Gujarat High Court

State Of Gujarat vs Hemshanker Jethalal Dave on 29 June, 2018

Author:
M.R. Shah

Bench:
M.R. Shah
,
B.N. Karia

C/LPA/380/2016 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH Sd/­
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/­
=============================================

1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?

=============================================
STATE OF GUJARAT
Versus
GUJARAT MAZDOOR SABHA
=============================================
Appearance:

MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGITA VISHEN and MR DHAWAN
JAYSWAL, ASSISTANT GOVERNMENT PLEADER(1) for the STATE OF GUJARAT and
OTHERS

MR DG CHAUHAN, MR HS MUNSHAW, MR JA ADESHRA, MR KUNTAL A JOSHI, MR MP
PRAJAPATI, MR MUKESH H RATHOD, MR MURALI N DEVNANI, MR NK MAJMUDAR, MR TR
MISHRA, MR NISARG SHAH, MR HB SINGH, MS KRISHNA RAWAL, MR KARTIK PANDYA,
MR SHIVANG SHUKLA, MS NAYANA PANCHAL, MR ANAND SHARMA, MS BHARGAVI
THAKAR with MR GUNVANT THAKAR, ADVOCATES for RESPECTIVE ORIGINAL
PETITIONERS.

=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA

Date : 29/06/2018

COMMON CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE M.R. SHAH)

[1.0] As common question of law and facts arise in this group of Letters
Patent Appeals, all these Letters Patent Appeals are decided and
disposed of together by this common judgment and order.

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[2.0] The statement showing the particulars of the number of Letters
Patent Appeal and the respective Special Civil Application against which
the Letters Patent Appeals are preferred is as under:

Sr LPA No. SCA No.
No.

1 380/2016 10829/2003

2 753/2017 6019/2001

3 754/2017 757/2003

4 755/2017 5985/2001

5 756/2017 7711/2001

6 757/2017 11504/2001

7 758/2017 10673/2001

8 759/2017 5603/2002

9 760/2017 7732/2001

10 761/2017 752/2003

11 762/2017 5606/2002

12 763/2017 7765/2001

13 764/2017 6017/2001

14 694/2017 14297/2015

15 1430/2016 23/2014

16 1076/2016 6045/2013

17 1081/2016 17223/2012

18 1441/2016 1897/2016

19 1442/2016 1898/2016

20 1443/2016 1899/2016

21 1444/2016 1900/2016

22 1445/2016 1901/2016

23 1446/2016 1902/2016

24 1447/2016 1903/2016

25 1448/2016 2107/2016

26 1449/2016 2108/2016

27 1450/2016 2108/2016

28 1451/2016 2110/2016

29 1452/2016 2111/2016

30 1453/2016 2112/2016

31 1454/2016 2113/2016

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32 1455/2016 2114/2016

33 913/2016 6928/2016

34 1322/2017 18385/2013

35 1329/2017 6575/2016

36 1330/2017 18557/2014

37 476/2016 13670/2012

38 477/2016 15280/2012

39 478/2016 583/2013

40 909/2016 4570/2016

41 934/2016 17826/2011

42 689/2017 7542/2016

43 690/2017 4709/2016

44 63/2017 638/2013

45 64/2017 4991/2016

46 65/2017 5303/2016

47 83/2017 582/2013

48 85/2017 3071/2015

49 88/2017 11330/2015

50 146/2017 2106/2015

51 159/2017 2206/2014

52 218/2017 6813/2016

53 243/2017 14826/2014

54 272/2017 7467/2016

55 296/2017 4344/2016

56 421/2017 14153/2013

57 422/2017 6159/2016

58 423/2017 5073/2016

59 424/2017 1678/2012

60 425/2017 11541/2012

61 426/2017 4933/2016

62 427/2017 4587/2016

63 428/2017 4066/2016

64 429/2017 10308/2012

65 431/2017 616/2013

66 433/2017 10811/2014

67 441/2017 6989/2013

68 496/2017 6046/2013

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69 517/2017 6163/2016

70 522/2017 5177/2016

71 526/2017 4553/2016

72 540/2017 6170/2016

73 552/2017 12114/2013

74 559/2017 4752/2016

75 568/2017 1886/2016

76 725/2017 3417/2016

77 1020/2017 6181/2016

78 1046/2017 4986/2016

79 1195/2017 4189/2012

80 1196/2017 7614/2015

81 56/2017 17346/2012

82 89/2017 11331/2015

83 90/2017 11332/2015

84 91/2017 11333/2015

85 92/2017 11334/2015

86 93/2017 11335/2015

87 94/2017 11336/2015

88 95/2017 11337/2015

89 96/2017 11338/2015

90 97/2017 11339/2015

91 98/2017 11340/2015

92 99/2017 11341/2015

93 100/2017 11342/2015

94 101/2017 11343/2015

95 102/2017 11344/2015

96 103/2017 11345/2015

97 104/2017 11346/2015

98 105/2017 11347/2015

99 106/2017 11348/2015

100 107/2017 11349/2015

101 108/2017 11350/2015

102 108/2017 11351/2015

103 110/2017 11352/2015

104 111/2017 11353/2015

105 112/2017 11354/2015

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106 113/2017 11355/2015

107 114/2017 11356/2015

108 115/2017 11357/2015

109 140/2017 639/2013

110 163/2017 9222/2012

111 173/2017 9494/2013

112 241/2017 9495/2013

113 242/2017 1146/2016

114 244/2017 15839/2013

115 256/2017 3415/2016

116 260/2017 1145/2016

117 271/2017 5255/2015

118 305/2017 5361/2016

119 311/2017 7108/2014

120 314/2017 8783/2015

121 318/2017 4131/2016

122 321/2017 2895/2016

123 322/2017 2896/2016

124 323/2017 4155/2016

125 320/2017 2894/2016

126 316/2017 4773/2016

127 317/2017 4834/2016

128 315/2017 3800/2016

129 378/2017 3662/2016

130 379/2017 12154/2014

131 381/2017 8596/2014

132 406/2017 12155/2014

133 407/2017 3798/2016

134 412/2017 17279/2012

135 748/2017 24/2014

136 751/2017 6323/2016

137 771/2017 6075/2016

138 797/2017 4711/2016

139 798/2017 3660/2016

140 799/2017 3220/2016

141 802/2017 6167/2016

142 816/2017 3316/2016

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143 863/2017 9495/2014

144 932/2017 7516/2016

145 933/2017 7149/2016

146 937/2017 7349/2016

147 940/2017 12398/2014

148 942/2017 12424/2014

149 943/2017 15282/2012

150 944/2017 15279/2012

151 946/2017 18556/2014

152 1011/2017 16864/2014

153 1016/2017 617/2013

154 1022/2017 6183/2016

155 1043/2017 7586/2016

156 752/2017 11154/2015

157 1237/2017 11155/2015

158 1238/2017 11156/2015

159 1239/2017 11157/2015

160 1267/2017 3818/2016

161 1283/2017 360/2015

162 1284/2017 359/2015

163 1285/2017 355/2015

164 1286/2017 356/2015

165 1287/2017 357/2015

166 1288/2017 358/2015

167 1289/2017 18019/2014

168 1291/2017 13079/2013

169 711/2017 6327/2016

170 712/2017 6157/2014

171 714/2017 6516/2016

172 927/2017 7148/2016

173 1269/2017 10984/2013

174 1270/2017 1083/2015

175 1313/2017 7761/2016

176 1314/2017 7680/2016

177 1315/2017 4982/2014

178 1316/2017 4621/2014

179 1369/2017 6728/2016

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180 1370/2017 4998/2016

181 1371/2017 9840/2014

182 1372/2017 9841/2014

183 1373/2017 2219/2016

184 1374/2017 8717/2014

185 1375/2017 15109/2014

186 1376/2017 4046/2013

187 1377/2017 8719/2014

188 1378/2017 13675/2012

189 1379/2017 16651/2014

190 1380/2017 12830/2015

191 1381/2017 12783/2014

192 281/2017 1246/2007

193 291/2017 1248/2007

194 292/2017 1249/2007

195 263/2017 3992/2014

196 1293/2017 3652/2013

197 1294/2017 9112/2014

198 1295/2017 18532/2014

199 1296/2017 18533/2014

200 1297/2017 8718/2014

201 1298/2017 15094/2014

202 1392/2017 3042/2015

203 833/2016 11058/2015

204 1675/2017 3247/2013

205 1676/2017 15110/2014

206 1677/2017 3309/2013

207 1678/2017 1235/2013

[3.0] At the outset it is required to be noted that the main judgment is
delivered / rendered in Special Civil Application No.10892/2003 dated
04.02.2016 arising out of which the Letters Patent Appeal No.380/2016
has been preferred and in rest of the matters, by and large the decision
in Special Civil Application No.10892/2003 has been followed and in
terms of the order passed in Special Civil Application No.10829/2003

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rest of the petitions are disposed of / allowed. Therefore, Letters Patent
Appeal No.380/2016 be treated and considered as a lead matter which is
arising out of Special Civil Application No.10829/2003.

[4.0] The facts leading to the Letters Patent Appeal No.380/2016
arising out of Special Civil Application No.10829/2003 in nut­shell are
as under:

[4.1] That the private respondents herein - original petitioners were
working in the different departments of the State Government either as
work charged employees in the work charged establishment past almost
30 years. The main grievance which was voiced in the main special civil
application was that though they are in the work charged establishment
past almost 30 years, the authorities concerned have not taken any step
to put them on the temporary establishment. It was the case on behalf of
the original petitioners that as a result of such inaction on the part of the
State Government, and/or concerned department, they have been
deprived of benefits which an employee otherwise derives working on
the temporary establishment. Some of the petitioners complained that
although they have been absorbed in the temporary establishment, yet
the same was at a very belated stage, rather than absorbing them in the
temporary establishment on completion of 5 years of service in the work
charged establishment, according to the policy of the State Government,
as laid down in the circular dated 16.08.1973. Therefore, the claim put
forward by the petitioners was to absorb them in the temporary
establishment from the work charged establishment on the basis of the
policy of the State Government which was prevailing at a point of time
in the form of a resolution dated 16.08.1973 issued by the Public Works
Department. It appears that with respect to some of the employees,
before the benefit could be given to them of the resolution of the year

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1973, the State Government cancelled the same and/or revoked the
same vide Government Resolution dated 20.08.2014. That therefore the
petitioners more or less prayed for the following reliefs.

"13(A). Your Lordships be pleased to issue an order, direction
and/or writ in the nature of mandamus and/or any other
appropriate writ, order or direction, directing the respondents
to treat the petitioners on temporary establishment on
completion of 5 years of service as workcharge employees and
further be pleased to direct the respondents to grant them
higher grade on completion of 9, 18 & 27 years of service from
the date the petitioners completed 9 years of service on
temporary establishment;

(B) That Your Lordships be further pleased to direct the
respondents to convert the petitioners from workcharge
establishment to temporary establishment and thereafter grant
further benefit of higher grade on completion of 9, 18 & 27
years of service;

(C) That Your Lordships be pleased to quash and set aside the
impugned G.R. dated 20.08.2014 marked ANN.M to this
petition, being arbitrary, discriminatory and violative of
Articles
& 16
of the Constitution of India;

(D) Pending admission and final disposal of this petition, Your
Lordships be pleased to direct the respondents to consider the
case of the petitioners in the light of the judgment rendered by
this Hon'ble Court in SCA No.7464/1996 and LPA
No.1360/2011;

(E) Any other and such further relief as the Hon'ble Court
deems fit and proper in the interest of justice;"

[4.2] Before the learned Single Judge the original petitioners heavily
relied upon the decision of the learned Single Judge of this Court in the
case of Rashmikaben Trikamlal & Ors. vs. State of Gujarat & Ors.
rendered in Special Civil Application No.7464/1996 decided on
21.01.2011 which came to be affirmed by the Division Bench and
thereafter by the Hon'ble Supreme Court in Special Leave Petition (Civil)
(CC) No.17221/2012. It was the case on behalf of the original
petitioners that they have been serving in the work charged
establishment as work charged employees past almost 3 decades.
Therefore, if the State Government though fit to avail the services of the
petitioners for a period of almost 3 decades at a stretch, then it could be

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said that the nature of work was permanent. It was the case on behalf of
the petitioners that they should have been given the benefit of
Government Resolution dated 16.08.1973 by absorbing them in the
temporary establishment on completion of 5 years' service in the work
charged establishment. It was also the case on behalf of the original
petitioners that action on the part of the State Government in
canceling / revoking the resolution of the year 1973 by way of the
resolution of the year 2014 is absolutely highhanded and arbitrary and
the same is unconstitutional. It was submitted that it was not permissible
in law for the State Government to withdraw the resolution of the year
1973 with retrospective effect. It was also submitted on behalf of the
petitioners that the notification of the year 2014 is violative of
section
9A
of the Industrial Disputes Act, 1947 (hereinafter referred to as "
ID
Act
"). It was submitted that the plea of financial implication is not
tenable in law and cannot be the ground to deny the legitimate right of
the employees to absorb them in the temporary establishment on
completion of 5 years' service in the work charged establishment.

[4.3] It was also the case on behalf of the original petitioners that all of
them were recruited in accordance with law through the employment
exchange and therefore, their appointments could not be termed as
backdoor entry. It was the case on behalf of the petitioners that their
recruitment was in accordance with rules and regulations. Making above
submissions and relying upon number of decisions of the Hon'ble
Supreme Court referred to in para 12 of the impugned judgment and
order, it was requested to grant the reliefs as prayed in the petition.

At this stage it is required to be noted that before the learned
Single Judge there were three categories of employees. First category
was those employees who were serving as work charge in the work
charged establishment and claiming the benefit of the resolution of 1973

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and to absorb them in the temporary establishment on completion of 5
years of service in the work charged establishment. The second category
of employees before the learned Single Judge was those serving in the
temporary establishment and/or as temporary employees claiming the
permanency / absorption in view of the Government Resolution dated
17.10.1998 and/or claiming the higher pay scale on completion of 5
years, 10 years, 15 years as the case may be on the temporary
establishment and the third category of the employees was those who
were serving as daily wagers for number of years and claiming the relief
of their absorption in the work charged establishment and thereafter on
temporary establishment claiming the benefit of higher pay scale and
other benefits as per the G.R. dated 17.10.1988.

[5.0] The aforesaid petitions were vehemently opposed by the State. It
was the case on behalf of the State before the learned Single Judge that
none of the petitioners have any legal or vested right to claim that on
completion of 5 years in the work charged establishment they should
have been absorbed in the temporary establishment. It was submitted on
behalf of the State that the entire claim based on the G.R. of the year
1973 is misconceived.

