Gujarat High Court
Das Bakuleshkumar Bachubhai vs Govt Of India on 20 March, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21920 of 2005
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 21920 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 8607 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8908 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8595 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8608 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8987 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8738 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8890 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 7301 of 2004
With
R/SPECIAL CIVIL APPLICATION NO. 6755 of 2008
With
R/SPECIAL CIVIL APPLICATION NO. 9696 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 10141 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16935 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 12814 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 14928 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 21994 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 18054 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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NEUTRAL CITATION
C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025
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Approved for Reporting Yes No
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DAS BAKULESHKUMAR BACHUBHAI & ORS.
Versus
GOVT OF INDIA & ORS.
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MS ADITI S RAOL(8128) for
the Petitioner(s) No. 10,11,12,14,15,16,24,25,26,28,29,32,33,34,35,36
MR MA PAREKH(1088) for the Petitioner(s) No. 2,3,5,7,8,9
MR RK MISHRA(482) for the Petitioner(s) No.
1,13,17,18,19,20,21,22,23,27,30,31,4,6
MS MANISHA LAVKUMAR, ADDITIONAL ADVOCATE GENERAL with MR
JAY TRIVEDI, AGP for the Respondent(s) No. 2
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
MR IH SYED(2321) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/03/2025
ORAL JUDGMENT
1. Heard Mr. Shalin Mehta, the learned Senior Counsel assisted by Ms. Aditi S. Raol, the learned advocate appearing for the petitioners in the Special Civil Application No.7301 of 2004, Mr. R. K. Mishra, the learned advocate appearing for the petitioners in the Special Civil Application No.21920 of 2005, Ms. Manisha Lavkumar, the learned Additional Advocate General assisted by Mr. Jay Trivedi, the learned AGP appearing for the respondent No.2 - State and Mr. Ankit Shah, the learned advocate appearing for the respondent No.1 Page 2 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined
- Government of India.
2. By way of captioned petition and allied matters, the petitioners have invoked Article 226 of the Constitution of India against the action and inaction on part of the respondent authorities for not paying salary, as per the time scale of the post against which the petitioners were appointed against a clear, vacant, perennial and permanent post under the Scheme of Vocational Training Institutes in Tribal Areas ( for short the 'Scheme') evolved by the respondent No.1 Government of India which was hundred percent Central Government aided for achieving the constitutional goal, in pursuit of the directives principles of the said policy as provided under Part-IV and under Article 39 of the Constitution of India, pursuant to which the policy has been floated by the Union of India and the respondent No.2 State of Gujarat has been assigned to implement the said scheme under communication dated 8.12.1992 Annexure-D. Page 3 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined The prayers as prayed for in the Special Civil Application No.7301 of 2004 read thus :-
(A) Your Lordships may be pleased to issue a writ mandamus or any other appropriate writ, order or direction, commanding the respondent herein to permanently absorb the petitioners in service on the sanctioned posts in the VTIs/VICs and to award benefits like pay scale; pay fixation, increment, dearness allowance, travelling allowance, house rent allowance, medical allowance, tribal allowance, leave, public holidays, promotion! etc, which are admissible to State end Central Government employees;
(B) Your Lordships may be pleased to restrain the respondents herein from terminating the service of the petitioners or causing any adverse change in the service conditions of the petitioners;
(C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ order or direction, commanding the respondents herein to increase the fixed/consolidated monthly pay of the petitioners as prayed for in their representation dated 19.5.2002 addressed to the respondents herein;
(D) Pending admission and final hearing of the present Page 4 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined petition Your Lordships may be pleased to restrain the respondents herein from terminating the service of the petitioners and from causing and adverse change in their service conditions and be further pleased to direct the respondents herein to forthwith increase/revise the fixed/consolidated monthly pay of the petitioners as prayed dated tor by them in their representation 17.5.2002 addressed to the respondents herein; and (E) Your Lordships may be pleased other" appropriate order as interest of justice.
The prayers as prayed for in the Special Civil Application No.21920 of 2005 read thus :-
(A) Your Lordships may be pleased to hold and declare the action of the respondent authorities to be illegal, unconstitutional against the settled principle of law, therefore, null and void.
(AA) Your Lordship may be pleased to hold and declare that the petitioners herein are entitled to equal remuneration benefits and other service condition as available accorded to ITI Institution and to those of institutions private management under the grant in aid from the Government and further be pleased to hold and declare that Vidhyasahayak and Kaushlya Page 5 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Sahayak in other departments of the Government working on fixed salary of Rs. 5, 000/ is paid and thereafter they are being brought in time running scale such as the petitioners may also be brought into running time scale grade as per prevailing policy of the Government of Gujarat on completion of five years of fixed salary based on Government Resolution dated 16.02.2006 and 04.02.2009 (B) Your Lordships may be pleased to hold and declare that the petitioner is entitled to time scale salary, of the 5th Pay Commission Report, of Rs: 5500-175-9000 for the post of which is contemporary time scale of the employees serving in ITIs / vocational Training Institutes, therefore, be pleased to direct the respondent authorities to place the petitioner in the time scale salary of Rs: 5500-175-9000 from the initial date of appointment and accordingly to accord him all the benefits such as D.A., H.R.A, C.C.A., medical allowance, Tribal allowance, Bonus and all such other benefits and allowances available to the employees contemporarily serving in ITIs/ Vocational Training Institutions run by the respondent Government.
(BB) Your Lordship further be pleased to direct respondent authorities to accord all the benefits of services under Service condition available to ITI class 3 and class 4 employees on the ground of equality before the law and equal protection of law and constitutional mandate under Article 39 and to pay Page 6 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined arrears of salary to the petitioners on completion of five years of their service by putting into time scale of class 3 and class 4 employees and declared the petitioners entitled to all other service benefits which are made available under Rules and Regulations and as per the norms issued by the Government of Gujarat from time to time in the various department for fixed salary only for 5 years and not for providing such benefits and conditions of services to be illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of Constitution of India at the hands of Government of India and Government.
(C) Your Lordships may be pleased to direct the respondent 4//14 authorities to pay the arrears of salaries in difference computing it from the initial date of appointment and be pleased to direct the respondent authorities to pay the same to the petitioner.
(D) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice.
3. The captioned petition and allied matters are heard analogously. The pleadings are complete in the SCA No.21920 of 2005, upon request made by the learned counsels appearing for the respective parties the said petition shall Page 7 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined govern the facts of both the petitions and is also argued as lead matter. The judgment that would be rendered would be common for the captioned petitions.
4. Pursuant to the communication dated 8.12.1992, the Government of Gujarat passed Resolutions and Circulars etc., dated 8.12.1992, 2.3.1993, 26.7.1996, 27.8.1996, 11.9.1996, 2.11.1996, 7.10.1997 and the form of notification (U/R-4), Constitution of Selection Committee dated 23.1.1997 and scheme of loan dated 20.12.2000 and also the employee who resigned and left the services and further pros and cons and developments of the scheme in question dated 23.8.2000 of government officers of Gujarat, the increase in fixed pay dated 29.4.2000 and payment made through government treasury dated 28.9.2001 and also the status of staff and its duration order dated 3.1.2022. The said scheme was floated, as referred above, for certain Class-IV posts. 4.1 The aforesaid Scheme has been continuously run for more Page 8 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined than a decade, all vocational training institutes are having their infrastructure such as building for classes, for theatrical purpose and infrastructure of building and other requirement of practical training. The students have to compulsorily stay in the hostel and the hostels are run and managed by the government, meaning thereby the lodging, boarding and vocational trading classes, etc., are done in the building which have been erected by the respondent authorities except one or two which may be run in rented premises.
5. The petitioner No.1 in the Special Civil Application No.21920 of 2005 had been selected and appointed as Accountant upon following due process of law provided in this regard to select amongst the candidates by holding interviews, either by calling the names from employment exchange or by giving proper advertisement in the newspaper which is duly produced at Annexure-A (pages 16 to 19) and selecting the candidate from amongst eligible candidates, since the petitioner had been found to be successful in the interview and had been Page 9 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined appointed on a clear, vacant and permanent post, but not extending the benefits of time scale salary, dearness allow, H.R. CCA, tribal allowance, and all such other benefits which are attached with the post which is contemporarily being run and managed for a candidate with same qualifications, same nature of work, duration of working hours are same and paying such salaries to persons serving under ITIs (Industrial Training Institute), polytechnic institutions and other institutions which are hundred percent aided by Central Government and or State Government authorities. Therefore abstracting the same nature of work for the discharge of the same nature of duties with same qualifications and time duration of working hours is hit by the provisions of Articles 14, 16, 21, and 39D of the Constitution of India and denial of justice.
5.1 The petitioner No.1 came to be appointed on clear vacant post which is marked at Annexure-B (pages 20 to 22). Page 10 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 5.2 It is the case of the petitioner No.1 that though the petitioner is serving in the Institute which is perennial in nature and the same is run and managed by the Government of India through the State of Gujarat with hundred percent grant released by the Central Government as the same is provided in Planning Commission as it is a scheme for tribal development providing of vocational training and with the object behind it of providing employment for the tribal candidates, petitioner is being paid fixed salary which is arbitrary unconstitutional and is exploitation and victimization of a person with object poverty.
5.3 It is the case of the petitioner No.1 that the candidates who are serving with the ITIs run by the State Government or the Central Government and or vocational training institutes - VTIs which are run by private managements to such teaching and non-teaching staff is given the time scale salary to which the petitioner is also entitled to. The time scale salaries by Pay Commission as declared by the Government of India and as the Page 11 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined same are adopted by the State Government for its employees, the petitioner is entitled to the same.
5.4 The schedule of time scale under which the respondent governments are paying salaries to the employees employed in the ITIs, polytechnic institutes and other vocational training institutes run and managed by private managements, but salaries are paid by way of grant by the respondent authorities. Such Fifth Commission report prescribing the time scale salaries is annexed at Annexure-E to the petition. 5.5 The duties and responsibilities of the petitioner No.1 are the same as the aforementioned institutes from morning 10:30 to evening 6:10. The qualifications of chief instructions, trade instructors, accountants, workshop attendant, peons which are provided with requisite qualification for the selection and appointment in the Institutes run by the respondent government as mentioned above are the same which is possessed by the petitioner herein for the said post. Page 12 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 5.6 The petitioner's qualification, certificates which is requisite qualification, the said question that has been asked for and which is similar qualification with the respondent government run institutes for its chief instructor, trade instructors, accountant, workshop attendance, peons etc., meaning thereby that it is fully equipped establishment. 5.7 It is the case of the petitioner No.1 that having rendered services for more than nine years, the fixed salary procedure and the policy is opposed to public policy. Reliance is placed on the ratio laid down in AIR 1986 SC 1571 as laid down by Hon'ble Apex Court in case of Central Inland Water Transport Corporation Limited Versus Brojo Nath Ganguly wherein the Hon'ble Apex Court has been pleased to hold that such policies are opposed to public policies and therefore, keeping the petitioner in employment in fixed salary without further benefits is contrary to the settled position of law lay down by Hon'ble Apex Court Article 39D of the Constitution, Articles Page 13 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 14, 16 and 21 of the Constitution equality before the law, equal production of law without discrimination and there shall not be any discrimination by the State and its section and when it is discharging certain duties and obligations to the persons who formed one group, therefore equal pay for equal work is the constitutional goal. On one hand, the petitioner is exploited by the respondent State and on the other hand, the respondent State is providing employment to travel candidates by opening vocational training institutes and appointing therein qualified persons like petitioner with requisite qualification is victimization and exploitation. Analogy is drawn by the petitioner with Vidhyasahayak teachers, who are appointed with PTC qualification on fixed salaries for a period of five years are also paid full salaries.
5.8 The petitioner No.1 cannot be given differential treatment. The petitioner No.1 herein has placed on record the amendment which came to be allowed by order dated 21.3.2016 wherein by way of paragraphs 9 (A) to 9(H) the Page 14 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined petitioner herein has placed on record copies of the letter of Ministry of Welfare TD Division page-10/A dated 2.3.1993, copy of statement showing the list of district wise existing ITIs / mini ITIs alorated in the capacity, copy of the document showing recurring and non-reurring expenses, copy of Government Resolution dated 22.9.1993, 26.5.1994, 26.7.1996 letter dated 27.8.1996 written by the Deputy Triangle Development Commissioner TDC to the Director Labor and Employment Department, Gandhinagar, letter dated 11.9.1996 written by TDC to Project Administrator regarding approval of the VTI, copy of Government Resolution dated 29.4.2000, amendment letter dated 3.1.2002 regarding amendment of resolution number TAP 1095-GOI dated 26.7.1996 and copy of Gujarat Civil Service (Revision of Pay) Rules, 1987 which are applicable to the petitioners.
5.9 The petitioner has also placed on record copy of advertisement, copy of certificate issued by the Project Administrator dated 26.11.1996, copy of form of notification of Page 15 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined vacancy of employment exchange, copy of appointment letter dated 1.8.1997 in the name of the petitioner number No.1, copy of bio-data of petitioner No.1, copies of documents showing qualification of the petitioner. 5.9A The identical details with respect to other petitioners are also produced on record.
