Ahmedabad Municipal Corporation vs Meghajibhai Sanabhai Bhimsuriya on 3 August, 2001

7/27/2019 Ahmedabad Municipal Corporation vs Meghajibhai Sanabhai Bhimsuriya on 3 August, 2001

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Gujarat High Court

Gujarat High Court

Ahmedabad Municipal Corporation vs Meghajibhai Sanabhai Bhimsuriya on 3 August, 2001

Equivalent citations: (2001) 3 GLR 2072

Author: J Vora

Bench: J Vora

JUDGMENT

J.R. Vora, J.

1. Admit. Learned Advocate Mr. M. B. Gandhi for the respondents waives service.

2. These Appeals From Orders are filed against an order of City Civil Court, Ahmedabad, below Application

Exh. 5 in Civil Suit Nos. 1280 of 1996, 4509 of 1996, 1262 of 1996 and 1397 of 1996. In each of the above

suits, on notice of motion, below Exhs. 5 and 6, learned City Civil Judge passed order on 20th November,

2000, allowing the Notice of Motion in each of the above said suits confirming the relief of status quo granted

at ad interim stage till final hearing of the suit. Since all the four orders which are impugned are similar and

the same and each of the above said order in all 4, these 4 Appeals From Orders are preferred, all these

Appeal From Orders were heard together and are being disposed of with this common judgment and order.

3. The short fact of the case is that in all about 32 plaintiffs filed above said four civil suits in the City Civil

Court at Ahmedabad for declaration and permanent injunction. Mainly it was contended that the plaintiffs are

daily-rated employees of the Ahmedabad Municipal Corporation-respondent herein and defendant in all the

above four suits. It is contended by the plaintiffs that they are daily-rated employees right from 1989. Some of

them were serving as skilled workers and some of them as unskilled workers. The appointments orders are

placed on record along with the plaints. It is the say of the plaintiffs that they are officiating on vacant and

permanent posts and after 31st March, 1996, the defendant intends to dismiss them from the service to employ

some junior persons in their place. This action of the defendant is illegal. It is also contended that as per the

scheme of the defendant, they are eligible to be regularised and to be made permanent on clear vacancy

because they have completed 5 years of service and 900 days. It is stated that the defendant since intends toemploy juniors to the plaintiffs in their place, the defendant threatened them to expel from the job and for that

the defendant gave the plaintiffs an artificial and long breaks. The work of the plaintiffs and the services are

satisfactory and no charge-sheet or notice till the filing of the suits for the misbehaviour or otherwise has been

given to the plaintiffs. By amending the plaints, it is also contended that in different departments of the

defendant-Corporation, juniors to the present plaintiffs are employed who are presently working in the

respective departments. This amendment contains list of junior persons working in the various departments of

the Corporation. Ultimately, long reliefs i.e., the following declaration are sought by the plaintiffs in the above

said suits.

(i) That they are working on clear substantive posts and are entitled to have the benefits of permanent

employees.

(ii) As per the policy of the Corporation, they have completed 5 years and 900 days, and therefore, they are

entitled to be regularised, and in fact, they are since long permanent.

(iii) The action of the defendant-Corporation not making them permanent is discriminatory, illegal, against the

principles of natural justice and violative of Arts. 14, 16, 21, 309 and 311 of the Constitution of India.

(iv) Declaration is sought that the action of the defendant to employ junior persons is in colourable exercise

and is required to be set aside.


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(v) Permanent injunction is sought that defendant be restrained from discharging or dismissing the plaintiffs in

any manner, whatsoever, from the employment and the defendant be restrained from obstructing the plaintiffs

in discharging their duties.

(vi) That appointment order of the defendant appointing them upto 13-3-1996 is illegal and void.

4. With these prayers, an Application Exh, 5 i.e.. Notice of Motion was also filed by plaintiffs of each of the

suits stating that till disposal of the suit, defendant, in any manner, whatsoever, be restrained by interiminjunction to remove, dismiss or discharge the plaintiffs from the post on which they are working in the Tax

Department.

5. To this, reply was filed by Ahmedabad Municipal Corporation and it was contended that the suit was barred

because notice under Section 487 of the Bombay Provincial Municipal Corporations Act, 1949 was not

served. It was also contended that the suit was bad for misjoinder because each plaintiff had a separate cause

of action. It was further contended that the plaintiffs were appointed as daily wagers in Tax Department and

their duty was to assist in recovery of the property tax and disconnecting the water connection if the property

tax is not paid by the citizens. They were also assisting in reconnecting the water supply and for this work on

some days only in a year service of daily wagers was employed. The appointments of the plaintiffs are not

according to the provisions of the Act and Rules made thereunder. Only they were called upon to serve in caseof necessity and whenever such work arises. In reply, the defendant has given a list year-wise of the working

days of each of the plaintiffs. It is contended from this that none of the plaintiffs has completed 900 days and

cannot gain the benefit of scheme and the policy of the defendant. It is also alternatively submitted that even if

they fulfil the above criteria, the plaintiffs are not entitled to have permanent service in the Corporation

because their appointments are not according to the provisions of the Act and Rules made thereunder, and

therefore, they cannot claim any right of permanent service. The appointments of the plaintiffs is purely on

temporary basis and if the reliefs claimed is granted, there will be a huge administrative expenses on a public

body like Ahmedabad Municipal Corporation and the whole revenue will be utilised for the payment of salary

only. It is also contended that the appointments were given to each of the plaintiffs for a particular period and

beyond that the plaintiff had no right to continue in service. Lastly, the plaintiffs were appointed as daily

wagers w.e.f. 14-2-1996 upto 31-3-1996 because during that period the Corporation is recovering property taxon a Large scale. It is contended that it is for the plaintiffs to prove that they have served the Corporation for

more than 900 days in five years. It is contended that none of the plaintiffs is appointed on clear and

substantive post. In fact, it is urged that there is no clear or substantive post in Tax Department and only as

and when necessary the plaintiffs are appointed for daily work. They are not permanent employees. Mere

issuing identity cards, would not confer any permanent right in service on the plaintiffs. It is also contended

that the suit was likely to take six to seven years and if the order is passed in favour of the plaintiffs, the

defendant Corporation will have to pay the salary of daily wagers though their service will be illegal. It would

be very difficult thereafter to recover the amount from the plaintiffs and the same will be wastage of public

money. For the above grounds, it was urged to dismiss the Notice of Motion.

6. Initially, at the ad interim stage, an order of status quo was passed by the learned trial Judge on 29th March,

1996, which was continued till the hearing of Notice of Motion. Learned Advocate for the defendant

consented to extend the order of status quo till the hearing of Notice of Motion. Lastly, vide order impugned

dated 20th November, 2000, Notice of Motion came to be allowed and the status quo order was confirmed till

the final hearing of the suit and hence these four Appeals.

7. This Court vide its order dated 2nd May, 2001, passed the following interim order in all the Civil

Applications filed in each of the Appeal From Order :

"Rule. Pending the Appeal, there shall be ad interim stay in terms of paragraph 5(B). It is clarified that this

order shall not preclude the appellant-applicant from engaging the services of plaintiff 011 daily wages, as and

when required. However, such service shall not create a right upto itself."




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Para 5(B) is similar in all the applications which is as under :

"5(B) Pending hearing and final disposal of this application and appeal from order, Your Lordships may

further be pleased to stay the implementation, operation and execution of the order below Exh. 5 and Exh. 6

passed by the Auxiliary Chamber Judge, Court No. 24, City Civil Court, Ahmedabad in the Civil Suit No.

1280 of 1996 dated 20-11-2000."

8. By this order, the order of status quo granted by the trial Court was suspended and hence the respondentsherein-original plaintiffs also filed Civil Applications for modification of the above order. Finally, on 11th

June, 2001, this Court passed the order that instead of hearing the Civil Applications for modification of the

injunction, it would be in the fitness of things to fix the Appeal From Orders for final hearing on June 21,

2001 and therefore, all these four Appeals were heard finally.

9. Learned Advocate Mr. Kirit Patel for the appellant and learned Advocate Mr. M. B. Gandhi for the

respondents in each of the Appeals were heard at length.

10. The very first argument on behalf of the appellant is, the learned trial Judge wrongly presumed that since

learned Advocate for the Corporation consented to extend the status quo, there was availability of the work so

as to confirm and accord permanent status to the present respondents. It was urged that none of the plaintiffseither fulfilled the criteria of 900 days in five years nor none of the plaintiffs was officiating on a clear

substantive post. It was urged that in tax recovery drive for a specific period, their services were called for and

utilised. There is no evidence at primary stage that any of the plaintiffs was working against substantive post

and could claim any right qua the posts. It is urged that a declaration which is sought for is not for the

regularisation but for the permanent status. It is also urged that the mandatory notice under Section 487 has

not been served upon the Corporation. It is urged that the trial Judge erroneously considered the facts of the

case and the law as well. It is urged that the 4 Supreme Court decisions i.e., (1) AIR 1999 SCW 694 : AIR

1999 SC 1056 in the matter of Samshta Dube v. City Board Etawah, (2) AIR 1999 SCW 697 : AIR 1999 SC

1059 in the matter of Management of Karnatak State Road Transport v. K.S.R.T.C. Staff and Workers'

Federation, (3) AIR 1999 SCW 892 : AIR 1999 SC 1160 in the matter of Secretary, Haryana State Electricity

Board v. Suresh & Ors., and (4) AIR 2000 SCW 3586 : AIR 2000 SC 3287 in the matter of HindustanMachine Tools v. Rangareddy, referred by the trial Judge, are not applicable to the present facts of the case.

