Gujarat High Court
Gujarat Mazdoor Sabha vs Valsad Nagar Palika on 2 November, 2018
Equivalent citations: AIRONLINE 2018 GUJ 264
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3062/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3062 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
NO
thereunder ?
==========================================================
GUJARAT MAZDOOR SABHA & 1 Petitioners
Versus
VALSAD NAGAR PALIKA & 3.... Respondents
==========================================================
Appearance:
MR AMRESH N PATEL(2277) for the PETITIONER(s) No. 1,2
MR UTKARSH SHARMA, AGP(1) for the RESPONDENT(s) No. 2,3
MR YOGI K GADHIA(5913) for the RESPONDENT(s) No. 1
MS E.SHAILAJA(2671) for the RESPONDENT(s) No. 4
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/11/2018
CAV JUDGMENT
1 "How does a constitutional court respond to a situation when a human problem of great magnitude frescoed on constitutional Page 1 of 89 C/SCA/3062/2015 CAV JUDGMENT canvas gets painfully projected with intense sincerity, possibly realizing pain is one of the "sovereign masters of mankind"? How is the Court required to react in law when the workmen are forced to grapple with a colossal predicament of sense of belonging due to a situation created making them feel that they are neither here nor there? We consider it as an unbearable tragedy faced by the unfortunate employees warranting serious attention of this Court, for some employees have breathed their last due to starvation, constant stress being unable to meet the keen demands of appetite, and the impecuniosity that hampered them to avail timely treatment, and some families have been unwillingly driven to a state of unmeaningful survival an animal existence sans proper food, sans clothes and sans real shelter."
[See : State of Jharkhand and another vs. Harihar Yadav and others {2014 (2) SCC 114}] 2 I am tempted to preface my judgment with the aforesaid observations of the Supreme Court as I am confronted with almost a similar situation wherein about more than 400 employees' working in the different departments of the Valsad Nagarpalika have complained that they are working as daily wage / temporary employees' past more than twenty five years. It is their complaint that till this date, the authorities concerned have not taken any steps to put them on the regular establishment. It is their case that as a result of such inaction on the part of the Municipal authorities including the State Government, they have been deprived of the benefits which an employee otherwise derives working on the regular basis. It is their case that they were appointed in accordance with the rules and regulations and they have been doing regular work, however, the salary, etc. is being paid treating them as daily wage / temporary employees'.
3 By this writ application under Article 226 of the Constitution of India, the writ applicant, a Trade Union, has prayed for the following Page 2 of 89 C/SCA/3062/2015 CAV JUDGMENT reliefs:
"1 The Hon'ble Court be please to direct the respondent no. 1 & 2 to make permanent workmen as per the approved schedule as regular and permanent and absorb them as permanent workmen from the date of respective vacant post and grant them the benefit of 6th Pay Commission Recommendations and basic pay, DA. and all other allowance as paid to other permanent workmen/employees to the listed employees at Annexure 2 and be further pleased to direct to pay the arrears thereof from the date of vacant post and be further direct to pay interest at the rate of 12% from the date of entitlement.
2. The Petitioner further prays that Respondents No. 1 to 2 be further ,3 directed that remaining workmen who have completed minimum qualifying service of 5 years and or 10 years also be made regular and permanent and Alternatively, Respondents may be directed that all the remaining workmen are paid regular pay scales, basic pay, DA and all other allowance at the minimum of the scale for Class IV and or Class III and basic pay DA and all other allowances from the date they have completed 5/10 years of service as ' per the resolution passed by the Government of Gujarat and as per the law laid down by the Apex court in the case of Umadavi and it is also prayed that these Respondents be further directed to pay the arrears to all these workmen from the date they have completed 5/10 years of service.
3. The Hon'ble court be please to direct the respondent no. 1 to 2 to examine the enhancement of schedule for class 3 and 4 post as per the mandatory provision of Gujarat Municipality Act and Article 243 of 'the ' constitution of India in view of extension of area and as right of civic services being treated as part of constitutional duties and be further please to direct them to make remaining permanent as per the seniority list annex at Annexure 2 and grant all benefits of permanent workmen.
4 The Hon'ble Court be please to direct the respondent No.1 to make unpaid wages/denial of wages of every month of 19 to 28 days (i.e. 7 days) to the workmen listed at Annexure 2 with 12% interest from their respective date of joining as per the statutory provision of Payment of Wages Act and also direct the respondent no.1 to pay then time compensation to all workmen as wages is not being paid deliberated in time and denial is completely unjust unfair and illegal.
5 The Hon'ble court be please to direct the respondent no. 4 to make necessary inquiry as per the provision of Employees Provident Fund Miscellaneous and other provision Act 1952 against Respondent no. 1 for implementation of the benefits as per the scheme to all the employees listed Page 3 of 89 C/SCA/3062/2015 CAV JUDGMENT at Annexure2 and 3 from their respective date of joining and also direct to recover all amount (Share of employer and employees ) payable as per the scheme of the Act from respondent no. 1 with penalty and interest and be further please to direct for taking action against respondent no.1 for committing punishable offence as per EPF Act.
6. The Hon'ble court be please to direct the respondent no. 1 to give 39 days of leave and holidays as per the provision of Gujarat shops and establishment Act 1948 to all the workmen listed at Annexure2.
7, The Hon'ble court be please to direct the respondent no. 3 to take 1 action against respondent no 1 for denial of minimum wages as per Minimum Wages Act. denial of salary despite continues work done for 26 days from their respective date of joining by all workmen violating provision of Payment of Wages Act . denial of weekly off, denial of 39 days of leave and holidays as per the provision of Gujarat shops and establishment Act 1948, denial of status of permanent employees despite sanctioned schedule since decades and thereby committed unfair labour practice as per item 10 of Schedule V which is prohibited by section 25T of the Industrial Disputes Act 1947 and committed punishable offence as per section 25U.
8. All concerned workmen shall be paid by the Respondents No. 1 & 2 ad hoc compensation at the rate of Rs. 5 lacs against their severe exploitation and due to which the workmen and their families have suffered a (5 for years together physically, mentally, socially and economically.
9. The Hon'ble Court may be pleased to award the cost of this petition.
14 INTERIM RELIEF' (1) The petitioner prays this Hon'ble Court to direct the Respondent No. 1 '0 make payment of salary on their respective regular Class III and IV category form January 2015 as per sixth pay alter fixingW basic pay and other allowances be paid regular pay scales and basic pay. DA and all other allowances forthwith and continue to pay the same each and every month.
(2) This Hon'ble Court may be pleased to direct the Respondents No. 2 to take decision / approval immediately as per the sanction schedule to make workmen permanent as per the seniority list Annexed at Annexure.2.
(3) The petitioner prays that all the concerned workmen be paid at least minimum wages as provided under the Minimum Wages Act, 1948 from Page 4 of 89 C/SCA/3062/2015 CAV JUDGMENT 1st January, 2015 and onwards, leave benefits as provided under the Shops & Establishments Act. provide necessary uniform as well as safety equipment immediately and proper deduction of PF contribution be made and deposited from 1st January, 2015.
(4) This Hon'ble Court be pleased to direct the Respondent No. 1 that the workmen listed at Annexure 2 be paid 26 days salary for the month of December 2014 and onwards regularly and their attendance shall also be marked regularly in the attendance card.
4 The case put up by the writ applicant, in its own words, as pleaded in the writ application, is as under:
"1 The petitioner herein files this petition challenging the refusal by the Respondents No. 1 to 4 employers to make the workmen permanent against the sanctioned posts and also refusal to pay minimum wages under the Minimum Wages Act, 1948 and also refusal to grant paid weekly off as well as to grant PL, Casual Leave and Sick Leave as provided under the Bombay Shops & Establishments Act and also deducting and depositing less than prescribed contribution to Provident Fund of the workmen and for refusal to provide other facilities to the workmen. And also, paying wages only for 19 days in spite of the fact that all the workmen have to work for 26/27 days in a month.
2 The petitioner union is a registered trade union under the Trade Unions Act. 1926 and its Registration No. is G 2118, dated 30 th December, 1980 and working for the workmen specifically socially and economically backward workmen's welfare since more than 30 years and majority of the workmen are the members of the petitioner union. Whereas the Petitioner No. 2 and other workmen are working with Respondent No. 1 and also citizen of India and, therefore, are entitled to protection guaranteed under the Constitution of India and Directive Principles of the Constitution of India and other statutes.
3 The petitioners submit that the Respondent No. 1 Nagar Palika had engaged several workmen for carrying out its statutory responsibilities as provided under the Gujarat Municipalities Act, 1963. The Petitioner Union submits that the Respondent No. 1 Nagar Palika had passed a resolution in its General Body Meeting held on 27th January, 2014 by which it was decided that remaining vacant posts against sanctioned posts shall be filled up as early as possible. In the said resolution it was stated that as per the provisions of Nagar Palika is an autonomous institution and as per the 74th Amendment in the Constitution, the Nagar Palika is authorised to Act Page 5 of 89 C/SCA/3062/2015 CAV JUDGMENT independently and competently for fulfilling the purposes of the Act,. It has also been stated in the resolution that as the Municipality is a statutory body as defined in Article 12 of the Constitution of India it has to Act as per the provisions of the law and it to answerable to the public of the Nagar Peitke end they ere answerable to the citizen for essential services to be provided under the law it has also been further stated in the Resolution that Valsad Nagar Palika has come into existence on 30 th May 1855 and there are already sanctioned posts numbering 475 and the details thereof are mentioned in the Resolution which show that there were 475 sanctioned posts in the Nagar Palika. Whereas only 223 posts were filled up in permanent category and remaining 252 posts are still vacant and out of 252 posts vacant. 100 posts are of Class Ill and 141 of Class IV. The petitioner submits that In spite of 252 posts remaining vacant for more than a decade, the Valsad Nagar Palika is not tilting up these posts in spite of the fact that Section 50 of the Nagar Palika Act authorises the Nagar Palika to Fill up the vacant posts when the posts are already sanctioned. In fact Nagar Palika is not exercising the powers vested in it as per Section 50 of the Nagar Palika Act which are as under, and unnecessarily following the procedure to approach Respondent No. 2 Le. Director of Nagar Palika, and thereby not exercising the powers vested in it as well as thereby exploiting the poor Class Ill and IV workmen by not regularizing them and regularizing their services in vacant permanent posts. Section 50 of the Gujarat Nagar Palika Act, 1963 is reproduced herein below:
Section 50: Appointment of other officers and servants of the Municipalities:
(1) A Municipality may with the previous sanction of the Director create such posts of Officer and servants other than those specified in subsection (1) and (2) of Section 47 as itself deem necessary for the purpose of carrying out the duties under the Act.
(2) The recruitment of such officers and servants and conditions of service shall be such as may be determined in accordance with the Rules made under Section 271. The power to make appointment in any post referred to in subsection (1)shall vest in the Municipality or in the Authority empowered by the Municipality by Rules made in this behalf under Section 271.
The petitioner submits that the sanction of the Director of Municipality only required for creation of new posts whereas in the present case there are sanctioned posts and as provided under Subsection (3), the Municipality itself has to fill up the vacancy in permanent posts. In view of this petitioner Union submits that respondent Nagar Palika is unnecessarily and unjustly exploiting the socially and economically backward workmen by not exercising the powers vested in it since decades Page 6 of 89 C/SCA/3062/2015 CAV JUDGMENT together as the employees working since 1986 are not made permanent.
3 The petitioners further submit that in the said Resolution itself it has been stated that when the posts were sanctioned Nagar Paika's total area was 491 and it has a population of 1,15,000 whereas due to the extension of other areas into Nagar Palika, now the total area of the Nagar Palika is 13.98 80Kms., and due to this also the services provided by the Municipality are not satisfactory. The Petitioner Union says that as it has annexed the Resolution, the other facts stated in the Resolution are not stated in this petition, but crave leave to refer and rely upon the Resolution of Respondent No. 1 Nagar Palika which is annexed at Annexure 1.
4 The petitioner further submits that the aforesaid minimum strength mentioned in the Resolution is the minimum strength sanctioned by the Government. It is also pertinent to note that this minimum strength has been decided as per the information available to the petition in the year 1974. Thereafter, as stated herein above, areas of the Respondent Nagar Palika has increased as well as the population has increased and in such circumstances the minimum strength of employees of the Nagar Palika is required to be increased at least more than two times. Whereas in this case, Nagar Palika is not making the employees working since 1986 regular and permanent in vacant posts lying vacant since decades together.
The petitioner further submits that as stated herein above, as provided under Section 50 of the Nagar Palikas Act, once the post is sanctioned it is required to be filled up by Nagar Palika itself and for that matter no separate sanction is required. In support of this submission the petitioner is relying upon the Resolutions of Government of Gujarat dated 22nd January, 2004 and 1st February, 2010. In both these Resolutions, Government has decided minimum strength of the Nagar Palika looking to the class of the Nagar Palika. As per these Resolutions if any Nagar Palika wants to increase the posts after the minimum strength is decided, the same should be sanctioned through Director of Nagar Palikas. In other words, for increasing the strength only further sanction is necessary. Otherwise, to fill up the vacant posts Nagar Palika itself is authorised to fill up the posts. These details show that Respondent No. 1 Nagar Palika unnecessarily and by not exercising the powers vested in it is trying to show that it is trying to obtain the vacant posts after taking the approval of the Director of Nagar Palikas and by such method it has exploited more than 200 workmen for more than two decades by not making regular and permanent against the vacant sanctioned posts.
5. The petitioner further submits that in fact most of the employees Page 7 of 89 C/SCA/3062/2015 CAV JUDGMENT working since more than two decades. The sanctioned posts are also lying vacant since more than two decades. The petitioner further submits that the Respondent Nagar Palika is taking working from all the employees for 26/27 days in each and every month. However, most of the employees/workmen are paid wages only for 19 days. This action of the Nagar Palika is in violation of Minimum Wages Act, 1948. Payment of Wages Act, 1936 as the deduction of wages is made without any proper procedure nor even any notice to the workmen and this is the penalty as defined in the Payment of Wages Act, 1936. Moreover this action of the Nagar Palika is in violation of Section 23 of the Contract Act as well as it is a violation of Article 23 of the Constitution of India and directive principles of the Constitution of India. Even otherwise Nagarpalika has no authority to deny their salary for work done by them, It is submitted that salary which is livelihood of the workmen and denial of the same is denial of right to life which include dignity of the employees. The petitioner further submits that all the employees who have not been made permanent in vacant sanctioned posts the union is submitting details of their department wise their names, seniority status as per their respective date of joining, designation, details of payment made every month and date of deduction of RF. And the list of these employees as per the information available to the Petitioner Union is annex hereto and marked as Annexure 2 to the petition. These employees are also not granted privilege leave, sick leave, casual leave as well as national holidays as provided under the Bombay Shops & Establishment Act.
6. The petitioner union further submits that Respondents are not only doing injustice as aforesaid but also failed to pay them minimum wages as provided under the Minimum Wages Act, 1948. This shows that the Respondent No. 1 & 2 are not paying even the minimum wages to these workmen and they I are subjected to severe exploitation. The petitioner further submits that these workmen are not paid even minimum wages and also not provided uniforms, no rainwear and woolens for the winter and also not provided with safety equipment and due o that they have physically and heathwise and suffered a lot. The petitioner further submits that all these work are made to work all the 26/27 days in a month. But they are paid only 19 days in a month. They are not being provided weekly off and/or paid weekly off as provide under the Minimum wages Act. 1948 as well as Shops and Establishment Act. It is also pertinent to note that In spite of taking work for 26/27 days the are paid only for 19 days in a month. It is also pertinent to note that normally they have been compelled to work for 10 hours and on various occasions they have to work roundtheclock. However. They are not being paid overtime allowance as provided under the Minimum Wages Act 1948. The petitioner further submits that these workmen are not granted any kind of leave like Privilege Leave, Casual Leave and Sick Leave and they are not permitted to avail of National Holidays. Not only that, against these they are not being compensated in terms of overtime allowance or pay. The Page 8 of 89 C/SCA/3062/2015 CAV JUDGMENT petitioner further submits that Section 35 of Shops & Establishments Act. 1948 Chapter VII provides for 21 days Privilege Leave, Casual Leave for 7 days, sick leave for 7 days and 4 days in a year which the State Government may by notification in the official gazette specify as the National and Festival holidays. In spite of such clear cut provisions all the daily paid workmen are not provided any kind of leave and, therefore, Respondents may be directed to pay the overtime allowance at double the daily rate for all these holidays for the entire period starting from their dates of joining and be further direct the Nagar Palika to provide these holidays every year in future. The Respondent No. 1 be further directed to make payment of remaining days i.e. each and every month seven to eight days from the date of joining of each and every workmen as all the workmen have worked almost all the working days in every month i.e. 26/27 days in a month; whereas they have been paid only for 19 days. Therefore, Respondent No. 1 be directed to make good the loss and illegal deduction suffered by these employees with interest at the rate of 12% per annum. The list of employees to whom despite they are working for 26 days, wages are not paid as per the information available with the union is annex as Annexure2.
7. The Petitioner Union further submits that all these employees who have not
7. been made permanent, their provident fund deduction under the Government Provident Fund is not made nor PF deduction under the Employees . Provident Funds Act, 1952 have also not made till February 2011. The My Petitioner Union submits that as provided under Section 16 of Employees of Provident Funds Act, 1952, each and every organisation is required to deduct provident fund contribution of each and every employee from the date of joining except when they are covered by the State Government Employees who are entitled to the benefit of Contributory Provident Fund or Old Age Pension in accordance with any scheme. In other words, all the employees working in State government are entitled to get the benefit of Government Scheme(s). Alternatively, they are entitled to get the benefit under provisions' of Employees Provident Funds Act. 1952; whereas Respondent Nagar Palika has not given the benefit of any of the Scheme(s) till February 2011. In other words, employees have not been granted the benefit of any Scheme(s). either government or Employees Provident Funds Act. 1952, till February 2011. Therefore, the Nagar Palika be directed to give benefit of any of the PF Scheme to all the employees from the dates of their joining and when they are made permanent, if the PF deduction is made under the EPF Act. The same should be transferred to Government PF. The petitioner submits herewith a list of employees whose PF deduction is made from 1st February 2011 under the provisions of EPF Act. However, these employees had joined much earlier, as is evident from their date(s) of joining. Therefore.
