Gujarat High Court
Anil Kantilal Pandya vs State Of Gujarat on 1 May, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6875 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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ANIL KANTILAL PANDYA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ANSHIN DESAI, SR. COUNSEL with MS VENU H NANAVATY(7458) for the
Petitioner(s) No. 1,2,3,4,5,6
MR AAKASH GUPTA, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR AAKASH GUPTA, AGP for the Respondent(s) No. 1
MR DG CHAUHAN(218) for the Respondent(s) No. 2
RONAK D CHAUHAN(7709) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/05/2025
ORAL JUDGMENT
1. The petitioners herein through Union raised an industrial
dispute before the Industrial Tribunal, Rajkot, being Reference
(IT) No.35 of 1988 wherein, an award came to be passed in
March, 2004 to regularize the services of the 127 employees in
the regular services of the respondent. The said award is duly
produced at Annexure - A, page 13. The award passed by the
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Tribunal in Reference (IT) No.35 of 1988 was challenged by the
respondent - University by filing Special Civil Application
No.1795 of 2005 and allied matters wherein, by judgment
dated 23.02.2015, the petitions were disposed of and it was
held that the award so far as the petitioners were concerned,
would not survive. However, liberty was reserved in favour of
the petitioners to make representation to the respondent -
University with certain directions in paragraph 5 of the said
judgment duly produced at page 78, Annexure - B.
1.1 The petitioners herein accordingly made representation
to the respondent - University on 03.03.2015 duly produced at
Annexure - C. The said representation was not decided and in
view thereof, the petitioners were constrained to prefer Misc.
Civil Application (For Direction) No.2058 of 2015 wherein, by
order dated 04.02.2016, it was directed that if the applicants -
petitioners were to make representation within one month for
regularization, the same be considered by the respondent -
University within a period of two months as per the earlier
order duly produced at page 86, Annexure - D.
1.2 Accordingly, the petitioner made representation on
17.02.2016 duly produced at page 87, Annexure - E, seeking
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regularization of the services, which came to be rejected by
impugned communication dated 29.02.2016 duly produced at
page 92, Annexure - F, on the ground that the said petitioners
have not completed 240 days in one year continuously
between 1991 to 2000 and in view thereof, the petitioners
representation came to be rejected. The aforesaid has given
rise to the filing of the present petition having prayed for the
following reliefs:
"(A) That Your Lordships be pleased to issue an order, direction and/
or writ in the nature of certiorari and/or any other appropriate writ,
order or direction, quashing and setting aside the impugned order
dated 29-2-2016 marked ANN.F to this petition, being illegal and
contrary to the record and be further pleased to direct the respondents
to regularize the services of the petitioners and grant relief of time-
scale of pay with retrospective effect i.e. the date from which others
have been granted which is placed on record of this petition;
(B) That Your Lordships be pleased to declare and hold the
impugned action of the respondents in not regularizing the services of
the petitioners in view of the order and judgment passed by the
Industrial Tribunal, Rajkot, as it amounts to serious unfair labour
practice;
(C) Pending admission and final disposal of this petition, Your
Lordships be pleased to direct the respondents to grant the benefit of
lowest scale of pay as per Fifth and Sixth Pay Commission
recommendation, forthwith;
(D) Any other and such further relief as the Hon'ble Court deems fit
and proper in the interest of justice together with costs."
2. Heard Mr. Anshin Desai, learned senior counsel appearing
with Ms. Venu H. Nanavaty, learned advocate appearing for the
petitioners, Mr. Aakash Gupta, learned AGP appearing for the
respondent No.1 - State and Mr. D.G. Chauhan, learned
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advocate appearing for the respondent No.2.
3. Mr. Anshin Desai, learned senior counsel appearing with
Ms. Venu H. Nanavaty, learned advocate appearing for the
petitioners submitted that the petitioners herein were also part
of the employees, who are part of the Union having raised the
industrial dispute before the learned Industrial Tribunal and are
also the beneficiaries of the said award passed in Reference
(IT) No.35 of 1988. It is submitted that the petitioners herein
are entitled to the regularization; the petitioners herein having
completed 240 days in one year in consonance with the
scheme of regularization framed by the respondent -
University dated 02.05.2001 pursuant to the decision of the
Hon'ble Apex Court rendered in case of Gujarat Agricultural
University Vs. Rathod Labhu Bechar & Ors. reported in (2001)
3 SCC 574. It is submitted that the daily rated employees, who
completed 10 years of service from the date of their
appointment on respective posts and department, were
regularized in light of the aforesaid scheme. It is submitted
that the case of the petitioners be considered for regularization
in the aforesaid background; the petitioners herein having
worked as daily wagers in the respondent - University for more
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than 30 years.
