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[Cites 10, Cited by 0]

Gujarat High Court

State Of Gujarat vs Ranchhodbhai Shamjibhai Nakum on 11 September, 2020

Author: R.M.Chhaya

Bench: R.M.Chhaya, Ilesh J. Vora

          C/LPA/47/2018                                    ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/LETTERS PATENT APPEAL NO. 47 of 2018

       In R/SPECIAL CIVIL APPLICATION NO. 22301 of 2007
                                 With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
           In R/LETTERS PATENT APPEAL NO. 47 of 2018
======================================================
                        STATE OF GUJARAT
                                Versus
        RANCHHODBHAI SHAMJIBHAI NAKUM & 38 other(s)
======================================================
Appearance:
MR TIRTHRAJ PANDYA, AGP (1) for the Appellant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,3
1,32,33,34,35,36,37,38,39,4,5,6,7,8,9
MR NK MAJMUDAR(430) for the Respondent(s) No. 1
======================================================
 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE ILESH J. VORA

                           Date : 11/09/2020

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. Being aggrieved and dissatisfied with the judgment and order dated 8.8.2016 passed by the learned Single Judge whereby the learned Single Judge relied upon the judgment rendered by the learned Single Judge in Special Civil Application No. 10829 of 20003 and other allied matters, the State has preferred this appeal under Clause 15 of the Letters Patent. Notice for final disposal was issued by the Division Bench vide order dated 15.1.2018.

2.0. The following facts are necessary to be incorporated.

2.1. That the respondents original petitioners were initially appointed as work-charge in different offices of the State. Resolution dated Page 1 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER 4.7.1973 the State Government provides for conversation of daily wager to the work-charge establishment. Public Work Department of the State of Gujarat thereafter issued Resolution dated 16.8.1973 for conversation of work charge post of maintenance repairs and irrigation management under PWD into temporary establishment. The record indicates that in the year 1987 the State Government issued various Government Resolutions directing the head of department not to appoint any daily wager on the establishment. The State Government issued Resolutions dated 3.2.1987, 11.7.1988, 31.3.1989, 30.5.1989, 5.6.1989 and 5.1.1990 relating to ban on the recruitment of daily wagers by the Head of Department. By Resolution dated 20.08.2014 the Road and Building Department of the State of Gujarat as a policy decision cancelled the earlier Government Resolution dated 16.8.1973 and in the said decision, it was clarified that so far as those cases wherein such benefits have already been granted the same shall not be disturbed, however, in remaining cases the Government Resolution dated 16.8.1973 came to be superseded.

2.2. As the record reveals that the State Government issued Resolution dated 20.08.2016 which came to be challenged by the affected persons by filing writ petition being Special Civil Application No.10829 of 2003 and other allied matters. The learned Single Judge of this Court vide judgment and order dated 4.2.2016 was pleased to uphold the policy of the State Government and also issued certain directions. The present respondents are also similarly situated work charge and therefore, they filed writ petition being Special Civil Application No.22301 of 2007 for similar prayers. The learned Single Judge following the judgment rendered in Special Civil Application No.10829 of 2003 and other allied matters dated 4.2.2016 disposed of the writ petition.

Page 2 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER

2.3. Being aggrieved and dissatisfied with the order dated 4.2.2016 passed by the learned Single Judge, the State has preferred the present Letters Patent Appeal.

3.0. Heard Mr. Tirthraj Pandya, learned Assistant Government Pleader for the State and Mr. N.K. Majmudar, learned advocate for the respondents.

4.0. At the outset, learned Assistant Government pointed out that as observed by the learned Single Judge in the impugned judgment the issue involved in this appeal is squarely covered by the judgment and order passed by the Division Bench of this Court in Letters Patent Appeal No.380 of 2016 and other allied appeals which arise mainly out of Special Civil Application No.10829 of 2003 and allied petitions. Mr. Tirthraj Pandya, learned Assistant Government Pleader contended that the Division Bench has been pleased to partly allow the appeal and modify the directions issued by the learned Single Judge. Mr. Pandya, learned AGP, therefore, submitted that this Appeal be partly allowed and directions be modified accordingly by following the judgment of the Division Bench in Letters Patent Appeal No.380 of 2016 and other allied appeals.

5.0. Mr. N.K. Majmudar, learned advocate for the respondents - original petitioners candidly submitted that the issue involved in this appeal is squarely covered by the decision of the Division Bench of this Court in Letters Patent Appeal No.380 of 2016 and other allied appeals and therefore, this Court may pass appropriate order.

6.0. No other and further submissions / contention / grounds have been raised by the learned advocates for the respective parties.

7.0. Upon hearing the learned counsel for the parties and on perusal of the record of this appeal, it is an admitted position that the Page 3 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER respondents herein - original petitioners are similarly situated work charge employee of the Government and the issue decided by the Division Bench of this Court in Letters Patent Appeal No.380 of 2016 and other allied appeals is identical and similar to the issue involved in this appeal. The learned Single Judge while disposing of the writ petition has observed thus:

"1. The issues raised in the captioned writ applications as such are squarely covered by the judgment and order passed by this Court dated 4th February 2016 rendered in the Special Civil Application No.10829 of 2003 and allied matters. However, the judgment and order of this Court referred to above has been carried further by the State of Gujarat by filing the Letters Patent Appeal. I am told that the said appeals were admitted and the operation of the judgment and order passed by this Court referred to above has been stayed. The final hearing of the appeals has been fixed in the month of September 2016. The issue therefore, will necessarily be governed by the judgment and order that may be pronounced by the Division Bench in the appeals. The rights and liabilities of the writ applicants shall be governed by the judgment and order that would be pronounced by the Division Bench in the appeals.
2. With the above, the writ applications are disposed of."