Page 9 of 89 C/SCA/3062/2015 CAV JUDGMENTRespondent No. 1 Nagar Palika be directed to deposit both the contributions of these employees under the EPF Act or it be directed to deposit the GPF amount of all the employees with the Government Provident Fund. The list of these employees whose PF deduction has been made with effect from February 2011 is annexed as Annexure 2. The Petitioner Union further submits that there are employees who are working since more than a decade who are not given the benefit of any PF Scheme still today.
8. The petitioner union further submits that due to the aforesaid grave injustice all the daily rated workmen who have not been made permanent had gone on strike from 24th September, 2014. The workmen had withdrawn their strike due to the assurance given by Officials of Respondent No. 1. However, Respondent No. 1 is in the habit of giving assurances but not implementing the power vested in it on one or other pretext in spite of the fact that it has got power to fill up the vacant posts and also to make employees regular and permanent against sanctioned vacant posts, and, therefore the present petition is filed.
9. All the daily rated workmen who are not made permanent are working since more than decades. And, therefore also, the Respondents are required to make them regular and permanent. Even otherwise, these workmen are entitled to receive regular pay scales, pay, dearness allowance and other allowances as per the Resolution passed by Government of Gujarat to the effect that workmen who have completed 5 years of service are entitled to receive minimum of their regular pay scales. DA and other allowances from the date the concerned workmen completed five years of service. In view of this. The Petitioner Union prays that Respondent No. 1 to 2 may please be directed to make all the daily rated workmen listed at Annexure 2 as regular and permanent and also to pay them the regular pay scales, basic pay. DA and all other allowances. Even otherwise all the workmen listed at Annexure2 are doing the same work with same responsibilities of permanent workmen after completion of regular recruitment process. However equal pay for equal work is denied to them which is completely against the law laid down by the Apex Court in case of Umadevi. Beside this all this workmen have also completed ten years of service and therefore they also entitled for benefits as per the direction of Para 53 of the Umadevi's judgment.
10. The Petitioner Union further submits that it has written a letter dated 1st 2015 to the Labour Commissioner, State of Gujarat, Dy. Commissioner of Labour, Surat, Vapi ,Assistant Commissioner of Labour, Valsad and Government Labour Officer, Valsad, for taking appropriate action against the Respondent No. 1 Nagar Palika for violation of Section 25T and U of the Industrial Disputes Act, 1947, provisions of Payment of Wages Act, 1936, Gratuity Act and Employees Provident Fund Act, Page 10 of 89 C/SCA/3062/2015 CAV JUDGMENT 1952.The petitioner further submits that no action is taken by any of these labour authorities on the complaint made by the Petitioner Union. The Petitioner Union further submits that it has also written a letter dated 8th January, 2015 to the Chief Officer, Valsad Nagar Palika, Valsad, i.e. Respondent No. 1 and thereby protesting against unnecessary delay caused in filling up the vacant sanctioned posts and thereby exploiting the employees of the Nagar Palika. The Petitioner Union had also objected to the deduction of wages of each and every employee for seven to eight days in each and every month. The Petitioner Union had also raised the issue of implementation of Employees Provident Funds Act, 1952 and Equal Pay for Equal Work. The Petitioner Union also sent a letter dated 8 th January 2015 to the Director of Municipalities, Gandhinagar, which makes all the issues clear.
11. The Petitioner Union submit that Chief Officer, Valsad Nagar Palika, vide its letter dated 6th January, 2015 has informed the Petitioner Union that as far as the filling up the sanctioned vacant posts is concerned, it has submitted a letter dated 23rd August, 2014 with the recommendation of the Collector. Valsad, vide his letter dated 26th August, 2014 to Director of Nagar Palikas and after getting sanction it will fill up the vacant posts. The Petitioner Union submits that as stated herein above, in fact, for filling up the already sanctioned vacant posts, no approval or permission of the Director, Nagar Palikas, is necessary, and without prejudice to this submission, the Petitioner Union says that the proposal of Respondent No. 1 Nagar Palika is pending for the last more than four months with Respondent No. 2, Le. Director of Nagar Palikas and in these circumstances it is prayed to this Hon'bie Court that necessary direction be issued to Respondent No. 2 to 4 to sanction filling up of the posts, which are already sanctioned earlier and that too before more than a decade or so. The Petitioner Union has submitted a letter dated 29th December, 2014 to Chief Officer, Valsad Nagar Palika, Respondent No. 1 specifically stating that Nagar Palika has the powers to fill up the posts by itself and no permission or approval is necessary and under this pretext nearly 200 workmen are not made permanent for more than a decade or so. The petitioner submit that vide resolution dated 27/01/2014 respondent no. 1 Nagarpalika he already passed resolution to make existing employees permanent existing sanction post and therefore denial of benefits by the Nagarpalika completely unjust, unfair arbitrary and against the provisions of Gujarat Municipalities Act."
5 The grounds raised in the writ application are as under:
"A. The petitioner Union submits that the respondent No.2 had already Page 11 of 89 C/SCA/3062/2015 CAV JUDGMENT sanctioned the minimum sanctioned strength for Prantij Nagar Palika vide order dated 18th August 2010 in which there are total 35 sanctioned posts which have remained vacant since 18th August 2010 i.e. for more than 4 years. The petitioner Union and concerned workmen had made several representations but it has not yielded any results whatsover. This action of refusal on the part of respondent NO.1 is clearly in violation of Article 14, 16, 19 and 21 of the Constitution of India and Directive Principles of Constitution of India and against the mandatory provision of Gujarat Municipalities Act. This petitioner further submits that the interviews of most of the concerned workmen who were required to be made permanent were conducted by respondent on 28th January 2014. In spite of taking the interviews also these workmen have not been made permanent and their exploitation continues unabated.
B. The Petitioner further submits that in spite of workmen having completed minimum period of 9 years and upto 30 years of service. they have not been made permanent and also not paid to them the regular pay scales after the completion of 5 years of service is against the Government Regulation and also amount to unfair practice as prohibited in Schedule V of the Industrial Disputes Act, 1947. This action of the Respondents are in violation of Article 14, 16 and 21 of the Constitution of India and Directive Principles of Constitution of India of the Constitution of 1 India and also a punishable offence as provided in the industrial Disputes Act, 1947. Even otherwise denial of regularization who have completed ten years of service in the Nagarplaika is completely against the judgment and ratio and direction issued by the Apex Court in the case of Umadavi and more particularly Para 53 of the judgment. Thus action of the respondent no. 1 and 2 on all count is completely against the law.
C. The petitioner further submits that almost all the workmen beiong to scheduled casts and according to the policy and as provided in our Constitution they shall be provided with all the protection of law and all the guarantees provided under the Constitution of India and in particular, they should be provided the protection of Article 14, 16, 21 of the Constitution of India and Directive Principles of Constitution of india ot the Constitution of India.
D. The petitioner further submits that as stated herein above, the minimum wages provided under the Minimum Wages Act, 1948 is Rs. 222 per day whereas some of the workmen are not paid even 50% of the minimum wages as provided under the Minimum Wages Act, 1948. All the concerned workmen are paid less than prescribed wages under the Minimum Wages Act, 1948. The Hon'ble Supreme Court has held that paying less than minimum wages is in violation of Article 23 of the Constitution of India and the workmen shall be called as 'forced labour' or 'bonded labour'. In view of this also the interference of this Hon'ble Court Page 12 of 89 C/SCA/3062/2015 CAV JUDGMENT is absolutely necessary.
E. The Petitioner Union further submits that these workmen are not provided with uniforms and safety equipment nor rainwear or winter uniform and due to this they are physically suffering a lot and they fall sick frequently. Therefore also all these workmen are required to be compensated in terms of heavy compensation. The Petitioner Union further submits that, as submitted herein above, as provided under the Shops & Establishments Act, 1948, each workmen are entitled to get 21 days privilege leave, 7 casual leave, 7 These workmen are sick leave and 4 national and festival holidays. compelled to work on all the thirty days and paid only for 29 days and they are not provided weekly day off nor no leave is provided under the Shops & Establishments Act. The workmen are also compelled on almost all days for 10 hours a day and also sometimes asked to work roundtheclock. In spite of this, these workmen have never paid overtime for extra work or working on . weekly off days nor paid compensation for all types of leave. Therefore also this action of Respondents are against the provision of Shops & Establishments Act, Minimum Wages Act, 1948 and in particular Article 14, 16 and 21 of the Constitution of India and Directive Principles of Constitution of India of the Constitution of India.
F. The Petitioner Union submits that as submitted herein above there is 'no proper provident deduction from the workmen' wages well as no employer's share has been deposited with provident fund authorities. In view of this, Respondent No.1 Nagar Paiika violated the provisions of Employees Provident Funds Act 1952 and, therefore, the Provident Fund Commissioner be directed to enforce provisions of Employee Provident Funds Act, 1952 with retrospective effect.
G. The petitioner submits that all the workmen have worked for 26 days and even on the days of weekly off, however wages/ salary is only paid for 19 days instead of 26/30 days to the workmen, which is completely against the mandatory provisions of Minimum Wages Act, Payment of Wages Act and such denial is denial of their lively hood and therefore also it is completely against Articles 14, 21 and 23 of the Constitution.
6 The writ applicant has filed his written submissions. The written submissions are as under:
"1 The above captioned petition is filed by the union for various relief and in the petition mainly it is prayed that the temporary/ daily rated Page 13 of 89 C/SCA/3062/2015 CAV JUDGMENT workmen of class3 and class4 category who were recruited after due procedure of law to be treated as. permanent and on their services should be regularise by the respondent no. 1, which is historically oldest nagarpalika of the state of Gujarat and they have permanent setup since decades. [ See Prayer at Page No. 13 and Para No13 (1) and 13(2) in the petition). Historically the daily rated /temporary workmen employed by the respondent no. 1 recruitment and appointments were made against the sanctioned setup and as per the Recruitment Rules. The details of sanctioned setup is produce by the Respondent no. 1 Nagarpalika as AnnexureR3 on Page No. 236. As per the details produce by the respondent No. 1 Nagarpaiika the total sanctioned setup in 1990 of Nagarpalika was 474, out of this 20% post were reduced as per the directive of the government and therefore same has reached to 390. Out of 390 sanctioned post as on 15/12/2016, 200 post in the sanctioned set up is vacant. (See Page No. 236 to 238 ) All the appointment as daily rated workmen prior to 15/12/2016 is made against the permanent need/ setup of the workmen considering their qualification and age limit as per the Recruitment Rules duly approved by the Director Municipality by the letter no. RLHValsad 1703 Dated 8/11/1985. Copy of the Recruitment rules is produced at Page No. ......... as Annexure. Copy of the same is Annex as Annexure. 1 Thus the day on which the concerned workmen of the petition were appointed and or joined in the Nagarpalika they were qualified to be appointed as permanent workmen in the sanctioned setup in the respective category of the Nagarpalika. Since years the workmen who were appointed as daily wager/ temporary workmen by the Respondent no. 1 Nagarpalika were made permanent as and when person had retired and post had became vacant. However, whenever the respondent no. 1 has refused permanency workmen had raised industrial Disputes and same were considered by the ld. industrial Tribunal and by an award permanency was awarded and same were implemented by the respondent no. 1.
It is not in dispute that the concerned workmen of the petition are working since decades and they have been deliberately denied rights of permanency without any reasons. It is also undisputed fact that since years the sanctioned setup is not filled and with a view to deprive rights of permanency, the workmen were continued as Daily wager/ temporary which is specifically prohibited unfair labour practise as per item No. 10 of ScheduleV of the Industrial Disputes Act.
After Filing of the petition and after the intervention of this Court the Respondent No. 1 has moved Director of Municipality the Respondent No. 2 herein for permitting 105 post recruitment as per the above referred Ruin! Ind in turn the director municipality has gave permission fer recruitment as per the existing rules vide its order No. 1292 dated 23/02/2016. As per this order of director municipality, following procedure is held and appointment orders are issued.Page 14 of 89 C/SCA/3062/2015 CAV JUDGMENT
(A) Page No. 242 and 243 of the petition the 39 post of Zaduvala Safai Kamar and 41 post of Harijan Valmiki Safai kamdar in the Class 4 category were advertise and they were appointed in the month of 16/07/2016 and 27/12/2016 respectively.
(B) Page No. 244 of the petition, the 13 post of class 3 consisting of 1, record clerk, 1, record kipper, 1 cashier, S clerk, 1 sanitary Inspector, 3 mukadam, 1 fitter were advertise as per the 1985 rules. out of 13 post 6 clerical post, 1 sanitary inspector , 3, mukadam were appointed amongst the daily wager/ temporary workmen employed by the nagarpalika in the Class3 category without any further procedure and only based on their present qualification and age considering 1985 recruitment rules. Through 13 post were advertise and 2 clerk and 1 fitter participated in the recruitment and through they are qualified and working with the respondent no. 1 Nagarplika, still 2 clerk and 1 fitter no appointment orders are issued. Subsequent to the recruitment the appointment orders in the clerical category were issued on 17/07/2017.
(C) 5 posts of peon out of 105 post , the direct appointment orders on 17/07/2017 were issued by the Respondent No. 1 Nagarpalika amongst the senior most workmen working as daily rated peon/ temporary peon.
Thus, out of 390 sanctioned post, permission to filled up 105 post by the director municipality 80 post of safai kamdar, 6 post in clerical category, 3 post of mukadam, 1 post of sanitary inspector, 5 post of peon is filled and appointment orders are issued. Still 2 post of clerk and 1 post of fitter order of appointment is not issued without any reasons and therefore the petitioner pray that the Hon'ble court be please to direct the respondent no. 1 nagarpalika to issue appointment orders to the selected candidates. Name of selected workmen are mentioned on Page no. 507 in the further affidavit filed on 2/08/2017.
(D) So far as 7 post of cleaner mentioned at Page No. 240 in class4 category out of 105 post, through the same is permitted by the director municipality on the basis of out sourcing and the contention is raised in the affidavit filed on behalf of the director municipality in para no. 5 that as per Government Resolution dated 1/04/2010 this post will have to filled as per policy which is being applied across the whole state and same is applied to all municipality. In this regard the aforesaid resolution can not apply to the present sanctioned setup which exist even before the Government resolution came in to force. The Government resolution cannot have retrospective application and therefore the petitioner pray that the Hon'ble court be please to clarify that this resolution dated Page 15 of 89 C/SCA/3062/2015 CAV JUDGMENT 1/4/2010 will not apply to sanctioned setup which exist since 1983 and 7 post of cleaner which exist before the resolution shall be filled by the regular recruitment process.
(E) In the affidavit it is stated on behalf of the director municipality in Para No. 3 and 4 that the new recruitment and promotion rules for the recruitment of different post in the respondent no. 1 is sanctioned on 29/09/2017 and therefore the respondent no. 1 nagarpalika can carry out further process of recruitment of vacant post as per aforesaid development in addition with other applicable law. It is also stated that the respondent no. 1 nagarpalika vide its communication dated 6/10/2017 has made fresh proposal for 69 post to be filled up and said proposal would be responded at the earliest. (See Para 4 & 5 of the affidavit of deputy director dated 9/10/2017. In this regard the petitioner union would like to submit as under:
(a) The total post shown as 69 is not correct and in fact the total vacant post is around 105. The respondent No.1 Nagarpalika at page No.236 shown 200 post as vacant post as on 15/12/2006, out of which 105 is permitted by the earlier order of Director municipality dated 23/2/2016.
Page 239 of the petition.
(b) The workmen who are working on this post, as daily wager / temporary workmen since decades and are fulfilling the eligibility criteria i.e. 1 Educational qualification, 2 Age at the time of their initial appointment as per the 1985 rules and are appointed on the sanctioned set up of 1990 are eligible to be appointed and or their services are required to be regularise and or to be made permanent as per the 1985 rules.
In this regard the petitioner would crave leave to reply upon the judgment of Apex Court in the case of Bhagwati Prasad v/s Delhi Mineral Development Corporation reported in 1990 1 SCC page no.361. Para no.6 wherein while considering the case of Regulation and confirmation of services of the workmen, the Supreme Court has held that:
"The initial minimum educational qualification prescribed for the different post is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them confirmation in the respective posts on the ground that they lack the prescribed educational qualification. In our view three years experience, ignoring artificial break in service for short period/ periods created by the respondent , in the circumstances , would be sufficient for confirmation. "Page 16 of 89 C/SCA/3062/2015 CAV JUDGMENT
In the recent Judgment of the Apex Court in the Case of Director , Printing And Stationery Department V/s Motilal Reported in 2014 11 SCC Page No. 470 wherein the workmen were appointed as daily wager in GroupD post and they were eligible as per the old rules of 1985, however in the new Rules of 2001 qualification was enhanced and therefore they were held ineligible to be consider for regularisation. The Supreme Court considering the facts and circumstances held that workmen working since years and'at the time of their initial appointment they Were eligible to be consider fit for the post . and therefore the subsequent change in the rules cannot take away the rights of the GroupD employees to get regularisation.
Considering the above two judgment of the Apex Court and Considering the facts of the present petition and also considering the facts that for 105 post the recruitment is held as per 1985 rules as per the approval of the director municipality and also considering the facts that at the time of initial recruitment of the workmen as daily wager/ temporary they were having qualification as per the rules prevailing and considering the equity and considering the tenure of service the concerned workmen has worked, the Hon'ble court be please to direct the Director Municipality that t while considering to accord or grant permission to fill up all vacant post out of 390 which exist on or before 1990 to the respondent no. 1 Nagarplaika to Consider the age and qualification of the all Daily rated workmen as per the 1985 rules for considering their case for eligibility and appointment.
(F) without prejudice to above the petitioner submits that this is the case wherein the ratio laid down by the Apex Court for giving regularisation/permanency in the following Judgment needs consideration by this court.
1. Secretary , State of Karnataka V/s Umadevi. Reported in 2004 7 SCC Page No. 1 Para. 53. Those who have completed 10 years service in the state and or instrumentality the state service completed 10 years consider such cases, court.
2. While considering the cases of regularisation and permanency , the ratio laid down on unfair labour practise of Schedule V item 10 of the Industrial Disputes Act need consideration by this Court specially when the concerned workmen are working on sanctioned setup and are qualified as per the rules of 1985 approved by the director municipalitv and since years the respondent no. 1 has deliberately denied right of permanency despite of the Page 17 of 89 C/SCA/3062/2015 CAV JUDGMENT fact that sanctioned setup was vacant for years.