Learned Counsel for the appellant urged that the plaintiffs have not claimed the regularisation but permanent

employment. The attention of this Court was drawn to the orders of appointments given to the plaintiffs

attached with the plaint and argued that it is for the specific period and for the seasonal work only. The order

in question are for the appointments in Tax Department from 14-2-1996 to 31st March, 1996. It is urged that

there is no evidence on record that any of the plaintiffs is working on a permanent post. The reliance is placed

on Division Bench decision of this Court in the matter of Bhanwnati Tapubhai Muliya v. State of Gujarat,

reported in 1996 (1) GLR 54, wherein this Court has laid down the ratio that in service matters Courts must be

slow in granting temporary injunction to the plaintiff. Reliance is also placed on a Supreme Court decision,

reported in 1993 (1) GLR 848 in the matter of State of Gujarat v. P. J. Kampavat, for the rights of ad hoc

appointments. It is also urged that the Corporation function through various departments and each department

has its own employees and the recruitments also are made as such. In support of this, a decision of Supreme

Court reported in AIR 1997 SC 3002 : 1998 (1) GLR 17 (SC) in the matter of Ahmedabad Municipal

Corporation v. Virendrakumar Jayantibhai Patel, is cited. It is also urged that recently also this Court has

passed an order to prepare the department wise seniority list, and therefore, the contentions of the plaintiffs

that the juniors have been employed in other departments of the Corporation has no relevance. So far as the

Tax Department is concerned, it is urged that except the employees working under the orders of the Court, not

a single junior to the present plaintiffs is employed in Tax Department and to that extent the undertaking by

appropriate officer is also filed. It is also urged that the plaintiffs by the order of status quo have worked till he

interim order of this Court and this period cannot be treated as confirming any rights upon any of the

plaintiffs. Learned Advocate has placed reliance on a decision of this Court reported in 1999 (1) GLR 580 in

the matter of Y. M. Ujjainwala v. District Development Officer, Panchmahal & Anr, for the contention that




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they are working as daily rated workers since 1989 and that they are required to be made permanent. It was

also urged that therefore, the Civil Court will have the jurisdiction to entertain these suits. It is also urged thai

it is claimed in the suit that juniors are retained and senior employees i.e., plaintiffs are dismissed. Therefore,

it is further urged that in relevant rules of the Corporation, octroi is considered as a tax and the Corporation

has retained juniors in the octroi department which is according to the learned Advocate is a Tax Department

and the plaintiffs who are seniors are discharged or dismissed. Octroi department is a part and parcel of the

Tax Department because octroi itself is a tax according to the rules of the Municipal Corporation. The

attention of this Court is also drawn to Rule 33 of the Rules of the Corporation on the point of jurisdiction.Reliance was placed on a decision of the Supreme Court reported in AIR 1973 SC 855 in the matter of 5. M.

Sirsi Municipality by its President, Sirsi v, Cecelia Kom Francis Tellis and AIR 1975 SC 1331 in the matter of

Sukhdev Singh v. Bhagatram Sardar Singh Reghuvanshi, to substantiate the contention that the civil suit is

maintainable. Ultimately, it is urged that all the 4 Appeals are required to be dismissed.

13. From the above contentions, the core question which arises is regarding the nature of the employment of

the plaintiffs. Before we examine the order impugned, the nature of the employment of the plaintiffs is very

material to decide the controversy in the matter. It is an admitted fact that the plaintiffs are daily rated

workers. It is also an admitted fact that before filing of the suit, the plaintiffs were employed for some period

of the year but not for the whole year. This is more evident from the appointment orders submitted with the

plaint that appointment of the concerned plaintiff is as daily reacted and for a certain period. In this case to bemore specific, from 14th February, 1996 to 31st March, 1996. It is not a case of the plaintiffs that they are full

time workers. This nature of employment was examined by this Court and therefore so far as the nature of

employment is concerned the Appeals squarely falls within the decision of this Court in the matter of

Govindbliai C. Chauhan v. Chairman, Scheduled Caste Economic Development Corporation Limited,

reported in 1997 (2) GLH 210. This Court has dealt with similar type of dispute in the extraordinary

jurisdiction of the High Court. This Court in Para 18 observed as under :

"It is settled law that a temporary Government servant does not become permanent unless he acquires that

capacity by force of any rule or is declared a permanent servant. Reference in this respect may have to be

made to the decision of the Apex Court in the case of Madhya Pradesh Hasta Shilpa Vikas Nigam Limited v.

Devendra Kumar Jain, reported in JT 1995 (1) SC 198. Case of a daily wager cannot be on a better footingthan temporary Government servant. The petitioners in all these petitioners have prayed for regularisation of

their services. Merely because the petitioner were taken initially as apprentice and thereafter they were

appointed on daily wages, it will not give any right to them for their regularisation in the service. It is the case

of the respondents that apprentices were taken in the present cases in excess of the number. However, the fact

remains that the petitioners continued in service as daily wagers and it is not the case of regular appointment

as daily wagers also. The petitioners were taken as apprentices after interview, but subsequently on

completion of their apprenticeship they were taken on daily wages and at that point of time no selection has

been made. Recruitment is to be made, as per the case of the respondents, after holding of time no selection

has been made recruitment interview and selection by the Selection Committee. So these appointments of the

petitioners are nothing but hack door entries. It is not the case of the petitioner that the Corporation has not

framed rules for recruitment. Even if it is taken that the rules for recruitment have not been framed, then

certainly the Corporation being 'State' or 'Instrumentality or Agency of State' within the meaning of Art. 12 of

the Constitution of India, it has to follow the provisions of Arts. 14 and 16 of the Constitution in the matter of

making recruitment to various posts. Articles 14 and 16 of the Constitution are applicable even to temporary

appointments. Recruitments have to be made by making selection by giving public advertisement to ensure

that eligible candidates get equal opportunity of consideration for appointment in the public employment. In

the case of State of Himachal Pradesh v. Suresh Kumar Verma, reported in JT 1996 (2) SC 445, the Apex

Court held that it is settled law that having made rules of recruitment to various services under the State or to

a class of posts under the State, the State is bound to follow the same and to have the selection of the

candidates made as per recruitment rules and appointments shall be made accordingly. It has further been held

by the Apex Court that appointment on daily wage basis is not an appointment to a post according to the rules.

Vacancies are required to be filled up in accordance with the rules and all the candidates who would otherwise




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eligible are entitled to apply for, when recruitment is made and seek consideration of their claims on merits

according to the Rules for direct recruitment along with all the eligible candidates. The appointment on daily

wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the

efficiency of service and would breed seeds of nepotism and corruption. It is equally settled law that even for

Class IV employees recruitment according to rules is a precondition. In view of the aforesaid position of law

as laid down by the Apex Court, daily wage employees have no right whatsoever to a post. Daily wage

employees get appointment on the date on which work is available and it comes to an end on the very day. It

is a different matter that despite sett led legal position State functionaries, statutory corporations or otheragencies still make appointment on daily wages and keep the same continued for years together. Naturally

then, this class of persons approach the Courts for continuance of their services and for regularisation. In such

cases if directions are being given for regularisation of services of all this class of persons, then the judicial

process would become another mode of recruitment dehors the rules. The Apex Court in the case of Stale of

Himachal Pradesh v. Suresh Kumar Vanna (supra) in para 3 of the judgment observed as under :

"It is seen that the project in which the respondents were engaged had come to an end and that, therefore, they

have necessarily been terminated for want of work. The Court cannot give any directions to re-engage them in

any other work or appoint them against existing vacancies. Otherwise, the judicial process would become

other mode of recruitment dehors the rules.

Not only that the judicial process would become other mode of recruitment de hors rules, but the

appointments which were per se unconstitutional will also become regular appointments, and many of the

eligible candidales having eligibility for the post will be deprived of their fundamental right for consideralion

in public employment conferred under Arts. 14 and 16 of the Constitution."

Further in para 22 of the above decision of Govindbhai C. Chauhcm (supra) this Court observed as under :

"Here is the case where none of the petitioners is working for long duration. The period of working on daily

wage is of no significance or substance as daily wagers have no right to the post. In view of this position the

contentions raised by the Counsel for the petitioners has no merits. All these petitions deserve to be dismissed

only on the ground that the petitioners have no right to the posts, though all these petitioners are working onthe posts, may be under the order of the Court. The respondent-Board has admitted that 8 posts of clerks are

lying vacant in the Corporation. It is therefore, ordered ihat the petitioners may be given an opportunity to

compete for selection and recruitment against these posts. The respondent Corporation is directed to advertise

the eight vacancies for selection and recruitment within a period of two months from today. It shall be open to

the petitioners to apply for the posts. Selection and recruitment to those posts may be made within six months

from today. Those petitioners who would be selected and appointed on the posts shall be continued in service,

but the services of those who fail to get selected shall come to an end automatically on the date the selected

candidates join service."

14. While deciding this issue, this Court placed reliance on decisions of the Supreme Court in case of Madhya

Pradesh Hasta Shilpa Vikas Nigam Limited and Himachal Pradesh v. Suresh Kumar (supra) and after relying

on those decisions, this Court held that the period of working on a daily wage is of no significance or

substance as daily wagers have no right to the post. Therefore, it was held by this Court that daily wagers

cannot claim any substantial right over the posts. Relying on the above said two Supreme Court decisions, this

Court also observed that to declare them permanent in the job, dehors the recruitment rules, would be a back

door entry and Courts should not be an instrumental to back door entry which is dehors the recruitment rules.

15. In the present case, the recruitments of the daily wagers admittedly is not as per the rules of recruitments.

It is pertinent to note here that the daily wagers of the Engineering Department filed an Industrial dispute

before the competent Court and concerned Labour Court on the dispute being raised by the daily rated

employees of the Ahmedabad Municipal Corporation vide Ret. (IT) No. 179 of 1975 adjudicated that

according to the availability of posts, the workmen who have worked for 900 days in 5 years as on 31st




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March, 1978, shall be made permanent and given all the benefits of permanent workmen with effect from 1st

April, 1978. From this, it appears that the respondent Corporation framed a policy that the daily rated

employees, who completed 900 days in 5 years will be regularised. Therefore, daily-rated employees who

fulfil the above criteria only, according to their turn in the seniority list, can be regularised. There is no

evidence on record or at least prima facie none of the plaintiffs has satisfied the trial Court that they have

fulfilled the criteria even for regularisation let alone permanent status. Therefore, I have no reason to deviate

from the decision of this Court referred to above that daily rated workers have no substantive right to claim

permanent status dehors the rules or in the present case dehors the scheme or (he policy of the Corporation orthe employer concerned.

16. To understand and explain more about the nature of the employment of daily wagers upon which

permanent status is claimed, the view of Apex Court is required to be noted and the Supreme Court has many

occasions laid down the principles. In case of Municipal Corporation, Bilaspur v. Veer Singh Rajput & Ors.,

reported in 1998 (9) SCC 258, Supreme Court observed that the High Court was wrong in ordering

regularisation of the daily rated workers. While setting aside the order of the High Court regularising the daily

wagers, the Supreme Court in paras 3 and 4 observed as under :

"3. The High Court has purported to follow the decision of this Court in State of Haryanu v. Piara Singh, 1992

(4) SCC 118. In this judgment in para 25, this Court has pointed out that before giving directions forregularisation, the Court must act with due care and caution. "A practical and pragmatic view has to be taken,

inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing

the cadre strength of a particular service, class or category." In this paragraph there is a discussion on several

problems which can arise if wholesale regularisation is ordered. One such problem relates to irregularities in

appointmenls. Candidates who are sought to be regularised may be neither sponsored by the employment

exchange nor appointed after issuing a proper advertisement calling for applications. "In shon, it may be a

back-door entry. A direction to regularise such appointments would only result in encouragement to such

unhealthy practices." In the present case, the stand of the appellant Corporation throughout has been that these

daily rated employees have been appointed because of political considerations by the Standing Committee.

After the Standing Committee was superseded and Administrator was appointed, serious irregularities were

discovered in these appointments. In this situation, a direction given by the High Court for regularisation ofsuch persons is not warranted. Our attention has been drawn to the observations made by this Court in

Satyanarayan Sharma v. National Mineral Development Corporation Ltd. 1990 (4) SCC 163 where this Court

declined regularisation in a case where there were no vacancies and work was not available in the

establishment. In the present case, there is no material indicating that the work is not available. The

appointments, however, are irregular and made on political considerations. There are clear Government

directions for reduction of esiabiishment expenditure and a prohibition on the filing of vacant posts or creating

new posts including regularisation of daily waged employees. The order of the High Court for regularisation

of such employees is not warranted. It is in the teeth of these administrative directions and cannot be

sustained.

' 4. It is further urged by the respondents that recently the appellant Corporation has appointed some

employees on daily wages. In the absence of any instructions, learned Counsel for the appellant is not in a

position to state before us if this is so and the circumstances in which such appointments have been made. But

if casual workers or daily rated workers are now being appointed by the appellant-Corporation, in fairness to

the respondents whose services were terminated on the principle of "last come first go", they should be

considered for appointment on daily wages in preference to others by waiving the age bar (if necessary) if

they are otherwise qualified and eligible for the post."

17. In case of State of Punjab v. Sardara Singh, reported in 1998 (9) SCC 709 the Supreme Court again set

aside the order of the High Court regularising the daily workers in the job. The Supreme Court observed that

the Court could only direct the State to frame a scheme for regularisation and where the Scheme has already

been framed, it could only direct for considering the matter for regularisation of the petitioner in accordance




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with the scheme. Supreme Court in Para-3 of the above judgment observed as under :

"By the impugned judgment, the High Court has directed that the respondent who has been employed on

daily-wage basis as a labourer should be regularised since he has put in more than three years of service. The

submission of Shri Sodhi, the learned Counsel appearing for the appellants, is that the State Government has

framed a scheme for regularisation vide circular dated 7-5-1993 and that the regularisation could only be

made in accordance with the said scheme. We find merit in the said contention. The High Court could not

direct for regularisation of the respondent but could only direct the appellants to frame a scheme for the saidregularisation and since the scheme has already been framed, the regularisation can only be made in

accordance with the scheme. In the circumstances, the appeal is allowed and the directions given by the High

Court regarding regularisation of the respondent is set aside and it is directed that the appellants shall consider

the matter of regularisation of the respondent in accordance with the scheme, as revised from time to time, as

per the circular dated 7-5-1993. No order as to costs."

18. An argument was advanced that if there is no work with the Tax Department, these employees can be

deputed or transferred to some other departments. This argument cannot be countenanced. A useful reference

can be made to the decision of the Supreme Court in the matter of State of H. P. v. Ashwani Kumar, reported

in 1996 (1) SCC 773, wherein the Supreme Court observed in the circumstances that the daily wagers were

engaged by the State Government on muster roll basis in Central Scheme and paid out of funds provided bythe Central Government, due to closure of the Scheme, the services of said daily wagers were terminated. The

Supreme Court observed that in the above circumstances, the High Court was not right in giving direction to

regularize them or to continue them in other places. The Supreme Court observed as under :

"It is seen that when the project is completed and closed due to non-availability of funds, consequently, the

employees have to go along with the closed project. The High Court was not right in giving the direction to

regularise them or to continue them in other places. No vested right is created in temporary employment.