8.0. At this juncture, it would be profitable to refer to the observations made by the Division Bench of this Court in Letters Patent Appeal No.380 of 2016 and other allied appeals.

"18. Heard learned Advocates appearing on behalf of respective parties at length. We have perused and considered in detail the impugned common CAV judgment passed by the learned Single Judge. We have also considered the material on record more particularly the relevant circulars / G.Rs. issued from time to time with respect to the daily wagers, work charged employees. [18.2] While considering the case of the aforesaid class of the petitioners viz. daily wagers and the work charged employees working on work charged establishment, the chronology of dates and events and the relevant G.Rs. are required to be referred to and considered which are as under:
RELEVANT GOVERNMENT RESOLUTIONS AND CIRCULARS WITH REFERENCE TO CONVERSION OF DAILY WAGERS (ROJAMDARS) INTO WORK CHARGED EMPLOYEES Sr. Sr.No Date Particulars .
1. 04.07.1973 A Government Resolution came to be issued by the Public Works Department of the State Government with reference to the appointment of Daily Wagers working on the nominal Muster Roll in various Departments of the State Government on work charged establishment subject to various circumstances / conditions amongst Page 4 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER the following:
i) Occurrence of vacancy in the existing post on the work charged establishment because of current post falling vacant on the work charged establishment; or
ii) Creation of new posts on the work charged establishment; iii) Completion of minimum 5 years of service as Daily Wage worker;
iv) Benefit of such an appointment to the post of work charged establishment shall not be available in case of Telephone Operator, Clerk and/or any other post for which SSC has been fixed as the educational qualification.

2 16.11.1978 A Government Resolution came to be issued by the Public Works Department, inter alia, clarifying in the matter of 5 years of service as Daily Wager by providing that in a current year, the Daily Wager to remain in the employment at least for one year, out of which, he should have attended duty at least for 180 days and that for counting 5 years as Daily Wager, there should be average 240 days of presence in the said period of 5 years.

3 03.02.1987 A circular came to be issued by the Roads & Buildings Department, declaring a prohibition on the new recruitment, inter−alia, on work charged establishment from Daily Wager.

4 24.3.1988 A Government Resolution came to be issued, constituting a Committee under the Chairmanship of Shri Dolatbhai Parmar to examine and consider the long pending demand of Daily Wagers working in different departments of the State Government. 5 11.7.1988 A Government Resolution came to be issued by the Roads & Buildings Department, categorically declaring that no Daily Wager should be recruited on work charged establishment in view of the constitution of the aforesaid Committee for considering various service related issues of Daily Wagers.

6 17.10.1988 Three Government Resolutions, all of the same date came to be issued by the Roads & Buildings Department of the State Government, granting substantial benefits to the Daily Wagers of 3 different categories, viz. unskilled; semi−skilled and skilled. 7 31.03.1989 In view of the issuance of Government Resolutions dated 17.10.1988, referred to above, the State Government issued a Circular / instruction, inter−alia declaring that in the absence of there being any provision of appointing Daily Wager on work charged establishment in the said Government Resolutions dated 17.10.1988, appointment of Daily Wagers as work charged employees should be totally banned.

8 30.05.1989 A circular came to be issued by the Roads & Buildings Department, inter−alia, clarifying more particularly with reference to Daily Wage workers in whose benefit the above referred 3 Government Resolutions dated 17.10.1988 were issued.

9 05.06.1989 A Government Resolution in the Roads & Buildings Department came to be issued, once again reiterating about the ban on the conversion of Daily Wagers to work charged employees, wherein by way of Note−I to Clause (6), it was clarified that in view of the benefits having been granted under the Government Resolution dated 17.10.1988 with reference to Daily Wagers, there is no question of converting Daily Wagers into work charged employees and, therefore, Daily Wagers are not to be taken on work charged establishment.

10 05.01.1990 A Government Resolution in the Roads & Buildings Department Page 5 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER came to be issued, inter−alia, substituting the earlier Resolutions dated 04.05.1973, 16.11.1973 and the instructions for converting Daily Wagers on the work charged establishment in the wake of the policy and the Rules announced by the aforesaid 3 Government Resolution dated 17.10.1988, in case of Daily Wagers. 11 16.08.1994 A Government Resolution came to be issued by the Roads & Buildings Department, declaring the grant of benefit of higher pay−scale in lieu of promotion on completion of 9−18−27 years with a clarification that work charged employees are not eligible to get the benefit of higher pay scale in lieu of promotion (Rule 3(31)). 12 02.07.2007 A Government Resolution came to be issued substituting earlier policy for grant of benefit of higher pay−scale in lieu of the promotion on completion of 9− 18−27 years by a new policy for grant of said benefit on completion of 12−24 years, wherein clause 1(4) clearly provides that said policy will not be applicable to work charged establishment employees RELEVANT GOVERNMENT RESOLUTIONS WITH REFERENCE TO CONVERSION OF WORK CHARGED EMPLOYEES INTO THE EMPLOYEES WORKING ON TEMPORARY ESTABLISHMENT. 

Sr.No   Date             Particulars
.
1.      16.08.1973       A Government Resolution came to be issued for converting

work−charged employees working only in maintenance, repairs and irrigation management of any works, into temporary establishment, subject to certain conditions, including the rendition of service of minimum period of 5 years.

2 03.02.198 A Circular came to be issued, declaring prohibition on the new 7 recruitment on work−charged establishment as well as on daily wage basis.

