of 110 Created On Thu Feb 23 02:09:23 IST 2017 74 of 110 C/SCA/10829/2003 CAV JUDGMENT " India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of works to jut and favourable remuneration ensuring a decent living for himself and him family, .......... and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures...... It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time. Where is any jurisdiction to keep persons as casual labourers for years as is being done in the Post and Telegraphs Department? Is it for paying them lower wages? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers ...... Let us remember the slogan ;
"Produce or Perish". It is not an empty slogan. We fail to produce more at out own peril. It is against this background that we say that non regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and telegraphs Department."
97 This positive mandate was issued by the Supreme Court to regularize the services of the casual workers on rational basis to give effect to the Constitutional mandate.
98 In Jacob M. Puthuparamibil v. Kerala Water Authority [1990 AIR 2228], the question arose in connection with the employees serving under the Kerala Water Authority. They were employed through the employment exchanges between 1st April, 1984 and 4th August, 1986. The petitions were filed apprehending termination of their services as their appointments were on temporary basis. The High Court dismissed the petitions which led to appeals before the Apex Court. Some petitions were also filed before the Supreme Court directly under Art, 32. The Court referred to Rule 9 which permitted to fill immediate vacancy in emergency temporarily otherwise then in accordance with law.
Page 73 of 108HC-NIC Page 75 of 110 Created On Thu Feb 23 02:09:23 IST 2017 75 of 110 C/SCA/10829/2003 CAV JUDGMENT Notwithstanding the rule required that such temporary employment should not continue for period exceeding three months i.e. 180 days and the person so temporarily appointed should be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules but their urgent temporary appointments continued for longer period. The Court referred to Part III of Constitution and said:
"The Constitution guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends protection against exploitation of labour including child labour. After extending these guarantees, amongst others, the Constitution makers proceeded to chart out the course for the governance of the country in Part IV of the Constitution entitled 'Directive Principles of State Policy'. These principles reflect the hopes and aspirations of the people. Although the provisions of this part are not enforceable by any court, the principles laid down therein are nevertheless fundamental in the governance of the country and the State is under an obligation to apply them in making laws. The principles laid down therein, therefore, define the objectives and goals which the State must endeavour to achieve over a period of time. Therefore whenever the State is required to make laws it must do so consistently with these principles with a view to securing social and economic freedom so essential for the establishment of an egalitarian society. This part, therefore, mandates that the state shall strive to promote the welfare of the people by minimising the inequalities ...... and by making effective provision for securing the right to work as also to public assistance in cases of unemployment, albeit within the limits of its economic capacities. ...... Thus the Preamble promises socioeconomic justice, the fundamental rights confer certain justiciable socioeconomic rights and the Directive Principles fix the socioeconomic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution."
99 The Court then referred to earlier decisions of the Supreme Court in P.K. Narayani v. State of Kerala [1995 SCC (1) 142], and the Dally rated Casual Labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], and directed the regularisation of the four categories of employees.
Page 74 of 108HC-NIC Page 76 of 110 Created On Thu Feb 23 02:09:23 IST 2017 76 of 110 C/SCA/10829/2003 CAV JUDGMENT 100 In State of Haryana v. Piara Singh (supra), the problem arising from irregular appointment and long continued ad hoc temporary employment received more wholesome attention.
101 While emphasising that the normal rule is that regular recruitment should be through prescribed agency but countenanced that the exigencies may call some times for an ad hoc/temporary employees by a regularly selected employee as early as possible and that ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
102 However, the Court also noticed equities arising from continued temporary employment for a fairly long spell and said:
"If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service recorded is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not a already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf.
103 More importantly, the Court observed in relation to workmen coming under the umbrella of the Industrial Disputes act and other welfare legislations by noting the status of the work charged employees and said:
"So far as workcharged employees and casual labour are concerned, the Page 75 of 108 HC-NIC Page 77 of 110 Created On Thu Feb 23 02:09:23 IST 2017 77 of 110 C/SCA/10829/2003 CAV JUDGMENT effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and. subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years a resumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. ............ These are but a few observations which we though it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
104 While holding in principle that the employee whose entry in service is illegal being in total disregard of recruitment rules or being not on existing vacancy, has no case for regularisation, distinction was pointed out by the Supreme Court between the cases requiring regularisation and the cases in which regularisation of services cannot be considered in Ashwani Kumar v. State of Bihar [AIR 1997 SC 1628], the Court said:
"In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies Vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and incumbents have continued to be employed any artificial breaks, and their services are otherwise required by the institution which employees them, a time may come in the service career of such employees who such an employees must be made against an available sanctioned vacancy by following the rules and regularisation may arise would be when the initial entry of the employees against an available vacancy is found to have suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial the irregular initial appointment may be made available to the concerned initial entry must not be found to be of all the established rules and in any Page 76 of 108 HC-NIC Page 78 of 110 Created On Thu Feb 23 02:09:23 IST 2017 78 of 110 C/SCA/10829/2003 CAV JUDGMENT case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employees whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. tainted from the very beginning and no entrant would ever survive for recruiting this latter class of cases."