[5.1] It was the case on behalf of the State that the appointments of the
petitioners were not in consonance with the
Articles 14
and
of the
Constitution of India. It was further the case on behalf of the respondent
State that way back in the year 1978, the State Government had taken a
policy decision not to appoint any person on work charged
establishment, but despite such policy decision, the respective
departments recruited the petitioners. It was submitted that it is well
within the powers of the State Government to change its policy after due
deliberations. It was submitted on behalf of the State that in wake of the

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G.R. of the year 2014, the petitioners cannot claim for the absorption in
the temporary establishment. It was submitted that therefore in view of
the G.R. of the year 2014, the decision of the learned Single Judge in the
case of Rashmikaben Trikamlal & Ors. (Supra) heavily relied upon by
the petitioners shall not be helpful to the petitioners since the G.R. of
1973 no longer remains in existence. It was also the case on behalf of
the State that there are highly disputed questions of fact involved in
each of the petitions as regards the mode of appointment, qualification
etc. and therefore, it was requested not to issue any writ of mandamus
upon the State Government to absorb the petitioners in the temporary
establishment. It was further submitted on behalf of the State that
having regard to the financial implications, it is not feasible for the State
Government to absorb the petitioners from the work charged
establishment to temporary establishment. It was submitted that the
G.R. of the year 2014 could not be termed in any manner as
unconstitutional or illegal as it does not take away any vested or legal
rights of the petitioners.

Making above submissions and relying upon the decisions of the
Hon'ble Supreme Court as well as this Court referred to in para 23 of the
impugned judgment and order and relying upon the affidavit in reply
filed on behalf of the respondent No.1 duly affirmed through the Under
Secretary, R&B Department, Gandhinagar, which has been reproduced
in para 24 of the impugned judgment and order, it was requested to
dismiss the petitions.

[6.0] That thereafter, after considering the submissions made by the
learned Counsel appearing on behalf of the respective parties and
considering
section 9A
of the ID Act, the learned Single Judge has
observed and held and had come to the conclusion that the impugned
G.R. of 2014 is not liable to be quashed only on the ground of violation

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of
section 9A
of the ID Act. However, thereafter, the learned Single
Judge did not accept the objection on behalf of the State of alternative
remedy available. That thereafter after considering the object of the G.R.
dated 16.08.1973 and the fact that the respective petitioners are
continued as work charged employees in the work charged
establishment for the years together and after considering the various
other decisions of the Hon'ble Supreme Court referred to and discussed
in paras 74 to 81 of the impugned common judgment and order and
other decisions referred to in paras 88, 89, 92, 93, 96, 99, 100, 104, 105,
109, 110, 113 and 114, in para 120, the learned Single Judge has
concluded in para 120 as under:

"120. To sum up the principle deduced from the long chain of
decided cases it can be said to be well settled:

(i) In the matter of Government service normal rule is regular
recruitment through prescribed agency, the recruitment of ad
hoc or temporary hands is an exceptional leeway permitted due
to exigencies of administration. In such a fact situation the
endeavour will also be to replace such temporary employee by
regular selected employees.

(ii) that law does not favour ad hoc or temporary employment
continuing for long spells, as it breeds unhealthy and
unreasonable service environment endangering industrial peace
perilously affecting dignity and quality of life of those whose
security of work is under constant threat.

(iii)
Article 14
of the Constitution is embodiment of rule against
arbitrariness and unreasonableness in the State action in all
spheres of its activities.
Article 21
of the Constitution which
guarantees protection against deprivation of life and personal
liberty includes within it the right to dignified livelihood.
Article
39(d)
spells out the directive principles of the State policy
towards securing equal pay for equal work for both woman and
man and
Article 42
stipulates the Directive Principles of the
State policy in securing just and humane conditions of work.

(iv) equal pay for equal work and security of employment by
regularising casual employees of long duration within a
reasonable period have been unanimously accepted as
Constitutional goal to our policy. To this end, thrust has been

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that the management particularly Govt. agencies should not
allow workers to remain as casual labourers or temporary
employees for unreasonably long period of time.

(v) mere continuation for some period on ad hoc by itself does
not give a right to permanency but where for any reason ad hoc
or temporary or work charged employees are continued for
fairly long spell they have a right to claim regularisation and the
authorities are under obligation to consider their case for
regularisation in a fair manner.

(vi) regularisation cannot be resorted to by the governmental
agencies as mode of fresh recruitment to permit back door
entries to frustrate the mandate of
Article 16
by making a
straight jacket measure of service for regularising the
appointment made de hors the rules, unmindful of the
circumstances under which the appointment had been made.

(vii) the first condition for laying claim for regularisation is
availability of work on reasonably permanent basis. Mere
continuance for some time of a casual or ad hoc employee does
not give right to presume about need for continued employment
or work charged but continuation of casual or ad hoc employee
or work charged for a long duration of several years raises a
presumption for need for regular permanent employment may
be justified.

(viii) Apart from the right to reasonable treatment by the State
agencies and security of job emanating from the Constitutional
provisions,
Industrial Disputes Act
is a legislative measure
giving effect to the directive principles of State Policy in the
field of ensuring equal pay for equal work and ensuring security
of job with just and humane conditions by providing prohibition
against practising of unfair labour practice both by employers
and employees and defining the term unfair labour practice to
include practice of engaging workman for long spells
characterising them badli, casual, temporary, ad hoc work
charged with the object of denying them the status of
permanency and benefits and privileges attached thereto.

(ix) A claim by workers, continuing for long spell as casual or
temporary or work charged under an employer governed by the

Industrial Disputes Act
, to permanency is a demand which can
be achieved through collective bargaining or a claim giving rise
to a industrial dispute which can be enforced through
adjudication under the provisions of the
I.D. Act
.

(x) Adjudication of claim for permanent status as an industrial

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dispute which has been made subject matter of reference to the
Industrial tribunal is governed by the principles emanating from
the provisions of
Industrial Disputes Act
which by necessary
implication involves determination of question whether
continued casual or temporary employment is a bonafide
administrative exigency simplicitor or amounts to unfair labour
practice on the part of the employer, inasmuch as claim to
permanency under
Industrial Disputes Act
directly emanates
from prohibition against unfair labour practice adopted by the
employer.

(xi) In situation emerging from long spell of ad hoc or
temporary or casual employment of daily rated workmen,
courts have consistently resorted to issue of directions for
framing a scheme for regularisation of such workmen on a just
and fair basis to the employer or have also issue of directions
for regularising the petitioners before it as the circumstances of
the case may warrant but ordinarily in the first instance an
opportunity is being given to the employer himself to frame a
scheme in a fair and just manner of absorbing such casual
workmen on permanent basis whether in one go or in a phased
manner and has considered objections thereto, if any, before
according its approval to such scheme.

(xii) In considering the question of granting relief as to
conferring status of permanency and emoluments and privileges
attached thereto, primary consideration is existence of
permanent nature of work for such casual employees to be
utilised against it and the extent of absorption on regular and
permanent basis depends upon the extent of regular work
available against which temporary employee can be regularly
employed. Regularisation or permanency is not to be resorted in
case where the establishment by itself is of temporary nature;

where the employment is not with the object of offering
employment but for ameliorating financial condition of weaker
sections of the society like employment under Jawahar Yojana
or where employment has been secured or offered by
committing illegalities, irregularities or fraud as in the case of
Ashwani Kumar (supra) where the appointments were found to
have been given to six thousand persons out of all proportion to
the then existing requirement of the project for about 800
persons only, by the Director of the project Mr. Malik by
committing illegalities, irregularities and fraud as per the
investigation report. In which case the appointments against
rules were held to be nullity and void ad initio."

That thereafter after discussing and/or considering the decisions

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relied upon on behalf of the State, by impugned judgment and order, the
learned Single Judge has concluded finally in para 147 as under:

"147. My final conclusion is as under:

(I) The writ applications are maintainable and are not liable to be
rejected on the ground of availability of an alternative remedy
under the
Industrial Disputes Act, 1947
or any other appropriate
Legislation.

(II) The action of the State Government, in not absorbing the writ
applicants in the temporary establishment from the work charged
on completion of five years of continuous service and fulfillment of
other conditions, is contrary to the concept of social and economic
justice. The State, as a model employer, should not have guillotined
the legitimate aspirations of the employees. It created a situation
with hopes ending in despair.

(III)
Section 9A
of the Industrial Disputes Act, 1947 has no role to
play as such and the issue raised is of no significance.
(IV) The Government Resolution of the year 2014 impugned in
these writ applications being a policy matter is not disturbed, but at
the same time, the writ applicants are entitled to the benefits of the
earlier policy, more particularly, when such policy remained in force
for forty one years and the writ applicants have been serving past
almost thirty years."

At this stage it is required to be noted that as such the learned
Single Judge has rejected the prayer to declare the resolution of 2014 as
per se illegal or unconstitutional being a policy matter. However, has
observed that when the Government has thought it fit to change the
policy decision by revoking the earlier G.R. of 1973, let it be so, but
atleast so far as the employees working as on date on the work charged
establishment are concerned, they are entitled to the benefits of the
earlier policy more particularly when such policy remained in force for
41 years and the petitioners have been serving past almost 30 years.
That thereafter, by impugned common judgment and order the learned
Single Judge has allowed all the petitions in part and has issued the final
directions in para 148 as under:

"148. In the result, all the writ applications are allowed in part.
(I) The State Government is directed to absorb the writ applicants
in the temporary establishment from the work charged and grant
them the benefits as stated below:

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(a) The State Government will first fix the date on which the writ
applicants became eligible for being absorbed on the temporary
establishment in terms of the earlier policy which was prevailing.

Whatever date is fixed in that regard, thereafter nine years period
should be considered as having worked on the temporary
establishment. To put it in clear terms, say for instance, if an
employee was eligible to be absorbed in the work charged
establishment in the year 1995, then he would have been entitled to
the first higher pay scale after putting in nine years of service on the
temporary establishment i.e. 1995 + 9 = 2004. The benefits shall
be calculated accordingly.

(II) So far as the Daily Wagers are concerned, the State Government
is directed to absorb them on the work charged establishment from
the date they were otherwise eligible to be absorbed. For example,
if they would have been absorbed in the year 1995, then the
benefits would accrue nine years thereafter i.e. 2004. I expect the
State Government, as a model employer, to act accordingly and
expeditiously.

(III) If any of the petitioners have retired/expired, then those
petitioners shall also be entitled to the benefits in above terms and
they or their legal heirs, as the case may be, shall be paid the
amount falling due by virtue of this order expeditiously."

[6.1] Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the learned Single Judge in Special Civil
Application No.10829/2003 and other allied Special Civil Applications,
the original respondent Nos.1, 2 and 3 - State of Gujarat and others
have preferred the present Letters Patent Appeals under Clause 15 of the
Letters Patent.

[7.0] Shri Kamal Trivedi, learned Advocate General has appeared with
Ms. Sangita Vishen and Shri Dhawan Jayswal, learned Assistant
Government Pleaders appearing on behalf of the appellants - State of
Gujarat and others and Shri H.S. Munshaw, Shri Nisarg Shah, Shri H.B.
Singh, Shri J.A. Adeshra, Shri D.G. Chauhan, Shri N.K. Majmudar, Shri
T.R. Mishra, Shri U.T. Mishra, Shri Mukesh Mishra, Shri M.P. Prajapati,
Shri Murali Devnani, Shri Mukesh Rathod, Shri Kuntal Joshi, Shri
Krishna Rawal, Shri Kartik Pandya, Shri Shivang Shukla, Ms. Nayana

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Panchal, Shri Anand Sharma, Ms. Bhargavi Thakar with Shri Gunvant
Thakar, learned Advocates have appeared on behalf of the respective
original petitioners.

[8.0] Shri Trivedi, learned Advocate General appearing on behalf of the
appellants State and others has vehemently submitted that the learned
Single Judge has materially erred in directing the State to absorb the
respective petitioners - employees working on the work charged
establishment, on the temporary establishment in terms of the earlier
policy which was prevailing i.e. 16.08.1973 and thereafter to grant them
the higher pay scale on completion of 9 years from the date on which
they are absorbed on the temporary establishment. It is further
submitted that the learned Single Judge has also materially erred in
issuing the directions relying upon and/or considering the resolution of
1973 and has materially erred in directing the State to absorb all those
employees working on work charged establishment to absorb them on
the temporary establishment on completion of 5 years of service as work
charged.

[8.1] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that as such the learned Single
Judge has not properly appreciated the purpose and object of work
charged establishment. It is further submitted by Shri Trivedi, learned
Advocate General appearing on behalf of the appellants that as such by
way of G.R. dated 16.08.1973 initially Government of Gujarat floated a
policy of conversion of post of work charged establishment in respect of
maintenance and repairs of any works or irrigation management which
are either required preliminary or for a very long term basis. It is
submitted that therefore the same was only with respect to the
establishment in respect of maintenance and repairs. It is submitted that

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even as per the said G.R. dated 16.08.1973 there cannot be any
automatic conversion from work charged establishment to temporary
establishment solely on completion of 5 years of service as work
charged. It is submitted that subject to the requirement and availability
of posts, of all those work charged employees were required to be
considered and converted into temporary establishment. It is submitted
that conversion of work charged employees into temporary
establishment was not by way of promotion. It is submitted that the
same was initiated to satisfy the need of people in establishment. It is
submitted that there is more sanctioned posts of temporary
establishment and their appointment was based on constant requirement
of work. It is submitted that on merely completing 5 years in service as
work charge shall not entitle the petitioners to claim benefits of
conversion. It is submitted that the same cannot be claimed as a matter
of right by the petitioners more particularly when their appointment was
by way of back door entry.

[8.2] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that even otherwise on and after
February 1987 there was a ban on recruitment on the work charged
establishment. It is submitted that by G.R. dated 03.02.1987 a decision
was taken that no person to be recruited on work charged establishment.
It is submitted that despite the same some of the departments continued
to employ / recruit the persons on work charged establishment and that
too de hors the G.R. dated 03.02.1987. It is submitted that instruction
issued in G.R. dated 03.02.1987 was again repeated vide instruction
dated 11.07.1988. It is submitted that vide instruction dated
11.07.1988, instruction was issued and the G.R. dated 03.08.1987 was
again repeated. It is submitted that thereafter in the year 1989 the
circular was issued / re­issued reiterating the same proposition of G.R.

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dated 03.08.1987 regarding the ban on conversion to work charged
establishment. It is submitted that therefore there is no question of
conversion of the employees working on work charged establishment
into temporary establishment and/or converting daily wagers into the
status of work charged employees thereafter.