3 20.08.2014 A Government Resolution came to be issued for cancelling/revoking the aforesaid Government Resolution dated 16.08.1973 from the date of the issuance thereof.

[18.3] Now, so far as those who are working as daily wagers and claiming absorption in the work charged establishment is concerned, considering the aforesaid G.Rs. with reference to the conversion of the daily wagers / rojamdars to work charged employees, it appears that earlier they were governed by G.R. dated 04.07.1973. G.R. dated 04.07.1973 came to be issued by the Public Works Department of the State Government with reference to the appointment of daily wagers working on the nominal Muster Roll in various Departments of the State Page 6 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER Government on work charged establishment, however subject to various circumstances / conditions viz. (i) occurrence of vacancy in the existing post on the work charged establishment because of current post falling vacant on the work charged establishment;

(ii) Creation of new posts on the work charged establishment; (iii) completion of minimum 5 years of service as Daily Wage worker; and (iv) benefit of such an appointment to the post of work charged establishment shall not be available in case of Telephone Operator, Clerk and/or any other post for which SSC has been fixed as the educational qualification. The aforesaid G.R. dated 04.07.1973 was further clarified vide G.R. dated 16.11.1978 clarifying that while calculating 5 years of service as Daily Wager, the Daily Wager has to remain in the employment at least for one year, out of which, he should have attended duty at least for 180 days and that for counting 5 years as Daily Wager, there should be average 240 days of presence in the said period of 5 years. From the aforesaid chronology of dates and events, it appears that thereafter there was a complete prohibition. It appears that the Government came out with a new policy decision in form of G.R. dated 17.10.1988 issued by the Roads & Building Department of the State Government, granting substantial benefits to the daily wagers of three different categories viz. unskilled; semi−skilled and skilled. On considering the G.R. dated 17.10.1988, it appears that the State Government accepted the recommendations made by the experts / committee and it has been resolved to extend certain benefits to the daily wager employees.

[18.4] G.R. dated 17.10.1988 is a resolution of the Government under which it has been resolved to extend certain benefits to the daily wage employees. Clause (2) of the said resolution provides Page 7 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER that as per the provisions of Section 25(B) of the ID Act, daily wage labourers who have put in more than five but less than ten years of service on 01.10.1988, shall be paid monthly wage arrived at by taking into consideration the fixed monthly pay payable as per the prevailing pay− scale in the concerned cadre and the dearness allowance admissible there on as per the prevailing rates, for the number of days present. Besides, 14 casual leaves including two for restricted holidays, leave of Sundays and leave on the days of National Festivals shall be admissible in a year with pay and the benefits of Medical facilities and deduction for General Provident Fund shall also be admissible as per the rules. Clause (3) provides that the skilled daily wage labourers who have put in more than ten years of service on 01.10.1988 shall be considered permanent and such permanent labourers shall be placed in the running scale of the prevailing pay−scale of the concerned cadre and accordingly, pay, dearness allowances, house rent allowance, local compensatory allowances shall be paid to him. It is further decided to give such persons the benefits of superannuation, pension, gratuity, General Provident Fund etc. as per the prevailing rules. Further, 14 Casual leaves including two for restricted holidays, 30 earned leaves, 20 half pay leaves shall be admissible to them over and above the weekly leave of Sundays and the leave on the days of National Festivals. The age−limit for superannuation of the permanent labourers shall be 60 years. The period of permanent service shall be treated as qualifying service. It has further been decided that as per the provision of Section 25(B) of the ID Act, the skilled labourers who have completed 15 years of service on 01.10.1988, shall be given one increment and who have completed 20 and more than 25 years of service likewise shall be given two and three increments in the Page 8 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER prevailing pay−scale of the concerned cadre respectively and their pay shall be accordingly fixed on 01.10.1988.

Thus, on interpretation of the new policy contained in G.R. dated 17.10.1988, all the daily wagers working in different departments of the State Government shall be entitled to the benefit flowing from the G.R. dated 17.10.1988 only. At this stage it is required to be noted that vide Circular dated 31.03.1989, it was clarified that the appointment of daily wagers as work charged employee is banned in view of the G.Rs. Dated 17.10.1988 and has no provision for appointment of daily wagers on work charged establishment having been made vide aforesaid G.R. Therefore, on and after 17.10.1988 the earlier G.R. / policy shall not be applicable at all more particularly the G.R. dated 04.07.1973.

[18.5] Identical question came to be considered by the learned Single Judge of this Court in the case of Karshanbhai K. Rabari & Ors. vs. State of Gujarat rendered in Special Civil Application No.11071/1993 by which a similar relief was sought by those working as daily wagers and after considering the subsequent policy decision in the form of G.Rs. Dated 17.10.1988 and by observing that the petitioners who are appointed as daily wagers have no right whatsoever, the learned Single Judge dismissed the said petition and observed and held that all those daily wagers shall be governed by the G.R. dated 17.10.1988. The decision of the learned Single Judge in Special Civil Application No.11071/1993 has been affirmed by the Division Bench vide order in Letters Patent Appeal No.1134/1997. In another decision in the case of Bhimjibhai Bhanjibhai Gohil vs. State of Gujarat rendered in Special Civil Application Nos.4726/2004 and 12247/2004, the learned Single Judge rejected the prayer of those daily wagers who prayed for a direction to the authorities to Page 9 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER consider their case for being granted the benefits of work charged employees and regularization. That in the said decision the learned Single Judge considered the subsequent policy decision vide G.R. dated 17.10.1988. In para 3 the learned Single Judge has observed and held as under:

"3. When the petitioners have been given the benefitsof the circular dated 17−10−1988 and when their case for being treated as work charged employees or for regularization is not backed by any government resolution, their case cannot be accepted merely on the ground that the some other employees have received the said benefits irrespective of want of vacancies and financial constraint of the government. It is true that the petitioners are working since long, however, their case for regularization cannot be considered unless they are selected for regular vacancies in accordance with rules. I am sure if in future occasion arise to grant further benefits of work charge, the cases of the petitioners will be considered by the government in accordance with the rules and their seniority. Subject to above observations, the petitions are rejected."

The said decision of the learned Single Judge has also been confirmed by the Division Bench vide order in Letters Patent Appeal No.590/2007 in Special Civil Application No.4726/2004. Yet in another decision in the case of Dashrathbhai Naranbhai Tadvi & Ors. vs. State of Gujarat & Anr. rendered in Special Civil Application No.11393/2000, the learned Single Judge after following the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra) rejected the said petition in which the daily wagers prayed for an appropriate writ, direction and order directing the State to take them on regular establishment on and from their passing the SSC examination with all incidental benefits. Before the learned Single Judge it was the case on behalf of the petitioners that they are daily wagers workmen working under the Department since last more than 15 to 20 years. However, considering the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra) in which it is observed by the Hon'ble Supreme Court that merely because a temporary Page 10 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointment, do not acquire any right. The decision of the learned Single Judge has been confirmed by the Division Bench vide order in Letters Patent Appeal No.2626/2010.

[18.6] In the case of M.I. Isani, Executive Engineer, Surendranagar District Panchayat (Supra), the Division Bench of this Court has specifically observed after considering the G.R. dated 04.07.1973 that at the most the said confers eligibility for being absorbed when vacancies arise and if certain conditions are fulfilled. But it does not automatically confers permanency.

[18.7] In the case of State of Tamil Nadu Through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Another vs. A. Singamuthu reported in (2017) 4 SCC 113, after considering various earlier decisions of the Hon'ble Supreme Court on the point, in para 8 the Hon'ble Supreme Court has observed and held as under:

"8. Part−time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part−time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part−time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt Page 11 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer."

[18.8] In the case of Umadevi (3) (Supra), in para 48 the Hon'ble Supreme Court has observed and held as under:

"48. ...There is no fundamental right in those who have been employed on daily−wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."

[18.9] In the case of Hari Nandan Prasad vs. Employer I/R. to Management of FCI and Another reported in (2014) 7 SCC 190 in para 39 the Hon'ble Supreme Court has observed and held as under:

"39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non−regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art.14, rather than violating this constitutional provision."

[18.10] In the case of Kartick Chandra Mondal & Anr (Supra), the Page 12 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER Hon'ble Supreme Court has observed that merely because some other similarly placed casual workers were regularized, illegality or irregularity in appointments cannot be further perpetuated by regularizing the services of others. Thus, it is held that there cannot be any negative discrimination. In para 25 it is observed and held 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 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)]."

[18.11] In the case of PWD Employees Union and Others (Supra), the Hon'ble Supreme Court had an occasion to consider the very G.R. dated 17.10.1988. In the said decision it is held that the G.R. dated 17.10.1988 is applicable to all the daily wage workers working in different departments of the State including Forest and Environment Department performing any nature of job. It is held that it is not limited only to the daily wage workers working in building, maintenance and repairing work. While considering the G.R. dated 17.10.1988, the Hon'ble Supreme Page 13 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER Court has observed in paragraphs 23, 24, 28 and 29 as under:

"23. From a bare reading of the Resolution dated 17th October, 1988, the following facts emerge:
(a) Labour and other Unions made representation to the Government making demands and issues relating to daily wage workers of different departments of the Government.
(b) The State Government constituted a committee under the Chairmanship, Minister of Road and Building Department.
(c) The Committee was constituted for studying (i) the wages of daily wage workers;and (ii) work related services and facilities provided to the daily wage workers who are engaged in the building maintenance and repairing work in different departments of the State. (d) The recommendations of the Committee were accepted and accordingly the State Government resolved to provide the benefits of the scheme contained in the Resolution 17th October, 1988.

24. The daily wage workers who were engaged in building maintenance and repairing work in different departments were already entitled for their work related facilities. Therefore, what we find is that the Committee has not limited the recommendation to the daily wage workers working in building maintenance and repairing work in different departments of the State. The State Government vide its Resolution dated 17th October, 1988 has not limited it to the daily wage workers working in building maintenance and repairing work. What we find is that the Resolution dated 17th October, 1988 is applicable to all the daily wage workers working in different departments of the Page 14 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER State including Forest and Environment Department performing any nature of job including the work other than building maintenance and repairing work. The decision of the Full Bench of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra and the subsequent Resolution dated 22nd December, 1999 issued from Forest and Environment Department of the State, in our opinion are not sustainable, as the intent of Resolution dated 17th October, 1988 was not properly explained therein and, therefore, the aforesaid decision of Full Bench and Resolution dated 22nd December, 1999 cannot be made applicable to the daily wage workers of the Forest and Environment Department of the State of Gujarat.

28. Thus, the principal question that falls to be considered in these appeals is whether in the facts and circumstances it will be desirable for the Court to direct the appellants to straightaway regularize the services of all the daily wage workers working for more than five years or the daily wage workers working for more than five years are entitled for some other relief.

29. As per the scheme contained in Resolution dated 17th October, 1988 all the daily wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:

"(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.
(ii) Daily wagers and semi skilled workers who has service Page 15 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc.

leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.

(iii) Daily wagers and semi skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

Page 16 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER

Thus, considering the aforesaid decisions of the Hon'ble Supreme Court as well as this Court and in view of the subsequent G.R. dated 17.10.1988 which shall be applicable to all the daily wagers working in different departments of the State, all the daily wagers shall be governed by the G.R. dated 17.10.1988 and any violation and/or resolution/circular prior to 17.10.1988 shall not be applicable including the G.R. dated 04.07.1973.

[18.12] Now, so far as the impugned CAV common judgment passed by the learned Single Judge and the directions issued by the learned Single Judge with respect to the daily wagers more particularly the directions issued in para 148(II) by which the appellants herein - original respondents - State Government is directed to absorb all daily wagers - petitioners on the work charged establishment from the date they were otherwise eligible to be absorbed is concerned, the same cannot be sustained for the reasons stated herein above. At the outset it is required to be noted that as such there is no much discussion by the learned Single Judge so far as the daily wagers are concerned and/or their status of the daily wagers are concerned. There is no discussion at all with respect to the position after the G.R. dated 17.10.1988. The only reason which can be culled out from the impugned judgment and order is that as they are working since many years and in view of the earlier G.R. of 1973, all those daily wagers are required to be absorbed in the work charged establishment. At this stage it is required to be noted that as such the learned Single Judge seems to have considered the G.R. dated 16.08.1973 which has been subsequently revoked in the year 2014 which as such is with respect to the conversion of work charged establishment to temporary establishment and as such the same is not with respect to absorbing the daily wagers to Page 17 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER work charged establishment. Even otherwise merely because an employee has worked as a daily wager for 5 years or more, he shall not be automatically entitled to be absorbed in the work charged establishment. The order to absorb daily wagers to work establishment merely on completion of 5 years automatically shall be contrary to various law laid down by the Hon'ble Supreme Court in catena of decisions referred to hereinabove.

[18.13] Even otherwise it is required to be noted that grant of such direction to absorb all those daily wagers into work charged establishment merely on completion of 5 years as daily wager would have a cascading effect and chain of sequences. After they are absorbed in the work charged establishment they may claim the absorption in the temporary establishment and may claim all other benefits which may be available to the regular permanent employees and they may claim such benefit despite the fact that there are no sanctioned vacant posts. Even otherwise it is required to be noted that even as per the G.R. dated 04.07.1973 (though the same shall not be applicable after the G.R. dated 17.10.1988), absorption of daily wagers to work charged establishment was subject to various circumstances / conditions referred to hereinabove. There was no automatic conversion / absorption of daily wagers to work charged establishment even as per the G.R. dated 04.07.1973 (which shall not be applicable after the G.R. dated 17.10.1988).

[18.14] In view of the above, the impugned common CAV judgment and order passed by the learned Single Judge in terms of para 148(II) by which State Government is directed to absorb the daily wagers on the work charged establishment from the date from which they were otherwise eligible to be absorbed cannot be sustained and the same deserves to be quashed and Page 18 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER set aside. Even the example that if the daily wagers would have been absorbed in the year 1995, then the benefits would accrue 9 years thereafter i.e. 2004 is concerned, with greatest respect, it is not possible to cull out which benefits would be available to such daily wagers who are absorbed on work charged establishment 9 years thereafter. Even as a work charged establishment they shall not be entitled to the higher pay scale / higher grade on completion of 9 years. There is no clarity whatsoever so far as the same is concerned. In any view of the matter the directions contained in para 148(II) referred to hereinabove in case of daily wagers - original petitioners cannot be sustained and the same deserves to be quashed and set aside by further observing that all those daily wagers shall be entitled to the benefits flowing from the G.R. dated 17.10.1988 and any clarificatory circulars only and shall not be entitled to any benefits under any resolution / circular which was in force prior to 17.10.1988. All these appeals are required to be allowed to the aforesaid extent.

[19.0] Now, so far as the impugned common judgment and order passed by the learned Single Judge and the directions issued by the learned Single Judge directing the State Government to absorb all those writ applicants - work charged employees working on work charged establishment in the temporary establishment is concerned, it is required to be noted that as such so far as the work charged employees working on work charged establishment are concerned, the relevant G.R. would be the G.R. dated 16.08.1973, which has been revoked / canceled subsequently vide G.R. dated 20.08.2014. Even the learned Single Judge while passing the impugned judgment and order and issuing the impugned directions has considered the G.R. dated 16.08.1973 only.

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[19.1] While considering the impugned common CAV judgment and directions issued with respect to work charged employees and absorbing them into the temporary establishment, what is work charged establishment and temporary establishment is required to be considered. The definition of "work charged establishment" and "temporary establishment" has been provided under the Gujarat Public Works Department Manual. The definitions of "temporary establishment" and "work charged establishment" are 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 non−permanent 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 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.

Note−2: 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 Page 20 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER 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) Work−charged Establishment: 89. Work−charged posts are just any posts whose pay is directly debited to the work, and work−charged 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 sub−works of a specific project or upon the subordinate supervision of a specific work or of sub−works of a specific project, of the departmental labor, stores and machinery in connection with such a work or sub−works. When employees borne on the permanent or temporary establishment are employed Page 21 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER on work of this nature their pay, etc. should, 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.

Note−1: 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 work−charged.

Note−2: 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 work−charged 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.

Note−3: The work−charged establishment should be discontinued when works on which they are employed are temporarily stopped or suspended and reemployed as soon Page 22 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER as works are resumed.

Note−4: Employees borne on the permanent establishment should be employed on the actual execution of work, only in the case of important major works.

Note−5: Transfers of work−charged persons ordered by local officers should be restricted within the Divisions as far as possible.