5.10 In light of the aforesaid facts, the petitioners have approached this Court for the reliefs as referred above.
6. The learned advocates appearing for the petitioners in other petitions also the adopt the submissions made by Mr. Shalin Mehta, the learned Senior Council appearing in the Special Civil Application No.7301 of 2004 with Ms. Aditi Raol, the learned advocate appearing for the petitioners and Mr. R. K. Mishra, the learned advocate has made submissions qua the Special Civil Application No.21920 of 2005. Page 16 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined
7. Notice came to be issued in the Special Civil Application No.7301 of 2004 on 28.6.2004 whereby by the said order Rule came to be issued, and the present status of the petitioners was directed not to be disturbed however, liberty is reserved to improve it. Subsequent thereto by interim order dated 4.12.2015 the Hon'ble Division Bench considering the Government Resolution dated 21.2.2014 held the field at the relevant point of time for prescribing the minimum wage structure in the State, 'Area C' which is least developed area in the State, the minimum wage prescribe for workers employed in sweeping cleaning work is Rs.216 per day plus special allowance Rs.87 per day. The Hon'le Division Bench upon considering various aspects and also considering the new scheme which was introduced by the Central Government w.e.f. 1.4.2009 directed the respondent State subject to the outcome of the petitions and adjustment if found necessary to pay such minimum wages with retrospective effect from 1.4.2009 and issued the following interim directions, which reads thus :-
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined "These petitions present a sorry state of affairs concerning the project employees of the Central Government funded and State Government implemented project for tribal areas. They have been engaged in different capacities since the year 1993. They have been receiving salaries which have marginally increased only once so far, that too in the year 2000. Lowest of these categories of employees are receiving a monthly fixed salary of Rs.2300/ which was fixed way back in the year 2000. Fifteen long years have passed without any revision of such salary. Such employees have filed these petitions seeking directions to be placed in the regular pay scale prescribed for similar positions in the State Government establishments.
We propose to give certain interim directions which, in our opinion, cannot wait any longer, pending further and fuller consideration of various issues arising in these petitions. Brief factual background may be noted first.
Under a communication dated 8th December 1992 from the Government of India to the State Government, the Central Government evolved a Scheme of Vocational Training Institute in tribal areas (hereinafter to be referred to as 'the Scheme') which was 100 per cent Central Government aided. The Scheme Page 18 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined provided that a need for vocational institution in trial belts where left wing extremism was on rising was felt for large scale of employment in tribal youth. The extremism was a manifestation of frustration and lack of faith in the development. It was, therefore, found necessary that both the State and the Central Government should make efforts to wean away the tribal youths from disruptive activities. One of the major efforts was to establish vocational training institutes for large scale employment of unemployed tribal youths. For such purpose, the Central Government had during the 8th Five Year Plan, set apart a sum of Rs.9 crores. The allocation for 1992-03 was Rs.1 crore. The Scheme envisaged setting up of training institutes in the tribal areas. Each training institute would have to cater to five vocational courses depending upon the employment potential of the tribal areas. It was stated that keeping in view the limited potential of even skilled persons in interior areas, it was proposed to train each tribal boys or girls in three trades of his/her choice, course in each trade being for a duration of four months. Each trainee would be attached at the end of one year to master craftsman in a semiurban/ urban area for a period of three months to learn his skills by practical experience. The idea was that at the end of fifteen months, each trainee would emerge as a multiskilled person, who can Page 19 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined utilize the existing employment potential in his best advantage. The Scheme envisaged residential accommodation in Ashram Shalas and residential schools located in interior tribal areas away from district headquarters or major towns. The Training institutes were made primarily for tribal trainees. The Scheme was to be implemented through the State Government. From the letter dated 22nd July 2002, as at Annexure R1 to Special Civil Application No.7301 of 2004, and the affidavit in reply filed by Smt. N. N. Chaudhari, Under Secretary, Tribal Development Department, State of Gujarat, in the same petition, it can be seen that the Central Government was to provide recurring grant of Rs .13500/- per trainee per year to the State Government for implementation of the Scheme.
For implementation of the Scheme, the State authorities established the necessary set up and issued various advertisements for filling up the posts of Chief Instructor, Trade Instructor, Accountant, Peon and Workshop Attendants. One such advertisement dated 13th November 1996 is produced along with Special Civil Application No.21920 of 2005. Under such advertisement, eligible candidates were invited to apply for the said positions which carried the following fixed pay:Page 20 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Name of post Fixed pay per month Chief Instructor Rs.3500/-
Trade Instructor Rs.2500/-
Accountant Rs.2000/-
Peon Rs.1500/-
Workshop Attendant Rs.1500/-
A new scheme for vocational training in tribal
areas (hereinafter to be referred to as ('the new
Scheme') was introduced by the Central Government with
effect from 1.4.2009 substituting the original scheme. The
objective of the scheme was the same, namely, to train
tribal youth in vocational courses to make them
suitable for employment or to enable them to
become selfemployed. It was observed that Scheduled Tribes are most marginalized section of the society.
There was an imperative need to provide for more
employment avenues and income generation
opportunities. With these objectives in mind, the
scheme was framed. Like in the original
scheme, the new Scheme also envisaged Central
funding and State implementation. The Scheme
would continue to be implemented predominantly in
remote tribal areas. Training would be imparted
preferentially to tribal youth for trades including
modern trades having employment potential in the
region in question. It was emphasized that the
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Scheme would be exclusively for the benefits of the Scheduled Tribes as well as PTGs (Particularly vulnerable tribes). The new Scheme envisaged involvement of NGOs also. It was provided that institutions and organizations who are already running projects with the assistance of the Central Government should get themselves recognized and affiliated. 100 per cent grant in aid would be provided to the State, Union Territories and State owned institutions. Such grantinaid would be released in one installment in a year. It was further provided that "The funding under this scheme will be in following two ways: (i) By setting up and running VTCs mainly in remote areas/rural areas deficient in facilities, (ii) by supporting vocational training for ST as also PTG candidates in already existing institutions in townships/districts, etc. like it is, Polytechnics, computer training centres, and other private recognized institutions subject to the maximum assistance of Rs.30,000/ per annum per ST training as per norms in AppendixI."
The new Scheme envisaged that each vocational training center set up under the Scheme running five trades would provide training to 100 or more trainees, i.e. for one trade there would be at least 20 candidates. We are informed that so far as the State Government is concerned, the new Scheme has not been implemented. Though no reasons are forthcoming from the record, it seems that due to the pendency of these petitions, the implementation of the new Scheme has Page 22 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined been withheld.
It is an undisputed position that all the
petitioners were appointed to various posts under the
said Scheme from time to time ranging from 199293 to 1996. We have recorded the fixed salary provided for such posts at the inception in the year 1992293. It is undisputed that such fixed salary underwent one revision with effect from 1.4.2000 prescribing following fixed monthly salary for different posts in question:
Name of post Fixed pay per month
Chief Instructor Rs.4000/-
Trade Instructor Rs.3025/-
Workshop Attendant Rs.2300/-
Peon Rs.2300/-
Accountants Rs.3000/-
Watchman Rs.2300/-
Shocking as it may sound, since 1.4.2000, there has not
been any further revision in the fixed salary
paid to different employees under the Scheme.
Thus, a Peon or a Watchman who was
receiving Rs.2300/ per month in April 2000
continues to draw the same salary even in the
year 2015. The Chief Instructor, the highest paid
employee received Rs.4000/ per month then continues to
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get the same amount now. Admittedly, all these
salaries are way below the minimum wages prescribed by the State Government for different categories of workers. It is true that minimum wages are not applicable to State agencies. Can the State Government agencies, however, offer salary to its staff members for full time work at the rate even below the minimum wage? The answer has to be in the negative.
Minimum wages are prescribed by the State Government in exercise of powers of delegated legislation. The notification issued by the Government prescribing minimum wages thus has force of law which would supersede even a private contract between an employer and an employee, the basic philosophy being that even if the worker out of compulsion is prepared to work for an employer at an exploitive wage, modern democratic society would not permit the employer to exploit such a situation and pay wages below the minimum fair wage structure. If this be the philosophy of prescribing minimum wages for different trades, obviously, the State or its agencies cannot offer wages below the minimum so prescribed. The very basic constitutional philosophy of social, political and economic justice would prevent the State from arguing to the contrary. The fundamental rights guaranteed under Articles 14, 16 and 21 and the fundamental duties under Article 39(d) of the Constitution would preclude the State from Page 24 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined allowing any situation where its employees are made to work full time for wages which cannot be prescribed as a fair wage.
Quite apart from the fact that the wages offered are far below the minimum wages prevailing at present, the very fact that the salaries which were fixed way back in April 2000 have not been revised for nearly 15 years would demonstrate the unreasonableness of the pay structure. In the meantime, for the permanent employees of the Central and State Governments, one pay revision has been implemented and Commission for making recommendations for the next one has already been constituted. The inflation has eroded the purchasing power of rupee. It is impossible to expect a full time employee of a Government organization to survive on a salary of Rs. 2300 per month. The issue can be looked from a slightly different angle. Many of these employees are Instructors of the trainees. These Instructors would be imparting education and training different tribal youth. They are the teachers of the trainees. If their own wage structure is so exploitative that they would be forced to seek avenues of extra income elsewhere, we wonder what values such Instructor would impart on the impressionable tribal youth who would be their wards.
We are informed that across the State there are less than 100 Page 25 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined such employees. There are 13 training centers, each with a capacity of 100 trainees, i.e. 20 trainees for each of the five trades. Their number is too small to make any significant or forceful representation against their gross exploitation for years together. It is perhaps because of this while the regular staff members of the State and the Central Government and its Corporations and agencies receive periodical DA increase twice a year and Pay Commission recommendations implemented every 10 years, for 15 long years, there has not been any increase at all in the pay structure of these employees. In an interim order dated 28.1.2014 passed in Writ Petition (PIL) No.244 of 2014, this Court had considered the question of the State Government paying salary of Rs. 1350/- per month to its various part-time employees rendering 6 hours duty per day. The Court made the following observations:
"1. The Constitution of India was framed soon after the independence of the nation with a solemn resolve to achieve social, political and economic justice for all the citizens of the country. Articles 14 and 16 talk of lofty ideas of equality. Article 21 guarantees to every person right to life and liberty. More than 65 years later, a small group of Government workers have been deprived of such rights and privileges. Their voice is too feeble. Their future too uncertain for want of any protection of Article 311 of the Constitution. Their number too small. They are almost a forgotten lot. It is at this stage, the Court in the Page 26 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined arena of public interest litigation, comes into picture.
2. The State Government for the purpose of carrying out complex functions and duties need to employ a large number of people. Howsoever, one may wish and desire, it is not possible over a period of time to completely regulate such employment in terms of Articles 14 or 16 of the Constitution. By the very nature of things, the Government, its Corporations, its different wings, need the workers in different fields and trades carrying out different duties possessing specified skills and qualifications. small portion of such workers come in the nature of part time workers. They are engaged in small numbers almost in every office, establishment or unit of the Government. Whether they are called water server, sometimes cleaner, sometimes gardener and other times watchman, their employment is mostly contingency based and work charged with little permanency attached. They are so called part time, because at-least on paper their engagement is for a period ranging from one hour to six hours a day though in some cases, either in broken spells or otherwise, they may be for all practical purposes, available through out the office time and in some cases, such as watchman, even beyond that.
XXXX
4. Shocking as it may sound to the reader of this order, since then, there has been no rate revision of the remuneration for such part time employees. In other words since September 1998 till date, for more than 15 long years, such workers have been receiving remuneration month after month, year after year, at a rate which froze in the year 1998. In the meantime, many things happened. The purchasing power of rupee considerably eroded. The Government employees, Central as well as State, were the beneficiaries of one pay revision with effect from 1.1.2006. This would be in addition to periodic DA increases released every six months. One can take judicial notice of the fact that the State as well as the Central Government employees have received consecutive three double digit DA increases in their salaries. In the meantime, the scale of pay of Rs. 2250/- which was the minimum prescribed under the Revision of Pay Rules, 1998 implemented with effect from 1.1.1996 was revised to Rs. 4440/- under the Revision of Pay Rules , 2009 implemented with effect from 1.1.2006. This basic pay currently carries 100% DA. In fact, Page 27 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the Central Government has also announced the pay panel for making recommendations for the next pay revision.
5. On one hand, thus with high inflation, the cost of living mounted, on the other hand, a small group of citizens continued to draw remuneration at the same level which they were receiving more than 15 years back. All the economic development and prosperity achieved during this period which the rest of the regular employees of the Government shared simply by- passed such unfortunate class of citizens. Today these workers are receiving remuneration at the rate of approximately Rs. 40/- to Rs. 50/- per day as against the minimum wage prescribed by the Government agency itself to be Rs. 220/- plus special allowance in the area specified as A category in the State of Gujarat, at Rs. 218/-plus special allowance in B category and Rs.216/- plus special allowance in category c. Explanation (2) to the notification dated 5.8.2013 prescribing such rates, reads as under :
(2) The employees employed on part-time basis shall be paid fifty percent of the minimum rates of wages plus special allowance if he works up to four hours Tand if he works more than four hours, he shall be paid full minimum rates of wages plus special allowance.
