ORDER : 1. By this petition, the petitioner - Dhari Nagarpalika has brought under challenge an award dated 19.2.1996 passed by the Labour Court, Bhavnagar in Reference (LC-Demand) No. 30 of 1993 whereby the Labour Court has directed the petitioner Nagarpalika to treat the respondent as confirmed employee as an octroi clerk and to grant the status of permanent workman to the respondent with effect from 1.1.1991. Aggrieved by the said order and direction, the petitioner Nagarpalika is before this Court. 2. The facts giving rise to and involved in present petition are as follows : The petitioner Nagarpalika has claimed that it had been levying and collecting octroi since last many years. It appears that the petitioner Nagarpalika was getting the work of collection of octroi done through contractor (Ijardar) and that somewhere in 1989 one Mr. Pradipkumar Manilal had instituted a Civil Suit against the petitioner Nagarpalika (erstwhile panchayat) and an injunction against grant of lease for octroi collection was granted. It is the case of the petitioner that, in view of the said injunction, it became necessary for the petitioner to engage its own personnel for carrying out the work of collection of octroi. The petitioner has claimed that it was in pursuance of such developments that the respondent came to be engaged, on daily wage basis, with effect from 1.11.1989. 3. The petitioner has further claimed that after continuing the respondent on daily wage basis for about five months, the said daily wage engagement of the respondent was discontinued with effect from 20.4.1990 and the respondent along with other 10 similarly situated persons was relieved. 4. Aggrieved by such action of the petitioner, the respondent and the other persons instituted Regular Civil Suit No. 49/90 in the Court of learned Civil Judge (J.D.), Dhari seeking declaration declaring them octroi clerks of the petitioner and that the petitioner had no right to restrain them from discharging their duties as octroi clerks. 5. The petitioner has also claimed that the learned Civil Court, on 20.4.1990 passed an order of ad-interim injunction directing the petitioner to maintain status-quo. 5. The petitioner has also claimed that the learned Civil Court, on 20.4.1990 passed an order of ad-interim injunction directing the petitioner to maintain status-quo. The petitioner has mentioned the aforesaid details, particularly the fact regarding the order of injunction passed by the trial court so as to urge and demonstrate that continuation of the respondent in service of the petitioner after 20.4.1990 was on account of the ad-interim injunction order passed by the learned Civil Court. It appears that, by order dated 3.9.1990, while disposing the interim injunction application, the learned trial court directed the petitioner that, if the service of the plaintiff i.e. the respondent and other similarly situated persons were required then they may not be discharged until 30.9.1990 or until the lease/ijara for octroi collection was granted to any outside agency. In view of the said order, the plaintiff including the respondent withdrew the civil suit, however, with a permission to file fresh suit. 6. The petitioner has claimed that subsequently the respondent and other persons preferred Writ Petition being SCA No. 7177/90 and SCA Nos.7222/90 to 7231/90 against the petitioner claiming right to continue in service. The petitions were rejected after recording stipulation made on behalf of the panchayat that the panchayat would pass appropriate orders in accordance with law as regards the services of the respondent and his co-workers. 7. Thereafter in August 1991 the respondent herein approached the Labour Court. The industrial dispute raised by the respondent culminated into Reference (LCD) No. 30/93 (Old Reference No. 22/91). The other 8 workmen had already raised an industrial dispute in 1990 which was registered as Reference No. 31/90. 8. A slight detour is necessary so as to record the factual aspects that the petitioner had thought of terminating the services of other persons, and since the above-referred Reference No. 31/90 was pending, the petitioner had filed Approval Application No. 1/90 in said Reference No. 31/90 seeking approval of discharging the other persons. Later on, the reference by the workmen was rejected and the approval application preferred by the petitioner was granted. Aggrieved by the said decision of the Labour Court, the other persons had approached this Court by way of writ petition which were rejected and then the dispute was also taken before the Hon'ble Supreme Court where also the petition came to be dismissed. 9. Aggrieved by the said decision of the Labour Court, the other persons had approached this Court by way of writ petition which were rejected and then the dispute was also taken before the Hon'ble Supreme Court where also the petition came to be dismissed. 9. So far as the proceedings instituted by the respondent herein is concerned, the petitioner claims that it had filed its reply (Exh.26) somewhere in October 1994 denying the claims of the respondent that he was a permanent employee and/or that he was discharging duties of permanent nature and that he had put in work for more than 240 days. It appears that the petitioner also claimed that there was no permanent sanctioned set-up in the petitioner panchayat and it had no powers of filling-up the post by permanent employees. 