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Showing contexts for: circular resolution in State Of Gujarat vs Gujarat Mazdoor Sabha on 29 June, 2018Matching Fragments
[8.6] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the appellants that on one hand the learned Single Judge has specifically observed and held that the impugned G.R. of 2014 is neither violative of Section 9A of the ID Act nor same is illegal being a policy decision and still on the other hand the learned Single Judge has granted the benefits considering the G.R. of 1973 which can be said to be contradictory in terms.
[8.7] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the appellants that while issuing the impugned directions in respect of daily wagers, the learned Single Judge has not at all considered the subsequent G.R. dated 17.10.1988 and/or the effect of the G.R. dated 17.10.1988 by which all earlier circular / resolutions were superseded and the Government came out with a new policy decision in form of the G.R. dated 17.10.1988 by which certain benefits were conferred on such employees on completion of their 5 years, 10 years and/or 15 years as daily wagers working in the work charged establishment.
Thus, considering the aforesaid decisions of the Hon'ble Supreme Court as well as this Court and in view of the subsequent G.R. dated 17.10.1988 which shall be applicable to all the daily wagers working in different departments of the State, all the daily wagers shall be governed by the G.R. dated 17.10.1988 and any violation and/or resolution/circular prior to 17.10.1988 shall not be applicable including the G.R. dated 04.07.1973.
[18.12] Now, so far as the impugned CAV common judgment passed by the learned Single Judge and the directions issued by the learned Single Judge with respect to the daily wagers more particularly the directions issued in para 148(II) by which the appellants herein - original respondents - State Government is directed to absorb all daily wagers - petitioners on the work charged establishment from the date they were otherwise eligible to be absorbed is concerned, the same cannot be sustained for the reasons stated herein above. At the outset it is required to be noted that as such there is no much discussion by the learned Single Judge so far as the daily wagers are concerned and/or their status of the daily wagers are concerned. There is no discussion at all with respect to the position after the G.R. dated 17.10.1988. The only reason which can be culled out from the impugned judgment and order is that as they are working since many years and in view of the earlier G.R. of 1973, all those daily wagers are required to be absorbed in the work charged establishment. At this stage it is required to be noted that as such the learned Single Judge seems to have considered the G.R. dated 16.08.1973 which has been subsequently revoked in the year 2014 which as such is with respect to the conversion of work charged establishment to temporary establishment and as such the same is not with respect to absorbing the daily wagers to work charged establishment. Even otherwise merely because an employee has worked as a daily wager for 5 years or more, he shall not be automatically entitled to be absorbed in the work charged establishment. The order to absorb daily wagers to work establishment merely on completion of 5 years automatically shall be contrary to various law laid down by the Hon'ble Supreme Court in catena of decisions referred to hereinabove.
[18.14] In view of the above, the impugned common CAV judgment and order passed by the learned Single Judge in terms of para 148(II) by which State Government is directed to absorb the daily wagers on the work charged establishment from the date from which they were otherwise eligible to be absorbed cannot be sustained and the same deserves to be quashed and set aside. Even the example that if the daily wagers would have been absorbed in the year 1995, then the benefits would accrue 9 years thereafter i.e. 2004 is concerned, with greatest respect, it is not possible to cull out which benefits would be available to such daily wagers who are absorbed on work charged establishment 9 years thereafter. Even as a work charged establishment they shall not be entitled to the higher pay scale / higher grade on completion of 9 years. There is no clarity whatsoever so far as the same is concerned. In any view of the matter the directions contained in para 148(II) referred to hereinabove in case of daily wagers - original petitioners cannot be sustained and the same deserves to be quashed and set aside by further observing that all those daily wagers shall be entitled to the benefits flowing from the G.R. dated 17.10.1988 and any clarificatory circulars only and shall not be entitled to any benefits under any resolution / circular which was in force prior to 17.10.1988. All these appeals are required to be allowed to the aforesaid extent.
[19.6] Now, so far as the submission on behalf of the State that in view of the subsequent circular dated 03.02.1987 and in view of the prohibition on the new recruitment on work charged establishment the appointments of work charged employees can be said to be illegal is concerned, at the outset it is required to be noted that merely because all those persons are continued as work charged even after the ban / bar, their appointment cannot be said to be per se illegal. It is the State Government who continued them as work charged despite the resolution / circular declaring the prohibition on new recruitment on work charged establishment. The State cannot be permitted to take the benefit of its own wrong. All those seem to have been continued as work charged looking to the need of the work and the requirement. Therefore, the submission on behalf of the State that in view of the circular dated 03.02.1987 declaring the prohibition on new recruitment on work charged establishment, the continuation of the concerned work charged employees is illegal, cannot be accepted.