(a) Umrala Gram panchayat reported in 2015 12 SCC Page No. 77S. Relevant Para. 10,11,12,13,17, 19 20. in this Judgment after completion 5 years workmen is entitled permanency and denial of permanency though working on permanent setup IS clear case of unfair labour practise. when the employer engage with unfair labour practise the ratio of Umadevi will not apply.
(b) Tamilnadu Terminated Full Time Temporary LIC Employees Union 2015 9 SCC Page No. 62, while considering the case of daily rated and temporary workmen against the permanent Post doing perennial nature of work and continuing them as such for number of years was held clear case of unfair labour practise. See Para 48 and 48.
(c) ONGC V/s Petroleum Coal Labour Union Reported in 2015 6 SCC Page No. 494 while considering the case of temporary security guard as such working for years yet right of permanency was denied was held to an act of prohibited unfair labour practise. in this case the court has consider the fact that lack of pleadings either before lndustriat Tribunal and or High Court does not bar the court to consider the case of unfair labour practise based on the conduct and glaring facts of the case.
(d) Sudarshan Rajpoot V/s UPSRTC reported in 2015 2 SCC Page 317 while considering the case of contract driver working for 3 years through his work was of permanent nature and with a view to deny the rights of permanency the contract system was adopted was held to be an act of unfair labour practise.
3. Third issue which has been raised in the affidavit of Deputy Director municipality is in respect of giving sanction and or approval of enhance schedule of post due to increase of Abrama and Mogravadi in the respondent no. 1 by the Urban Housing and Urban Development Department of the State is concerned, the petitioner submits that the department may be directed to complete procedure to enhance the schedule within a period of one month or the" Hon'ble court deem fit in the interest of justice so that the workmen who are working since years can be granted benefits against this post.
The Hon'bte Court be please to consider above aspect and give appropriate direction so that rights of the petitioner and concerned workmen may not be jeoparsize."
Page 18 of 89 C/SCA/3062/2015 CAV JUDGMENT7 Mr. Patel, in support of his submissions, has placed reliance on the following decisions:
(1) Bhagwati Prasad vs. Delhi State Mineral Development Corporation [(1990) 1 SCC 361] (2) Amritlal Gupta vs. Budhwanti [(1990) 1 SCC 365] (3) Director, Printing and Stationery Department, Uttar Pradesh, Government Press and others vs. Moti Lal and others [(2014) 11 SCC 470] (4) Umrala Gram Panchayat vs. Secretary, Municipal, Employees Union and others [(2015) 12 SCC 775] (5) Tamil Nadu Terminated Full Time Temporary LIC Employees Association vs. Life Insurance Corporation of India and others [(2015) 9 SCC 62] (7) Oil and Natural Gas Corporation Limited vs. Petroleum Coal Labour Union and others [(2015) 6 SCC 494] (8) Sudarshan Rajpoot vs. Uttar Pradesh State Road Transport Corporation [(2015) 2 SCC 317]
8 On 2nd August 2017, one further affidavit came to be filed on behalf of the writ applicant inter alia stating as under:
"I say that present affidavit is filed only with a view to show actual position of the employees who are working on sanctioned set up of 178 sanction post for which the respondent Nagarpalika has requested Director Page 19 of 89 C/SCA/3062/2015 CAV JUDGMENT Municipality to allow recruitment of employees, the Director Municipality initially has allowed recruitment of 105 post. I say that out of 105 post 95 post are filled up and 10 post are yet to be filled up i.e. 1) 2 post of clerk
2) 1 fitter and 3) 7 cleaner. I say that for 13 post, advertisement was published and recruitment was held and 10 employees are appointed in the category i.e. 1.) 1 sanitary subinspector, 2) 6 clerk 3.) 3 Mukadam. I say that out of 13 post advertise by the respondent Nagarpalia, 1 post of fitter and 2 post of clerk is still vacant and respondent Nagarpalika has not given any order of appointment despite of the fact that on this post concern employees of the present petition are working since more than one decade. I say that on this 3 vacant post, on the post of fitter Shri Jitendra Babubhai Patel is working from 172000 and on the post of clerk Smt. Bhavnaben N. Mistry and Shri Hiren C. Patel is working from 141999 and 1322002 respectively in the respondent Nagarpalika. Thus out of 105 post 10 post are still vacant and no appointment orders are given despite of the fact that concern employees are working on sanctioned setup.
2 Besides this out of 178 post 83 post are still vacant and against that sanctioned setup of 83 post, presently concerned employees of the present petition are working and almost majority of them are working more than 10 years. Copy of the details showing respective post and employees name, designation, department, date of joining and completion of years of service is annexed hereto and marked as ANNEXURE - R/12."
● SUBMISSIONS ON BEHALF OF THE NAGARPALIKA: 9 Mr. Yogi K. Gadhia, the learned counsel appearing for the Valsad
Nagarpalika has also filed his written submissions, which are as under:
"3 The present respondent had initially filed its affidavit in reply (pg.
76) inter alia denying the allegations and contentions raised in the petition. A specific contention regarding the maintainability of the petition has been raised and it is further stated that as per the settled legal position, the petitioner has an alternative remedy available to it under the ID act. It is further submitted that the contentions raised in the petition are highly disputed question of facts and therefore, the same cannot be dealt with in the present direct petition under Article 226 of the Constitution of India. It is further stated that prayers sought for can only be decided by the fact finding authority under the ID act after leading evidences and perusing the documentary evidences on record. Moreover it was also stated in the said reply that any order granting regularization without following due procedure of law will amount to back door entry and therefore such order cannot be passed especially when the Gujarat Municipalities Act provides for a specific procedure to be followed in case of regular appointment. It is further stated in the same reply that admittedly Page 20 of 89 C/SCA/3062/2015 CAV JUDGMENT the said persons have not been appointed alter following the due process of law therefore they cannot be granted the relief as prayed for in a direct petition. It is also further stated in the said reply that the NagarPalika has to maintain and regulate the overall expenditure and the same cannot go beyond the particular percentage. In case the expenditure goes beyond that percentage, then the regular employees who have been appointed after following due process would have to be reverted to a lower pay commission for no fault on their part. The respondent has also relied upon certain judgments wherein it is held that such a relief cannot be granted to daily rated workmen who have accepted their initial appointment with open eyes. On these grounds, the present respondent has prayed for rejection of the petition.
4 The present respondent has filed further affidavit (Pg. 90) and contended that the sanctioned set up of the Nagarpalika is 390 employees (after 20% deduction) (pg. 236) while the petition is filed seeking regularization of 46 employees. At the relevant time out of 390, 190 posts were already filled up and 200 posts were vacant. The Nagarpalika had as per the procedure submitted a proposal for filling up 178 posts to the Director of Municipalities through the collector. Accordingly, permission was granted to fill up 105 posts vide order dtd 23/02/2016 (pg. 239). It was also explained that the Act provides for a particular procedure whereby permission is to be sought for filling up the post by the Nagarpalika. The said proposal is to be sent to the collector who on perusal of the same and after giving necessary recommendation forwards it to the Director, Municipalities. The Director also examined various aspects including reasonableness of the proposal, financial capacity of the Nagarpalika etc. and then grants permission subject to conditions as may be deemed fit. It was further stated that pursuant to the permission granted by the Director, an advertisement was given for filling up of posts of safai kamdars and harijan safai kamdars and after the due process, regular appointments have been made by the Nagarpalika. It may also further be noted that age relaxation was given to the daily wagers who are concerned persons in the present petition and they were also given appointment. It is further stated in the said affidavit that the concerned persons have created nuisance and unrest more than once and they went on an illegal strike in the year 2014. Subsequently during the pending present petition also they went on an indefinite strike from 22/02/2016. They also threatened the other employees who have not joined their illegal cause and brought the entire administration to a halt. The present respondent had to seek intervention of the police authorities as well as labour authorities to control the situation and also had to take help of the government agencies to run the administration. The relevant documents to that effect are produced vide Annexure R1 (pg 103 to 162). It is also submitted that the petitioner did not approach this Hon'ble Court with clean hands and suppressed the material facts as the very same set of Page 21 of 89 C/SCA/3062/2015 CAV JUDGMENT workers had preferred various Reference cases before Industrial Tribunal, Surat seeking the same relief. The documentary evidence to that effect are produced vide Annexure R2 (pg. 163 to 235). It is submitted that as stated herein above, the workers have an alternative remedy available to them and as can be seen from Annexure R2, they have already availed the alternative remedy and therefore the present petition as such does not survive. The number of workers involved in all the other cases put together comes to 362. It is further stated in the said affidavit that the Nagarpalika is under a debt of Rs. 56 crores and if an order of regularization is passed the same will create a disastrous situation (Annexure R6). On the above grounds as well as settled legal position, it was prayed for rejection of present petition.
5 The petitioner has filed the Affidavitinrejoinder (pg. 249) and has stated that the concerned persons should be given permanent status in light of permission granted for filling up 105 posts by the Director municipalities. They have also submitted various lists prepared by them without any documentary proofs to substantiate the veracity of the said lists. They ave also sought for enhancement of sanctioned set up in light of inclusion of new areas in the municipalities namely Abrama and Mogarwadi. They have also produced on record recruitment rules of Dholka Nagarpalika which as such are not relevant in the present case. They have tried to justify their illegal strike which was prohibited by the appropriate government (pg. 161). They have also sought for bypassing the procedure of regular recruitment by regularizing the concerned workers which would be against the provisions of the Constitution of India. They have candidly admitted that the reference cases are filed (pg, 258 bottom) and therefore on this ground alone the present petition is required to be dismissed. The present respondent does not admit any of the annexure produced by the petitioner in the present petition.
6 The Director of Municipalities has filed their affidavit in reply(pg. 353 to 357) wherein also categorically it is stated that the petitioner has tried to bypass the remedies available to it. It is further stated that as per sec. 49 and sec. 50 of the Municipalities Act, prior permission of the Director municipalities is mandatorily required for filling up of vacant posts and the permission is granted only after considering host of factors including relevant policies from time to time. In light of the above the Director, Municipalities has prayed for rejection of the petition.
7 The petitioner has vide documentary list produced various orders, rules, resolutions, etc. on record (pg. 353 onwards). The first award produced i.e. Ref. (LCVD) No. 02/97 is an exparte award and therefore the same solutions etc. on record (pg. 353 onwards). The first Award produced cannot be applied. Secondly, the order passed in SCA No. Page 22 of 89 C/SCA/3062/2015 CAV JUDGMENT 7727/13 is also based on settlement. The order passed in SCA No. 6945/99 is not related to the present Nagarpalika and the facts of the said case were totally different. Therefore also the said case is not applicable. Similarly the order passed in SCA No. 23834/07 is also based on an understanding between the parties. The recruitment rules of Vapi Nagarpalika, order of Director Municipalities etc have nothing to do with present case especially when the present Nagarpalika has its own set of Rules. Similarly the order passed in SCA No. 10751/ 15 is related to a particular person where also the petitions are dismissed by the Hon'ble High Court. Lastly, the Award passed in Ref.( 1T) No. 658/92 cannot be applied in the present case considering the fact that there has been a sea change in the settled position in law since 1984 i.e. the date of award and also because the workers approached the authority under the ID act first and not approached this Hon'ble Court directly. Therefore the entire set of documents is not helpful to the petitioner.
8 The present respondent has again filed an affidavit dtd 06/06/2016 (pg. 420) inter alia stating that out of 390 posts, 197 posts are vacant as on 01/04/2016. It is further stated that 80 posts have been filled up as per the order/permission granted by the Director Municipalities. It is pertinent to note that all the eligible employees of the present petition i.e. 64 persons have been given appointment (pg. 423). Subsequently the Nagarpalika has moved another proposal (pg. 426) for filling up of 69 vacant posts out of 92 vacant posts (197105). Similarly a proposal for enhancement of the sanctioned set up is also sent (pg. 428).
9 The petitioner has then given a further affidavit (pg. 432) inter alia stating that various sanctioned posts are vacant and no action is taken. It is further stated that the employees recruited are not paid as per 6th pay commission. Pursuant to the same the Hon'ble Court has passed the order dtd 22/09/2016. 11' the document at pg. 434 is perused, then it will be clear that the proposal for filling up 69 posts dtd 02/06/2016 was not considered and a letter was issued inter alia directing Nagarpalika to amend the Recruitment Rules.
10 The present respondent pursuant to the developments, filed another affidavit (pg. 478) inter alia stating that they had sent a proposal for enhancement of set up by 185 posts of the Nagarpalika to the Director Municipalities, who in turn sought for clarification as well as reasonableness of the number of posts sought for. Accordingly, on 02/03/2017 the Nagarpalika sent the reply (pg. 482) and sought enhancement for 97 posts. It is further stated in the said affidavit that the amended draft Recruitment Rules have been sent to the Collector on 02/03/2017( pg. 499). The Hon'ble Court had on 19/01/2017 passed an oral order and directed the Nagarpalika to explore the possibility of regularization in light of decision of the Hon'ble Supreme Court in case of Page 23 of 89 C/SCA/3062/2015 CAV JUDGMENT Umadevi. The reply to the same has been given in para 4 of the aforesaid affidavit in reply.
11 The petitioner has then again given a further affidavit (pg. 506) and stated that 1 post of fitter, 2 posts of clerk and 10 other posts are vacant. It is further stated that out of the other 83 vacant posts, most of the concerned persons of the petition are working on the said post and have given a chart showing their details. The present respondent denies the authenticity of the details mentioned in the chart and puts the petitioner to the strict proof thereof.
12 The petitioner has again filed an affidavit (pg. 511) inter alia stating that some posts in fire brigade department are vacant and that the Recruitment thereof should be made by old Recruitment Rules. In this regard the Hon'ble Court may be kind enough to note that as per the directions of the Director Municipalities Recruitment process is to be carried out and the proposal or filling up the vacant 69 posts was not acceded to and the Nagarpalika was directed to amend the Recruitment Rules first (pg. 434).
13 The respondent No. 2 i.e. Director Municipalities has filed another affidavit (pg. 523) inter alia stating that a letter has been sent on 06/09/2017 for amendment of Recruitment Rules and the order sanctioning the Recruitment Rules proposed by the Nagarpalika is also sent on 31/09/2017. It is further stated in the said reply that permission granting of Recruitment to 69 posts will be sent shortly. It is further stated that as far as enhancement of set up is concerned, the same will take some time. It is lastly stated that as far as post to be filled up by outsourcing is to be concerned, the same cannot be done away with as it is as per the GR. dtd 01/04/2010 passed by the GAD which is uniformly applicable to all the respective Municipalities.
14 Lastly the respondent No. 4 Le. EPFO has filed its affidavit in reply inter alia stating that the EFF and MP act has been made applicable to the Municipalities vide Notification dtd 08/01/2011 and accordingly the present Nagarpalika is also covered under the act w.e.f. 08/01/201 1 (pg.
558). It is further stated that an inquiry under sec. 7A of the EFF and MP Act has been initiated in order to assess the dues if any and lastly it is requested to reject the petition.
Thus, above records and proceedings have taken place in the present petition till today and the matter is now posted on 09/02/2018 by the Hon'ble Court for giving final written submissions by the parties concerned.
Page 24 of 89 C/SCA/3062/2015 CAV JUDGMENT15 From the above record and proceedings it can be transpired that various developments have taken place during the pendency of the petition. Certain undisputed facts are that after 20% deduction, the total sanctioned set up of the Nagarpalika is 390 employees (Pg. 236 238). Out of the said 390 posts 250 posts are filled up as on today and remaining 140 posts are vacant. The proposal for filling up of vacant 69 posts is pending before the Director Municipalities. Moreover, the Recruitment Rules of the Nagarpalika have been amended. Thirdly, the proposal for enhancement of set up due to inclusion of Abrama and Mogarvadi Municipal borough is pending before the Urban Development and Urban Housing Department. 80 posts of safai kamdars and harijan safai kamdars have been filled up as per the permission granted by the Director Municipalities. Other 15 posts have been filled up as per the permission granted (pg. 239 241). The said permission also granted for subject to certain terms and conditions and recruitment is required to be done only accordingly and not in a straight jacket manner as prayed for by the petitioner. As is clear from the first affidavit of the Director Municipality, no recruitment can be done unless a permission is granted by the Director (pg. 356). As far as filling up of posts for 7 cleaners, 2 clerks and l fitter are concerned, qua 7 cleaners, a proposal is already prepared to be sent to the Agency authorized for providing the manpower as the same is to be filled up by outsourcing. As far as 2 clerks are concerned, the Nagarpalika has already done the exercise and will be conducting the appointment process as soon as the model code of conduct is lifted which will be probably on 20/02/2018. As far as the grievance of the petitioner regarding fireman is concerned, the same will be taken care of once the permission is granted for filling up of 69 posts and the set is enhanced. As far as grievance of the petitioner regarding alleged short payment of PF dues is concerned, the same is as such mis founded and even otherwise the Act is itself was not applicable prior to 08/01/2011 as can be inferred from the affidavit in reply filed by the respondent No. 4 (pg. 546). Moreover. An inquiry under the said act is also initiated to assess the dues, if any and therefore also the said prayer at paral3 (5) does not survive anymore. The petitioner further submits that if an order is passed granting the relief as claimed for then the same will not only against the provisions of the Municipalities Act but will also be violative of the articles 14,16 and 19 of constitution of India. It is submitted that the Nagarpalika will also be so financially over burdened, that it will not able to survive in any circumstance. Moreover this will also create a problem for the regular employees who will have to be reverted to lesser pay scale if the overall expenditure goes beyond 48%. Therefore also the relief sought for cannot be granted.
