JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Bhavsar, learned advocate for the petitioner, and Ms. Kamani, learned advocate, for Mr. Pathak, learned advocate for the respondent No. 1, contesting party. 2. In present petition, the petitioner Nagarpalika has challenged award dated 7.9.1999 passed by the learned Industrial Tribunal, Bhavnagar in Reference (IT) No. 240 of 1991 whereby the learned Tribunal has directed the petitioner to regularize the service of the concerned claimants by considering the concerned claimants as daily wagers for period of first five years from the date they joined the service and by considering the concerned claimants as temporary workmen for subsequent five years and thereafter, to treat the concerned claimants as permanent workmen with consequential benefits and to pay arrears from the said date within 30 days. Aggrieved by such direction, the petitioner filed present petition. 3. At the outset, Mr. Bhavsar, learned advocate for the petitioner, submitted that during pendency of the petition, the petitioner Nagarpalika and the respondent union had entered into negotiations and deliberations for full and final settlement of the dispute. He further submitted that, as a result of joint deliberations and negotiations, an amicable settlement came to be arrived at. He submitted that the concerned claimants had offered that if benefit of regularization and permanency as per the directions passed by the learned Tribunal is granted, then, the workmen/union are ready and willing to accept 20% of back wages and to forego balance 80% of back wages awarded by virtue of the award impugned in the petition. He submitted that in view of the said request and offer by the concerned claimants, the petitioner Nagarpalika deliberated the issue during the meeting of the Executive Committee and after due deliberations, it was decided to accept the said suggestion and offer so as to put an end to the dispute and the litigation. He also submitted that accordingly, the petitioner Nagarpalika passed resolution to grant benefit of regularization in phased manner as directed by the learned Tribunal and to pay 20% back wages in installments (depending on the financial condition of the Nagarpalika) from the date of permanency in the employment. Mr. Bhavsar and Mr. He also submitted that accordingly, the petitioner Nagarpalika passed resolution to grant benefit of regularization in phased manner as directed by the learned Tribunal and to pay 20% back wages in installments (depending on the financial condition of the Nagarpalika) from the date of permanency in the employment. Mr. Bhavsar and Mr. Sanchela, learned advocates, while relying on documents dated 30.11.2015, 31.12.2015 and 1.2.2016, further submitted that the petitioner has paid first, second and third installments respectively of the amount agreed to be paid to the concerned workmen in installments (i.e. 20% of back wages) and the concerned workmen have accepted the said amount. To support the said submission, he placed on record photocopy of the statement reflecting signed receipts acknowledging the payment to the concerned workmen. 4. Mr. Jay Solanki, learned advocate for Mr. Y.M. Thakkar, learned advocate, submitted that Mr. Thakkar has no instructions from and on behalf of respondent No. 2. 5. Ms. Kamani, learned advocate for Mr. Pathak, learned advocate for respondent No. 1 association, submitted that the said settlement was obtained by the nagarpalika by force and the said settlement is not acceptable to the respondent union. She submitted that in the proceeding related to Civil Application No. 6052 of 2002 (which was filed in Special Civil Application No. 523 of 2001), an affidavit dated 17.3.2013 to the said effect was made and submitted on record, wherein it was stated, inter-alia, that: "1. That we are the workmen who are directed to be regularized by the Hon. Industrial Tribunal. Against the said award the Nagarpalika has filed Spl.CA/523/2001. That this Hon. Court (Coram: Mr. Justice Ravi R. Tripathi) passed an order on 25.2.2003 directing the Chief Secretary, State of Gujarat to submit a report for the actions against the respondent Nagarpalika. 2. That the President of the Nagarpalika has started pressurizing the workmen to withdraw the civil application and we were called on 26.2.2003 at about 9.00 PM at water works tank, Kundla and threaten us to submit an affidavit of withdrawal of Civil Application. Our signatures were obtained on the blank vakalatnama also. Our Affidavit was obtained on threat of dire consequences as I have stated in my affidavit. The said affidavit was not with my free will and wish, it was under threat and I say that the same may be treated as canceled. Our signatures were obtained on the blank vakalatnama also. Our Affidavit was obtained on threat of dire consequences as I have stated in my affidavit. The said affidavit was not with my free will and wish, it was under threat and I say that the same may be treated as canceled. I do not want to withdraw my civil application from this Hon. Court nor agreed to change my lawyer." 