LPA/532/2000 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 532 of 2000 In SPECIAL CIVIL APPLICATION No. 5810 of 1991 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= VADODARA MUNICIPAL CORPN KAMDAR KARMCHARI UNION - Appellant(s) Versus MUNICIPAL COMMISSIONER, & 1 - Respondent(s) ========================================================= Appearance : MR RD RAVAL for Appellant(s) : 1, MR PRANAV G DESAI for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 28/02/2008 ORAL JUDGMENT LPA/532/2000 2/8 JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) At the outset, learned advocate Mr. Raval has raised objection in respect of hearing of the above Special Civil Application No.5810 of 1991 in isolation of the Special Civil Applications Nos. 2428 of 1999 and 3196 of 1999. This objection was considered by us, and was rejected by order dated 21st February, 2008. For the reasons recorded in the said order, the objection is once again rejected. This Appeal, preferred under Clause 15 of the Letters Patent, arises from the judgment and order dated 24th July, 2000 passed by the learned Single Judge in Special Civil Application No.5810 of 1991. The appellant is Vadodara Municipal Corporation Kamdar Karmachari Union, a labour union (hereinafter referred to as “the Union”), the writ petitioner in the main petition. The above Special Civil Application No.5810 of 1991 was preferred by the Union against respondent - Vadodara Municipal Corporation (hereinafter referred to as “the Corporation”) under Article 226 of the Constitution LPA/532/2000 3/8 JUDGMENT of India in respect of absorption of two workmen - Mr. Meghraj Ganpatsingh Chauhan and Mr. Balkrishna Dajirao Ingle, ex-servicemen. According to the Union, the conditions of service of aforesaid two workmen are governed by the terms and conditions of the award of the Industrial Tribunal, Ahmedabad passed in Reference (IT) No.146 of 1976. By the said award, the Industrial Tribunal had directed that on completion of 720 days' of service, the daily rated employees should be made permanent with effect from the date next following the date on which they complete such service. The Union has, therefore, complained that the aforesaid two workmen though have completed 720 days' service as daily rated employees, they have not been made permanent in the service of the Corporation. The Corporation, therefore, be directed to make service of the said two workmen permanent; they be granted pay in the regular pay scale; their pay be fixed in accordance with rule 330 of Bombay Civil Services Rules. Mr. Raval has submitted that in the year 1989 or thereabout the aforesaid two workmen were appointed LPA/532/2000 4/8 JUDGMENT by the Corporation as watchman supervisor in its security branch. The said appointments were made after inviting applications and selection by the staff selection committee. The said two workmen were, therefore, entitled to benefit from the above referred award made in Reference (IT) No.146 of 1976. After completion of 720 days' service, the said two workmen were entitled to permanent service in regular pay scale. The Corporation has, however, not considered the case of the said two workmen for regularization in service. The Corporation has thereby acted in contravention of the binding award made by the Industrial Tribunal. Mr. Desai has contested the Appeal. He has submitted that the aforesaid workmen were not appointed after following due procedure for recruitment in service of the Corporation. The learned Single Judge has, by impugned judgment, rejected the claim of the Union. The learned Single Judge has held that, in case of an ex- military personnel there may be a reservation in the LPA/532/2000 5/8 JUDGMENT public service. However, such appointment also is required to be made in accordance with the relevant recruitment rules. In the present case, it was not established that the appointment of the said two workmen was made in accordance with the recruitment rules. The appointment being bad in law, the benefit conferred by the award cannot be conferred upon such workmen. The learned Single Judge observed that, “If any award confers the benefit on the employees, those appointments are bad in law or illegal or violative of Articles 14 and 16 this Court will not enforce such an award and more so to confer identical benefits to the petitioners. This Court under Article 226 of the Constitution exercises extraordinary equitable jurisdiction. The protection under Article 226 of the Constitution is only meant for those employees who are legally inducted in service. Violators of law and the beneficiaries of the illegal appointments cannot be protected.” We are in agreement with the aforesaid observation made by the learned Single Judge. Further, the claim for absorption of the aforesaid LPA/532/2000 6/8 JUDGMENT workmen in permanent service is solely based upon the above referred award made in Reference (IT) No.146 of 1976. If we peruse the said award, by the said award the Tribunal directed that, “the temporary (daily rated) employees of the Corporation who completed a total actual service of 720 days in the Corporation should be made permanent with effect from the date next following the date on which they have so completed such service. They shall be given the pay scale and all other benefits are being given to permanent employees of the Corporation, with effect from such date.” It is apparent that, the aforesaid award was made in respect of the temporary (daily rated) employees. If we peruse the appointment orders issued to the above referred two workmen; they were first appointed on 21st February, 1989 for a period of six months in the pay scale of Rs.800-1150. The appointment was temporary and ad hoc. By further order dated 22nd October, 1989 their appointment was extended from 27th August, 1989 upto 26th February, 1990 on a consolidated pay of Rs.1200/-. Let us now examine the averments made in the LPA/532/2000 7/8 JUDGMENT writ petition. First, it is not the case in the writ petition that the appointment of the aforesaid two workmen was made after following due procedure or in accordance with the relevant recruitment rules. The claim made in the petition is solely based on the above referred award made in Reference (IT) No.146 of 1976. Second, in view of the terms and conditions of their appointment, the said workmen cannot be said to be daily rated employees covered by the above referred award made in Reference (IT) No.146 of 1976. Third, the only appointment orders which are produced or referred to are of 21st February, 1989 and 22nd October, 1989. The total service of the aforesaid two workmen under the above referred two orders is not more than one year i.e. far less than “720 days' actual service” referred to in the award. For a moment let us accept that the said workmen were entitled to the benefit under the said award; the workmen having not completed 720 days' actual service as envisaged by the award, the claim made by the Union has no foothold. The said workmen, therefore, cannot claim benefit of the said award as a matter of course. We are, therefore, of the opinion that the LPA/532/2000 8/8 JUDGMENT claim made by the Union wholly based on the above referred award passed in the Reference (IT) No.146 of 1976 is misconceived and has rightly been rejected. No case for interference is made out. The Appeal is dismissed. The parties will bear their own cost. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) kdc