16 The present respondent humbly submits that the main prayer of the petitioner is related to regularization of the concerned workers which are Page 25 of 89 C/SCA/3062/2015 CAV JUDGMENT 446 in number. Now as stated above, the sanctioned set up of the Nagarpalika is 390 posts after 20% deduction. At present 250 posts are filled up and 140 are vacant. Secondly, the Nagarpalika has to take into consideration the expenditure which cannot go beyond 48%. Moreover, the Nagarpalika can fill up the vacant posts only after getting permission from the Director Municipalities and that too has to be done subject to conditions as may be laid down as well as the Government Norms and Rules as well as policies in place. For enhancement of set up also various Norms are in place which would determine on whether the same can be done or not. Such application is also pending before the competent authority. Moreover, it can be inferred that the concerned persons are not working 11 vacant sanctioned set up as alleged. Therefore, on this ground alone, the present petition is required to be dismissed. The answering respondent submits that the present petition under Article 226 of the Constitution of India is not maintainable on the ground that the petitioners have an alternative remedy available to them under the ID Act, 1947. It is submitted that as per the settled legal position when there is a special Act which provides for machinery for redressal of grievance, then the Hon'ble High Court may not entertain the same in direct writ petition. Therefore also the petition is required to be rejected."
10 Mr. Gadhia, in support of his submissions, has placed reliance on the following decisions:
(1) Halvad Nagarpalika and others vs. Jani Dipakbhai Chandravadanbhai [(2003) 2 GHJ 397 (para 18)] (2) Union of India and another vs. Ramsingh Thakur and others [2012 AIR SCW 3806 (3) U.P. Power Corporation Ltd and another vs. Bijli Majdoor Sangh and others [2007 (113) FLR 821] (4) Rajula Municipality vs. Bhagubhai Appabhai Dhakhada [Special Civil Application No.6702 of 2001] (5) Inushbhai Bachubhai Jokhiya and four others vs. Rajula Page 26 of 89 C/SCA/3062/2015 CAV JUDGMENT Nagarpalika [2016(1) CLR 636] (6) State of Karnataka and others vs. KGSD Canteen Employees Welfare Association and others [2006 (1) CLR 407] (7) Taluka Development Officer vs. Rameshchandra M. Bhatt [2003(3) GLH 417] (8) Vice Chancellor vs. Akhileshkumar Khare and another [2015(3) CLR 464] (9) State of Gujarat and others vs. Narendrabhai Jethabhai Solanki [2011 (1) CLR 384] (10) Chetankumar Sureshbhai Patel vs. ONGC Ltd [Special Civil Application No.12302 of 2015] (11) DDO vs. Ramesh Nagjibhai Vadesa [Letters Patent Appeal No.726 of 2016] (12) Jayeshkumar J. Bhatt vs. State of Gujarat [2017 (154) FLR 885] (13) Brahampal and others vs. BHEL and others [2001 (88) FLR 951] ● VARIOUS ORDERS PASSED BY THIS COURT:
11 The first order issuing notice to the respondents dated 23rd March 2015 reads as under:
Page 27 of 89 C/SCA/3062/2015 CAV JUDGMENT"Making grievance against the refusal by the respondents No.1 to 4 employers to make the petitioner No.2workman permanent employee against the sanctioned post and also refusal to grant minimum wages under the Minimum Wages Act, 1948, this petition is preferred by the petitioners.
Mr.Amresh Patel, learned advocate appearing for the petitioners has submitted that despite various representations and persuasion, dues of the petitioner No.2 are till date not been paid to him. He has further urged that another set of employees which had joined the office has also not been granted the benefits of 6th Pay Commission. Although, the employees of other Nagar Palikas including in case of Bagasara Nagar Palika, this Court has specifically held in favour of the employees and granted 6th Pay Commission benefit .
Issue Notice to the respondents returnable on 6th April, 2015. Mr.Niraj Ashar, learned Assistant Government Pleader waives service of notice on behalf of the respondent No.2.
Direct service is permitted. "
12 On 18th April 2016, this Court passed the following order:
"1 In the Special Civil Application No.673 of 2013, an affidavitinreply is being filed today on behalf of the respondents Nos.7 and 8. The same is ordered to be taken on record. An additional affidavit is filed on behalf of the respondent No.4 today. The same is ordered to be taken on record.
2 In the Special Civil Application No.3062 of 2015, an affidavitinreply is filed by the respondent No.2, which is ordered to be taken on record.
3 The matters have been heard substantially. However, due to paucity of time, it is not possible to conclude the hearing. Notify both the matters on 7th June, 2016. Both the matters are treated as partheard. To be notified before this Court (Coram : J.B. Pardiwala, J.).
4 I take notice of the fact that serious allegations of abuse of the office and corruption have been levelled against the respondents Nos.7 and 8 of Special Civil Application No.673 of 2013. The allegations of corruption and abuse of the office are more serious and grave so far as the respondent No.8 Hitesh P. Patel is concerned. I am told that he is serving as Chief Engineer of the Nagarpalika. I have received many complaints in writing against the respondent No.8, namely, Hitesh P. Patel. I also take notice of the fact that the Nagarpalika had initiated departmental action and had placed Shri Hitesh Patel under suspension, but thereafter, for one reason Page 28 of 89 C/SCA/3062/2015 CAV JUDGMENT or the other, he has been once again allowed to resume his service. As on date, there is a departmental inquiry pending and the preliminary inquiry report would indicate that the charges of corruption and abuse of the power are prima facie made out.
5 Mr. Vijay Patel, the learned counsel appearing appearing for the Nagarpalika makes a statement that the Nagarpalika shall take appropriate action at the earliest and shall even consider placing the respondent No.8 under suspension if case is made out.
6 If the Nagarpalika, on its own, initiates appropriate action and looks into the matter seriously, then it is fine, otherwise this Court will consider to pass appropriate orders after conclusion of the hearing of the matter. Let me clarify that the pendency of the writ application i.e. Special Civil Application No.673 of 2013 shall not preclude or come in the way of the Nagarpalika in looking into the allegations levelled against the respondents Nos.7 and 8, more particularly, against the respondent No.8 and take appropriate action in accordance with law."
13 Thereafter, on 22nd September 2016, the following order was passed:
"1 There are some developments so far as the recruitment to various posts is concerned. I am informed that the proposal to fill up the sixty nine posts, out of ninety two sanctioned posts, on the setup was forwarded to the Collector, Valsad, and the Collector, Valsad, in turn, with his report, has forwarded the same to the Director, Municipalities, State of Gujarat. The Director has raised certain queries which the Nagarpalika is expected to answer so that the proposal can be processed further. If any queries have been raised by the Director as regards filling up of the sixty nine posts which includes the Fire Brigade Department, then the Nagarpalika shall see to it that those queries are answered at the earliest. Once the queries are answered, the Director shall look into those and take an appropriate decision at the earliest. It is needless to state that the Fire Brigade Department of any civic body is an important department and the said department must have a qualified Firemen as well as other staff. The position, as on date, is that all the employees working in the Fire Brigade Department are temporary and working past couple of years.
2 So far as the other proposals are concerned, the learned Assistant Government Pleader informs that the Director has already forwarded those proposals with his report to the Urban Housing and Urban Development Department of the State of Gujarat. I expect the State to give top priority to the proposals and take an appropriate decision at the earliest.Page 29 of 89 C/SCA/3062/2015 CAV JUDGMENT
3 Mr. Patel, the learned counsel, at this stage, pointed out that though this Court has directed to pay the salary, yet till this date, nothing has been paid. This is something disturbing. The learned counsel appearing for the Nagarpalika assures that he would speak to the authority concerned and see to it that the salary is paid. The salary shall be paid at the earliest.
4 Post the matter on 8th November 2016. The further progress in the matter shall be reported on that date. A copy of this order be provided to Mr. Gadhia, the learned counsel appearing for the Nagarpalika as well as to Mr. Swapneshwar Goutam, the learned A.G.P. appearing for the State for its onward communication."
14 On 16th December 2016, the following order was passed:
"The learned counsel appearing for the Nagarpalika states that the balanced 16 posts of Harijan Safai Kamdar will be filled up by next week itself. He further informs that the Nagarpalika has constituted a Committee for the purpose of amending the recruitment rules. The Committee which has been constituted is expected to take up the matter at the earliest and do the needful.
It appears that pursuant to the advertisement dated 16.03.2016, 13 posts are to be filled up, however, there is no development in this regard also. The Nagarpalika shall look into this aspect also and do the needful at the earliest.
Further progress in the matter shall be reported on 29.12.2016.
15 On 19th January 2017, the following order was passed:
"1. Pursuant to the order passed by this Court dated 16 th December, 2016, the Nagarpalika has filled up the sixteen posts of the Harijan Safai Kamdars. However, there is no further progress at the end of the committee, who is looking into the issue of amending the recruitment rules. The committee constituted, is expected to do well in this regard at the earliest.
2. The Nagarpalika is directed to explore the possibility of regularizing the services of its employees considering the decision of the Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi & Ors., reported in (2006) 4 SCC 1..Page 30 of 89 C/SCA/3062/2015 CAV JUDGMENT
3. I am informed that the employees are serving with the Nagarpalika on adhoc basis past more than 20 years.
4. Mr. Gadhia, the learned counsel appearing for the Nagarpalika shall speak to his clients in this regard.
5. Post the matter for further hearing on 16th February, 2017.
6. A copy of this order be provided to Mr. Gadhia, the learned counsel appearing for the Nagarpalika for its onward communication."
16 On 30th June 2017, the following order was passed:
"3. The developments as on date are that the Nagarpalika has forwarded a proposal to the Director of the Municipalities, State of Gujarat, seeking enhancement of the current set up by 97 posts of the ClassIII and ClassIV. This proposal has been forwarded by the Nagarpalika in wake of the inclusion of certain additional areas situated on the outskirt of the town. With the area getting enhanced, the Nagarpalika will need more employees to take care of services like sanitation, etc. I am informed that a proposal as on date is pending with the Director of Municipalities, State of Gujarat. The Director shall look into the proposal at the earliest and take an appropriate decision in this regard in accordance with law.
4. The second development is that the Nagarpalika has amended its Recruitment Rules. The amended Rules now has done away taking of interviews for the posts of the ClassIII and ClassIV. I am informed by the learned counsel appearing for the Nagarpalika that the amended rules have been forwarded to the Collector, Valsad, for approval. The Collector, Valsad, shall look into the same and take an appropriate decision in this regard at the earliest in accordance with law.
5. There is a third development in the form of the Nagarpalika taking decision to regularize the services of the six clerks and five peons. I am informed that these six clerks and five peons are in service past more than 20 years. However, there is no further progress in this regard. The Nagarpalika shall take a decision in this regard also at the earliest.
6. In the course of hearing of this matter, I have noticed that there is no regular staff in the Fire Brigade Department. In fact, the Nagarpalika does not have even qualified firemen. The Fire Brigade Department of any Nagarpalika is an important department. I am informed that the employees of the Fire Brigade Department as on date are on temporary basis. They all have to be put in all 20 years of service and some of those Page 31 of 89 C/SCA/3062/2015 CAV JUDGMENT are likely to be retired in near future. The Nagarpalika shall consider the regularization of the service of the employees of the Fire Brigade Department in accordance with law and more particularly, when they have sanctioned the posts on the establishment. The Nagarpalika is directed to act accordingly in this direction and take an appropriate decision in accordance with law. Further, the developments shall be informed to the Court by next date of hearing.
Post the matter on 28/07/2017. Direct service is permitted.
A copy of this order be provided at the earliest to Mr. Swapneshwar Goutam, the learned AGP appearing for the State for its onwards communication."
17 On 8th September 2017, the following order was passed:
"1. There is no progress, as such, as on date. Mr. Gadhia, the learned counsel appearing for the Nagarpalika informs that so far as the issue of amendment of the rules is concerned, the Office of the Directorate of Municipalities, by letter dated 07.09.2017 has raised four queries. According to the learned counsel, those four queries will have to be answered by the Nagarpalika.
2. The Chief Officer of the Nagarpalika is personally present in the Court today. He makes a statement that within a period of two weeks from today, the queries raised by the Office of the Directorate will be answered appropriately.
3. Mr. Sharma, the learned AGP appearing for the State, informs that so far as the issue with regard to the enhancement of the sanctioned setup is concerned, the same is being looked into by the Urban Housing and Urban Development Department. There is no progress even at the end of the Urban Development Department.
4. Mr. Patel, the learned counsel appearing for the petitioner intends to file a detailed additional affidavit pointing out the correct position as on date so far as the sanctioned posts of the Fire Brigade Department is concerned.
5. The Nagarpalika is directed to ensure that an appropriate reply with all necessary clarifications is given to the Office of the Director in response to the letter dated 07.09.2017 within a period of two weeks from today. The Office of the Director of Municipalities, on receipt of the reply from the Nagarpalika, shall look into the same and take an appropriate decision in accordance with law at the earliest. I expect the Director, Municipalities to act in this case promptly as on account of lack of adequate staff, the people have to suffer. I expect the State Government, in its urban department, Page 32 of 89 C/SCA/3062/2015 CAV JUDGMENT also to act promptly and see to it that an appropriate decision is taken with regard to the proposal for enhancement of the sanctioned setup is concerned. At the cost of repetition, it is stated that many surrounding areas are now a part of the Nagarpalika. The territorial limits of the Nagarpalika has increased like anything. The Nagarpalika is in need of extra manpower at the earliest.
5. It is very unfortunate to note that, as on date, out of the sanctioned setup so far as the Fire Brigade Department is concerned, only six employees are working on regular basis. 19 employees are serving on temporary basis past almost 20 years. If the rules are finalized with regard to the 69 posts which are to be filled up, then, probably, many more posts on regular basis can be filled up so far as the Fire Brigade Department is concerned. The Nagarpalika does not have a qualified fireman as on date. By the next date of hearing, I expect some positive reply and concrete progress in the matter, failing which, this Court shall pass further orders.
6. It appears that the Nagarpalika is taking this Court for a ride. Out of 105 posts, if they could fill up 95 posts under the old rules, why is the Nagarpalika insisting to fill up the balance 10 posts on the basis of the new rules which are yet to receive the sanction. The Nagarpalika owes an explanation in this regard.
7. Mr. Patel, the learned counsel appearing for the applicant submits that the issue raised with regard to the seniority is also thoroughly misconceived. He submits that the Nagarpalika is obliged to finalize the appointment of the 10 posts, which are still pending as on date. This issue needs to be looked into at the end of the Director of Municipalities at the earliest.
8. On the next date of hearing, I expect a responsible officer from the office of the Director to be present before this Court. None is present as on date. I also expect a responsible officer from the Urban Development Department to be present on the next date of hearing so as to apprise this Court of the further developments. Only the Law Officer attached with the office of the Director of Municipalities is present today to assist the Court.
9. Post the matter on 26th September, 2017.
18 On 10th October 2017, the following order was passed:
"1 An affidavitinreply has been filed today on behalf of the respondent No.2 duly affirmed by Mr. Naresh R. Patel, the Deputy Director of the Directorate of Municipalities, Gandhinagar inter alia stating as under:Page 33 of 89 C/SCA/3062/2015 CAV JUDGMENT
"2 I say and submit that in view of the Government Policy by Urban Housing and Urban Development Department dated 06.11.2015, the interviews have been away, for the purpose of recruitment process in ClassIII and ClassIV. In compliance of the said policy, all the Municipalities were requested to amend their rules to the said extent. The Valsad Municipality vide communication 06.09.2017 had sought sanction of the Director of Municipality for their amended rules ensuring that the same are in consonance with the Government Resolution dated 06.11.2015. The communication dated 06.09.2017 is annexed hereto and marked as AnnexureI. 3 Therefore, the Director of Municipality by its order dated 29.09.2017 in exercise of powers conferred under Section 271 of the Gujarat Municipality Act, 1963 has sanctioned the said rules. The copy of the order dated 29.09.2017 is annexed herewith and marked as AnnexureII.
4 I say and submit that in view of the above mentioned development, now the Municipality can carry out further process of recruitment in addition with other applicable laws. The municipality on 06.10.2017 has made communication to the Director of Municipality and has sent a fresh proposal for 69 posts to be filled up by way of direct recruitment and promotion and said proposal would be responded at the earliest by the Director of Municipality. A copy of the said communication dated 06.10.2017 is annexed hereto and marked as AnnexureIII.
5 I say and submit that so far as issue with reference to few posts tobe filled up by way of outsourcing are concerned, the same is governed by the Government Resolution dated 01.04.2010 by the General Administrative Department which is uniformly applied to all the Municipalities, as the same is State Policy it cannot be deviated.
6 I say and submit that the issue with reference to seeking additional set up in view of AbramaMogravadi Municipalities being included in Valsad Municipality is concerned, the process with reference to same is undergoing and an appropriate decision would be taken by the Urban Housing and Urban Development Department in consultation with other departments and the same will require a comprehensive exercise as various factors are to be considered. Therefore, an appropriate decision would be taken by the said department."
2 The affidavitinreply along with accompanying documents are ordered to be taken on record.
Page 34 of 89 C/SCA/3062/2015 CAV JUDGMENT3 It appears that the total strength of the set up is 390 posts. Out of the total sanctioned set up, a proposal was forwarded to fill up 178 posts. Such proposal was accepted by the State Government. However, permission to fill 105 posts was granted out of 178. The Nagarpalika has filled up 95 posts out of 105. Out of 10 posts, 7 posts are to be filled up through the outsourcing in accordance with the policy of the State Government. If such is the policy, let 7 posts be filled up through the outsourcing and so far as balance 3 posts are concerned, the same shall also be filled up in accordance with the rules.
4 It appears that thereafter, the Nagarpalika forwarded a fresh proposal for filling up 69 posts. On receipt of such proposal, the Director of the Municipalities directed the Nagarpalika to amend the recruitment rules, and thereafter, undertake the process of recruitment. The amendment was only to the effect that the interviews be done away for the purpose of recruitment. The rules have been now amended and approved. The only grey area at this stage is that whether the 69 sanctioned posts are now to be filled up in accordance with the new rules, which were prevailing prior to the amendment. If new rules made applicable so far as the recruitment is concerned, then probably, many employees serving in the Nagarpalika past couple of years might not be able to seek the benefit. I am saying so because those 95 posts, out of 105, were filled up in accordance with the old rules.