6. The State Government implements the legislative policy of minimum wages to be paid by private employers. The Legislature has fixed such minimum wages to ensure that there is no exploitation of workers. In the country like India, where due to high rate of unemployment, many people may be prepared to work for remuneration which may be extremely low amounting to exploitation. The law however, does not permit such exploitation even at the hands of private employer. Can the State Government which is wedded to Constitutional philosophy of implementing the Directive Principles of the State Policy which under Article 43 provides that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, a living wage and just conditions of working, ignore all such principles when it comes to remunerating its own workers? The answer has to be in the negative. We are conscious that ipso-facto, minimum wage prescribed for the private employers would not govern the Government employees. Nevertheless, for the purpose of immediate relief to such persons and to take a reasonable yardstick for revising their remuneration, pending further Page 28 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined directions and consideration by the Government, we are of the opinion that such rates may be accepted for the purpose of remunerating such workers by way of interim measure, subject to further orders."
With these observations, the State Government was directed to pay to all its part time workers at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work as the minimum wages with special allowance if payable as prescribed by the State Government. Such writ petition ultimately came to be disposed of along the lines of the interim order.
From the Government resolution dated 21 st February 2014, a copy of which is produced by the learned AGP, which we are informed holds the field for prescribing the minimum wage structure in the State, we notice that for area 'C' which is least developed area in the State, the minimum wage prescribed for workers employed in sweeping and cleaning work is Rs. 216/- per day plus special allowance. We are informed that currently, the special allowance is Rs. 87/- per day. Thus the minimum wages for the lowest paid employee in the sweeping and cleaning work comes to Rs. 216 + 87 = Rs. 303/- per day (rounded off to Rs. 300/- per day). Such amount should be paid to the lowest paid employees of the present organization. Thus Peon, Workshop Attendant and Watchman who are currently receiving Rs. 2300/- per month should receive an amount of Rs. 7500/-calculated on an average of 25 working days in a month (RS.300 x 25 = Rs. Page 29 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 7500/-). Considering the difference in the existing salaries of the rest of the staff members, Accountants and Trade Instructors would receive an addition of Rs. 1500/- i.e. Rs. 9000/- per month and the Chief Instructor would Receive an addition of Rs. 2500/- i.e. Rs. 10,000/- per month. This is a rough and ready formula pending further consideration. These are amounts, in our opinion, the State Government under no circumstances can avoid paying to these staff members. Since the new Scheme was introduced by the Central Government with effect from 1.4.2009, we direct the State Government subject to outcome of these petitions and adjustment if found necessary to pay such wages with retrospective effect from 1.4.2009. We are conscious that the minimum wages in the year 2009 were lower than the present rates. However, these employees have been exploited by paying fixed unchanged salary since the year 2000. They were in any case entitled to fair increase only considering inflation. The Central Government had also revised the grant to Rs. 30,000/- per trainee per year from 1.4.2009. The Central Government shall release grant at the rate of Rs. 30,000/- per trainee per year for the different training centers as envisaged in the new Scheme. Some of the petitioners who are present in Court orally informed us that in almost all the training centers, there is usually full strength of trainees and barring some exceptions, such training centers impart training to 100 students from year to year. This would be significant since Page 30 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the Central Government grant is calculated per trainee per year. This would show that a training center would receive Rs.30 lacs as Central Government grant with effect from 1.4.2009 if 100 trainees were enrolled.
Yet another aspect of the matter is regarding continuation of the employees on purely temporary basis for over 20 years by now. According to the petitioners, the very fact that the Scheme has continued in one form or the other for all these years since 1992 would demonstrate that the work is of perennial nature. The State agencies cannot execute such scheme through ad-hoc staff and regular establishment must be created. Alternatively, it is argued that at any rate the renumeration to the existing staff must be at the rate of minimum of the matching scale of the employees of regular establishments. These two aspects need further elaboration and can be gone into only at the time of final disposal of the matters. We notice that the replies filed by the respondents are not sufficient to permit us to deal with these two issues effectively. We would, therefore, direct the respondents to file suitable further replies on the points hereinabove noted. Under the circumstances, at this stage, following interim directions are issued:
(i) The State authorities shall with effect from 1.4.2009 Page 31 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined subject to outcome of these petitions and adjustment if eventually found necessary pay to different employees at the following rates:
Name of post Fixed pay per month
Chief Instructor Rs.10000/-
Trade Instructor Rs.9000/-
Workshop Attendant Rs.7500/-
Peon Rs.7500/-
Accountants Rs.9000/-
Watchman Rs.7500/-
(ii) The Central Government shall release necessary grant for such purpose at the rate of Rs. 30, 000/- per trainee per year as envisaged in the new Scheme with effect from 1. 4.2009.
(iii) These directions shall be carried out latest by 31st March 2015. It is, however, clarified that for the month of February 2015, the salaries which will be paid to the employees in the beginning of March 2015 shall be as per the directions contained in clause (i) above.
(iv) These directions will include all employees of the Scheme similarly situated whether they have moved this Court in these petitions or not.Page 32 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
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(v) The State authorities as well the Central Government shall file detailed affidavits concerning following aspects:
(a) For how long the new Scheme is envisaged, in other words, whether the Scheme has a terminal point or it is a perennial scheme.
(b) If the Scheme for training tribal youth has continued since the year 1992 unabated in one form or the other, why a permanent establishment is not created.
(c) Even if the employees are not brought in the permanent establishment, why they should not be wages on the minimum of the scale prescribed for different posts in the State Government carrying out the same duties and (C) paid responsibilities.
(d) From Annexure E to Civil Application No. 7878 of 2011, we prima facie gather that in the year 2008-09, the Central Government grant to the tune of Rs. 33,02,000/- remained unspent. The State Government shall give full details of such unspent grant, if any, from the year 2000-01 till date.
(vi) These affidavits shall be filed before the next date of hearing.
S.0. to 11th March 2015.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Direct service is permitted."
8. The matters were listed from time to time subsequent to the said order.
8.1 The following interim order came to be passed on 3.10.2023 which read thus :-
"1. Heard learned Senior Advocate Mr. Shalin Mehta on behalf of the petitioners, learned Assistant Government Pleader Mr. Hardik Soni on behalf of the respondent- State.
2. It appears that the petitioners have been working in a scheme floated under the aegis of the Central Government implemented by the State Government more particularly to give training for employment to persons living in the tribal belts of the State. The scheme of the Government of India was named as "Skill of Vocational Training Institute in Tribal Areas". It appears that the entire scheme was envisaged to ensure that the youth living in the tribal area of the Country, have appropriate training for employment more particularly to ensure that such youth are not lured towards left wing extremism. It appears that the scheme had been started somewhere in the year 1992 and while the grievance of the petitioners is that the petitioners have been working since the Page 34 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined year 1993 on very minimal and megre salaries, inspite of the fact that the Central Government at the relevant point of time had not shied away from making any payments and whereas while as on today the scheme is stated to have been closed, but it also equally appears that the entire scheme has been subsumed in a later scheme as found in the affidavit by the State themselves. It would also appear that as far as the State of Gujarat is concerned, the scheme is a complete success more particularly and fortunately the purpose for which the scheme had been envisaged, not being a factor in the State.
3. As against the same, it would appear that as of now, the petitioners are being paid much less salary than even what is being earned by a Class - IV employee who is paid salary in the minimum of pay scale as per various directions of this Court which later on had been formulated as a policy by the State Government.
4. It would also appear that vide an order dated 04.02.2015, Hon'ble Division Bench of this Court had directed the salary of the petitioners enhanced to Rs. 10000/- to be paid to the Chief Instructor, Rs.9000/- to be paid to Trade Instructor, Accountant, Rs. 7500/- to be paid to Workshop Attendant, Peon and Watchman. It would appear that while some of the posts mentioned above are Class- III posts, the posts of Peon, Watchman and Workshop Attendant would be Class-IV post. It requires to be stated here that while the salary had been Page 35 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined enhanced by direction of this Court in the year 2015, yet, as of now the salaries are far below the salary paid to even non- permanent Class- IV employees, who are paid salary in minimum of pay scale as per the policy of the State Government vide Circular dated 16.07.2019.
5. It would further appear at this stage that in affidavit filed by the then Joint Secretary, Tribal Development Department of the State of Gujarat, on 10.03.2015, the following admission is found at paragraph no.10 "I further respectfully submit that the petitioners or other employees who are serving under the scheme are to be given minimum scale of the employees in regular establishments."
6. Thus it would appear that the State had admitted their liability to pay salary to the petitioners in the minimum of scale, as far back in the year 2015. It also appears that though the petitioners were appointed for a particular scheme/ project yet, the scheme /project is perennial in nature more particularly since the scheme had a larger national interest to implement. It also appear that the State Government has also come up with similar schemes of its own thereby clearly pointing out to the fact that the efficacy of scheme like the present has not been lost even after more than three decades. 6.1 At this stage, it also requires to be mentioned that the petitioners at the relevant point of time had been appointed Page 36 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined by following a due process more particularly the petitioners having applied pursuant to an advertisement by the respondents and were later selected after a process.
7. Under such circumstances, since it appears that the State has been fair enough to admit their liability as far as back in the year 2015 and since it also appears that the State liability had been more or less funded by the Central Government till very recently and since it appears that the scheme is an astounding success as compared with the reason for which it had been envisaged in the first place and also considering that the reason is not State specific rather it is a Nation specific interest, therefore, let the highest authorities of the State including the Chief Secretary of the State and the Secretaries of the concerned Department look into the present issue and inform this Court by 19.10.2023 on the following aspects:
[1] As to when the State would be paying to the petitioners the arrears of minimum of scale from March 2015 till date as per the affidavit of the State referred to hereinabove.
[2] Whether the petitioners could be regularized more particularly considering perennial nature of the scheme and larger national interest for which the scheme had been envisaged.Page 37 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
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8. Appropriate decision taken by the concerned respondents shall be informed to this Court on the next date. List on 19.10.2023."
8.2 In the aforesaid interim order in paragraph-17 it is recorded that the State has been fair enough to admit their liability as back as in the year 2015 and that State liability more or less funded by the Central Government till very recently and that the scheme is an astounding success as compared with the reason for which it had been emphasized in the first place and considering that the reason is not State specific rather than Nation specific, the highest authority in the State including the Chief Secretary of the State and Secretaries of the concerned department were directed to look into the issue and inform the Court by 19.10.2023 on the following aspects;
"[1] As to when the State would be paying to the petitioners the arrears of minimum of scale from March 2015 till date as per the affidavit of the State referred to hereinabove.Page 38 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined [2] Whether the petitioners could be regularized more particularly considering perennial nature of the scheme and larger national interest for which the scheme had been envisaged."
9. Subsequently on 8.12.2023, in light of the aforesaid direction, the respondent State has placed on record a report wherein by the said report the petitioners are entitled to be grant of minimum scale from March, 2023 in accordance with Government Resolution dated 20.12.2023 issued by the Tribal Department. It further holds that the petitioners cannot be regularized and in view thereof the present petition is taken up for deciding the issue raised by the petitioners finally. It is opposite to refer to the interim order dated 3.5.2024 which reads thus :-
"1. Heard learned advocate Ms.Shikha Panchal and learned advocate Mr.M.A.Parekh on behalf of the petitioners and learned Assistant Government Pleader Mr.Sahil Trivedi on behalf of the respondent - State.Page 39 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
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2. Considering that the State has filed an affidavit through the Joint Secretary, Tribal Development Department, State of Gujarat inter alia placing the report in compliance of the order dated 03.10.2023 by the committee consisting of the Chief Secretary, State of Gujarat along with the Additional Chief Secretary, Home Department, Finance Department, General Administrative Department and Principal Secretary, Tribal Development Department.
3. Having regard to the fact that the report inter alia holds that the petitioners are not entitled to be granted minimum pay scale from March, 2015 and further since it holds that the petitioners cannot be regularized, it would appear that the issue would have to be finally decided by this Court. Hence, list these matters on 21.06.2024. The petitioners are permitted to file appropriate applications for amendment, if they so desire.
4. The matters shall no longer be treated as part-heard."
Submissions on behalf of the petitioners in SCA No.7301 of 2004 :-
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10. Mr. Shalin Mehta, the learned Senior Counsel appearing for the petitioners herein placed reliance on page-1001 and 1005 of the report placed on record by the respondent State by way of affidavit-in-reply filed in the SCA No.21920 of 2005. Placing reliance on para-6 of the affidavit-in-reply which is produced at page 931 at para 941, it is submitted that the same is a temporary status and para-10 page-943 wherein the petitioners herein are paid minimum pay-scale from 2023 as payable to Class-III employees. The aforesaid requires interference in view of the following submissions; 10.1 Mr. Mehta, the learned Senior Counsel placed reliance on the ratio laid down by the Hon'ble Apex Court in 2024 SCC Online S C 3826 in case of Jaggo Versus Union of India, 2024 (9) SCC Vinod Kumar Versus Union of India, Para-5. It is submitted that the petitioners herein are entitled to the retiral benefits.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 10.2 It is submitted that the petitioners be absorbed either in the VTIs floated by the State Government or the private personal partnership scheme floated by the State Government, in light of the fact that the petitioners herein are performing the same duties as those employees. The scheme having been floated since 1992, the same is in existence as of today also. 10.3 It is submitted that from the aforesaid, it can easily be construed that the scheme has assumed the force of a perennial nature by efflux of time and orders passed by the Court from time to time, that the prayers as prayed for in the petition be allowed.
