Gujarat High Court
Gujarat Water Supply & Sewerage Board & vs Harkantbhai K.Vyas & 2 on 5 March, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/436/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 436 of 2006
In
SPECIAL CIVIL APPLICATION NO. 948 of 1993
With
LETTERS PATENT APPEAL NO. 4 of 2010
In
SPECIAL CIVIL APPLICATION NO. 1644 of 1997
With
SPECIAL CIVIL APPLICATION NO. 7120 of 1991
With
SPECIAL CIVIL APPLICATION NO. 7121 of 1991
With
SPECIAL CIVIL APPLICATION NO. 3502 of 1992
With
SPECIAL CIVIL APPLICATION NO. 947 of 1993
With
SPECIAL CIVIL APPLICATION NO. 7810 of 1993
With
SPECIAL CIVIL APPLICATION NO. 6394 of 1994
With
SPECIAL CIVIL APPLICATION NO. 1484 of 1999
With
SPECIAL CIVIL APPLICATION NO. 3064 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9838 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Page 1 of 51
C/LPA/436/2006 JUDGMENT
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
GUJARAT WATER SUPPLY & SEWERAGE BOARD & 1....Appellant(s)
Versus
HARKANTBHAI K.VYAS & 2....Respondent(s)
================================================================
Appearance In LPA No. 436 of 2006:
MR KAMAL TRIVEDI, SENIOR COUNSEL WITH MR MEHUL H RATHOD,
ADVOCATE for the Appellant(s) No. 1 - 2
MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3
Appearance In LPA No. 4 of 2006:
MR DG CHAUHAN, ADVOCATE for the Appellant(s)
MR PH PATHAK, ADVOCATE for the Respondent(s)
Appearance In SCA No. 7120 of 1991:
MR PH PATHAK, ADVOCATE for the Appellant(s)
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1
Appearance In SCA No. 7121 of 1991:
MR PH PATHAK, ADVOCATE for the Appellant(s)
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1 -2
Appearance In SCA No. 3502 of 1992:
MR PH PATHAK, ADVOCATE for the Appellant(s)
RULE SERVED For the Respondent(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 2
Appearance In SCA No. 947 of 1993:
MR PH PATHAK, ADVOCATE for the Appellant(s)
RULE SERVED For the Respondent(s) No. 1
Page 2 of 51
C/LPA/436/2006 JUDGMENT
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 2-3
Appearance In SCA No. 7810 of 1993:
MR PH PATHAK, ADVOCATE for the Appellant(s)
RULE SERVED For the Respondent(s) No. 3
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1-2
Appearance In SCA No. 6394 of 1994:
MR PH PATHAK, ADVOCATE for the Appellant(s)
RULE SERVED For the Respondent(s) No. 3
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1-2
Appearance In SCA No. 6394 of 1994:
MR PH PATHAK, ADVOCATE for the Appellant(s)
RULE SERVED For the Respondent(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1-2
Appearance In SCA No. 1484 of 1999:
MR JITENDRA PATEL, ADVOCATE WITH MR MUKESH RATHOD,
ADVOCATE for the Appellant(s)
MR KAMAL TRIVEDI, SENIOR COUNSEL WITH MR MEHUL RATHOD,
ADVOCATE for the Respondent(s) No. 1-4
Appearance In SCA No. 3064 of 2004:
MR PH PATHAK, ADVOCATE for the Appellant(s)
NOTICE SERVED For the Respondent(s) No. 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
Appearance In SCA No. 9838 of 2004:
MR PH PATHAK, ADVOCATE for the Appellant(s)
RULE SERVED For the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 05/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Heard Mr. Kamal Trivedi, learned Senior Advocate assisted by Mr. Mehul Rathod, Mr. D.G. Chauhan and Mr. Page 3 of 51 C/LPA/436/2006 JUDGMENT Kishore Prajapati, learned advocates for Gujarat Water Supply & Sewerage Board and Mr. P.H. Pathak, learned advocate assisted by Ms. Reena Kamani, Mr. Jitendra Patel, learned advocate assisted by Mr. Mukesh Rathod, learned advocates appearing for the employees.
2. Letters Patent Appeal No. 436 of 2006 has been preferred under Clause 15 of the Letters Patent challenging the judgement and order dated 03.12.2004 passed by the learned Single Judge in Special Civil Application No. 948 of 1993 whereby the learned Single Judge directed the original respondents - Board to pay the arrears of wages for the period from the date such workmen completed three years' service as daily wage employees till they are paid wages in the minimum time-scale within three months from the date of receipt of the writ.
2.1 The original petitioners of Special Civil Application No. 948 of 1993 were daily rated employees of the respondent no.2-Gujarat Water Supply & Sewerage Board and had claimed regularization of service from the date they joined service of the Board as skilled/unskilled labourers. The original petitioners also challenged the Government Resolution dated 17th October, 1988 whereby such daily rated employees were given the benefit of wages at the rate of minimum in the pay scale from the date they completed five years' service on daily wages. It was the claim of the original petitioners before the learned Single Judge that such benefit should have been granted from the date of joining the service.
2.2 Similarly, Letters Patent Appeal No. 4 of 2010 is Page 4 of 51 C/LPA/436/2006 JUDGMENT directed against the judgment and order dated 11.09.2002 passed by the learned Single Judge of this Court in Special Civil Application No. 1644 of 1997 whereby the learned Single Judge directed the appellants to pay minimum pay scale to the original petitioners who have put in more than three years service as daily-rated workmen in respect of the posts on which they were working. It was further directed that the arrears which were due to the original petitioners - workmen as per the Government Resolution shall be paid before 31.03.2003 and that any further arrears that may be payable to such concerned workmen by virtue of the said judgement shall be paid to the concerned workmen before 31.03.2003.
2.3 The grievance in Special Civil Application No. 1644 of 1997 before the learned Single Judge was the non- extension of the benefits of the Government Resolution dated 17th October 1988 to the petitioners therein, as it has been extended to other departments or divisions of the State Government. The original petitioners therein also contended that even if and even after the benefits of the said G.R. are made applicable to them, the same should be on completion of 3 years service as daily-wagers or daily-rated workman in the employment of the respondent Corporation.