5 For the present, the respondents are directed to act in accordance with the reply filed today.
6 Post this matter on 24th November 2017."
● DEVELOPMENTS DURING THE PENDENCY OF THIS WRIT APPLICATION:
19 The orders passed by this Court time to time referred to above have yielded some result. The sanctioned set up of the Valsad Nagarpalika consists of 390 posts after 20% deduction. As on date, 250 posts are filled up and 140 are vacant. The proposal for filling up of vacant 69 posts is pending before the Director of Municipalities. During the interregnum period, the recruitment rules of the Nagarpalika have been amended. As the two villages at the outskirts i.e. Abrama and Mogravadi have been now included within the Municipal area, the Page 35 of 89 C/SCA/3062/2015 CAV JUDGMENT Nagarpalika has requested for enhancement of the set up. This proposal, as on date, is pending before the Urban Development and Urban Housing Development, State of Gujarat. 80 posts of the Safai Kamdar and Harijan Safai Kamdar have been filled up in accordance with the permission granted by the Director of Municipalities. 15 other posts have been filled up in accordance with the permission granted by the Director of Municipalities. It appears that the entire staff of the Fire Brigade Department of the Nagarpalika is on temporary basis. The employees' working in the Fire Brigade Department have put in more than twenty years of service, but they are still treated as temporary employees'. The stance of the Nagarpalika is that the entire staff of the Fire Brigade Department will be recruited on regular basis as soon as the set up is enhanced and the exercise for filling up 69 posts is undertaken.
20 The materials on record reveal extremely sorry state of affairs of the Valsad Nagarpalika. The Valsad Nagarpalika is one of the oldest Nagarpalikas in the State of Gujarat. Like any other Nagarpalika, the governance administration has gone to the dogs.
21 Be that as it may, the position of the daily wage employees' on the establishment of the Valsad Nagarpalika is as under:
Sr. Name of the departments No. of daily Total
No. wagers
Kamdars
1 Fire Brigade Department 1 to 19 19
2 Varigruh Kalyanbaug Electric Motor 1 to 10 10
Operators (Water)
3 Daily wagers Valvemen Kalyanbaug 1 to 15 15
(Water Tank)
4 Daily Wagers Labour Kalyanbaug 1 to 11 11
(Water Tank)
Page 36 of 89
C/SCA/3062/2015 CAV JUDGMENT
5 Head Water Works Operator 1 to 7 7
Abrama
6 Head Water Works Labour Abrama 1 to 22 22
7 Drainage Department, Pumping 1 to 13 13
Station
8 Drainage Department (Harijan 1 to 24 24
Kamdar) Driver, Peon, Line
Inspector, Mukadam
9 Health Department, Safair Kamdar, 1 to 147 147
Contract Driver
10 Health Department, Safai Kamdar, 1 to 4 4
Mukadam
11 Health Department, Harijan 1 to 28 28
Kamdar, Contract Driver
12 Light Department, Wiremen, Tempo 1 to 13 13
Driver
13 Abrama Zone Safai Kamdar, 1 to 23 23
Wiremen, Mukadam
14 Walia Water Tank Abrama Zone 1 to 22 22
Operator, Valvemen, Labour
15 Election Department, Theater 1 to 6 6
Auditorium Clerk
Mohanbhai Mangabhai Patel (Head
Water Works Abrama) Retired
16 Building Department, Driver, 1 to 34 34
Cleaner, JCB Driver, Labour,
Mechanic, Mukadam
17 Mograwadi Zone Daily Wager 1 to 42 42
Kamdar, Peon
18 Peon of Office staff 1 to 6 6
Total 446
22 It is shocking and very distressing to note that some of the employees' of the Fire Brigade Department are appointees of 1991, 1992, 1996, 1998 onwards. They are all performing their functions and duties like any other regular employee. Some of the temporary employees' have retired after putting in almost more than twenty five Page 37 of 89 C/SCA/3062/2015 CAV JUDGMENT years of service. They retired as temporary employees without any benefits. The temporary employees, as on date, have knocked the doors of this Court with a prayer that their services be regularised, otherwise, it will be difficulty for them to survive in the last days of their lives. They are seeking regularisation in service.
● POSITION OF LAW:
23 The issue with regard to regularisation of employees came up for consideration before a Division Bench of this Court in a batch of appeals being the Letters Patent Appeal No.1036 of 2016 and allied appeals decided on 6th March 2018 in the case of Mahuva Municipality vs. Maheshbhai Jinabhai Sarvayya, in which the daily wagers working with the Mahuva Municipality since 1997 / 1998 prayed that they be made regular employees. I may quote the relevant observations of the Division Bench as under:
"5. Having considered the submissions of the learned advocates for the respective parties, the issue before this Court is as to whether the learned Single Judge committed any error in confirming the award of the Industrial Tribunal. In order to appreciate this, we need to consider the matters in issue before the Industrial Tribunal. Essentially, on the basis the statement of claim and the written statement filed by the workman and the contesting employer and evidence adduced before it, the Industrial Tribunal was faced to decide two issues:
(A) Whether the contesting claimants/ clerks/ClassIV employees were entitled to regularization on the vacant posts of the Municipality?
(B) Whether the concerned workmen were entitled to the pay and the payscale that was available to the permanent clerks, in view of the fact that they were discharging duties of a nature akin to those being performed by such permanent employees?"
8.1 Considering the aforesaid position of law and applying the same to the facts of the present case, what is evident is that not only there is no sanctioned setup available with the Mahuva Municipality in order to Page 38 of 89 C/SCA/3062/2015 CAV JUDGMENT enable the Municipality to absorb the respondents, but even otherwise the respondents do not meet the eligibility requirement of the post in question. Thus, the Industrial adjudicator could not have given any direction for regularization only because the claimants have been working for number of years. Even in the case of Mahatma Phule Agricultural University (supra), it was a case where the workers raised an industrial dispute claiming payscale on the basis of permanency and other consequential benefits. In this context, the Hon'ble Supreme Court in paragraphs 12 and 13 of the said judgment observed that the High Court clearly fell in error in granting the benefit of regularization and the wages and benefits akin to permanent workmen, which are reproduced here under:
"12 Mrs. Jaising, in support of Civil Appeals Nos.(arising out of SLP(C) Nos. 418421/1999 and SLP(C) Nos. 90239032/1998) submitted that the workmen were entitled to be made permanent. She however fairly conceded that there were no sanctioned posts available to absorb all the workmen. In view of the law laid down by this Court status of permanency cannot be granted when there are no posts. She however submitted that this Court should direct the Universities and the State Governments to frame a scheme by which, over a course of time, posts are created and the workmen employed on permanent basis. It was however fairly pointed out to Court that many of these workmen have died and that the Universities have be now retrenched most of these workmen. In this view of the matter no useful purpose would be served in undergoing any such exercise.
13 To be seen that, in the impugned judgment, the High Court notes that, as per the law laid down by this Court, status of permanency could not be granted. In spite of this, the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency, grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not creating posts amounted to unfair labour practice under Item 6 of Schedule IV of MRTU and PULP Act. In so doing the High Court erroneously ignores the fact that approximately 2,000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the Award dated 20.02.1985. These workmen were only seeking quantification of amounts as quantification of the amounts. Yet by this sweeping Order of the High Court grants, even to these workmen, the wages and benefits payable to other permanent workmen."
8.2 What the Supreme Court did was confirmed the direction only to the extent of payment of payscale and benefits akin to the scale available Page 39 of 89 C/SCA/3062/2015 CAV JUDGMENT to permanent employees. Even in the case of Ahmednagar Zilla Shetmajoor Union(supra), the Supreme Court has reiterated, though in the context of seasonal workers that, in absence of a regular sanctioned setup, Tribunal cannot give directions of regularization.
9 Apropos the judgment relied upon by the learned advocate Shri Sejpal in the case of Mahuva Municipality (supra) in the Letters Patent Appeals, what is to be noted is that, in such appeals, workmen were of the Shikshan Samiti under the Nagarprathmik Shikshan Samiti and not directly under the Municipality. As far as the judgment in the case of Umrala Gram Panchayat (supra) is concerned, it was the case where the Supreme Court specifically came to a conclusion that continuing such workmen and denying them benefit of permanency was an unfair labour practice. We would dwell upon the finding as to whether denial of such benefit of permanency or the benefit of payscale akin to permanent employees is an unfair labour practice later. In absence of any specific contention in the Statement of Claim or a reference on that issue, and particularly in view of the fact that on the assessment of the facts, we find that there were no sanctioned vacant posts available with the Municipality. Merely, because the respondents continued to work and were not regularized would not ipsofacto amount to unfair labour practice or entitle such claimants the benefit of regularisation.
9.1 In other words, looking to the facts on hand and the law laid down by the Hon'ble Supreme Court in the case of Harinandan Prasad (supra), we are of the view that as far as issue 'A' is concerned, I.e. whether the benefit of regularization could have been granted by the Industrial Tribunal and in turn confirmed by the learned Single Judge, the answer to the question is in the negative in view of what has been discussed herein above. The Industrial Tribunal and in turn the learned Single Judge fell in error in issuing a direction to the appellant - Municipality to regularize the services of the respondent claimant on the twin counts of the absence of sanctioned posts and in view of the fact that such employees working on daily wage basis were not qualified in accordance with Recruitment Rules.
9.2 The Industrial Tribunal, as we notice has relied on the judgement of the Honourable Supreme Court in the case of Maharashtra SRTC versus Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556. However, that was in the context of holding that continuing the workmen on a daily wage basis would amount to unfair labour practice. However, we also need to consider and accept the ratio in the judgement of Mahatama Phule Agricultural University vs. Nasik Zilla Sheth Kamgar Union [2001 (7) SCC 346] that mere inaction on the part of the State employer to create posts would not mean unfair labour practice on the part of the employer. In the facts on hand it has come on record that the Tribunal while considering and granting the benefit of Page 40 of 89 C/SCA/3062/2015 CAV JUDGMENT regularisation was taking the set up as on 31.10.2007 and in absence of any material except the testimony of the Chief Officer at Exh.20 there was no evidence before it to conclude that the Municipality had indulged in unfair labour practice. No material was on record to show that in fact 29 posts of clerks were vacant as recorded by the Tribunal. Therefore, we do not approve the directions given by the Industrial Tribunal as far as the claim of the claimants has been allowed with respect to the respondents being given the benefit of regularisation and permanency under the Municipality. The directions of the Tribunal and findings of fact and observations made by the learned Single Judge in para 4.1 merit interference.
10 In order to appreciate the issue of granting the benefit of the pay scale, perusal of the Statement of Claim indicates that it was the specific assertion of the workmen claimants respondents herein, that they are carrying out the nature of work and duties equal and identical to those being carried out by the regular employees. In that event, it was their demand that they be paid "equal pay for equal work" in consonance with Articles 14 and 16 of the Constitution of India. To this Statement of Claim, the appellant - employer in its written statement, except for contending that the employees were not on the regular setup and therefore since their appointment was not in accordance with law which amounted to backdoor entry, they were not entitled to regularization. There was no denial to the assertion that the respondent employees were carrying out the work and the nature of duties identical to those carried out by the regular selected employees.
10.1 It is in this context, that we need to answer whether the respondents are at least entitled to the benefit of being granted the minimum regular payscale along with dearness allowance as revised from time to time on account of their performing duties as discharged by the regular employees. Our conclusion to affirm the finding of the Tribunal and hold that the employees are entitled to the benefits of such minimum regular payscale is based on the fact that there was no denial by the Municipality that the claimants were carrying out the same nature of work and performing identical duties as was carried out by permanent workman. The discussion of merits in the body of the Award also does not show that the claim was ever refuted by the Municipality.
10.2 In our opinion, even otherwise in absence of the denial that they were carrying equal and identical nature of work the Tribunal did not commit any error in granting the benefit of equal pay for equal work. In the affidavitinrejoinder dated 19.11.2016 filed to the memo of the appeal, it is pointed out by the appellant that the payscale of the Clerk, on which majority of the respondents were working, except a few Class IV Page 41 of 89 C/SCA/3062/2015 CAV JUDGMENT employees is Rs.3,050 - 4,590/. In our opinion, that the respondents are entitled to such a payscale at least a minimum thereof finds a support from the recent pronouncement of the Hon'ble Supreme Court in the case of State of Punjab vs. Jagjitsingh & Ors., reported in (2017) 1 SCC 148. The Hon'ble Supreme Court in the case of Jagjitsingh & Ors., (supra) was confronted with an issue as to whether temporarily engaged employees "daily wage employees", adhoc appointees, employees appointed on casual basis, contractual employees and the like are entitled to minimum of the regular payscale along with dearness allowance revised from time to time for performing their duties akin to regularly selected employees.
10.3 On the principle of "equal pay for equal work" and the ingredients governing such principle, the Court in that case extended the benefit of "minimum of the regular payscale" along with dearness allowance as revised from time to time to temporary employees engaged on a daily basis as adhoc employees, employees engaged on casual basis as contract appointees and the like. Referring to the judgment in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1, the Hon'ble Supreme Court in the case of Jagjitsingh & Ors., (supra) considered the judgment in paragraph 48 thereof, wherein it reproduced paragraphs 44 and 48 of the judgment in the case of Umadevi(supra), which are reproduced herein:
"44. The concept of "equal pay for equal work'' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the goby to the procedure established by law in the matter of public employment........It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would Page 42 of 89 C/SCA/3062/2015 CAV JUDGMENT not grant a relief which would amount to perpetuating an illegality.
xxx xxx xxx 48 It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. 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. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
11 Considering this, the Hon'ble Supreme Court observed that in the judgment of Umadevi, the Court had made very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization but the concept was held as applicable and was indeed applied to the issue of pay parity. After considering various judgments of the Hon'ble Supreme Court on this issue, the Hon'ble Supreme Court held as under:
Page 43 of 89 C/SCA/3062/2015 CAV JUDGMENT"49 We have given our thoughtful consideration to the observations recorded by this Court, as were relied upon by the full bench ( as also, by the learned counsel representing the State of Punjab). It is not possible for us to concur with the inference drawn by the full bench, for the reasons recorded hereunder: 49.1 We are of the considered view, that in paragraph 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularization in service. It was held, that on the issue of pay parity, the concept of 'equality' would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of 'equality' could not be invoked for absorbing temporary employees in Government service, or for making temporary employees regular/permanent. All the observations made in the above extracted paragraphs, relate to the subject of regularization/permanence, and not, to the principle of 'equal pay for equal work'. As we have already noticed above, the Constitution Bench unambiguously held, that on the issue of pay parity, the High Court ought to have directed, that the dailywage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good, by making such a direction.
49.2 Insofar as paragraph 48 extracted above is concerned, all that needs to be stated is, that they were merely submissions of learned counsel, and not conclusions drawn by this Court. Therefore, nothing further needs to be stated, with reference to paragraph 48.
49.3 We are therefore of the view, that the High Court seriously erred in interpreting the judgment rendered by this Court in the Secretary, State of Karnataka case, by placing reliance on paragraphs 44 and 48 extracted above, for drawing its inferences with reference to the subject of pay parity. On the above subject/issue, this Court's conclusions were recorded in paragraph 55 (extracted in paragraph 36, hereinabove), which have already been dealt with by us in an earlier part of this judgment."
11.1 The Hon'ble Supreme Court, therefore for the reasons stated in the aforesaid judgment in the case of State of Punjab vs. Jagjitsingh & Ors. [(2017) 1 SCC 148] was of the view that the claim of the temporary employees for minimum wages on par with regularly engaged government employees cannot be declined. Final directions were issued by the Hon'ble Supreme Court in paragraph 61 of the judgment holding that they had no hesitation that all temporary employees concerned would be entitled to Page 44 of 89 C/SCA/3062/2015 CAV JUDGMENT draw wages minimum to the payscale at the lowest in the regular pay scale extended to regular employees holding the same post.
12 In view of the above, the direction given by the Industrial Tribunal with respect to the respondents to be given the benefit of regularisation and permanency under the Municipality and so confirmed by the learned Single Judge is hereby quashed and set aside. However, in accordance with the law laid down in the case of Jagjitsingh & Ors., (supra), we are of the opinion and so hold that the respondents herein who are working as Clerks/ClassIV employees are entitled to the minimum payscale (along with Dearness Allowance as revised from time to time) as is available to the regular employees holding the same post. In other words, those respondents herein who are discharging their duties in the cadre of Clerks shall be entitled to draw wages at par with the minimum of the regular payscale of Rs.3,050-4,590/ from the date of the award I.e. 04.07.2015. Those respondents who are engaged on the posts of ClassIV shall also be extended such benefit of wages at par with minimum of the regular pay scale revised from time to time on the same lines as being given to a regular ClassIV employees from the date of award i.e. 04.07.2015. The appellant Municipality is directed to extend the benefit of the granting wages at par with the minimum of the payscale revised from time to time to the respondents herein together with arrears from the date of award.
13 Taking into consideration the fact that it has come on record that the respondents are working with the Municipality for more than two decades and that the establishment containing various clerical posts and other cadres was sanctioned as early as in the year 1973 and in view of divergent activities in the field of public services and considering the administrative set up as on date it will be open for the municipality to forward a proposal to the competent authority by providing details about requirement of personnel in various departments of the municipality. As and when such set up is approved by the competent authority, claim of respondents - employees based on their experience and qualification together can be considered for their claim towards permanency in regular set up of municipality keeping in mind the seniority of other employees also. The order impugned passed by the learned Single Judge is modified accordingly. The appeals are partly allowed with the aforesaid directions."
24 The aforesaid Division Bench decision of this Court was challenged before the Supreme Court by filing Special Leave Petition (Civil) No.29316 of 2018. The Supreme Court dismissed the S.L.P. vide Page 45 of 89 C/SCA/3062/2015 CAV JUDGMENT order dated 27th August 2018 and thereby affirmed the Division Bench decision of this Court.
25 In a very recent pronouncement of the Supreme Court in the case of Narendra Kumar Tiwari and others vs. State of Jharkhand and others reported in (2018) 8 SCC 238 it has been held as under:
"4. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Umadevi (3) in State Karnataka and others v. M.L. Kesari and others [(2010) 9 SCC 247], we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari.
5. The decision in Umadevi (3) [State of Karnata v. Umadevi (3), (2006) 4 SCC 1] was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a onetime measure and a cutoff date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.
6. The concept of a onetime measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows:
"9. The term "onetime measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a onetime exercise and prepare a list of all casual, daily wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi Page 46 of 89 C/SCA/3062/2015 CAV JUDGMENT (3), cases of several dailywage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the onetime regularisation process. On the other hand, some government departments or instrumentalities undertook the one time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi (3) has expired. The onetime exercise should consider all daily wage/ad hoc/casual employees who had put in 10 years of continuous service as on 1042006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the onetime exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the onetime exercise. The onetime exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.