3.1 Mr. Desai, learned senior counsel submitted that while
passing the impugned order rejecting the petitioners
representation for regularization, the petitioners are declined
the benefit of the scheme on the ground that the petitioners
failed to complete 240 days in one year between 1991 to
2000. It is submitted that the aforesaid order is also contrary
to the scheme introduced by the respondent - University.
Reliance is placed on the order passed in Special Civil
Application No.1795 of 2005 and allied matters wherein, in
paragraph 2, learned advocate appearing for the respondent -
University stated that the respondent - University framed a
scheme pursuant to the decision of the Hon'ble Apex Court in
case of Gujarat Agricultural University (Supra), as referred
above, and it was stated that about 127 daily rated employees,
who completed 10 years of service from the date of their
appointments on the respective posts and the department,
would be regularized. It is submitted that the impugned order
is contrary to the aforesaid statement made by the learned
advocate appearing for the respondent authority from the face
of record.
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3.2 Reliance is placed on the information sought for under
the Right to Information Act, 2005 wherein, the reply received
by the petitioners is duly produced on record by way of
Annexure- G colly. Reliance is also placed on the decision
rendered by the Hon'ble Apex Court in case of Gujarat
Agricultural University Vs. Rathod Labhu Bechar & Ors.
reported in (2001) 3 SCC 574 and placing reliance on the
same, it is submitted that the respondent - University is
governed by the scheme floated by the University for
regularization of daily rated employees. Reliance is placed on
paragraphs 10, 15, 17, 19, 26, 27, 28 and 50 of the said
decision and it is substantiated that the clause where the
University in its scheme provided for educational qualification,
is intervened by the Hon'ble Apex Court in paragraph 30
wherein, the Hon'ble Apex Court holds that in view of the
employees that working on daily wage basis, have long
experience and for the concerned posts, the prescribed
qualification, if any, should not come in way of their
regularization. Clause 1(b) provides for regularization of daily
wagers in a phased manner to the extent of available
sanctioned post.
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3.3 Reliance is further placed on the judgment rendered in
Civil Appeal No.4443 of 2021 in case of Vice Chancellor, Anand
Agriculture University Vs. Kanubhai Nanubhai Vaghela & Anr.,
wherein, the Hon'ble Apex Court in paragraph 11 held that the
judgment rendered by the Hon'ble Apex Court in case of
Gujarat Agricultural University (Supra) has become final and is
binding on the University. The ratio laid down in case of
Umadevi does not absolve the University of its duty to comply
with the directions issued by the Hon'ble Apex Court in Gujarat
Agricultural University (Supra).
3.4 Reliance is also placed on the ratio laid down by the
Hon'ble Apex Court in case of Shripal & Anr. Vs. Nagar Nigam,
Ghaziabad, Civil Appeal No.8157 of 2024 and in case of Jaggo
Vs. Union of India & Ors. reported in 2024 INSC 1034. Placing
reliance on the aforesaid two judgments, it is submitted that
the Hon'ble Apex Court has from time to time held that taking
into consideration the longstanding services rendered by the
petitioners as daily wagers and when there are vacancies on
sanctioned post, the long standing services rendered by such
petitioners should be considered for regularization. The claim
of such employees should not be rejected merely because of
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adherence to procedural formalities. It is submitted that the
petitioners herein having been working with the respondent -
University for such a long period; since decades, renders the
services rendered by the petitioners indispensable and that,
the University be directed to consider the case of the
petitioners for regularization. Placing reliance on the aforesaid
submissions, it is submitted that the prayers as prayed for be
allowed.
4. Mr. D.G. Chauhan, learned advocate appearing for the
respondent No.2 - University relied on the affidavit-in-reply
duly produced at page 139 and submitted that the present
petition be dismissed in limine. It is submitted that this Court
exercising powers under Article 226 of the Constitution of India
cannot direct regularization of services of the employees.
Reliance is placed on the ratio laid down in case of State of
Rajasthan & Ors. Vs. Daya Lal & Ors., reported in (2011) 2 SCC
429 more particularly, paragraph 12 and it is submitted that it
is well settled principle of law that this Court may not issue
directions to regularize, absorbent or permanent constancy
unless the employees claiming regularization have been
appointed by regular recruitment process in accordance with
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rules. Placing reliance on the aforesaid, it is submitted that the
petitioners herein having not completed 240 days in one year
continuously in light of the requirement of the scheme, are
declined the benefit of the scheme of regularization of ad-hoc
employees. It is submitted that the respondent - State had
sanctioned 189 posts pursuant to the order passed by the
Hon'ble Apex Court and the scheme laid down by the
respondent - University on 01.04.2002 was a one-time
measure and that, it is not possible to accommodate the
petitioners on regular establishment. It is submitted that the
petitioners have no right to seek regularization of services
having worked on ad-hoc basis and the petitioners do not
comply with the requirement of the scheme, as referred above.
5. Mr. Anshin Desai, learned senior counsel has taken the
Court through the documents which are produced on record;
having received the same by the petitioners under the Right to
Information Act. Reliance is placed on Annexure - G, page 93
and taking the Court through the information placed on record,
received by the petitioners qua all the six employees, it is
submitted that two of the petitioners completed 240 days in
one year continuously within 10 years from the date of
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appointment as per the requirement of the scheme. It is
submitted that the aforesaid is qua one Shri Anil Kantilal
Pandya, the details of which are duly produced at page 93 and
Mr. Hanifbhai Janmahmad Thaiyam, the details of which are
duly produced at page 95 wherein, the date of appointment is
01.01.1982. It is submitted that qua the rest of the petitioners,
the case be considered on its own merits. Placing reliance on
the information placed on record, it is not in dispute that from
the date of appointment to the date when the petition was
filed, such petitioners completed 240 days in one year
continuously within 10 years. It is submitted that even if such
petitioners do not fall within the domain of the scheme, it is
always open for the respondent - University to consider the
case of the petitioners for regularization in absence of any
complaint against the petitioners herein and the petitioners
herein having worked for more than 30 years. It is also
submitted that there are vacancies in the respondent -
University against which, the case of the petitioners can
always be considered by the respondent - University.
6. Mr. Aakash Gupta, learned AGP appearing for the
respondent No.1 - State has placed on record the Government
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Resolution dated 01.04.2002 wherein, the proposal of the
respondent - University to create 890 posts in the University to
absorb the workmen who completed 10 years of service with
minimum 240 days in each calendar year as daily rated
workmen was approved subject to certain conditions.
Analysis:-
7. Having heard the learned advocates appearing for the
respective parties, the following emerge:
7.1 In the course of hearing, this Court asked Mr. Chauhan,
learned advocate appearing for the respondent - University to
place on record the details with respect to the vacancies in the
respondent - University as also, the calculation of 240 days in
one year continuously within 10 years with respect to the
petitioners herein. The aforesaid is duly complied with by Mr.
Chauhan, learned advocate and placed on record the details of
the petitioners herein by way of an Additional Affidavit at page
165 - 171.
7.2 It is apposite to reproduce a table placed on record by Mr.
Desai, learned senior counsel with regard to the details of the
petitioners which read thus:
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LIST OF DETAILS OF PETITIONERS
Petitioner Name Date of Work Wage No. of years
Joining as on of Service As
date on date
(April (April '25)
'25)
1 Anil Kantilal Pandya 21.01.1984 Tractor Rs.497 41 years
Driver/
Pump
Operator
2 Hanif Janmohammad 01.01.1982 Gardener Rs.497 41 years (as
Thaiyam (retired on on date of
31.02.2023) retirement)
3 Ramesh Ramjibhai 04.10.1986 Pesticide Rs.497 39 years
Dabhi Sprinkler
4 Kiritbhai Harsukhbhai 03.01.1987 semi-skilled Rs.497 37 years (as
Dabhi (retired on on date of
31.05.2024) retirement)
5 Dinesh Karsanbhai 01.08.1984 Laboratory Rs.497 40 years
Vaghela
6 Chandulal Amrutlal 01.04.1989 Pump Rs.497 36 years
Makwana Operator
8. The petitioners herein are part of the industrial dispute
raised by the Union wherein, by award dated 29.03.2004, 127
employees serving in the establishment of the respondent -
University herein, were regularized. The aforesaid was subject
matter of challenge by the respondent - University by filing
Special Civil Application No.1795 of 2005 wherein, the said
petition was disposed of reserving the liberty qua the
petitioners herein to make representation before the
respondent - University seeking the benefit of regularization
under the scheme floated by the University for regularization
of ad-hoc employees. It is apposite to reproduce paragraphs 4,
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5 and 6 of the said order, which read thus:
"4. Since the declaration has been made on behalf of the University
to consider the case of left out respondents as per the Scheme, such a
direction can be given. Resultantly, the award, so far as those persons
are concerned, would not survive if their cases are also ordered to be
considered in light of the scheme framed by the University.
5. In view of the aforesaid observations, following directions :-
(a) The concerned respondents shall be at liberty to move the
University within a period of four weeks from today for considering
their cases for regularization as per scheme formulated by the
University pursuant to the above referred decision of the Apex Court in
the case of Gujarat Agricultural University Vs. Rathod Labhu Bechar
(Supra).
(b) If such an application is made, the University shall consider the
cases of those employees and if the conditions are satisfied benefits
shall be conferred. Such process shall be completed within a period of
three months from the date of receipt of the application made by the
respective employees.
6. In view of the aforesaid directions, the award passed by the
Tribunal qua the concerned respondent employees would not survive.
8.1 The petitioners accordingly, made representation which
was rejected on the ground that the petitioners failed to
complete 240 days in one year for a period between 1991 to
2000.
9. Considering the submissions made by Mr. Chauhan,
learned advocate appearing for the respondent - University,
those who completed 10 years of service from the date of
appointment on the respective posts and department, were
entitled to the benefit of the scheme of regularization floated
by the respondent - University.
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10. It is also apposite to refer to the judgment rendered by
the Hon'ble Apex Court, having considered the proposed
scheme reported in (2001) 3 SCC 574 in case of Gujarat
Agricultural University Vs. Rathod Labhu Bechar & Ors.. For the
sake of brevity, proposed scheme is reproduced in paragraph
10 of the said decision. This Court deems it fit to reproduce the
relevant paragraphs, which read thus:
"10. We heard learned counsel for the parties at length and
considered the objections of the respondents with respect to the
proposed scheme for the regularisation of daily rated workers. The
proposed scheme is reproduced below:
"Scheme for regularisation of daily-rated labourers of 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 regularised 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 regularised in a phased
manner to the extent of available regular sanctioned
posts/vacancies on the date of regularisation 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 and no disciplinary
proceedings are pending against them.
(d) The regularisation 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
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minimum of 240 days in each calendar year as on 31.12.1999
but could not be regularised 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:
Fixed pay = Daily rate prescribed by the X26 + 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 regularised 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 regularised 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 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 regularised employees as per this
scheme is the same, the direct recruit shall be senior.
15. The submission on behalf of the respondents is, the stand of the
University that there are no permanent posts for absorption of such
workers, on the facts of this case, where the appellant has been taking
work from its workers year after year for more than one decade, then
non-creation of posts itself constitutes an unfair labour practice. In fact
by the time this industrial dispute was referred, respondent- workers
completed 5 years of their continuous service and when arguments
were concluded they completed 10 years of their continuous service.
Both, the Tribunal and the learned Single Judge found the existence of
permanent nature work requiring them to be regularised.
......
17. .......Thus we have no hesitation to denounce this practice. If the
work is of such a nature, which has to be taken continuously and in
any case when this pattern become apparent, when they continue to
work for year after year, only option to the employer is to regularise
them. Financial viability no doubt is one of the considerations but then
such enterprise or institution should not spread its arms longer than its
means. The consequent corollary is, where work is taken not for a
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short period or limited for a season or where work is not of part time
nature and if pattern shows work is to be taken continuously year after
year, there is no justification to keep such persons hanging as daily
rate workers. In such situation a legal obligation is cast on an employer
if there be vacant post to fill it up with such workers in accordance with
rules if any and where necessary by relaxing the qualifications, where
long experience could be equitable with such qualifications. If no post
exists then duty is cast to assess the quantum of such work and create
such equivalent post for their absorption.