[8.3] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that in any case even thereafter in
view of the subsequent G.R. dated 17.10.1988, policy of converting daily
wagers into the status of work charged employees announced by G.R.
dated 04.07.1973 should be deemed to have been substituted more
particularly when the State Government came out with the issuance of 3
G.Rs. of 17.10.1988, conferring benefits in different categories of daily
wagers having been put in the service of 5 years or more, though vide
circular dated 03.02.1987 new recruitment of work charged
establishment from daily wagers was already prohibited. It is submitted
that therefore since the conversion from daily wagers to work charged
employees had already came to be prohibited vide circular dated
03.02.1987 which were repeated time and again, subsequent
appointment of the daily wagers as work charged employees after
03.02.1987 and thereafter would be treated as illegal appointments. It is
submitted that therefore the learned Single Judge has materially erred in
directing the State to absorb all work charged employees in the
temporary establishment as per the G.R. dated 16.08.1973 on
completion of either 5 years as work charge and consequently the
learned Single Judge has materially erred in granting them the benefit of
higher pay scale on completion of 9 years from the date on which they
are absorbed in the temporary establishment on completion of 5 years as
work charge. It is submitted that the directions issued by the learned
Single Judge would amount to an en block regularization, which is

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impermissible in view of the decision of the Hon'ble Supreme Court in
the case of Umadevi (3) (Supra).

[8.4] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that even otherwise, automatic
conversion of daily wagers into work charged employees as also
conversion from the work charged employees to temporary
establishment without considering (1) existence of the sanctioned post;
(2) present vacancy in the second post; (3) eligibility conditions
provided under the respective recruitment rules; (4) ban, if any, on the
recruitment in the employment would be illegal and contrary to as per
the decision of the Hon'ble Supreme Court in the case of Umadevi (3)
(Supra).

[8.5] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that even otherwise the work
charged employees are not getting various benefits which are otherwise
available to persons working in the temporary establishment and
therefore, if on completion of 5 years of service, there is an automatic
absorption of work charged employees as persons working in temporary
establishment, then in that case, the administration would be saddled
with not only enormous administrative responsibility, virtually
amounting to impossibility, but also huge financial liability in terms of
grant of the benefits viz. (1) grant of placement in the appropriate place
in the seniority list with back date; (2) grant of deemed date of
promotion; (3) revision of pay scale; (4) grant of higher pay scale if
promotion is not available; (5) re­fixation of pay scale in the event of
grant of promotion with back date and all the consequential benefits
flowing there from. It is submitted that therefore the learned Single
Judge has materially erred in issuing the final directions by which there

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shall be a heavy financial burden and/or huge financial liability on the
State Government.

[8.6] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that on one hand the learned
Single Judge has specifically observed and held that the impugned G.R.
of 2014 is neither violative of
Section 9A
of the ID Act nor same is illegal
being a policy decision and still on the other hand the learned Single
Judge has granted the benefits considering the G.R. of 1973 which can
be said to be contradictory in terms.

[8.7] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that while issuing the impugned
directions in respect of daily wagers, the learned Single Judge has not at
all considered the subsequent G.R. dated 17.10.1988 and/or the effect of
the G.R. dated 17.10.1988 by which all earlier circular / resolutions
were superseded and the Government came out with a new policy
decision in form of the G.R. dated 17.10.1988 by which certain benefits
were conferred on such employees on completion of their 5 years, 10
years and/or 15 years as daily wagers working in the work charged
establishment.

[8.8] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that as such vide G.R. dated
17.10.1988 issued by the R&B Department of the State Government,
subsequently benefits were granted to the daily wagers of three different
categories viz. (1) unskilled; (2) semi­skilled and (3) skilled. It is
submitted that this was for all practical purposes, in substitution of the
earlier G.R. dated 04.07.1973 with reference to absorption of daily
wagers on work charges establishment. It is further submitted that

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therefore thereafter in view of the issuance of the G.R. dated
17.10.1988, State Government issued circular / instruction dated
31.03.1989, inter alia declaring that in absence of there being any
provision of appointing daily wager on work charged establishment in
the said G.R. dated 17.10.1988, appointment of daily wagers as work
charged employees should be totally banned. It is further submitted that
thereafter a G.R. dated 05.01.1990 in the R&B Department came to be
issued, inter alia superseding the earlier G.Rs. dated 04.07.1973,
16.11.1978 and the instructions for converting daily wagers on the work
charged establishment in the wake of the policy and the rules announced
by the aforesaid three G.Rs dated 17.10.1988, in case of daily wagers.

[8.9] It is further submitted by Shri Trivedi, learned Advocate General
appearing on behalf of the appellants that even thereafter a G.R. dated
16.08.1994 came to be issued by the R & B Department declaring the
grant of benefit of higher pay scale in lieu of promotion on completion of
9, 18 and 27 years with a clarification that the work charged employees
are not eligible to get the benefit of higher pay scale in lieu of
promotion. It is submitted that thereafter the G.R. dated 02.07.2007
came to be issued superseding the earlier policy for grant of benefit of
higher pay scale in lieu of promotion on completion of 9, 18 and 27
years vide new policy for grant of said benefit on completion of 12 - 24
years, wherein clause 1(4) provides that the said policy will not be
applicable to the work charged establishment employees. It is further
submitted by Shri Trivedi, learned Advocate General appearing on behalf
of the appellants that therefore the impugned directions issued by the
learned Single Judge are just contrary to the aforesaid G.Rs./circulars.

[8.10] In the alternative it is submitted by Shri Trivedi, learned
Advocate General appearing on behalf of the appellants that the learned

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Single Judge has materially erred in issuing the general directions. It is
submitted that each case was required to be considered separately as the
facts differ. It is submitted that in many of the cases even some of the
persons were already put in the work charged establishment and/or
were put in the temporary establishment before many years and
thereafter no grievance was made by them and thereafter after a long
passage of time and belatedly they claimed their absorption from the
work charged establishment to temporary establishment on completion
of their 5 years as work charged. It is submitted that therefore the
learned Single Judge could have restricted the reliefs and/or actual
benefits from the date of filing of the petition and/or restricting the
actual benefits for the last three years from the date of filing of the
petitions.

Shri Trivedi, learned Advocate General has relied upon the
decision of the Hon'ble Supreme Court in the case of
Shiv Dass vs.
Union of India & Ors.
reported in AIR 2007 SC 1330 and the decision
of the Division Bench of this Court in the case of Acharya Madhavi
Bhavin Rachhadiya Jasminkumar Kantibhai & Ors. vs. State of
Gujarat & Ors. rendered in Letters Patent Appeal No.1184/2017.

[8.11] It is further submitted by Shri Trivedi, learned Advocate
General appearing on behalf of the appellants that the learned Single
Judge has materially erred in not applying the law laid down by the
Hon'ble Supreme Court in the case of Umadevi (3) (Supra) which has
been consistently considered and followed by the Hon'ble Supreme
Court in catena of subsequent decisions.

[8.12] It is further submitted by Shri Trivedi, learned Advocate
General appearing on behalf of the appellants that the learned Single
Judge has materially erred in relying upon and/or considering the

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decision of the learned Single Judge in the case of Rashmikaben
Trikamlal and Others (Supra). It is submitted that considering the
controversy in the said petition the learned Single Judge ought not to
have followed the said decision while considering the reliefs sought in
the petition/s.

Now, so far as the reliance placed upon the decision of the learned
Single Judge of this Court in the case of Rashmikaben Trikamlal &
Others (Supra) relied upon by the original petitioners and which has
been considered by the learned Single Judge is concerned, it is
submitted that the said decision can be said to be per incuriam and/or
the same was not to be treated as a precedent as observed by the
Division Bench in Letters Patent Appeal No.1360/2011 arising out of
Special Civil Application No.7464/1996.

[8.13] Relying upon the further additional affidavits affirmed by
Shri N.K. Patel, Chief Engineer and Additional Secretary, R&B
Department and affirmed by Shri K.A. Patel, Special Secretary, Narmada
Water Resources, Water Supply and Kalpsar Department, State of
Gujarat, it is vehemently submitted by Shri Trivedi, learned Advocate
General appearing on behalf of the State that if the directions contained
in the common CAV judgment under challenge were to be implemented,
then in that case, the financial implication on public exchequer will be in
the order of Rs.222 Crores (approximately) apart from recurring
financial burden so far as the R & B Department is concerned and
approximately Rs.260 Crores and Rs.103 Crores (approximately) for
absorption of work charged employees into temporary establishment and
daily wagers into work charged establishment respectively apart from
recurring financial burden so far as the Narmada Water Resources and
Water Supply and Kalpsar Department is concerned. It is submitted that
all the daily wagers are being paid the wages in the regular pay scale as

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per the G.R. dated 17.10.1988 and as they are governed by the three
G.Rs. of 17.10.1988 for unskilled; semi­skilled and skilled workers. It is
submitted that work charged employees are not getting various benefits
which are otherwise available to the persons working in the temporary
establishment and hence, if there is an automatic absorption of work
charged employees as persons working in the temporary establishment,
then in that case, administration would be saddled with not only
enormous administrative responsibility, virtually amounting to not only
impossible but also huge financial liability in terms of the grant of
various benefits which are available to the persons working in the
temporary establishment. It is submitted that there are recruitment rules
framed with respect to the various posts in different categories of
employment in temporary establishment such as fitter, work assistant,
road­roller driver etc.
and therefore, any direction to absorb all those
work charged employees into temporary establishment solely on
completion of their 5 years as work charged shall be violative of
Articles
and
of the Constitution of India and therefore, the same shall not
be sustainable in view of the decision of the Hon'ble Supreme Court in
the case of
Secretary, State of Karnataka and Others vs. Umadevi
(3)
and Others reported in (2006) 4 SCC 1 and other subsequent decisions.

[8.14] Shri Trivedi, learned Advocate General appearing on behalf
of the appellants has pointed out that the employees working on
temporary establishment are as such and virtually permanent employees
and they are being given all the benefits which are available to the
regular permanent employees. It is submitted that those who are
appointed on temporary establishment are appointed after following due
procedure and as per the recruitment rules. It is submitted that therefore
if the directions issued by the learned Single Judge were to be
implemented
,
in that case
the same can be said to be absolutely in

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conflict with the decision of the Hon'ble Supreme Court in the case of

Umadevi
(3) (Supra). It is submitted that even otherwise and even as per
the G.R. dated 16.08.1973, the work charged establishment is to be
converted into temporary establishment and/or those working on work
charged establishment were to be absorbed in the temporary
establishment subject to availability of the post only. It is submitted that
therefore even considering the G.R. dated 16.08.1973 such persons who
are working s work charged can be said to have a right to consider their
cases for absorption in temporary establishment and not beyond that.

[8.15] It is further submitted by Shri Trivedi, learned Advocate
General appearing on behalf of the appellants that as such the learned
Single Judge has passed the impugned CAV common judgment and
issued directions solely and mainly on the ground that all those working
either as daily wagers and/or as work charged for a long period. It is
submitted that nothing is on record that all those persons were
appointed as work charged on work charged establishment after
following due procedure and as per the recruitment rules. It is submitted
that therefore mere long period of service alone cannot be a ground to
absorb all those work charged employees to temporary establishment
which as such can be said to be granting the permanent status and/or to
regularize their service as permanent employees.

[8.16] It is further submitted by Shri Trivedi, learned Advocate
General appearing on behalf of the appellant that as such so far as the
daily wagers are concerned, there is no much discussion by the learned
Single Judge more particularly with respect to their status as daily
wagers. It is submitted that as per catena of decisions of the Hon'ble
Supreme Court as well as this Court, those who are working on daily
wage basis have no right to be regularized and/or regularization merely

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on the ground that they are working since long. It is further submitted
by Shri Trivedi, learned Advocate General that even otherwise all those
daily wagers are governed by the subsequent G.R. dated 17.10.1988 and
they are being given all the benefits flowing from the G.R. dated
17.10.1988. It is submitted that by the G.R. dated 17.10.1988 all other
earlier G.Rs. are superseded and the State Government has come out
with fresh policy. It is submitted that therefore the earlier policy prior to
17.10.1988 shall not be thereafter made applicable and all shall be
governed by the subsequent G.R. dated 17.10.1988 and other
subsequent policy decisions and/or G.Rs./circulars. It is submitted that
therefore the impugned decision so far as the daily wagers are
concerned, the same cannot be sustained and the same deserves to be
quashed and set aside.

Making above submissions and relying upon the following
decisions of the Hon'ble Supreme Court as well as this Court it is
requested to allow the present Letters Patent Appeals.

1. Decision of learned Single Judge in SCA No.1107/1993,
confirmed by the decision of the Division Bench in LPA
No.1134/1997

2. Decision of learned Single Judge in SCA No.4726/2004,
confirmed by the decision of the Division Bench in LPA
No.590/2007

3. Decision of learned Single Judge in SCA No.11393/2000,
confirmed by the decision of the Division Bench in LPA
No.2626/2010

4.
M.I. Isani, Executive Engineer, Surendranagar District
Panchayat vs. Surendranagar Jilla Panchayat Bandhakam
Majoor Sangh

1989(1) GLR 380

5.
K.N. Thanaki and Ors. vs. State of Gujarat and Anr
.

1989(2) GLH 254

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6.
State of Rajasthan vs. Kunji Raman

(1997) 2 SCC 517 (on what is work charged establishment)

7.
State of Gujarat and Ors. vs. PWD Employees Union & Ors
.

(2013) 12 SCC 417

8.
Secretary, State of Karnataka and Others vs. Umadevi
(3)
and Others
(2006) 4 SCC 1

9.
State of Orissa and Anr. vs. Mamata Mohanty

(2011) 3 SCC 436

10.
Union Of India & Anr vs Kartick Chandra Mondal & Anr

(2010) 2 SCC 422

[9.0] Shri Shri H.S. Munshaw, Shri Nisarg Shah, Shri H.B. Singh, Shri
J.A. Adeshra, Shri D.G. Chauhan, Shri N.K. Majmudar, Shri T.R. Mishra,
Shri U.T. Mishra, Shri Mukesh Mishra, Shri H.S. Munshaw, Shri M.P.
Prajapati, Shri Murali Devnani, Shri Mukesh Rathod, Shri Kuntal Joshi,
Shri Krishna Rawal, Shri Kartik Pandya, Shri Shivang Shukla, Ms.
Nayana Panchal, Shri Anand Sharma, Ms. Bhargavi Thakar with Shri
Gunvant Thakar, learned Advocates have appeared on behalf of the
respective respondents herein in respective Letters Patent Appeals -
original petitioners of respective Special Civil Applications.

[9.1] Shri D.G. Chauhan, learned Advocate appearing for Gujarat Water
Resources Development Corporation appearing in Letters Patent Appeal
Nos.1230/2016, 833/2016 and 618/2016 has, in addition to what
learned Advocate General has submitted, relied upon the decision of the
Hon'ble Supreme Court in the case of
State of Rajasthan vs. Daya Lal

reported in (2011) 2 SCC 429 has vehemently submitted that as held by
the Hon'ble Supreme Court in the aforesaid decision no mandamus can
be issued of regularization.

He has also relied upon the decision of the
Hon'ble Supreme Court in the case of
Nand Kumar vs. State of Bihar

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reported in (2014) 5 SCC 300.

