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Judgment
Sharad D. Dave, J.—Since the common question of entitlement of regularization in service of Kalol Municipality arises in these petitions, the same have been heard together and disposed of by this common judgment.
The petitioners have inter-alia contended that they have been continuously working on their respective post since last 11 to 31 years with the respondent No. 1. Respondent No. 1 is Kalol Municipality. Respondent No. 2 is the District Panchayat, Panchmahals and respondent No. 3 is the State of Gujarat. The case of the petitioners is that they are entitled to be regularized in service in the respective posts and that they are entitled to equal pay for equal work. The nature of the work attached to their posts is of permanent nature. According to the contention of the petitioners, they are working on permanent posts of Octroi Clerk, Naka Watchman, Octroi Watchman, Ravania, Valveman, Pump Driver, Gardener, Supervisor, Watersupply Watchman, Fireman, Fire Fighter Driver and Fireman, in the office of Kalol Municipality. The duties and responsibilities of the petitioners are also of permanent nature and it is exactly similar to the duties and responsibilities performed by regular employees. the petitioners have also contended that they are deprived of their valuable right for equal pay for equal work as they are working on permanent posts and doing the same work as that of regular employees since more than 11 to 31 years. The petitioners have, therefore, contended that the respondent Municipality has indulged in unfair labour practice of not giving equal pay for equal work and of not regularizing on the respective posts though they are qualified for being appointed on the permanent posts. The petitioners have, therefore, invoked the extraordinary, equitable, plenary writ jurisdiction under Art. 226 of the Constitution of India.
The respondents have challenged the claim of the petitioners made in the petitions. The respondent Municipality has also filed affidavit-in-reply inter-alia denying the allegations of unfair labour practice, exploitation or denial of equal pay for equal work. It is the case of the respondent Municipality that the petitioners are not entitled to be regularized. The right to get equal pay for equal work is also challenged contending that the petitioners are appointed dehors the rules and requirements of public institutions. Regularization of the petitioners as claimed is not in the interest of public employment.
4.1. The respondent Municipality has stated that many persons were given work on ad-hoc basis by the authorities of the then Kalol Gram and Nagar Panchayat without adopting any procedure as required and expected to be followed by the public institutions. However, it is also stated that after coming into existence of different Municipal Boroughs, the matters have been taken up by the concerned District Panchayat for regularizing the services of the employees as per the instructions and policy of the State. It is also submitted that names of all employees who are petitioners in this batch of petitions and other employees are sent to the District Panchayat, Panchmahal District for consideration in this behalf. the claim made by the petitioners in the petitions for being appointed on regular basis in the regular scale are seriously controverted in the affidavit in reply filed by the Chief Officer, Kalol Municipality.
Though the petitioners are working since long, they are still temporary employees of the respondent Municipalities. Particulars of the petitioners employees are as under;-
--------------------------------------------------------- Sr. Name of the Date of Post SCA No. No. official Joining held --------------------------------------------------------- 1. Shivabhai Dalabhai 08/7/66 Ravania 716/98 Baria. 2. Jayantilal Magan- 16/4/81 Naka -do- lal Varia Watchman 3. Sureshkumar 18/4/81 -do- -do- Maganbhai Patel 4. Murtuzabeg 01/5/81 Octroi -do- Mehboodbeg Mirza Watchman 5. Dilavarbeg 01/9/82 -do- -do- Sikandarbeg Mirza 6. Narendrasinh 27/7/82 Naka -do- Jaswantsinh Watchman Solanki 7. Jagdishchandra 18/1/86 Octroi -do- Bhimsinh Gohil Clerk 8. Suban Majitbhai 01/1/81 Valveman 717/98 Ismailbhai 9. Patel Shanker- 01/1/81 Pump -do- bhai Dhulabhai Driver 10 Rajnikant Shaner- 16/4/81 Octroi -do- lal Parekh Clerk 11. Dimplebhai Rasik 16/4/81 -do- -do- -lal Pandya 12. Gordhanbhai 14/12/81 Gardener -do- Chandubhai Parmar 13. Prakash Ramanlal 18/2/83 Octroi -do- Parekh Clerk 14. Manoj Kanubhai 3/9/19 Supervisor -do- Patel 15. Faruk Majit 7/9/85 Pump Driver -do- Desariya 16. Ghodawala Abdul 21/7/85 -do- -do- Rajak Ibrahim Rashid 17. Maganbhai Raman 1/4/86 Valveman -do- -bhai Patel 18. Ravjibhai Dwarka 1/5/86 Water Supply -do- -das Patel Watchman 19. Kamlesh Ramanlal 1/7/86 -do- -do- Parekh 20. Rafiq Mehmood 19/10/87 -do- -do- Sheikh 21. Parmar Vikram- 9/8/89 -do- -do- sinh Chhatrasinh 22. Jayesh Ramchandra 15/11/91 Fireman -do- Pandya 23. Vanrajsinh 6/12/1991 -do- -do- Pratapsinh Chavda. 24. Ranangar 15/11/91 Fire Fighter -do- Gersambhai Driver Christian. 25. Udesinh Somabhai 15/11/91 Driver -do- Patel 26. Rajendrakumar 6/12/91 Fireman -do- Mohanlal Kaka 27. Dinesh Bhikha- 27/3/93 Pump Driver -do- bhai Harijan. 28. Kirvatsinh 1/1/78 -do- 1401/98 Ratansinh Solanki 29. Chandubhai 1/5/80 -do- -do- Bodabhai Bariya 30. Ganpatbhai 14/12/86 Ele.Helper -do- Shanabhai Patel --------------------------------------------------------
From the aforesaid facts, it is clear that the petitioners have been working on the same post in the respondent authority since more than 11 to 31 years without getting equal pay for equal work and without being regularized. Therefore, the petitioners have contended that they are entitled for equal pay for equal work and regularization. The petitioners have also contended that the respondent employer is guilty of unfair labour practice and exploitation of labour by denying equal pay for equal work and equal facilities, amenities, perk and treatment though they are doing similar type of work on their respective posts.
The contentions raised on behalf of the petitioners are vehemently challenged by the respondents. The learned advocates appearing for both the sides have also placed reliance on case law in support of their respective contentions.
Mr. Bipin Mehta, learned counsel for the petitioners have placed reliance on the decision of this Court (Coram : J.N. Bhatt, J.) in the case of Bhalsinh J. Solanki v. Kalol Municipal Borough, reported in 1997 (3) G.C.D. wherein, some of the similarly situated employees of the respondent had prayed relief for regularisation. In the said decision, this Court (Coram : J.N. Bhatt, J) allowed the petition and issued certain directions against the respondents for regularisation of the service of petitioners of the said petitions. Learned counsel for the petitioners has mainly argued that the petitioners being similarly situated employees working under the same respondents, approached the respondents and requested to give same benefits as per the aforesaid decision, but the respondents asked the petitioners to obtain orders from the Court and hence the petitioners have to file these petitions. As the petitioners are similarly situated employees, they are entitled to the same benefits.
7.1. Mr. Bipin Mehta, learned counsel for the petitioners have placed reliance in the case of State of West Bengal and Others Vs. Pantha Chatterjee and Others, Head Notes of the said decision reads as follows;
"A" Service Law - Parity in employment Entitlement of casual or voluntary personnel to Part-time Border Wing Home Guard (for short BWHG) recruited for patrolling the border and checking infiltration Initially as volunteers for three months but retained for 14 years - They performing the same duties under the same situation and circumstances as permanent BWHG Retention of part-time BWHG for such a long period, held, obliterated the distinction between them and permanent BWHG - Hence, such BWHG, held, entitled to parity in privileges and monetary benefits with permanent BWHG, albeit not with BSF personnel - Armed Forces - Border Wing Home Guards - W.B. Home Guards Act, 1962 (11 of 1962), S. 3.
Mr. Bipin Mehta, learned counsel for the petitioners has also placed reliance in the case of Chief Conservator of Forests and another, Vs. Jagannath Maruti Kondhare, etc. etc., Head Note-D of the said decision reads as follows;
"D. Labour Law - Casual labour - Casual workmen employed in schemes with permanent basis undertaken by the Forest Department of the State Government, working for 100 to 300 days in each year and being continued as casuals for 5 to 6 years - Relief - In such circumstances, order of Industrial Court to make such workmen permanent with all consequential benefits, upheld Department''s plea of financial difficulties rejected - Relief."
On the other hand, Mr. N.K. Majmudar, learned counsel for the respondent No. 1 has placed reliance on the decision of Larger Bench of this Court in the case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, and argued that the Court should be slow in ordering for regularisation.
8.1 Mr. Majmudar, learned counsel for the respondent No. 1 has also placed reliance in the case of Dinesh Shivubha Parmar Vs. State of Gujarat and Others, Para 9 and 10 of the said decision read as under;
"9. The learned Counsel for the petitioner submitted that the petitioner has worked for sufficiently long time and he can be said to be "an experienced hand". This cannot be denied. However, in view of the decision of the Supreme Court, I cannot issue a writ of mandamus directing the respondent authorities to consider the case of the petitioner straightway. If the petitioner is otherwise fit and his case is required to be considered in accordance with law, the authorities will take into account the fact that the petitioner has worked for a long time and he is an ''experienced person'' and taking into account that fact the authorities shall decide his case.