11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on dailywage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 1042006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a onetime measure."Page 47 of 89 C/SCA/3062/2015 CAV JUDGMENT
7. The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cutoff date was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc.
11. The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants. The appeals are accordingly disposed of."
Page 48 of 89 C/SCA/3062/2015 CAV JUDGMENT26 In Umrala Gram Panchayat vs. Secretary, Municipal Employees Union and others reported in 2015 (II) C.L.R. 57, the Supreme Court has held as under:
"10...It is an admitted fact that the work which was being done by the concerned workmen was the same as that of the permanent workmen of the appellantPanchayat. They have also been working for similar number of hours, however, the discrepancy in the payment of wages/salary between the permanent and the nonpermanent workmen is alarming and the same has to be construed as being an unfair labour practice as defined under Section 2(ra) of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is prohibited under Section 25(T) of the ID Act. Further, there is no documentary evidence produced on record before the Labour Court which shows that the present workmen are working less or for lesser number of hours than the permanent employees of the appellant Panchayat. Thus, on the face of it, the work being done by the concerned workmen has been permanent in nature and the Labour Court as well as the High Court have come to the right conclusion on the points of dispute and have rightly rejected the contention of the appellantPanchayat as the same amounts to unfair labour practice by the appellantPanchayat which is prohibited under Section 25(T) of the ID Act and it also amounts to statutory offence on the part of the appellant under Section 25(U) of the ID Act for which it is liable to be prosecuted.
11. Further, the Labour Court has rightly held that there is no restriction for the recruitment of the workmen in the Panchayat's setup as there is evidence to show that by making a proposal, the District Panchayat has increased the work force in the establishment of the appellantPanchayat and therefore, the contention urged by the learned senior counsel appearing for the appellantPanchayat that there are only limited number of permanent vacancies for the workmen in the Panchayat of the appellant is not tenable in law.
12. Further, we have also taken note of the fact that the financial position of the Panchayat is not so unsound as no activity of the Panchayat has been discontinued, as all the other workers of the appellantPanchayat are being paid their wages regularly. Thus, there would be no difficulty for the appellantPanchayat to bear the extra cost for the payment of the wages/salary and other monetary benefits to the concerned workmen if they are made permanent.
13. Further, Section 25(T) of the ID Act clearly states that unfair labour practice should not be encouraged and the same should be discontinued. In Page 49 of 89 C/SCA/3062/2015 CAV JUDGMENT the present case, the principle "equal work, equal pay" has been violated by the appellantPanchayat as they have been treating the concerned workmen unfairly and therefore, the demand raised by the respondent Union needs to be accepted. The High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons.
14. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the industrial dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon the decision of this Court in the case of Maharashtra State Road Transport Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana (2009) 8 SCC 556 : (AIR 2009 SC (Supp) 2656 : 2009 AIR SCW 6104), wherein it has been held thus:
"32.The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer."
Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union v. Food Corporation of India (2014) 13 SCALE 644 : (2015 AIR SCW 25),wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3), (AIR 2006 SC 1806 : 2006 AIR SCW 1991) in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed and held as follows:
20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for Page 50 of 89 C/SCA/3062/2015 CAV JUDGMENT settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees....""
15. Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner.
16. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) 4 SCC 1 : (AIR 2005 SC 1806 :
2006 AIR SCW 1991), does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below.
17. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellantPanchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law.
18. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them.
19. The appellant is further directed to pay the regular payscale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The same shall be implemented within six weeks from the date of receipt of copy of this judgment and compliance report of the same shall be submitted for the perusal of this Court. No Costs."
27 In Maharashtra State Road Transport Corporation and another vs. Castribe Rajya Parivahan Karmchari Sanghatana reported in (2009) 8 SCC 556, the Supreme Court has observed in paras 58 and 59 as under:
Page 51 of 89 C/SCA/3062/2015 CAV JUDGMENT"58. In what we have held above, the affected employees in the two complaints filed by the unrecognized union may not be entitled to the benefits of permanency to the post of cleaners as these complaints are not maintainable. But in the present fact situation, in our judgment, it would be travesty of justice if at this stage because of nonmaintainability of the complaints at the instance of the unrecognized union, these employees are deprived of the benefits of status, wages and permanency applicable to the post of cleaners when similarly situated employees who had filed the complaint individually would get benefits of permanency applicable to the post of cleaners.
59. In view of this exceptional situation, for doing complete justice between the parties, in exercise of our plenary power under Article 142 of the Constitution of India, although we have answered question (two) in favour of the Corporation that the two complaints filed by Casteribe Rajya P. Karamchari Sangathans are not maintainable insofar as unfair labour practices under item 6 of Schedule IV is concerned yet in the facts and circumstances of the case, we direct that the employees in these two complaints would also get the status, wages and other benefits of permanency applicable to the post of cleaners as the employees in Complaint (ULP) No. 442/92."
28 Before a learned Single Judge of this Court in the case between the Junagadh Agriculture University vs. Malti B. Dave [Special Civil Application No.1756 of 2005 decided on 8th August 2013], a contention was raised that the employees were not appointed in accordance with the procedure laid down in law, and therefore, were not entitled to seek regularisation in service. The learned Single Judge negativing such contention held in para 7 as under:
"For the reasons recorded above, this petition is partly allowed. The impugned award of the Industrial Tribunal, Rajkot dated 27.03.2004 in Reference (IT) No.119 of 1991 is modified to the extent that the respondent workman shall be entitled to arrears prospectively only i.e. with effect from 01.04.2004, and not from earlier date. Other directions contained in the impugned award are not interfered with, and the interim relief granted by this Court on 11.02.2005 stands vacated. Rule is made absolute to the above extent only. No order as to costs. Consequently, the respondent is held to be entitled to the payscale of TypistcumClerk with effect from 01.09.1994 with all consequential benefits as ordered by the Tribunal, like yearly increments, revision of pay, etc. as are given to other Page 52 of 89 C/SCA/3062/2015 CAV JUDGMENT employees working with the petitioner employer, with the modification that, arrears of difference of pay shall be paid to the respondent with effect from 01.04.2004. This arrears is ordered to be paid by the petitioner, to the respondent, within a period of three months from today."
29 In Executive Engineer and others vs. The Secretary [Special Civil Application No.6123 of 2007 decided on 28th January 2013], a learned Single Judge of this Court observed in para 4 as under:
"In view of aforesaid, when the issue involved in the present petition has already been decided by this Court by way of above cited decision and considering the peculiar facts and circumstances of the case and keeping in mind the principle laid down in the decision of the Apex Court in the case of Secretary, State of Karnataka & Ors. v. Uma Devi (2006) 4 SCC 1 and the decision of this Court in the case of Amreli Municipality v. Gujarat Pradesh Municipal Employees Union 2004 (3) GLR 1841, the petitioner is directed to regularize the services of the members/workmen of the respondentSangh as per the sanctioned posts and as per the seniority lists. It is, however, clarified that if no seniority list is there, the petitioner shall regularize the services of the respondentworkmen on completion of ten years of service. The aforesaid exercise shall be completed within a period of seven months from today."
30 The decision of the learned Single Judge in Executive Engineer (supra) was carried before the Supreme Court. The Supreme Court affirmed the judgment by dismissing the Special Leave Petition vide order dated 19th November 2013 passed in Special Leave Petition (CC) No.19515 of 2013].
31 Similar issue of Karamsad Nagar Palika was taken in appeal, being the Letters Patent Appeal No.469 of 2013 and others [Karamsad Municipality vs. Amratbhai Mohanbhai Harijan and 22 others decided on 1st April 2013 by this Court] and direction was issued to regularise the services of all the Safai Kamdars.
32 In the case between Talala Gram Panchayat vs. Bharatkumar L. Page 53 of 89 C/SCA/3062/2015 CAV JUDGMENT Agrawat and 22 others [Special Civil Application No.12035 of 2003 decided on 28th September 2012], it has been held by the learned Single Judge, after referring to various decisions of the Supreme Court, in para 30 as under:
"(b) The appointments in this Nagarpalika had never been made by any Recruitment Rules or any procedures were ever followed and the fact remains that on earlier occasions the entire set up was full of employees who were obtained order from the Court which have been complied with.
In the present case also when the order of the employer did not say anything on ineligibility or disqualification of the employees, even if taking into consideration existing Recruitment Rules, their employment is not to be disturbed at this stage."
33 The Supreme Court in the case of Durgapur Casual Workers Union and others vs. Food Corporation of India and others reported in 2015 (I) CLR 379 has observed in paras 23 and 24 as under:
"23. Having accepted that there was unfair trade practice, it was not open to the Division Bench of the High Court to interfere with the impugned award.
24. For the reasons aforesaid, we aside the impugned judgment dated 25th February, 2009 passed by the Division Bench of the High Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N.8685 of 2007 and C.A.N.4726 of 2008). Award dated 9th June, 1999 passed by the Tribunal in Reference No.21 of 1996 as affirmed by the learned single Judge by order dated 18th February, 2005 in W.P. No.21368 (W) of 1999 is upheld. The respondent Corporation is directed to implement the Award from its due date as ordered by the Tribunal. The appeal is allowed with aforesaid observations and directions. No costs."
34 The Supreme Court in the case of Amarkant Rai vs. State of Bihar and others reported in 2015 (II) LLJ 1(SC) has held as under:
"12. Elaborating upon the principles laid down in Umadevi's case, (AIR 2006 SC 1806) (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka and Ors. v. M.L. Kesari and Ors., (2010) 9 SCC 247 : (AIR 2010 SC 2587), this Court held as Page 54 of 89 C/SCA/3062/2015 CAV JUDGMENT under:
"7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
13. Applying the ratio of Umadevi's case, this Court in Nihal Singh and Ors. v. State of Punjab and Ors., (2013) 14 SCC 65 : (AIR 2013 SC 3547) directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under:
"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive Government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive Government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If Page 55 of 89 C/SCA/3062/2015 CAV JUDGMENT absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks."
14. In our view, the exception carved out in para 53 of Umadevi, (AIR 2006 SC 1806) is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 03.01.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010.
15. Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the services of the appellant retrospectively w.e.f. 03.01.2002 (the date on which he rejoined the post as per direction of Registrar).
16. The impugned order of the High Court in LPA No.1312 of 2012 dated 20.02.2013 is set aside and this appeal is allowed. The authorities are directed to notionally regularize the services of the appellant retrospectively w.e.f. 03.01.2002, or the date on which the post became vacant whichever is later and without monetary benefit for the above period. However, the appellant shall be entitled to monetary benefits from 01.01.2010. The period from 03.01.2002 shall be taken for continuity of service and pensionary benefits."
35 In U.P. State Electricity Board vs. Pooran Chandra Pandey and others, 2007 (7) Supreme Today 374, the Supreme Court observed in paras 18 and 19 as under:
Page 56 of 89 C/SCA/3062/2015 CAV JUDGMENT"18. We may further point out that a sevenJudge Bench decision of this Court in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 has held that reasonableness and nonarbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and nonarbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhis case (supra) is a decision of a sevenJudge Bench, whereas Uma Devis case (supra) is a decision of a fiveJudge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhis case (supra) does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.
19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face."
36 In State of Jharkhand (supra), the Supreme Court, while explaining the role of the State as a model employer and its responsibility to sustain social and economic security, observed in paras 52, 53, 54, 55, 56 and 57 as under:
"52. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India(1981) 1 SCC 449 : (AIR 1981 SC 212), Krishna Iyer, J., has stated thus: "70. Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt."
53. In Gurmail Singh and others v. State of Punjab and others (1991) 1 SCC 189 : (AIR 1993 SC 1388) it has been held that the Page 57 of 89 C/SCA/3062/2015 CAV JUDGMENT State as a model employer is expected to show fairness in action.
54. In Balram Gupta v. Union of India and another 1987 (Supp) SC 228 : (AIR 1987 SC 2354), the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees.
55. In State of Haryana v. Piara Singh (1992) 4 SCC 118 : (AIR 1992 SC 2130 : 1992 AIR SCW 2315) the Court has ruled that the main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
56. In Bhupendra Nath Hazarika and another v. State of Assam and others .(2013) 2 SCC 516 : (AIR 2013 SC 234 : 2013 AIR SCW 401), while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed:
"65...It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised."
57. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of "model employer". It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would Page 58 of 89 C/SCA/3062/2015 CAV JUDGMENT have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so."
37 In the case of Chief Conservator of Forest and another vs. Jagannath Maruti Kandhare and another [AIR 1996 SC 2898], the Supreme Court held as under:
"18. This takes us to the second main question as to whether on the facts of the present case could it be held that the appellants were guilty of adopting unfair labour practice. As already pointed out, the respondents alleged the aforesaid act by relying on what has been stated under item 6 of Schedule IV of the State Act which reads as below :
"To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees".
19. The Industrial Court has found the appellants as having taken recourse to unfair labour practice in the present case because the respondentsworkmen who had approached the Court had admittedly been in the employment of the State of 5 to 6 years and in each year had worked for period ranging from 100 to 330 days. Ms. Jaising draws our attention in this context to the statement filed by the appellants themselves before the Industrial Court, a copy of which is at pages 75 to 76 of C.A.No.4375/90. A perusal of the same shows that some of the respondents had worked for a few days only in 1977 and 1978, though subsequently they themselves had worked for longer period, which in case of Gitaji Baban Kadam, whose name is at serial No.4 went up to 322 in 1982, though in 1978 he had worked for 41/2 days. (Similar is the position qua some other respondents).
21. Shri Dholakia would not agree to this submission as, according to him, the item in question having not stopped merely by stating about the employment of persons as casuals for years being sufficinet to describe the same as unfair labour practice, which is apparent from what has been in the second part of the item, it was the burden of the workmen to establish that the object of continuing them for years was to deprive them of the Page 59 of 89 C/SCA/3062/2015 CAV JUDGMENT status and privileges of permanent employees. Ms. Jaising answers this by contending that it would be difficult for any workmen to establish what object an employer in such a matter has, as that would be in the realm of his subjective satisfaction known only to him. She submits that we may not fasten a workman with such a burden which he cannot discharge.
22.We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, causals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment pollutioncare work of Ahmednagar, whose need is on increase because of increase in pollution. Permanancy is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants."
38 As observed by me earlier, the continuance of an employee for an indefinite long period as a temporary employee results in denial of the legitimate emoluments due for the work discharged by such employee for the employer and a presumption arises that there exist permanent work for continued employing of such person for that purpose. Such a practice amounts to unfair labour practice and exploitation of the employee. Such practice clearly violates Articles 14 and 16 of the Constitution and also cannot be defended on the jejune ground that the exercise of power being in the discretion of the authority, such authority is not bound to exercise such power, and that there does not vest correspondingly an enforceable right in a person for whose benefit such Page 60 of 89 C/SCA/3062/2015 CAV JUDGMENT provision has been made.
39 It now stands firmly ingrained in constitutional guarantee under Article 14 for equal protection of law that its protecting umbrella reaches all areas of state action which is unreasonable and arbitrary. Arbitrariness is antithesis of equality. I remind myself of what the Supreme Court said while laying bare the far reaching third but hither to undiscovered dimension of the fundamental rights enshrined in Articles 14 and 16, one of the species of Article 14, said in E.P. Royappa v. State of Tamil Nadu [1974 AIR 555].
"Article 14 is the genus while Article 16 is a species....The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. ....Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
40 While cautioning that appointments made in public employment on ad hoc/casual/temporary basis breeds the abuse of Article 16 and is not to be countenanced, at the same time the court has recognised as a part of fair deal at the hands of state / civic authorities to its employees the need to frame scheme for regularising services of such persons who had been working for long in such state of affairs, without a permanent status and rights equal to those who have been appointed permanently for discharging the same or similar work. The obligation of the state in this regard is explained and enunciated in State of Haryana v. Piara Page 61 of 89 C/SCA/3062/2015 CAV JUDGMENT Singh (supra). The Apex Court said :
"The normal rule is regular recruitment through prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. Secondly an ad hoc or temporary, employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. If for any reason an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
41 The aforesaid observations were made in regard to the appointments made on the regular establishment of the employee. However, the court clearly drew distinction between the ad hoc employee appointed to any post in the regular establishment and the work charged employees which are employed as a casual labour on need basis. The Court observed :
"So far as the members of the work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say 2 or 3 years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job."
42 The very term 'unfair labour practice' indicates arbitrariness inherent in it. If the remedy against such arbitrariness in the action of employer in general has been accepted by legislature it cannot be less arbitrary if adopted by State or any of its instrumentality. Such an arbitrariness in the State action results in violation of Articles 14 and 16 cannot be over emphasised. In case an unfair labour practice is adopted Page 62 of 89 C/SCA/3062/2015 CAV JUDGMENT by the State or its instrumentality, it brings in violation of Articles 14 and 16 of the Constitution. With this, comes in existence his right to seek its enforcement, even through constitutional remedies by invoking extra ordinary jurisdiction of the High Court. Any arbitrary action of the State, correspondingly vest in the citizen so attested an enforceable right in not to be treated unfairly, arbitrarily and unjustly by the State in any sphere of its activities.
43 The issue received detailed consideration in the case of Daily Rated Casual Labour vs. Union of India [AIR 1987 SC 2342]. This case arose out of a claim made by the casual employees in the Post & Telegraph Department of Union of India at various places. While deprecating the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs on the department and further classifying such casual employees into three classes for the purpose of making different levels of payment of wages as violative of Article 14 & 16 of the Constitution, the Court said: " India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of works to jut and favourable remuneration ensuring a decent living for himself and him family, .......... and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures...... It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time. Where is any jurisdiction to keep persons as casual labourers for years as is being done in the Post and Telegraphs Department? Is it for paying them lower wages? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers ...... Let us remember the slogan ;
"Produce or Perish". It is not an empty slogan. We fail to produce more at Page 63 of 89 C/SCA/3062/2015 CAV JUDGMENT out own peril. It is against this background that we say that non regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and telegraphs Department."
44 This positive mandate was issued by the Supreme Court to regularize the services of the casual workers on rational basis to give effect to the Constitutional mandate.