Note−6: If employees on permanent and temporary establishment transferred to work−charged establishment are followed the house rent 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 work−charged establishment but for the deputation of the employees on regular establishment to work charged establishment.

90. The cost of works establishment must be shown as a separate subhead of the estimate.

Note−1: In the case of estimates for modernization of road surfaces, the provision for work−charged establishment should be made at 2 per cent of the estimated cost. Note−2: 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 work−charged establishment is Page 23 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER 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 work−charged 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 work−charged establishment where necessary for detailed supervision of works provided their cost is met from the provisions for the work−charged 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."

[19.2] Even the learned Single Judge in para 30 of the impugned common CAV judgment and order has observed as under:

"30. The setting up and continuation of work charged establishment is 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."

[19.3] In the case of Kunji Raman (Supra), the Hon'ble Supreme Page 24 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER Court had an occasion to consider the difference between the work charged establishment and the regular establishment. After considering the decision of the Hon'ble Supreme Court in the case of Jaswant Singh and Others vs. Union of India and Others reported in (1979) 4 SCC 440, in paras 6 and 8, the Hon'ble Supreme Court has observed and held as under:

"6. A work−charged 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, fare chargeable to "works". The pay and allowances of employees who are borne on a work−charged establishment are generally shown as a separate sub−head 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 work−charged establishment is materially and qualitatively different from a regular establishment.
8. A work−charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work−charged establishment is dependent upon the Government undertaking a project or a scheme or a 'work' and availability of fund for executing it. So far as employees engaged on work−charged 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 work−charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes....."

[19.4] The Division Bench of this Court in the case of K.N. Thanaki and Ors. (Supra) has specifically observed and held that on completion of certain number of years, the work charged employees become eligible for absorption as temporary servants, but that does not mean that they become entitled to be appointed and retained as temporary employees immediately after have become eligible to be absorbed as temporary employees. It is held that their actual absorption has to take place in accordance with their seniority and availability of posts.

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In the case before the Division Bench the grievance of the petitioners who were work charged employees was that even though they had completed 5 years of service as work charged employees, they are not treated as temporary government servants and not given all the benefits on that basis.

[19.5] Even considering the G.R. dated 16.08.1973 on which the reliance has been placed by the work charged employees and which has been relied upon and considered by the learned Single Judge while issuing the impugned directions, it appears that the decision was taken by the State Government that various posts of work charged establishment in respect of only maintenance and repairs of any works or irrigation management which are either required permanently or a very long term basis be converted into temporary posts and work charged posts to that extent should be abolished. Assuming that the said resolutions shall be applicable to all the Departments and not in respect of any only maintenance and repairs of any works, in that case also, as observed by the Division Bench of this Court in the case of K.N. Thanaki and Ors. (Supra), there shall not be any automatic absorption of work charged employees into temporary establishment on mere completion of their 5 years of service as work charged. Same shall be subject to availability of posts in the temporary establishment and subject to their seniority etc. As observed by the Division Bench of this Court in the aforesaid decision in the case of K.N. Thanaki and Ors. (Supra), all those work charged employees in the work charged establishment who have worked for more than 5 years shall be eligible to consider their case for absorption into temporary establishment, but there shall not be any automatic absorption in the temporary establishment. Therefore, assuming that the subsequent G.R. of 2014 by which Page 26 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER the earlier G.R. dated 16.08.1973 is revoked / cancelled shall not be applicable retrospectively and may be applicable prospectively, in that case also, the direction which could have been issued by the learned Single Judge would have been to direct the State Government to consider the case of all those work charged employees who have worked for more than 5 years on work charged establishment as per the G.R. dated 16.08.1973, which was applicable prior to the G.R. of 2014. Therefore, the impugned direction of the learned Single Judge so far as the work charged employees are concerned that all the work charged employees who have worked for more than 5 years shall be converted into temporary establishment on completion of their 5 years of service as work charge cannot be sustained and the same deserves to be quashed and set aside.

[19.6] Now, so far as the submission on behalf of the State that in view of the subsequent circular dated 03.02.1987 and in view of the prohibition on the new recruitment on work charged establishment the appointments of work charged employees can be said to be illegal is concerned, at the outset it is required to be noted that merely because all those persons are continued as work charged even after the ban / bar, their appointment cannot be said to be per se illegal. It is the State Government who continued them as work charged despite the resolution / circular declaring the prohibition on new recruitment on work charged establishment. The State cannot be permitted to take the benefit of its own wrong. All those seem to have been continued as work charged looking to the need of the work and the requirement. Therefore, the submission on behalf of the State that in view of the circular dated 03.02.1987 declaring the prohibition on new recruitment on work charged establishment, the continuation of Page 27 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER the concerned work charged employees is illegal, cannot be accepted.