105 In the case of Gujarat Agriculture University v. Labhu Bechar [AIR 2001 SC 201], the Supreme Court again had the occasion to consider the issue about the concept of prolonged temporary casual appointment and the obligation of the State or instrumentality of the State towards such employees for regularisation. The appellant before the Supreme Court was the Gujarat Agricultural University, which is fully aided by the State of Gujarat and is engaged in educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied sciences. It engaged daily rated workers for its various activities. Those workers were paid as per the minimum wages fixed by the State Govt. from time to time. Such persons were engaged due to the exigencies of work without considering the relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the recruitment rules. Those daily rated workers employed at the different agricultural research centres at different places with different projects were unskilled, semiskilled, skilled and field labourers of the different categories. Since the University is grantinaid institution fully funded by the State Government, it requires prior sanction by the State Government for appointment of its employees. In fact, all the posts sanctioned by the State Government were filled by the University as per the recruitment rules. But in the case of daily wage workers who were plumbers, carpenters, sweepers, pump operators, helpers and masons etc., no posts were sanctioned for them and hence they were working on Page 77 of 108 HC-NIC Page 79 of 110 Created On Thu Feb 23 02:09:23 IST 2017 79 of 110 C/SCA/10829/2003 CAV JUDGMENT daily rate basis, thus, their appointment were on irregular basis and not in accordance with the recruitment rules. In the aforesaid scenario, the appellant Gujarat agricultural University had contested the claims of its workmen for regularisation and permanent status. A Single Judge of this Court relying on the decision of the Supreme Court in Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], in the case of Gujarat Agricultural University v. Rathod Labour Bechar (supra), had directed the Gujarat Agricultural University to submit scheme for conferring regularisation and also directed that such a scheme of giving permanent status could not be confined to the workmen before the Court as large number of such workers were involved, disputes about which were pending in various labour Courts, and with the suggestion that it would be fair and just instead of making multiple schemes for such purpose separately in each case to frame a comprehensive scheme for the purpose of considering all pending litigations. Appeal against that order was dismissed by a Division Bench and further appeal before the Supreme Court during the course of which the appellant Gujarat Agricultural University challenged the direction of framing a scheme of regularisation for its workmen in a phased manner. It is in the aforesaid circumstances that the right to claim regularisation was questioned by the University. The Court observed:
"It is also well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees legitimate claim, has been held by this Court repeatedly as an unfair labour practice.
106 Therefore, the Court denouncing the new culture of taking work from the daily wage worker or ad hoc appointee for a long time either for financial gain or for controlling workers more effectively with Page 78 of 108 HC-NIC Page 80 of 110 Created On Thu Feb 23 02:09:23 IST 2017
80 of 110 C/SCA/10829/2003 CAV JUDGMENT the sword of democles hanging over their heads, said:
"If the work is of such nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them ...... In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption."
107 The Court buttressed this conclusion by referring to Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India (supra), State of Haryana v. Piara Singh (supra), Surender Singh v. EngineerinChief, CPWD [(1986) 1 SCC 639], Mool Raj Upadhavava v. State of Himachal Pradesh [1994 Supp (2) SCC 316], Dharwad Distt. PWD Literate daily wages employees Association v. State of Karnataka [(1990) 2 SCC 396], Bhagwati Prasad v. Delhi State Mineral Development Corporation [(1990) 1 SCC 361] and large number of other cases also.
108 From the aforesaid discussion, it is apparent that the Supreme Court has viewed the continuance of employment on temporary, casual and ad hoc basis to be an act of arbitrariness violative of Articles 14, 16 & 21 of the Constitution read in light of the Directive Principles of State Policy enshrined in Articles 39, 41 & 42 of the Constitution. The test of reasonableness in State action pervades the constitutional scheme particularly with reference to Articles 14 & 21 which confines its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action.
Page 79 of 108HC-NIC Page 81 of 110 Created On Thu Feb 23 02:09:23 IST 2017 81 of 110 C/SCA/10829/2003 CAV JUDGMENT 109 In Central Inland Water Transport Corporation Ltd. v. Brojo Nath (2B) [1986 AIR 1571], the Court said:
"...... State actions, including actions of the instrumentalities and agencies of the stale, must not only be in conformity with the Fundamental Rights guaranteed by Part 111 but must also be in accordance with the Directive Principles of State Policy prescribed by Part IV. Clause (a) of Article 39 provides that the Stale shall, in particular, provides that the State shall, in particular, direct its policy towards "securing that the citizens, men and women, equally have the right to adequate means of livelihood." Article 41 requires the State, within the limits of its economic capacity and development to "make effective provisions for securing the right to work".
An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the means of livelihood. The mode of making "effective provision for securing the right to work" cannot be by giving employment to a person and then without any reason throwing him out of employment. The action of an instrumentality or agency of the State, if it frames a service rule such as Clause (a) of Rule 9 of a rule analogous thereto would, therefore, not only be violative of Article 19 but would also be contrary to the Directive Principles of State Policy contained in Clause (a) of Article 39 and in Article 41."
110 In this connection, following observations from the Supreme Court in Bandhua Mukti Morcha v. Union of India [1984 SCR (2) 67], also invite my attention.
"It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case (AIR 1980 SC 849) to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly Clauses (e) and
(f) of Article 39 and Articles 41 and 42."
The Court went on to say after observing that the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Article 41 are not enforceable in a Court of law, it may not be possible to compel the State through judicial process to make law "But where legislation is already enacted by the State providing those requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to Page 80 of 108 HC-NIC Page 82 of 110 Created On Thu Feb 23 02:09:23 IST 2017 82 of 110 C/SCA/10829/2003 CAV JUDGMENT live with human dignity enshrined in Article 256 which provides that, the executive power of every state shall be so exercised as to ensure shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The Slate is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when the belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central government is therefore bound to ensure observance of various social welfare and labour laws enacted by parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy."
111 With these premise the Court held that State of Haryana cannot be permitted to deny benefits of various social welfare and labour laws enacted with a view to enabling them to live a life of human dignity. The State must therefore ensure that the employers observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the Central Government and the State by a writ petition under Article 32 of the Constitution."
112 Thus the implementation of law to give effect to Directive Principles of State Policy are also enshrined in Articles 39, 41 & 42 as has been placed on such high pedestal to be enforceable as the fundamental Rights by invoking Article 39 of the Constitution.
113 Likewise, in Union of India v. Hindustan Development Corporation [1993 SCR (3) 128], on the interplay of Articles 14, 19 and 21 of Part III of the Constitution and Directive Principles of the State Policy, the Court said:
"now coming to the test of reasonableness which pervades the constitutional scheme, the Court in several cases particularly with reference to Articles 14, 19 and 21 has considered this concept of reasonableness and had held that the same finds its positive manifestation and expression in the lofty ideal of Page 81 of 108 HC-NIC Page 83 of 110 Created On Thu Feb 23 02:09:23 IST 2017 83 of 110 C/SCA/10829/2003 CAV JUDGMENT social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action."
114 Reference was made by the Court in this connection to the cases of E.P. Royappa v. State of Tamil Nadu [1974 SCR (2) 348], Meneka Gandhi v. Union of India [1978 SCR (2) 621] and Kasturi Lal Lakshmi Reddy v. State of & Kashmir [1980 SCR (3)1338].
115 It may be noticed that prior to the decision in Royappa's case, the test of reasonableness in Article 14 was confined to examine case of discrimination on the touchstone of reasonableness of classification having a rationale nexus to the object sought to be achieved by such classification. But in Royappa's case, the Apex Court opined the most potent and positivist dimension of the spirit and soul of Article 14 cutting at the roots of arbitrariness, unreasonableness and unfairness in every sphere of State action.
116 After posing the question: "Now what is the content and reach of this great equalising principle", the Court observed:
"It is a founding faith, to use the words of Bose, J., "a way to life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenanced any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affect any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of Page 82 of 108 HC-NIC Page 84 of 110 Created On Thu Feb 23 02:09:23 IST 2017 84 of 110 C/SCA/10829/2003 CAV JUDGMENT equality."
Coming to the temporary and hoc appointments, the Court said: "It is also necessary to point out that ambit and reach of Articles 14 & 16 are not limit to cases where public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine, it is, therefore, no answer to the charge of infringement of Articles Hand 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post."
117 The view was reiterated by the Court in Maneka Gandhi's case and Ajay Hasiya's case. In Maneka Gandhi's case the Court said:
"No attempt should be made to truncate its also embracing scope and meaning, for to do so would be to violate its magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic which the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 to must be right and just and fair and not arbitrary, fanciful or oppressive."
118 The principle was reiterated in Ajay Hasiya's case [1981 AIR 487 : 1981 SCR (2) 79].
119 On the aforesaid premise, the requirements of the State to consider regularisation as a positivist, in its manifestation of fundamental right under Articles 14, 16 & 21 of the Constitution as animated in Directive Principles of State Policy and law enacted by Parliament on the subjects enumerated in the Concurrent list entries No. Page 83 of 108 HC-NIC Page 85 of 110 Created On Thu Feb 23 02:09:23 IST 2017 85 of 110 C/SCA/10829/2003 CAV JUDGMENT 21, 21 & 24 in the form of Industrial Disputes act, and the provisions made thereunder and the right to remedy against indefinite continuance in the service without the permanent status and regular employment resulting in unfair labour practice is a part of the Fundamental right.
120 To sum up the principle deduced from the long chain of decided cases it can be said to be well settled:
(i) In the matter of Government service normal rule is regular recruitment through prescribed agency, the recruitment of ad hoc or temporary hands is an exceptional leeway permitted due to exigencies of administration. In such a fact situation the endeavour will also be to replace such temporary employee by regular selected employees.
(ii) that law does not favour ad hoc or temporary employment continuing for long spells, as it breeds unhealthy and unreasonable service environment endangering industrial peace perilously affecting dignity and quality of life of those whose security of work is under constant threat.
(iii) Article 14 of the Constitution is embodiment of rule against arbitrariness and unreasonableness in the State action in all spheres of its activities. Article 21 of the Constitution which guarantees protection against deprivation of life and personal liberty includes within it the right to dignified livelihood. Article 39(d) spells out the directive principles of the State policy towards securing equal pay for equal work for both woman and man and Article 42 stipulates the Directive Principles of the State policy in securing just and humane conditions of work.
(iv) equal pay for equal work and security of employment by regularising casual employees of long duration within a reasonable period have been unanimously accepted as Constitutional goal to our policy. To this end, thrust has been that the management particularly Govt. agencies should not allow workers to remain as casual labourers or temporary employees for unreasonably long period of time.Page 84 of 108
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(v) mere continuation for some period on ad hoc by itself does not give a right to permanency but where for any reason ad hoc or temporary or work charged employees are continued for fairly long spell they have a right to claim regularisation and the authorities are under obligation to consider their case for regularisation in a fair manner.
(vi) regularisation cannot be resorted to by the governmental agencies as mode of fresh recruitment to permit back door entries to frustrate the mandate of Article 16 by making a straight jacket measure of service for regularising the appointment made de hors the rules, unmindful of the circumstances under which the appointment had been made.
(vii) the first condition for laying claim for regularisation is availability of work on reasonably permanent basis. Mere continuance for some time of a casual or ad hoc employee does not give right to presume about need for continued employment or work charged but continuation of casual or ad hoc employee or work charged for a long duration of several years raises a presumption for need for regular permanent employment may be justified.
(viii) Apart from the right to reasonable treatment by the State agencies and security of job emanating from the Constitutional provisions, Industrial Disputes Act is a legislative measure giving effect to the directive principles of State Policy in the field of ensuring equal pay for equal work and ensuring security of job with just and humane conditions by providing prohibition against practising of unfair labour practice both by employers and employees and defining the term unfair labour practice to include practice of engaging workman for long spells characterising them badli, casual, temporary, ad hoc work charged with the object of denying them the status of permanency and benefits and privileges attached thereto.
(ix) A claim by workers, continuing for long spell as casual or temporary or work charged under an employer governed by the Industrial Disputes Act, to permanency is a demand which can be achieved through collective bargaining or a claim giving rise to a Page 85 of 108 HC-NIC Page 87 of 110 Created On Thu Feb 23 02:09:23 IST 2017 87 of 110 C/SCA/10829/2003 CAV JUDGMENT industrial dispute which can be enforced through adjudication under the provisions of the I.D. Act.
(x) Adjudication of claim for permanent status as an industrial dispute which has been made subject matter of reference to the Industrial tribunal is governed by the principles emanating from the provisions of Industrial Disputes Act which by necessary implication involves determination of question whether continued casual or temporary employment is a bonafide administrative exigency simplicitor or amounts to unfair labour practice on the part of the employer, inasmuch as claim to permanency under Industrial Disputes Act directly emanates from prohibition against unfair labour practice adopted by the employer.
(xi) In situation emerging from long spell of ad hoc or temporary or casual employment of daily rated workmen, courts have consistently resorted to issue of directions for framing a scheme for regularisation of such workmen on a just and fair basis to the employer or have also issue of directions for regularising the petitioners before it as the circumstances of the case may warrant but ordinarily in the first instance an opportunity is being given to the employer himself to frame a scheme in a fair and just manner of absorbing such casual workmen on permanent basis whether in one go or in a phased manner and has considered objections thereto, if any, before according its approval to such scheme.
(xii) In considering the question of granting relief as to conferring status of permanency and emoluments and privileges attached thereto, primary consideration is existence of permanent nature of work for such casual employees to be utilised against it and the extent of absorption on regular and permanent basis depends upon the extent of regular work available against which temporary employee can be regularly employed. Regularisation or permanency is not to be resorted in case where the establishment by itself is of temporary nature; where the employment is not with the object of offering employment but for ameliorating financial condition of weaker sections of the society like employment under Jawahar Yojana or where employment has been secured or offered by committing illegalities, irregularities or fraud as in the case of Ashwani Kumar (supra) where the appointments were found to have been given to six thousand persons out of all proportion to the then existing requirement of the project for about 800 persons only, Page 86 of 108 HC-NIC Page 88 of 110 Created On Thu Feb 23 02:09:23 IST 2017 88 of 110 C/SCA/10829/2003 CAV JUDGMENT by the Director of the project Mr. Malik by committing illegalities, irregularities and fraud as per the investigation report. In which case the appointments against rules were held to be nullity and void ad initio.
121 I shall now deal with the decisions relied upon by Mr. Jani, the learned Additional Advocate General in support of his submissions.
122 In State of Rajasthan (supra), the matter before the Supreme Court related to the persons temporarily appointed as the Assistant Superintendents in 1985 and 1986 in the Aided Hostels. The prefix "Assistant" was omitted in 1996 and thereafter, the respondents were known as Superintendents. The writ petitions were filed contending that they were employed on full time basis and were discharging functions similar to those of Superintendents in the Government Hostels, but were being paid only a meagre salary while their counterparts in the Government hostels were paid much higher pay. They sought regularization in the posts of Hostel Superintendent from the date of initial appointment and payment of salary on par with the Hostel Superintendent of class 'C' Hostels of the Social Welfare Department. The observations made by the Supreme Court in para 12 have been relied upon. Para 12 reads as under:
"The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the State Government to frame a scheme for regularization of parttime cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an onetime measure. Further said decision was rendered by the High Court prior to Uma Devi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), relying upon the decision of this Court in Daily Rated Casual Labour v. Union of India [1988 (1) SCC 122] : (AIR 1987 SC 2347); Bhagwati Prasad v. Delhi State Mineral Development Corporation [1990 (1) SCC 361]: (AIR 1990 SC 371) and Dharwad District PWD Literate Dalit Wage Employees Association vs. State of Karnataka [1990 (2) SCC Page 87 of 108 HC-NIC Page 89 of 110 Created On Thu Feb 23 02:09:23 IST 2017 89 of 110 C/SCA/10829/2003 CAV JUDGMENT 396] : (AIR 1990 SC 883). These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samaj Kalyan Sangh is no longer good law. At all events, even if there was any one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or parttime appointments. Therefore the said decision is of no assistance."
122.1 In my view, this decision is not applicable to the case in hand. The case in hand is about arbitrariness and unfair action within the meaning of Articles 14 and 16 of the Constitution.
123 In Triloki Nath Khosa (supra), the issue before the Constitutional Bench was that if person shown from different sources are integrated into one class, could they be classified for the purpose of promotion on the basis of their educational qualifications. In para 16, the Supreme Court observed as under:
"An argument which found favour with Mufti Bahauddin J., one of the learned Judges of the Letters Patent Bench of the High Court,and which was repeated before us is that the "retrospective'' application of the impugned rules is violative of Arts. 14 and 16 of the Constitution. It is difficult to appreciate this argument and impossible to accept it. It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes. undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a payscale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a considerations suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity be extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implications of service rules nor is it their true description Page 88 of 108 HC-NIC Page 90 of 110 Created On Thu Feb 23 02:09:23 IST 2017 90 of 110 C/SCA/10829/2003 CAV JUDGMENT to say that because they affect existing employees they are retrospective. It is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a 'status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved consent is not a precondition of the validity of rules of service, the contractual origin of the service notwithstanding."
123.1 The above noted decision is relied upon to fortify the submission that even if the Government Resolution of 1973 is construed as a condition of service, still being a policy matter, it is always open for the Government to do away with the policy and such action would not amount to altering the conditions of service. In my view, this decision is also not helpful because the issue before me is continuance of the petitioners for thirty odd years in the work charged establishment. Even if I believe that their conditions of service could not be said to have been altered with the withdrawal of the policy, the Government owes a duty to put them on the temporary establishment.
124 In Kartick Chandra Mondal (supra), the Union challenged the legality and validity of the order passed by the Calcutta High Court upholding the directions given by the Central Administrative Tribunal to absorb the respondents in any suitable posts commensurate with their qualifications. While allowing the appeal filed by the Union, the Supreme Court, after discussing its various other decisions, observed in para 25 as under:
"25. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An Page 89 of 108 HC-NIC Page 91 of 110 Created On Thu Feb 23 02:09:23 IST 2017 91 of 110 C/SCA/10829/2003 CAV JUDGMENT erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh and others [(2009) 5 SCC 65], the relevant portion of which is extracted hereinbelow : "67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order."
[A reference in this regard may also be made to the earlier decisions of this Court. See also: 1) Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752] : (1997 AIR SCW 3716); 2) South Eastern Coalfields Ltd. v. State of M.P. and others [(2003) 8 SCC 648] : (2003 AIR SCW 5258) and 3) Maharaj Krishan Bhatt and another v. State of J. and K. and others [(2008) 9 SCC 24] : (2008 AIR SCW 5421)]."
124.1 The above noted decision is also not helpful in any manner. The case in hand is not one where the appointment is illegal, which is sought to be made the basis of further appointment.
125 In State of Gujarat (supra), the Division Bench of this Court considered the decision of the learned Single Judge quashing the cutoff date specified in the pension scheme framed by the State Government for Teachers of Primary Schools of the private aided and recognized educational institutions. The Division Bench in para 9 made the following observations:
"The principles which can be deduced from the above noted judicial precedent are that if an existing Pension Scheme is revised or liberalized, then the benefit of revision/liberalization has to be given to the existing pensioners and they cannot be divided into two or more groups with reference to a particular date except when there are cogent and rational Page 90 of 108 HC-NIC Page 92 of 110 Created On Thu Feb 23 02:09:23 IST 2017 92 of 110 C/SCA/10829/2003 CAV JUDGMENT reasons for making classification or dividing the pensioners into two groups. However, if the employer introduces a new scheme for the first time, it is well within its domain to specify any particular date for implementation of scheme and those who may have retired prior to that date cannot complain of discrimination or invoke doctrine of equality enshrined under Articles 14 and 16 for issuance of a direction to the employer to extend the benefit of Pension Scheme to the pre cut off date retirees. Similarly, if an existing Provident Fund Scheme is replaced by Pension Scheme, the employer has the discretion to fix the cut off date for enforcing the Pension Scheme and the Provident Fund holders who may have retired prior to that date cannot contend that the Pension Scheme is violative of their fundamental right to equality. The burden to prove that the date fixed for implementation of the new Pension Scheme is arbitrary is always on the petitioner and unless a very strong case is made out, the Court will not interfere with the employer's choice of the date. Ordinarily, the Court will presume that the date fixed for implementation of the Pension Scheme is rational and does not suffer from the vice of discrimination. However, such presumption is rebuttable and the Court may nullify the discretion exercised by the employer if it is proved by the petitioner that the choice of the date is wholly arbitrary or irrational or is wide of the mark."
125.1 The above noted decision is also not helpful in any manner because it relates to an issue as regards the fixation of a date for the implementation of a New Pension Scheme and in the facts of the case, the Division Bench took the view that the cutoff date was not arbitrary.
126 In State Bank's Staff Union (supra), the issue was about the retrospective operation of an amendment and its effect on the right of the employees. The Supreme Court explained the expression "retroactive" and "retrospective" in para 21, which reads as under:
In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at page 4124 Vol.4):
"Retroactive Acting backward; affecting what is past. (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. Also termed retrospective. (Black, 7th Edn. 1999) Page 91 of 108 HC-NIC Page 93 of 110 Created On Thu Feb 23 02:09:23 IST 2017 93 of 110 C/SCA/10829/2003 CAV JUDGMENT 'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasiretroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion......The foundation of these concepts is the distinction between completed and pending transactions...." (T.C. Hartley, The Foundations of European Community Law 129 (1981).
Retrospective Looking back; contemplating what is past.
Having operation from a past time.
'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. (Vol.44 Halsbury's Laws of England, Fourth Edition, page 570 para 921)."
126.1 The above referred decision of the Supreme Court is with respect to the retrospective operation of a statute. The Supreme Court has also explained the meaning of the expressions "retroactive" and "retrospective". This decision is being relied upon by the State to fortify the submission that the issue of the impugned resolution of 2014 could not be termed as retrospective in operation but the same would be retroactive. Whether the impugned resolution is retrospective in operation or retroactive in operation is one of the considerations but the issue in hand should not be examined in a narrow or pedantic manner but on wider or more enduring consideration. Once such consideration is the background of a written constitution under which the State and its Page 92 of 108 HC-NIC Page 94 of 110 Created On Thu Feb 23 02:09:23 IST 2017 94 of 110 C/SCA/10829/2003 CAV JUDGMENT instrumentalities (which take in the Executive and the Legislature) have to function and they have to function in tune with the basic constitutional mandates of which Articles 14, 16, 19 and 21 are prominent by virtue of their glorious content. In a sense, the development of Indian administrative law has been to a large extent linked with a progressive interpretation of Article 14 of the 'Constitution as embodying the concept of 'fairness in action'. The march of law from A. K. Gopalan, AIR 1950 SC 27 to Maneka Gandhi, AIR 1978 SC 597, over a period of about 30 years (which period synchronises with that during which there was progress 'towards a comprehensive system of administrative law', in England too, and which Lord Diplock regarded as "having been the greatest achievement of the English Courts in my judicial lifetime"See IRC v. Federation of SelfEmployed, (1981) 2 All ER 93 at 104) will be a revealing feature to any students of constitutional history and law. In a sense, the expositions contained in Maneka Gandhi's case and its further amplifications in R. D. Shetty's case, AIR 1979 SC 1628, and Ajay Hasia's case, AIR 1981 SC 487, mark 'the commanding heights of the law', as against the 'twilight area of maladministration'.
127 The following passage occurring at p. 624 in Smt. Maneka Gandhi v. Union, AIR 1978 SC 597, is the indexfinger of approach of courts towards law and legal procedure:
" Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right and just and fair' and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied." (emphasised supplied).Page 93 of 108
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128 The following opening passage in the article by Joseph Raz entitled The Rule of Law and Its Virtue', highfights the points:
"F. A. Hayek has provided one of the clearest and most powerful formulations of the ideal of the rule of law: 'stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand rules which make it possible to foresee; with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge'." (emphasis supplied) See 1977 Law Quarterly Review, Volume 93, page 195.
129 Again the same idea is expressed while dealing with the principles derived from the basic ideals of the Rule of LawOne of the more important principles of the Rule of Law has been stated at page 198, in the following words:
"All laws should be prospective, open and clear. One cannot be guided by a retroactive law. It does not exist at the time of action. Sometimes it is then known for certain that a retroactive law will be enacted. When this happens retroactivity does not conflict with the rule of law (though it may be objected to on other grounds). The law must be open and adequately publicised. If it is to guide people they must be able to find out what it is."
(see pp. 198 and 199) Adequate publicity to those from whom law expects obedience thereto, has thus been held as a basic requirement of the law itself.
130 In State of Himachal Pradesh (supra), it was contended before the High Court by the writ petitioner that there was a deliberate attempt on the part of the State to get rid of him through the ordinance. The same was violative Articles 14 and 16 of the Constitution. It was argued by the writ petitioner that he was the only person affected by the ordinance having crossed the age of 65. It was argued that the ordinance was a colourable exercise of power. The Supreme Court negatived the Page 94 of 108 HC-NIC Page 96 of 110 Created On Thu Feb 23 02:09:23 IST 2017 96 of 110 C/SCA/10829/2003 CAV JUDGMENT contention on the principle of legitimate expectation. This decision is also not helpful in any manner.
131 In Secretary to Government, School Education Department, Chennai (supra), the parttime Sweepers of the Bank working for more than ten years prayed for regularization. The Supreme Court in para 8 observed as under:
"This Court in State of Rajasthan and Ors. v. Daya Lal and Ors., AIR 2011 SC 1193 : (2011 AIR SCW 905), has considered the scope of regularisation of irregular or parttime appointments in all possible eventualities and laid down wellsettled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
"8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While 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 regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or dailywage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or dailywage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cutoff date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cutoff date, to claim or contend that the scheme should be applied to them by extending the cutoff date or seek a direction for framing of fresh Page 95 of 108 HC-NIC Page 97 of 110 Created On Thu Feb 23 02:09:23 IST 2017 97 of 110 C/SCA/10829/2003 CAV JUDGMENT schemes providing for successive cutoff dates.
(iv) Parttime employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of parttime temporary employees.
(v) Parttime temporary employees in Governmentrun institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with Government employees. The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)"
132 The ratio of the above referred judgment is that mere long service of number of years alone would not entitle an employee to claim regularization if he is not otherwise working against a sanctioned post. I may say that the Supreme Court relied on Umadevi(3) (supra). This decision of the Supreme Court, if not looked into closely, would definitely help the State, but when I am considering Articles 14 and 16 of the Constitution, Umadevi(3) (supra) should not be applied mechanically. I have already discussed Maneka Gandhi's case (supra). Maneka Gandhi's case (supra) is a decision of a sevenJudge Bench. Whereas Umadevi(3)'s case is a decision of a fiveJudge Bench of the Supreme Court and more importantly, this aspect has been taken care of by the Supreme Court in U.P. State Electricity Board vs. Pooran Chandra Pandey and others [2007 (7) Supreme Today 374], para 18 of which reads as under:
"18. We may further point out that a sevenJudge Bench decision of this Court in Maneka Gandhi vs. Union of India & Ans. AIR 1978 SC 597 has held that reasonableness and nonarbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and nonarbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhis case (supra) is a decision of a sevenJudge Bench, whereas Uma Devis case (supra) is a decision of a fiveJudge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhis Page 96 of 108 HC-NIC Page 98 of 110 Created On Thu Feb 23 02:09:23 IST 2017 98 of 110 C/SCA/10829/2003 CAV JUDGMENT case (supra) does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
133 In A.S. Pillai (supra), the Supreme Court again considered the issue of entitlement to absorption so far as the Daily Wage parttime workers were concerned. In the peculiar facts of that case, the Supreme Court observed in paras 15 and 16 as under:
"15. It is true that the petitioners have been working for several years under the respondents as part timers and they are not getting salary which is given to regular employees but it is also pertinent to note that working conditions of the petitioners and other Bandsmen appointed by the respondents are not same. The petitioners are not in regular employment. They are only part timers, who perform their duties twice or thrice in a week and they are paid daily wages whenever they perform their duties. In addition to the daily wages, they are also paid certain monthly amount by way of incentive and they are also given allowances for haircut, washing of uniform and at times they are also provided breakfast or lunch.