10. After hearing the concerned parties the Labour Court allowed the reference of present respondent by award dated 19.2.1996. The Labour Court believed that there was permanent set up and sanctioned post and that the respondent was working since November 1989. 11. On such premise the Labour Court granted the reference and issued direction to the petitioner to confirm the respondent and to grant the status of permanent employee as octroi clerk w.e.f. 1.11.1991. The learned Labour Court also directed the petitioner to pay all consequential benefits with arrears to the respondent. The said award and directions are under challenge in this petition. 12. Mr. P. J. Kanabar, learned advocate for the petitioner has also placed on record certain other details which, as such, are factual developments. Though such details are not relevant for the purpose of examining the award impugned in present petition, the same are taken note of, so as to complete the narration of factual aspects stated by the petitioner. It appears that, during the pendency of the reference proceedings before the Labour Court, the respondent could secure, in his favour, promotion from the post of octroi clerk to the post of octroi inspector. 13. The petitioner now claims that the said action of promoting the respondent to the post of octroi inspector was dehors the rules, however, the petitioner has failed to explain why the respondent was continued in employment while other persons were terminated in 1991 by seeking Labour Court's approval through Approval Application No. 1/90. 14. 13. The petitioner now claims that the said action of promoting the respondent to the post of octroi inspector was dehors the rules, however, the petitioner has failed to explain why the respondent was continued in employment while other persons were terminated in 1991 by seeking Labour Court's approval through Approval Application No. 1/90. 14. Be that as it may, the fact remains that while other persons came to be terminated way back in 1990, the respondent was continued in service by the petitioner, and it was only in 2002 that his service came to be terminated. 15. In the interregnum a resolution came to be passed in May 1998 cancelling earlier decision of granting promotion to the respondent to the post of octroi inspector. By virtue of the resolution dated 2.5.1998, which is said to have been passed unanimously, the respondent was directed to hand over the charge of the post of octroi inspector. 16. Aggrieved by the said decision and action, the respondent had approached the Civil Court by way of Civil Suit No. 13/99. The respondent also filed complaint under the provisions of the Industrial Disputes Act. The said complaint was registered as Complaint No. 18/99. Subsequently the Suit No. 13/99 came to be withdrawn by the respondent. Later on the respondent also withdrew the above-referred Complaint No. 18/99. 17. Interestingly, the respondent subsequently preferred a petition being SCA No. 9486 of 2000 challenging the action of withdrawal of the complaint by his advocate. Mr.Kanabar, learned advocate for the petitioner has submitted that, by virtue of orders passed in the said Writ Petition being SCA No. 9486 of 2000, the said complaint was, at the relevant time, directed to be restored, however, the present status of the said proceedings is not known to him. The fact, however, remains that the proceedings of the said Complaint No. 18/99 were restored. 18. In January 2001 the administrator of the petitioner Nagarpalika, appointed the respondent to his original post i.e. daily wage octroi clerk and asked the respondent to report for work on the said post. Mr.Kanabar, learned advocate for the petitioner has submitted that, despite such intimation, the respondent did not report for work as daily wage octroi clerk, and that therefore, his service came to be terminated by the petitioner with effect from 25.10.2002. 19. Mr.Kanabar, learned advocate for the petitioner has submitted that, despite such intimation, the respondent did not report for work as daily wage octroi clerk, and that therefore, his service came to be terminated by the petitioner with effect from 25.10.2002. 19. It has been strenuously submitted by Mr.Kanabar, learned advocate for the petitioner, that during past period of more than 8 years, the respondent has not taken any action against the order of termination passed in October 2002 and the termination of his service has remained unchallenged until now. 20. The respondent has challenged the award directing the petitioner to treat the respondent as confirmed employee with effect from January 1991 and to confer the status of permanent octroi clerk with effect from January 1991. 