2.4 Special Civil Applications Nos. 947 of 1993, 6394 of 1994 have been filed with a prayer for declaring the Government Resolution dated 17.10.1988 as ultra vires to the extent it deprived the daily wage employees of the minimum of the pay scale till they complete five years of service. It is the case of the original petitioners - workmen therein that the Government Resolution dated 17.10.1988 is ultra vires to the Page 5 of 51 C/LPA/436/2006 JUDGMENT provisions of Articles 14 & 16 of the Constitution of India and therefore the same is required to be quashed and thereby the workmen be granted minimum of the pay scale payable to the respective regular employees from the initial date of appointment.
2.5 Special Civil Applications No. 3064 of 2004, 7810 of 1993, 3502 of 1992, 7120 of 1991 & 7121 of 1991 have been filed against the action of the concerned Board/Corporation in denying the minimum of pay scale payable to the respective cadres of employees to the petitioners therein till they complete 7/5 years service and to hold that the daily wage employees are entitled to get the benefits of principle of 'equal pay for equal work' from the initial date of appointment or in other words to treat the petitioners as regular employees from their initial date of appointment.
2.6 Special Civil Application No. 1484 of 1999 have been filed with a prayer to direct the respondents to implement the judgement of this Court passed in Special Civil Applications No. 3457 of 1991 and allied matters on 13/14.07.1993.
2.7 Special Civil Application No. 9838 of 2004 has been filed praying for a direction that the decision of respondent Board in not extending the benefits of time scale of pay to the petitioners - workmen after three years of service as illegal and to direct the Board to extend all the benefits of permanent employees to the petitioners after completion of ten years of service.
3. Mr. Kamal Trivedi, learned Senior Advocate appearing Page 6 of 51 C/LPA/436/2006 JUDGMENT with Mr. Mehul Rathod and Mr. Kishore Prajapati, learned advocates for the Board submitted that the original petitioners - workmen have no legal or justifiable right to claim regularisation in service or to claim benefits of pay scale at par with the regular permanent employees of the Board. He contended that the learned Single Judge ought to have appreciated that the functions, nature of duties, quality and quantity of work, working conditions, responsibilities, experience, educational qualifications and merit of regularly selected employees are different from the daily rated employees engaged for a particular scheme and therefore the principle of equal pay for equal work is not applicable to the facts of the present case.
3.1 Mr. Trivedi contended that in fact experience counts and therefore though a workman may be doing similar work for the last three years, he cannot claim equality with another workman who has put in say around ten years of service.
3.2 Mr. Trivedi submitted that the principle 'Equal Pay for Equal Work' cannot be applied blindly and that the said principle has undergone a sea-change and depends on a number of factors.
4. In this connection, Mr. Trivedi has relied upon the following decisions:
4.1 State of Punjab and Another vs. Surjit Singh and Others [(2009) 9 SCC 514] wherein the Apex Court has held that the doctrine of 'Equal Pay of Equal Work' has a definite place in view of Art. 39(d) r/w Art. 14 of the Page 7 of 51 C/LPA/436/2006 JUDGMENT Constitution, however, there is to be no mechanical application thereof and that the grant of benefit depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. It is also observed that the only question that arises in each case is how the principle is to be applied in different fact situations.
4.2 State of Haryana and Another vs. Tilak Raj and Others [(2003) 6 SCC 123 wherein the relevant paras read as under:
"6. The principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organization. In Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors. , this Court explained the principle of "equal pay for equal work" by holding that differentiation in pay scales among government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. 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. It was further observed that judgment of administrative authorities concerning the responsibilities which attach to the posts and the degree of reliability expected of an incumbent would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court. "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees Page 8 of 51 C/LPA/436/2006 JUDGMENT claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."
4.3 State of M.P. and Others vs. Yogesh Chandra Dubey and Others [(2006) 8 SCC 67] wherein paras 9, 11 & 14 read as under:
"9. It is neither in doubt nor in dispute that the respondents were not appointed in terms of the statutory rules. Their services were taken by the officers only to meet the exigencies of situation. No post was sanctioned. Vacancies were not notified. It is now trite that a State within the meaning of Article 12 of the Constitution of India, while offering public employment, must comply with the constitutional as also statutory requirements. Appointments to the posts must be made in terms of the existing rules. Regularisation is not a mode of appointment. If any recruitment is made by way of regularisation, the same would mean a back- door appointment, which does not have any legal sanction.
11. A person, who had been appointed by a State upon following the Recruitment Rules, enjoys a status. A post must be created and/or sanctioned before filling it up. The question recently came up for consideration in M.P. Housing Board & Anr. vs. Manoj Shrivastava [(2006) 2 SCC 702], wherein it was held:
"33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute vis-`-vis the 1973 Act and the Rules framed thereunder. But in the absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularisation. For the purpose of regularisation which would confer on the employee concerned a permanent Page 9 of 51 C/LPA/436/2006 JUDGMENT status, there must exist a post. However, we may hasten to add that regularis+ation itself does not imply permanency. We have used the term keeping in view the provisions of the 1963 Rules."
It was further opined :
"The appointment made by a person who has no authority therefor would be void. A fortiori an appointment made in violation of the mandatory provisions of the statute or constitutional obligation shall also be void. If no appointment could be made in terms of the statute, such appointment being not within the purview of the provisions of the Act, would be void; he cannot be brought within the cadre of permanent employees. The definitions of "permanent employee" and "temporary employee" as contained in the Rules must, thus, be construed having regard to the object and purport sought to be achieved by the Act."
14. As the respondents did not hold any post, in our opinion, they are not entitled to any scale of pay. "
5. Mr. Trivedi further contended that the skilled/unskilled workers were engaged on daily wage basis as and when the exigency of work arose and they have not been appointed after following regular selection procedure and/or in accordance with the recruitment rules. He submitted that infact the daily rated workmen do not possess the requisite qualifications in respective posts and do not have the responsibilities that of regular employees and therefore the impugned order deserves to be quashed and set aside.
5.1 Mr. Trivedi has submitted that the original petitioners had in the judgement passed in Special Civil Applications No. 3457 of 1991 and allied matters relied upon the decisions of Page 10 of 51 C/LPA/436/2006 JUDGMENT the Apex Court in the following cases being State of Haryana & Ors. vs. Piara Singh & Others reported in (1992) 4 SCC 118; Dhirendra Chamoli & Another vs. State of U.P reported in (1986) 1 SCC 637 and Daily rated Casual Labour P & T vs. Union of India reported in AIR 1987 SC 2342. Referring to the said decisions, Mr. Trivedi submitted that these decisions are no longer good law as they have been considered and overruled by the Hon'ble Supreme Court in the following cases :
5.2 (a) Secretary, State of Karnataka and others v.