Submissions on behalf of the petitioners in SCA No.21920 of 2004 :-
11. Mr. R. K. Mishra, the learned advocate appearing for the petitioners reiterates the facts as referred above. Placing reliance on the advertisement, which is duly produced at Page 42 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Annexure-A page-60 and order of appointment 1.8.1997 (translated page-22) wherein the petitioner No.1 herein is appointed on the post of Accountant, the name of the petitioner No.1 appears at Sr. No.5 at page-21 on fixed pay on ad hoc basis.
11.1 Placing reliance on the aforesaid it is submitted that the scheme in question is floated by the respondent No.1 Central Government under communication dated 8.12.1992 to the respondent No.2 State is continued till today by virtue of interim orders. The petitioners herein are entitled to the scale of Class-III and IV paid to the government employees. 11.2 It is submitted that the principle of equal pay for equal work comes into play. The aforesaid not being a fundamental right is certainly a constitutional right of the petitioners under Article 39D of the Constitution of India.
To substantiate the aforesaid, Mr. Mishra, the learned advocate relied on following decisions :- Page 43 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined (1) AIR 1982 SC 879 in case of the Randhir Singh Versus Union Of India (2) AIR 2003 SC 3569 in the case of West Bengal and Ors.,vs. Pantha Chatterjee and Ors (3) GLH 2005(2) 235 in the case of Gajaji Gopalji Jadeja Versus State Of Gujarat (4) 2017 (1) SCC 148 in the case of State of Punjab vs. Jagjit Singh, reported in (5) AIR 2011 SC 2839 in the case of Nandini Sundar Versus State Of Chhattisgarh Submissions on behalf of the respondent No.2 - State :-
12. Ms. Manisha Lavkumar, the learned Additional Advocate General assisted by Mr. Jay Trivedi, the learned AGP appearing for the respondent No.2 - State placed reliance on the affidavit-in-reply dated 10.3.2015 filed by Joint Secretary, Tribal Development Department, State of Gujarat, duly produced at page-793. Placing reliance on paragraphs 9 and 10 of the said affidavit submitted that the posts of the petitioners Page 44 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined are not created under a Statute and the Recruitment Rules which are ordinarily applicable to the employees of State are not applicable in the case of the present petitioners. Thus respondent State is not required to comply with the Constitutional Scheme of equality as provided under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment is undertaken within the constitutional scheme in the existing scheme in line with the ratio laid down by the Hon'ble Apex Court in case of State of Karnataka & Ors., Vs. Ameerbi & Ors., reported in (2007) 11 SCC 681.
12.1 It is submitted that the petitioners herein are working as teaching and non-teaching staff on honorarium basis at Vocational Training Centers (for short VTC), which is a scheme evolved under the aegis of the Government of India in the year 1992 to give benefit and opportunity to the tribal youth and tribal students with certain vocational courses to become financially independent. The State Government implements the Page 45 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined said Scheme, according to the instructions and guidelines issued by the Central Government from time to time. 12.2 It is submitted that, under the scheme the people who are residing in tribal are still good to get particular training under the different trades, there are five different trades in view of the Vocational Training Center. The revised Scheme which is placed on record at page 32 in paragraph 11 in SCA No. 7301 of 2004, it would be clear that the petitioners before the court have to provide practical training to trainees of center on honorarium basis. Placing reliance on the aforesaid, it is submitted that it is not in dispute that the petitioners are appointed for imparting training to the tribal youth under the scheme which has been floated by the Central Government. 12.3 It is submitted that the petitioners or other employees are working under the scheme for vocational training are appointed under the temporary/ad hoc establishment and the State Government is not in a position to give regular Page 46 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined appointment to the petitioners or other employee and so they cannot be included in regular establishment as they are working under the scheme which is floated by the Central Government though they have served for more than decade. 12.4 It is submitted that the petitioners or other employees who are serving under the scheme are to be given minimum scale of employees in the regular establishment. It is further submitted that pursuant to the interim directions issued by the Court regarding grant from 2000-2001, it is submitted in the that State of Gujarat there are 13 Vocational Training Centers and each center is allowed to give training to 100 students, in all there should be 1300 trainees or students, but some how there is a shortage of trainees.
12.5 It is submitted that the State Government has regularly paid to the petitioners or other employees though there is deficiency in releasing grant from the Central Government and the State Government has paid as per the revised scheme till Page 47 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined February, 2015.
12.6 It is submitted that the State Government is unable to pay as per the revised scheme of 2009 and to follow the directions as above stated, in light of the fact that the Central Government had not released the grants from 2012-13. 12.7 Reliance is placed on the affidavit-in-reply filed by the Union of India at page-801 para 3, 4 and 5 of the said affidavit wherein it is stated that the Central Government has discontinued the Scheme of Vocational Training from the year 2018-19 and subsume the intervention of the vocational training in the Scheme from 'Special Central Assistance to Tribal Sub-Scheme (SCA to TSS)'. The said proposal was placed before the Finance Committee in its meeting dated 12.10.2017. Under the scheme SCA to TSS State Government is responsible for formulation of annual proposal based upon the need of the State within their share of allocation and submits to the Ministry with approval of Executive Committee headed by Page 48 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Chief Secretary of the State. The proposal received from the State Government is apprised and approved by the Project Appriser Committee in the Ministry chaired by the Secretary, Tribal Affairs with representatives of State Governments, Financial Advisor, NITI Ayog, etc., for funding. 12.8 It is further submitted that it is upto the State Government to decide continuance of the Vocational Training Centre after assessing the employment potential in a particular area depending on educational qualification of the target population, type of industries available in that region / State, present economic trend, market potential and placement opportunities etc. 12.9 Placing reliance on para-5 of the said reply it is submitted that the Scheme did not envisage creation of any permanent staff from the Ministry of Tribal Affairs. 12.10 Reliance is placed on the additional affidavit-in-reply Page 49 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined filed by the respondent No.2 10.6.2023 at page-925 in compliance of the orders dated 2.3.2023 and 10.3.2023 and it was submitted that the Central Government has discontinued the funding of the Vocational Training Center from financial years 2018-19. Pursuant to such discontinuation the Tribal Development Department, State of Gujarat has been seeking grants from Central Government for the purpose of running 13 Vocational Training Centers throughout the State of Gujarat. As the scheme stood discontinued by the Central Government the grant for the years 2018-19, 2019-20 was sought by way of Special Central Assistance to Tribal Sub-Scheme. For the year 2021-22 the Central Government disburse grant for the purpose of running the VTC in terms of Article 275(1) of the Constitution of India.
12.11 It is submitted that by way of G.R. dated 21.6.2008 the Tribal Development Department has resolved that Vocational Training Centers of Scheduled Tribe be set up under the public private partnership model. It is submitted that eight such Page 50 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Vocational Training Centers are run by the State of Gujarat under the said models and by G. R. dated 21.6.2008 the same has been amended by way of G.R. dated 3.9.2022. 12.12 Reliance is further placed on affidavit-in-reply duly produced at page 937 dated 4.1.2024 to bring on record bird eye view of the policy in question, the nature of appointment of the present petitioners, the nature of work undertaken by the present petitioners in compliance of the directions issued by order dated 21.12.2023 in the present petition. 12.13 Placing reliance on the said affidavit it is reiterated that in view of various orders, and directions issued by the Court from time to time, it was decided that the petitioners herein be paid minimum of pay scale. It is submitted that the second direction to consider the case of the petitioners for regularization wherein it is considered that the present Central Government schemes vide which the petitioners were appointed was on temporary and honorary basis. The scheme in no Page 51 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined manner envisage creation of a permanent post or establishment.
12.14 It is submitted that considering the totality of the scheme and its intent not to create any permanent establishment, it was submitted that the scheme is not perennial in nature and the direct interpretation of the scheme made it clear that it did not envisage creation of any permanent post. It was also submitted that the Central Government through its affidavit dated 28.11.2017 clearly stated that the scheme did not envisage creation of permanent staff from the Ministry of Tribal Affairs fund. The present scheme was central government scheme and Tribal Department of Government of State of Gujarat is only the implementing authority that when the makers of the scheme stated on affidavit that the scheme did not intend to create any permanent post, the scheme cannot be considered as perennial in nature.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 12.15 It is submitted that the issue of success of scheme in the State of Gujarat and its larger national interest was taken into consideration by authorities in total seriousness, however the scheme does not envisage permanent posts and that the State being implementing authority would not be in a position to go beyond the intent of the policy. It is submitted that success or failure of a policy cannot be a ground to overrule the intent of policy and that the policy envisage creation of temporary posts, the same cannot be overlooked. 12.16 It is submitted that it was also considered more particularly by the General Administration Department that regularization of temporary and honorarium based employees in scheme based appointment may open floodgate of such demands from other schemes based employees and that it would hamper the organizational setup of the State. 12.17 It is submitted that in 2007 the State introduced Vanbandhu Kalyan Yojana which ensures 1. Employment Page 53 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined opportunities, 2. Quality of education, 3. Economic development, 4. Health, 5. Housing, 6. Safe drinking water, 7. Irrigation, 8. Universal electrification, 9. All - weather road connectivity, 10. Urban development to provide large scale opportunities to tribal youth. The Government has incurred expenditure of Rs. 1 Lakh Crore from 2007-08 to 2020-21 to ensure effective implementation of the scheme. 12.18 Placing reliance the affidavit-in-reply filed on behalf of the respondent No.2 duly produced at page-937 paras 23 to 29 of page-949 dated 4.1.2024 it is submitted that Vanbandhu Kalyan Yojana and VTCs under the public private partnership have been successful, resultantly the tribal youth were engaged in productive activities and were not infected or influenced by the left wing extremism or other radical ideologies. 12.19 It is submitted that the Tribal Development Department by G.R. dated 20.12.2023 resolved to grant minimum of pay scale to the present petitioners and that the Page 54 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined aspect of regularization came to be rejected by the said G. R. which is duly produced at page 997. It is reiterated that the present petitioners are appointed purely on temporarily basis and on fixed honorarium in such posts, which are temporary in nature. In fact, the scheme of the Central Government subsequently adopted by the State Government would envisage that the intent of the policy was to float temporary posts and not create a permanent establishment.
12.20 It is submitted that the advertisements issued for the purpose of recruiting appropriate candidates to the said posts and subsequent appointment orders would also clearly narrate that such appointment was on temporary basis and on fixed honorarium on a temporary basis. The petitioners herein with open eyes entered into such temporary engagement with the respondent authorities and considering that the petitioners cannot seek anything more than what the engagement provides for.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 12.21 It is submitted that advertisement and subsequent appointment orders would not create any legitimate expectation in favor of the petitioners as the appointment orders clearly envisage that the posts were temporary and their appointments were temporary. That the petitioners herein have been continued on the said posts due to the interim relief ordered by the Court and the same would not create any equity in favor of the petitioners.
12.22 It is submitted that the working hours of the petitioners are also limited. In fact, considering the working hours of the aforesaid they would also be permitted and allowed to work at other places after their time of engagement with vocational Training Institutes are completed. It is submitted that the benefits at par with regular government employees cannot be granted considering that when the policy is stipulated setup for temporary posts and when advertisements and subsequent appointment orders clearly indicated that such an engagement would be purely on Page 56 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined temporary basis and would not create any equity in favor of the petitioners, only because of the reason that they have been working for a long duration only due to the direction issued by the court vide the order dated 28.6.2004 would not create any right in favor of the petitioners. It is submitted that it is settled principle of law that when there are no permanent sanction posts for a particular cadre, the State cannot be forced to absorb or regularize the service of the petitioners only due to the fact that they have rendered service for a long time.
12.23 Reliance is also placed on additional affidavit-in-reply at page 1001, the committee report in compliance with the order dated 15.4.2024 directing the respondent State to constitute a committee dated 3.10.2023 wherein it was directed that the highest authorities of the State, including Chief Secretary of the State and Secretaries of the concern department look into the issue and inform the court by 19.10.2023 on the following aspects :-
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined [1] As to when the State would be paying to the petitioners the arrears of minimum of scale from March 2015 till date as per the affidavit of the State referred to hereinabove.
[2] Whether the petitioners could be regularized more particularly considering perennial nature of the scheme and larger national interest for which the scheme had been envisaged.
Placing reliance on the said report it is submitted that the committee considered all the aspects and concluded in paragraph10 at page 1037 that the State would be paying the minimum of pay scale from 20.12.2023 to the persons engaged in centrally sponsored vocational training centers such as chief instructors, trade instructors, workshop attendants, peons, accountants and workmen by the project administration integrated tribal development program office.
12.24 Reliance is placed on para-4 of the said report and it Page 58 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined is further submitted that the question whether the petitioners could be regularized, more particularly considering the perennial nature of scheme and larger national interest for which the scheme has been envisaged was also considered and in paragraph-4 in the report considering the various aspects it is recorded that the scheme is continued in Gujarat.
12.25 Placing reliance on para-5 of page-1039 reliance is placed on the committee report wherein it states that the State has readily offered minimum of pay scale and will continue to do so, to ensure this centrally sponsored Vocational Training Centers continued to impart vocational training. Notably none of the other vocational training schemes whether it is PPP or other skill based scheme does the Central Government or State Government grant regular government pay scale and hence the committee most humbly and respectfully would not submit that it would not be possible for the State Government to extend this benefit to the petitioners under the centrally sponsored vocational training scheme. It is also noted in the report that Page 59 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the left wing extremism department, division of ministry of home affairs has classified 10 States as LWE affected States wherein Gujarat is not on the list.
Placing reliance on the aforesaid submissions, it is submitted that in line of the report by the committee constituted of experts and as resolved by the Government Resolution dated 20.12.2023 minimum of pay-scale would be payable in terms of the said G.R. from the date of the resolution to the petitioners and the prayer for regularization is such that the same may not be granted.
It is also stated that the petitioners will be continued to be paid the minimum of pay scale till they superannuate. 12.26 The learned counsel for the petitioners have fairly submitted that in view of cantena of judgments rendered by the Hon'ble Apex Court the principle of "equal pay for equal work" would not be applicable as the criteria in terms of responsibilities, the nature of work carried out by the petitioners qualitatively and quantitatively cannot be compared Page 60 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined with the persons working in ITI Institutes or any other Government Scheme.
Submissions on behalf of the respondent No.1 :-
13. Mr. Ankit Shah, the learned advocate appearing for the respondent No.1 herein relied on the affidavit-in-reply duly produced at page-322 and submitted that the Government of India decided to introduce the Scheme to provide opportunity to tribal your and tribal students who can learn some course and thereafter they can be financially stable persons and the said Scheme is called Vocational Training Center Scheme for tribal area which is duly produced alongwith petition. The financial assistance/grant is given by the Central Government. The Central Government revised the scheme w.e.f. 1.4.2009. The Ministry supports the State Government by releasing funds under the Scheme of VTC in tribal area. The concerned State Government setup VTC and it is the sole authority to run the center. It only needs to submit utilization certificate for grant released earlier and provide physical progress report to obtain Page 61 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined further grant from the Ministry under the Scheme of VTC. 13.1 Placing reliance on the affidavit-in-reply duly produced at page-810 it is submitted that the Scheme did not envisage creation of any permanent staff from the Ministry of Tribal Affairs Fund. It is submitted that the said Scheme of of VTC is discontinued by the Central Government from the year 2018- 19 and is subsumed by Vocational Training (Skill / Livelihood) in the Scheme from 'Special Central Assistance to Tribal Sub- Scheme (SCA to TSS).
14. Mr. Shalin Mehta, the learned Senior Counsel in rejoinder submitted that the petitioners herein are appointed upon having applied pursuant to the public advertisement through newspapers, for filling up of certain sanction vacant posts at Ahwa Vocational Training Center on ad-hoc basis fixed salary with condition to pass government approved/recognized ITI computer- operator-cum-programmer apprenticeship. Other condition was to registration with any employment exchange of Page 62 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the State.
14.1 It is reiterated that the respondents in their affidavit-in- reply on the basis of the committee states that "it would not be possible for the State Government to extend the benefit to honorary staff - petitioners under centrally sponsored Vocational Training Center". It is submitted that meaning of the word "honorary and ad hoc" as per the Oxford Dictionary read thus :-
Honorary :- Conferred as an honour, without the usual requirements or function.
Ad-hoc :- When necessary or needed, Created or done for a particular purpose as necessary.
14.2 It is submitted that the appointment of the petitioners was on a sanctioned vacant post after following due recruitment process on ad hoc fixed salary offered by the respondents herein to run the Vocational Training Center at tribal areas of State to satisfy the national interest as well as Page 63 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined to avoid and wean away tribal people in the hands of the extremists. The questions directed to be answered by the State as well as the Central Government by oral order dated 4.2.2015 prima facie proves the case of the petitioners that the scheme originally introduced by the Central Government is now a perennial scheme, the State Government therefore cannot deny to regularize the service by saying and considering the petitioners as honorary staff after so many years while the Court has once again strictly interfered and issued direction on the particular aspect that is regularization of service.
14.3 It is submitted that according to the answering respondent, the present Vocational Training Center scheme has been discontinued in the year 2018-19 and subsumed in the scheme Special Centered Assistant to Tribal Sub-Scheme SCA to TSS. Later in the year 2021-22 SCA of TSS revamped as Pradan Mantri Adi Adarsh Gram Yojna. Financial support for this centrally sponsored Vocational Training Center, which was given under SCA to TSS was subsumed in Article 275(1). So Page 64 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined this is admitted/conceded by the answering respondent that the said SCC to TSS is revamped, meaning thereby, the said scheme has been given a new improved appearance but the nature of the work of the employees remained as it is and continued.
14.4 It is submitted that findings given by Hon'ble Division Bench while passing Interim Directions that "If the Scheme for training tribal youth has continued since the year 1992 unabated in one form or the other, why a permanent establishment is not created".
In light of the aforesaid finding given by the Hon'ble Division Bench in the year 2015, necessary directions be issued to the respondents herein, directing them to either regularize the services by absorbing in the present revamped Scheme known as Pradhan Mantri Adi Adarsh Gram Yojna, forthwith in the interest of justice.
The Hon'ble Division Bench issued further directions while passing the interim order as under ;
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined "Yet another aspect of the matter is regarding continuation of the employees purely on temporary basis for 20 Years by now. As the Scheme has continued in one form or the other for all these years since 1992 would demonstrate that the work is of the perennial nature. The State agencies cannot execute such scheme through ad-hoc staff and regular establishment must be created."
14.5 Reliance is placed on the ratio laid down in the case of Vinod Kumar VIs Union of India, reported In 2024-JX(SC)-0- 348, wherein also almost similar issue involved regarding regularization & absorption into the posts of Account Clerk against which they were temporarily appointed from 1992 till the present spanning a period exceeding 25 years, the Hon'ble Supreme Court allowed the appeals and directed the respondents to complete the process of regularization within three months from the date of service of this Judgment. 14.6 It is further submitted that the Hon'ble Division Bench Page 66 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined specifically directed the respondent to give effect of minimum wages with retrospective effect from 1.4.2009, but unfortunately the arrears of the minimum wages were not paid. It is submitted that while passing the oral order dated 3.10.2023 also the respondents were specifically directed to look into the said issue "as to when the State would be paying to the petitioners the arrears of minimum of the scale from March 2015 till date as per the affidavit of the State referred to hereinabove." Despite such specific directions the State failed to make payment of arrears since 2015, on the contrary by issuing Government Resolution dated 20.12.2023 Minimum of the Pay scale is made payable in terms of the said Government Resolution dated 20.12.2023 which show the most adamant attitude of the respondent - State declining to grant minimum of the scale from March 2015 till date. The appointment of the petitioners itself proves that the petitioners are entitled to get benefit of regularization, as referred to above, in line with the ratio laid down in the case of Vinodkumar VIs Union of India, reported In 2024-JX(SC)-0-348. Page 67 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 14.7 It is submitted that the case of the petitioner be considered to be absorbed in the government service in the sanctioned post comparable to Class 3 and 4 employees.
15. Mr. Mishra, the learned advocate appearing for the petitioners reiterated the contentions raised earlier and submitted that the prayers as prayed for in the present petition be allowed, the scheme having assumed the force of perennial nature by efflux of time and that the petitioners be absorbed in the ITIs. The petitioners herein having appointed in the present scheme by regular procedure.
ANALYSIS :-
16. Heard the learned counsels appearing for the respective parties.
1.1 In the year 1992, the Ministry of Welfare, Tribal Page 68 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Development, Government of India launched a scheme referred to as "the Scheme for Vocational Training Institutes" in tribal areas as a hundred percent centrally aided scheme. The main aim of the said scheme was to upgrade the skills of tribal youths in various vocations depending on the market potential. Each institute was to run five vocational course based on the employment potential in the area.
1.2 The scheme for Vocational Training Institutes was floated by the Government of India, Ministry of Welfare dated 08.12.1992 which was part of the 8th Five Year Plan with a total budgetary outlay of Rs. 1 Crore (Pg. 24 to 29). The expenditure for establishing Vocational Training Institutes in Tribal Areas was to be raised under 2 heads. (i) Non-recurring expenditure and (ii) Recurring expenditure (Pg. 29) to be paid by the Central Government.
1.3 Each trainee was to select 3 courses of his / her choice. Each of which was of 4-months duration. Total duration of the Page 69 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 3 courses would be 1 year. At the end of the year, the trainee would be attached with a master craftsman in a Semi Urban / Urban Area for a period of 3 months for practical training. 1.4 The role of the State Government was to act as an implementing agency. The expenditure incurred would be raised under the 2 heads - non recurring expenditure and recurring expenditure which would be subsequently reimbursed by the Central Government. (Pg. 31-34) 1.5 In the year 1993, 03 Vocational Training Centers were set-up. 05 more Vocational Training Centers were set-up in 1995, 03 more Vocational Training Centers were set-up in 1996, 1997 and 1998. Thus, Total of 13 Vocational Training Centers were set-up.
No more VTC has been setup in the State after 1997- 1998. As per the guidelines issued by the Central Government, each VTC is equipped with the following manpower :- Page 70 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined a. Chief Instructor, b. Trade Instructor, c. Workshop Attendant, d. Peon and e. Watchman 16.1 The advertisement issued by the Project Director for the aforesaid posts publishing in leading daily which is duly produced at Annexure-A page-16 the petitioners herein applied pursuant to the said advertisement. The application for such appointment is duly produced at page-80. The petitioner No.1 is issued a certificate of Accountant by the Employment Exchange on 26.11.1996 page-70. All the petitioners are appointed under Rule-4 i.e. form of notification of vacancies the petitioner No.1 is appointed on fixed pay of Rs.2000 as Accountant on ad hoc basis. By appointment order dated 1/5.8.1997 is duly produced at page-20 wherein the name of the petitioner No.1 figures at Sr. No.5 at page-21 wherein the petitioner is appointed on ad hoc basis at page-22 on terms Page 71 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined and conditions of fixed pay temporary/ad hoc as per the point No.1 above on the following conditions :-
"1. The appointment will be of temporary nature and they can be removed without any notice by this office.
2. As the resolution is with regard to the fix pay per month no other benefits as given to the government. employee will be given.
3. If the candidates who intend to leave the they have to give one month prior notice as per rules or else salary of one month will be deducted."
Ms. Shah, the learned AAG submitted that the working hours of the petitioners herein are such that they would also be permitted and allowed to work at other places after their time of engagement with the VTCs are completed.
Mr. Mehta, the learned Senior Counsel relied on the affidavit-in-rejoinder in the Special Civil Application No.7301 of 2004 duly produced at page-180 more particularly para-11 at page184 and submitted that the petitioners herein are not par-time but full time employees under the Scheme and not Page 72 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined allowed to work elsewhere.
16.2 This Court has considered the said contention harmoniously with page-319 wherein the information provided by the Dy. Project Director is appended as R2 dated 11.3.2008 which provides for time of the vocational training is between 10:30 to 16:30 hours which include practical and theoretical training.
The stance taken by the respondent State in the Committee Report requires consideration that the petitioners are appointed on ad hoc part-time basis. The aforesaid is placed on record at para-5.5 'Recruitment Process' in the Committee Report at page-17 and 18.
The aforesaid factual position is not disputed by the learned counsels appearing for the petitioners. 16.3 The Government Resolution dated 31.12.2001 duly produced at page-51 provides for "staff continuation" for temporary establishment of Vocational Training Center at Ahwa Page 73 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined wherein by the said resolution with reference to office letter Reference No.3 wide Office Order No.TSP/VTI/Vashi/720 of 2001 dated 28.9.2001 it was resolved to immediately pass necessary resolution for staff continuation. 16.4 The petitioners herein approached this Court by filing the present petition wherein while issuing rule on 28.10.2005, it was observed, "subject to hearing the others side, the present status of the petitioners may not disturb, however, liberty is granted to improve it". The present petition being similar to SCA No.7301 of 2004 wherein identical order was passed on 28.6.2004. It was further directed that the order passed in the present petition on 28.10.2005 will apply to these cases and implemented accordingly. The order of status quo has continued pending the present petition. Notably by the indulgence of the Court the petitioners herein are granted the minimum of pay scale in regular establishment by G. R. dated 20.12.2023.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 16.5 Pursuant to the directions issues by the Hon'ble Division Bench on 4.2.2015 the respondent State has filed an affidavit of compliance at page-793 wherein in para-10 a categorical statement has been made that the employees serving under the Vocational Training Center are entitled to the minimum of pay scale. Para-10 of the reply reads thus :-
"10. I state and submit that, the State Government is ready and willing to implement the directions given by this Hon'ble Court but the difficulty on the part of the State Government is that the petitioners or other employees who are working under the scheme for vocational training are appointed under the temporary/ad hoc establishment and the State Government cannot be able to give regular appointment to the petitioners or other employees and also they cannot be included in the regular establishment as they are working under the scheme which is floated by the Central Government though they have served for more than decades. I further respectfully submit that the petitioners or other employees who are serving under the scheme are to be given minimum scale of the employees in regular establishments."