21. Mr. Kanabar, learned advocate for the petitioner has, at the outset, submitted that, in view of the subsequent development, particularly the termination of the respondent's service with effect from October 2002, the impugned direction has lost its significance, particularly because the respondent has until now not challenged the termination of his service with effect from October 2002. In his submission, however, the issue would survive for the period from 1991 to 2002. Mr. Kanabar, learned advocate for the petitioner submitted that the direction given by the Labour Court granting status of permanent employee in favour of the respondent is not only unjustified and contrary to the evidence on record but is also without jurisdiction. Mr. Kanabar, learned advocate for the petitioner, submitted that there is no sanctioned post and no permanent set-up and that therefore the Labour Court ought not to have issued such direction. He also submitted that, even otherwise, there was no material available on record which would lead the learned Court to pass such direction or to justify or even warrant such a direction. He submitted that the said direction is without support of any justification and the Court has not recorded any legally sustainable reasons except the presumption there is a set-up of 10 posts comprising 8 permanent employees and 2 daily wage employees, on the establishment of the petitioner. 22. Mr. Bhavdutt H. Bhatt, learned advocate for the respondent submitted that, in the facts and circumstances of the case, and in light of the evidence which was available on record, the award is justified and does not call for any interference. 22. Mr. Bhavdutt H. Bhatt, learned advocate for the respondent submitted that, in the facts and circumstances of the case, and in light of the evidence which was available on record, the award is justified and does not call for any interference. So as to support his submissions, Mr.Bhatt, learned advocate relied upon award dated 13.5.1991 passed by the Labour Court in Reference (LCD) No. 31/90 in respect of the above-referred other persons. He, in particular, relied upon the observations and the findings pertaining to the post available on the set-up so as to demolish the petitioner's submission that there is no sanctioned set-up or permanent establishment or any vacant post. He, however, fairly submitted that, at the time of entry, the regular procedure of selection and recruitment was not followed and the respondent was engaged on daily wage basis. He, vehemently, tried to improvise the said position by submitting that the subsequent long tenure of the respondent has wiped out the said deficiencies. He submitted that, at the most, the respondent's initial engagement was irregular but was not illegal or void. Mr. Bhatt, learned advocate for the respondent also relied upon the judgment dated 19.12.2000 in SCA No. 9486/2000 whereby the Hon'ble Court set aside the petitioner's order (passed by administrator) of reversion. He also relied upon the judgment and order dated 22.3.2005 in LPA No. 90 of 2005. Besides other submissions, Mr. Bhatt, learned advocate urged that various other persons have been subsequently regularised by the petitioner and it is only in respect of the respondent that the petitioner has not followed similar action of regularising the services. As an alternative submission, Mr. Bhatt, learned advocate submitted that, if the direction granting the status of permanent employee with retrospective effect appears objectionable then the said direction may be appropriately modified, however, the relief granted by the Court conferring the status of permanent employee may kindly be retained. 23. Though, Mr. As an alternative submission, Mr. Bhatt, learned advocate submitted that, if the direction granting the status of permanent employee with retrospective effect appears objectionable then the said direction may be appropriately modified, however, the relief granted by the Court conferring the status of permanent employee may kindly be retained. 23. Though, Mr. Bhatt, learned advocate has taken this Court through the documents and orders obtaining on the record of the petition so as to demonstrate that the direction passed by the Labour Court which, in light of the composite facts and circumstances is in consonance with the facts and evidence on record and legal position, it would not be justified for this Court to take into account the post-award developments or such facts and circumstances into account which were not available on the record of the Court when the award impugned in present petition came to be passed, because the learned Court passed the award in February 1996 on the basis of the material available on the record and the facts existing at that point of time. 24. It emerges from the record that the Labour Court has based its observations, findings and directions on the premise that there existed sanctioned set-up of 10 posts comprising 8 permanent posts and 2 posts which were daily wage basis posts. The Labour Court has proceeded on the said premise, and held that, when there was sanctioned set-up then the Nagarpalika should have treated the respondent, who was in its employment since 1989, as a confirmed employee. 25. From the record of present petition it has come to the notice of the Court that the Director of Local Authorities, Northern Division, Ahmedabad had passed an order on 30.5.1956 and accorded sanction to the proposal of the Municipality to create 10 posts of octroi clerks. A copy of the said order is at Annexure "R/1" at page 114. It appears that it was in light of the said order that the Labour Court accepted that there was sanctioned set-up on the establishment of the petitioner Municipality for octroi department. The question, however, which arises is that whether the said posts were already filled up or any of the posts was vacant. It appears that it was in light of the said order that the Labour Court accepted that there was sanctioned set-up on the establishment of the petitioner Municipality for octroi department. The question, however, which arises is that whether the said posts were already filled up or any of the posts was vacant. It appears that the concerned persons including the respondent who had entered into litigation since 1990 are a different set or group of personnel from those who were working on the sanctioned post and who were assigned or allotted, as found and recorded by the Labour Court in the award, to the contractor/ijardar when the contract for collection of octroi was awarded. Thus, when the posts were filled up, and when there was no available vacancy and when the Labour Court had noticed that the other persons were already employed on the sanctioned post, then apparently there was no avenue for the Labour Court to direct the petitioner to confer the status of permanent employee in favour of the respondent. The Labour Court, unfortunately, failed to address the issue as to whether there was any actual vacancy or not. The Hon'ble Full Bench of this Court has, in the judgment in the case between Amreli Municipality v. Gujarat Pradesh Municipal Employees Union reported in 2004 (3) GLR 1841 held that : "12.1.15 In view of the above discussion, we answer the question referred to us as under: (i) The Labour Court/Industrial Tribunal has no jurisdiction to issue direction or pass an award regularising services of employees of a Municipality or local authority without there being any 'sanctioned set-up' and no person can be regularised if such a person had entered service without following selection process under the title of daily-rated employee. (ii) In view of our answer to the above question, the judgment rendered by Division Bench in the case of Kalol Municipality v. Shantiben, reported in 1993 (2) GLR 997 is now no longer a good law in view of subsequent decisions rendered by the Apex Court and more particularly the decision in the case of N.S. Giri v. Corporation of State of Mangalore, AIR 1999 SC 1958 : (1999 Lab IC 1982). The subsequent decision rendered by the Division Bench of this Court in the case of Halvad Nagarpalika and others v. Jani Dipakbhai Chandravadanbhai and others reported in 2003 (4) GLR 3229 : 2003 (2) GHCJ 397 is held to be a good law. All the matters shall be placed before the concerned Courts taking up such matters for passing appropriate orders." 26. The Hon'ble Full Bench, in the judgment in the above-referred case has also observed that: "12.1 After considering the decisions cited before us, the following principles emerge : (A) No regularisation or permanency can be effected dehors the statutory provisions or the guidelines. (B) Long service put in by the workmen itself may not be a ground to regularise services of ad hoc/temporary workmen against the sanctioned set-up without following statutory procedure of recruitment. At the most, Labour Court/Industrial Tribunal can issue direction for consideration of absorption subject to availability of posts on the establishment. (C) To avoid nepotism and corruption, no back-door entry in service; (D) Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption." 27. The Hon'ble Full Bench has held that, if the initial entry of the concerned persons is without following the selection process and such person has entered the service of local authority as daily rated employee then in that event the Labour Court or Tribunal will have no jurisdiction to issue direction for regularisation. 28. In present case it is not in dispute that initially the respondent entered the service of the petitioner without submitting himself to the prescribed and regular selection procedure and was engaged as a daily rated employee. Hence this case would fall within clause(i) of para 12.1.15 of the judgment of the Hon'ble Full Bench. 29. In this view of the matter, the direction given by the Labour Court by the impugned award cannot be upheld or sustained. Further it also deserves to be taken into account that in April 1990 the petitioner had sought to relieve the respondent, however, in view of the order passed by the learned trial court, he was continued at the material point of time and then one after another rounds of litigations continued which ensured respondent's continuation in the employment. The respondent was accordingly continued in the employment for long time. The respondent was accordingly continued in the employment for long time. Later on in October 2002 his service has been terminated. The said factual aspect is not disputed by the learned advocate for the respondent. Thus, Mr. Kana-bar, learned advocate appears to be justified when he contends that at least after October 2002 the direction passed by the learned Labour Court has lost the relevance since the respondent has until now not challenged his termination. 30. During the submission, Mr. Kanabar, as aforesaid, referred to various documents and orders and the diverse developments which took place since the litigation between the parties started until the date of award. However, the award and the propriety of the direction can be examined only in light of the facts available on the record of the court and not in light of the events which might have taken place subsequently. 31. One of the events which needs to be taken into account is that while the Labour Court by common order dated 13.5.1991 passed in Reference (LCD) No. 31/90 and Approval Application No. 1/91, had held that : "25. The opponent's witness Bhaskarrai has also deposed on oath that Dhari Nagar-panchayat is put to loss of about 10 lacs of rupees, by not giving ijars of octroi to the contractor every year. This shows that Dhari Nagar- panchayat by giving ijars to the contractor every year was doing something profitable to Dhari Nagar-Panchayat and that too within the purview of the Gujarat Panchayats Act. So, having regard to all the above discussed evidence, and legal position, I am of the view that the present workmen cannot claim right to be permanent in service on the post on which they were employed as Rojamdars." "26. It was submitted by the learned Advocate for the workmen that there are some vacant posts of octroi clerks which were sanctioned by the Government and so the workmen should be recruited on these posts. In my opinion, this argument of the learned Advocate for the workmen cannot be accepted, because Dhari Nagar-Panchayat has no right to fill in these posts by appointing the workmen on these posts and they have to undergo procedure of sending candidates for these posts to Jilla Panchayat Selection Committee for being appointed on these posts. So, we cannot agree with the suggestion made by the learned Advocate for the workmen. So, we cannot agree with the suggestion made by the learned Advocate for the workmen. So, I hold that the workmen have no right to be made permanent on the posts of octroi clerks which are held by them, as Rojamdars, and demand for the same cannot be accepted." "27. Then, we have to consider the prayer of Dhari Nagar-panchayat for permitting them to discharge the workmen from service according to law. The learned Advocate for the opponent submitted that Dhari Nagar-panchayat is prepared to pay the said workmen their notice pay, and retrenchment compensation as required by law, at the time when they are discharged from service. In my opinion, the Dhari Nagar-panchayat cannot be stopped from discharging the present workmen from service on payment of notice pay, and retrenchment compensation according to law, and so I think it proper to accord permission to Dhari Nagar-panchayat to discharge the workmen from service in accordance with law. I, therefore, pass the order below. "Ref (LCD) No. 31/90 is rejected, with no order as to cost. Approval Application No. 1/90 is allowed, and Dhari Nagar-Panchayat is permitted to discharge the workmen from service in accordance with Section 25F of the Industrial Disputes Act. No order as to costs." 32. Whereas in present case the Court has passed direction requiring the petitioner to treat the respondent as confirmed employee and to grant the status of permanent employee to the respondent. In other words, what came to be denied by the Labour Court, Rajkot in Reference No. 31/90 has been granted by the Labour Court, Rajkot in present case/Reference i.e. subject Reference (Old Reference No. 22/91) i.e. (New Reference No. 30/93). 33. Thus, on overall consideration of the facts and circumstances of the case and the law settled by the judgment of the Full Bench in the case of Amreli Municipality (supra), the impugned award cannot be sustained. Consequently the same deserves to be set aside and it is hereby set aside. 34. Accordingly the petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No costs. 35. Consequently the same deserves to be set aside and it is hereby set aside. 34. Accordingly the petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No costs. 35. It is, however, clarified that this judgment and order and the observations made herein will not come in the way of the respondent in prosecuting the complaint i.e. the proceedings relating to Complaint No. 18/99, if the same are still pending, and if the same is already not disposed off (though, of course, this clarification would not entitle the respondent to revive the complaint proceedings if the same are already disposed of). 36. As noted above, the petitioner has until now not taken out any proceedings against the termination. Mr.Bhatt, learned advocate for the respondent submitted that the judgment and order in present petition may not come in the way of the respondent hereafter. It goes without saying that if and when such proceedings are taken out, the same shall be decided by the competent court in accordance with law, and after considering all relevant aspects (including the delay part) and evidence on record. Order accordingly.