Directions cannot be given to regularise their services in the absence of any existing vacancies nor can

directions be given to create posts by the State to a nonexistent establishment. The Court would adopt

pragmatic approach in giving directions. The directions would amount to creating of posts and continuing

them in spite of non-availability of the work. We are of the considered view that the directions issued by theHigh Court are absolutely illegal warranting our interference. The order of the High Court is set aside.

This is a clear cut mandate of the Supreme Court that what is the nature of the employment of the daily rated

workers.

19. Any appointments, regularisation, permanent status or promotion of an employee dehors the rule of law is

deprecated by the Courts of this country. What is claimed in this case is the permanent status while the

Supreme Court says that daily rated workers cannot even be regularised dehors the scheme or the rules. The

scheme applicable to the concerned employees is a matter to be proved by the concerned plaintiffs. In such

circumstances, the Supreme Court has given guidelines that what orders Court could pass in the case of State

of U. P. v. Ajay Kumar, reported in 1997 (4) SCC 88. In para 3 of the decision, the Supreme Court observed

as under :

"The admitted position is that the respondent came to be appointed on daily-wage basis on 14-2-1985 as Class

IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent

filed a writ petition in the High Court for his regularisation, the learned single Judge pointed out that the

respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be

regularised, on the basis of the service rendered by him as a daily wage earner. Even the method of

recruitment adopted by the Superintendent was not proper inasmuch as he did not call for applications. The

Division Bench reversed the decision of the learned single Judge and had given directions. It is not settled

legal position that there should exist a post and either administrative instructions or statutory rules must be in

operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent




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establishment in which there cannot exist any post and it continues so long as the work exists. Under these

circumstances, the Division Bench has clearly in error in directing the appellant to regularise the service of the

respondent to the post as and when the vacancy arises and to continue him until then. The direction in the

backdrop of the above facts is, obviously, illegal."

20. The Supreme Court in the above decision clearly says that what Court could order is to consider the

concerned employee for regularisation and nothing more than that, if the scheme is in existence and if the

scheme is not in existence the Court can order framing of the scheme, but in no case, Court can orderregularisation of a daily rated workers, which is dehors the established law of this country. Therefore, the

nature of the employment of the present plaintiffs is absolutely temporary and they can claim regularisation

only through the scheme framed and if the scheme which is framed by the Corporation is applicable to the

present plaintiffs, they can be regularised accordingly but in that case it is for them to prove that they are

fulfilling the criteria. Nothing on the record to denote that on the date of filing of the suits they were covered

by the scheme and were entitled to regularisation.

21. There is no substance in the argument that the Corporation is one unit. Undoubtedly, the Corporation is

operating through different departments and each department has its own recruitment either permanent or

temporary and the seniority list. Sending employees of one department to the other, would cause injustice to

the employees of the other departments. Even the resolution of the Standing Committee and Board of theappellant-Corporation shown to me on behalf of the respondents itself shows that the recruitments are made

departmental wise and not as a general. Therefore, the seniority and the recruitment must be considered

department wise only. The appointment orders which are placed with the plaint also clearly denotes that the

appointments of the plaintiffs are for the temporary period i.e., specific period in a Tax Department. The

Supreme Court in the case of Ahmedabad Municipal Corporation v. Virendrakumar Jayantibhai Patel (supra)

observed that the scheme framed referred to hereinabove was relating to the daily rated workers of the

Engineering Department only and Virendrakumar Jayantibhai Patel who was an employee of Medical

Department was denied the benefit of the scheme by the Supreme Court. This shows that the Supreme Court

is approved that the Corporation is working department wise. It cannot be said that the Corporation is one unit

and a general seniority list is maintained. Therefore, the appointments made except in the Tax Department

could not make any grievance to the plaintiffs and there is no case that in the Tax Department any junior tothe present plaintiffs is appointed by the Corporation and that an undertaking by the Officer of the

Corporation is also filed in these Appeal From Orders that no junior to the plaintiffs except working under the

orders of the Court are appointed as daily rated workers in the Tax Department. In the above said decision, the

Supreme Court further observed in para 5 as under :

"Once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons

would be sufferers as they would not get any chance to be considered for appointment. The result would be

that persons lesser in merit would get preference in the matter of appointment merely on the ground of equity

and compassion. It is therefore not safe to bend the arms of law only for adjusting equity. We, therefore, find

that the reasoning given by the tribunal that sympathy demands the absorption of the respondent in the service

of the Corporation suffers from error of law."

22. Therefore the daily wagers can get the permanent employment only either through the recruitment rules or

by way of benefit of the scheme that might have been framed by the concerned employer and the back door

entry to the recruitment is always deprecated by the Supreme Court. There is no force in the contention that

the employees/plaintiffs are already regularised as per the scheme and entitled to the benefit of permanent

status and their rights are violated because their juniors are appointed in other Departments. The trial Court

certainly has not taken this aspect into consideration and the trial Court has taken the aspect into consideration

which is not applicable at all to the facts of this case. The 4 decisions as mentioned earlier of the Supreme

Court as cited on behalf of the plaintiffs have not been properly considered by the trial Court because none of

the decisions referred above is applicable to the facts of the present case.




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23. On the contrary, the case is fully covered by a decision of the Division Bench of this Court as reported in

1996 (1) GLR 54 in the matter of Bhanumati T. Muliya v. State of Gujarat. The ratio laid down by this Court

is as under :

(i) A person appointed only for a limited period has no right to continue in service beyond that period.

(ii) In service matter Court should not grant interim injunction permitting an employee to be in service.

Wrongful termination can in proper cases be compensated by award of damages but if the suit is dismissed,restitution will be impossible.

24. The Division Bench of this Court relied on the principles as propounded by the Supreme Court in the case

of Chandigarh Administration v. Jagjit Singh, reported in JT 1995 (1) SC 445; in the case of State of Gujarat

v. P. J. Kampavat, reported in 1993 (1) GLR 848 (SC) and in the case of Dr. Arundhati Ajit Fargaonkar v.

Slate of Maharashlra, reported in JT 1994 (5) SC 378. It is clearly mandated by the Division Bench of this

Court that in service matter, Court must be slow to grant temporary injunction. However, the trial Court has

simply brushed aside this ratio of the Division Bench of this Court by saying that "but in the present economic

scenario it is not expected that at the cost of bread of the family of the plaintiffs the employment of the

plaintiffs is to he taken away at present and in future the damages would be ordered," In last part of the order,

the trial Court also observed that in view of the principle propounded by the Hon'ble Supreme Court asagainst the principle propounded by the Hon'ble High Court of Gujarat, it is necessary to grant protection to

the plaintiffs as daily wagers till final hearing and disposal of the suit."

25. This Court has gone thoroughly to the order of the trial Court but this Court could not find any decision of

the Supreme Court by which the above ratio as mandated by this Court in decision of Bhanumati (supra) is

over ruled. None of the decisions of the Supreme Court which has been referred by the trial Court in the order

ever deals with this ratio. With utmost judicial restraint, suffice it to say that the trial Court constitutionally

bound by the decisions of this Court and such ratio cannot be by passed on vague grounds. However, in this

view of the matter, since the trial Court has failed to understand the law and the fact as well, as aforesaid, the

order cannot be sustainable in law.

26. Before this Court a dispute regarding jurisdiction is also taken. Both the learned Counsel have at length

argued before me about the jurisdiction of the Court. On behalf of the appellant, it is argued that the disputes

are squarely covered under the Industrial Disputes Act, 1947 while on behalf of the respondents it is argued

that they are entitled to file civil suit under common law. At prima facie juncture, it is necessary to examine

issue of jurisdiction to the limited extent whether the ultimate reliefs claimed by the plaintiffs can be awarded

by the Civil Court. What is claimed is mentioned as aforesaid i.e., (i) the plaintiffs are regularised, (ii) the

plaintiffs are already permanent employees and they should be awarded the benefit of permanent employees,

(iii) their service cannot be terminated and (iv) their juniors are retained and they apprehended termination.

27. By no stretch of reasoning, it can be said that regularisation according to the scheme as framed under the

Industrial Disputes Act, 1947, is a principle of common law. Right of permanency in service on the strength

of working days has never been a principle of common law. The plaintiffs are terminated and juniors are

retained is also embodied under Section 25-G of the Industrial Disputes Act, 1947. In the case of Chandrakant

Tukoram Nikam v. Municipal Corporation of The City of Ahmedabad, reported in 1993 (1) GLR 684, this

Court dealt with similar type of disputes and held that the dispute which had arisen in those cases they are

covered under the Industrial disputes. The reliance was placed on the.decision of the Supreme Court in

Premier Automobiles Limited v. Kamlakar Shantaram Wadke, reported in AIR 1975 SC 2238. According to

learned Advocate for the respondents, they are covered by point No. 2 as mentioned by Supreme Court in

above decision of Premier Automobiles, they are entitled to file a Civil Suit which is maintainable, but in my

view, the present respondents plaintiffs are not covered by point No. 2, but they are covered by point No. 3

that if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then

the only remedy available to the suitor is to get an adjudication under the Act. In this case, the plaintiffs case




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is regularisation. They claim regularisation under the scheme framed. That scheme itself is framed in

consequence of industrial dispute which is adjudicated by the Labour Court under the Industrial Disputes Act,

1947, and therefore, the plaintiffs have sought the implementation of that scheme and the permanent status

and hence the present disputes being undoubtedly an industrial dispute, would be covered by the Industrial

Disputes Act, 1947, for which, according to the decision of the Supreme Court in the matter of Premier

Automobiles Limited v. Kamlakar Shantaram Wadke (supra), the jurisdiction of the Civil Court is impliedly

barred under Section 9 of the Civil Procedure Code. Moreover, to keep the employees temporary and

daily-rated for longer period is unfair labour practice which is again a subject-matter of jurisdiction of theCourts as established under the Industrial Disputes Act, for which no civil suit is maintainable. The learned

Advocate Mr. Gandhi for the respondents has relied upon a decision of the Supreme Court in the matter of

Rajasthan State Road Transport Corporation v. Krishna Kant, reported in AIR 1995 SC 1715. After discussing

Principle No. 2 in Premier Automobiles decision of the Supreme Court, in this case, the Apex Court observed

in para 25 as under :

"25. Now, coming back to Principle No. 2 and its qualification in Para 24, we must say that Para 24 must be

read harmoniously with the said principle and not in derogation of it-not so as to nullity it altogether, Indeed,

Principle No. 2 is a reiteration of the principle affirmed and in several decisions on the subject including

Dhulabhai, AIR 1969 SC 78. Principle No. 2 is clear whereas Para 24 is more in the nature of a statement of

fact. It says that most of the industrial disputes will be disputes involving the rights and obligations created bythe Act. It, therefore, says that there will hardly be any industrial dispute which will fall under Principle No. 2

and that almost all of them fall under Principle No. 3. This statement cannot be understood as saying that no

industrial dispute can ever be entertained by or adjudicated upon by the civil Courts. Such an understanding

would not only make the statement of law in Principle No. 2 wholly meaningless, but would also run counter

to the well established principles on the subject. It must accordingly be held that the effect of Principle No. 2

is in no manner whittled down by Para 24. At the same time, we must emphasize the policy of law underlying

the Industrial Disputes Act and the host of enactments concerning the workmen made by Parliament and State

legislatures. The whole idea has been to provide a speedy, inexpensive and effective forum for resolution of

disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not

get caught in the labyrinth of civil Courts with their layers upon layers of appeals and revisions and the

elaborate procedural laws, which the workman can ill-afford. The procedures followed by civil Courts, it wasthought, would not facilitate a prompt and effective disposal of these disputes. As against this, the Courts and

Tribunals created by the Industrial Disputes Act are not shacked by these procedural laws nor is their award

subject to any appeals or revisions. Because of their informality, the workmen and their representatives can

themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just

and appropriate. They can even substitute the punishment in many cases. They can make and remake the

contracts, settlements, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the

High Court under Art. 226 as also to the jurisdiction of this Court under Art. 32, but they are extraordinary

remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that

disputes concerning mem are adjudicated in the forums created by the Act and not in a Civil Court. That is the

entire policy underlying the vast array of enactment concerning workmen. This legislative policy and

intendment should necessarily weigh with the Courts in interpreting these enactments and the disputes arising

under them."

28. It is, therefore, abundantly clear that in this decision, the Apex Court has approved the principle as laid

down in Premier Automobiles (supra). Only that the statement in Premier Automobiles that there are hardly

be any industrial dispute which will fall under Principle No. 2 and that almost all of them will fall under

Principle No. 3 is dealt with and it is said that this statement cannot be understood as saying that no industrial

dispute can ever be entertained by or adjudicated upon by the Civil Courts. Meaning thereby when the

disputes are arising out of exclusively under the common law, civil suit would be maintainable as envisaged

by Principle No. 2 in Premier Automobiles and in this decision of the Supreme Court also. Therefore, this

decision would not be of any avail to the respondents because as stated above none of the disputes raised by

the respondents is basing on common law principle, but all the disputes are covered by the Industrial Disputes




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Act, 1947. In this view of the matter the decision cited on behalf of the respondents in this respect i.e., in the

matter of S. M. Sirsi Municipality by irs President, Sirsi v. Cecelia Kom Francis Tellis, reported in AIR 1973

SC 855 and in the matter of Sukhdev Singh v. Bhagalram Sardar Singh Reghuvanshi, reported in AIR 1975

SC 1331. However, these observations are limited only to the extent that the plaintiffs are not entitled to any

interim injunction because the permanent relief which they have claimed cannot be awarded to them. The trial

Court may consider, without being influenced wim these observations, the issue of jurisdiction.

29. It is also urged that the period for which the plaintiffs have worked under the order of the Court cannot beconsidered as on duty so as to include them in the scheme, and for that, a decision of this Court in the matter

of Y. M. Ujjaimvala & D.D.O., Panchnmhal (supra), is relied upon by learned Advocate for the appellant.

Though the decision is clearly indicates that such period cannot be counted as on duty, however, I do not

express any opinion on that and the trial Court will decide this issue according to law.

30. In this view of the matter and for the above said discussion, all the four Appeals From Order are allowed.

Notice of Motion in each of the Suit Nos. 1280 of 1996, 4509 of 1996, 1262 of 1996 and 1397 of 1996 stands

dismissed. However, the appellant-Corporation is directed that the present respondents shall be employed and

shall be given work as was being given on the date of the filing of the suits and previously thereto. The trial

Court is further directed to expedite the disposal of the suits and dispose the same within six months from the

date of receipt of writ of this Court.

30. Appeals allowed.



Documents

Ahmedabad Municipal Corporation vs Meghajibhai Sanabhai Bhimsuriya on 3 August, 2001