Project Officer, Soil And Water ... vs Adhikaran Kisanji Zod And Ors.
2006 Latest Caselaw 5 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. The Petitioners in this petition are State Government of Maharashtra and its 3 officers. The first six respondents are its employees while the last respondent i.e. respondent No. 7 is an Industrial Court functioning under the provisions of Maharashtra Recognition of trade Unions and Prevention of Unfair Labour Practices Act, 1971 (referred to as U.L.P. Act hereafter). The employer/petitioners have challenged the order dated 30th Aug. 1993 delivered by Industrial Court allowing the complaint filed by first six respondents before it and holding that by not appointing/absorb them as Canal Inspectors the present petitioners have committed an unfair labour practice covered by Items 5 and 9 of Schedule IV of U.L.P. Act. It directed petitioners to appoint/absorb them as Canal Inspectors from 3.10.1991 i.e. the date on which they filed complaint before it. This Court has while issuing rule granted stay to the effect and operation of said order. It appears that during pendency of writ petition respondents number 3 and 5 have accepted the posts of Wireless Operator and have given up their claim of the post of Canal Inspector. Hence the grievance of petitioners against respondents Nos. 1, 2, 4 and 6 alone is being considered now.

2. The respondents/employees filed U.L.P. Complaint 1280 of 1991 before Industrial Court under Section 28 and of U.L.P. Act read with Schedule IV Items 5 and 9 thereof. They contended that they were working in the office of petitioners regularly since 1979 as labourers on class IV post. They successfully completed the training for the post of Canal Inspector from 1.8.1985 to 31.10.1985 and they also passed departmental examination for that post which is class III post. Thereafter they have been working as Canal Inspector from January, 1986 continuously but they were not given that promotion officially though number of vacancies were available. They further contended that one S.S. Choudhari did not pass said examination but came to be promoted as Canal Inspector because of partiality and favouritism practiced by their employer disregarding the merit. Their representation in this respect was not replied and hence they forwarded a legal notice which again failed to evoke any response. They stated that on 21.8.1991 Project Officer (present petitioner No. 1) gave reply admitting all the allegations and communicated that proposal for their promotion was forwarded to higher authorities and promotion orders were awaited. The complaint was opposed by present petitioners who stated that present respondent No. 1 was working since 1979 while the other respondents (complainants before Industrial Court) were working from 14.4.1981, 13.4.1983, 26.5.1983, 7.12.1983 and 25.1.1984 respectively. The training and passing of departmental examination for the post of Canal Inspector was admitted. It was stated that only few vacancies were available in Class III post since 1986 and the same were not filled in till filing of written statement. In relation to Shri S.S. Choudhari it was contended that he completed training and cleared departmental examination along with complainants before Industrial Court i.e. present respondents. He was on the post of Patkari which came to be abolished as per G.R. since 1982 and therefore he was absorbed as Canal Inspector. It was denied that the present respondents were working as Canal Inspectors as per the orders of competent appointing authority. The forwarding of proposal to higher authorities for giving post of Canal Inspector to present respondents was admitted. The parties laid their respective evidence in this background and on 30th Aug. 1993, respondent No. 7 Industrial Court passed the above-mentioned order.

3. I have heard learned A.G.P. Smt. Wandile for petitioners and Advocate Shri Ahirrao for contesting respondents.

Learned A.G.P. has argued that the employment of respondents is with State Government and being public employment, regularisation therein could not have been ordered by Industrial Court in the absence of sanctioned posts and the process of selection. She has invited attention to the judgment of Hon'ble Apex Court reported at in between Mahatma Fule Agricultural University v. Nasik Zilla Sheth Kamgar Union to support this contention. It is further argued that comparison of present respondents with employee Shri S.S. Choudhari is unwarranted because he was situated differently and the fact that he was duly qualified to occupy the post of Canal Inspector has been overlooked by the Industrial Court. It was argued that material on record was not sufficient to conclude that respondents were working as Canal Inspectors. Attention was invited to G.R. dated 9.2.1988 which stated that the recruitment to all class III post should be done through agency of Regional Subordinate Service Selection Board. It was argued that the respondents did not fulfil even the requirements, particularly of age of Recruitment Rules by Irrigation department dated 25.1.1977 and as such they could not have been appointed or absorbed permanently as Canal Inspector. Attention was also invited to Clause Number 3 and 4 of Converted Regular Temporary Establishment Settlement popularly known as Kalelkar settlement to show that the present respondents who were working on CRTE could not claim any right to Regular Establishment. Reliance was also placed upon judgment of Hon'ble Apex Court reported at . A. Umarani v.

Registrar, Co-operative Societies, and between State of Orissa v. Balram Sahu, in this respect.

Advocate for respondent employees contended that the judgment of industrial Court is correct and there's no jurisdictional error. He states that all the respondents have been brought on C.R.T. as labour and question is of their further promotion/regularisation on the post of Canal Inspector on which they are working. He states that only because formal order in writing is not issued by department, respondents are receiving their salary as Labour though they are working on higher post and this is in breach of rule of "Equal pay for Equal Work". He relies upon the judgment of Division Bench of this Court reported at 1999 (2) Bom. C.R. (N.B.) 38 : 1999 (1) Mh.L.J. 605 in case of Sakhaullah v. Visvesvarava Regional College of Engineering, for this purpose. He further states that Shri S.S. Choudhari is not qualified and reliance for this purpose on Exhibit 68 by learned A.G.P. is not proper. He invites attention of Court to subsequent communication dated 4.2.2003 issued by department to S.S. Choudhari calling upon him to produce the result/Mark sheet to show that he is qualified. He argues that a totally new case not pleaded before Industrial Court is sought to be argued before this Court for the first time and by relying upon the judgment of Hon'ble Apex Court reported at Shankar Chakravarti v. Brithannia Biscuit Co. it is stated that such an attempt cannot be countenanced by this Court.

4. In view of admission by present petitioners in the written statement before Industrial Court, it is apparent that the petitioner have completed training and have also passed departmental examination for the post of Canal Inspectors. The two witnesses examined by. present respondents have in fact deposed accordingly on oath and they have not been subjected to cross-examination also on this point. The only question is whether respondents have in fact been working as Canal Inspectors and what is the effect of absorption of Shri S.S. Choudhari as Canal Inspector insofar as present respondents are concerned. The questions need to be answered in the light of case law cited by parties. Adhikaran Zod, present respondent No. 1 has entered the witness box and he has stated that from January 1986 all respondents have been assigned the work of Canal Inspector but they are not getting salary for that post. He has proved a chart showing distribution of work in which names of all respondents appear with name of S.S. Choudhari whose designation is shown as Canal Inspector. He has also produced other documents to show orders issued to him to reveal that they were not working as Labour but were working as Canal Inspector. He stated that their names are referred to higher authorities for grant of promotion and 6 posts of Canal Inspector were vacant. Apart from giving a suggestion about not working as Canal inspector to him, no other suggestion in this respect is given to him and other material in his examination in chief has not been challenged. Present respondent No. 6 Diwakar Jaswant has also entered the witness box who pointed out that in 1983, 25 Labours were promoted as Canal Inspector. In cross-examination he has denied the suggestion that because none of them fulfilled all the qualifications for the post of Canal Inspector as per the GR dated 25.1.1977 they were not promoted. He was only given a suggestion that he has not worked as Canal Inspector from 1986 till the date of his deposition i.e. 23.6.1993. petitioners have examined Shri Jain, a sectional engineer who stated that none of the respondents has worked as Canal Inspector. He has admitted that he issued letters to respondents to collect certain information about the demand of water from cultivators. He stated that duties of Canal Inspector and duties of Labour/Mukkadam are different. In cross he accepted that S.S Choudhari is getting more salary than respondents. He admitted that respondents were doing the duties of Canal Inspector till September - October 1990. Shri Chune, Senior Clerk is the other witness examined by petitioners who admitted that though post of Patkari are abolished, one Titarmare is still working as Patkari. He further stated that qualified employees were given training of Canal Inspector and all the respondents have passed departmental examination for that post. He has further stated that 2 posts of Canal Inspector are vacant in their circle. He further stated that Government has on 23.12.1992 informed that no promotion can be given to respondents and Government abolished 158 posts put of total 1037 posts which were vacant for more than six months. Next witness for Petitioners was Shri Komawar who worked as Assistant Engineer who stated about the duties of Canal Inspector and in cross also stated that he assigned duties of Canal Inspector to respondents 1 and 6. He further stated that they were not paid wages of the post of Canal Inspector. He further stated that 3 canal Inspectors are required for one section and there were total 4 sections in his subdivision at the relevant time. On the basis of this evidence and documents on record, Industrial Court has drawn finding that respondents 1 to 6 worked as Canal Inspectors and has accepted their story and accordingly granted declaration of U.L.P. under Items 5 and 9 Schedule IV of U.L.P. Act. It has also accepted the contention that S.S. Choudhari was not qualified and still he was given post of the Canal Inspector. Though from document at Exhibit 68 it appears that Shri S.S. Choudhary completed training and passed departmental examination, the letter dated 4.2.2003 written by petitioner No. 1 to him raises some doubt about it. However, from discussion below it will become clear that qualifications of Shri S.S. Choudhari are not that relevant in present dispute. It has relied upon the judgment of Hon Apex Court in case between Bhagwati Prasad v. Delhi State Mineral Development Corporation, reported at to observe that absence of qualification cannot be held against present respondents as alleged by petitioners. These findings of Industrial Court on fact have not been demonstrated to be and cannot be labelled as erroneous or perverse. The question is whether Industrial Court was legally right in directing petitioners to appoint/absorb respondents as Canal Inspector.

5. Respondents have, before this Court, relied upon the doctrine of "Equal Pay for Equal Work" and the judgment of Division Bench reported at 1999 (1) Mh.L.J. 605 in case of Sakhaullah v. Visvesvaraya Regional College Of Engineering petitioner therein, a biochemist was directed to teach students and also to do other ancillary functions related with teaching like setting of papers, examiner etc. Division Bench recorded that these works would not normally be assigned to a person not entrusted with teaching job. Hence, it found that petitioner deserved to be granted scale of pay equivalent to that of a lecturer with periodical increments. Following observations made in paragraphs 7 and 8 are important:

7. ...There does not appear any substance in the vague denial inasmuch as there is ample correspondence on record which shows that even the responsible Heads of the departments under whom the petitioner was working had from time to time brought to the notice of respondent No. 1 that petitioner was in fact doing the work of giving lectures even to Post Graduate students. It is not possible for us to accept, in absence of any material on record, that all these letters written by such highly placed responsible persons like the Heads of Departments were managed by the petitioner to suit his case.

8. The petitioner's claim is based mainly on the fact that he has in fact discharged the duties of a lecturer and as also done certain functional jobs as paper setting, working as examiner and, therefore, he cannot be put at disadvantageous position by not paying him the scale which the respondent No. 1 is paying to the person discharging such duties.

Learned AGP relied upon between State of Orissa v.

Balram Sahu to contend that the respondents who were not appointed as Canal Inspectors cannot invoked the said doctrine. The respondents before Hon Apex Court were N.M.R. workers who had filed writ petition in the High Court of Orissa for payment of remuneration on the same scale and basis paid to the regularly employed staff, claiming that they discharged the same duties and functions, invoking the principle of 'equal pay for equal work'. They also sought for regularization of their services on the ground that they had been found working for considerably long period of time to justify their regularization. The appellant State of Orissa contested the claim by contending that the duties and responsibilities of the employees in the regular establishment were more onerous than that of the duties of N.M.R. workers employed in various projects on daily basis and that their engagement also depended on the availability of the work in the different projects and consequently, they could not claim any parity for equal pay. The Division Bench of the High Court of Orissa by a judgment dated 10.3.1992 upheld the claim for regularisation by observing that the said aspect of the matter was not seriously challenged. As for the claim for equal pay, the High Court was of the view that there was no reason to deny them the equal scales of pay and sustained their claim on par with those employed on regular basis with effect from 2.1.1990, namely, the date of filing of the Writ Petition, with a further direction that those who have served continuously for a period of five years by them should be regularized. State of Orissa approached Hon'ble Apex Court. Following observations in said judgment of Hon'ble Apex Court are important:

9. We have carefully considered the submissions of the learned Counsel appearing on either side. The decision in Jasmer Singh (supra) though by a bench of two learned Judges consisting of A.M. Ahmadi, C.J. and Sujata v. Manohar. J., is directly on point, Sujata v. Manohar, J., speaking for the Bench and after a careful analysis of a catena of earlier decisions on the point, held as follows:

10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words, the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot. therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed.

13. On a careful consideration of the materials placed on record, we are of the view that the principles firmly laid down in the well considered decision of Jasmer Singh (supra) squarely applied on all fours to the cases on hand the respondents - workers would be entitled to only, apart from the regularization ordered for which the appellants have had no serious objections, the payment of minimum wage prescribed for such workers if it is more than what they were being paid and that the High Court was in serious error in directing that the respondents should be paid the same salary and allowances as were being paid to the regular employees holding similar posts. The respondents-workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff, for any or all purposes including a claim for equal pay and allowances. The fact that no materials were placed before the High Court as to the nature of duties of either categories should have been viewed as a disentitling factor so far as the workers are concerned and dissuaded the High Court from embarking upon an inquiry in the abstract and with no factual basis and not to empower the Court to assume and presume equality in the absence of proof to the contra or of any unequal nature of the work performed by them. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on par with the other group vis-a-vis an alleged discrimination. In the light of the decision directly on this issue rendered in Jasmer Singh (supra) we are unable to persuade ourselves to countenance the claim for minimum basic salary given in some unreported decisions brought to our notice which appear on the face of it to be certain directions given on the peculiar facts and circumstances of the same without an objective consideration of any principle of law. An order made to merely dispose of the case before Court by issuing certain directions on the facts and for the purposes of the case, cannot have the value or effect of any binding precedent and particularly in the teeth of the decision in Jasmer Singh's case (supra).

14. For all the reasons stated above, the appeals are allowed and the orders of the High Court are set aside insofar as the pay equal to that of the regular employed staff has been ordered to be given to the N.M.R/daily wager/casual workers, as indicated above, to which they will not be eligible or entitled, till they are regularized and taken as the permanent members of the establishment. For the period prior to such permanent status/regularization, they would be entitled to be paid only at the rate of the minimum wages prescribed or notified, if it is more than what they were being paid as ordered by this Court in Jasmir Singh's case (supra). There will be no order as to costs.

The distinguishing features in this judgment are apparent and highlighted above. The argument of learned A.G.P. relying upon this judgment therefore deserve to be rejected. In paragraph 17 of the judgment between Mahatma Fule Agricultural University v. Nasik Zilla Sheth Kamgar Union (supra), Hon'ble Apex Court has applied said doctrine but it was in between two sets of daily wagers similarly situated. The Division Bench of this Court in L.P.A.S between Maharashtra State Road Transport Corporation v. Kishore Kondiram Jagade, reported at 2006 (2) Bom. C.R. 340 : 2005 (4) Mh.L.J. 798 has considered the law on the point and Items 5, 6 and 9 of Schedule IV. While rejecting the contention of MSRTC that permanent sweepers who were doing the work of clearing the buses constitute category by themselves and piece rate sweepers cannot be equated with them, the Division Bench has in paragraph 27-A observed "where one set of labourers is permanent and other set of labourers is daily wages, while considering the question of equal pay for equal work, it is to be found whether these employees are doing the same work which is being done by permanent sweepers. It is admitted fact on record that there is absolutely no difference in their work, but one set of workers is getting paltry wages only because they are considered as permanent and the other set of workers is getting paltry wages because there are paid on piece rate wages." Thereafter, Division Bench has pointed out the judgment of Hon'ble Apex Court in 1990 (2) S.C.C. 396 between Dharwad District P.W.D. Literate Daily Wage Employees Association v. State of Karnataka, and held that the complainants and other employees represented by the union before Industrial Court were entitled to get equal wages and MSRTC had indulged in unfair labour practice under Items 5 of Schedule IV of U.L.P. Act. More discussion in this respect is being undertaken little after considering the other facet of the controversy involved.

6. At this stage the aspect of unfair labour practice under Items 5 and 9 of Schedule IV of U.L.P. Act need to be considered. In view of the arguments of learned AGP question of regularisation and therefore Item 6 of Schedule IV also becomes relevant. Learned AGP has relied upon judgment of Hon Apex Court reported at in between Mahatma Fule Agricultural University v. Nasik Zila Sheth Kamgar Union. These matters have gone to Hon'ble Apex Court from the judgment of this Court only. Necessary facts are that the Civil Appeals Nos. 4461-4470/2001 (arising out of S.L.P. (c) Nos. 418-421/1999 and S.L.P. (C) Nos. 9023-9032/1998) were filed by two Unions. Civil Appeals Nos. 1109-1117 of 1999 were filed by State of Maharashtra, the other appellants being Agricultural Universities in the State of Maharashtra. These Universities are established and function under the provisions of the Maharashtra Agricultural Universities (Krishi Vidyapeeth) Act, 1983, the State Government controls these Universities and is responsible for funding them. The Universities own large tracts of land which are used for agricultural education and research activities. For their agricultural activities these Universities had engaged daily wage labourers. These workmen were not granted the same wages and not given the benefits available to permanent workmen. It was stated that there were approximately 4,000 such daily wage labourers. Approximately 2000, out of the 4000 labourers, raised an industrial dispute which was referred to the Industrial Tribunal under Section 10(1) read with Section 12(5) of the Industrial Disputes Act. The said reference was numbered as (IT) No. 48 of 1981. In this reference the workmen claimed permanency, pay scales on the basis of permanency, dearness allowance and enhanced rated of daily wages, house rent allowance, either a vehicular transport or transport allowance and concessional rates of agricultural produce; like foods, vegetables, eggs, milk etc. On 20th February, 1985 an award came to be passed by the Tribunal. By this Award claim for permanency and wages on the basis of permanency was disallowed; However, it directed proportionate salary/wages per day to be paid to such daily wager by dividing basic starting wages and deamess allowance payable to confirmed employees by 1/30, paid weekly off, Leave (including maternity leave, stick leave etc.) as granted to the permanent workmen and certain other benefits. This Award was not challenged. Thereafter 127 other daily wagers raised an industrial dispute making the same demands. The reference made culminated in an Award dated 1st April, 1985. By this Award it was directed that all workmen, out of these 127 workmen, who had completed 6 months of service as on 1st January, 1978 should be treated as permanent employees and all employees completing 6 months of service in future should be made permanent. The other demands were also allowed. This Award was also not challenged. In fact, the Universities implemented the Award and made the 127 persons involved therein as permanent employees. Cases of these workmen were not before the Hon'ble Apex Court. Though award dated 20th February, 1985 in (IT) No. 48 of 1981 was not challenged a restrictive interpretation was given to that Award by the University. The workmen, therefore, filed an application under Section 33-C(2) of the Industrial Disputes Act to have the amounts, payable as per the Award, computed. As the benefits granted under this award were not being granted, even in the limited manner, to the daily wagers who had not raised a dispute various Complaints under the ULP Act were filed under Items 5, 6, 9 and 10 of Schedule IV. Various orders came to be passed on them and in some of these Order, all daily wagers who had completed 1,000 days, were granted permanency and all benefits of permanency. In other Orders daily wagers who had completed 6 months were granted permanency and the benefits of permanency. In other Orders various other periods were fixed for granting permanency. In the meantime, the proceeding under Section 33-C (2) of the Industrial Disputes Act ended in a Judgment dated 27th April, 1994 and the Universities were directed to pay as per the Award dated 20th February, 1985 a sum of Rs. 4,16,97,937,98. The Universities filed Petitions before the High Court challenging the Judgment dated 27th April, 1994 awarding a sum of Rs. 4,16,97,937,98 and the various orders passed in the complaints under ULP Act. Hon Apex court notes that the Appellant Universities did not challenge the Award dated 20th February, 1985. In (IT) No. 48 of 1981 or the Award dated 1st April, 1985 in (IT) No. 27 of 1984. The following observations made by Hon Apex Court need to be noted:

10. All these petitions came to be disposed of by the impugned Judgment dated 16th September, 1997. As stated above the challenge before the High Court was twofold i.e. a challenge to the computation of the sum of Rs. 4,16,97,937.98 and the other to the various Orders passed in complaints under the MRTU and PULP Act. Before the High Court the decision of this Court in Civil Appeal Nos. 5726-5727 of 1994 (arising out of SLP (c) Nos. 4658/93 and 5717/93) dated 18th August, 1994 was cited on behalf of the Universities. In this decision it has been held by this Court that even though the workmen may by working for a lone period of time or more than 240 days, still they would not acquire a permanent status to be absorbed as regular employees. It was held that for absorption as regular employees existence of posts is mandatory and if no post exists, then even though, the workers may have worked for a lone period of time they cannot be regularised or made permanent. The High Court held as follows:

6. Undisputedly the workers covered by the various complaints are working in various projects of the Vidyapeeth on a temporary basis. They are working as such for a considerable period. It is not disputed before us that these workers so covered have also completed 240 days. What is apparent is that the Vidvapeeth is continuously extracting work from them. Not grating status of a permanent employees has certainly deprived them of the benefit. Such inaction on the part of the Government of not sanctioning posts could not be innocuous. When the result of inaction is definite and explicit the object of not doing it can be safely inferred. As such the act is squarely covered by Item 6 of Schedule IV of the MRTU and PULP Act.

7. In view of the above decision of the Supreme Court, even if the employee is so covered may not be entitled to status of a permanent employee, however, they cannot be deprived of the privileges and benefits of the permanent employee as envisaged by the Item 6 of Schedule IV. They are, therefore, entitled to wages and other benefits applicable to the permanent employees. In view of this, we are not in a position to sustain the order of the Industrial Court directing the Vidvapeeth to confirm these employees within a stipulated period. Order to that extent is modified. As observed, however, the employees so covered by various complaints are entitled to the benefits including wages applicable to the permanent workmen. It is reported that the employees are struggling for this legitimate demand since long. Some of the petitions filed by the employees are also for the implementation of the order of the Industrial Court. In view of this, subject to modification as indicated above, we confirm the orders of the Industrial Court and direct the respondent Vidyapeeth to clear all the dues of the workers who are eligible and covered by various complaints within a period of six weeks from today. The amount due and payable to the workers shall carry an interest at the rate of 6% from the date of the order of the Industrial Court.

11. The various Universities have filed these Civil Appeals impugning this Judgment. State of Maharashtra has also filed Civil Appeal Nos. 1103-1117 of 1999, Civil Appeals Nos. (arising out of S.L.P. (C) Nos. 418-421/1999 and S.L.P. (C) Nos. 9023-9032/1998) have been field by the workmen impugning the said judgment to the extent that demand for permanency is rejected.

12. Mrs. Jaisingh, in support of Civil Appeals Nos. (arising out of S.L.P. (C) Nos. 418-421/ 1999 and S.L.P. (C) Nos. 9023-9032/1998) submitted that the workmen were entitled to be made permanent. She however fairly conceded that there were no sanctioned posts available to absorb all the workmen. In view of the law laid down by this Court status of permanency cannot be granted when there are no posts. She however submitted that this Court should direct the Universities and the State Governments to frame a scheme by which, over a course of time, posts are created and the workmen employed on permanent basis. It was however fairly pointed out to Court that many of these workmen have died and that the Universities have by now retrenched most of these workmen. In this view of the matter no useful purpose would be served in undergoing any such exercise.

13. To be seen that, in the impugned Judgment, the High Court notes that, as per the law laid down by this Court, status of permanency could not be granted. In spite of this, the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency, grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not creating posts amounted to unfair labour practice under Item 6 of Schedule IV of MRTU and PULP Act. In so doing the High Court erroneously ignores the fact that approximately 2,000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the Award dated 20th February, 1985. These workmen were only seeking quantification of amounts as per this Award. The challenge, before the High Court, was only to the qualification of the amounts. Yet by this sweeping Order the High Court grants, even to these workmen, the wages and benefits payable to other permanent workmen.

14. Further, Item 6 of Schedule IV of the MRTU and PULP Act reads as follows:

6. To employ employees as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.

The complaint was against the Universities. The High Court notes, that as there were no posts the employees could not be made permanent. Once it comes to the consolation that for lack of posts the employees could not be made permanent how could it then go on to hold that they were continued as "badlis", casuals or temporaries with the object of permanent employees. To be noted that the complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to conclude that the case was squarely covered by Item 6 of Schedule IV of the MRTU and PULP Act cannot be sustained at all and the impugned Judgment has to be and is set aside. It is however clarified that the High Court was right in concluding that, as per the law laid down by this Court, status of permanency could not be granted. Thus all Orders wherein permanency has been granted (except Award dated 1st April, 1985 in (IT) No. 27 of 1984) also stand set aside.

The question of financial burden on State Exchequer is also considered as under:

19. It was submitted by Mr. Bobde that the Universities have no funds to make payments. He submitted that it is the State Government who would have to make payment. The State Government is also present before this Court. There can be no justification in the State Government not making available the required funds. The argument that the financial burden would be too much is best met by the under quote observation of this Court in Chandigarh Administration v. Rajni Vali reported in 2000 (2) S.C.C. 42 : A.I.R. 2000 S.C.W. 153 : A.I.R. 2000 S.C. 634 : 2000 Lab. I.C. 694:

The contention like the one raised by the appellants in this case that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of respondents 1 to 12 is accepted, raised in different cases of similar nature, has been rejected by the Supreme Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources, it is for the Administration to find out ways and means of securing funds for the purpose." These Universities are imparting education. For the purpose of the education it is necessary for them to maintain the agricultural fields and to carry on experiments. To maintain agricultural fields they required daily wagers. As the daily wagers were required the State Government cannot say that they would not pay the daily wagers is due to them.

Learned AGP has also cited the judgment reported at A. Umarant v. Registrar, Co-operative Societies, to point out that regularisation cannot be made the avenue for recruitment. Attention has been invited to paragraphs 39 to 41 of this Judgment. While holding that State Government could not issue orders to regularise back door entrants in services of Co-operative Societies, following findings are recorded by Hon'ble Apex Court:

35. The 1983 Act was furthermore amended in the year 1995 providing for cadre strength which is directly relatable to the Income of the Co-operative Societies.

36. Provisions of the Act and the Rules framed thereunder reflect the legislative recruitment policy. The said provisions are thus, mandatory in nature.

37. Regularisation in our considered opinion is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation See State of H.P. v. Suresh Kumar Verma and Anr. .

38. It is equally well settled that those who come by back door should go through that door. See State of U.P. and Ors. v. U.P. State Law Officers Association and Ors. .

39. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature.

40. The question came up for consideration before this Court as far back in 1967 in State of Mysore and another v. S.V. Narayanappa wherein this Court observed:

Before we proceed to consider the construction place by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularisation the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.

41. This Court yet again in R.N. Hanjundappa v. T. Thimmaiah and Anr. , it was held:

If the appointment itself is in infractor of their rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Rustification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Reeularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.

Recently in case between State of Maharashtra v. R.S. Bhonde reported at the Hon'ble Apex Court has followed the above law and has observed in paragraph 7 as under.-

7. Additionally, as observed by this Court in between Mahatma Fule Agricultural University v. Nasik Zilla Sheth Kamgar Union and Ors. status of permanency cannot be granted when were is no post. Again in Ahmednagar Zilla Shetmajoor Union v. Dinkar Rao Kalyanrao Jagdale 2001 (7) S.C.C. 356 it was held that mere continuance every year of seasonal work obviously during the period when the work was available does not constitute a permanent status unless there exists post and regularisation is done.

7. Judgment of Hon'ble Apex Court in Gram Sevak Prashikshan Kendra v. Workmen Employed under Them Represented by the Manjri Farm Kamgar Union and Ors. and also in between Mahatma Fule Agricultural University v. Nasik Zilla Sheth Kamgar Union are considered by this Court in Thane Municipal Transport Undertaking v. The Employees Union reported at 2005 (III) C.L.R. 1011. In said matter before learned Single Judge challenge was to the judgment of Industrial Court granting permanency to the members of respondent Union. These members were badli drivers and conductors who worked for more than five years and rendered continuous service of 240 days. As they were not accorded status of permanent workmen, the respondent Union filed complaint under Items 6, 9 and 10 of Shedule IV of U.L.P. Act. The defence of employer Municipal Corporation was that State Government was considering their proposal to sanction the posts but it was taking time. Industrial Court found that there was unfair labour practice under Item 9 and petitioner/employer challenged this finding and judgment before this Court by placing reliance upon above mentioned two judgments of Hon'ble Apex Court. In paragraph 9 this Court has observed that in both the above matters, Hon'ble Apex Court was not considering cases relating to industrial establishment and was considering facts and circumstances which had arisen in complaint filed under Item 6 of Schedule IV of U.L.P. Act. Thereafter it has been held that establishment of petitioner was "Industrial establishment" and Standing Order 4-C applied to it and thereafter has been made to the judgment of Hon Apex Court in case of S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Ltd. 1986 (1) C.L.R. 360 to conclude that Industrial Court was right in holding that there was unfair labour practice under Item 9 as there was breach of provisions of Model Standing Orders. It has been further held that in view of Division Bench judgment in case of Kamani Tubes Ltd v. Kamani Employees Union reported at 1988 (Supp.) Bom. C.R. 857 : 1987 (II) C.L.R. 263 motive of employer was not relevant under Item 9 and reason or cause for his failure were not relevant at all. In paragraph 19 the judgment of Hon Apex Court reported at 1996 (I) C.L.R. 680 between Chief Conservator of Forest v. Jagannath Maruti Kondhare has been relied upon to point out that relief of permanency cannot be denied to workmen merely because they would be required to be paid wages meant for permanent workmen and regularisation could not be denied only because workmen were employed under Maharashtra Employment Guarantee Act, 1977. It has been further held that provisions of Bombay Provincial Principal Corporation Act, 1946 cannot override the provisions of Industrial Employment (Sanding Orders) Act, 1946 and the judgment of Industrial Court has been maintained.

The Division Bench of this Court in L.P.A.S between Maharashtra State Road Transport Corporation v. Kishore Kondiram Jagade reported at 2005 (4) Mh.L.J. 798 has considered the law on the point of regularisation and Items 5, 6 and 9 of Schedule IV. The Union complained of unfair labour practice under Items 5, 6, 9 and 10 of Schedule IV and learned member of Industrial Court held that Union failed to prove unfair labour practice under Items 9 and 10. It further held that said union had no authority to file complaint in relation to item 6. However it held that unfair labour practice under Item 5 was established as employer MSRTC was paying unequal wages to casual labourers as compared to permanent sweepers and cleaners. The learned Single Judge maintained the order of Industrial Court. While considering the contention of MSRTC that there was no employer employee relationship because employees were not appointed after following the procedure as laid down in General Standing Order 503, in paragraph 15 it has been held that it was for Competent Authority to carry out the consultation with the Selection Authority as provided in Clause 4 of Standing Order No. 503 and it was not the job of employees. It was further observed that it was not the case of MSRTC that such consultation was in fact done since 1980 to 1992 and the competent Selection Committee refused these is employees and for such lapse on part of appointing authority employees cannot be blamed. Argument of regularisation against non existing post is considered in paragraph 18 onwards. The judgment of Hon'ble Apex Court in Himanshu Kumar Vidyarthi v. State of and Bihar reported at and State of Himachal Pradesh v. Suresh Kumar Verma, reported at are considered and it has been observed that Hon'ble Apex Court was considered and it has been observed that Hon'ble Apex Court was considering provisions of Industrial Disputes Act in relation to Government department and issue of unfair labour practice under Item 5 and 6 of Schedule IV of U.L.P. Act was not involved. The judgment of Karnataka High Court in case between Karnataka State Road Transport Corporation v. B.B. Tabusi reported at 2003 (III) C.L.R. 458 is also considered in view of proposition therein that the labour or Industrial Labour cannot grant relief of reinstatement amounting to regularisation and appointment to the non existing post. It is observed that Karnataka High Court was considering case simpliciter under Industrial Disputes Act and not under similar provision like U.L.P. Act. Division Bench has thereafter made reference to judgment of Hon'ble Apex Court reported at between Dharwad District PWD Literate Daily Wage Employees Association v. State of Karnataka. It is observed that the Apex Court considered regularisation of causal works with parity in pay and principal of equal pay for coal work. The Apex Court found implementation of said principal by instrumentalities of State obligatory by virtue of Article 39(d) read with Articles 14 and 16 as also the socialistic philosophy adopted by the Constitution by adding the word "Socialist" in the Preamble. Considering the case of daily rated casual workers working continuously for long under instrumentalist of State, the Hon Apex Court held that services must be regularised with parity in pay and the scheme for regularisation was approved. The Bench, in paragraph 24 has made reference to the above referred judgment of Hon Apex Court i.e. Chief Conservator of Forests v. Jagannath Maruti Kondhare, and following observations therein are reproduced:

22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar), had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmednagar, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore answer the second question also against the appellants.

The Division Bench has thus maintained the order passed by learned Single Judge.

In Gujarat Agricultural University v. Rathod Labhu Bechar the Hon'ble Apex Court has considered provisions of Industrial Disputes Act (14 of 1947), Schedule 2, Item No.6. Daily wages workers completed more than 10 years of continuous service with minimum of 240 days in each calendar years as on 31st Dec, 1999 and proposed scheme for regulation of such daily rated labours framed by Gujarat Agricultural University contained eligibility clause that workers should possess prescribed qualifications of post at time of their appointment. Hon'ble Apex Court held that when Workers were working in post for long number of years without complaint, that by itself was sufficient qualification and such long experience was equitable with such qualification. It observed that said eligibility clause needed modification and eligibility condition ought to be relaxed in favour of such workers. The observations in paragraph 18 are important-

18. What emerges is, all the respondent workmen are eligible for absorption on the facts of this case subject to any eligible qualification under the rule if any. Though no recruitment rules were filed in the proceedings either before the Tribunal or in the High Court but while proposing the scheme a copy of the recruitment rules for various cadres have been placed before us on behalf of the appellant University. This gives in column No. 1 the serial No., in Column No. 2 the name of the post, in Column No. 3 the pay scale, in Column No. 4 the age limit and in Column No. 5 the qualification. Serial No. 10 deals with Peon and Class IV servants, serial No. 13 deals with Operator-cum-Mechanic, serial No. 14 deals with Chowkidar, serial No. 25 deals with plumber and serial No. 33 deals with Carpenter. This shows that recruitment rules did have these posts in its ambit about which we are concerned, yet no posts were created. This proposed creation of post is churned out only after this long battle by the workmen as against the appellant. It was not expected from the institutions like the present appellant, especially when it is fully funded by the State Government that this process of absorption should have taken such a long time and to have yielded to it only after this long battle. This legal position is well known not only to the appellant but the State who is funding it, then why to do it only after Courts' intervention. It is true creation of post does involve financial implication. Hence financial health of a particular institution plays important role to which Courts also keep in mind. The Court does exercise its restrain where facts are such where extent of creation of post creates financial disability. But at this juncture we would like to express our note of caution, that this does not give largess to an institution to engage larger number of daily wage workers for long number of daily wage workers for long number of years without absorbing them or creating posts which constitutes an unfair labour practice. If finances are short engagement of such daily wage workers could only be for a short limited period and if continuous work is required it could only do so by creating permanent post. If finances are not available, take such work which is within financial mean. Why take advantage out of it at the cost workers.

8. The facts of present case made to be viewed in this background. It cannot be ignored that respondents deposed that they continued to work continuously from January 1986 as Canal Inspector and the witness for petitioner admitted that 2 posts of Canal Inspector were vacant. The other witness admitted that from January 1986 up to October 1990 respondents worked as Canal Inspector. Witness Shri Komawar stated that he assigned duties as Canal Inspector to respondents. The Industrial Court found that respondents were working continuously as Canal Inspectors. In December 1992 State Government communicated that 158 various posts including vacant posts of Canal Inspectors which were vacant for more than six months were abolished. It is thus obvious that vacancies existed and men were needed to do the available work. However petitioners avoided to make any permanent arrangement to take care of such work. They permitted qualified & eligible persons like respondents to do that work and therefore only their immediate superiors forwarded proposals for making permanent arrangement to the State Government. Had this fact been recognised and acknowledged by petitioners by issuing an appropriate order in writing to the respondents by accepting the proposals forwarded by their immediate superiors 6 posts could have been filled in and perhaps would not have warranted abolition. There was absolutely no justification for abolishing at least these posts when respondents were working as Canal Inspector for long time on them. The workload was available, the posts were also available and respondents were made to work against said posts without actually filling in the vacancy. There was thus no question of creation of post or absence of post. By extracting work against those posts from respondents without actually permitting them to occupy the same as per law and after respondents demanded regularisation, contending that posts are abolished or pointing out that they were age-barred is nothing but high-handed action on the part of employer and unbecoming on the part of petitioners. Financial difficulty also cannot be an answer in such circumstances. The witness examined by petitioners have unequivocally accepted that the respondents held requisite qualification for absorption as Canal Inspector, petitioners have not shown any difference between the work done as Canal Inspector by respondents and by regular Canal Inspector or Shri Choudhari. Only difference seems to be that respondents were asked to work as such without issuing formal order to them. Shri Choudhari was issued such order in writing on the ground that Class IV of Patkari held by him was abolished and therefore he was accommodated as Canal Inspector on class III post. Abolition of said post of Patkari is also doubtful because witness for petitioners has himself stated that one Shri Titarmare still continued to work as Patkari. It has come on record that each section required 3 Canal Inspectors and there were total 4 such sections in concerned subdivision. The petitioners have thus avoided to fill in vacancies and also deprived respondents of their legitimate claims and rights. The grievance about their not fulfilling the requisite qualification is incorrect and only by way of afterthought. Even otherwise, in view of the case law pointed out above it is apparent that after extracting work for such a long time from respondents, the petitioners could not have denied them absorption against said posts on the ground of absence of qualification or eligibility. Though the respondents did not invoke Item 6 of Schedule IV in their Complaint, still in view of the relief given by industrial Court and the argument advanced by learned AGP, the considerations relevant therefore are required to be looked into in this judgement.

Petitioners have relied upon resolution dated 9.2.88 to contend that in view thereof, respondents could not be made Canal Inspectors because the post was to be filled in through Regional Subordinate Service Selection Board. However it cannot be ignored that respondents were actually working since January 1986 on said class III post. The respondents have also placed on record before this Court order dated 3.3.1989 by which Assistant Superintendent, Chandrapur irrigation Project Circle, Chandrapur promoted 5 CRT labours as Canal Inspectors. This circular/resolution dated 9.2.1988 was not produced before Industrial Court and learned Counsel for respondents argued that there are subsequent resolutions issued regularising the recruitment and promotions already made. As this was not the reason communicated by petitioners to respondents for not promoting them or this was not the defence taken before Industrial Court, it will not be proper for this Court to consider that document for the first time in present writ petition. The Recruitment Rules framed on 25.1.77 vide Exhibit 73 contemplate direct recruitment and age limit of 25 years for the post of Canal Inspector. However, learned member of Industrial Court has found that while deciding to abolish the post of Patkari, it was decided to absorb them as Canal Inspector i.e. from Class III post. Vide order dated 17.11.1983, 25 C.R.T./Daily wage employees who passed departmental examination for the post of Canal Inspector were made Canal Inspector/measurer by Superintending Engineer. Nagpur. The contention of petitioners that this action of promotion dated 17.11.1983 was not approved by Government vide its resolution dated 23.12.1992 appears to be incorrect. The said resolution dated 23.12.1992 is stated to be Exhibit 71 in ground No. 12 in writ petition. It is after 9 years of these promotions. Perusal of record of Industrial Court reveals that it only makes reference to recruitment rules to point out that age-bar would apply while filling in post of Canal Inspector. But it is not in relation to promotions effected on 17.11.1983 and petitioners have not produced any material on record to show that said promotions dated 17.11.1983 were not approved by the Government. The respondents were not confronted with age-bar during their cross-examination before Industrial Court. The observations of Hon Apex Court in case Gujarat Agricultural University v. Rathod Labhu Bechar (supra) need to be mentioned here:

26. In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage workers. Whether skilled, semi-skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the university. However, the said regularisation is subject to some conditions. Under Clause 1(a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. The submission is, those working for a period of 10 or more years without any complaint is by itself a sufficient requisite qualification and any other rider on the facts of this case would prejudice these workers. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, qualification for Peon is that he should study up to 8th Std., for Operator-cum-Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors Dealers workshop for two years, for Chowkider, he must be literate and have good physique. Literate is not defined. For Plumber to have I.T.I. Certificate. We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a), need modification to this effect.

27. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, this Court observed: The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them; The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and it is sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with,, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that lack the prescribed educational qualification.

28. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come-in the way of their regularisation, Clause 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.

Industrial Court has relied upon Bhagwati Prasad v. Delhi State Mineral Development Corporation (supra) and found that there was no just and sufficient reason for making present respondents Canal Inspectors. As a model employer, petitioners could have issued orders asking respondents to officiate an higher post so that they would have received officiating allowance as per rules. In any case, acting fairly the petitioners could have issued appropriate orders in writing to respondents to show that they were acting honestly and bona fide. Petitioners could have expressed their readiness willingness to compensate respondents for higher work extracted from them by paying them salary of class IV post. Not filling in post though workload was available, asking respondents to discharge that work without proportionate remuneration therefore and taking stand of abolition of those posts on the ground that they had not been filled in for more than six months shows nothing but unfair labour practice indulged into by petitioners. The intention of petitioners to victimise respondents is therefore apparent and petitioners have been benefited in the process. The respondents were entitled to appropriate orders either appointing/promoting them as Canal Inspectors or asking them to officiate as such. The refusal and failure on part of petitioners to issue such orders is apparent an unfair labour practice. Discrimination between respondents and Shri Chaudhari is apparent and violation of doctrine of equal pay for equal work is also revealed. Therefore unfair practice under item 5 and under Item 9 is established. Taking overall view of the matter, I find that no case is made out for interference in the impugned order passed by Industrial Court.

9. I, therefore do not find any merit in writ petition. Same is accordingly dismissed. However there shall be no order as to costs.