Gujarat High Court
Ushaben Sumanbhai Solanki & vs District Treasury Officer & on 4 December, 2006
Author: H.K. Rathod
Bench: H.K.Rathod
SCA/12915/2004 1/15 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 12915 of 2004
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USHABEN SUMANBHAI SOLANKI & 1 - Petitioner(s)
Versus
DISTRICT TREASURY OFFICER & 1 - Respondent(s)
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Appearance :
MS SADHANA SAGAR for Petitioner(s) : 1 - 2.
MR LB DABHI, A.G.P. for Respondent(s) : 1 - 2.
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CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD
Date : 04/12/2006
ORAL ORDER
1. Heard the learned advocate Ms. Sadhna Sagar appearing on behalf of the petitioner and learned A.G.P. Mr. Dabhi appearing on behalf of the respondents.
2. The petitioners are appointed as a part time Water Bearer in the year of 1987. Both the petitioners were working as a full time Class IV employees from 9-00 am to 6-00 pm in the respondent's office and discharged their duty for more than eight hours, but, respondents are paying salary of part time employee i.e. Rs. 1,350/- per month. The nature of work of both the petitioners are equivalent to regular employees. Earlier, both the petitioners were approached to this Court by way of Special Civil Application No.6732 of 2002. This Court has directed the respondents to consider the representation of the petitioners which was rejected by the respondents. The industrial dispute was raised but answer given by HC-NIC Page 1 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 2/15 ORDER the Commissioner of Labour that respondent is not an industry. Therefore, petitioners have approached to this Court. According to the petitioners, they are working since 1987 till the date of filing petition continuously without any break and more than 300 days remained in service in a one year continuously. Therefore, they are entitled or eligible for regularisation as full time Class IV employees from 1988. Therefore, present petition is filed by both the petitioners with a prayer to regularise their services.
3. The respondent has filed reply dated 1st December 2006 and raising the same contentions that no post of Water Bearer Class IV is sanctioned by the Government and found to be vacant with the respondent. Petitioners are not entitled full time wages because they are working as part time employees on the contingency basis. The contingency scheme and the regularisation both are different set of rules and regulations. The averments made in Para 12 that petitioners have preferred civil suit before the Civil Court. But, statement was made by the respondent that service will not be terminated by the respondents, therefore, civil suit was withdrawn by the petitioner. In pursuance to the direction issued by this Court in Special Civil Application No.6732 of 2002, the representation was not made as per rules, therefore, respondents have denied the said averments. The circular dated 26th December 1980 has been kept abeyance by another Government Resolution HC-NIC Page 2 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 3/15 ORDER dated 21st August 1995, therefore, according to the respondents, petitioners are not entitled the benefit of regularisation as part timer leading to back door entry in the service. According to the respondents, the question of regularisation of the service of the part time workers who were appointed on the contingency rates does not arise, but, both the petitioners are working with the respondent authority as a part time Water Bearer and are getting remuneration as per the contingency basis prescribed by the Government and looking to above facts and circumstance, the petitioners are not entitled for the benefit of regularisation. Therefore, according to respondents, petitioners are not entitled the benefit of regularisation. Certain decision has been relied which are annexed to the reply by the respondents.
4. Learned advocate for the petitioner submitted that the petitioner is continuously working with respondents since more than 18 years, and yet, their services have not been regularized by respondents. She also submitted that looking to the Government Resolution dated 26.12.1980, the State Government has decided to consider the case of part time employees after a period of three years, to regularize their services as a full time employees. She also submitted that this Resolution dated 26.12.1980 has been kept in abeyance by another Resolution dated 21.8.1995. However, the case of the petitioners were not considered by the respondents after a period of three years as a full time employee. She also submitted HC-NIC Page 3 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 4/15 ORDER that at the time of appointment some sort of procedure was followed by the respondents while giving appointment to the petitioners. She also submitted that the petitioners are qualified to the post of Water Bearer and also eligible for the said post according to Recruitment Rules. She submitted that if no procedure has been followed by the respondents at the time of their appointment, then, for that, petitioners cannot be blamed and petitioners cannot be penalized. She also submitted that it is a duty rather legal obligation on the part of the respondents to make appointment as per Service Rules / Recruitment Rules and it is not a fault on the part of the petitioners, but, it was a fault on the part of respondents. Meaning thereby, respondents have failed in discharging legal obligations. Therefore, she submitted that respondents should have to consider the case of the petitioners for regularization as a full time employee in the post of Water Bearer. She also submitted that respondents are seeking to take same work through agency, meaning thereby, requirement of work is there and persons will be appointed through agency. therefore, ultimately, respondent - State Government may not have any burden either financial or administrative to continue such employee for a long period. She submitted that not to regularize services of the petitioners as a full time employees though petitioners worked for more than 18 years continuously which amounts to unfair labour practice on the part of the State and the Authorities of the State, which is, in fact, supposed to act as a Model Employer. She also submitted that if work is HC-NIC Page 4 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 5/15 ORDER available and work is permanent in nature, then not to regularize the services of the petitioners amount to unfair labour practice. She relied upon the decision of Apex Court (i) Mineral Exploration Corporation Employees' Union v. Mineral Exploration Corpn. Ltd. and another, (2006) 6 SCC 310 and also of this Court (Coram : D.H.Waghela,J.) in SCA No.4355 of 2006 and group of matters dated 18.9.2006.
5. Relying upon the aforesaid decision, she submitted that in case of Mineral case, the decision of larger Bench in case of Umadevi has been considered and it has been held by Apex Court that if an employee is temporary employee or daily rated, those who were remained in service more than 10 years, their services should have to be regularized by the Corporation because work is available, fund is also available with the Corporation and Corporation required many employees to be employed for carrying out the work.
6. In view of the aforesaid submissions made by learned advocate appearing on behalf of the petitioners, she submitted that petitioners will make detailed representation in light of the aforesaid decisions of Apex Court as well as this Court, to the State Government and some suitable directions may be issued to the respondents, so that, they may consider the case of petitioners for regularizing the services of petitioners as a full time employees. She also submitted that the claim of the petitioners is only for regularizing the service and not to make permanent which required to follow the procedure HC-NIC Page 5 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 6/15 ORDER under the Recruitment Rules. She also pointed out that there is difference between permanency and regularization of the services of such employees. She submitted that regularization has been interpreted by the Apex Court that employee concerned is entitled to 'equal pay for equal work' salary and no permanency which requires the set up with the respondent - Government. Therefore, she submitted that respondent Government may be directed to consider the case of the petitioners in light of the decision of the Apex Court as well this Court.
7. She has placed reliance in case of Mineral Exploration Corpn. Employees' Union v. Mineral Exploration Corpn. Ltd. And Another reported in (2006) 6 SCC 310. Relevant Para 16, 17, 25, 36 and Para 38 of the said decision are quoted as under:
"16. At the time of hearing, our attention was drawn to the judgment delivered by the Constitution Bench of this Court in Secy.., State of Karnataka v. Umadevi (3). The said case deals with public employment, absorption, regularisation, or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment. Our attention was specifically drawn to para 53 of the said judgment authored by Hon'ble P.K. HC-NIC Page 6 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 7/15 ORDER Balasubramanyan, J. for the Bench, which reads thus : (SCC p. 42) "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanapps, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred and and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure (emphasis supplied), the services of such irregularly (emphasis in original) appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where HC-NIC Page 7 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 8/15 ORDER temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
17. It is seen from the above paragraph that this Court directed the Union of India, the State Governments and their instrumentalities to regularise as a one- time measure, the services of such irregularly appointed workmen, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed.
25. He also relied on para 12 of the judgment of the Constitution Bench which reads as under : [Umadevi(3) case, SCC p.
22]
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SCA/12915/2004 9/15 ORDER
"12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognised and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or HC-NIC Page 9 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 10/15 ORDER under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme."
36. Usual practice of the Corporation has been to keep contingent workmen for long duration of time and offering regular appointment periodically which abruptly had stopped due to unfair attitude of the management. Reduction in work leading to poor physical and financial performance has been a result of incompetent and poor management which cannot be allowed to play with the future of thousands of employees and their families.
38. It shall be proper to regularise the services of the workmen who have worked for several years. However, the workmen in order to succeed will have to substantiate their claim as per the established principles of law. We feel it just and proper to issue the following directions to the Tribunal which is directed to consider the following directions and pass appropriate orders after affording opportunities to both the parties.
1. The Tribunal is directed to again scrutinise all the records already placed by the appellant Union and also the HC-NIC Page 10 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 11/15 ORDER records placed by the management and discuss and deliberate with all the parties and ultimately arrive at a conclusion in regard to the genuineness and authenticity of each and every claimant for regularisation. This exercise shall be done within nine months from the date of receipt of this judgment.
2. Subject to the outcome of the fresh enquiry of the award, the respondent Corporation should absorb them permanently and regularise their services, the persons to be so appointed being limited to the quantum of work which may become available to them on a perennial basis.
3. The respondent Corporation may absorb on permanent basis only such of those workmen who have not completed the age of superannuation.
4. The respondent Corporation is not required to absorb on permanent basis such of the workmen who are found medically unfit for such employment.
5. The absorption of the eligible workmen on a regular and permanent basis by the Corporation does not disable the Corporation from utilising their services for any other manual work for the HC-NIC Page 11 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 12/15 ORDER Corporation upon its needs.
6. In the matter of absorption, the persons who have worked for longer period as contingent/ad hoc/ temporary workmen shall be preferred to those who have to be in shorter period of work.
7. The workman should have worked for more than 240 days in a year. The conduct and behaviour of the workman should be good."
8. She also replied upon the recent decision given by the learned Single Judge (Coram : Justice D.H. Waghela) on 18th September 2006 in respect of the same issue in group of Special Civil Applications No. 4355 of 2006 and Others. The relevant Para 17.1 is quoted as under :
"17.1 However, the cases of the petitioners who have been in service for more than ten years against duly sanctioned vacant posts are on a different footing and they are required to be considered on different basis in light of the observations made in paragraph 53 of the judgment of the Secretary, State of Karnataka v. Umadevi (supra). There is already for them the direction of the Supreme Court that the State Governments and their instrumentalities should take steps to regularize, as a one-
HC-NIC Page 12 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 13/15 ORDER time measure, the services of such irregularly appointed employees who have worked for ten years or more in duly sanctioned posts, but not under the cover of orders of Courts or Tribunals. Since many of the petitioners employed for more than ten years and for six hours or more per day are stated to have worked against sanctioned posts, the respondents are required to consider such cases on the basis of the facts and circumstances of each case. It may be pertinent to add and observe that the State Government, while prescribing the minimum rates of wages in scheduled employment under the Minimum Wages Act, 1948, usually provide for payment of full wages in case the hours of work exceed five hours per day. Therefore, ideally, a part-time employee working for six or more hours per day since more than ten years should be considered as a full-time employee for the benefit of regularization, if he is otherwise eligible and covered by the exceptional clause and directions contained in paragraph 53, as mentioned hereinabove. Age-bar cannot, in the nature of things, be invoked in consideration of such cases and for effectuating the mandate. Since the averments in particular petitions of the petitioner actually working full time, though treated and branded as a part-timer, are neither substantiated nor specifically HC-NIC Page 13 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 14/15 ORDER traversed, the respondents have to be left to consider such cases in light of actual facts and the above direction of the Hon'ble Apex Court."
9. I have considered the submissions made by both the learned advocates appearing on behalf of the respective parties and I have also considered the averments and contentions raised by both the parties in petition and reply. In view of these submissions and considering the observations made by the Apex Court as well as this Court, as referred above, it is open for the petitioners to make detailed representation to the respondents within a period of one month from the date of receiving the copy of this order. As and when respondents receive the representation from the petitioners, it is directed to the respondents to consider the representation of the petitioners and examine the grievance in light of the decision of the Apex Court as well as this Court and pass appropriate reasoned order in accordance with law keeping in mind that work is available with the respondents and same work has been taken by respondents from another agency and decide it within a period of two months from the date of receiving the representation from the petitioners and to communicate the decision to the petitioners immediately thereafter. Meanwhile, it is directed to the respondents not to terminate the services of the petitioners till final decision is taken on the representations that may be made by the petitioners and thereafter, for a period of fifteen days from the HC-NIC Page 14 of 15 Created On Wed Nov 09 00:59:44 IST 2016 SCA/12915/2004 15/15 ORDER date of communication of decision, if the decision of the respondents is adverse to the petitioners. In case if the representation of the petitioners is rejected by the respondents, it will be open for the petitioners to file a note before the Registry for revival of the petition before this Court. Rule is made absolute in terms indicated hereinabove with no order as to costs.
10. In view of the aforesaid observations and directions, present petition is disposed of, without expressing any opinion on merits. Direct service is permitted.
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