Umadevi and others [(2006) 4 SCC 1] more particularly paras 26, 46 & 54 which read as under:
"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.Page 11 of 51
C/LPA/436/2006 JUDGMENT
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or
(ii) he has received assurance from the decision-
maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial Page 12 of 51 C/LPA/436/2006 JUDGMENT directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. "
5.2 (b) Official Liquidator vs. Dayanand [(2008) 10 SCC 1] wherein paras 66 to 69 read as under:
"66. The judgments of 1980s and early 1990s - Dhirendra Chamoli vs. State of U.P. [1986 (1) SCC 637], Surinder Singh and Another vs. Engineer-in- Chief, CPWD and Others [1986 (1) SCC 639], Daily Rated Casual Labour vs. Union of India [1988 (1) SCC 122], Dharwad District P.W.D. Literate Daily Wage Employees' Association vs. State of Karnataka [1990 (2) SCC 396], Bhagwati Prasad vs. Delhi State Mineral Development Corporation (supra), State of Haryana vs. Piara Singh (supra) are representative of an era when this Court enthusiastically endeavored to expand the meaning of equality clause enshrined in the Constitution and ordained that employees appointed on temporary/ad hoc/daily wage basis should be treated at par with regular employees in the matter of payment of salaries and allowances and that their services be regularized. In several cases, the schemes framed by the governments and public Page 13 of 51 C/LPA/436/2006 JUDGMENT employer for regularization of temporary/ad-
hoc/daily wag/casual employees irrespective of the source and mode of their appointment/ engagement were also approved. In some cases, the courts also directed the State and its instrumentalities/agencies to frame schemes for regularization of the services of such employees.
67. In State of Haryana vs. Piara Singh (supra), this Court while reiterating that appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency and that even where ad-hoc or temporary employment is necessitated on account of the exigencies of administration, the candidate should be drawn from the employment exchange and that if no candidate is available or sponsored with the employment exchange, some method consistent with the requirements of Article 14 of the Constitution should be followed by publishing notice in appropriate manner for calling for applications and all those who apply in response thereto should be considered fairly, proceeded to observe that if an ad-hoc or temporary employee is continued for a fairly long spell, the authorities are duty bound to consider his case for regularization subject to his fulfilling the conditions of eligibility and the requirement of satisfactory service. The propositions laid down in Piara Singh's case were followed by almost all High Courts for directing the concerned State Governments and public authorities to regularize the services of ad- hoc/temporary/daily wage employees only on the ground that they have continued for a particular length of time. In some cases, the schemes framed for regularization of the services of the backdoor entrants were also approved.
68. The above noted judgments and orders encouraged the political set up and bureaucracy to violate the soul of Article 14 and 16 as also the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 with impunity and the spoil system which prevailed in the United Stats of America in sixteenth and seventeenth century got firm foothold in this country. Thousands of persons were Page 14 of 51 C/LPA/436/2006 JUDGMENT employed/engaged throughout the length and breadth of the country by backdoor methods. Those who could pull strings in the power corridors at the higher and lower levels managed to get the cake of public employment by trampling over the rights of other eligible and more meritorious persons registered with the employment exchanges. A huge illegal employment market developed in different parts of the country and rampant corruption afflicted the whole system. This was recognized by the Court in Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi and others [1992 (4) SCC 99] in the following words:
"23. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is an Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and Page 15 of 51 C/LPA/436/2006 JUDGMENT frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts."
69. The menace of illegal and backdoor appointments compelled the Courts to have rethinking and in large number of subsequent judgments this Court declined to entertain the claims of ad-hoc and temporary employees for regularization of services and even reversed the orders passed by the High Courts and Administrative Tribunals - Director, Institute of Management Development, U.P. vs. Pushpa Srivastava [1992 (4) SCC 33], Dr. M.A. Haque and Others vs. Union of India and Others [1993 (2) SCC 213], J & K Public Service Commission vs. Dr. Narinder Mohan [1994 (2) SCC 630], Dr. Arundhati Ajit Pargaonkar vs. State of Maharashtra [1994 Suppl. (3) SCC 380], Union of India vs. Kishan Gopal Vyas [1996 (7) SCC 134], Union of India vs. Moti Lal [1996 (7) SCC 481], Hindustan Shipyard Ltd. vs. Dr. P. Sambasiva Rao [1996 (7) SCC 499], State of H.P. vs. Suresh Kumar Verma [1996 (7) SCC 562], Dr. Surinder Singh Jamwal vs. State of J&K [1996 (9) SCC 619], E. Ramakrishnan vs. State of Kerala [1996 (10) SCC 565], Union of India Page 16 of 51 C/LPA/436/2006 JUDGMENT and Others vs. Bishambar Dutt [1996 (11) SCC 341], Union of India vs. Mahender Singh [1997 (1) SCC 247], P. Ravindran and Others vs. Union Territory of Pondicherry and Others [1997 (1) SCC 350], Ashwani Kumar and Others vs. State of Bihar and Others [1997 (2) SCC 1], Santosh Kumar Verma and Others vs. State of Bihar and Others [1997 (2) SCC 713], State of U.P. and Others vs. Ajay [1997 (4) SCC 88], Patna University vs. Dr. Amita Tiwari [1997 (7) SCC 198] and Madhyamik Shiksha Parishad vs. Anil Kumar Mishra [2005 (5) SCC 122]."
5.3 Mr. Trivedi contended that the Apex Court in para 54 of the Constitution Bench judgement in the case of Umadevi (supra) has clarified that the earlier decisions which run counter to the principles settled by it will stand denuded of their status as precedents. He submitted that in view of the present legal position the judgement of the Division Bench of this Court in Special Civil Application No. 3547 of 1991 and allied matters stands denuded of its status as precedence and now it is not a good law and therefore the same cannot be made applicable.
5.4 Mr. Trivedi further submitted that the judgement passed in Special Civil Application No. 3547 of 1991 and allied matters was applicable to those petitioning employees and the nature of work of other employees was not in dispute. He submitted that in fact a little difference in facts or when there are additional facts, the same may lead to a different conclusion in the presidential value of a decision and therefore the judgement in Special Civil Application No. 3547 of 1991 and allied matters which is on a slightly different footing ought not to have been relied upon by the learned Single Judge. In this connection, Mr. Trivedi has relied upon Page 17 of 51 C/LPA/436/2006 JUDGMENT the following decisions :
5.4 (a) Union of India vs. Chajju Ram (Dead) by Lrs.