5.1 Learned advocate for the respondent association submitted that along with the said affidavit dated 17.3.2013, the concerned workmen namely, Mr. Dhirajlal Shamjibhai Rathod, Mr. Baldevsinh D. Jadeja, Mr. Babubhai Kalpyanbhai Joshi, Mr. Jentibhai Chhaganbhai Yadav, Mr. Parshottambhai H. Maru, Mr. Goswami Jaysukhgiri B., Mr. Ashokbhai Bhanabhai Solanki, Mr. Ranjitsinh D. Jadeja, Mr. Mahmedbhai Hasanbhai Bhatti had filed individual affidavits. 6. In this background, this Court has considered the Kabulatnama/Sammati Patrak singed by Mr. Dhirajlal Shamjibhai Rathod, Mr. Baldevsinh D. Jadeja, Mr. Babubhai Kalpyanbhai Joshi, Mr. Jentibhai Chhaganbhai Yadav, Mr. Ashokbhai Bhanabhai Solanki on stamp paper in February 2003 (except one Sammati Patrak which is made in July 2003) declaring that they have entered into the settlement that he is aware about the proceedings which are pending in the High Court and he has entered into the settlement with the Nagarpalika and he is agreeable to receive 20% of arrears/back wages and forgo balance arrears/back wages upon being granted benefit of permanency as per the award 7. From the documents submitted by the Nagarpalika, it appears that the Nagarpalika paid the amounts in question in installments viz. on 30.11.2015, 31.12.2015 and 1.2.2016. It is not in dispute that the concerned persons, including the persons who, according to the union, subsequently raised some objection against the settlement, have accepted the said payments/amounts. What is more important is the fact that the concerned persons accepted the said amounts/payments after their affidavits (which were placed on record along with Civil Application No. 6054 of 2002) which were relied upon by the union. Even if the submission of the municipality that the said affidavits are either not genuine or bona fide, is, for considering the submission of the union, not considered, then also the fact that after making the said affidavits, the concerned persons accepted the payments/ amounts flies in the face of the union. 8. Even if the submission of the municipality that the said affidavits are either not genuine or bona fide, is, for considering the submission of the union, not considered, then also the fact that after making the said affidavits, the concerned persons accepted the payments/ amounts flies in the face of the union. 8. In view of the said subsequent acceptance of the amount/payment in compliance of the settlement, the so-called objection raised by virtue of the civil application/affidavits, has lost its value and credibility. 9. It has emerged from the above mentioned facts and chronology of events that the respondent Association appears to have come out with the said subsequent affidavits as an afterthought after passage of sufficiently long time from the date when the respondent Nagarpalika passed the resolutions. 10. Besides this, from the documents which reflect the payment made to the concerned 9 persons as reflected from the above mentioned documents dated 30.11.2015, 31.12.2015 and 1.2.2016, it appears that even if above mentioned affidavits said to have been made by the concerned workmen are taken into account, then also after having made the said affidavit, the concerned workmen seem to have accepted the amount paid by the petitioner Nagarpalika in pursuance of and in accordance with the settlement and the resolutions passed by the Nagarpalika. 11. In this view of the matter, the submission and objection by learned advocate for the respondent deserve to be rejected, more so when the directions passed by the learned Tribunal with regard to regularize concerned persons in service and granting status of permanency, necessary benefits have been granted by the Nagarpalika to the concerned employees and actually, the settlement merely restricts or dilutes, to some extent, the learned Tribunal's direction i.e. qua with regard to quantum of back wages/arrears only. 12. In this view of the matter, objections by the concerned workmen by way of subsequent affidavits made in 2013 do not inspire confidence and do not deserve to be considered. 13. Despite this position which emerges from the documents on record, this Court has considered it appropriate to examine the matter on merits in light of the objections and reservation voiced by learned advocate for the respondent association with regard to the said settlement and resolutions passed by the Nagarpalika and this Court has also examined the award. 14. 13. Despite this position which emerges from the documents on record, this Court has considered it appropriate to examine the matter on merits in light of the objections and reservation voiced by learned advocate for the respondent association with regard to the said settlement and resolutions passed by the Nagarpalika and this Court has also examined the award. 