Agriculture Produce Market ... vs Jamnagar District Mazdoor Sangh
2023 Latest Caselaw 2882 Guj

       C/SCA/5281/2023                           ORDER DATED: 12/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5281 of 2023

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                 AGRICULTURE PRODUCE MARKET COMMITTEE
                                 Versus
                   JAMNAGAR DISTRICT MAZDOOR SANGH
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Appearance:
MR CHIRAG B PATEL(3679) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 12/04/2023

                               ORAL ORDER

1. The Agriculture Produce Market Committee, as petitioner, has filed this petition challenging the award dated 23.9.2022, passed by Industrial Tribunal, Jamnagar in Reference (I.T.) No.03 of 2018, wherein the reference preferred by employee, seeking regularization of service, with all consequential benefits has been partly allowed. In the order dated 23.9.2022, the Industrial Tribunal directed the petitioner to treat respondent, as permanent class-4 employee from the date of filing the reference application and also granted all consequential benefits from the date of award. Further, the period from 01.01.2006, till the date of award has been treated as notional, without any benefits. However, it has been clarified that for benefits like seniority, promotion, retiral benefits, gratuity etc. the period shall be counted from 01.01.2006.

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2. The facts in brief are as under:

2.1. Respondent herein was appointed by Market Committee and she joined the services of the petitioner on 1.1.2006 as cleaner. As she was continuously working with the petitioner Market Committee from the year 2006 and the work being of permanent nature, she made a reference being Reference (I.T.) No.3 of 2018, seeking regularization with all consequential benefits. The Tribunal under award dated 23.9.2022, partly allowed the reference with the afore-stated directions, aggrieved, by which, present petition is filed.

3. Heard Mr. Chirag Patel, learned advocate for the petitioner. He submitted that the order passed by the Industrial Tribunal, Jamnagar in Reference (I.T.) No.3 of 2018, is erroneous on the following grounds:

(i) That petitioner Market Committee is abide by the Gujarat Agricultural Produce and Marketing (Promotion and Facilitation) Act, 1963 and its allied Rules of 1965 and therefore, as per section 22 of the Gujarat Agricultural Produce and Marketing (Promotion and Facilitation) Act, 1963 and Rule 41-A of the Gujarat Agricultural Produce Markets Rules, 1965 establishment of the petitioner Market Committee is required to be approved by the Director, Agriculture Marketing Rural

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Finance, Gandhinagar and without approval by the authority, petitioner Market Committee is not empowered to regularize any employee on permanent basis as same is subject to income/expenditure of the petitioner Market Committee.

(ii) The Tribunal erred in not appreciating that the reference was filed by the respondent after a delay of 7 years.

(iii) That the reply filed by the petitioner Market Committee stating that the setup granted by the appropriate authority i.e. Director Agricultural Market Rural Finance, Gandhinagar, had only approved six posts as regular post which are mentioned in Annexure-J (page 111-115), to the petition. In the regular sanctioned post, the post of cleaner is not included and, therefore, the present petitioner cannot regularize any of its employee beyond their sanctioned regular post.

(iv) That for the work taken, the respondent has been paid Rs.240 per day as she is doing work of casual labourer.

(v) In support of his submission, he relied upon following decisions:

(a) Upendra Singh v. State of Bihar & Ors. reported in (2018) 3 SCC 680 wherein it is held as under:

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" (8) After considering the respective arguments, we are of the view that the impugned judgment is without any blemish and no interference is called for. In fact, whole premise on which the case is founded by the appellant seems to be incorrect. We note that the cases of these persons, including the appellant, were duly considered by the University, on the basis of which order dated August 13, 2003 were passed refusing regularisation. This order specifically states that the initial appointment of the appellant and others was not in accordance with law. It was made without advertisement and there was no recommendation of panel by the Selection Committee. So much so, the appointments were not made by the competent authority. We find that the University, or for that matter, the Government had agreed to regularise the services of those employees of the colleges, which had become the Constituent Colleges, only on the condition that their initial appointment was after following the due procedure and that too against the sanctioned post. A statement was made at the Bar by learned counsel for the respondent that there were no sanctioned posts even now.

(9) The law pertaining to regularisation has now been authoritatively determined by a Constitution Bench judgment of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., (2006) 4 SCC 1. On the

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application of law laid down in that case, it is clear that the question of regularisation of daily wager appointed contrary to law does not arise. This ratio of the judgment could not be disputed by the learned counsel for the appellant as well. That is why she continued to plead that the appointment of the appellant was made after following due procedure and in accordance with law. However, that is not borne from the records. Pertinently, order dated August 13, 2003, vide which the appellant was refused regularisation on the aforesaid ground was not even assailed by the appellant at that time. It may be mentioned that in Uma Devi, the Court left a small window opened for those who were working on ad hoc/ daily wage basis for more than ten years, to regularise them as a one-time measure. However, that was also subject to the condition that they should have been appointed in duly sanctioned post. Further, while counting their ten years period, those cases were to be excluded where such persons continued to work under the cover of orders of the courts or the tribunal. The High Court has, in the impugned judgment, discussed these nuances and has also referred to the judgment in Uma Devi and held that the benefit of one- time measure suggested in that case could not be extended to the appellant because of the following reasons:

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"11. The Appellants clearly fall in the exception noticed in paragraph-53 of Umadevi (supra) as their claims were sub judice on the date the pronouncement of the Constitution Bench was made in view of pendency of C.W.J.C. No. 12235 of 2005 disposed subsequently on 29.08.2006. Such litigious continuation in employment stands excluded from the directions of Umadevi.

12. The Appellants claim to have been regularized within the staffing pattern. In our opinion, it is not the crux of the matter. The crucial question is if their initial appointment by the Managing Committee was in consonance with Article 14 of the Constitution of India by open advertisement and competitive merit selection. On account of various interpretations by more than one Bench of M.L. Kesari (supra) reference was made to the Full Bench. We have already noticed from the order refusing regularization dated 13.08.2003 that the appointment of the Appellants on daily wage was not in consonance with the law.

13.The conclusion in Ram Sewak Yadav (supra) at paragraph 43 is as follows:

"43 (A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-

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hoc, and temporary appointments, the period of service being irrelevant;

(B) An illegal appointment void ab initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.

(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.

(D) The appointment must not have been an individual favour doled out to the appointee alone and he person must have continued in service for over ten years without intervention of any court orders."

(b) Vice-Chancellor, Luchknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare & Ors. reported in (2016) 1 SCC 521 wherein it is held as under:

"13. In Umadevi's case, this Court settled the principle that no casual workers should be

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regularised by the Courts or the State Government and as per constitutional provisions all the citizens of this country have right to contest for the employment and temporary or casual workers have no right to seek for regularization. In para (47), this Court held as under: "47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

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14. In para (53) of Umadevi's case, the Constitution Bench carved out an exception to the general principles enumerated above and it reads as under:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128, R.N.

Nanjundappa (1972) 1 SCC 409 and B.N.

Nagarajan (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process

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must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

17. The respondents were merely casual workers and they do not have any vested right to be regularised against the posts. The High Court fell in error in affirming the award passed by the Labour Court directing regularisation. In the facts and circumstances of the case, as the respondents were out of employment for more than twenty years and now they are over aged and cannot seek for regular appointment, in our view, the interest of justice will be subserved if the judgment of the High Court is modified to the extent by directing payment of monetary compensation for the damages to the respondents.

(vi) In relation to decision relied upon by Industrial Tribunal, of this Court in Special Civil Application No. 19589 of 2015, he submitted that there is deference between order and judgment. The decisions relied upon herein above are to be followed than order of this court in SCA 19589 OF 2015. In

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support of this submission, he relied upon the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Jasbir Singh reported in 2022 SCC Online SC 1240.

4. Considered the submissions and the decisions relied upon by the learned advocate for the petitioner. From the order of Industrial Tribunal, it is noticed that respondent was working with the Market Committee since 1.1.2006, as a cleaner and the work performed is of regular nature. The services of respondent are taken on every day basis and factually she had completed more than 240 days in every year. However, she has been paid Rs.240/- per day which is less than the minimum wages. In the cross-examination, the Secretary of Market Committee, admitted that the work taken from the respondent is of permanent nature and she has been called upon to work every day. More so, he admitted that from 1.1.2006 i.e. from the date of joining, she had continuously work and also completed 240 days in a year, despite that, she has not been given the benefits of regular employee.

5. The only contention raised for non-regularisation is that, as the establishment i.e. the Director, Agriculture Marketing Rural Finance, Gandhinagar, had not approved the post of cleaner as a regular post and only six posts have been approved for the set-up of the petitioner Market Committee,

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the services of the respondent cannot be regularized. Record does not suggest any efforts made by the petitioner Market Committee to the establishment, for approval of more post on regular basis, particularly when the service required is of permanent nature.

6. So far as decision relied upon by learned advocate for the petitioner, in the case of Upendra Singh v. State of Bihar & Ors. (supra), in my opinion is not applicable in present case because in that case initial appointment of the appellant was not in accordance with law, without advertisement and not by the competent authority. Whereas in the present case, it is not in dispute that, petitioner appointed respondent employee on a post, and called her every day for work. Similarly, in the decision in the case of Vice-Chancellor, Luchknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare & Ors. (supra), the daily wager was appointed orally without following the due process of selection as envisaged by the Rules.

7. In the present case, the only ground for non- regularization is that the establishment i.e., the Director, Agriculture Marketing Rural Finance, Gandhinagar had not approved the post of cleaner. Moreover, the evidence led supports the case of respondent- employee that the work is of

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permanent nature, and no proposal has been sent to the establishment for sanction of the said post. Therefore, I do not see any reason to interfere with the findings recorded by the Tribunal dated 23.9.2022, in Reference (I.T.) No.03 of 2018, particularly, when this Court in similar establishment of Khetivadi Uttpan Bazar Samiti v. State of Gujarat & Anr. held that non following of procedure would not be the ground of non-regularization. Similarly, in the present case, merely non sanctioning of the post by the establishment would not be the ground for non regularisation of the respondent services.

8. In view of the above, the petition is rejected summarily. No costs.

(MAUNA M. BHATT,J) NAIR SMITA V.