IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4847 of 1991 with SPECIAL CIVIL APPLICATION No 353 of 1987 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- AYUB N BADI Versus GUJ STATE LAND DEVELOPMENT CORPORATION LTD -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4847 of 1991 Ms. Krina C. Thakkar MR YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners No. 1-3 R YOGESH S LAKHANI for Petitioners MR BA VAISHNAV for Respondents N . 1,3 NOTICE NOT RECD BACK for Respondent No. 2 2. Special Civil Application No. 353 of 1987 Mr. K.S. Acharya & MR AK CLERK for Petitioner No. 1 Mr. B.A. Vaishnav for Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 27/03/2002 ORAL JUDGEMENT Heard learned advocate Ms. Krina C. Thakkar, Mr. A.K. Clerk and Mr. K.S. Acharya for the petitioners in these two petitions and Mr. Biren A. Vaishnav for the respondent Corporation in these two petitions. In special civil application no. 4847 of 1991, rule was issued by this Court on 26th July, 1991 and it was ordered to be heard with special civil application no. 353 of 1987 and ad.interim relief granted earlier was modified by issuing direction that the respondents shall not terminate the services of the petitioners except in accordance with law by order dated 3rd October, 1991. Similarly, in special civil application no. 353 of 1987 also, rule has been issued by this court on 3.4.1987 and interim relief was granted on 12th February, 1987 and it was directed that the services of the members of the petitioner union shall not be terminated except in accordance with law. Brief facts of special civil application no. 4847 of 1991 are to the effect that the petitioners joined the services with the respondents with effect from 14.12.1981, 1.6.1982 and 24.6.1983 respectively as a contingent peons since their date of joining without any break in service and they are being paid very meagre amount as they are continued as contingent peons and have to work for four hours in a day as contingent peons. Since the date of their joining the service, there was no any break in their service and their services have also never terminated in between till this date. The respondents are paying fixed salary to the petitioners. No other allowance or benefit is being paid to the petitioners and at one point of time, request was made by one of the petitioner for food grain allowance and such application for food grain allowance has been rejected by the authority of the respondents as per page 26 and 28 of the petition. The petitioners are receiving lumsum amount of fixed salary of Rs.1000.00 and they are continued as such since last more than 20 years or so and are receiving fixed salary without any other benefits attached to the work which has been carried out by the petitioners. The nature of work which has been performed by the petitioner is permanent and vacancies are available but the respondent is not regularizing the services of the petitioner and, therefore, the petitioners have filed the present petitions before this court. Special Civil Application No. 353 of 1987 has been filed by the union representing 103 employees who are working as part time contingent paid employees and have to work four hours in a day as per annexure "A" which is attached to the petition at page 22 wherein date of joining of each of the members of the petitioner union have been given. Almost all the employees have been appointed from 1980 to 1984 and some were appointed even in the year 1976-77. The petitioners have continued to work as such without any break since the date of their joining and since their services have not been regularized by the respondents though vacancies are available, they have filed the said petition before this Court. In both the petitions, the respondent corporation has filed affidavit in reply wherein the respondent corporation has contended that the petitioners are the contingent paid employees and their services are required only for a period of four hours in a day; the petitioners are required to clean the concerned local office in the morning and to fill in the drinking water pot; that the Government has fixed the wages for contingency paid employees depending on the number of hours for which they are required to work; that there is no permanent employees under the respondent corporation who are required to render their services only for four hours in a day. The deponent of the said affidavit in reply has contended that the permanent employees under the respondent corporation such as those holding the post of peons are required to render their services on full time basis and not on part time basis. Therefore, the claim of the petitioner for salaries in the regular pay scale cannot be accepted. It has been denied that the petitioners are doing the identical or same work which is being done by the permanent employees of the respondent corporation. It has also been submitted that the claim of the petitioner for permanent status is not tenable. The petitioners are not regularly recruited employees. It has been contended that the respondent No.1 Corporation has framed Recruitment Rules for various rules for various posts under the respondent no.1. The petitioners are not appointed as per rule 12(1) of the Recruitment Rules. The petitioners are not appointed on any regular posts of peons. The petitioners were not employed pursuant to any public advertisement or through the employment exchange but have been employed as mere daily wager peons in the subordinate offices of the respondent corporation in view of the local requirements at the relevant time. The petitioners have no right to claim the status of permanent employees or any permanency benefits as alleged. It has also been contended that the corporation makes recruitment to the post of peons after calling names, the corporation calls for interview those contingency paid employees who have completed five years of service. The deponent of the affidavit in reply has contended that the petitioners were called for interview in November, 1990 but were not selected. It has been contended that there is no any arbitrary or discriminatory treatment is meted out to the members of the petitioner union. It has been denied that the persons junior to the petitioners are made permanent as alleged. It has been clarified that those who were selected for the posts of peons at the time of regular selection procedure were appointed as peons and since the petitioners were not selected, were not appointed on the posts of peons. It has also been contended that the petitioners are being paid wages in accordance with the Government circular at Annexure "I" and therefore, the petitioners are not entitled to any reliefs as claimed by the petitioners. It has been reiterated that at the regular selection procedure, contingency paid employees having completed five years of service were called. Those who were selected were appointed as peons in April, 1991 and since the petitioners were not selected, were not appointed and, therefore, it has been submitted that there is no question of discrimination or injustice as alleged. It has also been denied that the respondents have adopted unfair labour practice. It has been submitted that the petitioners are not regular permanent employees nor are they doing the work being done by the regular permanent employees. It has been submitted that the petitioners are contingency paid daily wager employees and are required to render only for four hours in a day for dusting the office, filling in the water pot etc. and are not doing the work which is being done by the permanent regular employees working on full time basis. It has been submitted that there is no question of equal pay for equal work as the petitioners are not doing the identical or similar work which is being done by the permanent employees of the respondent corporation. It has also been denied that any corrupt practice has emerged by employing the petitioners on contingency basis. It has also been denied by the respondent corporation that the services of the petitioners will be terminated as alleged in para 10 of the petition. After raising such contentions and also after reiterating the same, the respondent No.1 has submitted that the petitioner are not entitled to any reliefs in these two petitions and, therefore, these petitions are required to be rejected. During the course of hearing of these petitions, learned advocate Ms. Krina Thakkar has relied upon the following authorities in support of her contentions. (1) 2002 - 1 - CLR page 550 in case of Amarsinh Madhavji Chauhan versus State of Gujarat. (2) AIR 1996 SC 2898 in case of Chief Conservator of Forests and another etc. v. Jagannath Maruti Konthare etc. (3) AIR 1998 SC 1477 in case of Arun Kumar and others v. State of Bihar and others. (4) AIR 2000 SC 3287 in case of Hindustan Machine Tools versus M. Ranga Reddy (5) AIR 2001 SC 706 in case of Gujarat Agricultural University versus Rathod Labhu Bechar. Relying upon the aforesaid decisions, she has submitted that the respondent corporation is taking work from these part time employees for more than twenty years continuously but is not paying regular salary to such employees. According to her, it amounts to unfair labour practice on the part of the respondent Corporation which is an authority of the State. She has also submitted that the employees were appointed as part time contingency paid employees and the recruitment procedure has not been followed and the names were not sponsored by the employment exchange but the fact remains that the appointments as such were given by the respondent Corporation and, therefore, it cannot be said that there is any back door entry as alleged. According to her, therefore, the contention of back door raised by the respondents is required to be rejected. She has also submitted that such employees who were appointed as part time employees since more than twenty years have to maintain their families and their responsibilities towards their families are being increased but their wages are the same which they were being paid at the time of their entry. She has submitted that according to the reply filed by the respondents, in November, 1990, procedure of selection was carried out by the respondents and, thereafter, no such selection procedure has been held by the respondents after November, 1990 for absorption of such part time employees by way of regular selection. She has submitted that such inaction on the apart of the respondent corporation in not initiating such procedure regularly for regularizing the services of such part time contingency paid employees has deprived such employees from their legitimate rights of being regularized in accordance with the rules and procedure prescribed by the respondents. She has submitted that the work which is being done by the petitioners is permanent in nature and, therefore, the petitioners are entitled for regularization of their service and are entitled to get status of permanent regular employees. She has further submitted that it is not the case of the respondent as per their affidavit in reply that there is no vacancy available in the respondent corporation.She has submitted that the work which is being carried out by the petitioner is that of sweeper and there is no criteria as to what should be the criteria as regards experience or qualification has not been clarified in the affidavit in reply. She has also submitted that alongwith the affidavit in reply, the respondent corporation has produced list at page 42 which is containing the particulars of the contingency peons who were called for interview in November, 1990. Whether the employee has been selected or not could be gathered from col.4 of the said particulars at page 42 wherein answers have been given either in "YES" or "NO" against their respective claim. She has submitted that if the said list is minutely examined, then, it would definitely appear that the persons junior to the petitioners in these petitions and also the members of the petitioner union in these matters have been made permanent by process of selection whereas the petitioners, though are senior to such persons, have not b been regularized and absorbed and, therefore, the action of the respondents in not regularizing the petitioners while regularizing such other employees who are junior to the petitioners is arbitrary and violative of Article 14. She has further submitted that thus, on one hand, the petitioners have been deprived of their status of permanent employees by not selecting them in the selection procedure held in November, 1990 and on the other hand, after November, 1990, till this date, no such procedure has again been held by the respondent for regularizing such employees. This has also deprived the petitioners of their right to claim regularization and absorption in accordance with the procedure prescribed under the rules. She has also submitted that the approach, attitude and inaction on the part of the respondent authorities in not regularizing the services of the petitioners and members of the petitioner union is illegal, unjust, unfair and violative of Article 14 and 21 of the Constitution of India and is required to be deprecated by this Court. On the other hand, learned advocate Mr. Vaishnav appearing for the respondent corporation in these two petitions has submitted that the petitioners are not legally entitled to claim absorption in the respondent corporation as a matter of right unless they clear the recruitment procedure prescribed by the corporation under rule 12 of the Rules for recruitment. According to him, the petitioners were appointed as such without following any procedure and, therefore, on the basis of such back door entry, they cannot claim any such right as has been prayed by the petitioners in these petitions. He has further submitted that the work which is required to be performed by the petitioners is about four hours in a day and no full time work is available with the respondents and, therefore, the petitioners are not entitled for regularization or absorption as alleged and grant of such relief would financially affect the respondent corporation. He has also submitted that the persons who were found fit in the selection process held in November, 1990 have been made permanent by the respondents. He admits that, no doubt, some of such persons are junior to the petitioners who have been made permanent during the said selection process. He has not been able to answer whether any such process has thereafter been undertaken by the respondent corporation for regularizing and absorbing such employees after November, 1990 in accordance with the Circular at Annexure I. He has relied upon the following decisions and has submitted that in the facts and circumstances of the case and also in view of the principles laid down by the apex court and this Court in the following decisions, the petitioners herein are not entitled to any reliefs as prayed for by them. (1) 1998 (3) GLR page 2264 in case of D.D. Upadhyaya and others versus State of Gujarat and others. (2) [1992] 1 SCC 489 in case of State of Punjab and others versus Surinder Kumar and others. (3) JT 1994 (5) SC 378 in case of Dr. Arundhati Ajit Paragaonkar v. State of Maharashtra & Anr. (4) 1992 (1) GLR page 608 in case of Dinesh Shivubha Parmar versus State of Gujarat and others. Relying upon the aforesaid decisions, he has submitted that the petitioners are not having any legal right to claim absorption as a permanent employees in the respondent corporation and the respondent corporation is not duty bound to consider their case for absorption and, therefore, present petitions under Article 226 of the Constitution of India are required to be dismissed. I have considered the submissions made by the learned advocates for the respective parties. It is required to be noted that each of the petitioners herein and each of the member of the petitioner union herein has been appointed by the respondent corporation after verifying the particulars as regards their names, age, qualification and experience etc. for the work in question. These all are class IV employees working as sweeper to clean the office, filling drinking water in the pot and such other miscellaneous work which is required to be performed by each of the petitioners herein four hours in a day. It is also not in dispute that since last about twenty years or so, the petitioners are working as contingency paid employees on part time basis for four hours in a day. It is also clear that the rules are prescribing for procedure for absorbing and giving them status of regular employee in time scale and in November, 1990, such task was undertaken by the respondent corporation wherein some of such employees were regularized but thereafter, no such exercise has been undertaken by the respondent corporation and, that is why, the petitioners herein are at the same square where they were after these much years of their service. It is also clear that the work which the petitioners are performing since last about twenty years is of a permanent nature. The only difficulty is that they are being considered as part time contingency paid employees without any benefits to such employees. The respondent corporation which is a "State" or "the other instrumentality of the State" within the meaning of Article 12 of the Constitution of India has acted in a manner to take work from each petitioner as a part time contingency paid employees for four hours in a day in a fixed salary without any other benefits. There is no any policy in the respondent corporation to make them permanent after completing service of these much years. Rules have been framed in this regard and after November, 1990, the respondents have not followed such procedure for regularizing their services. IN the selection process held in November, 1990, about 36 of such employees were made permanent as per the procedure prescribed under the rules as per the list at page 42 produced by the respondent corporation. Even in that process also, some of the persons junior to the petitioners have been regularized but the petitioners have not been regularized. The respondent corporation has not been able to submit before this Court as to what was the criteria for selection of such employees while making them permanent. It is also necessary to be noted that there is no averment in the petition that during the tenure of about twenty years, whether there is any complaint as regards work of any of the petitioners herein or not. If there is no complaint as regards their work, then, their case is required to be considered for regularization after having rendered the service of about twenty years as part time employees. While considering their case for regular appointment as a regular employee, such experience earned by the petitioners herein is enough to justify their regular appointment on the post in question. However, the respondents have not regularized their services and, therefore, considering this aspect, that if one employee who has been appointed as part time employee, if he has to remain as such for an indefinite period, then, his life also would become part time but he has to live in a full time; he has to maintain the family and after number of years, his responsibility towards his family would be increasing and in such circumstances, with the small amount of Rs.1,000.00, such an employee would not be able to satisfy the basic requirements of the family. This aspect has been considered by various courts in respect of the similar situation that if the service of such an employee has continued since long period, then, his services must be regularized and for that, there must be some rules, procedure and exercise to be undertaken in accordance with such rules and procedure. This aspect has been considered by the apex court as well as this court in number of cases. Before considering the decisions of the apex court in the subject matter, it is necessary to note some of the observations made by the apex court in recent decision in case of M.S. Garewal and another versus Deep Chand Sood and others reported in (2001) 8 SCC 151. In para 27 and 28 of the said decision, the apex court has observed as under: "27. The decision of this Court in D.K. Basu versus State of W.B. comes next. This decision has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits stands extended since Anand,J. (as His Lordship then was) in no uncertain terms observfed; (SCC p. 439 para 45) 'The Courts have the obligations to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the o ffender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to the life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim,who may have been the breadwinner of the family.' 28. Currently, judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affection of the people has been taken note of rather seriously and the judicialconcern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse tothe old conservative doctrine of the civil court's obligation to award damages. As a matter of fact, the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the countrybut the learned Judge with his usual felicity of expression firmly established the current trend of justice oriented approach. Law courts will lose their efficacy if they cannot possibly respond to theneed of the society technicalities there might be many but the justice oriented