45 In Jacob M. Puthuparamibil v. Kerala Water Authority [1990 AIR 2228], the question arose in connection with the employees serving under the Kerala Water Authority. They were employed through the employment exchanges between 1st April, 1984 and 4th August, 1986. The petitions were filed apprehending termination of their services as their appointments were on temporary basis. The High Court dismissed the petitions which led to appeals before the Apex Court. Some petitions were also filed before the Supreme Court directly under Article 32. The Court referred to Rule 9 which permitted to fill immediate vacancy in emergency temporarily otherwise then in accordance with law. Notwithstanding the rule required that such temporary employment should not continue for period exceeding three months i.e. 180 days and the person so temporarily appointed should be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules but their urgent temporary appointments continued for longer period. The Court referred to Part III of Constitution and said:
"The Constitution guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends protection against exploitation of labour including child labour. After extending these guarantees, amongst others, the Constitution makers proceeded to chart Page 64 of 89 C/SCA/3062/2015 CAV JUDGMENT out the course for the governance of the country in Part IV of the Constitution entitled 'Directive Principles of State Policy'. These principles reflect the hopes and aspirations of the people. Although the provisions of this part are not enforceable by any court, the principles laid down therein are nevertheless fundamental in the governance of the country and the State is under an obligation to apply them in making laws. The principles laid down therein, therefore, define the objectives and goals which the State must endeavour to achieve over a period of time. Therefore whenever the State is required to make laws it must do so consistently with these principles with a view to securing social and economic freedom so essential for the establishment of an egalitarian society. This part, therefore, mandates that the state shall strive to promote the welfare of the people by minimising the inequalities ...... and by making effective provision for securing the right to work as also to public assistance in cases of unemployment, albeit within the limits of its economic capacities. ...... Thus the Preamble promises socioeconomic justice, the fundamental rights confer certain justiciable socioeconomic rights and the Directive Principles fix the socioeconomic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution."
46 The Court then referred to earlier decisions of the Supreme Court in P.K. Narayani v. State of Kerala [1995 SCC (1) 142], and the Dally rated Casual Labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], and directed the regularisation of the four categories of employees.
47 While emphasising that the normal rule is that regular recruitment should be through prescribed agency but countenanced that the exigencies may call some times for an ad hoc/temporary employees by a regularly selected employee as early as possible and that ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
48 However, the Court also noticed equities arising from continued Page 65 of 89 C/SCA/3062/2015 CAV JUDGMENT temporary employment for a fairly long spell and said:
"If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service recorded is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not a already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf.
49 More importantly, the Court observed in relation to workmen coming under the umbrella of the Industrial Disputes act and other welfare legislations by noting the status of the work charged employees and said:
"So far as workcharged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and. subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years a resumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. ............ These are but a few observations which we though it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
50 While holding in principle that the employee whose entry in service is illegal being in total disregard of recruitment rules or being not on existing vacancy, has no case for regularisation, distinction was Page 66 of 89 C/SCA/3062/2015 CAV JUDGMENT pointed out by the Supreme Court between the cases requiring regularisation and the cases in which regularisation of services cannot be considered in Ashwani Kumar v. State of Bihar [AIR 1997 SC 1628], the Court said:
"In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies Vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and incumbents have continued to be employed any artificial breaks, and their services are otherwise required by the institution which employees them, a time may come in the service career of such employees who such an employees must be made against an available sanctioned vacancy by following the rules and regularisation may arise would be when the initial entry of the employees against an available vacancy is found to have suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial the irregular initial appointment may be made available to the concerned initial entry must not be found to be of all the established rules and in any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employees whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. tainted from the very beginning and no entrant would ever survive for recruiting this latter class of cases."
51 In the case of Gujarat Agriculture University v. Labhu Bechar [AIR 2001 SC 201], the Supreme Court again had the occasion to consider the issue about the concept of prolonged temporary casual appointment and the obligation of the State or instrumentality of the State towards such employees for regularisation. The appellant before the Supreme Court was the Gujarat Agricultural University, which is fully aided by the State of Gujarat and is engaged in educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied sciences. It engaged Page 67 of 89 C/SCA/3062/2015 CAV JUDGMENT daily rated workers for its various activities. Those workers were paid as per the minimum wages fixed by the State Govt. from time to time. Such persons were engaged due to the exigencies of work without considering the relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the recruitment rules. Those daily rated workers employed at the different agricultural research centres at different places with different projects were unskilled, semiskilled, skilled and field labourers of the different categories. Since the University is grantinaid institution fully funded by the State Government, it requires prior sanction by the State Government for appointment of its employees. In fact, all the posts sanctioned by the State Government were filled by the University as per the recruitment rules. But in the case of daily wage workers who were plumbers, carpenters, sweepers, pump operators, helpers and masons etc., no posts were sanctioned for them and hence they were working on daily rate basis, thus, their appointment were on irregular basis and not in accordance with the recruitment rules. In the aforesaid scenario, the appellant Gujarat agricultural University had contested the claims of its workmen for regularisation and permanent status. A Single Judge of this Court relying on the decision of the Supreme Court in Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India [(1988) 1 SCC 122], in the case of Gujarat Agricultural University v. Rathod Labour Bechar (supra), had directed the Gujarat Agricultural University to submit scheme for conferring regularisation and also directed that such a scheme of giving permanent status could not be confined to the workmen before the Court as large number of such workers were involved, disputes about which were pending in various labour Courts, and with the suggestion that it would be fair and just instead of making multiple schemes for such purpose separately in each case to frame a comprehensive scheme Page 68 of 89 C/SCA/3062/2015 CAV JUDGMENT for the purpose of considering all pending litigations. Appeal against that order was dismissed by a Division Bench and further appeal before the Supreme Court during the course of which the appellant Gujarat Agricultural University challenged the direction of framing a scheme of regularisation for its workmen in a phased manner. It is in the aforesaid circumstances that the right to claim regularisation was questioned by the University. The Court observed:
"It is also well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees legitimate claim, has been held by this Court repeatedly as an unfair labour practice.
52 Therefore, the Court denouncing the new culture of taking work from the daily wage worker or ad hoc appointee for a long time either for financial gain or for controlling workers more effectively with the sword of democles hanging over their heads, said:
"If the work is of such nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them ...... In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption."
53 The Court buttressed this conclusion by referring to the Daily rated casual labour employed under P & T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India (supra), State of Haryana v. Piara Singh (supra), Surender Singh v. EngineerinChief, CPWD [(1986) 1 SCC 639], Mool Raj Upadhavava v. State of Himachal Pradesh [1994 Supp (2) SCC 316], Dharwad Distt. PWD Literate daily wages employees Association v. State of Karnataka [(1990) 2 SCC 396], Page 69 of 89 C/SCA/3062/2015 CAV JUDGMENT Bhagwati Prasad v. Delhi State Mineral Development Corporation [(1990) 1 SCC 361] and large number of other cases also.
54 From the aforesaid discussion, it is apparent that the Supreme Court has viewed the continuance of employment on temporary, casual and ad hoc basis to be an act of arbitrariness violative of Articles 14, 16 & 21 of the Constitution read in light of the Directive Principles of State Policy enshrined in Articles 39, 41 & 42 of the Constitution. The test of reasonableness in State action pervades the constitutional scheme particularly with reference to Articles 14 & 21 which confines its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action.
55 In Central Inland Water Transport Corporation Ltd. v. Brojo Nath (2B) [1986 AIR 1571], the Court said:
"...... State actions, including actions of the instrumentalities and agencies of the State, must not only be in conformity with the Fundamental Rights guaranteed by Part 111 but must also be in accordance with the Directive Principles of State Policy prescribed by Part IV. Clause (a) of Article 39 provides that the Stale shall, in particular, provides that the State shall, in particular, direct its policy towards "securing that the citizens, men and women, equally have the right to adequate means of livelihood." Article 41 requires the State, within the limits of its economic capacity and development to "make effective provisions for securing the right to work".
An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the means of livelihood. The mode of making "effective provision for securing the right to work" cannot be by giving employment to a person and then without any reason throwing him out of employment. The action of an instrumentality or agency of the State, if it frames a service rule such as Clause (a) of Rule 9 of a rule analogous thereto would, therefore, not only be violative of Article 19 but would also be contrary to the Directive Principles of State Policy contained in Clause (a) of Article 39 and in Article 41."
56 In this connection, following observations from the Supreme Court Page 70 of 89 C/SCA/3062/2015 CAV JUDGMENT in Bandhua Mukti Morcha v. Union of India [1984 SCR (2) 67], also invite my attention.
"It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case (AIR 1980 SC 849) to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly Clauses (e) and
(f) of Article 39 and Articles 41 and 42."
The Court went on to say after observing that the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Article 41 are not enforceable in a Court of law, it may not be possible to compel the State through judicial process to make law "But where legislation is already enacted by the State providing those requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 256 which provides that, the executive power of every state shall be so exercised as to ensure shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The Slate is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when the belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central government is therefore bound to ensure observance of various social welfare and labour laws enacted by parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy."
57 With these premise the Court held that State of Haryana cannot be permitted to deny benefits of various social welfare and labour laws enacted with a view to enabling them to live a life of human dignity. The State must therefore ensure that the employers observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the Central Government and the State by a writ petition under Article 32 of the Constitution."
Page 71 of 89 C/SCA/3062/2015 CAV JUDGMENT58 Thus the implementation of law to give effect to Directive Principles of State Policy are also enshrined in Articles 39, 41 & 42 as has been placed on such high pedestal to be enforceable as the fundamental Rights by invoking Article 39 of the Constitution.
59 Likewise, in Union of India v. Hindustan Development Corporation [1993 SCR (3) 128], on the interplay of Articles 14, 19 and 21 of Part III of the Constitution and Directive Principles of the State Policy, the Court said:
"now coming to the test of reasonableness which pervades the constitutional scheme, the Court in several cases particularly with reference to Articles 14, 19 and 21 has considered this concept of reasonableness and had held that the same finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action."
60 Reference was made by the Court in this connection to the cases of E.P. Royappa v. State of Tamil Nadu [1974 SCR (2) 348], Meneka Gandhi v. Union of India [1978 SCR (2) 621] and Kasturi Lal Lakshmi Reddy v. State of & Kashmir [1980 SCR (3)1338].
61 It may be noticed that prior to the decision in Royappa's case, the test of reasonableness in Article 14 was confined to examine case of discrimination on the touchstone of reasonableness of classification having a rationale nexus to the object sought to be achieved by such classification. But in Royappa's case, the Apex Court opined the most potent and positivist dimension of the spirit and soul of Article 14 cutting at the roots of arbitrariness, unreasonableness and unfairness in every sphere of State action.
Page 72 of 89 C/SCA/3062/2015 CAV JUDGMENT62 After posing the question: "Now what is the content and reach of this great equalising principle", the Court observed:
"It is a founding faith, to use the words of Bose, J., "a way to life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenanced any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affect any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."
Coming to the temporary and hoc appointments, the Court said: "It is also necessary to point out that ambit and reach of Articles 14 & 16 are not limit to cases where public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine, it is, therefore, no answer to the charge of infringement of Articles Hand 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post."
63 The view was reiterated by the Court in Maneka Gandhi's case and Ajay Hasiya's case. In Maneka Gandhi's case the Court said:
"No attempt should be made to truncate its also embracing scope and meaning, for to do so would be to violate its magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic which the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as Page 73 of 89 C/SCA/3062/2015 CAV JUDGMENT philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 to must be right and just and fair and not arbitrary, fanciful or oppressive."
64 The principle was reiterated in Ajay Hasiya's case [1981 AIR 487 : 1981 SCR (2) 79].
65 On the aforesaid premise, the requirements of the State to consider regularisation as a positivist, in its manifestation of fundamental right under Articles 14, 16 & 21 of the Constitution as animated in Directive Principles of State Policy and law enacted by Parliament on the subjects enumerated in the Concurrent list entries No. 21, 21 & 24 in the form of Industrial Disputes act, and the provisions made thereunder and the right to remedy against indefinite continuance in the service without the permanent status and regular employment resulting in unfair labour practice is a part of the Fundamental right.
66 To sum up the principles deduced from the long chain of decided cases it can be said to be well settled:
(i) In the matter of Government service normal rule is regular recruitment through prescribed agency, the recruitment of ad hoc or temporary hands is an exceptional leeway permitted due to exigencies of administration. In such a fact situation the endeavour will also be to replace such temporary employee by regular selected employees.
(ii) that law does not favour ad hoc or temporary employment continuing for long spells, as it breeds unhealthy and unreasonable service environment endangering industrial peace perilously affecting dignity and quality of life of those whose security of work is under constant threat.Page 74 of 89 C/SCA/3062/2015 CAV JUDGMENT
(iii) Article 14 of the Constitution is embodiment of rule against arbitrariness and unreasonableness in the State action in all spheres of its activities. Article 21 of the Constitution which guarantees protection against deprivation of life and personal liberty includes within it the right to dignified livelihood. Article 39(d) spells out the directive principles of the State policy towards securing equal pay for equal work for both woman and man and Article 42 stipulates the Directive Principles of the State policy in securing just and humane conditions of work.
(iv) equal pay for equal work and security of employment by regularising casual employees of long duration within a reasonable period have been unanimously accepted as Constitutional goal to our policy. To this end, thrust has been that the management particularly Govt. agencies should not allow workers to remain as casual labourers or temporary employees for unreasonably long period of time.
(v) mere continuation for some period on ad hoc by itself does not give a right to permanency but where for any reason ad hoc or temporary or work charged employees are continued for fairly long spell they have a right to claim regularisation and the authorities are under obligation to consider their case for regularisation in a fair manner.
(vi) regularisation cannot be resorted to by the governmental agencies as mode of fresh recruitment to permit back door entries to frustrate the mandate of Article 16 by making a straight jacket measure of service for regularising the appointment made de hors the rules, unmindful of the circumstances under which the appointment had been made.
(vii) the first condition for laying claim for regularisation is availability of work on reasonably permanent basis. Mere continuance for some time of a casual or ad hoc employee does not give right to presume about need for continued employment or work charged but continuation of casual or ad hoc employee or work charged for a long duration of several years raises a presumption for need for regular permanent employment may be justified.Page 75 of 89 C/SCA/3062/2015 CAV JUDGMENT
(viii) Apart from the right to reasonable treatment by the State agencies and security of job emanating from the Constitutional provisions, Industrial Disputes Act is a legislative measure giving effect to the directive principles of State Policy in the field of ensuring equal pay for equal work and ensuring security of job with just and humane conditions by providing prohibition against practising of unfair labour practice both by employers and employees and defining the term unfair labour practice to include practice of engaging workman for long spells characterising them badli, casual, temporary, ad hoc work charged with the object of denying them the status of permanency and benefits and privileges attached thereto.
(ix) A claim by workers, continuing for long spell as casual or temporary or work charged under an employer governed by the Industrial Disputes Act, to permanency is a demand which can be achieved through collective bargaining or a claim giving rise to a industrial dispute which can be enforced through adjudication under the provisions of the I.D. Act.
(x) Adjudication of claim for permanent status as an industrial dispute which has been made subject matter of reference to the Industrial tribunal is governed by the principles emanating from the provisions of Industrial Disputes Act which by necessary implication involves determination of question whether continued casual or temporary employment is a bonafide administrative exigency simplicitor or amounts to unfair labour practice on the part of the employer, inasmuch as claim to permanency under Industrial Disputes Act directly emanates from prohibition against unfair labour practice adopted by the employer.
(xi) In situation emerging from long spell of ad hoc or temporary or casual employment of daily rated workmen, courts have consistently resorted to issue of directions for framing a scheme for regularisation of such workmen on a just and fair basis to the employer or have also issue of directions for regularising the petitioners before it as the circumstances of the case may warrant but ordinarily in the first instance an opportunity is being given to the employer himself to frame a scheme in a fair and just manner of absorbing such casual workmen on permanent basis whether in one go or in a phased manner and has considered objections thereto, if any, before according its approval to such scheme.Page 76 of 89 C/SCA/3062/2015 CAV JUDGMENT
(xii) In considering the question of granting relief as to conferring status of permanency and emoluments and privileges attached thereto, primary consideration is existence of permanent nature of work for such casual employees to be utilised against it and the extent of absorption on regular and permanent basis depends upon the extent of regular work available against which temporary employee can be regularly employed. Regularisation or permanency is not to be resorted in case where the establishment by itself is of temporary nature; where the employment is not with the object of offering employment but for ameliorating financial condition of weaker sections of the society like employment under Jawahar Yojana or where employment has been secured or offered by committing illegalities, irregularities or fraud as in the case of Ashwani Kumar (supra) where the appointments were found to have been given to six thousand persons out of all proportion to the then existing requirement of the project for about 800 persons only, by the Director of the project Mr. Malik by committing illegalities, irregularities and fraud as per the investigation report. In which case the appointments against rules were held to be nullity and void ad initio.
67 The aforesaid principles are equally applicable to the temporary / contractual / adhoc / temporary employees of any Nagarpalika in the State of Gujarat. This petition has been mainly resisted by the Nagarpalika on three grounds: first, that the temporary employees were not appointed in accordance with the rules and regulations and they do not qualify for the respective posts; secondly, the employees of the Valsad Nagarpalika have an alternative remedy available to them under the Industrial Disputes Act, 1947 and they have already initiated appropriate proceedings before the appropriate authority under the Act, 1947; and thirdly, the expenditure of the Nagarpalika should not exceed more than 48% than the actual income. None of the three grounds are convincing or cogent enough to deny the reliefs prayed for by the Union on behalf of the employees. As noted above, the Nagarpalika has made a mockery of justice. The case on hand is nothing, but highhandedness Page 77 of 89 C/SCA/3062/2015 CAV JUDGMENT and arbitrariness on the part of the governing body of the Nagarpalika. After taking service of 19 employees posted in the Fire Brigade Department past more than twenty five years, does it lie in the mouth of the Nagarpalika to contend that they do not qualify to be appointed on regular basis? For all this period of years, they have served the Fire Brigade Department without any complaint of dereliction of duty or carelessness or negligence, etc. In fact, the Nagarpalika is wholly dependent on the temporary employees incharge of the Fire Brigade Department in cases of fire and other natural calamities. I am referring to the Fire Brigade Department just by way of an example. There are many other departments in which the employees are daily wage / temporary past more than twenty years. The chart, which has been provided in para : 21 makes the position abundantly clear. At least, one thing is clear that the Nagarpalika has not been able to deny in this petition that the employees in the different departments are serving as daily wage / temporary employees past more than twenty five years and they are not being paid even the minimum wages in accordance with the provisions of the Minimum Wages Act and the resolutions passed by the State Government in that regard time to time.