[9.2] Shri Murli Devnani, learned Advocate appearing on behalf of some
of the original petitioners has submitted that in the facts and
circumstances of the case and considering the fact that the respective
original petitioners were working as work charged employees since more
than 3 decades, the learned Single Judge has rightly directed the original
respondents - appellants herein to absorb them in the temporary
establishment on completion of 5 years / 10 years of service as per the
G.R. dated 16.08.1973.

[9.3] It is further submitted by Shri Devnani, learned Advocate that in
the facts and circumstances of the case the decision of the Hon'ble
Supreme Court in the case of
Umadevi
(3) (Supra) upon which the
reliance has been placed by the State shall not be applicable to the facts
of the case on hand. It is submitted that as such the directions issued by
this Court are in favour of the employees who are working as work
charged employees and their appointments can be termed as irregular
appointments but not illegal appointments and thereby making them
eligible and entitled for benefit of regularization on completion of 5
years of service.

[9.4] It is submitted that even the rules for recruitment for the post of
work charged only provides for calling the names from the employment
exchange. It is submitted that therefore all the appointments of the work
charged employees are as per the rules provided in Rule 92(1)(k), sub­
rule (2).

[9.5] It is further submitted that it is required to take into account the
fact that the employees appointed as daily wage workers are getting

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benefit flowing from the G.R. dated 17.10.1988. Such employees are
given certain benefits on completion of 5­10­15 years of service. It is
submitted that as per the decision of this Court, daily rated employees
are to be treated as regular employees. It is submitted that in the present
case majority of the employees are appointed and working as work
charged employees since many years and they have retired as work
charged employees or have to retire as work charged employees. It is
submitted that even though the G.R. dated 16.08.1973 was meant for
grant of the benefit of temporary establishment, if work charged
employees has worked continuously on work charged establishment for
more than 5 years, they are not granted the benefit of absorption in the
temporary establishment on completion of 5 years as work charge.

[9.6] It is further submitted by Shri Devnani, learned Advocate
appearing on behalf of some of the original petitioners that the
authorities have conceded the fact that their appointments are not
against a particular projects as contemplated in their policy of employing
such employees. It is submitted that thus continuing such a large class of
employees as work charged employees for such a long period is nothing
but a classic example of exploitation by State Government authorities
though the State Government is required to act as a model employer.

[9.7] It is further submitted by Shri Devnani, learned Advocate
appearing on behalf of some of the original petitioners that as such the
State Government has conceded the fact that employees of the Irrigation
Department as well as Panchayat Department are extended such
benefits, but the same benefits are extended to them because of the
mistake on the part of the State Government authorities and thereby the
same cannot be a cause for creation of right in favour of the employees
in the present litigation. It is submitted that aforesaid is nothing but an

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attempt of eye­wash on the part of the State as majority of such
employees have been extended benefit on the basis of various Court's
orders in their favour or on the basis of the policy adopted by the
Department after careful consideration of all the relevant factors
including financial burden, a conscious policy decision were taken by the
said Departments which cannot be termed as a wrong decision. It is
submitted that had it been so, the appellants would have definitely come
forward for withdrawal of such benefits and recovery of the amounts of
arrears from the concerned employees.

[9.8] Now, so far as the case on behalf of the State that there shall be
huge financial burden if the respective original petitioners are granted
the benefit of absorption in the temporary establishment as directed by
the learned Single Judge is concerned, it is submitted that the same
cannot be a ground to deny the legitimate rights / benefits to such
employees. It is submitted that the State cannot be permitted to take the
advantage of its own wrong. It is submitted that if the appellants had
granted these benefits in time to its employees as per the eligibility and
entitlement, there would not be such financial burden for them to bear.

[9.9] It is further submitted by Shri Devnani, learned Advocate
appearing on behalf of some of the original petitioners that as such some
of the zonal offices have made fresh appointments and some of the
offices are entitled to make fresh appointment for filling up certain posts
in the cadre of work assistant which would be nothing but an attempt on
the part of the State to deprive the legitimate right of the employees
working with them for a long period.

[9.10] It is further submitted by Shri Devnani, learned Advocate
appearing on behalf of some of the original petitioners that as such the

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appellants have not come forward with details and availability of
vacancies of different posts in temporary establishment as the same
would be a vital factor which may be taken into consideration for
redressal of the grievances of the present respondents - original
petitioners. Relying upon the decision of the Hon'ble Supreme Court in
the case of
State of Punjab & Ors. vs. Jagjit Singh and Ors.
reported in
(2017) 1 SCC 148, it is vehemently submitted by Shri Devnani, learned
Advocate appearing on behalf of some of the original petitioners that
even on the principal of "Equal Pay for Equal Work", the impugned
decision of the learned Single Judge does not call for any interference.

Making above submissions and relying upon the decision of the
learned Single Judge in the case of
Revabhai Bhudarbhai Solanki vs.
State of Gujarat
rendered in Special Civil Application No.2743/2002
with Special Civil Application No.3930/2002, it is requested to dismiss
the present appeals.

[10.0] Shri T.R. Mishra, learned Advocate appearing on behalf of
the original petitioners of Special Civil Application No.10308/2012
(respondents herein in LPA No.429/2017) has vehemently opposed the
Letters Patent Appeal No.429/2017 and has submitted that in the facts
and circumstances of the case the learned Single Judge has not
committed any error in issuing the impugned directions directing the
State to absorb all those work charged employees into temporary
establishment on completion of their 5 years' service as work charged.

[10.1] It is further submitted by Shri Mishra, learned Advocate that
he is concerned with about 45 petitions. It is submitted that different
petitioners are mentioned working in different offices. It is submitted
that issue which has arisen is whether the appointment of these persons
were on a particular project; as work charged employees; or it was a

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general order appointing these persons on work charged establishment
without mentioning any project on which they have been appointed.

[10.2] It is further submitted by Shri Mishra, learned Advocate that
there are two type of petitioners; one, who have been appointed as daily
wagers initially and after 5, 10 years of service as daily wagers, they
were converted as work charged establishment and second, those who
have been appointed initially as work charged employees. It is submitted
that all these appointments were through employment exchange and
those who were initially appointed as daily wagers have been directly
recruited from open market. It is submitted that all these daily wagers
who have completed 10 years of service have been converted as work
charged employee instead of permanent employee, based on the G.R.
dated 17.10.1988. It is submitted that after completion of 10 years of
service, they ought to have been directly appointed on temporary
establishment so that again on completion of 9 years of service, they
could have got the benefit of first higher grade.

[10.3] It is submitted that so far as LPA No.429/2017 arising out
of Special Civil Application No.10308/2012 is concerned, it is submitted
that after all the original petitioners were converted into work charged
from daily wagers, Government has taken a decision to grant higher
grade vide G.R. dated 01.06.1993 and the authority have already send
darkhast to the Government for conversion of work charged employees
into temporary establishment as back as on 23.07.2008.

[10.4] It is further submitted by Shri Mishra, learned Advocate that
even otherwise in the above LPA, the juniors to the original petitioners
were converted from work charged establishment to temporary
establishment in the year 1999 itself. It is submitted that the juniors to

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the original petitioners have also been granted higher pay scale on
completion of 9 years of service. It is submitted that thus juniors to the
original petitioners have been granted the benefit of conversion of work
charged establishment to temporary establishment and further granted
higher grade on completion of 9 years of service. It is submitted that
however in the entire group of petitions to which he is representing,
most of the original petitioners have not been granted the benefit of
conversion from work charged establishment to temporary
establishment. It is submitted that in few cases conversion from work
charge to temporary establishment has been granted but after 10 to 15
years of service, instead of 5 years of service. It is submitted that in few
cases even higher grade on completion of 9 years of service as temporary
employees have been granted, but in most of the cases higher grade is
not granted. It is submitted that in majority of the cases conversion from
work charged to temporary establishment have not been granted.

It is submitted that in the year 1993, the Government issued G.Rs.
to grant benefit of conversion to temporary establishment from work
charged establishment also but subsequently the same came to be
withdrawn.

[10.5] Now, so far as the submission on behalf of the State with
regard to delay in filing the petition is concerned, it is submitted by Shri
Mishra, learned Advocate appearing on behalf of the respondents in LPA
No.429/2017 that as such the question with respect to the delay in filing
the petition will not arise as the matter was already pending with the
Government for grant of conversion from work charged to temporary
establishment. It is submitted that apart from this the benefit has been
granted practically to some and many of them are left out from the grant
of such benefit of conversion. It is submitted that even the issue with
regard to delay in filing the petition has never been raised before the

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learned Single Judge and therefore, the same cannot be permitted to be
raised at this stage.

[10.6] It is further submitted that even otherwise the Government
has withdrawn the G.R. of 1973 granting the benefit of conversion of
work charged establishment to temporary establishment, only in the year
2014 vide G.R. of 2014 and therefore, till the G.R. of 2014, whatever the
benefit was flowing from the G.R. of 1993, the concerned work charged
employees are entitled to the benefit of the G.R. of the year 1973 more
particularly when the G.R. of 2014 cannot be applicable retrospectively.

Making above submissions and relying upon the decision of the
Hon'ble Supreme Court in the case of
Prem Ram vs. Managing
Director, Uttarakhand Pey Jal and Nirman Nigam, Dehradun and
Ors.
reported in (2015) 11 SCC 255 and other decisions of this Court
more particularly the decision of the learned Single Judge in the case of
Rashmikaben Trikamlal & Ors. (Supra), confirmed by the Division Bench
vide order in LPA No.1360/2011 and the order passed by the Division
Bench in LPA No.633/2016 and LPA No.126/2016, it is requested to
dismiss the present appeal.

[11.0] Shri Mukesh Rathod, learned Advocate appearing on behalf
of the respondents herein in LPA Nos.1441/2016 to 1455/2016 arising
out of Special Civil Application Nos.1897/2016 to 2114/2016 has
vehemently submitted that all the original petitioners were working as
Rojamdar since many years, however they were granted the benefit of
G.R. dated 17.10.1988 only, however were not granted the benefit of
conversion of work charged establishment. It is submitted that order
passed by the learned Single Judge in aforesaid Special Civil
Applications dated 09.03.2016 has been implemented and the original
petitioners are already granted now the benefit of work charged

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establishment pursuant to the impugned judgment and order passed by
the learned Single Judge.

[12.0] Shri N.K. Majmudar, learned Advocate has appeared on
behalf of the original petitioners - respondents in LPA No.934/2016
arising out of Special Civil Application No.17826/2011 and has
submitted that original petitioners Nos.1 to 36 were appointed as Junior
Scientific Assistant and the original petitioner Nos.37 to 52 were
appointed as Senior Scientific Assistant under the Gujarat Engineering
Research Institute, which is established, financed, administered,
managed and controlled by Narmada Water Resources, Water Supply
and Kalpsar Department, State of Gujarat. It is submitted that all of them
were appointed on the basis of their names came to be sent / sponsored
through employment exchange and after following regular recruitment
procedure. It is submitted that all of them were having the requisite
eligibility qualifications. It is submitted that however they came to be
appointed in the work charged establishment as sanctioned posts were
not in existence. It is submitted that though the work was very much
there, the establishment was not having enough sanctioned post and
therefore, all of them came to be appointed for discharging duties of
permanent nature.

[12.1] It is submitted by Shri Majmudar, learned Advocate that by
passing the impugned judgment and order and issuing the directions the
learned Single Judge has heavily relied upon and considered the G.R.
dated 16.08.1973 which has been followed and interpreted by the
learned Single Judge in the case of Rashmikaben Trikamlal & Ors.
(Supra). It is submitted that the decision of the learned Single Judge
granting the benefit of higher grade scale to the work charged
employees on granting them the benefit of temporary establishment /

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temporary employees on completion of 9 years as temporary employee
has been confirmed by the Division Bench in LPA No.1360/2011 and the
SLP against the same has been dismissed. It is submitted that therefore
the learned Single Judge has rightly issued the impugned directions.

[12.2] It is further submitted by Shri Majmudar, learned Advocate
that in the present case the original petitioners were conferred the status
of temporary employee only in the year 2007 vide order dated
09.10.2007. It is submitted that in the present case the original
petitioners are granted the status of temporary employee with effect
from 01.10.2007. Therefore, the services rendered by them from
01.10.2007 only would be counted for higher pay scales and entire
earlier services rendered by them prior to 2007 will be wiped out.

Relying upon the decision of the Hon'ble Supreme Court in the
case of
Upendra Narayan Singh and others
(Supra);
Food Corporation
of India vs. Parashotam Das Bansal
reported in (2008) 5 SCC 100, it
is requested to dismiss the present appeals.

[12.3] It is further submitted by Shri Majmudar, learned Advocate
that non­granting the temporary status on completion of 5 years' services
in work charged establishment would deprive the original petitioners
from having advancement opportunities. It is submitted that therefore
the impugned directions issued by the learned Single Judge while
allowing the petition and directing the appellants - original respondents

- authorities to grant the higher pay scales which have become due and
payable to the petitioners on 9, 18 and 27 years of service as per the
G.R. of 1994 and/or on completion of 12 or 24 years of service as per
the G.R. dated 02.07.2007 on completion of 12 years of service as a
temporary (after granting the temporary status on completion of 5 years
of service as work charged) is absolutely just and proper and the same is

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not required to be interfered by this Court.

Making above submissions it is requested to dismiss the LPA
No.934/2016.

[13.0] Shri Gunvant Thakkar, learned Advocate appearing on
behalf of the respondents in LPA No.281/2016, 291/2016 and 292/2016
arising out of the impugned common judgment and order dated
18.09.2015 passed by the learned Single Judge in Special Civil
Application Nos.1246/2007 to 1249/2007 while opposing the present
appeals has requested to consider the following points.

"(1) 21.06.1982 Rukunudding Hisamuddin Kazi, respondent herein
was appointed as daily wage driver and completed
five years as daily wage driver on 21.06.1982. he
had retired on 30.06.2008 as a daily wage driver.
(2) 1984 Natubhai Bhanubhai Gajjar, respondent herein was
appointed as daily wage driver in the year 1984 and
completed five years as daily wage driver in the
year 1989. He had retired on 31.05.2012 as a daily
wage driver. He expired on 24.11.2016.

(3) 1983 Pyarelal Ramsureman Yadav, respondent herein
was appointed as daily wage driver in the year
1988. He retired in 2016 as daily wage driver.
(4) 30.04.1999 All above mentioned original petitioners had been
granted benefit of work charged driver w.e.f.

completion of five years service as a daily wage
driver vide order dated 30.04.1999 issued by the
Superintending Engineer, Ahmedabad City (R & B)
Circle, Ahmedabad issued by the State Govt. and
communications dated 17.02.1999 and 31.03.1999
issued by the State Govt.

(5) 25.01.2006 Superintending Engineer, Ahmedabad City (R & B)
Circle, Ahmedabad had issued order against the
present respondents and some other employees
who were working under his control and withdrawn
the benefit of work charged driver granted to them
vide order dated 30.04.1999. This benefit is
withdrawn after more than 6 years of service as

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work charged driver.

(6) 30.01.2006 Executive Engineer, Ahmedabad Store (R&B)
Division, Ahmedabad had issued order giving effect
to the order dated 25.01.2006.

(7) 21.09.2006 Concerned authority issued order of recovery in
favour of Ruknudding Hissamuddin Kazi­petitioner
in SCA No.1246/2007 to the tune of Rs.82,507/­
and learned Single Judge had granted stay against
the recovery vide oral order dated 05.12.2008. Vide
order dated 27.04.2007 concerned authority had
issued order of recovery against Natubhai
Bhanubhai Gajjar - petitioner in SCA
No.1248/2007 to the tune of Rs.9,720/­ from
January, 2006 to March, 2007 and to deduct
Rs.1,500/­ per month from the salary of the
petitioner. The said order of recovery was stayed by
the learned Single Judge vide oral order dated
10.05.2007. Concerned authority has already
recovered the amount of Rs.52,855/­ from the
retiral benefits of Pyarelal Ramsureman Yadav -

respondent No.1 in LPA No.392/2016 at the time of
retirement i.e. in the year 2016.

(8) 29.11.2006 State Govt. has rejected the prayers of the original
petitioners and reverted them from the post of work
charged driver to the daily wage driver.

(9) 05.01.1990 G.R. issued by the the Roads and Buildings
Department by which G.R. dated 04.07.1973 is
cancelled which was issued by erstwhile Public
Works Department. Considering this G.R. the State
Govt. has reverted the original petitioners from the
post of work charged driver to the post of daily
wage driver after more than 6 years as a work
charged driver which is not permissible considering
the fact that SLP (C) No.39438 & 39439/2013 filed
by the State Govt. are dismissed by the Hon'ble
Supreme Court of India on 24.02.2014.

(10) 04.07.1973 G.R. issued by Public Works Department and it is
held in para­2 of the said G.R. that daily wager who
has completed minimum 5 years of service are
eligible to be appointed as work charged
employees."

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[13.1] Shri Thakkar, learned Advocate appearing on behalf of the
original petitioners of Special Civil Application Nos.1246/2007 to
1249/2007 has submitted that the issue involved in the present appeals
is already decided by the Hon'ble Supreme Court in the order dated
24.02.2014 in SLP(C) Nos.39438/2013 and 39439/2013 filed by the
State Government. It is submitted that the learned Single Judge in the
said case held that the G.R. dated 05.01.1990 issued by the R & B
Department shall not be applicable with retrospective effect and if
employees satisfy all the requirements of G.R. of the year 1973, they are
entitled for benefit of work charged employees.

Making above submissions and relying upon above it is requested
to dismiss the present LPAs.

[14.0] Ms. Krishna Rawal, learned Advocate appearing on behalf
of the respondents in LA No.594/2016 has submitted that so far as the
original petitioners are concerned, as such they have already been given
the temporary status long back; they have also been given the benefit of
the G.R. dated 17.10.1988 and have been put in the regular pay scales;
they have also been extended the benefit of 4th, 5th, 6th Pay Commission;
they have also been granted some of the allowances available to the
government employees such as HRA, DA, CLA, medical allowances, GPF
etc. but they have not been granted the benefit of higher pay scale,
festival advances, food grain advance etc. viz. those benefits which are
available to other similarly situated class IV employees and therefore,
have preferred the Special Civil Application No.14297/2015. It is
submitted that relying upon the decision of the learned Single Judge in
the case of Mahendrakumar Bhagwandas (Supra) which has been
confirmed by the Hon'ble Supreme Court, the learned Single Judge has
rightly allowed the petition and has rightly granted the reliefs in the
petition. Therefore, it is requested to dismiss the present LPA

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No.594/2016.

[15.0] Shri H.B. Singh, learned Advocate appearing on behalf of
some of the original petitioners has also supported the impugned
common judgment and order passed by the learned Single Judge and
has submitted that on completion of 5 years as work charged, all those
work charged employees are required to be absorbed in the temporary
status as per the G.R. of 1973. It is submitted that the concerned work
charged employees who have completed 5 years of service as work
charged shall be entitled to all the benefits which are conferred upon the
temporary establishment from the date on which they completed 5 years
as work charged. It is submitted that therefore the learned Single Judge
has not committed any error in issuing the impugned directions.
Therefore, it is requested to dismiss the appeals in which he is
appearing.

[16.0] Shri J.A. Adeshra, learned Advocate appearing on behalf of
some of the original petitioners - respondents herein in LPA
No.424/2017 and other allied LPAs has also made the similar
submissions which are made by other learned Advocates, made in
support of the impugned common judgment and order passed by the
learned Single Judge and therefore, the same are not repeated.
Therefore, he has requested to dismiss the appeals preferred by the State
and confirm the impugned judgment and order and the directions issued
by the learned Single Judge.

[17.0] Shri M.P. Prajapati, learned Advocate has appeared on
behalf of the respondents in LPA No.380/2016 and other allied appeals -
original petitioners of Special Civil Application No.10829/2003 and
other allied Special Civil Applications. At the outset it is required to be

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noted that he is representing the employees who are / were serving as
daily wagers and seeking absorption as work charged employees in the
work charged establishment on completion of 5 years, as per the G.R.
dated 04.07.1973. He has submitted that as the junior to petitioners
were granted / extended the benefit of work charged and therefore, and
even otherwise considering the G.R. dated 04.07.1973, all those daily
wagers who have completed 5 years as daily wagers are required to be
absorbed as work charged in the work charged establishment and
thereafter on completion of 5 years as work charged, they are required
to be absorbed in the temporary establishment and are required to be
conferred / given the benefits which are available to the employees
working in the temporary establishment.

[17.1] Now, so far as those daily wagers who are extended the
benefit of work charged are concerned, it is submitted by Shri Prajapati,
learned Advocate that firstly they have been extended the benefit
belatedly and that they have not been extended the benefit of higher
grade pay scale. It is submitted that they ought to have been granted the
benefit of G.R. dated 16.08.1973 immediately on completion of 5 years
as work charged and all those were entitled to the benefit which is
conferred to the employee working in the temporary establishment from
the date on which they have completed 5 years as work charged. It is
submitted that therefore, they are entitled for the arrears of the benefit.
It is submitted that therefore the learned Single Judge has not
committed any error in issuing the impugned directions by specifically
observing that the G.R. of 2014 shall not be made applicable
retrospectively. He has also relied upon the decision of the Hon'ble
Supreme Court in the case of
State of Jharkhand and Anr. vs. Harihar
Yadav and Ors.
reported in (2014) 2 SCC 114;
State of Gujarat and
Ors. vs. PWD Employees Union and Ors.
reported in 2013 (2) GLH

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692 and the decision of the Division Bench of this Court in the case of
Rashmikaben Trikamlal & Others (Supra) and the decision of the
Division Bench of this Court in the case of
Rajkot District Panchayat &
Ors. vs. State of Gujarat & Anr.
rendered in LPA No.429/2010 in
Special Civil Application No.7591/2009 and the decision of the
Division Bench of this Court in the case of
State of Gujarat & Anr. vs.
Revabhai Bhudarbhai Solanki & Ors.
in LPA No.472/2014 in Special
Civil Application No.2743/2002.

Making above submissions and relying upon the decision of the
Division Bench of this Court in the case of Karamsad Municipality
Through Chief Officer vs. Sureshbhai Mohanbhai Harijan & Anr. in
LPA No.457/2016, it is requested to dismiss the LPAs in which he is
appearing on behalf of the respondents in those LPAs.

[18.0] Heard learned Advocates appearing on behalf of respective
parties at length. We have perused and considered in detail the
impugned common CAV judgment passed by the learned Single Judge.
We have also considered the material on record more particularly the
relevant circulars / G.Rs. issued from time to time with respect to the
daily wagers, work charged employees.

[18.1] Having heard learned Counsel appearing for respective
parties and considering the impugned common CAV judgment and order
passed by the learned Single Judge and other decisions impugned, it
appears that the cases can be broadly classified in three categories. First
category is with respect to those who are working as daily wagers in
different departments of the State Government and claiming their
absorption in the work charged establishment; the second category is
with respect to those who are work charged employees on work charged
establishment and they are claiming their absorption on the temporary

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establishment on completion of their 5 years service as work charged as
per the G.R. dated 16.08.1973 and the third category would be those
who are absorbed in the temporary establishment but belatedly i.e. not
on completion of 5 years as work charge. Respective petitioners have
also prayed for grant of higher grade on completion of 9, 18 and 20
years of service from the date of their completion of 9 years of service on
temporary establishment.

[18.2] While considering the case of the aforesaid class of the
petitioners viz. daily wagers and the work charged employees working
on work charged establishment, the chronology of dates and events and
the relevant G.Rs. are required to be referred to and considered which
are as under:

RELEVANT GOVERNMENT RESOLUTIONS AND
CIRCULARS WITH REFERENCE TO CONVERSION OF
DAILY WAGERS (ROJAMDARS) INTO WORK CHARGED
EMPLOYEES
Sr. Date Particulars
No.

1. 04.07.1973 A Government Resolution came to be issued by the
Public Works Department of the State Government
with reference to the appointment of Daily Wagers
working on the nominal Muster Roll in various
Departments of the State Government on work
charged establishment subject to various
circumstances / conditions amongst the following:

i) Occurrence of vacancy in the existing post on
the work charged establishment because of
current post falling vacant on the work charged
establishment; or

ii) Creation of new posts on the work charged

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establishment;

iii) Completion of minimum 5 years of service as
Daily Wage worker;

iv) Benefit of such an appointment to the post of
work charged establishment shall not be
available in case of Telephone Operator, Clerk
and/or any other post for which SSC has been
fixed as the educational qualification.

2. 16.11.1978 A Government Resolution came to be issued by the
Public Works Department, inter alia, clarifying in the
matter of 5 years of service as Daily Wager by
providing that in a current year, the Daily Wager to
remain in the employment at least for one year, out of
which, he should have attended duty at least for 180
days and that for counting 5 years as Daily Wager,
there should be average 240 days of presence in the
said period of 5 years.

3. 03.02.1987 A circular came to be issued by the Roads & Buildings
Department, declaring a prohibition on the new
recruitment, inter­alia, on work charged establishment
from Daily Wager.

4. 24.03.1988 A Government Resolution came to be issued,
constituting a Committee under the Chairmanship of
Shri Dolatbhai Parmar to examine and consider the
long pending demand of Daily Wagers working in
different departments of the State Government.

5. 11.07.1988 A Government Resolution came to be issued by the
Roads & Buildings Department, categorically declaring
that no Daily Wager should be recruited on work

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charged establishment in view of the constitution of
the aforesaid Committee for considering various
service related issues of Daily Wagers.

6. 17.10.1988 Three Government Resolutions, all of the same date
came to be issued by the Roads & Buildings
Department of the State Government, granting
substantial benefits to the Daily Wagers of 3 different
categories, viz. unskilled; semi­skilled and skilled.

7. 31.03.1989 In view of the issuance of Government Resolutions
dated 17.10.1988, referred to above, the State
Government issued a Circular / instruction, inter­alia
declaring that in the absence of there being any
provision of appointing Daily Wager on work charged
establishment in the said Government Resolutions
dated 17.10.1988, appointment of Daily Wagers as
work charged employees should be totally banned.

8. 30.05.1989 A circular came to be issued by the Roads & Buildings
Department, inter­alia, clarifying more particularly
with reference to Daily Wage workers in whose benefit
the above referred 3 Government Resolutions dated
17.10.1988 were issued.

9. 05.06.1989 A Government Resolution in the Roads & Buildings
Department came to be issued, once again reiterating
about the ban on the conversion of Daily Wagers to
work charged employees, wherein by way of Note­I to
Clause (6), it was clarified that in view of the benefits
having been granted under the Government
Resolution dated 17.10.1988 with reference to Daily
Wagers, there is no question of converting Daily
Wagers into work charged employees and, therefore,

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Daily Wagers are not to be taken on work charged
establishment.

10. 05.01.1990 A Government Resolution in the Roads & Buildings
Department came to be issued, inter­alia, substituting
the earlier Resolutions dated 04.05.1973, 16.11.1973
and the instructions for converting Daily Wagers on
the work charged establishment in the wake of the
policy and the Rules announced by the aforesaid 3
Government Resolution dated 17.10.1988, in case of
Daily Wagers.

11. 16.08.1994 A Government Resolution came to be issued by the
Roads & Buildings Department, declaring the grant of
benefit of higher pay­scale in lieu of promotion on
completion of 9­18­27 years with a clarification that
work charged employees are not eligible to get the
benefit of higher pay scale in lieu of promotion (Rule
3(31)).

12. 02.07.2007 A Government Resolution came to be issued
substituting earlier policy for grant of benefit of higher
pay­scale in lieu of the promotion on completion of 9­
18­27 years by a new policy for grant of said benefit
on completion of 12­24 years, wherein clause 1(4)
clearly provides that said policy will not be applicable
to work charged establishment employees.

RELEVANT GOVERNMENT RESOLUTIONS WITH
REFERENCE TO CONVERSION OF WORK CHARGED
EMPLOYEES INTO THE EMPLOYEES WORKING ON
TEMPORARY ESTABLISHMENT
Sr. Date Particulars
No.

1. 16.08.1973 A Government Resolution came to be issued for

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converting work­charged employees working only in
maintenance, repairs and irrigation management of
any works, into temporary establishment, subject to
certain conditions, including the rendition of service
of minimum period of 5 years.

2. 03.02.1987 A Circular came to be issued, declaring prohibition on
the new recruitment on work­charged establishment
as well as on daily wage basis.

3. 20.08.2014 A Government Resolution came to be issued for
cancelling/revoking the aforesaid Government
Resolution dated 16.08.1973 from the date of the
issuance thereof.

[18.3] Now, so far as those who are working as daily wagers and
claiming absorption in the work charged establishment is concerned,
considering the aforesaid G.Rs. with reference to the conversion of the
daily wagers / rojamdars to work charged employees, it appears that
earlier they were governed by G.R. dated 04.07.1973. G.R. dated
04.07.1973 came to be issued by the Public Works Department of the
State Government with reference to the appointment of daily wagers
working on the nominal Muster Roll in various Departments of the State
Government on work charged establishment, however subject to various
circumstances / conditions viz. (i) occurrence of vacancy in the existing
post on the work charged establishment because of current post falling
vacant on the work charged establishment; (ii) Creation of new posts on
the work charged establishment; (iii) completion of minimum 5 years of
service as Daily Wage worker; and (iv) benefit of such an appointment
to the post of work charged establishment shall not be available in case
of Telephone Operator, Clerk and/or any other post for which SSC has
been fixed as the educational qualification. The aforesaid G.R. dated

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04.07.1973 was further clarified vide G.R. dated 16.11.1978 clarifying
that while calculating 5 years of service as Daily Wager, the Daily Wager
has to remain in the employment at least for one year, out of which, he
should have attended duty at least for 180 days and that for counting 5
years as Daily Wager, there should be average 240 days of presence in
the said period of 5 years. From the aforesaid chronology of dates and
events, it appears that thereafter there was a complete prohibition. It
appears that the Government came out with a new policy decision in
form of G.R. dated 17.10.1988 issued by the Roads & Building
Department of the State Government, granting substantial benefits to
the daily wagers of three different categories viz. unskilled; semi­skilled
and skilled. On considering the G.R. dated 17.10.1988, it appears that
the State Government accepted the recommendations made by the
experts / committee and it has been resolved to extend certain benefits
to the daily wager employees.

[18.4] G.R. dated 17.10.1988 is a resolution of the Government
under which it has been resolved to extend certain benefits to the daily
wage employees. Clause (2) of the said resolution provides that as per
the provisions of
Section 25(B)
of the ID Act, daily wage labourers who
have put in more than five but less than ten years of service on
01.10.1988, shall be paid monthly wage arrived at by taking into
consideration the fixed monthly pay payable as per the prevailing pay­
scale in the concerned cadre and the dearness allowance admissible
there on as per the prevailing rates, for the number of days present.
Besides, 14 casual leaves including two for restricted holidays, leave of
Sundays and leave on the days of National Festivals shall be admissible
in a year with pay and the benefits of Medical facilities and deduction
for General Provident Fund shall also be admissible as per the rules.
Clause (3) provides that the skilled daily wage labourers who have put

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in more than ten years of service on 01.10.1988 shall be considered
permanent and such permanent labourers shall be placed in the running
scale of the prevailing pay­scale of the concerned cadre and accordingly,
pay, dearness allowances, house rent allowance, local compensatory
allowances shall be paid to him. It is further decided to give such
persons the benefits of superannuation, pension, gratuity, General
Provident Fund etc. as per the prevailing rules. Further, 14 Casual leaves
including two for restricted holidays, 30 earned leaves, 20 half pay
leaves shall be admissible to them over and above the weekly leave of
Sundays and the leave on the days of National Festivals. The age­limit
for superannuation of the permanent labourers shall be 60 years. The
period of permanent service shall be treated as qualifying service. It has
further been decided that as per the provision of
Section 25(B)
of the ID
Act, the skilled labourers who have completed 15 years of service on
01.10.1988, shall be given one increment and who have completed 20
and more than 25 years of service likewise shall be given two and three
increments in the prevailing pay­scale of the concerned cadre
respectively and their pay shall be accordingly fixed on 01.10.1988.

Thus, on interpretation of the new policy contained in G.R. dated
17.10.1988, all the daily wagers working in different departments of the
State Government shall be entitled to the benefit flowing from the G.R.
dated 17.10.1988 only. At this stage it is required to be noted that vide
Circular dated 31.03.1989, it was clarified that the appointment of daily
wagers as work charged employee is banned in view of the G.Rs. Dated
17.10.1988 and has no provision for appointment of daily wagers on
work charged establishment having been made vide aforesaid G.R.
Therefore, on and after 17.10.1988 the earlier G.R. / policy shall not be
applicable at all more particularly the G.R. dated 04.07.1973.

[18.5] Identical question came to be considered by the learned

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Single Judge of this Court in the case of
Karshanbhai K. Rabari & Ors.
vs. State of Gujarat
rendered in Special Civil Application
No.11071/1993 by which a similar relief was sought by those working
as daily wagers and after considering the subsequent policy decision in
the form of G.Rs. Dated 17.10.1988 and by observing that the
petitioners who are appointed as daily wagers have no right whatsoever,
the learned Single Judge dismissed the said petition and observed and
held that all those daily wagers shall be governed by the G.R. dated
17.10.1988. The decision of the learned Single Judge in Special Civil
Application No.11071/1993 has been affirmed by the Division Bench
vide order in Letters Patent Appeal No.1134/1997.

In another decision
in the case of
Bhimjibhai Bhanjibhai Gohil vs. State of Gujarat

rendered in Special Civil Application Nos.4726/2004 and
12247/2004, the learned Single Judge rejected the prayer of those daily
wagers who prayed for a direction to the authorities to consider their
case for being granted the benefits of work charged employees and
regularization. That in
the said decision
the learned Single Judge
considered the subsequent policy decision vide G.R. dated 17.10.1988.
In para 3 the learned Single Judge has observed and held as under:

"3. When the petitioners have been given the benefitsof the
circular dated 17­10­1988 and when their case for being
treated as work charged employees or for regularization is not
backed by any government resolution, their case cannot be
accepted merely on the ground that the some other employees
have received the said benefits irrespective of want of
vacancies and financial constraint of the government. It is true
that the petitioners are working since long, however, their case
for regularization cannot be considered unless they are
selected for regular vacancies in accordance with rules. I am
sure if in future occasion arise to grant further benefits of work
charge, the cases of the petitioners will be considered by the
government in accordance with the rules and their seniority.
Subject to above observations, the petitions are rejected."

The said decision of the learned Single Judge has also been

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confirmed by the Division Bench vide order in Letters Patent Appeal
No.590/2007 in Special Civil Application No.4726/2004. Yet in another
decision in the case of Dashrathbhai Naranbhai Tadvi & Ors. vs. State
of Gujarat & Anr. rendered in Special Civil Application
No.11393/2000, the learned Single Judge after following the decision
of the Hon'ble Supreme Court in the case of
Umadevi
(3) (Supra)
rejected the said petition in which the daily wagers prayed for an
appropriate writ, direction and order directing the State to take them on
regular establishment on and from their passing the SSC examination
with all incidental benefits. Before the learned Single Judge it was the
case on behalf of the petitioners that they are daily wagers workmen
working under the Department since last more than 15 to 20 years.

However, considering the decision of the Hon'ble Supreme Court in the
case of
Umadevi
(3) (Supra) in which it is observed by the Hon'ble
Supreme Court that merely because a temporary employee or a casual
wage worker is continued for a time beyond the term of his
appointment, he would not be absorbed in regular service or made
permanent, merely on the strength of such continuance, if the original
appointment was not made by following a due process of selection as
envisaged by the relevant rules. It is not open to the Court to prevent
regular recruitment at the instance of temporary employees whose
period of employment has come to an end or of adhoc employees who
by the very nature of their appointment, do not acquire any right. The
decision of the learned Single Judge has been confirmed by the Division
Bench vide order in Letters Patent Appeal No.2626/2010.

[18.6] In the case of
M.I. Isani, Executive Engineer, Surendranagar
District Panchayat
(Supra), the Division Bench of this Court has
specifically observed after considering the G.R. dated 04.07.1973 that at
the most the said confers eligibility for being absorbed when vacancies

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arise and if certain conditions are fulfilled. But it does not automatically
confers permanency.

[18.7] In the case of State of Tamil Nadu Through Secretary to
Government, Commercial Taxes and Registration Department,
Secretariat and Another vs. A. Singamuthu reported in (2017) 4 SCC
113, after considering various earlier decisions of the Hon'ble Supreme
Court on the point, in para 8 the Hon'ble Supreme Court has observed
and held as under:

"8. Part­time or casual employment is meant to serve the
exigencies of administration. It is a settled principle of law
that continuance in service for long period on part­time or
temporary basis confers no right to seek regularisation in
service. The person who is engaged on temporary or casual
basis is well aware of the nature of his employment and he
consciously accepted the same at the time of seeking
employment. Generally, while directing that temporary or
part­time appointments be regularised or made permanent,
the courts are swayed by the long period of service rendered
by the employees. However, this may not be always a correct
approach to adopt especially when the scheme of
regularisation is missing from the rule book and
regularisation casts huge financial implications on public
exchequer."

[18.8] In the case of
Umadevi
(3) (Supra), in para 48 the Hon'ble
Supreme Court has observed and held as under:

"48. ...There is no fundamental right in those who have been
employed on daily­wages or temporarily or on contractual
basis, to claim that they have a right to be absorbed in service.
As has been held by this Court, they cannot be said to be
holders of a post, since, a regular appointment could be made
only by making appointments consistent with the
requirements of
Articles 14
and
of the Constitution. The
right to be treated equally with the other employees employed
on daily wages, cannot be extended to a claim for equal
treatment with those who were regularly employed. That
would be treating unequals as equals. It cannot also be relied
on to claim a right to be absorbed in service even though they
have never been selected in terms of the relevant recruitment
rules."

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[18.9] In the case of
Hari Nandan Prasad vs. Employer I/R. to
Management of FCI and Another
reported in (2014) 7 SCC 190 in
para 39 the Hon'ble Supreme Court has observed and held as under:

"39. On harmonious reading of the two judgments discussed
in detail above, we are of the opinion that when there are
posts available, in the absence of any unfair labour practice
the Labour Court would not give direction for regularization
only because a worker has continued as daily wage
worker/adhoc/temporary worker for number of years.
Further, if there are no posts available, such a direction for
regularization would be impermissible. In the aforesaid
circumstances giving of direction to regularize such a person,
only on the basis of number of years put in by such a worker
as daily wager etc. may amount to backdoor entry into the
service which is an anathema to
Art.14
of the Constitution.
Further, such a direction would not be given when the
concerned worker does not meet the eligibility requirement of
the post in question as per the Recruitment Rules. However,
wherever it is found that similarly situated workmen are
regularized by the employer itself under some scheme or
otherwise and the workmen in question who have approached
Industrial/Labour Court are at par with them, direction of
regularization in such cases may be legally justified,
otherwise, non­regularization of the left over workers itself
would amount to invidious discrimination qua them in such
cases and would be violative of
Art.14
of the Constitution.
Thus, the Industrial adjudicator would be achieving the
equality by upholding
Art.14
, rather than violating this
constitutional provision."

[18.10] In the case of
Kartick Chandra Mondal & Anr
(Supra), the
Hon'ble Supreme Court has observed that merely because some other
similarly placed casual workers were regularized, illegality or
irregularity in appointments cannot be further perpetuated by
regularizing the services of others. Thus, it is held that there cannot be
any negative discrimination. In para 25 it is observed and held as under:

"25. Even assuming that the similarly placed persons were ordered
to be absorbed, the same if done erroneously cannot become the
foundation for perpetuating further illegality. If an appointment is
made illegally or irregularly, the same cannot be the basis of
further appointment. An erroneous decision cannot be permitted
to perpetuate further error to the detriment of the general welfare

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of the public or a considerable section. This has been the consistent
approach of this Court. However, we intend to refer to a latest
decision of this Court on this point in the case of
State of Bihar v.
Upendra Narayan Singh and others
[(2009) 5 SCC 65], the
relevant portion of which is extracted hereinbelow :"

"67. By now it is settled that the guarantee of equality before
law enshrined in
Article 14
is a positive concept and it cannot
be enforced by a citizen or court in a negative manner. If an
illegality or irregularity has been committed in favour of any
individual or a group of individuals or a wrong order has
been passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for repeating or
multiplying the same irregularity or illegality or for passing
wrong order."

[A reference in this regard may also be made to the earlier
decisions of this Court. See also:
1) Faridabad CT Scan Centre v.
D.G. Health Services and others
[(1997) 7 SCC 752] : (1997 AIR
SCW 3716);
2) South Eastern Coalfields Ltd. v. State of M.P. and
others
[(2003) 8 SCC 648] : (2003 AIR SCW 5258) and 3)
Maharaj Krishan Bhatt and another v. State of J. and K. and others
[(2008) 9 SCC 24] : (2008 AIR SCW 5421)]."

[18.11] In the case of
PWD Employees Union and Others
(Supra),
the Hon'ble Supreme Court had an occasion to consider the very G.R.
dated 17.10.1988. In
the said decision
it is held that the G.R. dated
17.10.1988 is applicable to all the daily wage workers working in
different departments of the State including Forest and Environment
Department performing any nature of job. It is held that it is not limited
only to the daily wage workers working in building, maintenance and
repairing work. While considering the G.R. dated 17.10.1988, the
Hon'ble Supreme Court has observed in paragraphs 23, 24, 28 and 29 as
under:

"23. From a bare reading of the Resolution dated 17th October,
1988, the following facts emerge:

(a) Labour and other Unions made representation to the
Government making demands and issues relating to daily
wage workers of different departments of the
Government.

(b) The State Government constituted a committee under
the Chairmanship, Minister of Road and Building

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Department.

(c) The Committee was constituted for studying

(i) the wages of daily wage workers;and

(ii) work related services and facilities provided to
the daily wage workers who are engaged in the
building maintenance and repairing work in
different departments of the State.

(d) The recommendations of the Committee were
accepted and accordingly the State Government resolved
to provide the benefits of the scheme contained in the
Resolution 17th October, 1988.

24. The daily wage workers who were engaged in building
maintenance and repairing work in different departments were
already entitled for their work related facilities. Therefore, what
we find is that the Committee has not limited the
recommendation to the daily wage workers working in building
maintenance and repairing work in different departments of the
State. The State Government vide its Resolution dated 17th
October, 1988 has not limited it to the daily wage workers
working in building maintenance and repairing work. What we
find is that the Resolution dated 17th October, 1988 is
applicable to all the daily wage workers working in different
departments of the State including Forest and Environment
Department performing any nature of job including the work
other than building maintenance and repairing work. The
decision of the Full Bench of Gujarat High Court in Gujarat
Forest Producers, Gatherers and Forest Workers Union(supra
and the subsequent Resolution dated 22nd December, 1999
issued from Forest and Environment Department of the State, in
our opinion are not sustainable, as the intent of Resolution dated
17th October, 1988 was not properly explained therein and,
therefore, the aforesaid decision of Full Bench and Resolution
dated 22nd December, 1999 cannot be made applicable to the
daily wage workers of the Forest and Environment Department
of the State of Gujarat.

28. Thus, the principal question that falls to be considered in
these appeals is whether in the facts and circumstances it will be
desirable for the Court to direct the appellants to straightaway
regularize the services of all the daily wage workers working for
more than five years or the daily wage workers working for more
than five years are entitled for some other relief.

29. As per the scheme contained in Resolution dated 17th
October, 1988 all the daily wage workers were not entitled for

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regularization or permanency in the services. As per the said
Resolution the daily wagers are entitled to the following
benefits:

"(i) They are entitled to daily wages as per the prevailing
Daily Wages. If there is presence of more than 240 days
in first year, daily wagers are eligible for paid Sunday,
medical allowance and national festival holidays.

(ii) Daily wagers and semi skilled workers who has
service of more than five years and less than 10 years are
entitled for fixed monthly salary along with dearness
allowance as per prevailing standard, for his working
days. Such daily wagers will get two optional leave in
addition to 14 misc. leave, Sunday leave and national
festival holidays. Such daily wagers will also be eligible
for getting medical allowance and deduction of provident
fund.

(iii) Daily wagers and semi skilled workers who has
service of more than ten years but less than 15 years are
entitled to get minimum pay scale at par with skilled
worker along with dearness allowance as per prevailing
standard, for his working days. Moreover, such daily
wagers will get two optional leave in addition to 14 misc.

leave, Sunday leave and national festival holidays.
He/she will be eligible for getting medical allowance and
deduction of provident fund.

(iv) Daily wagers and semi skilled workers who has
service of more than 15 years will be considered as
permanent worker and such semi skilled workers will get
current pay scale of skilled worker along with dearness
allowance, local city allowance and house rent allowance.
They will get benefit as per the prevailing rules of
gratuity, retired salary, general provident fund.
Moreover, they will get two optional leave in addition to
14 misc. leave, 30 days earned leave, 20 days half pay
leave, Sunday leave and national festival holidays. The
daily wage workers and semi skilled who have completed
more than 15 years of their service will get one
increment, two increments for 20 years service and three
increments for 25 years in the current pay scale of skilled
workers and their salary will be fixed accordingly."

Thus, considering the aforesaid decisions of the Hon'ble Supreme
Court as well as this Court and in view of the subsequent G.R. dated

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17.10.1988 which shall be applicable to all the daily wagers working in
different departments of the State, all the daily wagers shall be governed
by the G.R. dated 17.10.1988 and any violation and/or
resolution/circular prior to 17.10.1988 shall not be applicable including
the G.R. dated 04.07.1973.

[18.12] Now, so far as the impugned CAV common judgment passed
by the learned Single Judge and the directions issued by the learned
Single Judge with respect to the daily wagers more particularly the
directions issued in para 148(II) by which the appellants herein -
original respondents - State Government is directed to absorb all daily
wagers - petitioners on the work charged establishment from the date
they were otherwise eligible to be absorbed is concerned, the same
cannot be sustained for the reasons stated herein above. At the outset it
is required to be noted that as such there is no much discussion by the
learned Single Judge so far as the daily wagers are concerned and/or
their status of the daily wagers are concerned. There is no discussion at
all with respect to the position after the G.R. dated 17.10.1988. The only
reason which can be culled out from the impugned judgment and order
is that as they are working since many years and in view of the earlier
G.R. of 1973, all those daily wagers are required to be absorbed in the
work charged establishment. At this stage it is required to be noted that
as such the learned Single Judge seems to have considered the G.R.
dated 16.08.1973 which has been subsequently revoked in the year 2014
which as such is with respect to the conversion of work charged
establishment to temporary establishment and as such the same is not
with respect to absorbing the daily wagers to work charged
establishment. Even otherwise merely because an employee has worked
as a daily wager for 5 years or more, he shall not be automatically
entitled to be absorbed in the work charged establishment. The order to

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absorb daily wagers to work establishment merely on completion of 5
years automatically shall be contrary to various law laid down by the
Hon'ble Supreme Court in catena of decisions referred to hereinabove.

[18.13] Even otherwise it is required to be noted that grant of such
direction to absorb all those daily wagers into work charged
establishment merely on completion of 5 years as daily wager would
have a cascading effect and chain of sequences. After they are absorbed
in the work charged establishment they may claim the absorption in the
temporary establishment and may claim all other benefits which may be
available to the regular permanent employees and they may claim such
benefit despite the fact that there are no sanctioned vacant posts. Even
otherwise it is required to be noted that even as per the G.R. dated
04.07.1973 (though the same shall not be applicable after the G.R. dated
17.10.1988), absorption of daily wagers to work charged establishment
was subject to various circumstances / conditions referred to
hereinabove. There was no automatic conversion / absorption of daily
wagers to work charged establishment even as per the G.R. dated
04.07.1973 (which shall not be applicable after the G.R. dated
17.10.1988).

[18.14] In view of the above, the impugned common CAV judgment
and order passed by the learned Single Judge in terms of para 148(II) by
which State Government is directed to absorb the daily wagers on the
work charged establishment from the date from which they were
otherwise eligible to be absorbed cannot be sustained and the same
deserves to be quashed and set aside. Even the example that if the daily
wagers would have been absorbed in the year 1995, then the benefits
would accrue 9 years thereafter i.e. 2004 is concerned, with greatest
respect, it is not possible to cull out which benefits would be available to

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such daily wagers who are absorbed on work charged establishment 9
years thereafter. Even as a work charged establishment they shall not be
entitled to the higher pay scale / higher grade on completion of 9 years.
There is no clarity whatsoever so far as the same is concerned. In any
view of the matter the directions contained in para 148(II) referred to
hereinabove in case of daily wagers - original petitioners cannot be
sustained and the same deserves to be quashed and set aside by further
observing that all those daily wagers shall be entitled to the benefits
flowing from the G.R. dated 17.10.1988 and any clarificatory circulars
only and shall not be entitled to any benefits under any resolution /
circular which was in force prior to 17.10.1988. All these appeals are
required to be allowed to the aforesaid extent.

[19.0] Now, so far as the impugned common judgment and order
passed by the learned Single Judge and the directions issued by the
learned Single Judge directing the State Government to absorb all those
writ applicants - work charged employees working on work charged
establishment in the temporary establishment is concerned, it is required
to be noted that as such so far as the work charged employees working
on work charged establishment are concerned, the relevant G.R. would
be the G.R. dated 16.08.1973, which has been revoked / canceled
subsequently vide G.R. dated 20.08.2014. Even the learned Single Judge
while passing the impugned judgment and order and issuing the
impugned directions has considered the G.R. dated 16.08.1973 only.

[19.1] While considering the impugned common CAV judgment
and directions issued with respect to work charged employees and
absorbing them into the temporary establishment, what is work charged
establishment and temporary establishment is required to be considered.
The definition of "work charged establishment" and "temporary

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establishment" has been provided under the Gujarat Public Works
Department Manual. The definitions of "temporary establishment" and
"work charged establishment" are as under:

"(a) Temporary Establishment:

(i) In order to meet the demand for extra supervision which
may arise from time to time as well as to ensure that the Public
Works establishments shall be capable of contraction as well as
of expansion at the expenditure on works diminishes or
increases the permanent establishments may be supplemented
by temporary establishments to such extent as may be necessary
and varying in strength from time to time according to the
nature of the work to be done. Temporary establishment will
include all such non­permanent establishment no matter under
what titles employed as is entertained for the general purposes
of a Division or Subdivision or for the purpose of the general
supervision as distinct from the actual execution of a work or
works.

(ii) If member of temporary establishment are engaged for a
special work, their engagement lasts only for the period during
which the work last. All the temporary appointments should
always be made "until further order" and the persons so
appointed should clearly be given to understand that they are
liable to be discharged at any time without any reasons being
given. The conditions should be clearly explained to the persons
and a written declaration obtained from them that the term
have been clearly understood by them.

Note : 1: Pretty establishments and establishments whose pay is
charged to works are exempted from submitting temporary
service declaration.

Note­2: Junior Engineer, Supervisors and Overseers recruited
after the 16th December, 1958 should be required to give an
advance notice of minimum 3 notice of their intention to resign
the post and Government should, on its part give them similar
advance notice of minimum 3 months if their services are to be
terminated. The condition regarding giving advance notice of
minimum three month, which will be binding on both the sides,
should be specified in appointment orders.

(iii) Power of Chief and Superintendent Engineer and the
Executive Engineers to sanction temporary establishment are
given at Sr. No.2(1) in Appendix XXVII.

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(iv) The leave, travelling and other allowances of temporary
establishment are regulated by the relevant rules in the Bombay
Civil Services Rules. They have ordinarily no claims to pensions.

(v) Superintendent Engineers are authorized to grant
conveyance allowance to member of temporary revenue
establishment at the rates and on the condition mentioned in
the case of the members of the work charged establishment and
in subclauses (iv) of clause (c) of Paragraph 92.

(vi) Transfers of temporary person ordered by local officer
should be restricted within the divisions as far as possible.

(b) Work­charged Establishment:

89. Work­charged posts are just any posts whose pay is directly
debited to the work, and work­charged staff are those employed
in such posts without having any position in the regular
establishment. Works establishment will include such
establishment as is employed upon the actual execution, as
distinct from the general supervision of a specific work or of
sub­works of a specific project or upon the subordinate
supervision of a specific work or of sub­works of a specific
project, of the departmental labor, stores and machinery in
connection with such a work or sub­works. When employees
borne on the permanent or temporary establishment are
employed on work of this nature their pay, etc. should, for the
time being be charged direct to the work; the pay etc, of their
substitutes on the regular establishment being charged to the
minor head 'Establishment'. At Establishment can be incurred is
2 per cent of Expenditure to be incurred on works.

Note­1: The establishment provided for surveying drawing,
tracing etc. in estimates for preparation of projects should be
regarded as engaged on the execution of the work and should
therefore be treated work­charged.

Note­2: Competent authority may waive the rule, which
prescribes that work establishments must be employed upon a
specific work, and determine in such cases the proportions in
which the cost of such establishment shall be allocated between
the works concerned vide serial No.5 in Appendix XXVII.

Exception - In the case of work­charged establishment
employed on various maintenance and repairs works and
occasionally on original minor works, the names of works on
which such establishment is employed need not be specially
mentioned while according sanction to such posts, the cost

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being allocated by the Executive Engineers between the works
concerned in proportion to the time spent on those works.

The Executive Engineers except those of Electrical Divisions
should maintain a proper record of the data for distributing the
cost of such establishment charged to various works for scrutiny
at the time of local audit inspections.

Note­3: The work­charged establishment should be
discontinued when works on which they are employed are
temporarily stopped or suspended and reemployed as soon as
works are resumed.

Note­4: Employees borne on the permanent establishment
should be employed on the actual execution of work, only in the
case of important major works.

Note­5: Transfers of work­charged persons ordered by local
officers should be restricted within the Divisions as far as
possible.

Note­6: If employees on permanent and temporary
establishment transferred to work­charged establishment are
followed the house rent allowance and compensatory local
allowance on the condition that they continue drawing pay and
allowance as admissible to them while on regular
establishment, the substitutes appointed against these posts on
regular establishment should not be granted house rent
allowance and compensatory local allowance as these persons
would have been appointed on the work­charged establishment
but for the deputation of the employees on regular
establishment to work charged establishment.

90. The cost of works establishment must be shown as a
separate subhead of the estimate.

Note­1: In the case of estimates for modernization of road
surfaces, the provision for work­charged establishment should
be made at 2 per cent of the estimated cost.

Note­2: When provision for works establishment is made in an
estimate on a percentage basis it should be invariably be
calculated on the estimated cost of work inclusive of
contingencies so that the provision may be adequate even when
the amount for contingencies has to be utilized.

91. In all cases previous sanction of competent authority to the
employment of work­charged establishment is necessary which

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should specify in respect of each appointment (1) the
consolidated rate of pay, (2) the period of sanction and (3) the
full name (as given in the estimate) of the work and the nature
of duties on which the person engaged would be employed,
powers of Chief and Superintendent Engineer and Executive
Engineer to sanction work­charged establishment are detailed
at Senior No.2(2) in Appendix XXVII of P.W.D. Manual Volume
II.

91A. The Superintending Engineers of Circles, the Director of
Ports, the Director of Engineering Research Institute, the
Electrical Engineer to Government and the Executive Eng inners
of Divisions are authorized to employ subordinates (Junior
Engineer, Supervisors and Overseers) and Khalasis under them
on work­charged establishment where necessary for detailed
supervision of works provided their cost is met from the
provisions for the work­charged establishment in the estimates
of works and subject to the limits laid down at senior No.2 in
Appendix XXVII of P.W.D. Manual Volume II."

[19.2] Even the learned Single Judge in para 30 of the impugned
common CAV judgment and order has observed as under:

"30. The setting up and continuation of work charged
establishment is dependent upon the Government
undertaking, project or a scheme of a work and the availability
of the fund for executing it. The employees engaged in the
work charged establishment, their nature of work and duties
performed by them, their recruitment and condition of
services are different than those employed in the regular
establishment. The regular establishment and the work
charged establishment, both are two separate types of
establishment and the employees employed on those
establishments, thus form two separate and distinct classes."

[19.3] In the case of
Kunji Raman
(Supra), the Hon'ble Supreme
Court had an occasion to consider the difference between the work
charged establishment and the regular establishment.

After considering
the decision of the Hon'ble Supreme Court in the case of
Jaswant Singh
and Others vs. Union of India and Others
reported in (1979) 4 SCC
440, in paras 6 and 8, the Hon'ble Supreme Court has observed and held
as under:

"6. A work­charged establishment as pointed out by this

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Court in
Jaswant Singh v. Union of India
broadly means an
establishment of which the expenses, including the wages and
allowances of the staff, fare chargeable to "works". The pay and
allowances of employees who are borne on a work­charged
establishment are generally shown as a separate sub­head of the
estimated cost of the works. The work­charged employees are
engaged on a temporary basis and their appointments are made
for the execution of a specified work. From the very nature of
their employment, their services automatically come to an end on
the completion of the works for the sole purpose of which they
are employed. Thus a work­charged establishment is materially
and qualitatively different from a regular establishment.

8. A work­charged establishment thus differs from a regular
establishment which is permanent in nature. Setting up and
continuance of a work­charged establishment is dependent upon
the Government undertaking a project or a scheme or a 'work'
and availability of fund for executing it. So far as employees
engaged on work­charged establishments are concerned, not only
their recruitment and service conditions but the nature of work
and duties to be performed by them are not the same as those of
the employees of the regular establishment. A regular
establishment and a work­charged establishment are two
separate types of establishments and the persons employed on
those establishments thus form two separate and distinct
classes....."

[19.4] The Division Bench of this Court in the case of
K.N. Thanaki
and Ors.
(Supra) has specifically observed and held that on completion
of certain number of years, the work charged employees become eligible
for absorption as temporary servants, but that does not mean that they
become entitled to be appointed and retained as temporary employees
immediately after have become eligible to be absorbed as temporary
employees. It is held that their actual absorption has to take place in
accordance with their seniority and availability of posts.

In the case before the Division Bench the grievance of the
petitioners who were work charged employees was that even though
they had completed 5 years of service as work charged employees, they
are not treated as temporary government servants and not given all the
benefits on that basis.

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[19.5] Even considering the G.R. dated 16.08.1973 on which the
reliance has been placed by the work charged employees and which has
been relied upon and considered by the learned Single Judge while
issuing the impugned directions, it appears that the decision was taken
by the State Government that various posts of work charged
establishment in respect of only maintenance and repairs of any works
or irrigation management which are either required permanently or a
very long term basis be converted into temporary posts and work
charged posts to that extent should be abolished. Assuming that the said
resolutions shall be applicable to all the Departments and not in respect
of any only maintenance and repairs of any works
,
in that case
also, as
observed by the Division Bench of this Court in the case of
K.N. Thanaki
and Ors.
(Supra), there shall not be any automatic absorption of work
charged employees into temporary establishment on mere completion of
their 5 years of service as work charged. Same shall be subject to
availability of posts in the temporary establishment and subject to their
seniority etc.

As observed by the Division Bench of this Court in the
aforesaid decision in the case of
K.N. Thanaki and Ors.
(Supra), all those
work charged employees in the work charged establishment who have
worked for more than 5 years shall be eligible to consider their case for
absorption into temporary establishment, but there shall not be any
automatic absorption in the temporary establishment. Therefore,
assuming that the subsequent G.R. of 2014 by which the earlier G.R.
dated 16.08.1973 is revoked / cancelled shall not be applicable
retrospectively and may be applicable prospectively
,
in that case
also,
the direction which could have been issued by the learned Single Judge
would have been to direct the State Government to consider the case of
all those work charged employees who have worked for more than 5
years on work charged establishment as per the G.R. dated 16.08.1973,
which was applicable prior to the G.R. of 2014. Therefore, the impugned

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direction of the learned Single Judge so far as the work charged
employees are concerned that all the work charged employees who have
worked for more than 5 years shall be converted into temporary
establishment on completion of their 5 years of service as work charge
cannot be sustained and the same deserves to be quashed and set aside.

[19.6] Now, so far as the submission on behalf of the State that in
view of the subsequent circular dated 03.02.1987 and in view of the
prohibition on the new recruitment on work charged establishment the
appointments of work charged employees can be said to be illegal is
concerned, at the outset it is required to be noted that merely because all
those persons are continued as work charged even after the ban / bar,
their appointment cannot be said to be per se illegal. It is the State
Government who continued them as work charged despite the resolution
/ circular declaring the prohibition on new recruitment on work charged
establishment. The State cannot be permitted to take the benefit of its
own wrong. All those seem to have been continued as work charged
looking to the need of the work and the requirement. Therefore, the
submission on behalf of the State that in view of the circular dated
03.02.1987 declaring the prohibition on new recruitment on work
charged establishment, the continuation of the concerned work charged
employees is illegal, cannot be accepted.

[19.7] Now, so far as the submission on behalf of the petitioners -
work charged employees that in between so many other work charged
employees including some of the petitioners are absorbed in the
temporary establishment is concerned, it is true that some of the
departments have granted the benefit of absorption and the G.R. dated
16.08.1973 and made some of the work charged employees working on
work charged establishment into the temporary establishment on

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completion of their 5 years' service as work charged. However, as
observed by the Hon'ble Supreme Court in the case of
Kartick Chandra
Mondal
(Supra), the guarantee of equality before law enshrined in

Article 14
of the Constitution is a positive concept and it cannot be
enforced by a citizen or Court in a negative manner. It is further
observed and held that even assuming that similarly placed persons were
ordered to be absorbed, the same if done erroneously cannot become the
foundation for perpetuating further illegality.

In
the said decision
the
Hon'ble Supreme Court has taken into consideration the observations
made in para 67 of the earlier decision in the case of
State of Bihar v.
Upendra Narayan Singh and others
reported in (2009) 5 SCC 65.
Therefore, merely because earlier some similarly placed persons / work
charged employees including some of the petitioners are granted the
benefit of absorption in the temporary establishment on completion of 5
years' service as work charged, the petitioners cannot claim the same
claiming violation of
Article 14
of the Constitution of India.

As observed
herein above and even as per the decision of the Division Bench of this
Court in the case of
K.N. Thanaki and Ors.
(Supra), there is no
automatic absorption in temporary establishment after 5 years of service
as work charged. The cases are required to be considered for absorption
in a temporary establishment after completion of 5 years as work
charged subject to availability of posts in the temporary establishment
and as per the seniority etc.

[19.8] From the impugned common judgment and order passed by
the learned Single Judge it appears that before the learned Single Judge
and even before this Court the learned Counsel appearing on behalf of
the original petitioners heavily relied upon the decision of the learned
Single Judge of this Court in the case of Rashmikaben Trikamlal and
Ors. (Supra) by which the learned Single Judge directed the State to

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grant the benefit of higher pay scale under the scheme of 9­18­27 years
of service to those employees working on work charged establishment,
on the date on which they completed 5 years of service is concerned, at
the outset it is required to be noted that in the said decision all those
work charged were converted to temporary establishment and the
learned Single Judge directed to grant the benefit of higher pay scale. It
is true that in the said decision the learned Single Judge observed that
on completion of 5 years of service they are deemed to have been
converted from work charged establishment to temporary establishment
and therefore, they shall be entitled to the benefit of higher pay scale
under the scheme of 9­18­27 years on completion of 9 years of service
from the date on which they deemed to have been converted from work
charged establishment to temporary establishment. However, it is
required to be noted that the said decision was challenged before the
Division Bench by way of Letters Patent Appeal No.1360/2011 and the
Division Bench dismissed the said appeal and confirmed the order
passed by the learned Single Judge, however the Division Bench
specifically made it clear that order of dismissal of appeal may not be
treated as a precedent. Therefore, once the Division Bench specifically
observed and made it clear that the dismissal of appeal confirming the
order passed by the learned Single Judge in Special Civil Application
No.7464/1996 may not be treated as a precedent, normally the same
cannot be relied upon as the same is to be treated and/or confined to
those petitioners also and the same cannot be treated as a precedent.

While considering the aforesaid decision the learned Single Judge
has not at all considered the observations made by the Division Bench in
Letters Patent Appeal No.1360/2011 that the said order may not be
treated as a precedent. The learned Single Judge seems to have
proceeded on the premise that the decision of the learned Single Judge
in Special Civil Application No.7464/1996 has been confirmed by the

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Division Bench without any further observation (in the present case the
observation that the same may not be treated as a precedent).

[19.9] It is true that in many of the cases the concerned petitioners
are continued as work charged employees in the work charged
establishment since many years and therefore, there shall be a
presumption that the nature of work is permanent. However, the same is
required to be considered while applying the G.R. dated 16.08.1973 and
while considering their cases for absorption in the temporary
establishment. From the impugned judgment and order passed by the
learned Single Judge, there is no factual data available before the
learned Single Judge with respect to the number of persons working in
the work charged establishment; on which posts they are working as
work charged; in which department they are working; since how many
years they are working; how many posts in the temporary establishment
were available. The learned Single Judge has passed the impugned
judgment and order mainly on the ground that all those petitioners -
work charged employees working in the work charged establishment are
working since many years and that they shall be entitled to benefit of
absorption as per the G.R. of the year 1973 and that subsequent G.R. of
2014 canceling / withdrawing the earlier G.R. of 1973 shall not be made
available retrospectively. The learned Single Judge is right in observing
that the subsequent G.R. of 2014 withdrawing / revoking the earlier
G.R. of 1973 cannot be made applicable retrospectively but at the same
time the finding recorded by the learned Single Judge that on
completion of 5 years of service as work charged in the work charged
establishment automatically they shall be entitled to be absorbed in the
temporary establishment cannot be sustained. Number of
circumstances/conditions are required to be considered while converting
the work charged establishment into the temporary establishment even

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as per the G.R. dated 16.08.1973 which was applicable prior to the G.R.
of 2014 and therefore, the State Government / concerned Departments
of the State Government in which the respective petitioners are serving
as work charged employees in the work charged establishment are to be
directed to consider the case of all those petitioners - work charged
employees who are not absorbed in the temporary establishment to
absorb them in the temporary establishment as per the G.R. dated
16.08.1973.

[20.0] Therefore, in light of the above finding and the
observations, under normal circumstances, the matters are required to
be remanded / sent back to the Government to undertake the exercise
viz. when the posts in temporary establishment had fallen vacant; how
many posts had fallen vacant; whether there was a requirement and/or
work or not? However, considering the fact that in most of the cases the
work charged employees have worked for more than three decades,
considering the object and purpose of the G.R. dated 16.08.1973 and for
the reasons stated hereinbelow, we do not propose to send back the
matters to the State Government after number of years.

[20.1] It is required to be noted that the concerned work charged
employees have worked and are working since last three decades.
Therefore, it can safely be presumed and it cannot be disputed that there
was / is work and their services were required and they have
continuously worked for approximately three decades. Even as per the
G.R. dated 16.08.1973 which shall be applicable pre­G.R. Of 2014,
various posts of work charged establishment in respect of maintenance
and repairs of any works or irrigation management which are either
required permanently or very long term basis be converted to permanent
posts and work charge posts to that extent should be abolished. The G.R.

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dated 16.08.1973 reads as under:

"Conversion of work­charged posts
Maintenance repairs and
Irrigation management under P.W.D.
into temporary establishment.

Government of Gujarat,
Public Works Department,
Resolution EC­WCE­ 1272(2)­G,
Dated the 16th August, 1973.

Read:­ Govt. Resolution P.W.D. No.WCE­1270­G­90/(8)/G.
dated 29­12­1971.

RESOLUTION:­
Under Govt. Resolution, Public Works Deptt. No.WCE­1270­
G­99(8)­G dated 29th December, 1971 referred to above, it was
decided that conversion of work charged posts into temporary
posts should not be considered in view of the improvement in
service conditions of the persons working on work charged
establishment. The question of conversion of work charged posts
has been re­considered by Govt. After reconsideration Govt. has
accepted in principle that the various posts on work charged
establishment in either required permanently or a very long term
basis be converted into temporary posts and work charged posts
to that extent should be abolished.

2. The Heads of department under P.W.D. are therefore
requested to please ensure that work charged posts in respect of
maintenance and repairs of any works or irrigation management
which are proposed for conversion to temporary establishment
should have been continuously in existence for a minimum
period of five years and are required either permanently or on
very long term basis say 10 to 15 years.

3. Separate proposals should be submitted for each division in
the enclosed performa giving justification for conversion of each
individual post and indicating the existing norms or standard for
such posts or the norms which could be fixed. The number of
temporary / permanent posts already existing may also be
mentioned in the Performa and taken into account while
submitting the proposals.

4. All previous proposals pending at govt. level should be
treated as disposed off and fresh proposals should be submitted
in accordance with the instructions contained in this resolution.

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5. This issues with the concurrence of Finance Department vide
its not, dated 10­7­73 on this Department's file of even number."

[20.2] Therefore, on fair reading of the G.R. dated 16.08.1973 the
object and purpose of the G.R. dated 16.08.1973 seems to be to convert
various posts of work charged establishment which are either required
permanently or very long term basis be converted into temporary posts
provided that such work charged posts should have been continuously in
existence for a minimum period of 5 years and are required either
permanently or on very long term basis say 10 to 15 years. In the present
case all the work charged employees have worked for very long term
basis i.e. for three decades. Therefore, as such the concerned work
charged employees are required to be absorbed in temporary
establishment and on conversion and/or absorption into temporary
establishment, they shall be entitled to all the benefits which may be
available to the employees working in the temporary establishment. At
this stage it is required to be noted that as such many departments have
already granted such benefits to some of the employees and some work
charged employees are converted into temporary establishment as per
the G.R. dated 16.08.1973. Therefore, it is held that all those respective
petitioners - work charged employees were / are required to be
converted to temporary establishment, but as observed herein above, not
automatically on completion of their 5 years of service as work charged
employees. Consequently, they shall be entitled to all the benefits which
may be available to the employees working on temporary establishment.

[20.3] However, next question which is posed for consideration of
this Court is from which date such benefit should be granted to the
concerned respective petitioners. At this stage it is required to be noted
that as such some of the original petitioners - employees are already

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granted the benefit of G.R. dated 16.08.1973 before many years and
they are converted to temporary establishment long back. However, they
are claiming that they ought to have been converted to temporary
establishment immediately on completion of 5 years of service as work
charged. Some of the work charged employees who are converted to
temporary establishment are already granted the benefit flowing from
their conversion to temporary establishment. However, according to
some of the petitioners they are granted the benefit belatedly and they
shall be entitled to the benefits immediately on completion of 5 years of
service as work charged as according to them they ought to have been
converted to temporary establishment immediately on completion their
5 years of service as work charged. In case of some of the petitioners
though they are converted from work charged to temporary
establishment, they are not granted the benefit/s on their conversion to
temporary establishment more particularly the benefit of higher pay
scale on completion of either 9, 18 and 27 years of service on such
temporary establishment. It is the case on behalf of the State that as all
of them have approached this Court belatedly, on the ground of delay
and laches the learned Single Judge ought not to have entertained the
petitions. However, the same cannot be accepted. At the most, as
observed by the Hon'ble Supreme Court in the case of
Shiv Dass

(Supra),the reliefs and/or actual monetary benefits can be restricted to
three years preceding filing of the petitions. If such a course is adopted
,

in that case
, the concerned petitioners shall get the benefit of the G.R.
dated 16.08.1973 and the benefits which may be available to the
temporary establishment employees and they are non­suited on the
ground of delay and laches and at the same time the State also may not
have to bear the heavy financial burden as it is reported that the
financial burden upon the State would be approximately Rs.400 Crores
to Rs.500 Crores. Therefore, the relief sought is required to be moulded

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to strike balance and therefore, we are of the opinion that if the actual
monetary benefits are restricted to 3 years preceding the filing of the
petition/s, it shall meet the ends of justice.

[21.0] In view of the above and for the reasons stated above, all
these Letters Patent Appeals are partly allowed to the extent quashing
and setting aside the impugned directions in case of daily wagers and
the direction that on completion of their 5 years' service they shall be
absorbed in the workcharged establishment and they shall be paid all
consequential benefits, is hereby quashed and set aside. However, all
those daily wagers shall be entitled to the benefits flowing from the G.R.
dated 17.10.1988 and if not paid, they shall be paid such benefits
accordingly.

[21.1] So far as the impugned direction/s in respect of
workcharged employees namely all those workcharged employees to be
absorbed / converted to temporary establishment on their completion of
5 years' service and they shall be paid the consequential benefits
accordingly is hereby quashed and set aside and is modified to the extent
and it is held that all those petitioners - workcharged employees who
have worked for more than 20 years as workcharged employees shall be
entitled to conversion to temporary establishment as per the G.R. dated
16.08.1973 from the date on which they complete 20 years of service as
workcharged and they shall be entitled to all the benefits which may be
available to the employees working in the temporary establishment,
including the benefit of higher pay scale / grade if at all the same is
being paid to the employees working in the temporary establishment,
however they shall be paid the arrears on such conversion to temporary
establishment for the period preceding 3 years of filing of the respective
petitions. The arrears shall be calculated and paid within a period of 4

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months from today, failing which it shall carry interest at the rate of 9%
per annum. It is also directed that in case any of the work charged
employee has retired, he shall be paid the retirement benefits as if he
was converted to temporary establishment provided such employee has
worked for not less than 20 years as workcharged employee and
retirement benefits be calculated and paid accordingly, however they
shall be paid the arrears for 3 years only. Such exercise also shall be
completed within period of four months from today. Present appeals are
partly allowed to the aforesaid extent. In the facts and circumstances of
the case, there shall be no order as to costs.

Sd/­
(M.R. SHAH, J.)

Sd/­
(B.N. KARIA, J.)

Ajay**

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