19. What emerges is, all the respondent workmen are eligible for
absorption on the facts of this case subject to any eligible qualification
under the rule if any. Though no recruitment rules were filed in the
proceedings either before the Tribunal or in the High Court but while
proposing the scheme a copy of the recruitment rules for various
cadres have been placed before us on behalf of the appellant
University. This gives in column no.1 the serial no., in column no.2 the
name of the post, in column no.3 the pay scale, in column no.4 the age
limit and in column no.5 the qualification. Serial no.10 deals with Peon
and Class IV servants, serial no.13 deals with Operator-cum- Mechanic,
serial no.14 deals with Chowkidar, serial no.25 deals with Plumber and
serial no.33 deals with Carpenter. This shows that recruitment rules
did have these posts in its ambit about which we are concerned, yet no
posts were created. This proposed creation of post is churned out only
after this long battle by the workmen as against the appellant. It was
not expected from the institutions like the present appellant, especially
when it is fully funded by the State Government that this process of
absorption should have taken such a long time and to have yielded to
it only after this long battle. This legal position is well known not only
to the appellant but the State who is funding it, then why to do it only
after courts intervention. It is true, creation of post does involve
financial implication. Hence financial health of a particular institution
plays important role to which courts also keep in mind. The Court does
exercise its restrain where facts are such where extent of creation of
post creates financial disability. But at this juncture we would like to
express our note of caution, that this does not give largess to an
institution to engage larger number of daily wage workers for long
number of years without absorbing them or creating posts which
constitutes an unfair labour practice. If finances are short engagement
of such daily wage workers could only be for a short limited period and
if continuous work is required it could only do so by creating
permanent post. If finances are not available, take such work which is
within financial mean. Why take advantage out of it at the cost of
workers.
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
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the post at the time of their appointment. The strong objection has
been raised to this eligibility clause. The submission is, those working
for a period of 10 or more years without any complaint is by itself a
sufficient requisite qualification and any other rider on the facts of this
case would prejudice these workers. We find merit in this submission.
We have perused the qualifications referred in the aforesaid
recruitment rules according to which, qualification for Peon is that he
should study 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. We feel that daily rate workers who have been working on the
aforesaid posts for such a long number of years without complaint on
these posts is a ground by itself for the relaxation of the aforesaid
eligibility condition. It would not be appropriate to disqualify them on
this ground for their absorption, hence Clause 1(a) need modification
to this effect.
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.
10.1 In the aforesaid judgment, the Hon'ble Apex Court, as
referred above, in paragraph 30, considering the long
experience rendered by such employees of the respondent -
University held that the prescribed qualification should not
come in way of regularization of such employees. It is held in
the said paragraph that Clause 1(b) provides for regularization
of daily wagers in a phased manner to the extent of available
sanctioned posts. Accordingly, the respondent - State
sanctioned 890 posts by way of Government Resolution dated
01.04.2002 which is placed on record by Mr. Aakash Gupta,
learned AGP.
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11. This Court has perused the information received by the
petitioners through RTI. Upon harmonious reading of the
submissions made by Mr. Chauhan, learned advocate
appearing for the respondent - University in Special Civil
Application No.1795 of 2005, wherein, it is clearly submitted
that the benefit of the scheme of regularization of the
respondent - University would be available to such employees
who completed 240 days in one year within 10 years from the
date of appointment, read with Clause - 1 of the scheme which
provides that the 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 31.12.1999, shall be regularized as regular
employees w.e.f. 01.01.2000 and shall be placed in time scale
of pay applicable to corresponding lowest grade of University
subject to certain terms and conditions. The aforesaid is to be
read with the information placed on record, received by the
petitioners under the Right to Information Act, Annexure - G
colly.
11.1 It emerges that and as pointed out by Mr. Desai, learned
senior counsel that qua the petitioners No.1 - Shri Anilbhai
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Kantilal Pandya, the petitioners appears to have completed
240 days from the date of appointment i.e. 21.01.1984 in the
year 1993 i.e. 10 years, continuous 240 days in 1 year.
Similarly, in case of Mr. Hanifbhai Janmahmad Thaiyam, the
date of appointment is 01.01.1982. From the perusal of the
information under the Right to Information Act, it emerges that
considering the aforesaid 01.01.1982 to 01.01.1992, 240 days
in one year continuously for 10 years. With respect to the
information that is placed on record qua the other employees,
it emerges that such employees appear not to have completed
240 days from the date of their appointment within 10 years
before 1999.
12. In the opinion of this Court, the order passed by the
respondent - University holding that the petitioners case
cannot be considered in light of the fact that the petitioners
failed to complete 240 days within 10 years between 1991 to
2000 is such that the same is contrary to what was submitted
in Special Civil Application No.1795 of 2005, the same having
attained finality.
13. At this stage, it is apposite to refer to the ratio laid down
by the Hon'ble Apex Court to consider the case of the
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petitioners in light of the judgments reproduced herein,
rendered by the Hon'ble Apex Court.
13.1 In case of Jaggo Vs. Union of India & Ors. reported in
2024 INSC 1034. Paragraphs 15, 16 and 26 of the said decision
read thus:
"15. Furthermore, the respondents' conduct in issuing tenders for
outsourcing the same tasks during the pendency of judicial
proceedings, despite a stay order from the Tribunal directing
maintenance of status quo, reveals lack of bona fide intentions. Such
actions not only contravened judicial directives but also underscored
the respondents' unwillingness to acknowledge the appellants' rightful
claims to regularization.
16. The appellants' consistent performance over their long tenures
further solidifies their claim for regularization. At no point during their
engagement did the respondents raise any issues regarding their
competence or performance. On the contrary, their services were
extended repeatedly over the years, and their remuneration, though
minimal, was incrementally increased which was an implicit
acknowledgment of their satisfactory performance. The respondents'
belated plea of alleged unsatisfactory service appears to be an
afterthought and lacks credibility.
26. While the judgment in Uma Devi (supra) sought to curtail the
practice of backdoor entries and ensure appointments adhered to
constitutional principles, it is regrettable that its principles are often
misinterpreted or misapplied to deny legitimate claims of long-serving
employees. This judgment aimed to distinguish between "illegal" and
"irregular" appointments. It categorically held that employees in
irregular appointments, who were engaged in duly sanctioned posts
and had served continuously for more than ten years, should be
considered for regularization as a one-time measure. However, the
laudable intent of the judgment is being subverted when institutions
rely on its dicta to indiscriminately reject the claims of employees,
even in cases where their appointments are not illegal, but merely lack
adherence to procedural formalities. Government departments often
cite the judgment in Uma Devi (supra) to argue that no vested right to
regularization exists for temporary employees, overlooking the
judgment's explicit acknowledgment of cases where regularization is
appropriate. This selective application distorts the judgment's spirit
and purpose, effectively weaponizing it against employees who have
rendered indispensable services over decades."
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13.2 In case of Vice Chancellor, Anand Agriculture University
Vs. Kanubhai Nanubhai Vaghela & Anr., Civil Appeal No.4443
of 2021. Paragraph 11 of the said decision reads thus:
"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 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)."
13.3 In case of Shripal & Anr. Vs. Nagar Nigam, Ghaziabad ,
Civil Appeal No.8157 of 2024. Paragraphs 15, 16 and 17 of the
said decision read thus:
"15. It is manifest that the Appellant Workmen continuously
rendered their services over several years, sometimes spanning more
than a decade. Even if certain muster rolls were not produced in full,
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the Employer's failure to furnish such records--despite directions to do
so--allows an adverse inference under well-established labour
jurisprudence. Indian labour law strongly disfavors perpetual daily-
wage or contractual engagements in circumstances where the work is
permanent in nature. Morally and legally, workers who fulfil ongoing
municipal requirements year after year cannot be dismissed summarily
as dispensable, particularly in the absence of a genuine contractor
agreement. At this juncture, it would be appropriate to recall the
broader critique of indefinite "temporary" employment practices as
done by a recent judgement of this court in Jaggo v. Union of India3 in
the following paragraphs:
"22. The pervasive misuse of temporary employment contracts,
as exemplified in this case, reflects a broader systemic issue
that adversely affects workers' rights and job security. In the
private sector, the rise of the gig economy has led to an
increase in precarious employment arrangements, often
characterized by lack of benefits, job security, and fair
treatment. Such practices have been criticized for exploiting
workers and undermining labour standards. Government
institutions, entrusted with upholding the principles of fairness
and justice, bear an even greater responsibility to avoid such
exploitative employment practices. When public sector entities
engage in misuse of temporary contracts, it not only mirrors the
detrimental trends observed in the gig economy but also sets a
concerning precedent that can erode public trust in
governmental operations.
.........