68 I have to my advantage a judgment of this Court rendered by a learned Single Judge in the case of Atul C Soni and others vs. Gujarat Water Supply and Sewerage Board passed in the Special Civil Application No.1563 of 1992 and allied petitions dated 31st January 2013. In the said judgment, in paras 2.1, 2.2 and 3, the facts have been recorded. Paras 2.1, 2.2 and 3 are as under:
"2.1 Learned senior advocate Mr.Oza for the petitioners in Special Civil Application No.1563 of 1992 stated that all the petitioners were appointed as daily wagers with the respondent Gujarat Water Supply and Sewerage Board (respondent Board for short) upto the year 1988 and all are given Page 78 of 89 C/SCA/3062/2015 CAV JUDGMENT benefits flowing from the Government Resolution dated 17.10.1988, whereby on completion of stipulated years of service, they are taken in the pay scale, however, it is the grievance of the petitioners that though the petitioners are granted benefits of Government Resolution dated 17.10.1988, some benefits are not extended to them, which are otherwise given to other permanent employees. To elaborate this grievance, it is stated that by learned counsel for the petitioners that benefits like, Transport Allowance, Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concessions, are not extended to this set of employees.
2.2 Learned advocate for the petitioners in this petition has stated that, in view of the policy of the Government as contained in Government Resolution dated 17.10.1988, on completion of five/ten years of service, the persons who are originally appointed as daily wagers, are treated as regular employees, their pay is fixed in the regular pay scale and other service conditions are also like any other regularly appointed employee. It is further stated that all these petitioners are given the regular pay scale like any other employee of the respondent Board, however above mentioned five benefits are not given to these petitioners. It is pointed out that in view of the policy of the Government as well as settled position of law, it is illegal and impermissible to discriminate between two sets of employees, on the ground of their initial mode of appointment, though now they are working at par on all counts. In this regard, reliance is placed on the decision of Division Bench of this Court in the case of State of Gujarat versus Mahendrakumar Bhagwandas reported in 2011 (2) GLR 1290 (LPA No.958 of 2001 and cognate matters, dated 18.03.2011). It is also indicated that the said judgment of the Division Bench of this Court was challenged by the State Authorities before Hon'ble the Supreme Court of India and the said challenge also failed vide order dated 09.11.2012 recorded on SLP (Civil) 3504335048 of 2012. It is therefore contended that this issue is already concluded by this Court and these petitioners be also granted such benefits.
3. Mr. D.G.Chauhan, learned counsel for the respondent Board contended that, so far the grievance voiced in Special Civil Application No.1563 of 1992 is concerned, the benefits flowing from Government Resolution dated 17.10.1988, regarding grant of pay scale and payment of dearness allowance, etc. are already extended to the petitioners and the benefits which do not flow from Government Resolution dated 17.10.1988 could not be claimed by the petitioners. Regarding the reliance placed by the petitioners on the decision of Division Bench of this Court in the case of State of Gujarat versus Mahendrakumar Bhagwandas [LPA No.958 of 2001] (supra), learned counsel for the respondent Board contended that in the said case, the permanency benefit was granted by the learned Single Judge and while rejecting the appeals against the said order, the Division Bench had expressed this view, and therefore the said judgment Page 79 of 89 C/SCA/3062/2015 CAV JUDGMENT can not be applied in the facts of this case."
69 While allowing the petitions, this Court observed as under:
"8. Having heard learned counsel for the respective parties and having gone through the record, this Court finds that Government Resolution dated 17.10.1988 inter alia provided that no appointment as daily wager shall be made by any office thereafter. Said Government Resolution dated 17.10.1988 was adopted as a policy by the respondent Board vide circular dated 08.06.1989. The said circular dated 08.06.1989 is on record along with affidavit in rejoinder. As per the said policy of the Government, no appointment was to be made as daily wager, thereafter. It needs to be observed that this policy of the Government has remained only on paper, and considering the nature of work of different Governmental organizations performing public duties, like the respondent Board which is assigned with the public duty of water supply and sewerage, the said policy is observed more in breach than in compliance. In this background, daily wagers continued to be appointed even in the respondent Board, even after circular of the Board dated 08.03.1989, and therefore the respondent Board again issued a circular dated 30.11.1994, reiterating that no more daily wagers be now appointed. Learned advocate Mr. Munshaw was specifically asked to confirm that at least after 30.11.1994, no daily wager is appointed in the respondent Board. To this, learned advocate Mr. Munshaw, after taking instructions from the authorities of the respondent Board, had stated that even after 30.11.1994, hundreds of daily wagers are appointed in the different offices of the respondent Board. Statement giving details in this regard is also placed on record. The present petitioners are denied benefits of Government Resolution dated 17.10.1988 only on the ground that they are appointed after circular of the respondent Board dated 30.11.1994, and the said circular provided that no more daily wagers would now be appointed. In this regard it needs to be recorded that, no daily wager was to be appointed after 1988/1989 by the respondent Board as per its own policy, then also such appointments were made and they are given benefit also flowing from Government Resolution dated 17.10.1988. Respondent Board reiterated such policy on 30.11.1994 and no daily wager was to be appointed thereafter but still the respondent Board appointed hundreds of such persons, like the petitioners. Further it would be wrong to call such appointments as an illegality by the respondent Board, since the same was for its genuine needs, to discharge its obligation of public service. When it comes to grant of benefit of Government Resolution dated 17.10.1988 to these daily wagers, it is the management of the respondent Board which terms its action of appointing these daily wagers as an illegality, which is not only not acceptable in law but needs to be rejected and deprecated. Reference in this regard can be made to the decision of Hon'ble the Supreme Court of India in the Page 80 of 89 C/SCA/3062/2015 CAV JUDGMENT case of Bharatiya Seva Samaj Trust versus Yogeshbhai Ambalal Patel and Another reported in (2012) 9 SCC 310, wherein, the Supreme Court has held to the effect that an employer can not agitate that he had committed some illegality at some point of time and therefore, the concerned employee is not entitled to some benefit. In view of this judgment, the argument of learned counsel for the respondent Board that daily wagers appointed by them after 30.11.1994, were illegal appointees and therefore they are not entitled to any relief, is rejected.
9. So far reliance placed by the learned counsel for the respondent Board on the decision of this Court in Special Civil Application No.26790 of 2007 and cognate matters dated 01.07.2009 is concerned, I find that the circular of the respondent Board dated 08.06.1989 was not put to the notice of the Court and the effect of its subsequent circular dated 30.11.1994 was also not point at issue. Further, after upholding the said order dated 01.07.2009 by the Division Bench on 11.10.2010 in Letters Patent Appeal No.2117 of 2010, there is subsequent decision of Division Bench of this Court dated 18.03.2011 and even an Special Leave Petition against the said judgment is dismissed as noted above. Further, the said, subsequent decision of the Division Bench of this Court dated 18.03.2011 is exactly on the point which is under consideration in this group of petitions. Under these circumstances, I am bound by this subsequent decision of Division Bench of this Court, which is followed to record this judgment and order, in this group of petitions. Learned advocate for the respondent Board has relied on the judgment of the Supreme Court in the case of Raghavendra Rao and Others versus State of Karnataka and Others reported in (2009) 4 SCC 635, to contend that when the appointments were not made legally, the appointees can not claim benefits. However, as recorded above, the view expressed by Hon'ble the Supreme Court of India in the case of Baratiya Seva Samaj Trust (supra) is not only subsequent and will have binding force, but on facts, is squarely applicable in this group of petitions, which this Court has followed.
10. Considering the totality of the facts and law as discussed above, I find that the grouping of daily wagers sought to be made by the respondent Board on the basis of the cut off date of 30.11.1994, to deny benefits of Government Resolution dated 17.10.1988, is illegal and arbitrary and the same is rejected. It is held that even those daily wagers who are appointed after 30.11.1994 shall also be extended the benefits of Government Resolution dated 17.10.1988 and thus, they will stand at par with the petitioners of Special Civil Application No.1563 of 1992 and shall also be entitled to the benefits, which are claimed by and are directed to be paid to the petitioners of Special Civil Application No.1563 of 1992.
11. It is indicated by Learned advocates for the respondent Board that, Page 81 of 89 C/SCA/3062/2015 CAV JUDGMENT during pendency of these petitions, some of the petitioners, either have abandoned their job and one was terminated for misconduct, by the respondent Board. In this regard therefore it is clarified that, while giving effect to the directions contained in this judgment and order, such persons shall be entitled to benefits only till they were in service and the judgment in this petitions ipso facto would not result in their reinstatement in any manner.
12. For the reasons recorded above, all these petitions are allowed. Respondents are directed to grant benefits of Government Resolution dated 17.10.1988 to these petitioners, as directed and clarified by this Court in the judgment and order dated 18.03.2011 recorded in Letters Patent Appeal No.958 of 2011 and cognate matters. The calculation regarding the benefits flowing from these directions shall be made within a period of four months from today and actual payment thereof shall be made to the petitioners within a period of eight months from today.
13. Though above directions are qua the present petitioners only, it is expected that similarly situated poor persons working with the respondent Board may not be forced into avoidable litigation.
14. Rule, in each petition made absolute. No order as to costs."
(emphasis supplied) 70 The aforesaid judgment passed by the learned Single Judge came to be challenged before a Division Bench of this Court by filing the Letters Patent Appeal No.325 of 2013 and allied appeals. All the appeals filed by the Gujarat Water Supply and Sewerage Board came to be dismissed observing as under:
"12. Now, we may proceed to examine the case of the daily wagers appointed after 30.11.1994. It is the contention of the appellants that the Board had taken a policy decision on 30.11.1994 that no new daily wagers be appointed. Still, they were appointed without prior permission or even intimation to the higher authorities, for which penalties are imposed on number of officers for breach of administrative instructions issued on 30.11.1994. The appointment as daily wagers at the grass root level are without following any regular procedure laid down for regular recruitment and therefore they do not have any right of regularization or the benefits flowing from the Government Resolution dated 17.10.1988.
13. It is an admitted position that the appellant Board adopted the Government Resolution dated 17.10.1988 as a policy vide its circular Page 82 of 89 C/SCA/3062/2015 CAV JUDGMENT dated 08.06.1989. The said Resolution, interalia, provides that no appointment as daily wager shall be made by any office thereafter. Still, daily wagers continued to be appointed by the Board and they were given benefits flowing from the aforesaid Government Resolution. Thereafter the appellant Board reiterated its policy vide another Circular dated 30.11.1994 that no daily wager shall be appointed but still hundreds of daily wagers came to be appointed after 30.11.1994 and now the Board denies to extend the benefits flowing from the Government Resolution dated 17.10.1988 to such daily wagers appointed after 30.11.1994 terming their appointment as illegal, which cannot be accepted as it is arbitrary and bad in law. On one hand, the Board issues circular that no daily wagers shall be appointed from 30.11.1994 and still the very Board appoint hundreds of daily wagers in gross violation of their own policy and after passage of more than 15 years terming the action of appointing these daily wagers as illegal cannot be accepted and needs to be rejected. The Board cannot punish others for their own wrongdoings. It is a settled legal proposition that a person alleging his own infamy cannot be heard at any forum. If a person has committed a wrong, he cannot be permitted to take the benefit of his own wrong,
14. In view of the above discussion, we see no infirmity in the judgment and order passed by the learned Single Judge and we are in complete agreement with the reasons recorded by the learned Single Judge.
15. For the foregoing discussions and reasons, the common judgment and order dated 31.1.2013 passed by the learned Single Judge in Special Civil Application No.11280 of 2013 and cognate matters requires no interference. Letters Patent Appeal Nos.325 of 2013, 326 of 2013, 327 of 2013, 328 of 2013, 329 of 2013 and 330 of 2013, accordingly, stand dismissed."
(Emphasis supplied) 71 The Division Bench of this Court referred to above was questioned before the Supreme Court by filing Special Leave to Appeal Nos.29108
- 29114 of 2014 [Gujarat Water Supply and Sewerage Board and others vs. PWD Employees Union and others]. The order passed by the Supreme Court dated 25th October 2017 in the S.L.P. reads as under:
"These petitions are disposed of in terms of the statement made on behalf of the petitioner - Board recorded in the order of this Court dated Page 83 of 89 C/SCA/3062/2015 CAV JUDGMENT 14.08.2015."
The order dated 14th August 2015 referred to by the Supreme Court while disposing of the S.L.P. reads as under:
"UPON hearing the counsel the Court made the following ORDER SLP(C) No. 29114 of 2014:
Service in SLP (C) No. 29114 of 2014 is incomplete. Unserved respondents may be served dasti.
Mr. L.N.Rao, learned senior counsel for the petitioner Board submits that the Board has taken a decision in principle that even such of the employees as were appointed on daily wage basis after the year 1994 shall be entitled to the benefits of Government Order dated 17.10.1988. He submits that in the light of the said decision, benefits admissible to such employees shall be released for the future in terms of the order of this Court within a period of six weeks. That submission is recorded.
Post the SLPs for hearing on a nonmiscellaneous day."
The Special Leave Petition also came to be dismissed with minor modification. I am of the view that the resolution dated 17th October 1988 or rather the spirit or the policy laid down in the same should be made applicable also to the employees of the Nagarpalika. This would be in tune with Article 14 of the Constitution of India. The reason for referring to and relying upon the decision of this Court in Atul Soni (supra) is to outright reject the vociferous contention canvassed on behalf of the Nagarpalika that all the temporary employees were appointed at the relevant point of time without following any process of law and they otherwise also do not qualify for being appointed to such Page 84 of 89 C/SCA/3062/2015 CAV JUDGMENT posts. In Atul Soni (supra), as affirmed by the Division Bench and further affirmed by the Supreme Court in S.L.P., it has been clearly laid down that a person alleging his own infamy cannot be heard at any forum. If a person has committed a wrong, he cannot be permitted to take the benefit of his own wrong.
72 India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of every one who works to just and favourable remuneration ensuring a decent living for himself and for family, the right of every one without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so Page 85 of 89 C/SCA/3062/2015 CAV JUDGMENT that they may contribute to the maximisation of production. It is again for this reason that managements and the Governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time. Where is any justification to keep persons as casual labourers for years as is being done in the Postal and Telegraphs Department? Is it for paying the lower wages? Then it amounts to exploitation of labour. Is it because you do not know that there is enough work for the workers? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers. The employees belonging to skilled, semiskilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place. Administrators should realise that if any worker remains idle on any day, the country loses the wealth that he would have produced during that day. Our wage structure is such that a worker is always paid less than what he produces. So why allow people to remain idle? Anyway they have got to be fed and clothed. Therefore, why don't we provide them with work? There are several types of work such as road making, railway construction, house building, irrigation projects, communications etc. which have to be undertaken on a large scale. Development in these types of activities (even though they do not involve much foreign exchange) is not keeping pace with the needs of society. We are saying all this only to make the people understand the need for better management of man power (which is a decaying asset) the nonutilisation of which leads to the inevitable loss of valuable human resources. Let us remember the slogan: "Produce or Perish". It is not an empty slogan. We fail to produce more at our own peril. It is against this background that we say that nonregularisation of temporary employees or casual labour for a long period is not a wise policy. [See :
Daily Rated Casual Labour employed under P & T Dept, through Page 86 of 89 C/SCA/3062/2015 CAV JUDGMENT Bhartiya Dak Tar Mazdoor Manch vs. Union of India and others reported in 1988 (1) SCC 122 : AIR 1987 SC 2342].
73 In the aforesaid view of the matter, this petition is disposed of with the following directions:
[1] The concerned employees of the respondent - Nagarpalika are held to be entitled to the minimum of the pay scale of the posts on which they are working for a period extending five years.
[2] The respondent - Valsad Nagarpalika is directed to pay the minimum of the pay scale attached to the respective posts from 1st January 2019 onwards to all the temporary employees in employment, who have put in more than five years of service and still continue to be in service. Their pay shall be fixed and paid accordingly with effect from 1st January 2019.
[3] All the temporary employees shall be paid the arrears towards the difference of salary of past five years within a period of six months from the date of receipt of the writ of this order. Although the daily wagers / temporary employees are entitled to arrears from the period of completion of initial five years, yet with a view to see that the Nagarpalika may not have to face the financial burden, the arrears of past five years shall be paid.
[4] The Director of Municipalities, State of Gujarat is directed to frame a scheme for regularisation of all the daily wagers / Page 87 of 89 C/SCA/3062/2015 CAV JUDGMENT temporary employees on the establishment of the Valsad Nagarpalika within a period of three months from the date of receipt of the writ of this order.
[5] All the proposals pending with the Urban Housing and Urban Development Department as well as the Director of Municipalities, State of Gujarat with respect to the Valsad Nagarpalika, more particularly, for enhancement of the present set up having regard to the inclusion of areas situated at the outskirts of the Valsad Town, shall be considered and disposed of in accordance with law within a period of three months from the date of receipt of the writ of this order.
[6] The Valsad Nagarpalika is directed to fill up the balance sixty nine posts on the basis of the old rules and not the amended rules in view of the decision of the Supreme Court in the case of Narendra Kumar Tiwari (supra).
Considering the case of the employees for regularisation in service as per the scheme, that may be framed by the Director of the Municipalities, the set up of rules, which were in force prior to the amended rules, shall be made applicable.
[7] The calculation regarding the benefits of arrears flowing from these directions shall be undertaken within a period of four months from the date of receipt of the writ of this order and actual payment thereof shall be made to all the temporary employees within a period of eight months from today.Page 88 of 89 C/SCA/3062/2015 CAV JUDGMENT
74 With the above directions, this writ application is disposed of.
75 The Registry shall post this matter once again after a period of three months to report compliance of the directions issued by this Court.
76 The Registry is directed to forward one copy of this judgment to the Director of Municipalities, State of Gujarat at the earliest. The Director of Municipalities, State of Gujarat is directed to look into the judgment and act accordingly.
(J.B.PARDIWALA, J) CHANDRESH Page 89 of 89