And Others [(2003) 5 SCC 568] wherein it is held that it is now well-settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well-settled that a little difference in facts or additional facts may lead to a different conclusion.
5.4 (b)Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Others [(2003) 2 SCC 111] wherein also the same principle is held in para 59.
5.5 Mr. Trivedi further contended that the judgement dated 13/14.07.1993 passed in Special Civil Applications No. 3457 of 1991 and allied matters was challenged before the Hon'ble Apex Court which was though dismissed but the dismissal of SLP by the Apex Court cannot be said to be a binding precedent. He submitted that if the paragraphs no. 54 to 59, 66, 67, 74 to 76 are perused it will reveal that the Divison Bench has issued directions in view of the more or less consensus arrived at between the parties on the point of duties performed by daily wagers and regular employees. In order to substantiate his submission in this regard, Mr. Trivedi has relied upon the following decision:
5.5 (a) Union of India and Others vs. Jaipal Singh [(2004) 1 SCC 121 wherein para 4 reads as under:
"4. On a careful consideration of the matter and the materials on record, including the judgment and Page 18 of 51 C/LPA/436/2006 JUDGMENT orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefore and operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in . If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside."
5.5 (b) Bhakra Beas Management Board vs. Krishan Kumar Vij and Another [(2010) 8 SCC 701] wherein para Page 19 of 51 C/LPA/436/2006 JUDGMENT 19 reads as under:
"19. However, this issue should not detain us any longer in view of well considered judgment of a three- Judge Bench of this Court reported in 2000(6) SCC 359 titled Kunhayammed & Ors Vs. State of Kerala & Anr. wherein this Court categorically held that mere dismissal of a Special Leave Petition at a preliminary stage does not constitute a binding precedent, and accordingly, any order passed by the High Court placing reliance on earlier order can still be challenged subsequently."
5.6 Mr. Trivedi submitted that a nine members Committee headed by Shri Daulatbhai Parmar, the then Minister after considering the representations/demands of the various departments and Unions submitted its report/recommendations to the State Government with regard to the demands of daily wagers working in various departments of the State Government and on the basis of the said recommendations of the Committee, a biparte 2(p) settlement dated 01.10.1988 was arrived at between the State Government and Gujarat Rajya Jahar Bandhkam Mazoor Mandal as well as various other Unions of daily wagers workmen working under different departments of the State Government. He submitted that the settlement was accepted by the respective representatives of the Labour Unions and therefore the said settlement is binding on the original petitioners as well.
5.7 Mr. Trivedi submitted that in terms of the 2(p) settlement, a resolution dated 17.10.1988 came to be passed by the State Government incorporating all the terms and Page 20 of 51 C/LPA/436/2006 JUDGMENT conditions of the the settlement and therefore the 1988 resolution shall be binding to all the daily wagers working in different departments of the State Government including the original petitioners herein. He submitted that the resolution being binding on them, the original petitioners can in no way challenge the same on the ground of arbitrariness and it is not open to the original petitioners to claim any benefit beyond the terms and conditions of the said resolution based on the settlement.
5.8 Mr. Trivedi has relied upon a Full Bench decision of this Court in the case of Gujarat Forest Producers, Gatherers and Forest Workers, UNI vs. State of Gujarat reported in 2004-III LLJ 259 and submitted that the resolution dated 17.10.1988 was considered therein and direction was issued vide para 80 to apply benefit of the said resolution only to casual labourers who are working in maintenance or construction work of any department. He submitted that in fact this part of the full bench decision was considered by the Hon'ble Supreme Court and the direction to apply the benefit of resolution only to casual labourers engaged in maintenance or construction work of Forest department was declared non binding.
5.9 Mr. Trivedi has also relied upon a decision of the Apex Court in the case of State of Gujarat and Others vs. PWD Employees Union and Others etc. reported in 2013(2) GLH 692 (=JT 2013 (11) SC 64 : 2013 JX(SC) 449), wherein the Apex Court in paras 17(iv) and 22 has observed that the full bench decision of this Court in the case of Gujarat Forest Producers, Gatherers (supra) shall be non binding and Page 21 of 51 C/LPA/436/2006 JUDGMENT in fact shall be applicable to all the departments.
6. Mr. D.G. Chauhan, learned advocate appearing for the appellant - Gujarat Water Resources Development Corporation (hereinafter referred to as 'the Corporation') in Letters Patent Appeal No. 4 of 2010 submitted that the Government Resolution dated 17.10.1988 was passed in consultation with all the Unions and therefore is based on the settlement arrived at between the Labour Unions and the Government. He submitted that in fact the appellant - Board fully implemented the Government Resolution dated 17.10.1988 and paid all the benefits under the Resolution on completion of five years' service. He submitted that the settlement being binding on the respondents as they were the employees of the appellant - Corporation, the learned Single Judge ought not to have modified the terms of settlement arrived at between the Union and the State Government without any foundational facts.
6.1 Mr. Chauhan submitted that the 1978 resolution is a policy decision based on the settlement in respect of all daily rated labourers working in different Departments/Boards/ Corporations of the State Government. He submitted that the judgemnet of this Court passed in Special Civil Application No. 3547 of 1991 has no application in the facts and circumstances of the case and in view of the subsequent law laid down by the Apex Court.
7. Mr. P.H. Pathak, learned advocate appearing with Ms. Reena Kamani for the workmen supported the impugned order passed by the learned Single Judge. He submitted that Page 22 of 51 C/LPA/436/2006 JUDGMENT the learned Single Judge while passing the impugned order has considered the binding decision of the Division Bench of this Court passed in Special Civil Application No. 3547 of 1991 and allied matters. He submitted that the Division Bench of this Court had declared the condition of granting minimum time scale after five years as untenable and directed the Board to modify the scheme from five years to three years to grant the time scale of pay and then to operate the scheme referred in para 6.4 of the judgement.
7.1 Mr. Pathak further submitted that the said judgment had attained finality as the Apex Court had upheld the same when it was challenged by way of an SLP and the appellant Board had implemented the same qua the employees in those group of petitions. He submitted that those employees were similarly situated to the original petitioners - workmen and therefore as the lis between the parties became final, the Board has to apply modified scheme in favour of all the daily rated employees. He submitted that it is not open to the Board who was party before this Court to say that the judgement of Division Bench which was upheld by the Apex Court and implemented by them is not a good law. He submitted that the issue pertains to scheme modification, has become final and therefore the Board cannot be allowed to challenge the same and therefore it is squarely barred by the principle of res judicata.
7.2 Mr. Pathak submitted that so far as the decisions in the case of State of Haryana & Ors. vs. Piara Singh & Others [(1992) 4 SCC 118]; Dhirendra Chamoli & Another vs. State of U.P [(1986) 1 SCC 637] and Daily rated Casual Labour P & T Page 23 of 51 C/LPA/436/2006 JUDGMENT vs. Union of India [AIR 1987 SC 2342] are concerned, it has been contended by the appellant Board that these decisions have been overruled by the Apex Court. He submitted that so far as the decision in the case of Umadevi (supra) is concerned, the issue of grant of minimum pay scale to the employees was not before the Apex Court. The case before the Apex Court was that whether the government employment be permitted to be filled up on regular basis without following due procedure of law and that whether back door employees be regularised or not. He submitted that the issue of daily rated employees entitled to minimum pay scale and the number of years was not put for consideration before the Apex Court in Umadevi (supra)'s case.
7.3 Mr. Pathak has relied upon the decisions in the cases of Haryana & Ors. vs. Piara Singh & Others [(1992) 4 SCC 118]; Dhirendra Chamoli & Another vs. State of U.P [(1986) 1 SCC 637] and Daily rated Casual Labour P & T vs. Union of India [AIR 1987 SC 2342] to submit that the Constitutional Bench has not overruled the judgement in the case of Piara Singh (supra) or Daily rated casual Labour P & T (supra) as a whole. He submitted that it was overruled only to the extent of directions given for regularization of the employees who were back door entries.
7.4 Mr. Pathak has relied upon the decision in the case of Umadevi (supra) and submitted that referring to the judgement of Piara Singh, the Constitutional Bench in Umadevi in fact had referred as under in para 26:
"26. ... With respect, why should the State be allowed to depart from the normal rule and indulge Page 24 of 51 C/LPA/436/2006 JUDGMENT in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."
7.5 Mr. Pathak submitted that dealing with the judgement in Daily rated casual labourers (supra), the Bench in paragraph 18 observed as under:
"18. Without keeping the above distinction in mind and without discussion of the law on the question or the effect of the directions on the constitutional scheme of appointment, this Court in Daily Rated Casual Labour Vs. Union of India & Ors. (1988 (1) SCR 598) directed the Government to frame a scheme for absorption of daily rated casual labourers continuously working in the Posts and Telegraphs Department for more than one year. This Court seems to have been swayed by the idea that India is a socialist republic and that implied the existence of certain important obligations which the State had to discharge. While it might be one thing to say that the daily rated workers, doing the identical work, had to be paid the wages that were being paid to those who are regularly Page 25 of 51 C/LPA/436/2006 JUDGMENT appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its Executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the Constitution and the laws made thereunder concerning public employment."
7.6 Mr. Pathak contended that in view of the above it is clear that the law laid down by both the above judgements relied by the Division Bench of this Court were not overruled to the extent of deciding grant of minimum scale of pay to the daily rated employees and therefore the judgement of the Division Bench of this Court in Special Civil Application No. 3547 of 1991 and allied matters is correct law and rightly following by the learned Single Judge. Mr. Pathak submitted that on the contrary so far as the grant of minimum payscale is concerned, the Apex Court in the very judgement of Umadevi (supra) in para 55 upheld the directions issued by the High Court so far as grant of minimum payscale to the daily rated employees from the date of the judgement of the Division Bench of the High court and set aside only the part of the judgement of the High Court whereby it had directed regularization. The relevant portion of para 55 as relied upon by Mr. Pathak is reproduced here as under:
"55. ... We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in Page 26 of 51 C/LPA/436/2006 JUDGMENT government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization...."
7.7 Mr. Pathak contended that therefore the arguments advanced on behalf of the respondents on the ground that the law laid down in earlier judgements referred by the Division Bench are overruled and therefore the same is not sustainable is misconceived, not maintainable and therefore appeal is required to be dismissed.
7.8 Mr. Pathak further contended that the reliance placed by the Board on a recent decision of the Apex Court in the case of P.W.D. Employees (supra) saying that the said judgement has considered the resolution dated 17.10.1988 and held that it applies to the Forest Department and therefore the judgement of Division Bench is not good law may not be accepted by this Court. He contended that the said contention is misconceived and not maintainable because the issue before the Apex Court in the above case was applicability of resolution dated 17.10.1988 to the Forest Department and to the employees engaged in various department of the Government irrespective of their employment in different nature of activities. He submitted that the vires of the resolution was not the issue and therefore the said judgement has no application to the issue in the present appeal.
Page 27 of 51C/LPA/436/2006 JUDGMENT 7.9 Mr. Pathak contended that the appellants have infact tried to commit contempt of Court by not following the directions issued by the Division Bench way back in 1993 till 2006. He submitted that in fact the appellants have tried to create two classes of employees namely those who have worked for less than five years and the other who have worked for more than five years. He submitted that the resolution is ultra vires to the extent that it creates such fragmentation amongst the daily rated employees.
7.10 Mr. Pathak further submitted that since vires has been challenged by way of the writ petitions this Court may not hear these petitions since this Court has no jurisdiction. It is relevant to be pointed out that this argument was advanced at the end of arguments after the matter was heard on merits for two days and when the Court prima facie showed inclination that the appeals deserve to be allowed as the law declared by the Division Bench is not a good law anymore.
8. Mr. Jitendra Patel, learned advocate appearing for some of the petitioners in the writ petition adopted the arguments of Mr. Pathak and submitted that as the petitioners have put in long period of service their same may not be ignored and they are required to be paid the minimum pay scale as granted to regular employees. Mr. Patel has relied upon the following decisions:
8.(a) U.P. State Electricity Board vs. Pooran Chandra Pandey and Others reported in (2007) 11 SCC 92 wherein paras 9 to 16 read as under:Page 28 of 51
C/LPA/436/2006 JUDGMENT "9. The writ petitioners who were daily wagers in the service of the Society were appointed in the Society before 4.5.1990 and their services were taken over by the Electricity Board in the same manner and position. In our opinion, this would mean that their services in the Society cannot be ignored for considering them for the benefit of the order dated 28.11.1996.
10. In our opinion, the proceeding dated 3.4.1997 makes it clear that the employees of the Society should be deemed to be the employees of the Electricity Board with continuity of their service in the Society, and it is not that they would be treated as fresh appointees by the Electricity Board when their services were taken over by the Electricity Board. In this view of the matter, the writ petitioners (respondents herein) are entitled to the benefit of the order of the Electricity Board dated 28.11.1996. This view also finds support from the affidavit of Shri Ramapati Dubey, Chief Engineer, R.P.M.O., U.P. State Electricity Board in which it is mentioned that In this way, the Board Order dated 28.11.1996, a copy of which has been filed as Annesxure No. 5 to the writ petition, has been complied with and the employees of the Cooperative Electric Supply Society have been given the same status and benefit of regularization in the similar manner as it was given to the employees of the Board.
11. Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & Ors vs. Uma Devi (3) & Ors (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devis case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution.
12. As observed by this Court in State of Page 29 of 51 C/LPA/436/2006 JUDGMENT Orissa vs. Sudhansu Sekhar Misra (AIR 1968 SC 647 vide para 13):-
"13. ... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:
'Before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'"
13. In Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213 (vide para
18) this Court observed:-
"18. ... The ratio of any decision must be understood in the background of the facts of that case. It has been said long time Page 30 of 51 C/LPA/436/2006 JUDGMENT ago that a case is only an authority for what it actually decides, and not what logically follows from it. "
14. In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide para 59), this Court observed:-
"59. ... It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
15. As held in Bharat Petroleum Corporation Ltd. & another vs. N.R.Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:-
"9. Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd.
vs. Horton (1951 AC 737 at p.Page 31 of 51
C/LPA/436/2006 JUDGMENT
761), Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, Lord Atkin`s speech . is not to be treated as if it was a statute definition; it will require qualification in new circumstances. Megarry, J. in (1971)1 WLR 1062 observed:
'One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament.' And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one Page 32 of 51 C/LPA/436/2006 JUDGMENT case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.
16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devis case (supra) is being applied by Courts mechanically as if it were a Euclids formula without seeing the facts of a particular case.
As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devis case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devis case (supra) inapplicable to the facts of that case. "
8.(b) Jyotiben Vinodbhai Bhatt & Others vs. State of Gujarat and Others reported in 2012(3) GLR 2369, more particularly paras 10 to 12 which read as under:
10. For the purpose of this group of petitions, it wouldbe beneficial to reproduce the relevant part of the order of appointment, which reads as under;
"The under-signed is pleased to make the following order of the selected candidate for the post of Assistant. He is hereby temporarily appointed as Assistant in Fixed Pay of Rs.3050/- p.m. in Jamnagar District in the interest of administration:-
......Page 33 of 51
C/LPA/436/2006 JUDGMENT He shall take note that his appointment is purely temporary adhoc basis by way of stop gap arrangement and his services are liable to be terminated at any point of time without any notice and without assigning any reasons. In case, his appointment is found to be irregular or to have been mistakenly made, it shall be cancelled and no grievance in that behalf would be heard ......"
10.1 A plain reading of the order of appointment goes to show that the petitioners were appointed on a Fixed Pay of Rs.3050/- per month on account of the prevailing administrative exigency. It was stated in the order of appointment, in no uncertain terms, that their appointment is purely on temporary ad hoc basis and as a stop-gap arrangement and also that their services are liable to be terminated, at any point of time, without issuing any Notice and without assigning any reasons.
10.2 In The Pocket Oxford Dictionary and Thesaurus, 2003 Edition, the word "ad hoc"
has been defined as "for one particular purpose".
The Webster's New World Dictionary, Second College Edition, defines "ad hoc" as "for this specific purpose", "for a special case only, without general application". If we go by the Dictionary meaning of the term "ad hoc", as appearing in the order of appointment, it can be said that the petitioners were appointed for a specific purpose. The order also speaks that appointment is made "as a stop- gap arrangement" meaning thereby, that until the regularly selected candidates are available, the petitioners shall continue to work on the post in question. Such appointment was made in order to meet with the administrative exigency of the District Court. The order of appointment is self-explanatory. No where the order states that the appointment of the petitioners is on regular or permanent basis. In fact, it categorically states that the appointment is on a "purely temporary" basis. Therefore, there is not an iota of doubt that the petitioners herein were appointed as Assistants (Junior Clerks) in the District Court, Jamnagar on purely temporary basis Page 34 of 51 C/LPA/436/2006 JUDGMENT for the purpose of meeting with the administrative exigency of non-availability of regularly selected candidates. It, therefore, consequentially follows that no soon as the regularly selected candidates are appointed, the petitioners shall have to make way for them.
10.3 It may be that the petitioners are appointed, after their names were forwarded by the District Employment Exchange and after they had cleared the examination conducted by the District Court, Jamnagar. Therefore, at the most, it could be said that the appointment of the petitioners was not illegal. However, since the petitioners were appointed without following due process of law, viz. not in pursuance of any public advertisement, their appointment is, undoubtedly, "irregular". Had the petitioners been appointed through a regular selection process, then the order of appointment would not have read such but, since their appointment had risen out of administrative exigency and no due selection process was followed, their service was categorized to be "purely temporary" and on "ad hoc basis". Learned counsel for the petitioners was not in a position to show that the petitioners were appointed on the post after following due selection process.
11. The High Court published the Advertisement dated 15.02.2012 in which age relaxation is already granted. If further relaxation as prayed for is granted for the purpose of accommodating some of the petitioners, who had become over-aged, then it would amount to travelling beyond the scope of Advertisement. This Court does not have the powers to grant age relaxation in matters pertaining to recruitment. The appropriate authority to decide the issue of age relaxation is the appointing authority itself and not the Court. Considering the principle laid down by the Apex Court in Arulmozhi Iniarasu's case (supra) wherein the Apex Court has categorically held that writ of mandamus can be issued by High Court only when there exists a legal right vested in writ petitioner and corresponding legal obligation on State, I do not find this to be a case wherein writ jurisdiction could be exercised in favour of the Page 35 of 51 C/LPA/436/2006 JUDGMENT petitioners by further granting age relaxation.
12. The case of the petitioners for regularization also could not be considered for the reason that none of the petitioners satisfy the criteria, as prescribed by the Apex Court in Umadevi's case (supra). In the opinion of this Court, the appointment of the petitioners can be considered as "irregular" and not "illegal" and therefore, the petitioners could be given the benefit of regularization, if they had continued to work for ten years or more, without the intervention of the orders of Courts or Tribunals, as has been held in para-53 of Umadevi's case (supra). There is no dispute about the fact that the petitioners have been working on regular vacant posts since the date of their appointment. However, the petitioners have not completed ten years of service and therefore, they could not be granted the benefit of the principle rendered in Umadevi's case (supra). Therefore, on this count also, the petitioners could not be granted the benefit of regularization."
8.(c ) State of Gujarat & Another vs. Mahendrakumar Bhagvandas & Another reported in 2011 (2) GLR 1290 more particularly para 5 which is reproduced hereunder:
5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanentservice are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits wasjustified and in order. However, no ground or rational basis could be made out for grant of Page 36 of 51 C/LPA/436/2006 JUDGMENT most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for allpurposes as permanent employees in terms of G. R. dated 17.10.1988,any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager"
(rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of th e Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 bywhich the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 year would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of le arned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and th at they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder."
9. At the outset it is required to be mentioned that since these appeals were pending before the Division Bench of this Court, the writ petitions which were filed on the same subject matter were directed to be heard along with these appeals by learned Single Judge of this Court with the consent of both the sides.
Page 37 of 51C/LPA/436/2006 JUDGMENT 9.1 Both the appeals were filed challenging the judgements in writ petitions which were filed before the learned Single Judge claiming minimum pay scale from the initial date of appointment and also the benefits under Government Resolution dated 17.10.1988 and thereby claimed regularisation as well. The learned Single Judge in both the writ petitions which are challenged by way of appeals have relied upon the judgement and order dated 13/14.07.1993 passed in Special Civil Application No. 3447 of 1992 and allied matters and directed the appellants to pay the minimum pay scale on completion of three years of service. In one of the writ petitions, the workmen also filed Recovery Application before the Labour Court, Bhuj - Kutch under the provisions of section 33(c ) (1) of the Industrial Disputes Act.
9.2 We think it fit to revert to the order dated 13/14.07.1993 passed in Special Civil Application No. 3447 of 1992 and allied matters by a Division Bench of this Court. The Bench while allowing the set of writ petitions and while directing the respondents therein to pay the petitioning employees therein who had put in more than three years' service, the minimum of pay scale for the posts on which they were working had relied upon the decisions of the Apex Court in the case of Dhirendra Chamoli & Another vs. State of U.P [(1986) 1 SCC 637] and Daily rated Casual Labour P & T vs. Union of India [AIR 1987 SC 2342].
9.3 It is noteworthy that these decisions have been considered by the Apex Court in the cases of Umadevi (supra) which is a landmark decision rendered by a Constitutional Bench of the Hon'ble Supreme Court. We have Page 38 of 51 C/LPA/436/2006 JUDGMENT quoted certain observations made by the Apex Court in the case of Umadevi (supra) while recording the submissions of Mr. Pathak so far as these decisions are concerned and therefore do not wish to requote them. The other relevant portions of this decision are reproduced hereunder:
"4. .....The Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. .....It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very constitutional scheme of public employment. ......wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment....."
"6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily.........It is recognized that no Government order, notification Page 39 of 51 C/LPA/436/2006 JUDGMENT or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme. ......Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed."
"12. .....This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. .....It is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme".
"33. .....By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad-hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be Page 40 of 51 C/LPA/436/2006 JUDGMENT taken note of for regularization."
"43. ....Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution. .....Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad-hoc employees who by the very nature of their appointment, do not acquire any right. ....The courts must be careful in ensuring Page 41 of 51 C/LPA/436/2006 JUDGMENT that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
"46. ......Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment."
"48. ......Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. ......There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution...."
"54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."Page 42 of 51
C/LPA/436/2006 JUDGMENT
[Emphasis Supplied]
9.4 The reason why the aforesaid paragraphs are quoted is that it should be borne in mind that a daily wage employee cannot claim parity regarding minimum pay scale at par with a regular employee unless his services are regularized. Mr. Pathak contended that the decisions though overruled by the Apex Court were in the context of regularization and not granting of minimum pay scale. When the Apex Court has not approved of regularization of daily rated employees, there cannot be any room for grant of minimum pay scale. The grant of minimum pay scale is only a secondary step once the services are regularized.
10. In so far as the payment of minimum pay scale is concerned admittedly the original petitioners are daily wagers and are not working against any sanctioned post. The concept of minimum wages and minimum pay scale is different. When an employee is engaged on daily wages he is paid minimum daily wages. As per notifications of the Central Government or the State Government, minimum wages whichever is applicable as Minimum Pay Scale is attached to the post and is applicable to the regular employees. The educational qualifications, methods of recruitment as well as responsibilities and liabilities of regular employees are different from daily wage employees. The regular employees are also liable to be transferred while daily wage employees cannot be transferred.
10.1 The original petitioners herein are semi skilled and Page 43 of 51 C/LPA/436/2006 JUDGMENT unskilled labourers designated as helpers, linemen, watchmen, operators etc and they are paid their wages as per the minimum wages fixed by the State Government from time to time. These petitioners do not possess requisite qualifications, experience, responsibilities etc as the regularly appointed employees and therefore they can in no way be equated with the regular permanent employees.
11. The Apex Court in a catena of decisions has held that in the absence of proper material High Court cannot grant parity in pay to daily wage workers or casual workers with regularly appointed workers merely on presumption of equality of nomenclature or work. Reference may be given of the decision rendered by the Apex Court in Surjit Singh (supra), Tilak Raj (supra), Yogesh Chandra Dubey (supra) in this regard. In a catena of decisions the Apex Court has directed that daily wagers be entitled to only minimum pay as notified by the State Government for daily wagers and not the minimum pay scale. There has been a significant shift in law, as the doctrine of equal pay for equal work cannot be applied mechanically merely because the daily wagers are discharging similar duties as their counter part regular employees are discharging. In our opinion, the principle of equal pay for equal work has a limited application, as is evident from the recent trend of decisions of the Supreme Court
12. From the conspectus of views taken in the aforementioned decided cases, the position is clear that to substantiate a claim of higher scale of pay/salary on the basis of the principle 'equal pay for equal work' the petitioners will Page 44 of 51 C/LPA/436/2006 JUDGMENT have to establish that they are equally placed in all respects with the person or persons whose scale of pay/salary they claim. They must allege and prove that the mode of recruitment, eligibility qualifications prescribed, the nature of duties, responsibilities discharged and the service rules if any applicable to the two posts are similar. They cannot succeed in the case merely by showing that they have been discharging the same duties which are being discharged by persons holding the other class of posts.
13. The State Government after considering various aspects and grievances of daily rated unskilled, semi skilled and skilled labourers working with various departments of the State came up with resolution dated 17.10.1988 which was based upon a 2(p) settlement arrived at between the parties. The parties to the settlement which included various Unions of daily wagers had accepted all the terms and conditions of the settlement. The original petitioners are therefore bound by the resolution dated 17.10.1988.
13.1 In the case of P.W.D Employees Union (supra), the Apex Court has held as under:
"20. The daily wage workers who were engaged in building maintenance and repairing work in different departments were already entitled for their work related facilities. Therefore, what we find is that the Committee has not limited the recommendation to the daily wage workers working in building maintenance and repairing work in different departments of the State. The State Government vide its Resolution dated 17th October, 1988 has not limited it to the daily wage workers working in building maintenance and Page 45 of 51 C/LPA/436/2006 JUDGMENT repairing work. What we find is that the Resolution dated 17th October, 1988 is applicable to all the daily wage workers working in different departments of the State including Forest and Environment Department performing any nature of job including the work other than building maintenance and repairing work. The decision of the Full Bench of Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra and the subsequent Resolution dated 22nd December, 1999 issued from Forest and Environment Department of the State, in our opinion are not sustainable, as the intent of Resolution dated 17th October, 1988 was not properly explained therein and, therefore, the aforesaid decision of Full Bench and Resolution dated 22nd December, 1999 cannot be made applicable to the daily wage workers of the Forest and Environment Department of the State of Gujarat.
21. In view of the aforesaid observation, we find that the full Bench of the Gujarat High Court in Gujarat Forest Producers, Gatherers and Forest Workers Union(supra) proceeded on erroneous premises to hold that the Resolution dated 17th October, 1988 is applicable only to the daily wage workers of Forest Department engaged in building maintenance and repairing work. The conclusions in the said judgment are not sustainable otherwise also. We have already noticed that the Resolution of the State Government dated 17th October, 1988 is not limited to any particular department, it applies to all the departments including Road and Building, Forest and Environment Department, Water Resources Department, etc. We have also noticed that the Committee headed by the Minister of Road and Building Department looked into the wages of daily wage workers and work related facilities provided to the daily wage workers engaged in building maintenance and repairing work in different departments, only for the purpose of its recommendations. The Committee has not limited the recommendations amongst the daily wage workers engaged in building maintenance and repairing work in different departments by its Page 46 of 51 C/LPA/436/2006 JUDGMENT aforesaid Resolution. It is applicable to all daily wage workers including semi- skilled workers performing any nature of job, working in different departments of the State including the daily wage workers of the Forest Department performing work other than building maintenance and repairing work."
14. For the foregoing reasons, we feel that the learned Single Judges have committed an error in passing the impugned judgements and orders and therefore the same are required to be quashed and set aside.
15. So far as the writ petitions are concerned, in view of the subsequent law laid down by the Apex Court in the case of Umadevi (supra), the petitioners who are back door entrants cannot be regularized and they cannot be given the perks and benefits equivalent to regular permanent employees. If these back door entrants are equated with regular permanent employees by this Court, it shall be overlooking and bypassing the law laid down by the Constitutional Bench of the Apex Court in the case of Umadevi (supra). When the law prohibits back door entry into service, indirectly regularization of such back door entrants is also barred. Granting of regular pay scale to such daily rated employees will amount to regularizing their services. Moreover, these petitioners are also bound by the resolution dated 17.10.1988. Therefore, this Court does not see any reason for allowing the writ petition where the prayer prayed for is against the settled position of law.
15.1 The contention raised by learned advocate for the Page 47 of 51 C/LPA/436/2006 JUDGMENT workmen is that the resolution has created more than one class of workmen and therefore the same is ultra vires. It is required to be noted that persons who have violated the settled rules of employment and gained entry into service through back door or unconventional methods cannot claim violation of Articles 14 & 16 of the Constitution of India. The petitioners in these petitions are claiming the benefit of Articles 14 and 16 of the Constitution. Before a litigant seeks the benefit of his fundamental rights, naturally he has to come up in the court with a clear case for grant of those rights in his favour. In this case, the petitioners failed to show and establish that they were engaged in the services as daily wagers on a permanent sanctioned post. Unless in the staffing pattern of the concerned departments, a permanent sanctioned post is there, how the petitioners can be made permanent in the service or their services can be regularized.
15.2 At the cost of repetition, we feel that it is imperative to mention at this juncture that we are bound by the following observations made by the Constitutional Bench of the Apex Court in the case of Umadevi (supra)"
"43. ....Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution. .....Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual Page 48 of 51 C/LPA/436/2006 JUDGMENT appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad-hoc employees who by the very nature of their appointment, do not acquire any right. ....The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
"46. ......Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the Page 49 of 51 C/LPA/436/2006 JUDGMENT service though they had not been selected in terms of the rules for appointment."
"48. ......Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. ......There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and
16 of the Constitution...."
"54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
15.3 Moreover, the Government Resolution dated 17.10.1988 has also been upheld by the Apex Court vide decision rendered in the case of P.W.D Employees Union (supra) and therefore regularizing the Apex Court shall not only be contrary to the government resolution dated 17.10.1988 which has been drawn pursuant to a 2(p) settlement between the parties but also the settled legal position. The ratio of the aforementioned judgment is that the Courts cannot encourage appointments which are made outside the constitutional Page 50 of 51 C/LPA/436/2006 JUDGMENT scheme and it is improper for the Courts to give any direction for regularization of the person who has not been appointed by following the procedure laid down under Articles 14, 16 of the Constitution. It would be improper for this Court to give direction for regularization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment.
16. In the premises aforesaid, the appeals are hereby allowed. The impugned judgement and order dated 03.12.2004 passed by the learned Single Judge in Special Civil Application No. 948 of 1993 as well as judgment and order dated 11.09.2002 passed by the learned Single Judge of this Court in Special Civil Application No. 1644 of 1997 are hereby quashed and set aside. The writ petitions being Special Civil Applications Nos. 947 of 1993, 6394 of 1994, 3064 of 2004, 7810 of 1993, 3502 of 1992, 7120 of 1991, 7121 of 1991, 1484 of 1999 and 9838 of 2004 preferred by the petitioners - workmen are hereby dismissed.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 51 of 51