25. It is a disconcerting reality that temporary employees,
particularly in government institutions, often face multifaceted
forms of exploitation. While the foundational purpose of
temporary contracts may have been to address short-term or
seasonal needs, they have increasingly become a mechanism to
2024 SCC OnLine SC 3826 evade long-term obligations owed to
employees. These practices manifest in several ways:
• Misuse of "Temporary" Labels: Employees engaged for work
that is essential, recurring, and integral to the functioning of an
institution are often labelled as "temporary" or "contractual,"
even when their roles mirror those of regular employees. Such
misclassification deprives workers of the dignity, security, and
benefits that regular employees are entitled to, despite
performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently
dismissed without cause or notice, as seen in the present case.
This practice undermines the principles of natural justice and
subjects workers to a state of constant insecurity, regardless of
the quality or duration of their service. • Lack of Career
Progression: Temporary employees often find themselves
excluded from opportunities for skill development, promotions,
or incremental pay raises. They remain stagnant in their roles,
creating a systemic disparity between them and their regular
counterparts, despite their contributions being equally
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significant. • Using Outsourcing as a Shield: Institutions
increasingly resort to outsourcing roles performed by temporary
employees, effectively replacing one set of exploited workers
with another. This practice not only perpetuates exploitation but
also demonstrates a deliberate effort to bypass the obligation to
offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are
often denied fundamental benefits such as pension, provident
fund, health insurance, and paid leave, even when their tenure
spans decades. This lack of social security subjects them and
their families to undue hardship, especially in cases of illness,
retirement, or unforeseen circumstances."
16. The High Court did acknowledge the Employer's inability to
justify these abrupt terminations. Consequently, it ordered re-
engagement on daily wages with some measure of parity in minimum
pay. Regrettably, this only perpetuated precariousness: the Appellant
Workmen were left in a marginally improved yet still uncertain status.
While the High Court recognized the importance of their work and
hinted at eventual regularization, it failed to afford them continuity of
service or meaningful back wages commensurate with the degree of
statutory violation evident on record.
17. In light of these considerations, the Employer's discontinuation
of the Appellant Workmen stands in violation of the most basic labour
law principles. Once it is established that their services were
terminated without adhering to Sections 6E and 6N of the U.P.
Industrial Disputes Act, 1947, and that they were engaged in essential,
perennial duties, these workers cannot be relegated to perpetual
uncertainty. While concerns of municipal budget and compliance with
recruitment rules merit consideration, such concerns do not absolve
the Employer of statutory obligations or negate equitable entitlements.
Indeed, bureaucratic limitations cannot trump the legitimate rights of
workmen who have served continuously in de facto regular roles for an
extended period."
14. In light of the ratio laid down by the Hon'ble Apex Court,
as referred above, and in the facts of the present case, the
petitioners herein are working as daily wagers in the
respondent - University as Agriculture Labourers since past
more than 30 years continuously. Mr. Chauhan, learned
advocate appearing for the respondent - University is not in a
position to point out that during the span of 30 years, there are
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any issues with regard to the competence or performance of
the petitioners nor is there any allegation of misconduct
attributed to the petitioners herein. Resultantly, this is a fit
case to exercise extra-ordinary jurisdiction under Article 226 of
the Constitution of India.
15. Consequently, the impugned order dated 29.02.2016
passed by the respondent - University is quashed and set
aside for the reasons as stated above. The respondent -
University to reconsider the case of the petitioners afresh
taking into consideration the ratio laid down by the Hon'ble
Apex Court in the case of Workmen of American Express
International Banking Corporation Vs. Management of
American Express International Banking Corporation, reported
in AIR 1986 SC 458 wherein, the Hon'ble Apex Court has
categorically held that while reckoning the number of days, the
workman has worked, Sundays and other public holidays also
should be taken into account.
16. Mr. Chauhan, learned advocate has provided this Court
with the details of the vacancies in the respondent -
University. While considering the case of the petitioners for
regularization pursuant to the directions issued by this Court,
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the respondent - University also to take into consideration the
vacancies placed on record wherein, the petitioners herein
appear to be Agriculture Labour and there are five vacancies
therefore, it also cannot be said that there are no vacancies for
the posts to be regularized in respondent - University. The
aforesaid be undertaken in light of the scheme of the
respondent - University as also independently, the petitioners
herein having put in more than 30 years of service
continuously as daily wagers in the respondent - University.
17. With the aforesaid directions, the present petition is
allowed. Needful be done by the respondent - University within
a period of eight weeks from the date of receipt of this order.
Rule is made absolute.
(VAIBHAVI D. NANAVATI,J)
NEHA