8.2 Mr. Majmudar, learned counsel for the respondent No. 1 has also relied on the decision in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., wherein, in para 21 it has been observed as under;-
"21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the condition of service can be exercise either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observation of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matter is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employee consistent with the requirement of Articles 14 and 16."
8.3 Mr. Majmudar has also relied on the decision in the case of Dr. (Mrs.) Chanchal Goyal Vs. State of Rajasthan, wherein the Hon''ble Court has held that the ad hoc appointment cannot be regularised unless the initial recruitment is through a prescribed agency. The Apex Court has also observed that even if there is a selection even for the ad hoc selection, the same will not be considered unless regular procedure is followed. 8.4 Mr. Majmudar has also placed reliance on the decision in the case of Mahesh Sharma and Ors. v. State and Ors., reported in 2002 (8) SLR 730. Head note of the said decision reads as under;-
J. & K. Classification, Control and Appeal Rules, 1956, Rule 14 - Regularisation of Services - Daily rated workers - Engagement of petitioners dehors the rules Posts required to be filed by duly selected candidates Petitioners cannot seek regularisation against those posts.
In para 4 of the said decision, the Court has observed as under;-
"It is also not made out from the pleading that the petitioners have been engaged against clear vacancies. Assuming that the petitioners are engaged against the clear vacancies that can be only on ad hoc arrangement. Rule 14 of the J&K Classification, Control and Appeal Rules, 1956 provides of such ad hoc appointments continuation for a period of nine months only. The posts are required to be filled up by the candidates duly selected by the Selection Committee. On this score also, the petitioners cannot seek regularisation against those posts though there is no evidence on the record that the petitioners have been engaged against the posts. The petition fails on both the counts and is dismissed."
8.5 Mr. Majmudar has also placed reliance on the decision in the case of Karan Sharma v. Rajasthan Agricultural University, reported in 2002 (8) SLR 82.
Mr. Munshaw, learned counsel for the respondent No. 2 and Ms. Rita Chandarana, learned AGP for State have supported the arguments advanced by Mr. Majmudar, learned counsel for the respondent No. 1.
The main question which arises in this petition is as to whether the petitioners are entitled to be regularized in services on their respective posts who are working continuously for more than 11 to 31 years.
It is really very unfortunate that though the petitioners have continued regularly on the same post, they have not been paid minimum pay in the pay-scale of regularly employed persons. The appointments of course as temporary employees came to be made by the then Kalol Nagar Panchayat.
It is pertinent to note that in Special Civil Application No. 717 of 1998, the petitioners have placed on record copy of the Resolution No. 77 passed by the General Body in its Meeting dtd.30/10/1976 for the appointment of Peon and Octroi Clerk. In the said petition the petitioners have also produced the copy of the advertisement published by the respondent Nagar Panchayat in ''Lok Satta" daily dtd.16/10/1991 for the appointment of Fire Fighter. The petitioners have also placed on record copy of the order dtd.2/6-12/1991 appointing Mr. Chavda Vanrajsinh Pratapsinh - petitioner No. 16 of the said petition as Fireman by the respondent Nagar Panchayat.
12.1 It is also pertinent to note that in Special Civil Application No. 1401 of 1998, the petitioners have placed on record copy of the Resolution No. 13 passed by the Kalol Nagar Panchayat in its General Meeting held on 29/5/1979 resolving to appoint one Mr. B.J. Solanki (who is not before this court) as ad-hoc employee instead of daily wager and further resolving to appoint Mr. Kirvatsing Ratansing - petitioner No. 1 of the said petition as ad-hoc employee instead of daily wager.
The appointment of the petitioners are not for fixed period. When the petitioners came to be appointed as employees during the period from 1966 to 1993, Kalol Nagar Panchayat was appointing authority and the Nagar Panchayat had appointed the petitioners and many other employees who are also continued in service. It is also clear that the Government had also passed necessary orders stating that the appointment made during the period from 10/7/1978 to 1/6/1984 by the Panchayat are considered as legal appointments of the employees. The petitioners came to be appointed during the aforesaid period by appropriate contempt appointing authority erstwhile Kalol Nagar Panchayat. It is also not disputed that most of the petitioners have requisite qualifications and eligibility for being appointed on regular post. Despite these facts, the appointing authority has neither even paid minimum pay nor has even cared to regularize them.
After having examined the aforesaid facts and circumstances, and the relevant proposition of law, it is pertinent to note that the Larger Bench of this Court in the case of Amreli Municipality (Supra), has made certain observations which are reproduced as under;
"11.1.14. In the case of State of Haryana and others Vs. Piara Singh and others etc. etc., the Apex Court in para 44 to 50 has given guidelines as under;
"44. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc / temporary employees in government service.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, efforts should be always to be to replace such a adhoc / temporary employees by a regular selected employees as early as possible. Such a temporary employees may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must given away to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employees; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of appointing authority.
Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through out the above process.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised, he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
In view of the aforesaid guidelines, the Court has very limited jurisdiction to examine whether the executive or State is acting fairly and is not exploiting the employees."
"11.1.17. In the case of Municipal Corporation, Bilaspur and Anr. v. Veer Singh Rajput, and Ors. (Supra), the Apex Court, in spite of long tenure of service issued directions only for consideration and not otherwise and held that the Labour Court / Industrial Tribunal cannot issue directions for absorption. At the most, they can issue direction for consideration subject to availability of the post in the establishment."
"11.1.19. Even in the decision cited by Mr. Mishra for the workmen, the Apex Court has reiterated its earlier view. In the decision rendered by the Apex Court in the case of Dhirendra Dhamoli v. State of UP (Supra), the Apex Court has deprecated the practice of employing casual workers in Organizations which were in existence for long twelve years on the ground of Organization being temporary and directed to sanction posts and recommended for regularisation of such workers. However, it was also held that in absence of sanctioned post at the relevant time, they could not be regularised."
"12.1. After considering the decisions cited before us, the following principles emerge;
[A] No regularisation or permanency can be effected dehors the statutory provisions or the guidelines.
[B] Long service put in by the workman itself may not be a ground to regularise the service or ad hoc / temporary workman against the sanctioned set up without following statutory procedure of recruitment. At the most, Labour Court / Tribunal can issue direction for consideration of absorption subject to availability of posts on the establishment.
[C] To avoid nepotism and corruption, no backdoor entry in service.
[D] Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption."
"12.1.2. The Apex Court, in no uncertain ruled that the Labour Court / Industrial Tribunal can neither regularise service of a workman nor grant permanency when his initial appointment itself is de hors the rules or not on the sanctioned post and has deprecated the orders of High Court / Labour Courts / Tribunals directing to regularise the services of illegally recruited persons and has given guidelines. We are not impressed by the submission advanced on behalf of the workmen that the orders were passed in petitions under Article 226 of the Constitution of India and, therefore, such orders are not applicable in the present case deciding the controversy. The Labour Courts / Industrial Tribunals are required to pass orders consistent with the law laid down by the higher Courts. Needless to say that the exercise of the wide powers by Labour Court / Tribunal is always subject to or governed by the law laid down by the higher Courts. "12.1.8. We are also of the view that the Division Bench overlooked the fact that when the local self Government created under the statute by statutory provisions, makes appointment contrary to the statute, the Labour Court / Industrial Tribunal cannot order regularisation, is not answered in Kalol Municipality''s case in the perspective of provisions of Gujarat Municipalities Act."
"12.1.14. Thus, in view of the above, even if it is held keeping daily rated / casual employees for a long duration amounts to unfair labour practice, that fact by itself, will not make them permanent and/or regularise service. While deciding such preferences for regularisation or permanency, the Labour Court / Industrial Tribunal, at the most can pass order directing the authorities to consider their claim in light of the factors / observations stated above instead of straightway passing the orders of regularisation or granting permanency."
"12.1.16. Before parting, we may like to observe that the unfortunate workman who have continued for years as temporary employees and have succeeded before the Labour Court / Industrial Tribunal, in view of our decision, in the event of their termination, the authorities may see to it that no unqualified person is appointed in their place and their claim for regularisation be considered provided they are eligible on the sanctioned posts. If the posts are not sanctioned, the authorities may take such steps which are necessary in accordance with the provisions of law / rules / Circulars within the budgetary provisions.
So as to see no irregularities are committed in the matter of appointment by Panchayat, the Municipalities and the Corporations, in our opinion, it would be advisable if the State Government issues an appropriate Circular giving details with regard to the aforesaid guidelines to all the local authorities."
Having heard the learned counsel for the respective parties and in the facts and circumstances of the case, Special Civil Application No. 717 of 1998 qua petitioner No. 16 - namely Chavda Vanrajsinh Pratapsinh and Special Civil Application No. 1401 of 1998 qua petitioner No. 1 namely Kirvatsinh Ratansinh Solanki are allowed. Rule is made absolute to the aforesaid extent only.
The respondents are directed to regularize the service of the aforesaid two petitioners and give all consequential benefits as prayed for in this petition. The petitions of the rest of the petitioners are rejected with a direction that the respondent authorities shall consider the case of the rest of those petitioners for regularization and other consequential benefits in light of the observations made hereinabove and in case of termination, the respondents shall follow the directions issued by the Larger Bench of this Court in the case of Amreli Municipality (Supra) in para 12.1.16, which is reproduced in this order. Rule is discharged accordingly.
In view of the above order, Civil Application No. 2040 of 2000 does not survive and same stands disposed of accordingly.