Chauhan Rupsinh Motisinh vs Gujarat Water Supply And Sewerage ...
2021 Latest Caselaw 9983 Guj

     C/SCA/12000/2020                                     CAV ORDER DATED: 30/07/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12000 of 2020
==========================================================

CHAUHAN RUPSINH MOTISINH Versus GUJARAT WATER SUPPLY AND SEWERAGE BOARD ========================================================== Appearance:

MR YN OZA, with MS KAVITA B GAJJAR(5621) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32, 33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5 6,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,78,79, 8,80,9 MR PRASHANT DESAI, SENIOR ADVOCATE with MR HS MUNSHAW(495)

NOTICE SERVED(4) for the Respondent(s) No. 2,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 30/07/2021

CAV ORDER

1. By way of this petition under Article 226 of the Constitution of India, 80 petitioners in number have invoked extraordinary jurisdiction of this Court for seeking the following reliefs:-

(a) To admit this petition and to allow the same,

(b) To To direct the respondents to forthwith regularize the services of the petitioners herein by taking into account the length of service put in by them from the date of their initial appointment and by applying the ratio laid down by the Hon'ble Supreme Court in the case of State of Gujarat and others vs PWD Employees Union reported at 2013 (2) GLH 692 as also applying the instructions contained in the G.R. dated 17.10.1988 and to pay them all benefits of service including the arrears with applicable rate of interest; more particularly by taking into account the order dated 21/12/2017 passed by this Hon'ble court (Coram: Hon'ble Mr. Justice N.V. Anjaria) in SCA No.16882 of 2016, which is at Annexure-F.

(c) To direct the respondents to pay equal pay to the petitioners by applying the principle of equal pay for equal work as laid

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down in the reported judgment of ° Hon'ble Apex Court in 2017 (4) SCC 148 in the case of Jagjitsinh vs State of Punjab;

(d) PENDING THE ADMISSION, HEARING AND FINAL DISPOSAL OF _ THIS PETITION, BE PLEASED to direct the | respondents to regularize the services of the petitioners herein by taking into account the length of service put in by them from the date of their initial appointment and by applying the ratio laid down by the Hon'ble Supreme Court in the case of State of Gujarat and others vs PWD Employees Union reported at 2013 (2) GLH 692 as also applying the instructions contained in the G.R. dated 17.10.1988 and to pay them all benefits of service including the arrears with applicable rate of interest; more particularly by taking into account the order dated 21/12/2017 passed by this Hon'ble court (Coram: Hon'ble Mr. Justice N.V. Anjaria) in SCA No.16882 of 2016, which is at Annexure-F.

(e) To grant any other appropriate and just relief/s.

2. Basically, by way of this petition, the petitioners have questioned the inaction on the part of the respondent authority in not conferring the benefits of recommendation of 6 th Pay Commission flowing from the Government Resolution dated 17.10.1988. The case of the petitioners is that the petitioners are working as daily wagers under respondent Nos.2 and 3 and their respective dates of joining, retirement, names, places, etc. are enlisted in a chart, which is attached to the petition compilation at Annexure-A.

3. It has been asserted that the petitioners are the members of the Association which had filed Reference (IT) No.17 of 2005 before the Industrial Tribunal, Nadiad inter alia praying for grant of benefits of recommendation of 6 th Pay commission to the persons working with the respondents in view of the Government Resolution dated 17.10.1988. The said Reference was filed for and on behalf of 414 members of the Association, including the

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present petitioners.

4. According to the petitioners, the Reference filed by the Association, to which the petitioners belonged, came to be allowed by passing an award on 24.4.2015 by the Industrial Tribunal, Nadiad in Reference (IT) No.17 of 2005. However, the respondent No.2 Board has challenged the said award by way of preferring Special Civil Application No.954 of 2016 before this Court. The said petition is pending according to the petitioners themselves. It is the case of the petitioners that the Government Resolution dated 17.10.1988 of the Road & Building Department, State of Gujarat was based upon the recommendation of Daulatbhai Parmar Committee which has dealt with the question of regularization and conferment of the permanency benefits by daily rated employees and this resolution was the subject matter of the proceedings before the Hon'ble Apex Court in case of PWD Employees Union Vs. State of Gujarat [(2013)12 SCC 417], in which the said resolution was held to be applied uniformly to the similar situated daily rated employees working under different departments of the State Government and in the meantime, respondent No.2 Board has also adopted the Government Resolution dated 17.10.1988 by way of issuing circular dated 8.6.1989 and thereafter, after referring to various contentions in the petition, the reliefs have been sought, as indicated.

5. Substantially, the reliance has been made not only on the other judgments delivered by Hon'ble the Apex Court, but it has been categorically emphasized that some 40 employees out of the very Association who filed the Special Civil Application No.16882 of 2016 have been extended the benefits and these petitioners

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who are 80 in numbers are similarly situated claiming benefits individually on the basis of the said order passed by the Coordinate Bench of this Court and as such, after carrying out the amendment, the said ground has been emphasized for substantiating the stand.

6. This petition was heard at length by the Court and was reserved for judgment.

7. The petitioners are represented by learned advocate Mr. Yatin Oza, assisted by learned advocate Ms. Kavita B. Gajjar for the petitioners and respondent Nos.1 and 2 authorities came to be represented by learned senior advocate Mr. Prashant Desai, assisted by learned advocate Mr. H.S. Munshaw. After submission of their respective contentions, written submissions in brief have been tendered on record of the case. Nonetheless, it was candidly submitted that the main petition filed by the Association, i.e. Special Civil Application No.954 of 2016, is still pending and awaiting final hearing, wherein operation and implementation of the impugned award is stayed. The said order is reflecting on page 203 of the petition compilation i.e. order dated 18.4.2016.

8. With the aforesaid background of facts, the petition is taken up for final disposal.

9. Learned advocate Mr. Yatin Oza has vehemently contended that the issue is squarely covered by the decision of the Coordinate Bench of this Court, in which some of the part-time employees have been considered and due benefits have been extended, may be upon filing of undertaking. The petitioners are also ready and willing to file such undertaking and similar

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treatment be given to the petitioners as well.

10. Learned advocate Mr. Oza has raised multiple contentions, but the main thrust of the submission is based upon the decision delivered by the Coordinate Bench. Mr. oza has further submitted that in case of PWD Employees Union Vs. State of Gujarat, reported in (2013)12 SCC 417, Hon'ble the Apex Court has propounded that the resolution dated 17.10.1988 is to be uniformly applied to the similarly situated daily-rated workers in other departments of the State Government as well and this very respondent Board by virtue of the circular dated 8.6.1989 has adopted the very resolution of 17.10.1988 and therefore, there is no question of depriving the petitioners from the legitimate benefits as others have been extended by learned Single Judge. It has been submitted that being a Coordinate Bench, the said ratio laid down in Special Civil Application No.16882 of 2016 has to be followed. By referring to certain decisions, Mr. Oza has submitted to grant the relief, as prayed for, in the petition.

11. To substantiate his contentions, learned advocate Mr. Oza has referred to the directions which have been given in the afore- mentioned petition decided on 21.12.2017 and as such, has requested that the inaction on the part of the respondents in not granting the benefits of 6th Pay Commission to the petitioners is unjust and arbitrary and violates Articles 14 and 16 of the Constitution of India. It has been submitted that series of decisions on the issue have led to a situation where the petitioners are legitimately entitled to the reliefs as prayed for and there is hardly any reason for the respondent Board to deprive the petitioners from such legitimate benefits. Mr. Oza has further drawn the attention of the Court to the contents of

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the Draft Amendment, which has been tendered during the pendency of the petition, but his submission is substantially encircling to the decision delivered in Special Civil Application No.16882 of 2016, in which also, despite pendency of Special Civil Application No.954 of 2016, the Hon'ble Court had extended the benefits. It has been submitted that large number of employees in the said decision were also the members of the Association whose substantive petition is pending, still the Hon'ble Court thought it fit to extend the benefits and not to deprive the employees from the legitimate entitlement and as such, has requested to grant the reliefs as prayed for in the petition.

12. Additionally, Mr. Oza has also submitted the written submission in rejoinder to the reply given by the Board and there also, a submission is canvassed to the effect that even if the petitioners are part-timers, they are also covered by the said judgment of the Coordinate Bench, as referred to above, and therefore, not only the part-timers have been held entitled rather they have earned said benefits by virtue of the judgment and several decisions have been brought to the notice of this Court and the Coordinate Bench in the written submissions and thereby requested to grant the reliefs as prayed for in the petition. Said written submission in rejoinder the Court deems it fit to incorporate hereunder:-

WRITTEN SUBMISSIONS IN REJOINDER ON BEHALF OF PETITIONERS

The petitioners' counsel has already submitted the written arguments by way of a note running into 7 pages (not including the judgements cited)

These written arguments are brief and in rejoinder.

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The two arguments of Shri Desai, are as under:

1. That the petitioners cannot be regularized since no procedure for regular recruitment has been followed.

2. The policy was one time settlement.

Both the above arguments have been answered against the board by the Hon'ble Division Bench of this Hon'ble Court. Hon'ble Justice Anjaria in his Judgement @ pg 81 of the petition paper book has quoted the relevant paras from the Judgement of the Hon'ble Division Bench viz. 3.6.4 and 3.6.5.

Para 3.6.4 contains the arguments by the Counsel for the board which covers both the points argued by Mr. Desai as stated above and Para 3.6.5 is the opinion expressed by the Hon'ble court in form of the judgement @ pg 89 negating both the above contentions.

Para 3.9 @ pg 90 is the most important part of the judgement where argument of cut off line has been negated and that too, placing reliance on the Hon'ble Supreme court's order, which may also be referred to.

In para 5.3, specifically the stand taken by the Board after quoting the portion of the affidavit negates the said stand that it is one-time settlement policy.

Please refer 5.3 and 5.4 @ pg 93.

Reply to the 6 judgements cited by Shri Desai.

1. LPA 82/2020 order dtd 24.07.2020 Annexure L @pg 224

The said judgement is not applicable. That was the case where the petitioner had prayed for benefits flowing from 2 circulars, which were (At) adopted by the board. [white in the present case, not only 17.10.1988 circular is adopted but by a judicial pronouncement, as quoted above it has been held not to be a one time settlement.

Also, In the aforementioned case, by mistake of the board itself, some employees were wrongly granted benefits flowing from the said circulars and the board had later on withdrawn.

In the aforecaptioned matter, the said argument is not available in as much as the part timer have been given benefits by way of a judgement. To say that, part timers

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have been wrongly accorded benefits amount to questioning the judgement in as much as the part timers have not been granted benefits by the Board(But )they have earned it by the judgment.

This is at all not applicable for the following reasons.

a) The policy was different

b) The benefits conferred under the said policy and the present policy are very different

c) Every policy will have to be examined independently.

d) It was a one time settlement u/s 2(p) of the Industrial Dispute Act.

e) Admitted part timers were working for 4 hours.

f) In the present case, part timers are expressly covered and included vide policy dtd 17.10.1988

Every policy needs to be examined as per its benevolent clauses and no policy can be compared with the other unless provisions are identical or have been made to apply mutatis mutandis

3. (2011) 2 SCC 429.

A mandamus was sought to frame a scheme in line with earlier scheme and the earlier scheme was only a one time settlement. Please refer to para 5 of the aforementioned judgement.

4. (2010) 13 SCC 448

Not applicable because the so called employees were paid from non public funds and their duty was hardly twice or thrice a week.

5. (2017) 4 SCC 113 It has no application to the present facts of the case as there was a scheme which was floated specifically mentioned about regularization of full-time daily wage employees.

6. (2014) 4 SCC 769 Will have no application as much as there is a big difference between regularization sought under Article 226 without any

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policy and a petition for enforcement of a policy. In the aforecited case a petition was laid under Article 226 of the Constitution of India, seeking a mandamus not for enforcement of any policy or circular. While in the instant case, there is a permanent policy, which will apply uniformly vide Government Resolution dtd 17.10.1988 as interpreted by this Hon'ble Court by way of judicial pronouncement/s as mentioned above.

         Judgements in Rejoinder

  a)     2009 1 SCC 469 -

The following paragraph, quoted from a judgement of the Hon'ble Supreme Court is relevant (Para 5)

"18. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT, AIR p. 688, para 19)

19... Each case depends on its own facts and a close similarity between one case and another i9s not enough because even a single significant detail may alter the entire aspect. In deciding such case, one should avoid the temptation to decide (as said by Cardozo) by matching the colour of one case against the another. To decide therefore, on which. side on the line a case falls, the broad resemblance .to another case is not at all decisive."

All the judgements cited by Mr. Desai are in the facts and circumstances of those case. Moreover, this very circular being 17.10.88 has been interpreted by not less than 10 judgements delivered by this Hon'ble Court and Hon'ble Supreme court. Reliance on other judgements on interpretations of other policies will not help the respondents. Every matter will have to be viewed differently viz. as follows:

1. A petition filed under article 226 by part timers without any backing of the policy

2. Petition filed under Article 226 for implementation of policy but where there is some grey area for judicial interpretation

3. A petition under Article 226 for implementation of a policy which leaves no grey area

b) (2009) 8 SCC 431,

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In para 103 all part timers were ordered to be absorbed and regularized. Neither the judgements cited by the board nor the referred judgements can be read as a straitjacket formula. The present policy rests only on interpretation of section 25B of the industrial disputes act of 1947 which is no longer res integra.

c) (2008) 10 SCC 698

Hon'ble Supreme Court has interpreted 3 sections viz 2(s), 25 B and 25 F of Industrial Dispute Act,1947 and in no uncertain terms from para 10 onwards, has laid down the law that Section 25 B will cover a part time workman and has in no uncertain terms further laid down that while adjudging a workman under 25B, it will take into its sweep even a part time workman.

The short question for the kind consideration by Hon'ble Court is the interpretation of Section 25B as referred to in the policy. And in the humble submission of the petitioner the judgment referred to above, interprets section 2(s) and then vis-a-vis applies to section 25B and section 25F. It would be most unsafe to argue that 25B interpreted by the Hon'ble Supreme Court may be read only in refence to Section 25F or a different interpretation qua different sections is permissible.

d) (1980) 3 SCC 719 (Para 5 and 6)

Once the Court has decided each and every clause of the policy, it cannot be argued that certain aspects have not been considered. Once, under this very policy, part timers are considered as eligible, for the benefits, flowing from the circular, it should be deemed that the court has considered part timers as eligible. Para 5 and 6 of the judgement makes the position clear.

e) (1990) 3 SCC 223

Lastly the most important aspect is when a policy is promulgated in the name of his excellency either the President of India or Governor of the State, though it is administrative in its character, it has a complete colour of legislation, as laid down by Hon'ble Supreme Court in para.32, 33, and 34, as it has to be uniformly applied to all the workmen in the State service.

All the apartments of the Government have applied this policy and there exists no dispute except, in every petition

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filed, respondent boards comes out with one or the other objection. If Justice Anjaria's judgement is closely looked at, in every petition, either the earlier objections are repeated or one or the other new objections are raised.

13. As against the aforesaid submissions, learned senior advocate Mr. Prashant Desai appearing with learned advocate Mr. H.S. Munshaw on behalf of the contesting respondents has vehemently opposed the petition. Mr. Desai has tendered a written submissions and ultimately has broadly contended as to why the said judgment of the Coordinate Bench dated 21.12.2017 passed in Special Civil Application No.16882 of 2016 may not be applicable here. By referring to the relevant facts, Mr. Desai has submitted that part-time employees were differently treated and differently being paid and it is not in dispute that these petitioners are not part-time employees and therefore, they stand of different footing altogether cannot legitimately expect from the Court to get similar treatment as has been given to a different class of employees. By referring to certain proceedings, which are pending on the issue, Mr. Desai has submitted that no relief to be granted at this stage of proceedings. It has been contended that the respondent Board has preferred Special Civil Application No.954 of 2016 challenging the very same award passed by the Industrial Tribunal, and the said petition is not only admitted but interim relief has also been granted staying the operation and implementation of the award in question and that being the position, since the said petition is very much now on the board for final disposal, present petition deserves to be tagged along with the said petition so as to avoid any contradictory view. Mr. Desai has clarified from the decision delivered by the Coordinate Bench as to under which circumstance, only few part-time petitioners got benefit by

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submitting an undertaking and here, in the instant case, initially, an impression is given that these petitioners are daily- rated employees, but in fact, on oath, no clarification is made that they are merely a part-time daily rated employees. On oath, an averment is made to the effect that as if they are daily rated employees, such impression is sought to be created, which is an attempt to divulge the Court from the core issue involved in the petition. It is an undisputed position that these employees, i.e. the petitioners 80 in numbers, are very much members of the Association and the said Association is very much a party to the petition, being Special Civil Application No.954 of 2016, which is already now fixed for hearing, and therefore, there is no great urgency as well for the petitioners to get the present petition decided by keeping aside the main petition in which the stay has been granted by the Court. Mr. Desai has submitted the written submissions clarifying the situation along with several decisions delivered by Hon'ble the Apex Court and as such, the Court deems it proper to reproduce the same hereunder:-

WRITTEN SUBMISSIONS ON BEHALF OF RES.NO.1

1. The petitioners are the part-time daily-wager. The said petition is filed by underline 80 persons/part -time employees. They have filed the present petition for a relief that the respondent should regularize the services of the petitioners while taking into account the length of service put in by them, from the date of their initial appointment and by applying the ratio laid down by the Hon'ble Supreme Court in the case of State of Gujarat v / s P.W.D. Employees Association and also applying the instructions contained in the GR dated 17.10.1988 and, more particularly, taking into account the order dated 21.3.2017 passed by this Hon'ble Court (Coram Hon'ble Mr. Justice N.V. Anjaria) in Special Civil Application No.16882 of 2016. The petitioners have also prayed for "equal pay for equal work". petition is based upon the Judgment and the order passed by this Hon'ble Court in Special Civil Application No. 16882 of 2016 and the GR of the State Government dated 17.10.1988.

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2. On behalf of the respondents several contentions are raised during the arguments which are enumerated hereunder:

2.1 That the GR dated 17.10.1988 is only for temporary full time daily-wager who are skilled workers and the said GR does not speak of part-time daily-wager and, therefore, the GR dated 17.10.1988 is not applicable to the petitioners of this petition in the facts of the present case;

2.2 The reliance of the Judgment and the order dated 21.12.2017 in Special Civil Application No.16882 of 2016 is uncalled for because the facts of the present case and the facts of the case in Special Civil Application No.16882 of 2016 are different;

2.3 That the present petition deserve to be dismissed only on the ground of suppression of material facts as the petitioners have not disclosed that they are part time employees- co- workers of the respondent Authority..

2.4 That the petition is also not maintainable as there are disputed question of facts which cannot be gone into in this petition under Article 226 of the Constitution.

2.5 That the respondent Board has also filed Special Civil Application No.954 of 2016 challenging the order/Award passed by the Industrial Tribunal and this Hon'ble Court has admitted the said petition and granted the stay of the order/Award passed by the Industrial tribunal and the said petition is still pending for hearing before this Hon'ble Court It is submitted that all the petitioners are the members of the union against whom the aforesaid Special Civil Application No.954 of 2016 is filed and the petitioners of this petition have also filed Civil Application for vacating the stay in the said. matter and, therefore, present petition is nothing but abuse of process of law and repetitive petitions are filed by the petitioners and, therefore, this Hon'ble Court is requested not to entertain the the present petition.

2.6 On behalf of the respondent No 2 Affidavit in Reply is filed on 28.10 2020 (which is at Page 98 of the compilation) in which it is specifically stated that out of 80 petitioners, 64 petitioners are rendering the services as part-timer for 6 hours in a day and it is open to them to carry on their other economic activity. The list of such employees is at Annexure- E to the petition (which is at Page-133). (The Rejoinder is filed by the petitioners wherein they have alleged that at no point of time such objection is taken that the employees

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works for 6 hours a day duties are not included in the GR dated 17 10.1988 and this was for the first time that this contention is raised in the present petition It is, therefore, submitted that indirectly the petitioners have admitted that they are part-time employees working for 6 hours a day and their contention is that they are included in GR dated 17.10.1988.

2.7 The additional Affidavit is filed by the petitioners pointing out that while filing the Special Civil Application No.954 of 2016 the petitioners in the said petition have stated that out of 414 part-time workmen which is covered by the order of the Industrial Tribunal, 218 are the part-timers but the List which is annexed as Annexure-E only covers 183 as part- timers and in the Special Civil Application No.16882 of 2017 disposed of by this Hon'ble Court (Coram N.V. Anjaria, J.) only 7 workmen are included who are part-timer in the said Judgment.

2.8 The Affidavit-in-Sur-Rejoinder is filed by the respondent-

Board at Page-146 of the compilation in which it is clarified that out of 80 petitioners, in all 64 petitioners are rendering the services as part timer and only 16 employees are rendering their services as daily-wager and their names appeared on nominal muster-roll. It is also stated that 64 petitioners being part-timer are not entitled to the relief flowing from GR dated 17.10.1988. It is further stated that 64 part timers were initially paid fixed remuneration of Rs.1350/- per month Further, later on the Government issued DR dated 1.1.2016 of Finance Department resolving that part-timer rendering the services of 4 hours in a day be paid Rs.110/- per day and rest be paid Rs.220/- per day. Therefore, all 64 employees are being paid Rs.220/- + special allowance per day aggregating to Rs.260/- per day.

2.9 It is further stated that the Government of Gujarat, through its Finance Department, has issued Resolution dated 16.7.2019 resolving that the part-timer rendering the services. for more than 4 hours per day be paid Rs.14,800/- per month for Class-IV employees. The Board has also forwarded the proposal to the State Government on 23.8.2019 qua 279 part time employees to make payment of Rs.14,800/- per month with effect from 1.1.2019 and the said proposal is pending with the State Government. The respondents have also annexed the communication between the State Government and the Board (Annexure-E).

2.10 It is, therefore, submitted that the part-time employees were differently treated and differently being paid and full time

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employees have been paid regularly and the part-time employees are not appointed on any sanctioned post and, therefore, they cannot claim any right for regularization in service. The GR dated 17 10.1988 is one time measure for regularizing the services of full time daily wagers. It is also mentioned in the said Circular that after the date fixed, namely, 1.10.1988, if any person is employed as temporary full time worker, the responsibility will not be of the State Government or the Department concerned, but the responsibility will be of the officer concerned. It is, therefore, submitted that the benefit of GR cannot be extended to the part-time daily wagers who were not appointed on any sanctioned post.

2.11 It is further stated that the Judgment rendered in Special Civil Application No.16882 of 2016 is based upon the fact that all the petitioners are full-time daily-wager and 7 petitioners who are part-timer whose names were included as the petitioners in Special Civil Application No.16882 of 2016, they have been given the benefit of giving undertaking that this is subject to the out-come of Special Civil Application No.954 of 2016, filed by the Board and pursuant thereto the said 7 petitioners (beneficiaries) have submitted their undertaking.

2.12 It is submitted that the petitioners cannot take the plea that since 7 persons/petitioners who are part-timer were given benefit as per the Judgment of this Hon'ble Court in Special Civil Application No. 16882 of 2016 the same should be extended to all the part-timers as the same has been in pursuance of the direction of this Hon'ble Court with undertaking that if the Hon'ble Court decides finally Special Civil Application No.954 of 2016 against the said workmen then they should refund the amount.

2.13 Inspite of the fact that Special Civil Application is filed by the Board which is pending for hearing the petitioners have filed the present Special Civil Application No. 12000 of 2020 which has resulted into multiplication of the litigation and created confusing situation. It is also submitted that against the Judgment and order dated 21.10.2017 passed in Special Civil Application No.16882 of 2017 and other allied matters, the respondent - Board has preferred Letters Patent Appeal before the Division Bench of this Hon'ble Court which is pending for hearing and till then the petitioners of this petition cannot claim the relief of the Judgment of Special Civil Application (No.16882 of 2016.

2.14 The reliance is also placed on the Judgment of the Division

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Bench of this Hon'ble Court in LPA No.82 of 2020 in Special Civil Application No. 16470 of 2018 (Coram: Hon'ble the Chief Justice and Hon'ble Mr. Justice A.J.Shastri) and the Division Bench of this Hon'ble Court has held that there is serious error committed by the learned Single Judge by applying the subsequent resolution of the Government without being adopted by the Board which is not permitted. It is further held that the Board is free to have its own policy and there is no automatic application of other subsequent resolution of the State Government unless it is specifically applied by mandate and the Board is free to take its own decision in respect of particular pay scale. It is also held that there cannot be any negative equality on the ground that other workers have been given such benefit who were not entitled to. The said Judgment is annexed with the said Affidavit (which is at Page No.225 of the compilation). The relevant portion is at Page Nos.242 to 245 of the compilation.

2.15 It is also submitted that in the case of TALESHKUMAR MAGANBHAI PATEL v/s AMC, this Hon'ble Court (Coram : Hon'ble Ms. Justice Sonia Gokani), in Special Civil Application No.14721 of 2014, decided on 23.6.2015 relied upon the Judgment in the case of UMA DEVI, made observation in Para 17 of the Judgment that there are 3 essentials for regularisation as one time major as an exception carved out in Para-53 of the decision in the case of UMA DEVI, viz. the employee should have worked for 10 years or more; that they have so worked in below sanctioned post without the benefit of interim order from the Court or the Tribunal, and they should have possessed required qualification subject these 3 requirements being satisfied even if the to appointment process did not involve upon competitive selection, the appointment would be treated irregular and not illegal and thereby qualified for regularization. Several Judgments are referred to in the said decision of this Hon'ble Court and ultimately after discussion, this Hon'ble Court has held that the petitioners of that petition working in the Corporation as Sweeper since the Corporation has already taken one measure of regularizing the services of those who were then, no direction for regularization is permissible under law. It is further held that the petitioners have continued in service for many years as part-time daily wagers who otherwise are found not to be entitled for completion of full time 5 years of daily-wager they cannot be regularized. The respondents have already annexed the entire Judgment of this Hon'ble Court and the respondents crave leave to refer to and rely upon the same at the time of hearing of arguments.

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3. On these grounds and others the respondents pray that the present petition requires to be dismissed as to whether there are 67 workers working for 8 hours per day cannot be decided in this petition.

4. The respondents seeks to rely upon the following Judgments:

i. (2010) 14 SCC 448 - Para-8, 10, 14, 15, 28 and 20: ii. (2017) 4 SCCF 113-Para-4,6,8,12,14,15,17,18 & 19; iii. (2014) 4 SCC 769 - Para-2, 7, 8 & 9;

iv. (2011) 2 SCC 429 - Para-11, 12, 20, 21 and 22:

In the facts and circumstances of the present case as also the grounds mentioned herein above, the respondents request this Hon'ble Court not to entertain the present petition filed by the petition and no relief as prayed for may be granted.

14. In addition to the aforesaid written submission, since learned advocate Mr. Yatin Oza has submitted written submission in rejoinder, by asserting that only two arguments have been made by learned senior advocate Mr. Desai and as such, with a view to clarify, written submission in reply to the rejoinder has also been brought to the notice of this Court by tendering the same on record, the Court would like to reproduce the same hereunder:-

WRITTEN SUBMISSION IN REPLY TO THE REJOINDER

1. It is not correct to state that I have argued only 2 (two) points as mentioned in the first Page of the Rejoinder by the petitioners. My contentions are as under:

(i) That the petitioners cannot be regularized since they are (part-timers.

(ii) The Part-Timers are treated differently by the respondents and different payment is being made as stated in my earlier written submissions.

(iii) The petitioners are part-timers and not appointed on any sanctioned post and, therefore, they cannot claim any right

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for regularization in service;

(iv) As per the Circular dated 17.10.1988 of the State Government it is mentioned that no person, appointed after 1.10.1988, even as full timer can be regularized;

(v) The argument is that the Finance Department of the State Government has issued Resolution dated 16.7.2019 resolving that the part-timers rendering the service for more than 4 hours per day be paid Rs.14,800/- per month and the respondent Board has already communicated to the State Government by sending the proposal which is at Annexure-E to the Reply;

(vi) That the part-timers are not entitled to the benefit of 7-10 18, more particularly, they are being paid fixed remuneration of Rs.1350/- pm and thereafter it increased to Rs.220/- per day.

Therefore, it is not correct to state that I have argued only 2 points before the Hon'ble Court.

All these arguments were never answered in the earlier judgment.

2. I reiterate that the Judgment annexed at Annexure-L to my Affidavit in LPA No.82 of 2020 is squarely covered the point in issue as well as the Judgment annexed with the Affidavit of Special Civil Application No.14212 of 2014 is also squarely covered wherein it is also mentioned that no part- timer is entitled to the benefit of regularization even as per Sec. 2-P of the Industrial Disputes Act.

3. It is submitted that remaining Judgments which are cited by the respondents are all applicable in the facts of the present case. These are also applicable on the ground that the work carried out by the petitioner which is placed on record from Page Nos 335 to 342 makes it clear that the work is temporary in nature and ad-hoc work and there is no permanency of the said work and the petitioners herein are working for the said work as part-timers and on that ground also they cannot be regularized.

4. Now the petitioners have invited the attention of the Hon'ble Court for certain judgments which are as under:

A. The first Judgment is (2009)1 SCC 469. The said Judgment is not applicable in the facts of the present case as the same is in respect of the excise. The reliance placed at

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Para - 5 of the Judgment is in respect of the cases under the Customs and Excise Act and, therefore, the said Judgment will not be applicable in the facts of the present case.

B. The another Judgment which is relied upon by the petitioner is (2009) 8 SCC 431. In this Judgment when the part-timers were told that they are not covered by the Government Order dated 22.4.1994, they approached the High Court and pursuant to the interim direction issued by the High Court, at their instance, another Government order issued by the State Government for regularization of part-timers employees. The fact of the present case and the fact of the case of (2009) 8 SCC 431 is entirely different. Here, in the present case, they had not approached this Hon'ble Court that part-timers are covered and special order should be issued by the State Government for deciding the question about the part-timers. In this case, on the basis of 17-10-18 the part-timers are not included. Therefore, the decision reported in (2009) 8 SCC 431 is not applicable to the facts of the present case.

C. The next Judgment is reported at (2008) 10 SCC 698. In this case the facts are that the petitioner of that petition was orally told that his services are not required from 15.3.1989. Thereupon, he sought intervention of appropriate Government praying for his reinstatement but conciliation failed and the matter was referred to the Industrial Tribunal and the Industrial Tribunal held that he is not workman and he is only part-timer and, therefore, the Reference was rejected. The said order passed by the Tribunal was challenged before the Madras High Court. The learned Judge of the Madras High Court held that since the services has been wrongly terminated ignoring the procedure for retrenchment envisaged under Section 25(F) of the I.D. Act, the retrenchment itself is bad in law. The High Court has relied upon Sections 2(S) and 25B to hold that these definitions were not restricted in applicability to [only full time employees and, therefore, before retrenching any workman even part-timer the procedure as envisaged in Section 25F should be followed. The case on the basis of Sections 25F, 25B and 2(S) has been interpreted. In the present case, Section 25B is referred to in respect of length of service of daily skilled worker for fixing the pay scale which is clear from Para-2 & 3 of the said Resolution dated 17.10.1988 which does not mention that the part-timers should also be regularized since they are covered under Section 25B of the I.D. Act. Therefore, the Judgments relied upon by the petitioner is not applicable in the facts of the present case.

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D. The next Judgment which was relied upon by the petitioner was (1983) 3 SCC 719. The said Judgment is pertaining to the U.P. Imposition of Union and Land Holding Act, 1960. The reliance was placed at Para-5 & 6 by the petitioner, but the same will not be applicable to the facts of the present case. The question is of Article 31A in the said Judgment and there is nothing to show that the Judgment which is already rendered by this Hon'ble Court is in respect of the part-timers also.

E. Another judgment relied upon by the petitioner was - (1990) 3 SCC 223 - The said matter was pertaining to the Essential Commodities Act. It is pertaining to Sugar Mill Co-Operating in the State of U.P. The question was for determining of the price for the sugar. The petitioners in this petition have challenged the order issued by the U.P. State Government as ultra-virus. The reliance is placed at Para 32, 33 & 34. The observation made in the said Judgment is in respect of the arguments made by the learned Attorney General that the said order is legislative in character. In this context the observations are made by the Hon'ble Supreme Court which is not applicable in the facts of the present case.

5. In the present case, the question is whether the part-timers are included for regularisation as per Resolution dated 17.10.1988 or not. Here, nobody has challenged the said Resolution dated 17.10.1988. The question is of interpretation and, therefore, reliance placed in the Judgment reported in 1990 SCC is totally not applicable in the facts of the present case.

6. On the aforesaid grounds and as per my written submissions made earlier the present petition requires to be dismissed with cost.

15. By referring to few further decisions, one additional decision has also been brought to the notice of this Court in the case of Union Of India & Ors vs A.S.Pillai & Ors., reported in (2010)13 SCC 448 and by referring to the same, Mr. Desai has requested the Court to dismiss the petition. But, in any case, alternatively, Mr. Desai has submitted that since the main petition, being Special Civil Application No.954 of 2016, is very much awaiting final disposal, this petition be heard along with

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the same so as to arrive at a harmonious conclusion on the core issue involved in the petition.

16. Learned senior advocate Mr. Desai has further submitted that Letters Patent Appeal against the decision delivered by the Coordinate Bench on which much emphasis is placed by learned advocate Mr. Oza, is also pending and therefore, so long as the issue is seized by the Division Bench of this Court, in peculiar background of facts, without considering the aforesaid circumstance, no decision be taken in the present proceedings. Either the petition deserves to be dismissed or if it is desirable, same be heard along with main Special Civil Application No.954 of 2016 and has summed up his submission. No other submissions have been made by either side.

17. Having heard learned advocates appearing for the respective sides and having gone through the peculiar background of facts, following few circumstances are not possible to be unnoticed by the Court while dealing with the present petition:-

(1) It is a settled position of law that if identical point is already seized in the proceedings, Court should avoid creation of anomalous situation and possibility of two contradictory judgments to be rendered in the same issue in controversy and as such, keeping the observations made in the case of Bir Bajrang Kumar Vs. State of Bihar and others reported in AIR 1987 SC 1345, the Court has taken note that Special Civil Application No.954 of 2016 is very much pending, in which the Hon'ble Court has passed following order on 18.4.2016:-

"1. Pursuant to the order of this Court dated 24.02.2016,

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the affidavit in reply dated 23.03.2016 is filed by respondent No.1.

2. Heard learned advocates.

3. Rule returnable on 13.06.2016.

4. It is ordered that during the pendency of this petition, the impugned award passed by the Industrial Tribunal, Nadiad in Reference (I.T.) No.17 of 2005 dated 24.04.2015 shall remain stayed."

(2) From the status report, it is quite clear that the said petition is already now on the Board for final hearing and last listing date was 26.4.2021. The said petition appears to have been entertained after hearing both the sides and undisputely, the present petitioners are very much members of the Labour Association who is a party to the aforesaid main petition. Since the very same award dated 24.4.2015 is the subject matter of adjudication in the said petition, this Court may not un-notice the pendency of the said petition right from 18.1.2016 and the record indicates that present petition has been filed only on 28.9.2020.

(3) A further fact is also noticed by the Court that much emphasis has been made on the decision delivered by the Coordinate Bench of this Court in Special Civil Application No.16882 of 2016, which is also the subject matter of appeal proceedings in the form of Letters Patent Appeal No.413 of 2018, and the same is also stated to be pending.

(4) It further appears that large number of Letters Patent Appeals are pending, including the aforesaid Letters Patent Appeal, and vide order dated 10.12.2019, after hearing at length, the Division Bench of this Court has reserved the order and as

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such, the issue entangled in the present petition is the subject matter of the aforesaid proceedings before the Division Bench of this Court as well.

(5) It appears from the written submission that the judgment which has been heavily relied upon by learned advocate for the petitioners in which all the petitioners of the said petition are full-time daily-rated employees and only 7 petitioners whose names have been included, who are part-time employees, have been given the benefits by giving undertaking to the effect that said benefit is subject to outcome of Special Civil Application No.954 of 2016 and as such, on the basis of such undertaking only by 7 petitioners of the said petition, present petitioners 80 in numbers have come forward to secure the benefit of the said decision which is the subject matter of Letters Patent Appeal No.413 of 2018 which is heard and awaiting decision, and as such, this Court with a view to avoid multiplicity of proceedings, is inclined to tag this petition with main Special Civil Application No.954 of 2016, which is very much on the board for final disposal in this peculiar background of fact instead of separately extending the benefits. Since the Court is of the opinion that present petition is to be heard along with the aforesaid main Special Civil Application, the Court has refrained itself from expressing any opinion on merit of any of the contentions. Submissions raised by both the sides.

(6) Whether part-time employees are entitled to the said benefit as that of other daily rated employees in view of the Government Resolution dated 17.10.1988 is the subject matter of scrutiny, yet to be adjudicated upon, and since the decision of the Coordinate Bench has become the subject matter of Letters

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Patent Appeal, as indicated above, views having not attained finality, the Court would like to tag this petition with the main petition filed by the respondent Board challenging the very same award.

18. Accordingly, in the facts and circumstances of the case, without opining anything on merit and without expressing any opinion on any of the rival contentions raised by the respective parties, the Court is of the opinion that it is desirable to place this petition with main Special Civil Application No.954 of 2016, which is very much pending for final hearing and it would be open for both the sides to raise all permissible contentions as have been raised in the present case on hand.

19. Accordingly, office is directed to place the present petition for hearing with Special Civil Application No.954 of 2016.

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR