IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.8639 OF 1988 WITH SPECIAL CIVIL APPLICATIONS NO.7671 OF 1989, 7921 OF 1989, 8535 OF 1989, 4161 OF 1990, 7188 OF 1993, 11211 OF 1994, & 121 OF 1996. For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters 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? --------------------------------------------------------- GOVINDBHAI A CHAUHAN & ORS. VERSUS THE GUJARAT SCHEDULED CASTE ECONOMIC DEVELOPMENT CORPN. --------------------------------------------------------- Appearance: Special Civil Application No.8639 of 1988: Mr. R.K.Mishra for the Petitioners Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.7671 of 1989: Mr. S.N. Soparkar for the Petitioners Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.7921 of 1989: Mr. R.K.Mishra for the Petitioner Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.8535 of 1989: Mr. P.K. Jani for the Petitioner Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.4161 of 1990: Mr. S.N. Soparkar for the Petitioner Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.7188 of 1993: Mr. Nagesh Sud for the Petitioner Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.11211 of 1994: Mr. Amar Bhatt for the Petitioner Mr. H.L. Jani for Respondent-State None present for other Respondents Special Civil Application No.121 of 1996: Mr. J.F. Shah for the Petitioner Mr. H.L. Jani for Respondent-State None present for other Respondents --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision: 01/05/97 C.A.V. JUDGMENT Heard learned counsel for the parties. As the facts and grounds on which the challenge has been made to the action of the respondents to terminate the services of the petitioners proceed on the common facts and grounds, all these writ petitions are being disposed of by this common order. 2. Special Civil Application No.8639 of 1988: There are in all, four petitioners in this Special Civil Application. The petitioner No.1 was selected as apprentice by the respondent-Corporation with effect from 30th September 1985. This apprenticeship was for one year, i.e. upto 30th September 1986. On completion of the aforesaid apprenticeship, the petitioner, as per his own case, was appointed on daily wages as Junior Assistant. The petitioner No.2 was also selected as trainee for apprenticeship with effect from 30th September 1985 to 30th September 1986 and on completion of the said period, he was given appointment on the post of Junior Assistant on daily wages. The petitioner No.3 was selected to undergo apprenticeship for one year from 30th September 1986 to 30th September 1987. Then she was given appointment on the post of Junior Assistant on daily wages with effect from 1.10.87. Similarly, the petitioner No.4 was also selected for apprenticeship with effect from 1st October 1987 to 1st October 1988 and after completion of the said period, he was given appointment on daily wages as Junior Assistant. It is the case of these petitioners that they were ordered to be continued on the post of Junior Assistants on daily wages for all these years though they made representations from time to time for their absorption in regular service. The petitioners filed this petition before this Court and the prayer has been made for direction to the respondents to absorb them on permanent post of Junior Assistant in the pay scale of the post, to provide them the benefits of permanency, seniority and have also prayed for further directions to give them benefits of the pay scale from the date of completion of apprenticeship. This petition has come up for admission before this Court on 30th December 1988 on which date, notices were issued and by way of interim relief, the respondents were directed to maintain status-quo as regards the service of the petitioners. On 2nd February 1989, this Court ordered: "Rule. Status quo to continue. Despite the status quo order, it will be open to the respondents to give any appointments to the petitioners as they deem fit, even including ad-hoc appointments." After filing of this Special Civil Application, the petitioners prayed for amendment of the Special Civil Application, which was granted. Para-12A has been inserted wherein the petitioners have made a grievance that in total disregard of the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act 1947), the respondents sought to terminate the services of the petitioners. It is not in dispute that all the petitioners are continuing in service of the respondents on daily wages under the interim relief granted by this Court. 3. Special Civil Application No.7671 of 1989: There are two petitioners in this Special Civil Application. The first petitioner was appointed as Gujarati Typist on daily wages on 1.12.86. The petitioner No.1 came to be appointed, as per his own case, pursuant to his name being recommended by the Employment Exchange, albeit for the post of apprentice. On 16.9.87, the petitioner No.1 gave an application to the respondent for being appointed as an apprentice (Junior Clerk). The petitioner states that on 1.10.87, he was promoted to the post of apprentice Clerk. Under the letter dated 9th October 1987, the petitioner No.1 was directed to undergo training as apprentice for a period of one year. The petitioner No.1 has completed that period and thereafter he was appointed as apprentice Clerk, as per his own case, on daily wages. The petitioner No.2 joined the respondent-Corporation on daily wages on 12.1.87. He worked till June 1987 and then after giving a break for couple of days, as per his case, again he was given appointment. On 1.10.87, he was appointed as apprentice to undergo one year apprenticeship. After completion of apprenticeship, he has been given appointment on daily wages from 12th January 1987. Both these petitioners have also prayed for directions to the respondents to regularize their services from the date on which they have joined the services of the respondents and to give them all consequential benefits together with interest at the rate of 18% p.a. on the arrears. The writ petition has been amended and further prayer has been made for directions to the respondents to pay to the petitioners from the date on which they have joined the services of the Corporation, and all other equal benefits as are given to other persons of the respondent-Corporation doing equal work. This petition has come up for admission on 24th October 1989 on which date, Notice was issued. On 6th November 1989, this Court made an order: "Ad-interim relief to maintain status quo qua petitioners till 21.11.89..." Thereafter on 20.11.89, the ad interim relief was extended upto 5th December 1989. On 5th December 1989, the ad interim relief was modified and it was ordered that till duly recruited candidates are appointed, the petitioners shall be continued as daily wagers. On 21st June 1990, this Court made an order which reads as under: "It is clear from the facts of these cases that a similar application, more or less on similar facts, was admitted by a Bench of our High Court and the number is Special Civil Application No.8639 of 1988. In view of that it is but fair that these Special Civil Applications are also admitted and heard alongwith Special Civil Application No.8639 of 1988. Rule. To be heard with Special Civil Application No.8639 of 1988. Nevertheless, as correctly suggested by Mr.Qureshi, learned counsel appearing for the respondents in all these petitions, the appointment should not be on the basis of the prior recruitments, but on the basis of the reservation policy, and if that be so, the petitioners in all these Special Civil Applications may not be having chances to be absorbed. Considering this submission, it is necessary to have these Special Civil Applications posted at an early date for final disposal. In as much as the status quo has been maintained in all these months in all these cases in respect of the petitioners herein, status quo of the petitioners as on date in all these cases will be maintained till the disposal of the main Special Civil Applications. Post the main Special Civil Applications for final disposal on 27th August 1990." 4. Special Civil Application No.7921 of 1989: The petitioner, in this Special Civil Application was appointed as Junior Assistant, now Junior Clerk, with effect from 22nd January 1985 on daily wages. The services of the petitioner were brought to an end under the order dated 15th July 1986. Thereafter the petitioner was taken into service from 28th July 1986 for 29 days in the pay scale of Rs.260-400 as Junior Assistant. It was an appointment for fixed term and purely on temporary basis subject to the conditions contained in the order. It is the case of the petitioner that later on he was sent for apprentice training for one year. The petitioner filed this writ petition in apprehension that his services will be brought to an end on 16.11.89. Prayer has been made by the petitioner in this Special Civil Application for declaring the purported action to terminate the services of the petitioner, to be illegal, unconstitutional, null and void and for directions to the respondents to absorb the petitioner on the post of Junior Clerk and to place him in regular pay scale. The petitioner has been protected by grant of interim relief by this Court and he is continuing in the service. 5. Special Civil Application No.8535 of 1989: The petitioner, under the order dated 7th September 1987 of the Corporation, was appointed as a Junior Clerk on daily wages and it is the case of the petitioner that since he is continuously working in the Corporation, except for one artificial gap. The Employees' Union made a request to the Corporation for regularizing the services of the petitioner and other daily wagers, but that request seems to have not been accepted. Having apprehension of termination of services, the petitioner filed this Special Civil Application before this Court and prayers have been made to declare the proposed action of the respondents to terminate the services of the petitioner to be illegal and further to issue direction to the respondents to regularize the services and to give him all consequential benefits like in other cases. In this case also, the petitioner has been protected by grant of interim relief by this Court and he is continuing in service till date on daily wages, on which there is no dispute. 6. Special Civil Application No.4161 of 1990: The petitioner herein filed Civil Application No.906 of 1990 for impleading him as petitioner in Special Civil Application No.7671 of 1989, but it appears that this Civil Application was ordered to be converted in Special Civil Application and it was registered as Special Civil Application No.4161 of 1990. the petitioner was taken as apprentice on 29th September 1986. On completion of the period of apprenticeship, she has been appointed on daily wages on the post of Junior Assistant, now Junior Clerk. The writ petition has been filed by the petitioner seeking same reliefs as has been prayed by petitioners in Special Civil Application No.7671 of 1989. Prayers have been made in the said Special Civil Application for regularization of services and for giving them all consequential benefits. In this case also, the petitioner has been protected by this Court by granting the interim relief and as such, she continues in service as daily wager. 7. Special Civil Application No.7188 of 1993: The petitioner, in this Special Civil Application, was appointed as daily wager on 7.9.87 and since that day as per his case, he is continuing in service as daily wager, except for one or two days' break in the month of October 1988. Relief has been prayed for by the petitioner in this Special Civil Application for regularization of services and to give him all the benefits following therefrom. Like other cases, in this case also, the petitioner has been protected by grant of interim relief and under the said order, he is continuously working till date as daily wager. 8. Special Civil Application No.11211 of 1994: The petitioner was appointed as a daily wager on 3rd September 1987 as Junior Assistant, now Clerk, and it is the case of the petitioner that since that day, he is continuously working, though with some artificial breaks. On 1.7.89, the respondent wrote a letter to the District Manager of the respondent's Junagadh Branch instructing him to terminate the services of the petitioner orally. The petitioner herein filed a suit being regular Civil Suit No.390 of 1989 in the Court of learned Civil Judge (Senior Division) Junagadh. In the said suit, exparte injunction was granted in favour of the petitioner restraining the respondents from implementing the order of terminating the services of the petitioner. However, the exparte injunction was vacated after hearing both the sides vide order dated 8.8.94 on the ground that the Court of the Civil Judge (S.D.) Junagadh had no jurisdiction to try and dispose of the suit as its jurisdiction was barred. The petitioner sought permission of the Court to withdraw the suit for taking appropriate proceedings. Permission has been granted and exparte ad interim injunction was ordered to be extended till 27th September 1994. Then the petitioner filed this Special Civil Application before this Court on 22nd September 1994 and prayed therein to regularize his services from the date on which he has joined the services of the respondent-Corporation and for all consequential benefits. This Court has protected the petitioner and as such, he is continuing in the services. 9. Special Civil Application No.121 of 1996: The petitioner came to be appointed as daily wager Clerk on 30th May 1986. The petitioner made representation to the Chairman of the Corporation to regularize his services and to extend the benefits of bonus etc. It is the case of the petitioner that from 20th December 1995, he was not permitted to join the duties. Hence this Special Civil Application. In this case also, this Court has, by grant of interim relief, protected the petitioner, and he is continuing in services till date under the order of this Court. 10. The respondent-Corporation contested these petitions by filing reply to the Special Civil Applications. In these Special Civil Applications, main arguments have been advanced by Shri J.F. Shah, learned counsel for the petitioner in Special Civil Application No.121 of 1996. Firstly, it has been contended by the learned counsel for the petitioner that the action of the respondents to terminate the services of the petitioners without giving any order and without service thereof is illegal and arbitrary. It has next been contended that a hostile discrimination has been made by the respondents in making regularization of services of the persons who were appointed alike the petitioners. It has been contended that Kum. Bhartiben K. Patel, Shri B.D. Ninama were appointed as regular Junior Clerks and Shri R.M. Ravat as regular Peon, though all these persons were also working on daily wages. This action was contended to be in violation of Articles 14 & 16 of the Constitution of India. It has next been contended that the oral termination of services of the petitioners by respondent No.2 was illegal as he was not competent to make the same. It has further been contended that the petitioners are entitled of pay in the pay scale of the post of Junior Clerk on the principle of "equal pay for equal work". In support of this contention, the learned counsel for the petitioners has placed reliance on the decision of Hon'ble Supreme Court in the case of Jaipal & Ors. v. State of Haryana & Ors., reported in AIR 1988 SC 1504. Lastly, the learned counsel for the petitioners contended that it is a case where the petitioners are working on daily wages for years together and as such, the Corporation should have regularized their services, which has not been done. This Court may issue directions to the respondent to regularize their services. 11. The learned counsel for the respondents, in Special Civil Application No.7188 of 1993 raised a preliminary objection that this Special Civil Application deserves to be dismissed only on the ground that the petitioner is guilty of misrepresentation of material facts. It has further been contended that otherwise also, this writ petition is barred by principles of res-judicata or constructive res-judicata as the suit filed by the petitioner in Civil Court for the same relief has been dismissed and which judgment has attained the finality. The learned counsel for the respondents has filed on the record of this case, decision of the Civil Court in Regular Civil Suit No.513 of 1989 of the Court of Civil Judge, (S.D.), Bharuch, dated 13th July 1993. The petitioner has not controverted the facts stated by the respondent-Corporation in the reply as no rejoinder has been filed. A copy of the reply was given to the counsel for the petitioner on 25th April 1996 as it is apparent from the endorsement on the reply, filed in the Court. On merits, the learned counsel for the respondents contended that all the petitioners were appointed on daily wages only and as such, they have no right whatsoever to continue in the employment as well as they have not acquired any right for their regularization in service. Initial appointments on daily wagers was bad in law as it was a case of back door entry. Their appointment has not been made after making selection as per rules or by making selection from the open market. It has next been contended that many of the petitioners have been taken as apprentice for apprenticeship, duration of which is one year, but merely because of the fact that they have undergone apprenticeship training, they do not acquire any right to be appointed or for regularization of their services. The persons for apprentice were selected more than the number required. Only two apprentice could have been selected and accordingly services of two persons have been regularized. Lastly, it has been contended that none of the legal or fundamental rights of the petitioners are being infringed and as such, there is no question of giving of any relief to them as prayed for in these Special Civil Applications. Relying on the contention of the learned counsel for the petitioners for their claim for regularization on the principle of "equal pay for equal work", the learned counsel for the respondents contended that when the appointment of the petitioners itself was bad, no question does arise for regularization of their services. The claim of the petitioners for "equal pay for equal work" is also not tenable as they have been specially appointed on daily wages and they have been work on the days on which work was available. 12. I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. 13. When asked by the Court, the learned counsel for the respondent-Corporation has submitted in writing on the record of these matters that in the year 1989, as per the directions issued by the State Government, the Corporation has undertaken the process for filling up backlog vacancies reserved for Schedule Tribe candidates. Names were called for from Employment Exchange for the said purpose. One Smt. Bhartiben K. Patel, who was serving as a daily wager Junior Clerk with the Corporation was considered as her name was sponsored by Employment Exchange and she was appointed on regular basis after selection process. Similarly, one Shri R.M. Ravat, who was working as daily wager Peon was selected and appointed, and during the same selection one Shri B.D. Ninama was regularly selected and appointed, though he was not working with the Corporation. The second selection process was undertaken in the year 1992 for filling up the backlog vacancy belonging to reserved category of Socially & Educationally Backward Class (SEBC) and Schedule Tribe (ST). One Shri H.C. Parmar (SEBC) and one Shri Manubhai Gameti (ST) were appointed pursuant to the selection process. Both of them were not working with the Corporation. It has lastly been stated that at present, there are 37 sanctioned posts of Clerk (Class III), out of which eight posts are vacant. 14. The facts aforesaid mentioned by the respondents in the form of writing were not controverted by the petitioners. This writing is taken on record of Special Civil Application No.8639 of 1988 and other group matters. 15. First of all, I consider it to be appropriate to decide the Special Civil Application No.7188 of 1993, as this Special Civil Application, in my opinion, deserves to be dismissed only on the ground that the petitioner has concealed the material facts from this Court and he got the order of Rule nisi as well as interim relief in his favour by concealing material facts. The petitioner, in this Special Civil Application, having apprehension of termination of his service, filed Regular Civil Suit No.513 of 1989 in the Court of 4th Joint Civil Judge, (S.D.), Bharuch. This suit has been filed for declaration and permanent injunction. This clearly is borne out from para 1 of the judgment given by the Civil Court in the said suit, which reads as under: The abovenamed plaintiff has filed the present suit for declaration and injunction that the defendants be restrained from terminating the services of the plaintiff in the capacity of Junior Clerk and prayed relief in terms of para 8 of the Plaint at ex.1. In the said Civil Suit, the petitioner filed application ex.5 for grant of temporary injunction and the temporary injunction has been granted in favour of the petitioner, and as such, he continued in services on the basis of interim relief till 30th July 1993. It is not in dispute that in the year 1989, the petitioner's services were sought to be terminated, but the petitioner continued in services till the suit has been decided under the interim relief granted by the Civil Court. So it is not the case where the petitioner was working for years together, as alleged in the Special Civil Application. 16. The petitioner in this case was working on daily wages and his services were sought to be terminated, but he continued in service for all these years in the first phase under the interim order of the Civil Court and in the second phase under the interim order of this Court. The petitioner has deliberately concealed the fact that the suit filed by him in the civil court has been dismissed. Not only he concealed this fact, but by concealing this fact he has obtained rule nisi issued and interim relief granted in his favour. I find sufficient merits in the contention of the learned counsel for the respondents that this writ petition deserves to be dismissed only on the ground of suppression of material fact, without going into the merits of the matter. In proceedings under Article 226 of the Constitution of India, which are initiated for attracting extraordinary jurisdiction of this Court, it is of utmost importance that the petitioner should come forward with clean hands. This Court cannot encourage the idea that a person is entitled to adopt dubious or dishonest or fraudulent means and make false averments while submitting writ petition in this court and further when his falsehood is exposed by the other side putting the correct facts before the Court, it would not be proper to allow the petitioner to make his submissions on merits of the case. It would be laying down a very dangerous principle in the conduct