[19.7] Now, so far as the submission on behalf of the petitioners - work charged employees that in between so many other work charged employees including some of the petitioners are absorbed in the temporary establishment is concerned, it is true that some of the departments have granted the benefit of absorption and the G.R. dated 16.08.1973 and made some of the work charged employees working on work charged establishment into the temporary establishment on completion of their 5 years' service as work charged. However, as observed by the Hon'ble Supreme Court in the case of Kartick Chandra Mondal (Supra), the guarantee of equality before law enshrined in Article 14 of the Constitution is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. It is further observed and held that even assuming that similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. In the said decision the Hon'ble Supreme Court has taken into consideration the observations made in para 67 of the earlier decision in the case of State of Bihar v. Upendra Narayan Singh and others reported in (2009) 5 SCC 65. Therefore, merely because earlier some similarly placed persons / work charged employees including some of the petitioners are granted the benefit of absorption in the temporary establishment on completion of 5 years' service as work charged, the petitioners cannot claim the same claiming violation of Article 14 of the Constitution of India. As observed herein above and even as per the decision of the Division Bench of this Court in the case of K.N. Thanaki and Ors. (Supra), there is no automatic absorption in Page 28 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER temporary establishment after 5 years of service as work charged. The cases are required to be considered for absorption in a temporary establishment after completion of 5 years as work charged subject to availability of posts in the temporary establishment and as per the seniority etc. [19.8] From the impugned common judgment and order passed by the learned Single Judge it appears that before the learned Single Judge and even before this Court the learned Counsel appearing on behalf of the original petitioners heavily relied upon the decision of the learned Single Judge of this Court in the case of Rashmikaben Trikamlal and Ors. (Supra) by which the learned Single Judge directed the State to grant the benefit of higher pay scale under the scheme of 9−18−27 years of service to those employees working on work charged establishment, on the date on which they completed 5 years of service is concerned, at the outset it is required to be noted that in the said decision all those work charged were converted to temporary establishment and the learned Single Judge directed to grant the benefit of higher pay scale. It is true that in the said decision the learned Single Judge observed that on completion of 5 years of service they are deemed to have been converted from work charged establishment to temporary establishment and therefore, they shall be entitled to the benefit of higher pay scale under the scheme of 9−18−27 years on completion of 9 years of service from the date on which they deemed to have been converted from work charged establishment to temporary establishment. However, it is required to be noted that the said decision was challenged before the Division Bench by way of Letters Patent Appeal No.1360/2011 and the Division Bench dismissed the said appeal and confirmed the order passed by the learned Single Page 29 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER Judge, however the Division Bench specifically made it clear that order of dismissal of appeal may not be treated as a precedent. Therefore, once the Division Bench specifically observed and made it clear that the dismissal of appeal confirming the order passed by the learned Single Judge in Special Civil Application No.7464/1996 may not be treated as a precedent, normally the same cannot be relied upon as the same is to be treated and/or confined to those petitioners also and the same cannot be treated as a precedent.

While considering the aforesaid decision the learned Single Judge has not at all considered the observations made by the Division Bench in Letters Patent Appeal No.1360/2011 that the said order may not be treated as a precedent. The learned Single Judge seems to have proceeded on the premise that the decision of the learned Single Judge in Special Civil Application No.7464/1996 has been confirmed by the Division Bench without any further observation (in the present case the observation that the same may not be treated as a precedent).

[19.9] It is true that in many of the cases the concerned petitioners are continued as work charged employees in the work charged establishment since many years and therefore, there shall be a presumption that the nature of work is permanent. However, the same is required to be considered while applying the G.R. dated 16.08.1973 and while considering their cases for absorption in the temporary establishment. From the impugned judgment and order passed by the learned Single Judge, there is no factual data available before the learned Single Judge with respect to the number of persons working in the work charged establishment; on which posts they are working as work charged; in which department they are working; since how many years Page 30 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER they are working; how many posts in the temporary establishment were available. The learned Single Judge has passed the impugned judgment and order mainly on the ground that all those petitioners - work charged employees working in the work charged establishment are working since many years and that they shall be entitled to benefit of absorption as per the G.R. of the year 1973 and that subsequent G.R. of 2014 canceling / withdrawing the earlier G.R. of 1973 shall not be made available retrospectively. The learned Single Judge is right in observing that the subsequent G.R. of 2014 withdrawing / revoking the earlier G.R. of 1973 cannot be made applicable retrospectively but at the same time the finding recorded by the learned Single Judge that on completion of 5 years of service as work charged in the work charged establishment automatically they shall be entitled to be absorbed in the temporary establishment cannot be sustained. Number of circumstances/conditions are required to be considered while converting the work charged establishment into the temporary establishment even as per the G.R. dated 16.08.1973 which was applicable prior to the G.R. of 2014 and therefore, the State Government / concerned Departments of the State Government in which the respective petitioners are serving as work charged employees in the work charged establishment are to be directed to consider the case of all those petitioners - work charged employees who are not absorbed in the temporary establishment to absorb them in the temporary establishment as per the G.R. dated 16.08.1973.

[20.0] Therefore, in light of the above finding and the observations, under normal circumstances, the matters are required to be remanded / sent back to the Government to undertake the exercise viz. when the posts in temporary Page 31 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER establishment had fallen vacant; how many posts had fallen vacant; whether there was a requirement and/or work or not? However, considering the fact that in most of the cases the work charged employees have worked for more than three decades, considering the object and purpose of the G.R. dated 16.08.1973 and for the reasons stated hereinbelow, we do not propose to send back the matters to the State Government after number of years.

[20.1] It is required to be noted that the concerned work charged employees have worked and are working since last three decades. Therefore, it can safely be presumed and it cannot be disputed that there was / is work and their services were required and they have continuously worked for approximately three decades. Even as per the G.R. dated 16.08.1973 which shall be applicable pre−G.R. Of 2014, various posts of work charged establishment in respect of maintenance and repairs of any works or irrigation management which are either required permanently or very long term basis be converted to permanent posts and work charge posts to that extent should be abolished. The G.R. dated 16.08.1973 reads as under:

"Conversion of work−charged posts Maintenance repairs and Irrigation management under P.W.D. into temporary establishment.
Government of Gujarat, Public Works Department, Resolution EC−WCE− 1272(2)−G, Dated the 16th August, 1973.
Read:− Govt. Resolution P.W.D. No.WCE−1270−G−90/(8)/G. dated 29−12−1971. RESOLUTION:− Under Govt.
Resolution, Public Works Deptt. No.WCE−1270− G−99(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 Page 32 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER posts on work charged establishment in either required permanently or 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 mentioned 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 not, dated 10−7−73 on this Department's file of even number."

[20.2] Therefore, on fair reading of the G.R. dated 16.08.1973 the object and purpose of the G.R. dated 16.08.1973 seems to be to convert various posts of work charged establishment which are either required permanently or very long term basis be converted into temporary posts provided that such work charged posts should have been continuously in existence for a minimum period of 5 years and are required either permanently or on very long term basis say 10 to 15 years. In the present case all the work charged employees have worked for very long term basis i.e. for three decades. Therefore, as such the concerned work charged employees are required to be absorbed in temporary establishment and on conversion and/or absorption into temporary establishment, they shall be entitled to all the benefits which may be available to the employees working in the temporary establishment. At this stage it is required to be noted that as such many departments have already granted such benefits to some of the employees and some work charged employees are converted into temporary establishment as per the G.R. dated 16.08.1973. Therefore, it is held that all those Page 33 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER respective petitioners - work charged employees were / are required to be converted to temporary establishment, but as observed herein above, not automatically on completion of their 5 years of service as work charged employees. Consequently, they shall be entitled to all the benefits which may be available to the employees working on temporary establishment.

[20.3] However, next question which is posed for consideration of this Court is from which date such benefit should be granted to the concerned respective petitioners. At this stage it is required to be noted that as such some of the original petitioners - employees are already granted the benefit of G.R. dated 16.08.1973 before many years and they are converted to temporary establishment long back. However, they are claiming that they ought to have been converted to temporary establishment immediately on completion of 5 years of service as work charged. Some of the work charged employees who are converted to temporary establishment are already granted the benefit flowing from their conversion to temporary establishment. However, according to some of the petitioners they are granted the benefit belatedly and they shall be entitled to the benefits immediately on completion of 5 years of service as work charged as according to them they ought to have been converted to temporary establishment immediately on completion their 5 years of service as work charged. In case of some of the petitioners though they are converted from work charged to temporary establishment, they are not granted the benefit/s on their conversion to temporary establishment more particularly the benefit of higher pay scale on completion of either 9, 18 and 27 years of service on such temporary establishment. It is the case on behalf of the State that as all of them have approached this Page 34 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER Court belatedly, on the ground of delay and laches the learned Single Judge ought not to have entertained the petitions. However, the same cannot be accepted. At the most, as observed by the Hon'ble Supreme Court in the case of Shiv Dass (Supra),the reliefs and/or actual monetary benefits can be restricted to three years preceding filing of the petitions. If such a course is adopted, in that case, the concerned petitioners shall get the benefit of the G.R. dated 16.08.1973 and the benefits which may be available to the temporary establishment employees and they are non−suited on the ground of delay and laches and at the same time the State also may not have to bear the heavy financial burden as it is reported that the financial burden upon the State would be approximately Rs.400 Crores to Rs.500 Crores. Therefore, the relief sought is required to be moulded to strike balance and therefore, we are of the opinion that if the actual monetary benefits are restricted to 3 years preceding the filing of the petition/s, it shall meet the ends of justice.

[21.0] In view of the above and for the reasons stated above, all these Letters Patent Appeals are partly allowed to the extent quashing and setting aside the impugned directions in case of daily wagers and the direction that on completion of their 5 years' service they shall be absorbed in the workcharged establishment and they shall be paid all consequential benefits, is hereby quashed and set aside. However, all those daily wagers shall be entitled to the benefits flowing from the G.R. dated 17.10.1988 and if not paid, they shall be paid such benefits accordingly.

[21.1] So far as the impugned direction/s in respect of Page 35 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER workcharged employees namely all those workcharged employees to be absorbed / converted to temporary establishment on their completion of 5 years' service and they shall be paid the consequential benefits accordingly is hereby quashed and set aside and is modified to the extent and it is held that all those petitioners - workcharged employees who have worked for more than 20 years as workcharged employees shall be entitled to conversion to temporary establishment as per the G.R. dated 16.08.1973 from the date on which they complete 20 years of service as workcharged and they shall be entitled to all the benefits which may be available to the employees working in the temporary establishment, including the benefit of higher pay scale / grade if at all the same is being paid to the employees working in the temporary establishment, however they shall be paid the arrears on such conversion to temporary establishment for the period preceding 3 years of filing of the respective petitions. The arrears shall be calculated and paid within a period of 4 months from today, failing which it shall carry interest at the rate of 9% per annum. It is also directed that in case any of the work charged employee has retired, he shall be paid the retirement benefits as if he was converted to temporary establishment provided such employee has worked for not less than 20 years as workcharged employee and retirement benefits be calculated and paid accordingly, however they shall be paid the arrears for 3 years only. Such exercise also shall be completed within period of four months from today. Present appeals are partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.

Page 36 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020 C/LPA/47/2018 ORDER

9.0. In view of the above, present appeal is also partly allowed on the same reasons as above. The observations and reasons, more particularly as observed in paras 21 and 21.1 of the judgment rendered in Letters Patent Appeal No. 380 of 2016 and other allied appeals would also apply to the present appeal and for the same reasons, the present appeal is partly allowed to the aforesaid extent. However, in facts of this case, such exercise shall be carried out by the appellants latest by 31.3.2021. In facts of this case, there shall be no order as to costs.

In view of the order passed in this appeal, Civil Application (for stay) No.1 of 2020 would not survive and stands disposed of accordingly.

(R.M.CHHAYA, J) (ILESH J. VORA,J) KAUSHIK Page 37 of 37 Downloaded on : Sat Sep 12 02:38:31 IST 2020