16. The petitioners were never given regular appointment in any regular cadre. In our opinion, the petitioners do not have any right to get absorbed in any cadre to which they do not belong. In our opinion, the High Court was in error when it expressed its view to the effect that the petitioners were exploited by the respondentauthorities, because 80% of the amount received from the civilians was retained by the respondents whereas only 20% of the amount was given to the petitioners. It is pertinent to note that the petitioners are daily wagers and in addition to the daily wages and other allowances referred to hereinabove, the afore stated amount is paid to them whenever they perform show at a function organised by civilians. The respondentauthorities have imparted training to the petitioners as musicians and uniform is also provided to them by the respondents."
133.1 Here again the issue was with regard to regularization. Whereas the case in hand is of placing the petitioners on the temporary establishment.
134 In Nand Kumar (supra), the Supreme Court again Page 97 of 108 HC-NIC Page 99 of 110 Created On Thu Feb 23 02:09:23 IST 2017 99 of 110 C/SCA/10829/2003 CAV JUDGMENT considered the status and rights of daily wagers of a government concern. The Court take notice of the fact that the daily wagers were not appointed through a proper procedure and could not have invoked the theory of legitimate expectation for being confirmed in the post. This decision is also not helpful to the State.
135 I may only say that the ratio of any decision must be understood in the background of the facts of that case.
136 As observed by the Supreme Court in State of Orissa vs. Sudhansu Sekhar Misra (AIR 1968 SC 647 vide para 13): "A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:
Now before discussing the case of allen v. Floo (1989) A 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.
137 In Ambica Quarry Works vs. State of Gujarat & Others (1987) 1 SCC 213 (vide para 18), the Supreme Court observed: The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
Page 98 of 108HC-NIC Page 100 of 110 Created On Thu Feb 23 02:09:23 IST 2017 100 of 110 C/SCA/10829/2003 CAV JUDGMENT 138 In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide para 59), the Supreme Court observed: It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
139 As held in Bharat Petroloum Corporation Ltd. & another vs. N.R. Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same Judgment the Supreme Court also observed: "Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd. vs. Horton (1951 AC 737 at p.
761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, Lord Atkin`s speech . is not to be treated as if it was a statute definition; it will require qualification in new circumstances. Megarry, J.
Page 99 of 108HC-NIC Page 101 of 110 Created On Thu Feb 23 02:09:23 IST 2017 101 of 110 C/SCA/10829/2003 CAV JUDGMENT in (1971)1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it."
140 I may now consider whether the decision of the State Government to do away with its policy of absorbing the work charged employees on the temporary establishment on completion of their five years of service to what extent can be questioned by the petitioners.
141 The competence of the Government to change the policy Page 100 of 108 HC-NIC Page 102 of 110 Created On Thu Feb 23 02:09:23 IST 2017 102 of 110 C/SCA/10829/2003 CAV JUDGMENT can hardly be debated. What ought to be the policy cannot be subjected to strict judicial review. Still to change a decision or policy, which entails consequence of public interest, cannot be out of free will. The same could not be a fancy of persons in power. The change in the policy so far as the case in hand is concerned is certainly a drastic change of far reaching consequence. It has a definite bearing on the public interest. In Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal [(2007) 8 SCC 418], at page 447, in paras 81 and 82, the Supreme Court observed thus:
"81. Now, it is well settled and needs no authority for holding that every power must be exercised bona fide and in good faith. Before more than hundred years, Lord Lindley said in General Assembly of Free Church of Scotland v. Overtoun:
"I take it to be clear that there is a condition implied in this as well as in other instruments which create power, namely, that the powers shall be used bona fide for the purpose for which they are conferred."
In other words, every action of a public authority must be based on utmost good faith, genuine satisfaction and ought to be supported by reason and rationale. It is, therefore, not only the power but the duty of the court to ensure that all authorities exercise their powers properly, lawfully and in good faith. If powers are exercised with oblique motive, bad faith or for extraneous or irrelevant considerations, there is no exercise of power known to law and the action cannot be termed as action in accordance with law.
82. But as already discussed earlier, a court of law is not expected to propel into "the unchartered ocean" of government policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation."
142 In A.P. Dairy Development Corporation, Federation v. B. Narasimha Reddy [(2011) 9 SCC 286], at page 306, in para 40, the Page 101 of 108 HC-NIC Page 103 of 110 Created On Thu Feb 23 02:09:23 IST 2017 103 of 110 C/SCA/10829/2003 CAV JUDGMENT Supreme Court observed thus:
"40. In the matter of the Government of a State, the succeeding Government is dutybound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State", within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary to the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. "Political agenda of an individual or a political party should not be subversive of rule of law." The Government has to rise above the nexus of vested interest and nepotism, etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate. (Vide Onkar Lal Bajaj v. Union of India, State of Karnataka v. All India Manufacturers Organisation and State of T.N. v. K. Shyam Sunder)."
143 In Brij Mohan Lal v. Union of India [(2012) 6 SCC 502], at page 545, in paras 96, 97, 98, 99, 100 and 101, the Supreme Court observed thus:
"96. It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide.
97. In bringing out the distinction between policy matters amenable to judicial review and those where the courts would decline to exercise their jurisdiction, this Court in Bennett Coleman & Co. v. Union of India held as Page 102 of 108 HC-NIC Page 104 of 110 Created On Thu Feb 23 02:09:23 IST 2017 104 of 110 C/SCA/10829/2003 CAV JUDGMENT under: (SCC p. 834, para 125) "125. ... The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietors to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of governmental policy."
98. We must examine the cases where this Court has stepped in and exercised limited power of judicial review in matters of policy. In Asif Hameed v. State of J&K this Court noticed that, where a challenge is to the action of the State, the court must act in accordance with law and determine whether the State has acted within the powers and functions assigned to it under the Constitution. If not, it must strike down the action, of course, with due caution. Normally, the courts do not give directions or advise in such matters. This Court held as under: (SCC p. 374, para 19) "19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its selfimposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers." (emphasis supplied)
99. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions.
100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
Page 103 of 108HC-NIC Page 105 of 110 Created On Thu Feb 23 02:09:23 IST 2017 105 of 110 C/SCA/10829/2003 CAV JUDGMENT (I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc. (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or legislations.
(VI) If the delegate has acted beyond its power of delegation.
101. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the courts will step in to interfere with government policy."
144 To my mind, the abrupt change in the policy, though permissible, yet is going to have a far reaching effect so far as the hundreds of employees working on the work charged establishment are concerned. Let me not disturb the policy as such. When the Government has thought fit to do away with the same, let it be so, but at least so far as the employees working as on date on the work charged establishment are concerned, they should not be deprived of the same after thirty years of their service and forty one years of the policy.
145 I am not inclined to declare the impugned resolution of 2014 as per se illegal or unconstitutional being a policy matter, but I Page 104 of 108 HC-NIC Page 106 of 110 Created On Thu Feb 23 02:09:23 IST 2017 106 of 110 C/SCA/10829/2003 CAV JUDGMENT would definitely say that the same should not deprive the petitioners herein about more than seven hundred in numbers of their legitimate claim to be considered for being absorbed on the temporary establishment from the work charged. From now onwards, let the State Government make it very clear that they would not appoint anyone as work charged or absorb any work charged employees on the temporary establishment irrespective of the number of years of service although this action again would be a subject matter of debate, as discussed above. I am of the view that all those petitioners, who are working on the work charged establishment, should be immediately absorbed in the temporary establishment from the date they were eligible in terms of its earlier policy.
146 To take any view other than the one I have taken in this matter, would be opposed to common sense or would offend the common man's sense of justice. Chandrachud, J. (as His Lordship then was), in Smt. Indira Gandhi vs. Shri Raj Narain [1975 (Suppl.) SCC 1] made a very significant observation in para 681 as under:
"It is the common man's sense of justice which sustains democracies and there is a fear that the 39th amendment by its impugned parts may outrage that sense of justice."
A Judge must, therefore, take note of the common man's sense of justice and not merely be a slave of logic and the letter of the law.
147 My final conclusion is as under:
(I) The writ applications are maintainable and are not liable to be rejected on the ground of availability of an alternative remedy under the Industrial Disputes Act, 1947 or any other appropriate Legislation.Page 105 of 108
HC-NIC Page 107 of 110 Created On Thu Feb 23 02:09:23 IST 2017 107 of 110 C/SCA/10829/2003 CAV JUDGMENT (II) The action of the State Government, in not absorbing the writ applicants in the temporary establishment from the work charged on completion of five years of continuous service and fulfillment of other conditions, is contrary to the concept of social and economic justice. The State, as a model employer, should not have guillotined the legitimate aspirations of the employees. It created a situation with hopes ending in despair.
(III) Section 9A of the Industrial Disputes Act, 1947 has no role to play as such and the issue raised is of no significance.
(IV) The Government Resolution of the year 2014 impugned in these writ applications being a policy matter is not disturbed, but at the same time, the writ applicants are entitled to the benefits of the earlier policy, more particularly, when such policy remained in force for forty one years and the writ applicants have been serving past almost thirty years.
148 In the result, all the writ applications are allowed in part. (I) The State Government is directed to absorb the writ applicants in the temporary establishment from the work charged and grant them the benefits as stated below:
(a) The State Government will first fix the date on which the writ applicants became eligible for being absorbed on the temporary establishment in terms of the earlier policy which was prevailing. Whatever date is fixed in that regard, thereafter nine years period should be considered as having worked on the temporary establishment. To put it in clear terms, say for instance, if an employee was eligible to be absorbed in the work Page 106 of 108 HC-NIC Page 108 of 110 Created On Thu Feb 23 02:09:23 IST 2017 108 of 110 C/SCA/10829/2003 CAV JUDGMENT charged establishment in the year 1995, then he would have been entitled to the first higher pay scale after putting in nine years of service on the temporary establishment i.e. 1995 + 9 = 2004.
The benefits shall be calculated accordingly.
(II) So far as the Daily Wagers are concerned, the State Government is directed to absorb them on the work charged establishment from the date they were otherwise eligible to be absorbed. For example, if they would have been absorbed in the year 1995, then the benefits would accrue nine years thereafter i.e. 2004. I expect the State Government, as a model employer, to act accordingly and expeditiously.
(III) If any of the petitioners have retired/expired, then those petitioners shall also be entitled to the benefits in above terms and they or their legal heirs, as the case may be, shall be paid the amount falling due by virtue of this order expeditiously.
149 In view of the order passed in the main writ applications, all the connected Civil Applications, if any, are also disposed of.
(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment and order is pronounced, Ms. Manisha Lavkumar Shah, the learned Government Pleader appearing for the State Government made a request that the judgment be stayed from its operation for a period of eight weeks as the State Government intends to challenge the same before the higher forum. The prayer has been vehemently opposed by the learned counsel appearing for the petitioners. Having regard to the fact and circumstances of the case, the Page 107 of 108 HC-NIC Page 109 of 110 Created On Thu Feb 23 02:09:23 IST 2017 109 of 110 C/SCA/10829/2003 CAV JUDGMENT judgment and order pronounced today is stayed from its operation for a period of four weeks.
(J.B.PARDIWALA, J.) chandresh Page 108 of 108 HC-NIC Page 110 of 110 Created On Thu Feb 23 02:09:23 IST 2017 110 of 110