14. As mentioned above, by virtue of the award impugned in present petition, the learned Tribunal has directed the petitioner Nagarpalika to regularize the services of the concerned workmen and to confer status of permanency to the said workmen in phased manner, i.e. by treating the concerned workmen as daily wagers for first 5 years from the date of their joining thereafter treating them as temporary employees on subsequent 5 years and to treat them as permanent employees on completion of second phase of 5 years and to pay arrears to the concerned employees. 15. In this context, it is relevant to note that according to the case of the petitioner Nagarpalika before the learned Tribunal and according to the material available on record before the learned Tribunal, the appointments of the concerned persons was made without following procedure prescribed for selection and recruitment and without verifying qualifications of concerned persons and without ascertaining as to whether the concerned persons possessed the prescribed qualifications for the posts (i.e. the posts on which the concerned employees were engaged/were to be conferred status of permanency (as per the Tribunal's direction viz. Valveman, Valve Supervisor, Cleaner and Peon). 16. It was also case of the petitioner before the learned Tribunal that at the time when the said persons were appointed or even subsequently when the dispute was raised, there were no vacancies on regular and sanctioned set-up/establishment. 17. With the said factual aspects, the petitioner Nagarpalika had opposed the demand of the concerned workmen. 18. However, disregarding the said aspects and only on the ground that the concerned workmen were working with the petitioner Nagarpalika since long time, i.e. from 1985/1988, the learned Tribunal passed the impugned directions i.e. order directing the Nagarpalika to regularize the services of the claimants and confer status of permanency to the claimants. 19. 18. However, disregarding the said aspects and only on the ground that the concerned workmen were working with the petitioner Nagarpalika since long time, i.e. from 1985/1988, the learned Tribunal passed the impugned directions i.e. order directing the Nagarpalika to regularize the services of the claimants and confer status of permanency to the claimants. 19. In this context, it is appropriate to take into observations by Hon'ble Apex Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1 , wherein Hon'ble Apex Court observed that: "45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post." From above quoted observations by Hon'ble Apex Court it becomes clear that merely because the person was continued in service for long time, the obligation to regularize the service cannot be imposed on the employer. 20. It is also relevant to take into account that the learned Tribunal not only directed the petitioner Nagarpalika to regularize the services of the concerned workmen but also directed the Nagarpalika to confer the status of permanent workman in their favour but the learned Tribunal granted such benefit in favour of the concerned workmen and issued such direction with retrospective effect. 21. In this background and in light of these facts, the petitioner has challenged the directions on various grounds including the ground that in such relief could not have been granted, much less with retrospective effect. 22. In light of such facts and circumstances and in light of the material available on record and in light of lack of evidence to support and justify the demand of the concerned workmen as well as the directions passed by the learned Labour Court, this Court would ordinarily set aside the directions in light of the decision by Full Bench in the case of Amreli Municipality v. Gujarat Pradesh Municipal Union, 2004 (2) GLH 692 and in light of the decision in case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1 . 23. However, in view of the resolutions which the petitioner Nagarpalika passed pursuant to the settlement said to have been entered into after deliberations and negotiations with the respondent the Court has refrained from setting aside the award and the directions granting benefit of regularization in service and status of permanency with retrospective effect in phased manner as directed by the learned Tribunal, and instead, the Court has accepted the submissions of the learned advocate for the petitioner Nagarpalika to modify the award in terms of the resolutions. 24. 24. In this view of the matter, following order is passed: "The award dated 7.9.1999 passed by the learned Industrial Tribunal, Bhavnagar in Reference (LCV) No. 240 of 1991 is partly set aside and modified in terms of the settlement and in terms of the resolution dated 27.2.2003 passed by the petitioner Nagarpalika. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent."