Gujarat High Court
Theresia J Parmar vs Sanjay Prasad on 10 March, 2022
Bench: Biren Vaishnav
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17623 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1652 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 1706 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 2914 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3372 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3373 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 5832 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 7001 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6380 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6484 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6459 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 7060 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 8438 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10522 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 12026 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 13266 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11448 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13279 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 13279 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13280 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 13280 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 12840 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13097 of 2019
Page 1 of 55
Downloaded on : Fri Mar 11 00:12:14 IST 2022
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
With
R/SPECIAL CIVIL APPLICATION NO. 13729 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13711 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18637 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 18210 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18699 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17624 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17626 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17627 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17628 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17630 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 18693 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 18695 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 18694 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20158 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20965 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
THERESIA J PARMAR
Versus
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
SANJAY PRASAD
================================================================
Appearance:
RONAK D CHAUHAN(7709) for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 10/03/2022
1. Rule returnable forthwith. Mr. D.G. Chauhan, learned
counsel waives service of notice of Rule for the
respondent - university as well as Ms. Nidhi Vyas, learned
Assistant Government Pleader waives service of notice of
Rule for the respondent - State.
2. With the consent of the learned advocates appearing for
the respective parties, the matters were taken up for final
hearing on 22.2.2022.
3. In all these petitions, under Article 226 of the
Constitution of India, the petitioners seek the benefit
of regularization of their services with the respondent
university in compliance of the the decision of the
Supreme Court in the case of Gujarat Agricultural
University v. Rathod Labhu Bechar and others
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
reported in 2001(3) SCC 574.
4. For and on behalf of the petitioners, learned counsels
Mr. Paresh J. Mehta, Ms. Sangeeta Pahwa and Mr.
Gunvant B. Shah have made their arguments.
5. Mr. D.G. Chauhan, learned counsel appeared for the
respondent No.2 - University while Ms. Nidhi Vyas,
learned AGP appeared for respondent No.1 - State.
6. Briefly stated, the facts in all these petitions are that
the petitioners initially had been engaged as Daily
Wagers on an ad hoc basis with the respondent
university. It is their case that pursuant to a decision
of the Hon'ble Supreme Court in the case of Rathod
Labhu Bechar (Supra), the petitioners were given
the benefit of Clause 2 of the Scheme so framed in
accordance with the directions of the Supreme Court,
whereas, in full compliance of the decision, the
services of the petitioners should have been
regularized on completion of ten years of service from
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
the date of their joining in their respective cadres.
7. Briefly again, the stand of the respondent i.e.
university and the State is that pursuant to the
decision in the case of Rathod Labhu Bechar
(Supra), the State Government had taken a decision
and sanctioned 890 posts on which such daily wagers
were regularized. Thereafter, the posts were
abolished. The petitioners were therefore not in a
position to be regularized and, therefore, were granted
the benefit of fixed pay under Clause 2 of the
regularization scheme with effect from 1.1.2001.
8. Mr. P.J. Mehta, learned counsel for the petitioners
would submit that the university is adopting a policy of
pick and choose. He would submit that it was not the
case that after the decision in the case of State of
Karnataka and others v. Umadevi reported in
2006(4) SCC, 1 the scheme of regularization came to
an end. The petitioners ought to have been regularized
in service and, therefore, he would submit that the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
action of the university in not regularizing the services
of the petitioners in the scheme framed by the
Supreme Court was bad. Mr. Mehta would submit that
in the decision of Rathod Labhu Bechar (Supra), it
was categorically observed in paragraph Nos.30, 32
and 33 that all eligible daily wagers who had
completed more than ten years with 240 days of
presence in each year should be regularized. Mr.
Mehta, in course of his submissions relied upon the
decision in the case of N.K. Tiwari v. State of
Jharkhand reported in AIR 2018 SCC, 3589. He
would submit that denial of benefits of regularization
tantamounts to exploitation of employees. He further
relied on Bharati Seva Samaj Trust v. Yogesh
Ambalal Patel reported in 2012(9) SCC 310. In
support of his submission, reliance was also placed on
the decision in the case of State of Karnataka v.
M.L. Keshari reported in 2010(9) SCC 247. He
would submit that the issue also is covered by a
decision of the Division Bench in Letters Patent Appeal
No.1223 of 2018 dated 27.9.2018 in the case of
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Vice Chancellor, Anand Agriculture University,
Anand v. Pujabhai Gagabhai Boriya and others.
8.1. Mr. Mehta would submit that there is enough
material on record to show that the action of the
respondent university reeks / smacks of arbitrariness
and violates article 14 and 21 of the Constitution of
India.
8.2. Mr. Mehta would submit that the stand of the
university that the appointments of the petitioners
were not in accordance with law or were illegal
appointments is bad. Together with an additional
affidavit and rejoinder to the petitions, Mr. Mehta has
placed a decision of the State dated 13.8.2002 and
submitted that the stand of the State of creating 890
posts and, then, submitting that the policy of
abolishing them due to retirement and death and not
continuing the benefit on such posts on they falling
vacant is in violation of the order of the Apex Court.
He would submit that an advertisement for
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
recruitment of Junior Clerks issued on 22.12.2018
itself proves that posts with the university were
vacant. He would produce orders of regularization of
several contemporaries and submit that the policy of
pick and choose cannot be adopted.
8.3. Mr. Mehta would also show that the action of
abolishing post of the university and then of the State
Government holding that the case of the petitioners
did not deserve regularization also violated the
constitutional guarantee.
8.4. Mr. Mehta would rely on the decision dated
26.7.2021 passed in Civil Appeal No.4443 of 2021 of
the Hon'ble Supreme Court in the case of Vice
Chancellor, Anand Agriculture University v.
Kanubhai Nanubhai Vagehla and another ,
wherein, the stand which the present respondents
have taken, has been deprecated by the Supreme
Court itself. He would demonstrate by placing orders
of persons junior to the petitioners of having
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
regularized namely; one Mr. Jayantibhai Parmar. He
would, therefore, submit that the case of the
petitioners deserves to be considered for
regularization. Reliance is also placed on a decision of
this Court in Special Civil Application No.276 of 2019
in the case of the petitioner of Special Civil Application
No.17623 of 2018 wherein this Court had in paras 23
and 24 discredited the submissions made by the
learned counsel for the respondent university.
9. Ms. Sangeeta Pahwa, learned counsel for the
petitioner of Special Civil Application No.13266 of
2019 would submit that in accordance with the
decision in the case of Rathod Labhu Bechar
(Supra), the scheme for regularization categorically
provided that the Daily Wagers who could not be
regularized, shall be treated as monthly rated
employees. However, Clause 2 of the Scheme
categorically stated that he would be paid such
amount till their services are regularized in
accordance with Clause 1. She would, therefore,
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
submit that the right to regularization enured to the
petitioner from the judgment in the case of Rathod
Labhu Bechar (Supra). She would submit that para
33 of the decision clearly stated that the scheme
enures till all daily rated regular employees should be
given the benefit of regularization. In her case, she
also would produce the order which categorically
submitted that the petitioner would continue to get
the minimum of the regular scale till the order of
regularization is given in the benefit of the petitioner.
This in the submission of Mrs. Pahwa would indicate
that the stand of the respondent university that once
the posts are abolished, the scheme would terminate
as invalid.
10. Mr. Gunvant B. Shah, learned counsel in Special Civil
Application No.18637 of 2019 would also make
submissions on similar lines and submit that the
petitioners of this petition who had served for 32 years
are entitled to the benefit of the decision in the case
of Rathod Labhu Bechar (Supra). The petitioners
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
retired on 31.3.2021 despite which no retirement
benefits have been given.
11. Mr. D. G. Chauhan, learned counsel for the respondent
- Gujarat Agricultural University would take the Court
to one of the affidavits in reply filed in these petitions
and submit that the petitioners were engaged as Daily
Wagers purely on an ad hoc basis. They have been
given the benefits of Clause 2 of the Regularization
Scheme with retrospective effect in accordance with
the directions issued by the Supreme Court in the case
of Rathod Labhu Bechar (Supra).
11.1. Mr. Chauhan would further submit that
in accordance with the decision of the Hon'ble
Supreme Court, the State Government created 890
posts to absorb daily wagers working in the university.
On 13.8.2002, after regularizing the services of all 890
daily wagers, the State Government had taken a
decision to abolish all 890 posts sanctioned by the
State Government. This decision has not been
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
challenged by the petitioners. On 16.4.2013, 51
supernumerary posts were created by the State and
the remaining 51 daily wagers were given the benefit
of the Scheme. He would submit that there is gross
delay in filing Special Civil Application by the
petitioners especially the petitioner of Special Civil
Application No.17623 of 2018. Several decisions have
been relied upon by Mr. Chauhan to submit that the
petition is grossly delayed and is liable to be
dismissed only on the ground of delay. In the affidavit
in reply, he has relied on decisions which are as under:
(i) Shiba Shankar Mohapatra v. State of
Orissa reported in 2010(12) SCC 471,
(ii) State of Orissa v. Mamata Mohanty reported
in 2011(3) SCC 436,
(iii) State of Uttar Pradesh v. Arvind Kumar
Srivastava reported in 2015(1) SCC 347 and
(iv) State of Jammu and Kashmir v. R.K.
Zalpuri and others reported in 2015(15) SCC
602.
11.2. Mr. Chauhan would further submit that
the university is a body corporate, having its own
Recruitment Rules. All regular appointments are to be
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
made in accordance with the Recruitment Rules after
full compliance with Articles 14 and 16 of the
Constitution of India.
11.3. Mr. Chauhan would further submit that
no mandamus can be issued unless there is an
enforceable legal / Constitutional right / Statutory
right in favour of the petitioners. As far as Special Civil
Application No.17623 of 2018 is concerned, he would
submit that the petition is filed against one Shri
Sanjay Prasad and N. C. Patel who are not State but
private respondents. In support of the maintainability
of the petition, Mr. Chauhan would also rely on the
following decisions:
(1) Dr. Rai Shivendra Bahadur v. Governing
Body of the Nalanda College, Bihar reported in
AIR 1962 SC 1210 (Paragraph No.5 thereof)
(2) Secretary, State of Karnataka v. Umadevi
reported in 2006(4) SCC 1 (Paragraph No.52
thereof)
(3) Union of India v. Arul Mozhi Inaiarasu
reported in 2011(7) SCC 397 (Paragraph No.26
thereof)
11.4. With regard to the jurisdiction of the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
High Court in case of regularization, he would submit
that the High Court in exercise of powers under Article
226 of the Constitution of India will not issue the
directions for regularization / absorption /
permanency. Reliance is placed on paragraph No.12 of
the decision in the case of State of Rajasthan v.
Dahyalal reported in 2011 (2) SCC 429. He would
then submit that the petitioners are Daily Wagers and
did not hold any posts. Appointments are de hors the
Recruitment Rules and, therefore they have no right to
claim for regularization. As far as the decisions that
the Daily Wagers are not entitled for regularization, he
would rely on the following decisions:
(i) Secretary, State of Karanataka v.
Umadevi reported in 2006(4) SCC 1
(ii) National Fertilizer Limited reported in
2006(5) SCC 493
(iii) 2008(9) Scc 242 (Paragraph No.37 thereof)
(iv) Gujarat Agricultural University v. Labhu
Bechar reported in 2001(3) SCC 574 (Para 10
thereof)
(v) State of Rajasthan v. Dahyalal & others
reported in 2011(2) SCC 429
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
(vi) Nand Kumar v. State of Bihar reported in
2014 (5) SCC 300
(vii) Amreli Municipality v. Gujarat Pradesh
Municipal Union reported in 2004(2) GLH 692
(viii) Union of India v. Ilmo Devi reported
in 2021 SCC Online SC 899.
He would submit that there is no sanctioned vacant
post and, therefore, the petitioners cannot be
regularized.
12. Ms. Nidhi Vyas, learned Assistant Government Pleader
appearing for the State would draw the attention of
the Court to the affidavit-in-reply filed on behalf of
State and submit that as per Scheme approved by the
Apex Court, all Daily Wagers who have completed ten
years of continuous service with a minimum of 240
days were to be regularized as regular employees
w.e.f. 1.1.2000.
13. The State Government sought details from the
university. The university vide letter dated 27.6.2001
informed the State Government that out of 5100 daily
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
wagers, 877 daily wagers were eligible for
regularization. The university requested to create 877
new sanctioned posts which was subsequently revised
by the university with a request to create 890 posts.
Accordingly, the state government created 890 posts
for the aforesaid daily wagers and instead of
regularizing them in a phased manner, regularized
them at one go. A Government Resolution was passed
on 21.9.2012 forming a Committee under the
Chairmanship of the Deputy Secretary on 16.4.2013,
51 other Daily Wagers were regularized with effect
from 1.4.2002. In all therefore 941 daily wagers have
been regularized in accordance with the Scheme. The
remaining daily wagers, are given the benefit of
Clause 2 and, therefore, there is no adverse inference
that would be drawn that the State had diluted the
directions given by the Supreme Court.
14. Having considered the submissions made by the
learned advocates for the respective parties, what
needs to be seen are the decisions of the Supreme
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Court in the case of Rathod Labhu Bechar (Supra).
15. Before the Hon'ble Supreme Court, the appeals were
filed by the Agricultural University arising out of
industrial disputes referred under Section 10(1)(c) of
the Industrial Disputes Act, 1947. The reference was
whether the employees listed in the schedule who had
completed more than 240 days, were entitled to the
benefit of permanency. The employees were daily
rated employees working with the University engaged
due to exigencies of work, without considering
relevant factors about their educational qualifications,
age limits and other requirements for the purposes of
regular employment under the Recruitment Rules. The
stand of the university was that their appointments
were contrary to the Recruitment Rules, not on the
sanctioned posts, their appointments were irregular
and not in accordance with the Rules and, therefore,
they were not entitled for the benefits of
regularization.
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
16. In paragraph No.10 of the decision of Rathod Labhu
Bechar (Supra), a proposed scheme of regularization
was framed. Paragraph No.10 reads as under:
"We heard learned counsel for the parties at length
and considered the objections of the respondents
with respect to the proposed scheme for the
regularization of daily rated workers. The proposed
scheme is reproduced below:
SCHEME FOR REGULARIZATION OF DAILY
RATED LABOURS OF THE GUJARAT
AGRICULTURAL UNIVERSITY.
1. Daily-wager 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 31.12.1999, shall be
regularized as regular employees with effect from
1.1.2000 and shall be put in the time scale of pay
applicable to the corresponding lowest grade in the
University subject to the following terms and
conditions:
(a) The daily rated employees shall be eligible and
must possess the prescribed qualifications for the
post at the time of their appointment on daily rated
basis.
(b) Daily-wager employees shall be regularized in a
phased manner to the extent of available regular
sanctioned posts/vacancies on the date of
regularization and on the basis of seniority-cum-
suitability including physical fitness.
(C) The work and conduct of such employees should
have been of over all good category and satisfactory
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
and no disciplinary proceedings are pending against
them.
(d) The regularization will be against the posts/
vacancies of the relevant categories only.
2. Daily workers, whether skilled semi- skilled or
unskilled, who have completed 10 years of
continuous service with a minimum of 240 days in
each calendar year as on 31.12.1999 but could not
be regularized shall be treated as monthly rated
employees w.e.f. 1.1.2000 in the fixed pay without
allowances as per the following formula:
Prepared by University:
Daily rate Fixed pay = prescribed by 26+ Rs.500 the
Government from time to time for skilled,semi-
skilled, unskilled workers as the case may be They
would be entitled to an annual increment of Rs. 15/-,
Rs. 20/- and Rs. 25/- respectively for unskilled, semi-
skilled and skilled workers till their services are
regularized as per para-1.
3. Daily-wager whether skilled, semi-skilled or
unskilled who have not completed 10 years of
service with a minimum of 240 days in each
calendar year shall be paid daily wage at the rates
prescribed by the Government of Gujarat from time
to time for daily wager employees falling in Class III
and Class IV.
4. The seniority of the daily rates Class III and IV
employees so regularized vis-à-vis Class III and IV
employees appointed on regular basis shall be
determined w.e.f. 1.1.2000. The inter se seniority of
such daily rate Class III & IV employees shall be
determined in accordance with the date of joining
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
the post on daily rated basis. If the date of joining
the post(s), on daily rated basis by such daily rated
employees was the same, then the elder employee
shall rank senior to an employee younger in age. If
the date of joining of the directly recruited regular
employees and the date of regularized employees as
per this scheme is the same, the direct recruit shall
be senior."
17. Reading paragraph No.19 onwards of Rathod Labhu
Bechar (Supra), what is apparent is that the
Supreme Court framed the Scheme assessing the
Recruitment Rules which were placed on record. After
the decisions referred to therein in paras 28 to 32, the
Supreme Court observed as under:
"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.
29. The decision to absorb some of the employees
at one point of time or in a phased manner depends
on facts and circumstances of each case. Where very
large number of workers are required to be
absorbed, this Court accepted the formula, in the
past to absorb such employees under a Scheme in a
phased manner. This is done to work it out within its
financial means. Every liberty and entitlement is
always subject to such financial limits. But in
considering such absorption, the financial means
have to be stretched to the maximum but should not
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
be a defence with motive to disentitle the claim of
the workmen. The grant of this phased absorption
thus is in itself a mechanism under this principle.
But as we have said this mechanism is not a tool to
misuse for taking away any legitimate right of any
worker. The Court has to be cautious in exercising
its discretion. On the one hand it has to keep the
interest of the workers alive and on the other to see
that employer does not become spineless for the
lack of funds eroding the very workers interest. In
the present case admittedly in the first phase in
terms of Clause 1, one block of daily wage worker is
to be regularised for which the posts are being
created. We want to make it clear, in creating posts
Government shall see maximum posts are created to
absorb maximum such workers who have completed
ten years as on 31st December, 2000, as these
workers have more than eligible claim. Thereafter,
even reassessment for additional posts, about which
we are referring should be done in the same
perspective. In other words there may still be
number of workers who may still not be covered for
absorption under the first phase of Clause 1 due to
initial non-availability of posts though working for a
long number of years. We are saying so because
Clause 1 (d) is silent, what number of posts
Government is being created initially for the first
phase of absorption.
30. According to the State counter if absorption is
made from 1.1.1993 of all those who have completed
ten years of service as per Tribunal order, the
payment towards arrears would be to the tune of 15
crores. Since in the proposed scheme, absorption is
from 1st January, 2001, the State has already gained
much more than this arrears of more than 15 crores.
In this light and in the absence of details being
placed before us, we are leaving the extent of
creation of the posts on the State Government. We
hope and trust, the Government who is the guardian
of the people and is obliged under Article 38 of the
Constitution, to secure a social order for the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
promotions of welfare of the people, to eliminate
inequalities in status, will endeavour to give
maximum posts even at the first stage of absorption,
and do the same in the same spirit for creating
additional posts after enquiry as we are indicating
hereunder. It is necessary that the State
Government to set up an enquiry to find what
further number of additional posts are required for
regularising such other daily rated workers, and
after assessing it, to create such additional posts for
their absorption. This exercise should be done by the
State Government within a period of six months. The
submission on behalf of the respondent is that those
who are not regularised and are continuously
working for 10 or more years with minimum of 240
days in each calendar year, they should be paid
minimum pay scale as admissible to an incumbent
regularised on similar post doing similar work
instead of minimum wages as prescribed by the
Government. The dispute thus is, whether such
workers to be paid minimum daily wage as
Government prescribes as per the scheme or pay
them the minimum pay scale admissible to such
regularised worker without increment and other
benefit. This Court in one set of decisions have said
to regularise them in one block and pay them the
same minimum pay scale as admissible to a regular
employee as in; Surinder Singh and Anr. Vs.
Engineer-in-Chief, C.P.W.D. and Ors. 1986 (1) SCC
639, U.P. Income Tax Department Contingent Paid
Staff Welfare Association Vs. Union of India and Ors.
(1987) Supp. SCC 658, 1998 State of Punjab and
Ors. Vs. Devinder Singh and Ors. 1998 (9) SCC 595,
Chief Conservator of Forests and Anr. Vs. Jagannath
Maruti Kondhare and Ors. 1996 (2) SCC 293 and in
other cases to absorb in a phased manner under a
scheme which depends on the facts of each case. In
Mool Raj Upadhyaya Vs. State of H.P. and Ors
(supra), this Court approved a scheme under which
the daily wage workers whether skilled or unskilled
who have not completed 10 years of service was to
be paid daily wage at the rates prescribed by the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Government of H.P. from time to time for daily wage
employees falling under Class III and IV till they are
appointed regularly. Strong reliance is placed on
behalf of the University on this case and also,
looking to the fact that it has no impressive source
of its own, being an Agricultural University,
depending on the State fund, we hold they should be
paid minimum wages as prescribed by the
Government from time to time as proposed under
the scheme. We approve both clauses 2 and 3 on the
facts and circumstances of this case. In fact, in
seeking minimum pay scale to such daily rated
workers as admissible to a regular employee is
based on the principle of equal pay for equal work. It
is pertinent to refer, in this case the observation of
the High Court:
"... Workmen are not claiming equal pay for equal
work but they are claiming permanent status as
Class IV employees as they are working and have
gained more than sufficient experience in their
work...."
31. Ghaziabad Development Authority and Ors. Vs.
Vikram Chaudhary and Ors. 1995 (5) SCC 210, this
was a case of temporary daily wage employees
claiming parity with regular employees. It was held,
in the absence of availability of regular post for
appointment, such a claim is not sustainable.
However, it was held that they should be given
minimum wages under the statute if any, or the
prevailing wages in the locality. To the same effect is
Basudev Pati Vs. State of Orissa and Anr. 1997 (3)
SCC 632.
32. State of Haryana and Ors. vs. Jasmer Singh and
Ors.1996 (11) SCC 77, this was a case where Mali-
cum-Chowkidars/Pump Operators claimed parity in
employment based on the anvil of equal pay for
equal work who were daily wagers. It was held, they
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
are not entitled to such parity with regular
workmen. They can get only the minimum wages."
18. Reading the above observations of paragraphs No.10
and 28 to 32 of the Supreme Court of Rathod Labhu
Bechar (Supra), what the Court observed is that the
daily rated workers were working for long number of
years without any complaint. That itself is a ground for
relaxation of the eligibility condition. Clause-1(A) of
the Scheme therefore was modified to that effect. The
Supreme Court categorically observed that they want
to see that the State Government shall create
maximum posts to absorb the workers in ten years.
The defence of the State as well as the university that
scheme comes to an end on the decision of the case of
Umadevi (Supra) is misconceived. It was
categorically observed in the judgment that the
scheme shall continue till the daily wagers are
regularized. That is evident from the observations of
the decision of the Supreme Court. Paragraph No.35 of
the decision categorically submits that this exercise is
to be undertaken and they are sure as per the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Supreme Court observation no slackness would be
observed. Paragraph No.35 of the decision Labhu
Bechar (Supra) reads as under:
"35. In the present case after absorption of
employees under Clause 1, we have already
directed, the State Government what they have to do
in coordination with the appellant University to
assess and find additional regular posts required by
the university. In doing so, they shall keep in mind
the continuous work which the workers are doing
for long number of years and after fixing the number
it should further create such additional posts as
necessary and absorb them. This exercise to be
undertaken, as aforesaid, within six months. So for
this reason we would not like to disturb the
proposed scheme except to the extent we have
observed above. We are sure no slackness would be
exercised both by the appellant and the State in
completing this exercise within the said period.
Apart from what we have observed, we do not find
any infirmity in the scheme."
19. In light of these categorical findings and observations
of the Supreme Court the scheme enures. It is not
open for the State as well as Agricultural University
then to submit that after the decision of Umadevi
(Supra), the scheme was extinguished. Even in
accordance with the decision of the Supreme Court in
the case of Bhartiya Seva Samaj v. Yogesh
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Ambalal Patel (Supra) cannot be now said that the
appointments of the petitioners were not in
accordance with the Recruitment Rules.
20. Even in Letters Patent Appeal No.1223 of 2018 in the
case of Pujabhai Gagajibhai Boriyaa (Supra), the
arguments canvassed by the university were
considered, inasmuch as the same arguments which
the learned counsel for the university has advanced
during the course of hearing have been considered
extensively by the Division Bench. In paragraph
Nos.12, 13 and 14, the case of the university was that
the case of Rathod Labhu Bechar (Supra) stands
overruled in view of the decision in the case of
Umadevi (Supra) which was referred to and the
Court in paragraph Nos.14 & 18 held as under:
"(14) The contention raised by the appellant
- University that the scheme approved by
the Apex Court in the case of Gujarat
Agricultural University (supra) stands "over-
ruled" in view of the decision of the Constitution
Bench of the Apex Court in the case of Umadevi
(supra) requires strong deprecation as such
the same amounts to misreading and
misinterpretation of both the decisions. The said
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
decision also figures in the array of the
judgements which are considered by the
Constitution Bench in Umadevi (supra). After
survey all the judgements on the issue, in
Paragraph No.54 the Constitution Bench has
observed that:
"It is also clarified that those decisions which run
counter to the principle settled in this decision, or
in which directions running counter to what
we have held herein, will stand denuded of
their status as precedents."
Thus, the decision in the case of Gujarat
Agricultural University (supra) approving the
scheme of the regularization of the appellant-
University cannot be said to have been overruled by
the decision of the Apex Court in the case of
Umadevi (supra) in light of the observations made
in paragraph 54. If the justice is done by the Apex
Court by approving the scheme, and the scheme is
implemented in view of the judgement;
the same cannot be erased even if
subsequently the error of law is corrected.
Thus, the appellant cannot disown their own
scheme which was approved by the Apex Court.
(15) In the case of Umadevi (Supra) in Paragraph
No.53, it is observed that irregularly recruited
employees - Daily Rated Employees, who have
worked for more than 10 years in service are
to be regularized as a onetime measure.
Subsequently, in a recent decision in the case of
Narendra Kumar Tiwari vs. State of Jharkhand,
AIR 2018 S.C. 3589, the Apex Court has observed
thus:
"The decision in the case of Umadevi (supra)
was intended to put a full stop to the somewhat
pernicious practice of irregularly or illegally
appointing daily wage workers and continuing
with them indefinitely. In fact, in paragraph 49 of
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
the Report, it was pointed out that the rule
of law requires appointments to be made in
a constitutional manner and the State cannot
be permitted to perpetuate an irregularity in the
matter of public employment which would
adversely affect those who could be employed
in terms of the constitutional scheme. It is for this
reason that the concept of a onetime
measure and a cutoff date was introduced in the
hope and expectation that the State would cease
and desist from making irregular or illegal
appointments and instead make appointments
on a regular basis."
The concept of a onetime measure was
further explained by the Apex Court in the case
reported in State of Karnataka and Ors. Vs. M.L.
Kesari, (2010) 9 S.C.C. 247 in Paragraph
Nos.9, 10 and 11 which read as follows:
"9. The term "onetime measure" has to be
understood in its proper perspective. This
would normally mean that after the
decision in Umadevi (3), each department or
each instrumentality should undertake a one-
time exercise and prepare a list of all
casual, dailywage or ad hoc employees who
have been working for more than ten
years without the intervention of courts and
tribunals and subject them to a process
verification as to whether they are
working against vacant posts and possess
the requisite qualification for the post
and if so, regularise their services.
10. At the end of six months from the date of
decision in Umadevi (3), cases of several
dailywage/ad hoc/casual employees were still
pending before courts. Consequently,
several departments and instrumentalities
did not commence the onetime
regularisation process. On the other hand,
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
some government departments or
instrumentalities undertook the onetime
exercise excluding several employees from
consideration either on the ground that
their cases were pending in courts or due to
sheer oversight. In such circumstances, the
employees who were entitled to be
considered in terms of para 53 of the
decision in Umadevi (3), will not lose
their right to be considered for
regularisation, merely because the
onetime exercise was completed without
considering their cases, or because the
six month period mentioned in para 53 of
Umadevi (3) has expired. The onetime
exercise should consider all dailywage/ad
hoc/casual employees who had put in 10
years of continuous service as on 104-
2006 without availing the protection of
any interim orders of courts or tribunals. If
any employer had held the onetime
exercise in terms of para 53 of
Umadevi (3), but did not consider the
cases of some employees who were
entitled to the benefit of para 53 of
Umadevi (3), the employer concerned
should consider their cases also, as a
continuation of the one time exercise. The one-
time exercise will be concluded only when all
the employees who are entitled to be
considered in terms of para 53 of Umadevi
(3), are so considered.
11. The object behind the said direction
in para 53 of Umadevi (3) is twofold.
First is to ensure that those who have put in
more than ten years of continuous
service without the protection of any
interim orders of courts or tribunals,
before the date of decision in Umadevi (3) was
rendered, are considered for regularisation
in view of their long service. Second is
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
to ensure that the departments/
instrumentalities do not perpetuate the
practice of employing persons on dailywage/
ad hoc/casual basis for long periods and
then periodically regularise them on the
ground that they have served for more
than ten years, thereby defeating the
constitutional or statutory provisions
relating to recruitment and appointment.
The true effect of the direction is that
all persons who have worked for more than ten
years as on 1042006 decision in
Umadevi (3)] without the protection of
any interim order of any court or
tribunal, in vacant posts, possessing the
requisite qualification, are entitled to be
considered for regularisation. The fact that
the employer has not undertaken such
exercise of regularisation within six
months of the decision in Umadevi (3)
or that such exercise was undertaken only in
regard to a limited few, will not
disentitle such employees, the right to be
considered for regularisation in terms of
the above directions in Umadevi (3) as a
onetime measure."
The purpose and intent of the decision
in the case of Umadevi (supra) was therefore,
twofold, namely, firstly, to prevent
irregular or illegal appointment in future
and secondly, to confer a benefit on those who
had been irregularly appointed in the
past. The fact that the State of Jharkhand
continued with the irregular appointment for
almost a decade after the decision in
the case of Umadevi (supra) is a clear
indication that it believes that it was all right
to continue with irregular appointment,
and whenever required, terminate the
services of the irregularly appointed
employees on the ground that they were
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
irregularly appointed. This is nothing but a
form of exploitation of the employees by not
giving them the benefits of regularisation
and by placing the sword of Damocles
over their head. This is precisely what in the
cases of Umadevi (supra) and M.L. Kesari
(supra) sought to avoid.
(16) Thus, the appellant University was
under an obligation to regularize all the
employees who had completed 10 years of
service as on 10.04.2006 as a onetime
measure, as directed by the Constitution
Bench in the case of Umadevi (supra).
Indubitably, the respondent employees have
completed more than 10 years of service
since they were all appointed between the
year 1981 and 1984.
(17) As noted hereinabove, by the order
dated 16.07.2001, the respondents - employees are
already given the benefits of the said scheme
by placing them in a monthly wage and it was
observed that as and when, on the
availability of the posts, they shall be granted
the benefits of regularization and regular pay-
scale. Thus, the appellant having acted on
the scheme which was approved by the Apex
Court cannot subsequently take a volteface by
saying that the said scheme is overruled in
the case of Umadevi (supra). The appellant-
University cannot adopt discriminatory approach
by not conferring the benefits to some of
the employees / daily wagers like the
respondents - original petitioners by denying
the benefits of permanency/regularization to
them when the similarly situated employees
have already been given the benefits of
regularization and regular payscale after
completion of 10 years of continuous service.
Subsequently also, pursuant to the order
dated 17.10.2011 passed by this court in the writ
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
petitions as narrated hereinabove, similarly
situated employees to the respondents -
employees have also been made permanent in view
of the scheme approved by the Apex Court in
the case of Gujarat Agricultural University
(Supra). Learned advocate Mr. Chauhan is
unable to controvert the aforesaid order dated
17.10.2011.
(18) Thus, in the considered opinion of this
court, the stand taken by the appellant in the
appeals is replete with impropriety and is strictly
deprecated. The appellant University was
expected to implement the scheme in its true
letter and spirit, once it was approved by the
Apex Court in the case of Gujarat Agricultural
University(supra)."
The Letters Patent Appeal No.1223 of 2018 and allied
matters were dismissed on 27.9.2018 with the
direction to the appellant university to grant the
benefits of regularization from the date they have
completed ten years of service.
21. Subsequently, even in the case of Kanubhai
Nanubhai Vaghela (Supra), the precise submissions
of the Agricultural University were considered in
context of the fact that it was brought to the notice of
the Court that 5100 daily rated wagers were with the
university; that 890 posts were created on which they
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
were regularized. The Supreme Court, after hearing
the counsel for the university as is evident from the
judgment in paras 11, 12 and 13 held that eligible
daily wagers who were eagerly waiting ought to be
regularized because it was the right of the daily
wagers to be regularized. Paragraph Nos.11 to 13 of
such decision are reproduced hereunder:
"11. We have heard Mr. P.S. Patwalia, learned
senior counsel for the university and Mr. Nachiketa
Joshi, learned counsel for the respondents. The main
contention of the university is that after the
judgment of this Court in Secretary, State of
Karnataka and Ors. vs. Umadevi and Ors. 2, the
respondents are not entitled for regularization as
there are no sanctioned posts available. Another
submission made on behalf of the appellant is that
the judgment of this Court dated 18.01.2001 in
Gujarat Agricultural University (supra) does not
survive after the judgment of this Court in Uma
Devi. It is no doubt true that in Umadevi's case, it
has been held that regularization as a one-time
measure can 2 (2006) 4 SCC 1 only be in respect of
those who were irregularly appointed and have
worked for 10 years or more in duly sanctioned
posts. However, in the instant case the respondents
are covered by the judgment of this Court in Gujarat
Agricultural University (supra). This Court approved
the proposed scheme of the State of Gujarat and
directed regularization of all those daily wagers who
were eligible in accordance with the scheme phase-
wise. The right to be regularized in accordance with
the scheme continues till all the eligible daily-
wagers are absorbed. Creation of additional posts
for absorption was staggered by this Court
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
permitting the appellant and the State of Gujarat to
implement the scheme phase-wise. We are not
impressed with the submissions made on behalf of
the university that the judgment of this Court in
Umadevi's case overruled the judgment in Gujarat
Agricultural University (supra). The judgment of this
Court in Gujarat Agricultural University (supra)
inter partes has become final and is binding on the
university. Even according to Para 54 of Uma Devi's
case, any judgment which is contrary to the
principles settled in Umadevi shall be denuded of
status as precedent. This observation at Para 54 in
Umadevi's case does not absolve the university of its
duty to comply with the directions of this Court in
Gujarat Agricultural University (supra).
12. It was brought to the notice of this Court by
Mr. P.S. Patwalia, learned senior counsel for the
university that 890 posts were created coterminous
with the services of those daily wagers who have
been absorbed in those posts. He made a valiant
effort to impress upon this Court that no further
posts have been created and therefore, the
remaining daily wagers cannot claim regularization
of their services. Creation of 890 posts is by way of
implementation of the directions given by this Court
in Gujarat Agricultural University (supra) at the first
stage. There is no ambiguity in the directions given
by this Court in Gujarat Agricultural University
(supra) that the obligation on the part of the
university to implement the scheme by regularizing
all the eligible daily wagers continued.
13. By an order dated 17.10.2011, persons similarly
situated to the respondents were absorbed by being
given the benefit of regularization. The Division
Bench of the High Court has taken note of the
discriminatory approach of the university in
conferring the benefit of regularization to some and
not to all those daily wagers who are eligible. There
is no error in the Judgment of the High Court which
warrants interference by this Court. Eligible daily
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
wagers in accordance with the scheme have been
eagerly awaiting regularization as per the judgment
of this Court in Gujarat Agricultural University's
case (supra). The right of the respondents for
regularization has been correctly recognized by the
High Court."
22. Even, this Court speaking through a Coordinate Bench
in Special Civil Application No.276 of 2019
unequivocally observed that after a definite
pronouncement with regard to the status of Rathod
Labhu Bechar (Supra), the argument of the
university that the interpretation is made ineffective
after the decision in the case of Umadevi (Supra)
cannot be upheld. The Court observed as under after
extensively considering the Resolutions of the State
Government. Relevant Paragraph Nos.9 to 26 of the
decision dated 29.10.2021 of 276 of 2019 are
reproduced hereunder:
"9. It is submitted that in fact, after the
pronouncement in the case of Umadevi, the
respondent-University has further extended the
period during which the benefit ought to be given
to the workmen including the petitioners. It is
also submitted that the respondent-University has
communicated to the Joint Secretary - Ministry of
Agriculture and Cooperation for compliance of the
judgment of Hon'ble High Court in the matter of
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
SCA No.7794/2010, 6926/2010 and 27205/2007,
whereby this Court has directed the University to
release the permanent service benefits to be
extended to all these daily wagers on completion
of ten years services in the said establishment
and the same judgment has been confirmed by
Division Bench of this Court in LPA No.1223/2018,
1225/2018 and 1226/2018 on 27.09.2018 by
rejecting the university LPA with direction in
Paragraph No.20 for compliance forthwith of the
releasing benefit of permanent services to the
respondent daily wagers which was approached
by daily wagers for non-compliance through MCA
No.885/2018 with 965/2018 and 966/2018 for
contempt proceedings against the University
which is still pending, the aforesaid subject
sanctioned has been asked by the University from
the Secretarial, though the respondent no.1 Vice
Chancellor of University is empowered with
sanction of board under Section 25 and 26 of GAU
Act, 1969 and its statues in all recruitment and
financial policy of their University. Thus, in light
of case of M.T.Parekh Vs. State of Gujarat as well
as full courts judgment of Gujarat High Court and
Supreme Court Judgment as well as circular
thereon about similarly situated employees who
are benefitd by the precedent decided or derived
by the High Court or Supreme Court should not
approached again individually to the Courts for
compliance to prevent wastage of time and
multiplicity of proceedings and public money.
Thus, the petitioner no.1, who has completed
more than 35 years as daily rated clerk has not
been given benefits of Class-III time pay scale in
violation of Catena of Judgments of Apex Court
ignoring a fortiori claim of the petitioner no.1,
thus respondents have committed serious
administrative blunder as well as ex facie
actionable wrong in compliance and release the
benefits of permanent Class-III time pay scale to
petitioner nos.1 to 4 in light of Labhu Bechar and
Umadevi (supra) constantly continuously in
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
fragrant violation throughout two decades which
is untolerable, mockery of justice and absolute
unpardonable malice in law exercise of powers
vested by respondents in the matter of
compliance comprehensive regularization scheme
- 2001. Thus, the said approved Supreme Court
approved daily wagers regularization scheme,
2001 become infructuous since beginning by
malice in law exercise applied by the respondents
viz. not disclosing the list of time pay scale
beneficiary, hence condition of clause:3 is never
applied for eligible daily wagers under the guise
of no vacant post complete and fragrant violation
of Apex Court direction for creating maximum
permanent posts to absorb entire mass of
deserving daily wagers for time pay scale benefit.
Hence, the petitioner nos.1 to 4 have no
alternative except preferring writ petition being
Special Civil Application No.17623 of 2018 to
17630 of 2018 for compliance of Umadevi (2006)
(4) SCC - 1 along with LPA No.1223/2018 dated
27.09.2018 for regularizing their services which is
fixed for hearing on 24.01.2018.
10. It is submitted that the respondents have
jointly started recruiting new persons by resorting
recruitment process, whereas the workmen, who
have being in the establishment like the
petitioners, their cases are not being considered.
It is lastly submitted that it is on account of non-
compliance of the directions in case of Labhu
Bechar (supra) that injustice is meted out to the
petitioners and though the petitioners are eligible
and entitled to all respects, the petitioners have
not been absorbed as regularly appointed
candidates in the establishment of the
respondent-University.
11. As against this, learned advocate for the
respondentUniversity states that the university is
in complete compliance of the directions issued
by the Apex Court. The petitioners were engaged
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
as Daily Wagers skilled workers on purely ad-hoc
and temporary basis, but there was no
recruitment process, which was followed, and
therefore, their appointments can be termed to
be illegal appointments. At the relevant, there
were no sanctioned vacant post. However, in view
of clause-II of the Regularization Scheme, 2001,
the petitioners are granted the benefits of fix pay.
It is submitted that the petitioner no.1 has retired
upon attending the age of superannuation,
whereas the petitioner nos.2 to 4 are receiving
fixed pay salary of Rs.9220.40.
12. It is submitted that the Regularization Scheme
of daily rated labourer of the erstwhile Gujarat
Agricultural University was framed and was duly
approved by the Apex Court reported in (2001) 3
SCC 574 (Labhu Bechar). It is submitted that
under the Scheme, the Apex Court was pleased
direct the State Government to create the posts
for absorption of daily wagers. It is submitted that
the regularization was to be made against
sanctioned vacant posts on the basis of seniority
only which was to be prepared as per Clause 4 of
the Scheme. After sanctioned of Scheme by the
Apex Court, the State Government had
created/sanctioned about 890 posts for
absorption of daily wagers in two pay scale of
Rs.2550-3200 and Rs.3050-4590. It is submitted
that out of 890 posts, 241 sanctioned posts were
allotted to Anand Agricultural University. It is
relevant to point out that the erstwhile Gujarat
Agricultural University had granted regularization
under the Scheme to all 890 daily wagers on their
respective posts on the basis of seniority only. It
is submitted that the petitioners have also been
granted benefits of Clause-2 of the Scheme with
retrospective effect dated 01.01.2001.
13. It is submitted that the State Government,
vide order dated 13.12.2002 directed the
University to abolish all 890 posts in the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
eventuality on retirement /death / resignation of
the employees etc. It is submitted that out of 890
sanctioned posts, 241 posts were allotted to
Anand Agricultural University. It is further
submitted that all 241 posts were filled in on
regular basis on seniority basis and granted the
benefits of regularization. It is further submitted
that 43 daily wagers are granted the benefit of
clause-2 of the Regularization Scheme including
the petitioners on seniority basis. Out of 241
posts, 146 posts have been abolished on account
of retirement/death/resignation of the employees
etc.
14. It is submitted that Regularization Scheme
(2001) 3 SCC 574 has already been overruled by
the Apex Court in the case of State of Karnataka
Vs. Umadevi , reported in (2006) 4 SCC 1. Thus,
regularization scheme does not exist.
15. It is submitted that the petitioner nos.2, 3 and
4 are 52, 53 and 54 years old respectively and
are not eligible for the post in question. It is
settled law that even selected candidates have no
right to claim appointments. (2001) 10 SCC 237,
SCC 173 (para-78). Since, the petitioners do not
possess the requisite qualification, there is no
question to keep 5 posts vacant for the
petitioners. I submit that age is also relevant
factor/qualification for making application for the
post in question under the Recruitment Rules.
16. Heard learned advocates for the respective
parties and having perused the documents on
record. It appears that the petitioner No.1 T J
Parmar has joined the respondent no.1- University
as Skilled Daily Wager Clerk on 05.12.1984 and
regularized in fix salary class with effect from
01.01.2001 by virtue of order dated 22.03.2004.
The petitioner no.2 R.M.Patel has joined the
respondent no.1-University as Skilled Daily Wager
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Clerk on 16.07.1990 and regularized in fix salary
class with effect from 01.01.2001 by virtue of
order dated 29.06.2005. The petitioner no.3
K.K.Chauhan has joined the respondent no.1-
University as Skilled Daily Wager Clerk on
08.09.1992 and regularized in fix salary class
with effect from 01.01.2003 by virtue of order
dated 23.12.2005. The petitioner No.4 B M
Solanki has joined the respondent no.1-University
as Skilled Daily Wager Clerk on 04.04.1990 and
regularized in fix salary class with effect from
01.01.2005 by virtue of order dated 23.12.2005.
17. The respondent no.1 University is Body
established and constituted under the provisions
of Section 3 of the Gujarat Agricultural University
Act, 2004 for the State of Gujarat. There are four
Agricultural Universities; 1) Sardar Krushinagar
Dantiwada Agricultural University. 2) Junagadh
Agricultural University. 3) Anand Agricultural
University. 4) Navsari Agricultural University.
They are Statutory Autonomous Body. They are
engaged in the educational activities and
imparting education in agriculture and allied
science and humanities in the State of Gujarat.
The State accords 100% grant to the respondent
University and that all expenses including the
expenses for the purpose of payment of salaries
and wages of the employees of the University are
being paid from the amount of grant received
from the State Government from time to time. In
short, the State Government is having overall
control overall Universities.
18. The respondent no.1 University being a grant-
in-aid Institute is required to obtain prior sanction
of the State Government for the purpose of
recruitment/appointment of the employees of the
University.
19. The State has passed resolution through
Agriculture and Cooperative Department dated
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
01.04.2002 on the basis of the decision of the
Apex Court in case of Labhu Bechar (supra),
wherein the resolution reads as under:- "After
careful consideration Government is pleased to
accept the proposal of Gujarat Agriculture
University to create 890 posts in Gujarat
Agriculture University to absorb the workmen,
who have completed 10 years of service with
minimum 240 days in each calendar year as daily
rated workmen subject to following conditions. (i)
Creation of posts of daily rated workmen should
be in the two pay-scale i.e. Rs.2550-3200 and
Rs.3050-4590 as State Government had
sanctioned above two pay scales only for daily
rated workmen. (ii) After creation of 890 posts of
daily rated workmen, it is necessary to take
action to relieve remaining about 4210 (Four
Thousand Two Hundred Ten) daily rated workmen
immediately. (iii) all the daily rated workmen are
appointed by GAU, without approval of State
Government their pay shall not be recouped as
State Government Grant."
20. In case of Labhu Bechar (supra), the Apex
Court has examined the Scheme and has stated
in Paragraph Noa.27, 30 & 31 as under:- "27. 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
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
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 upto 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 Chowkidar, he must
be literate and have good physique. Literate is
not defined. For Plumber to have I.T.I. Certificate.
28... 29... 30.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. 31.The decision to
absorb some of the employees at one point of
time or in a phased manner depends on facts and
circumstances of each case. Where very large
number of workers are required to be absorbed,
this Court accepted the formula, in the past to
absorb such employees under a Scheme in a
phased manner. This is done to work it out within
its financial means. Every liberty and entitlement
is always subject to such financial limits. But in
considering such absorption, the financial means
have to be stretched to the maximum but should
not be a defence with motive to disentitle the
claim of the workmen. The grant of this phased
absorption thus is in itself a mechanism under
this principle. But as we have said this
mechanism is not a tool to misuse for taking away
any legitimate right of any worker. The Court has
to be cautious in exercising its discretion. On the
one hand it has to keep the interest of the
workers alive and on the other to see that
employer does not become spineless for the lack
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
of funds eroding the very workers interest. In the
present case admittedly in the first phase in
terms of Clause 1, one block of daily wage worker
is to be regularised for which the posts are being
created. We want to make it clear, in creating
posts Government shall see maximum posts are
created to absorb maximum such workers who
have completed ten years as on 31st December,
2000, as these workers have more than eligible
claim. Thereafter, even reassessment for
additional posts, about which we are referring
should be done in the same perspective. In other
words there may still be number of workers who
may still not be covered for absorption under the
first phase of Clause 1 due to initial non-
availability of posts though working for a long
number of years. We are saying so because
Clause 1 (d) is silent, what number of posts
Government is being created initially for the first
phase of absorption."
21. Ultimately, the Court has concluded as
under:-
"35. In the present case after absorption of
employees under Clause 1, we have already
directed, the State Government what they
have to do in coordination with the appellant
University to assess and find additional
regular posts required by the university. In
doing so, they shall keep in mind the
continuous work which the workers are doing
for long number of years and after fixing the
number it should further create such
additional posts as necessary and absorb
them. This exercise to be undertaken, as
aforesaid, within six months. So for this
reason we would not like to disturb the
proposed scheme except to the extent we
have observed above. We are sure no
slackness would be exercised both by the
appellant and the State in completing this
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
exercise within the said period. Apart from
what we have observed, we do not find any
infirmity in the scheme. 36. Accordingly we
approve the aforesaid scheme framed by the
University and as approved by the State
Government, subject to the modifications
which we have recorded above. In terms of
the said modified scheme, the judgment of
the High Court stands modified. As
respondents/workmen have suffered for a
long duration of time it is appropriate that
aforesaid scheme is implemented
expeditiously at an early date. The first
phase of absorption to be completed within
three months. The appeals are accordingly
disposed of in the aforesaid terms. Costs on
the parties."
22. In a more recent decision of the same
University, in case of Vice Chancellor Anand
Agriculture University Vs. Kanubhai Nanubhai
Vaghela, reported in 2021(0) AIJEL-SC 67532,
the Court has taken into consideration the
submissions made on behalf of University.
The effect on the scheme approved by the
Apex Court in case of Labhu Bechar (supra)
after the pronouncement in case of Umadevi
(supra), the Apex Court has held as under:-
"11. We have heard Mr. P.S. Patwalia,
learned senior counsel for the university and
Mr. Nachiketa Joshi, learned counsel for the
respondents. The main contention of the
university is that after the judgment of this
Court in Secretary, State of Karnataka and
Ors. vs. Umadevi and Ors. (2006) 4 SCC 1,
the respondents are not entitled for
regularization as there are no sanctioned
posts available. Another submission made on
behalf of the appellant is that the judgment
of this Court dated 18.01.2001 in Gujarat
Agricultural University (supra) does not
survive after the judgment of this Court in
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
Uma Devi. It is no doubt true that in
Umadevi's case, it has been held that
regularization as a one-time measure can
only be in respect of those who were
irregularly appointed and have worked for 10
years or more in duly sanctioned posts.
However, in the instant case the respondents
are covered by the judgment of this Court in
Gujarat Agricultural University (supra). This
Court approved the proposed scheme of the
State of Gujarat and directed regularization
of all those daily wagers who were eligible in
accordance with the scheme phase-wise. The
right to be regularized in accordance with
the scheme continues till all the eligible
daily-wagers are absorbed. Creation of
additional posts for absorption was
staggered by this Court permitting the
appellant and the State of Gujarat to
implement the scheme phase-wise. We are
not impressed with the submissions made on
behalf of the university that the judgment of
this Court in Umadevi's case overruled the
judgment in Gujarat Agricultural University
(supra). The judgment of this Court in
Gujarat Agricultural University (supra) inter
partes has become final and is binding on
the university. Even according to Para 54 of
Uma Devi's case, any judgment which is
contrary to the principles settled in Umadevi
shall be denuded of status as precedent. This
observation at Para 54 in Umadevi's case
does not absolve the university of its duty to
comply with the directions of this Court in
Gujarat Agricultural University (supra). 12. It
was brought to the notice of this Court by Mr.
P.S. Patwalia, learned senior counsel for the
university that 890 posts were created
coterminous with the services of those daily
wagers who have been absorbed in those
posts. He made a valiant effort to impress
upon this Court that no further posts have
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
been created and therefore, the remaining
daily wagers cannot claim regularization of
their services. Creation of 890 posts is by
way of implementation of the directions
given by this Court in Gujarat Agricultural
University (supra) at the first stage. There is
no ambiguity in the directions given by this
Court in Gujarat Agricultural University
(supra) that the obligation on the part of the
university to implement the scheme by
regularizing all the eligible daily wagers
continued. 13. By an order dated 17.10.2011,
persons similarly situated to the respondents
were absorbed by being given the benefit of
regularization. The Division Bench of the
High Court has taken note of the
discriminatory approach of the university in
conferring the benefit of regularization to
some and not to all those daily wagers who
are eligible. There is no error in the
Judgment of the High Court which warrants
interference by this Court. Eligible daily
wagers in accordance with the scheme have
been eagerly awaiting regularization as per
the judgment of this Court in Gujarat
Agricultural University's case (supra). The
right of the respondents for regularization
has been correctly recognized by the High
Court."
23. In view of aforesaid definite
pronouncement with regard to the status of
Labhu Bechar (supra), after the
pronouncement of the Apex Court in case of
Umadevi, the argument advanced on behalf
of the respondent-University and the
interpretation that the decision of Labhu
Bechar is made ineffective cannot be upheld.
24. The Court has taken into consideration
the position admitted by the respondent-
University in affidavit to the extent of
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
accepting the entitlement of the petitioners
under Clause (2) of the Scheme, but the
Court finds no reason assigned by the
respondent-University to justify how the
petitioners can be precluded from being
considered for benefit under the Scheme
approved by the Apex Court, if factually the
petitioners are meting with the particulars in
Clause (1) of the Scheme. Especially, when
there is an averment on oath that the
respondent has resorted to pick and choose
policy rather than implementing the Scheme
in its true spirit.
25. The Court finds that there is nothing on
record to indicate that in case of the
petitioners, any exercise to factually
ascertain their eligibility, was undertaken
and that they were found lacking or in any
manner behind the other similarly situated
employees, who were absorbed treating
them to be eligible under Clause(1) of the
Scheme.
26. In view of the aforesaid reasoning, this
Court is of the view that the case of each of
the petitioners is required to be taken into
consideration for their entitlement to the
benefit of the Scheme approved by the Apex
Court in case of Labhu Bechar (supra),
particularly for the benefits under Clause(1)
of the Scheme. For this purpose, the
respondents are directed to carry out the
factual examination of facts of individual
petitioner, including the petitioner no.1, who
has retired for the purpose of her entitlement
while carrying out this exercise of factual
assertion, the petitioners will be given an
opportunity of hearing especially to
overcome the allegation of pick and choose
policy of respondent-University. Such
exercise to be undertaken within a period of
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
3(three) months from the date of receipt of
writ of this Court. The authority to decide
and grant the benefit, if found eligible in all
other respect within 3(three) months
thereafter."
23. Therefore, considering the aforesaid circumstances
and the decisions of the Court including that of the
Hon'ble Supreme Court, this Court is of the view that
the case of the petitioners is required to be taken into
consideration for their entitlement to the benefit of the
Scheme as approved by the Apex Court in the case of
Labhu Bechar (Supra) and benefits under Clause 1
of the Scheme i.e. the benefit of regularization on
completion of ten years ought to be granted. The
respondents are directed to extend the benefits of
Clause 1 of the Scheme framed by the Hon'ble
Supreme Court in the case of Labhu Bechar (Supra)
within a period of three months from the date of
receipt of copy of this order. In case of those
petitioners who have retired, their exercise shall be
carried out by calling such petitioners after giving
them an opportunity of hearing and benefits according
to the scheme and consequential benefits be given
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
within a period of three months thereafter. All these
petitions are therefore allowed. Rule is made absolute
accordingly. Direct Service is permitted. No costs.
24. Special Civil Application Nos.13279 of 2019 and 13280
of 2019 have been filed by the employer - Junagadh
Agricultural University challenging the awards of the
Industrial Tribunal dated 9.1.2019 and 5.2.2019 by
which the respondent employees have been given the
benefits of regularization and the benefits of notional
pay have been extended to the respondent employees.
Cross petitions have been filed by the employees
namely; Special Civil Application Nos.13711 of 2019 &
13729 of 2019 inasmuch as only notional benefits
have been granted.
25. In these petitions, the stand of the university is that
the direction to the petitioner - university to treat the
respondent as permanent employees from the date of
the reference and to grant them grade pay, dearness
allowance and other allowances is patently illegal and
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
arbitrary. Identical submissions have been raised by
Mr. Chauhan in these petitions assailing the award of
the Industrial Tribunal.
26. Mr. Paresh J. Mehta, learned counsel on behalf of the
respondent - employees in cross petitions challenging
the award as far as denial of actual benefits from the
date of the award also has raised similar arguments
inasmuch as he would submit that the Scheme enured
in favour of all employees and the Tribunal therefore
ought to have given the benefits from the actual and
not from the date of reference.
27. Perusing the awards of the Industrial Tribunal would
indicate that evidence has come on record as is
discussed by the Industrial Tribunal that the
employees therein were working for over more than
twenty five years. The tribunal has drawn adverse
inference in light of the decision of the Supreme Court
and found that the employees were working for more
than 25 to 30 years and which was therefore unfair
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
labour practice.
28. Once identical awards were a subject matter of
challenge and affirmed by the supreme Court in the
case of Labhu Bechar (Supra), there is no reason
why the benefits ought to be granted to the employees
who were before the Industrial Tribunal in these two
petitions. However, it is made clear that since the
employees were before the Tribunal and the Tribunal
looking to the financial burden of the State only
granted benefits on a notional basis, needs to be
modified inasmuch as the respondent employees who
were before the Industrial Tribunal and or the
beneficiaries of the award of the Industrial Tribunal
dated 9.1.2019 and 5.2.2019 should be considered on
the same lines as the petitioners of the aforesaid
petitions, which are being decided today by a Common
CAV Judgment for extending the benefits of
regularization in accordance with the decision of the
Supreme Court in the case of Labhu Bechar (Supra).
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
29. The awards of the Industrial Tribunal as far as granting
the benefits on a notional basis is concerned, the
same are modified accordingly. Therefore, Special Civil
Application Nos.13729 of 2019 and 13711 of 2019 on
behalf of the employees are partly allowed. The
petitions of university namely; Special Civil Application
Nos.13279 of 2019 and 13280 of 2019 are dismissed.
Rule is answered accordingly. Direct Service is
permitted. No costs.
30. No orders of connected Civil Applications in view of
allowing / dismissal of the main petitions.
SCA No.18699 OF 2021 :
31. Rule returnable forthwith. Mr. D.G. Chaujan, learned
counsel waives service of notice of Rule for the
respondent No.1 - university as well as Ms. Nidhi Vyas,
learned Assistant Government Pleader waives service of
notice of Rule for the respondent - State.
32. With the consent of the learned advocates appearing for
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
the respective parties, the matter was taken up for final
hearing on 22.2.2022.
33. In this petition, under Article 226 of the Constitution
of India, the petitioner has challenged the award of
the Industrial Tribunal dated 8.8.2021 by which the
petitioner has not been granted the benefit of the
regularization of scheme as per the decision of the
Hon'ble Supreme Court dated 26.7.2021 passed in
Civil Appeal No.4443 of 2021 of the Hon'ble Supreme
Court in the case of Vice Chancellor, Anand
Agriculture University v. Kanubhai Nanubhai
Vagehla and another .
34. Before the labour Court, it was the case of the
petitioner that he was working as a Peon since
1.6.1984 and pursuant to the decision in the case of
Labhu Bechar (Supra), he was entitled to the benefits
of regularization. The university filed a written
statement disputing the stand of the petitioner. The
university denied that the petitioner had been
working continuously. He had been terminated in the
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
year 1985. By an award dated 8.8.2007, the labour
Court directed reinstatement without back wages. He
was reinstated thereafter. As per the Scheme, only
those who completed 240 days from 2001 are entitled
to the benefits. The petitioner has not so completed
240 days and, therefore not entitled to the benefits.
35. The Industrial Tribunal after hearing the argument of
the parties came to the conclusion that when the
award of the Labour Court dated 8.8.2007 is read,
what was directed was reinstatement without back
wages. The petitioner was terminated in the year
1985. There was no order of directing reinstatement
with continuity of service. Looking to the statement at
Exhs.19 and 20, what is evident is that it is only after
the year 2007 that he had completed 240 days and
that from 1984 to 2007, he had not completed 240
days. Therefore, he is not entitled to the benefits of
the Scheme.
36. Having perused the order of the Industrial Tribunal
and the order of the labour Court dated 8.8.2007,
C/SCA/17623/2018 CAV JUDGMENT DATED: 10/03/2022
apparent error appears to be on the face of the record
when the Industrial Tribunal interpreted the order of
the labour Court as not granting continuity of service.
As held by the Hon'ble Supreme Court in the
decisions of Nandkishore Shravan Ahirrao v.
Kosan Industries (P) Ltd. [AIR 2020 SC 1776] &
Gurpreet Singh v. State of Punjab and Haryana
[(2002) 9 SCC 492], the view apparently is erroneous.
The award of the Tribunal dated 8.10.2021 passed in
Reference (IT) No.2 of 2018 is quashed and set aside and
the petitioner be extended the benefits of the decision in
the case of Labhu Bechar (Supra) of regularizing his
services as was granted to the similarly situated
employees like the petitioner.
37. The petition is allowed in above terms. Rule is made
absolute to the aforesaid extent. Direct Service is
permitted. No costs.
[ BIREN VAISHNAV, J. ]
VATSAL S. KOTECHA