16.5A The Central Government in its affidavit at page- 110 has stated that the scheme did not envisage creation of Page 75 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined any permanent staff from Ministry of Tribal Affairs. Upon perusal of affidavit at page-810 in para-3 it has been proposed by the Central Government to discontinue the scheme of Vocational Training Center from the year 2018-19 and subsume the interventions of vocational training ( skills/livelihood) in the scheme "Special Central Assistance" to Tribal Sub-Scheme (SCA to TSS) . Under the said Scheme SCA to TSS, the State Government is responsible for a formulation of annual proposal based upon the need in the State within their share of allocation and submit to the ministry with the approval of the executive committee headed by Chief Secretary of the State. Such proposal received from the State Government is apprised and approved by the Project Apraisal Committee in the Ministry and chaired by the Secretary, Tribal Aaffairs with representatives of the State Governments, Financial Adviser, Niti Ayog etc., for funding. 16.5B During the last three years and current year, the fund approved and released to the State Government under the SCA Page 76 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined to TSS for carrying out various activities including interventions for livelihood and skill development of vocational training is duly produced at page-811. In paragraph-4 of the affidavit it is stated that it is upto the State Government to decide continuance of the Vocational Training Center after assessing the employment potential in a particular area depending on educational qualification of the target population type of industries available in the region of State, present economic trend, market potential and placement opportunity. 16.5C In para-5 of the said affidavit respondent No.1 has explained with respect to the release of grants in the State Government based upon the requirement and further stated that the concerned State Government is responsible for implementing the intervention on year to your basis with the approval of PAC and arranging for structure, establishment of institution and staff health and that the scheme did not envisage creation of any permanent staff from Ministry of Tribal Affairs. It emerges that though the Central Government Page 77 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined did not release grant for the years 2016-17, the respondent State Government made necessary expenditure to run the scheme for a particular year and it was thereafter that the Central Government released the funds. It further emerges that the Central Government has included the scheme for vocational training under the special central assistance to tribal sub- scheme and the central government discontinued the vocational training scheme with effect from financial year 2018-19 page- 892. 16.6 The respondent - State by affidavit dated 10.3.2023 has placed on record the G.R. dated 21.6.2008 issued by the tribal development department, wherein it was resolved that vocational training centers for Scheduled Tribe be set up under the public private partnership PPP model. By the said model, Vocational Training Centers are being run by the State of Gujarat under the PPP model. The Government Resolution dated 21.6.2008 is amended by Government Resolution 3.9.2022.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 16.7 At this stage, it is opposite to refer to ITI (Industrial Training Institute) Scheme in light of the fact that the petitioners of the SCA No.21920 of 2005 i.e. present petitioners are seeking equal pay for equal work at par with the persons working in ITI. Upon perusal of the said scheme which is placed on record by Ms.Shah, the learned AAG it emerges that such employees of the ITI scheme are government employees governed by the Gujarat Civil Services Rules. For grant-in-aid employees the same governed and are in consonance with the grant-in aid code 1984. All the recruitment of ITI is undertaken by the GSS, GSSSB for Class- III and IV and recruitment for Class-I and II is undertaken by the GPSC. All the employees are on sanctioned post and upon completion of five years of probation period are treated as regular government employees.
16.8 It is apposite to refer to the history and nature of the ITI which is the brain child of Director General of Employment Page 79 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined and Training, Ministry of Skills Development, Government of India which read thus :-
A. History of Establishment: -
i. ITI is the brain child of Director General of Employment
and Training, Ministry of Skills Development,
Government of India.
ii. Over a period of time, Director General of Employment
and Training came to be bifurcated into two different departments.
a. Director General of Training b. Director General of Employment iii. Director General of Training issued directions on following aspects: -
a. Instructions to recruit as per Recruitment Rules notified by the State Government.
b. Norms and guidelines for training c. Administrative head of all training institutes Page 80 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined iv. Director General of Employment issued directions on following aspects: -
a. After training employment B. Structure of ITI: -
i. For registration of ITI following is the procedure: -
a. Every institute has to fill a form issued by the Central Government.
b. The form is to be submitted to Director General of Training.
c. After submission of form, inspection is carried out by two personnel, one representing Regional Director of Skill Development and Employment (RDSDE) and one personnel representing the State Director. d. On completion of inspection, the institute is registered and affiliated to National Council for Vocational Training (NCVT).
e. NCVT is the branch of All India Council for Technical Education (AICTE).
C. Number of ITIs in the State of Gujarat: -
i. Total 566 are functional in the State of Gujarat.
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Vocational Training and 55 courses are recognized by Gujarat Council for Vocational Training. iii. There is no role of the State Government as far as notifying the courses are concerned.
iv. State Director is empowered to decide as to which courses will be undertaken by which Institute. v. All Government employees of ITI are governed by Gujarat Civil Services Rules.
vi. For Grant-in-aid employees, the same are governed and are in consonance with Grant-in-aid Code of 1984.
vii. All recruitment of ITI is undertaken by GSSSB for Class - III and Class - IV and the recruitment for Class - I and Class - II is undertaken by GPSC. viii. All employees of ITI are on sanctioned post and after completion of 5 years of probation they are treated Page 82 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined as regular Government employees.
16.9 It is also apposite to refer to the distinguishing the factors between the ITI and VTC as placed on record by Ms. Shah, the learned AAG which read thus :-
ITI VTC
Nature of establishment Nature of Establishment
Affiliated with NCVT. Scheme floated and council
Perenial in nature. established in different districts.
Permanent in nature. No registration
Not affiliated with NGVT or
any of the council.
Pg. 24 - Scheme during 8th
Five Year Plan
Not perennial in nature.
Finance Finance - Central Government
State funded (Govt. ITI & After 2018-19 stopped.
Grant-in-aid) 2020- last grant received.
Budget allocation / approved From 2021 the State
by the Legislative Assembly. Government is paying
(minimum of pay-scale as
assured from 2023)
Area of operation Area of Operation
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NEUTRAL CITATION
C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025
undefined
For entire State of Gujarat Restricted to Tribal people and
Tribal districts.
Service Condition: - Service Condition: -
Permanent Employee Contractual Employee
Governed by GCSR Term of appointment is not
Promotional Avenues permanent in nature.
Pension Rules applicable GCSR Rules are not applicable.
Appeal and Disciplinary Rules None
Conduct Rules Fixed Pay
Regular Pay-scale
Mode of Recruitment: - Mode of Recruitment: -
Recruitment for Class - I and Advertisement is issued by
Class - II - is undertaken by Project Administrator.
GPSC. No reservation
Recruitment for Class - III
and Class - IV is undertaken
by GSSSB.
Reservation is made
applicable Horizontally/
Vertically.
Duties of employees: - Duties of employees: -
Duties of employees are No specific duties are issued by
mentioned in training manual the Central Government.
issued by Director General of
Training.
ITI courses are frequently No revision of courses.
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NEUTRAL CITATION
C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025
undefined
revised by the Central
Government.
17. The State Government through Department of Tribal
Welfare issued the G. R. dated 20.12.2023 wherein providing minimum of pay sale to the present petitioners in line of the judgment of Hon'ble Supreme Court in case of State of Punjab vs. Jagjit Singh, reported in 2017 (1) SCC 148.
18. Undisputedly the Vanbandhu Kalyan Yojana introduced by the respondent State in the year 2007 is under public private partnership PPP which is also successful wherein resultantly the tribal youth were engaged in productive activities and were not infected or influenced by the left wing extremism or other radical ideologies do not provide for regularization. The petitioners herein do not claim parity with the employees of such scheme, though the same is also in effect from 2007. The said scheme does not envisage regularization.Page 85 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined
19. The contention raised by the learned counsels appearing for the petitioners is that the respondent State has failed to answer the question raised in the order dated 4.12.2015 wherein the Hon'ble Division Bench that whether the Scheme is perennial in nature is answered by Ms. Shah, the learned AAG wherein the committee report provides that the scheme is not perennial in nature, however the respondent State considering the welfare of the petitioners herein have continued the scheme till such employees attain the age of superannuation. The directions issued by the Hon'ble Division Bench by the interim order dated 4.12.2015 have also been accepted by the respondent - State, in view thereof also the petitioners are continued in the said scheme by the respondent
- State.
20. To arrive at final conclusion this Court deems it fit to deal with the judgments relied upon by Mr. Shalin Mehta, the learned Senior Counsel appearing for the petitioners in the SCA Page 86 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined No.7301 of 2004, Mr. R. K. Mishra, the learned advocate appearing for the petitioners in Special Civil Application No.21920 of 2005 and Ms. Shah, the learned AAG appearing for the respondent - State.
20.1A Mr. Mehta, the learned Senior Counsel relied on the ratio laid down by the Hon'ble Apex Court in Civil Appeal (SLP) No.4036-4038 of 2024 in case of P Rammohan Rao vs. K. Srinivas and Ors., paragraphs 35 and 37 read thus :-
"35. Since there was a vacuum in the rules, it cannot be said that these appointments were de hors the rules. Further, this Court finds merit in the distinction drawn by the counsel for the appellants between G.O.M. No. 540 dated 30th August, 1990 and the later G.O.M. No. 1289 dated 10th August, 1994, both issued by the Panchayat Raj Department. A careful comparison of the two G.O.M's highlight a significant difference in their terms and conditions. G.O.M. No. 540, which created the sanctioned posts for AEEs under CERP, did not include any clause making the appointments conditional upon selection by the APPSC. There was no provision for reversion to a lower position if the appointees were not selected through a regular selection process conducted by the Page 87 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined APPSC. On the other hand, G.O.M. No. 1289, issued on 10th August, 1994, explicitly provided that the appointments were temporary and subjected the appointees to the rigor of selection through the APPSC or else face reversion. It stipulated that the candidates who were not selected through APPSC, they would be reverted to the position of Work Inspectors. This clause made it clear that the appointments under G.O.M. No. 1289 were temporary and contingent upon selection through the APPSC, a stipulation that was notably missing in G.O.M. No. 540. The absence of such a condition in G.O.M. No. 540 indicates that the appointments under that order were not of a temporary or conditional nature as those made under G.O.M. No. 1289.
36. Also, upon a perusal of G.O.M. No. 391, dated 30th June 1994, concerning the Jawahar Rozgar Yojana Scheme, it is apparent that the State Government had a specific and unequivocal intent to retain the services of individuals posted under the CERP Circles/Divisions, since, this G.O.M specifically directed that upon abolition of the CERP Circles/Divisions, the personnel temporarily appointed under the project(s) would be reassigned to the newly sanctioned Circles and Divisions, underscoring the Government's intent to maintain employment and continuity of service. The relevant extract from G.O.M. No. 391 is reproduced hereinbelow: -
"10. As and when the Cyclone Emergency Reconstruction Project Page 88 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Circles/ Divisions are abolished, the persons working in these circles/ Divisions shall be posted to the new circles and divisions. The sub-divisions attending to cyclone Emergency Reconstruction Project Works shall stand abolished w.e.f. 30.6.1994 A.N. and the persons working in these Sub-Divisions shall be posted to New Circles/ Divisions Sub-divisions now sanctioned.
11. The posts which were sanctioned for Cyclone Emergency Reconstruction Project works in the office of Chief Engineer (CERP) shall also stand abolished w.e.f. 30.6.94 A.N. but the staff in O/o Chief Engineer (RWS) sanctioned in this order will continue to attend to the residual work if any of the C.E.R.P. till the work is completed."
In the facts of the said case the appellants were holding the qualification of B. Tech (Bachelor of Technology) who was selected and appointed as Inspector in Andhra Pradesh Scheduled Cast Cooperative Development Cooperation on 1.1.1990 and was serving in the said department. The Government of Andhra Pradesh issued G.O.M No.89 on 9.2.1990 sanctioning the post of Assistant Executive Engineers for achieving Phase-II of the Andhra Pradesh Primary School Project which was initiated in collaboration between the Government of Andhra Pradesh and the Government of United Kingdom in the year 1983. The said project was time-bound and hence the directions were issued by the government of Andhra Pradesh to the Chief Engineer, to fill up the posts Page 89 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined immediately from the list available with Andhra Pradesh public service commission, and if the list was not adequate then the Chief Engineer was permitted to recruit candidates through Employment Exchange. Wherein the Hon'ble Apex Court held that the appointment of the said appellants and similarly situated candidates has been temporary, notwithstanding the designation of the appointments of the appellants and similarly situated candidates as being temporary, such appointments were neither restricted by a fixed tenure nor conceived as a stop gap of ad-hoc arrangement. Such appointments are held to be structured to ensure continuity and stability within the workforce.
In the facts of the said case, the services of the appellants and other similarly situated employees between 1990-1995 were regularized and in view thereof ad hoc and stop gap nature of appointment would not survive.
In the facts of the present case, the petitioners herein are continued as ad hoc employees and are seeking regularization. Page 90 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined There is no sanctioned set up for the present employees. In the opinion of this Court, the aforesaid judgment is not applicable in the facts of the present case.
20.1B In the case of Vinod Kumar and Ors., vs. Union of India and Ors., reported in (2024) 9 SCC 327, Mr. Mehta, the learned Senior Counsel submitted that the Hon'ble Apex Court in the aforesaid judgment recognized the principle of equal pay for equal work. The continuous service of the appellant in the said case in capacity as regular employees, performing duties, indistinguishable from those in permanent posts and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme specific nature of the initial engagement having worked for more than 25 years, directed that the case of such employees be considered for regularization in their respective posts. It is apposite to refer to paragraphs 5 and 8 of the said decision which read thus :-
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined "5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.
8. In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations."Page 92 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined In the opinion of this Court, in the facts of the said case, Though the initial appointment of the appellants was temporary in nature, by efflux of time the said appellants were promoted by regularly constituted Departmental Promotion Committee, the appellants underwent selection process and the continuous nature of their service for over quarter of century understood their argument for regularization, in view thereof such appellants though having initially appointed on temporary basis acquired the status of a regular employee. The same having evolved reclassification and view thereof the Hon'ble Apex Court held that the failure to recognize substantive nature of their rules and continuous service akin to permanent employees runs counters to the principles of the equity fairness and intent behind the employment regulations. It is apposite to refer to paragraph 4 of the said decision which read thus :-
"4. The appellants have approached this Court arguing that Page 93 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the High Court erred in its judgment by failing to recognize the substantive nature of their duties, which align with regular employment rather than the temporary or scheme-based roles they were originally appointed for. Furthermore, their promotion by a regularly constituted Departmental Promotional Committee, the selection process they underwent, and the continuous nature of their service for over a quarter of a century underscored their argument for regularization and that the High Court has incorrectly applied the principles from the case of Uma Devi (supra) to their situation."
In the opinion of this Court, the appellants in the said case though were appointed on temporary basis, having worked for 25 years and having undergone regular promotional process by efflux of time their temporary status stand reclassified to regular status. Under such circumstances, the Hon'ble Apex Court directed the case of such appellant to be considered as that of regular employee for regularization in their respective posts.
20.1C Mr. Mehta, the learned Senior Counsel appearing for the petitioners strenuously relied on the ratio laid down by Page 94 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the Hon'ble Apex Court in the case of AIR 2025 SC 296, Jaggo vs. Union of India & Ors.
In the said judgment the petitioners No.1, 2 and 3 were appointed as Safaiwalis in the years 1993, 1998 and 1999 respectively whereas the petitioners No.4 and 5 were appointed as Mali and Khalasi in the years 2000 and 2004 respectively in the Central Water Commission (for short CWC) on ad hoc basis and they were paid lumpsum monthly emolument. The petitioners claimed their service to be regularized before the Tribunal in terms of DOP and TOM dated 11.12.2006 issued in compliance with the directions of the Hon'ble Supreme Court in case of Umadevi, reported in 2006 (4) SCC page-1.
The Hon'ble Supreme Court taking into consideration that long span of service held that, irrespective of the department or office the nature of work, the petitioners were performing essential duties that were indispensable in day-to-day functioning of the offices of CWC. Irrespective of the office of Page 95 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined department or office, the nature of work remained the same, not requiring any specific academic qualifications. In the said commission itself Safaiwalis with lesser number of years have been regularized and therefore Hon'ble Supreme Court held that there was clear violation of Article 14 of the Constitution of India.
In the facts of the present case, the petitioners are seeking regularization at par with the regularly appointed employees considering the long span of service rendered by the petitioners herein. It is not even the case of the petitioners that the petitioners herein are discriminated interse wherein some of the employees are regularized.
20.2A Mr. R. K. Mishra, the learned advocate appearing for the petitioners relied on AIR 1982 SC 879 in the case of Randhir Singh vs. Union of India and Ors.
In the aforesaid decision the Hon'ble Apex Court held that the driver of Delhi Police Force to be performing the same function as that of the Delhi Administration and Central Page 96 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Government and the classification was held to be irrational. The same being violative of Articles 14 16 and 39D of the Constitution of India 20.2B AIR 2003 SC 3569 in the case of State of West Bengal and Ors.,vs. Pantha Chatterjee and Ors. Para-16 read thus :-
"16. In the present case we have seen that there has not been any dispute about the nature of duties of the two sets of BWHGs. Ordinarily, no doubt they could claim benefits only in accordance with the scheme under which they were engaged. But as held earlier, the scheme was not implemented in its terms as framed. Hence, the distinction sought to be drawn between the part-time and the permanent BWHGs had obliterated and both worked together shoulder to shoulder under similar situations and circumstances and discharged same duties. Once the scheme as framed failed to be implemented as such by those at the helms of the affairs and the part- time BWHGs were continued under the authority of those vested with such power to continue them, it is not open to the State government or the Central government to deny them the same benefits as admissible to members of the permanent staff of BWHGs. The decisions in Karnataka State Page 97 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Private College Stop-gap Lecturer's Association V/s. State of Karnataka & Ors. and Government of India & Ors. v. Court Liquidator's Employees Association & Ors. may also be beneficially referred to."
The Hon'ble Apex Court held that the distinction between part time and permanent Border Wing Home Guards (BWHGs) stands obliterated, both having worked equally. 20.2C AIR 2017 SC 4072, in the case of State of Punjab and Ors. vs. Vocational Staff Masters Association and Ors., (Para-
18) equal pay for equal work. The Hon'ble Apex Court in para 18 and 19 held that there are two categories of workers who were initially treated equally should be continued to be treated equally unless a differential treatment is justified by some cogent reasons.
The aforesaid judgment is not applicable in the facts of the present case.
20.2D GLH 2005 (2) 235, in the case of Galaji Gopalji Page 98 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Jadeja vs. State of Gujarat. It is not in dispute that, in the facts of the said case the petitioners were regularly employed and the judgment was in personam.
20.2E 2017 (1) SCC 148 in case of State of Punjab and others Vs. Jagjit Singh, Hon'ble Apex Court in paragraphs 5, 42, 57 and 58 directed that minimum pay scale granted to regular employee be extended to temporary employees (differently designated as work charge, daily wage, casual, ad hoc, contractual, etc. The respondent State has acted in accordance with the aforesaid judgment by extending the minimum pay scale of a regular employee holding the same post.
20.2F Mr. Mishra, the learned advocate has also relied on the ratio laid down by the Hon'ble Apex Court in (2024) 9 SCC 327 Vinod Kumar Versus Union of India.
The aforesaid judgments are relied upon by Mr. Mishra, Page 99 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined the learned advocate appearing for the petitioners on the principle of "equal pay for equal work."
In the opinion of this Court, the petitioners herein are employed as temporary workers under the scheme of Vocational Training Institutes floated by the Government of India, Ministry of Welfare dated 8.12.1992 as a part of the Eight Five Years Plan. The said scheme came to be discontinued by the Central Government in the year 2017-18 and proceeded to float further schemes such as Special Central Assistance to Tribal Sub-Scheme which was subsequently revamped as Pradhan Mantri Adi Adarsh Gram Yojna and presently the Scheme for Vocational Training Institutes floated by the Central Government is operational under Article 275(1) of the Constitution of India. The same is continued by the respondent State by granting minimum pay scale w.e.f. 20.12.2023. It is also the stance of the respondent State that the roll of the State Government was that of an implementing agency. The scheme under which the petitioners herein are Page 100 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined appointed does not provide for regularization and the petitioners are appointed by issuance of advertisement by the Project Manager and have continued by virtue of the interim orders passed by the Court from time to time. 20.3 Ms. Shah, the learned AAG appearing for the respondent - State relied on the following judgments :-
(A) 2017 (1) SCC 148 in case of State of Punjab and others Vs. Jagjit Singh. Reliance is placed on paragraphs 42, 55 and 57 of the said judgment wherein the Hon'ble Apex Court held that even the temporary employees are entitled to the minimum of pay scale as being paid to the regularly placed employees.
(B) (2016) 8 SCC 293, in the case of State of Maharashtra and Ors., vs. Anita and Anr. Wherein the Hon'ble Apex Court considered in para-16 and 17 that once the appointments were purely contractual, such employees would not be entitled to Page 101 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined claim any right or interest of a permanent service in government.
(C) (1996) 10 SCC 56, State of W.B. & Ors., vs. Monirujjman Mullick & Ors., wherein the Hon'ble Apex Court in para-4 held that non-formal educational centers cannot be equated with primary schools which are regularly run by the Education Department of the State Government. Apart from the basic qualitative differences between the two institutions even the nature of work of the non-formal instructors and primary school teachers is not identical. The method of appointments the source of recruitment, method of teaching, a hours of teaching and mode of payment are entirely different. The Hon'ble Apex Court set aside the judgment of the Hon'ble Division Bench of the High Court and held that the High Court fell into patent error in applying the principle of "equal pay for equal work".
(D) 2010 (13) SCC 448, in the case of Union of India & Page 102 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined Ors. vs., A. S. Pillai & Ors., (para-15 to 19) wherein the Hon'ble Apex Court held that the petitioners were part-timers and they are free to get themselves engaged elsewhere as musicians and they are not restrained from working elsewhere when they are not working with the respondent authorities. On the other hand, those who are part of Bandsmen team of Air Force are not permitted to work elsewhere privately. Moreover, the petitioners are not full time employees and are not subject to Service Rules or other Regulations which govern and control the regularly appointed staff of the Air Force. It was thus held by Hon'ble Apex Court that the petitioners cannot compare themselves with other regularly appointed Bandsmen of Indian Air Force, so the petitioners cannot be compared with those who are in regular cadre of Bandsmen in the Air Force. The ratio laid down in case of Umadevi, reported in (2006) 4 SCC page-1 was considered. It was held that no direction with regard to absorption of the petitioners if any cadre can be given.
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined (E) (2011) 2 SCC 429, in the case of State of Rajasthan & Ors., Daya Lal & Ors. (para-11 and 12) wherein the Hon Supreme Court considered two questions in the said Appeals :-
(i) Whether persons appointed as Superintendents in aided non-
governmental hostels are entitled to claim absorption by way of regularisation in government service or salary on a par with Superintendents in government hostels?
(ii) Whether part-time cooks and chowkidars appointed temporarily by Mess Committees of Government Hostels, with two or three years' service, are entitled to regularisation by framing a special scheme?
The Hon'ble Apex Court held in para-12 as under :-
If the employee is not working against a sanctioned post, sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. The part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor Page 104 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
(F) (2014) 4 SCC 769, in the case of Secretary to Government, School Education Department, Chennai vs. Govindaswamy & Ors., (para-7, 8 and 9) reiterated the ratio laid down in (2011) 2 SCC 429, as referred above.
(G) (2021) SCC OnLine SC 899, (para-21, 25 to 29) in the case of Union of India & Ors. vs. Ilmo Devi Anr., the Hon'ble Apex Court relied on the ratio laid down in 2011 (2) SCC 429 in the case of Rajasthan and Ors., vs. Dayalal and Ors., and held in para-28 that as per the law laid down by the Hon'ble Apex Court part time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-
time temporary employees. Part-time temporary employees in Page 105 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for the work.
(H) (2023) SCC Online SC 173, (para-9 onward) in the case of Union of India Vs. Indian Navy Civilian Design Officers Association and Others, wherein the Hon'ble Apex Court has hed that the power of judicial review of High Court in the matter of classification of posts and determination of pay scale is no more res integra. It is further held that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in fixing the pay scale of a given post and interference of the Court was absolutely necessary to undo the injustice. In paragraph-17 it is held that the powers of judicial review in matters involving financial implications are also very limited. The wisdom and advisability of Court in matters concerning finance are ordinarily not available to judicial review unless Page 106 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined gross case of arbitrariness or unfairness is established by the aggrieved party.
(I) Reliance is also placed on the judgment delivered in the SCA No. 10346 of 2014, paragraph 9 onward wherein it is held that, no legal right accrues in favour of contractual employees to be granted regular pay scale of regularly appointed employee in the facts of the said case. It is held that if the appointment is pure and simple contractual appointment, under such circumstances, the same does not attract and is outside the purview of the Bombay Civil Service Rules, 1959.
Placing reliance on the aforesaid judgment Ms. Shah, the learned AAG reiterated the contentions that the petitioners herein are appointed on temporary basis pursuant to the scheme floated by the Central Government in Scheme of Vocational Training Institute in Tribal Area. That the respondent State has also acted in fair manner by granting minimum pay scale that of regularly appointed employee from Page 107 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 20.12.2023. The petitioners herein are not regularly appointed employees and are not entitled to regularization. (J) (2007) 1 SCC 408, in the case of Indian Drugs and Pharmaceuticals Limited vs. Workmen, Indian Drugs and Pharmaceuticals Limited, wherein the Hon'ble Apex Court has considered the distinction between temporary employee and permanent employee vis-a-vis the rights of temporary employee seeking absorption, regularization and benefits of permanent continuation in service on the ground of continuous service for a long time. Reliance is placed on paragraph-30 of the said judgment. The Hon'ble Apex Court has also considered the aspect of judicial restraint so far as regularization of employees are concerned, especially when the employment was scheme base appointment.
(K) Reliance is placed on the judgment delivered by the Hon'ble Delhi High Court in case of Desdipak Shrivastav & Ors. Vs. Delhi High Court and Another reported in W.P. Page 108 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined (Civil ) No. 9570 of 2015, wherein Hon'ble Delhi High Court was considering the case of petitioners appointed on purely temporary and contractual basis for a fixed period funded by the Government of India. While dismissing the said petition the Hon'ble Delhi High Court held that there is no fundamental right in those who have been employed or temporary or on contractual or ad hoc basis to claim that they have a right to be absorbed in service. It is further held that even if a scheme has been in operation for some decades or that the employee concerned as continued on ad hoc basis for decades, it could not entitle the employee to seek permanency or regularization. Dealing with the the judgments relied upon by the learned counsel appearing for the petitioners it is submitted that in case of Jaggo versus Union of India, reported in 2024 SCC Online 3826 would not be applicable in the facts of the present case where the Hon'ble Court held that Constitutional Bench judgment in State of Karnataka and Ors., versus Umdevi and Ors., reported in 2006 (4) SCC page-1 cannot be resorted to as the umbrella for discriminative action in regularizing Page 109 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined some Class-IV employees and denying the similar treatment to others.
In the facts of the present case not a single employee engaged under the Central Sponsored Vocational Training Center Scheme has been regularized by the State Government. (L) The decision of Vinod Kumar and Another versus Union of India, reported in 2024 (9) SCC 327 is not applicable in facts of the present case, wherein in the said case the petitioners though appointed contractually were treated as regularly selected government employees for all the purposes including promotion.
In the facts of the present case, it has been the stand of Union of India that the scheme has closed and these appointments in any case would be temporary on an honorarium in view of the stay granted, the State Government continued to pay them. On the basis of honorarium subsequently as per the interim order passed by the Court and presently in compliance with Jagjit Singh (supra) at minimum Page 110 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined of pay scale.
20.4 Mr. Mehta, the learned Senior Counsel and Mr. Mishra, the learned advocate appearing for the petitioners herein distinguished the judgments relied upon by Ms. Shah, the learned AAG as referred above and submitted that the petitioners herein are working for more than 25 years. The scheme has attained perennial nature by orders by the Court from time to time and by efflux of time, in view thereof the aforesaid judgments are not applicable in the peculiar facts of the present case.
Position of law :-
21. It is apposite to refer to the ratio laid down in Federation Of All India Customs And Central Excise Stenographers (Recognised) Versus Union Of India, reported in (1988) 3 SCC 91, paragraphs 7 and 11 read thus :-
"7. Equal pay for equal work "is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be Page 111 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value Judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Art. 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.
11. In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either Page 112 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined in law or in fact. In the light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs."
21.1 It is apposite to refer to the ratio laid down in (2006) 4 SCC page-1 in the case of State of Karnataka vs. Umadevi wherein the Hon'ble Apex Court in para-45 has held that while accepting the appointment/engagement on temporary or casual nature, such employee would be aware of the nature of employment, accepting it with open eyes. While accepting such employment the person concerned is aware of the nature of employment. Paragraph-45 of the said decision read thus :-
"45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It Page 113 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other, words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term.Page 114 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Art. 14 of the Constitution of India."
21.2 It is apposite to refer to 2017 2017 (1) SCC 148 in case of State of Punjab and others Vs. Jagjit Singh paragraphs 5, 42, 57 and 58. The Hon'ble Apex Court in paragraph-5 dealt with the following issues :-
"Whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their Page 115 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts."
Answering the aforesaid question Hon'ble Apex Court in para-42 of the said judgment in para-58 held that an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Any act of paying less wages as compared to other similarly situated constitutes an act of exploitative enslavement, emerging out of domineering position. Such action is oppressive, suppressive, and coercive as it compels involuntarily subjugation.
Paragraphs 42, 57 and 58 of the said judgment read thus :-
"42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of `equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, Page 116 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of `equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of `equal pay for equal work'. Our consideration, has led us to the following deductions:-
(i) The `onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of `equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case, Union Territory Administration, Chandigarh v. Manju Mathur, 2011(1) S.C.T. 830 : (2011) 2 SCC 452, the Steel Authority of India Limited case, and the National Aluminum Company Limited case).
(ii) The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of `equal pay for equal work'.
Persons discharging identical duties, cannot be treated Page 117 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined differently, in the matter of their pay, merely because they belong to different departments of Government (see - the Randhir Singh case, and the D.S. Nakara case).
(iii) The principle of `equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case, the Grih Kalyan Kendra Workers' Union case and the S.C. Chandra case).
(iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of `equal pay for equal work' (see - the Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Association, 2002(3) S.C.T. 674 : (2002) 6 SCC 72, and the Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.
(v) In determining equality of functions and responsibilities, under the principle of `equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts Page 118 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case and the State Bank of India case). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of `equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121, and the Grih Kalyan Kendra Workers' Union case).
(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see - the Orissa University of Agriculture & Technology case).
(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - `selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121). Page 119 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
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(viii) If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case, and Government of W.B. v. Tarun K. Roy, 2004(1) S.C.T. 78 : (2004) 1 SCC 347). In such a cause, the principle of `equal pay for equal work', cannot be invoked.
(ix) The reference post, with which parity is claimed, under the principle of `equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey, 2001(1) S.C.T. 462 : (2000) 8 SCC 580, and the Hukum Chand Gupta case).
(x) A comparison between the subject post and the reference post, under the principle of `equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand, (2008) 10 SCC 1).
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(xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of `equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case).
(xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of `equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association, 2002(3) S.C.T. 674 :
(2002) 6 SCC 72).
(xiii) The parity in pay, under the principle of `equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay-scale. The principle of `equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association, 2010(2) S.C.T. 250 : (2010) 5 SCC
225).Page 121 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
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(xiv) For parity in pay-scales, under the principle of `equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is nonteaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur, 2011(1) S.C.T. 830 : (2011) 2 SCC 452).
(xv) There can be a valid classification in the matter of pay- scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub- office level (see - the Hukum Chand Gupta case), when the duties are qualitatively dissimilar.
(xvi) The principle of `equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see
- the Hukum Chand Gupta case).
(xvii) Where there is no comparison between one set of employees of one organization, and another set of employees Page 122 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined of a different organization, there can be no question of equation of pay-scales, under the principle of `equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of `equal pay for equal work' would not apply (see - the S.C. Chandra case, and the National Aluminum Company Limited case).
57. Having traversed the legal parameters with reference to the application of the principle of `equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/ corresponding posts. This exercise would require the application of the parameters of the principle of `equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the Page 123 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of `equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay- scale of regularly engaged Government employees, holding the same post.
58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay- scale (-at the lowest grade, in the regular pay-scale), extended Page 124 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined to regular employees, holding the same post."
22. Further this Court is pursued by the judgments relied upon by Ms. Shah, the learned AAG, as referred above.
23. It is worthwhile to discuss the principle of "equal pay for equal work" wherein in the facts of the present case the petitioners herein are seeking enforcement of the said principle "equal pay for equal work" is not a fundamental right under the Indian Constitution, it is a constitutional goal which must colour the interpretation of Articles 14 and 16, so as to be elevated to the rank of a fundamental right, the denial of which must result in an "irrational classification" but unequals cannot be made equals for paying equal pay for equal work) e.g, those recruited purely on temporary basis and liable to transfer. Where the juniors were getting higher pay, the pay of the seniors was directed to be stepped up to a figure equal to those of the juniors.
23.1 There is, however, no discrimination where, though the Page 125 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined functions may be the same, the responsibilities or the quality of work of two employees are different. The problem of equal pay cannot be translated into a mathematical formula and a certain amount of value judgment must be left with the administrative authorities, with which the court can interfere only if the differentiation is irrational, without any basis, or mala fide.
23.2 Nor can any question of denial of the right to equal pay arise where there is no other employment comparable to that of the petitioner, or where differentiation between the two classes of employees is justified by the circumstances, such as a change in their duties and functions.
23.3 However, where there is such inequality, attracts Articles 14 and 16 of the Constitution of India.
23.4 If some juniors, by the circumstance of the length of service, were drawing higher scale of pay, parity cannot be claimed by the seniors on that basis. Daily wagers engaged to Page 126 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined do manual work are not entitled to equal pay of regular Class IV employees but those employed in similar work, are. 23.5 The principle of "equal pay for equal work" is not always easy to apply due to inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organisation, difference in educational or technical qualifications or other considerations like experience and seniority. The court should not interfere unless there are any mala fides. Hence a cautious approach is to be adopted while applying this principle as mere difference is not discrimination. This principle would not be applicable where qualitative difference in functions and responsibilities is apparent, although there is some similarity in duties and obligations and also where there are distinguishing features like educational qualifications for appointment (graduate, non- graduate), mode of recruitment (direct recruitment, promotion), status (gazetted, non-gazetted), special assignments entrusted to one category only, different lists; although there is substantial Page 127 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined similarity in duties and responsibilities and interchangeability of posts. Similarly, mere delegation of certain limited powers of higher post will not entitle to equal pay to said post but where the only differentiating factor was that the employee had "opted out" of the scheme of absorption and the others chose to be absorbed, the principle would apply and also where the employees of one department approached the Board of Arbitration but others did not.
23.6 In the absence of requisite qualifications and existence of a post as such, the principle of equal pay for equal work cannot be applied; but, the Apex Court held that, where there was no degree course available in Printing Technology, the diploma holders after putting in five years of service in a lower grade than that of degree holders, should be treated on a par with the degree holders in Government Polytechnic. 23.7 An employee is eligible to payment of the scale of pay for the post he is attached to, under the Fundamental Rules and not under Article 39(d).
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NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 23.8 Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of govt. is patently irrational, unjust and prejudicial to a section of employees and the govt. while taking the decision had ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the govt. to be unsustainable, ordinarily a direction should be given to the govt. or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the govt. to implement the same. Despite the fact that the employees have been performing similar duties and functions and their posts are interchangeable, a valid classification can be made on the basis of their educational qualification.
24. In light of the aforesaid discussion, this Court is inclined Page 129 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined to pass the following order :-
24.1 The petitioners herein are appointed on ad hoc part-time basis under the VTI Scheme floated by the Central Government for Vocational Training Institutes and are extended the benefit of minimum Pay Scale of employees in regular establishment by G.R. dated 20.12.2023.
24.2 It is directed that in light of the affidavit filed by the respondent - State on 10.3.2015 the petitioners are entitled to minimum pay-scale of a regular employee from the date of filing of such affidavit, as referred above, with arrears from March 2015 till they superannuate.
24.3 Further the petitioners herein are not governed by the Gujarat Civil Service (Discipline & Appeals) Rules, 1971 or Conduct Rules, Appeals & Discipline Rules, Pension Rules which would be applicable to the regularly appointed employees. The post under the Scheme, in the opinion of this Court, cannot be equated with a sanctioned post.Page 130 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025
NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined 24.4 (a) No employee working in the present scheme or the Vanbandhu Kalyan Yojna are regularized.
(b) The employees of ITI are regularly appointed employees wherein the recruitment for Class 3 and 4 employees is undertaken by the GSS, GSSSB, recruitment for Class-I and II is undertaken by the GPSC and reservation is applicable horizontally and vertically. The said scheme is also applicable to the State of Gujarat.
24.5 The petitioners are not discriminated by regularizing any other persons working under the scheme, nor is there any promotion granted wherein the petitioners are discriminated. The prayer of the petitioners to absorb them in regular government cadre is such that, if the same is accepted, such candidates who would otherwise be entitled to regular appointment would be at a loss.
In absence of the scheme of regularization and regular work being available for the post for which the petitioners are Page 131 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined claiming regularization, the said prayer is such that which cannot be granted.
24.6 Any order for absorption and regularization of a person not appointed by regular mode would result in denial of equal opportunity in the matter of employment as required Articles 14 and 16 of the Constitution of India to other eligible candidates for the public offices.
25. Before parting, it emerges that VTI was introduced by the Central Government in tribal area launched by Ministry of Welfare, Tribal Development Division, Government of India in December, 1992 100% Centrally aided which is implemented by the State Government and employees of the said Scheme are continued till the age of superannuation by extending the minimum pay-scale to such employees that of regular employees, by interim orders passed by the Court from time to time and in due compliance of such interim orders the respondent State has resolved to grant minimum pay-scale to such employees that of regular employee. The respondent Page 132 of 133 Uploaded by K.K. SAIYED(HC00169) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:49:53 IST 2025 NEUTRAL CITATION C/SCA/21920/2005 JUDGMENT DATED: 20/03/2025 undefined authorities may consider granting of "honorarium" to the petitioners herein for the services rendered by the petitioners having been continued for more than 25 years.
26. For the foregoing reasons, the captioned petitions are allowed to the aforesaid extent in terms of the aforesaid directions. Rule is made absolute to the aforesaid extent. Consequently the civil application stands disposed of.
27. The aforesaid exercise be carried out within a period of four months from the receipt of this order, failing which interest at the rate of 6% shall accrue.
Direct service is permitted.
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