JUDGMENT : Sonia Gokani, J. 1. The respondent was a badli worker since 08.01.1985 working as a work charge operator on drainage pumping system. The respondent had preferred Special Civil Application No. 2002 of 1986 challenging the appointment of one Mr. Chandubhai Shankerbhai Makwana as an operator, who on the basis of his seniority was appointed as an operator in Waterworks Department. The respondent subsequently filed Special Civil Application No. 3501 of 1988 for the purpose of his appointment as an operator on a vacant post. He also preferred eventually Special Civil Application No. 8373 of 1989 seeking the relief of direction against the present petitioner and others to hold interview of operator in pursuance to the advertisement dated 23.11.1989 and seeking to appoint him as an operator. 2. This Court allowed the petitioner and directed the Municipality to consider the case of the petitioner for appointment to the post of operator within a specified time period. It appears that nothing was done at the ends of the Municipality and therefore, the respondent challenged this action of the Municipality in Reference (IT) No. 196 of 2014 where the Court in its judgment and award had directed the Municipality to make the respondent herein permanent and to treat the respondent permanent from the year 1986 with all the rights including arrears. 3. This has aggrieved the petitioner who is before this Court with this petition. 4. This Court on 05.12.2019 passed the following order:- “1. The challenge in this petition is made by the petitioner-Kalol Municipality to the judgment and award dated 08.02.2018 passed by the Labour Court in Reference (I.T.) No. 196/2014, whereby, it directed the Municipality to regularize the services of the respondent no.1 w.e.f. 1986 with all benefits of service. 2. The prayers sought for in this petition are as follows: “(A) Be pleased to admit the present Special Civil Application; (B) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside award / order dated 08.02.2018 passed by learned Labour Court, Ahmedabad below Exh. 18 in Reference Case (I.T.) No. 196/14 directing the petitioner to regularize the respondent no.1 with effect from 1986 and pay all benefits of regularization (Annexure-C) in the interest of justice; (C) Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, execution and operation of award / order dated 08.02.2018 passed by learned Labour Court, Ahmedabad below Exh. 18 in Reference Case (I.T.) No. 196/14 directing the petitioner to regularize the respondent no.1 with effect from 1986 and pay all benefits of regularization (Annexure-C) in the interest of justice; (D) Be pleased to call for the record and proceeding of Reference (I.T.) No. 196/2014 from the Court of learned Industrial Court at Ahmedabad. (E). … …” 3. This Court (Coram: Bela M. Trivedi, J.) issued Notice on 15.10.2018 staying the execution of the order. “1. Let Notice be issued to respondent No. 1 returnable after two weeks. 2. Having regard to the facts and circumstances of the case and to the ratio laid down in the decision of Amreli Municipality Versus Gujarat Pradesh Municipal Employees Union reported in 2004(2) GLH 692 and to the decision of the Division Bench in case of Vrajlal Bachubhai Khachariya Versus State of Gujarat reported in 2018(2) GLR 917 , the execution of the impugned order is stayed till then. Direct Service is permitted.” 4. This Court had called for the details of sanctioned posts available on the establishment of the petitioner Municipality as on 31.10.2019. It was therefore on 19.11.2019, this Court passed the following order: “Draft amendment is permitted to be carried out, forthwith. 1. The details provided by the petitioner of the sanctioned post available on the establishment of the petitioner Municipality as on 31.10.2019 provides that there are in all 212 posts on the administrative side in all branches, 180 of them are vacant. On the sanitary side, there are 131 posts, out of which 51 posts are filled-in and 80 posts are vacant. Thus, the total establishment sanctioned post is 343 in number. 2. The present respondent operated as a Bore Operator for all these years. The requisite qualification of the Bore Operator at the time when he was taken up as a daily wager in the year 1986 shall need to be brought to the Court's notice, keeping in mind the decision reported in AIR 2015 SC 1847. 2. The present respondent operated as a Bore Operator for all these years. The requisite qualification of the Bore Operator at the time when he was taken up as a daily wager in the year 1986 shall need to be brought to the Court's notice, keeping in mind the decision reported in AIR 2015 SC 1847. Let these details be furnished on 21st November, 2019. Let the matter appear on 21st November, 2019, to be listed in first 10 matters.” 5. On 28.11.2019, learned advocate appearing for the petitioner Municipality, on instructions, made certain submissions which have been recorded by this Court and certain directions have been issued pursuant thereto, the order passed is as follows: “Today the order dated 12.8.1983 is placed on record by learned advocate Mr. Keyur Vyas, appearing on behalf of Kalol Municipality. The requirement of qualification of Water Bore Operator was taken up as a daily wager in the year 1986. He has also pointed out that ordinarily this post was meant to be filled in by way of promotion for the class IV employee. He is not aware as to whether at any point of time the Municipality had intimated the respondent herein to get himself qualified to be a Wireman. He was appointed as a Daily Wager by virtue of direction of this Court in Special Civil Application No. 8373/1989. In the year 1992 he was taken up as Bore Operator and continued to work till the age of superannuation in the month of August 2018. 1.1 For making the respondent permanent as has been directed by the Labour Court, proposal has already been sent to the State Government. However, no approval so far has been received and therefore, the Municipality on its own is unable to take any decision. 2. Learned Asst. Government Pleader Mr. Hardik Mehta, requires time as learned Asstt. Government Pleader Mr. Kanara handling the matter is not available. He requires time of one week to gather the details from the State Government. It is being directed that the communication from the Municipality is already made 6 months' back. Let the outcome of the matter be apprised to this Court on the next date of hearing. If the decision is not taken by the State, the same shall be taken on or before 5.12.2019. It is being directed that the communication from the Municipality is already made 6 months' back. Let the outcome of the matter be apprised to this Court on the next date of hearing. If the decision is not taken by the State, the same shall be taken on or before 5.12.2019. As noted in the earlier order dated 19.11.2019 the sanctioned posts available on the establishment of the petitioner Municipality as on 31.10.2019 provides that there are in all 212 posts on the administrative side in all branches out of which 180 of them are vacant. On the sanitary side, there are 131 posts, out of which 51 posts are filled in and 80 posts are vacant. Thus, the total establishment sanctioned post is 343 in number. 3. The copy of this order shall given to learned Asstt. Government Pleader for onward communication. 4. The matter to be listed on 5.12.2019.” 6. Today, learned Assistant Government Pleader Mr. Nikunj Kanara had produced the communication dated 03.12.2019 written by the Chief Officer, Kalol Municipality to the Commissioner, Municipal Administration Office, Gandhinagar, wherein, he clearly states that, (i) respondent Mr. Dineshkumar N. Thakkar was working as a Bore Operator from 01.01.1985, (ii) There is no proposal sent from the Municipality to the office of the Commissioner, Municipal Administration office, 6 months before, for employment, (iii) there is no proposal pending with the Commissioner's office. It further mentions that there are Badli employers on some other posts also. Mr. Kanara, learned Assistant Government Pleader therefore submits that it is wrong to state on the part of the petitioner – Kalol Municipality that there was a proposal sent to the Commissioner, where, in fact, there is no proposal till date submitted to the authority. He has taken this specific instructions from the office of the Commissioner in this regard. 7. This Court has heard learned advocate Mr. Keyur Vyas for the petitioner, learned advocate Mr. P.H. Pathak for the respondent no.1 and learned Assistant Government Pleader Mr. Nikunj Kanara for the State - respondent no.2. 8. The Court notices that, the Chief Officer who had addressed a letter dated 26.09.2019 making a request for permanency of Class-IV employees who are engaged for cleaning, has written a communication dated 03.12.2019 as well. These two communications cannot go together, either of them is misleading. Nikunj Kanara for the State - respondent no.2. 8. The Court notices that, the Chief Officer who had addressed a letter dated 26.09.2019 making a request for permanency of Class-IV employees who are engaged for cleaning, has written a communication dated 03.12.2019 as well. These two communications cannot go together, either of them is misleading. More particularly, when, according to the petitioner, no response is received from the State and the first proposal of 26.09.2019. The Chief Officer himself shall file an affidavit on or before 9th December, 2019 explaining and clarifying this aspect. 9. Learned Assistant Government Pleader shall let the Court know independent of any proposal from Municipality on merit of the judgment and award of the Labour Court, after taking necessary instructions. 10. This Court while issuing notice had referred to the two decisions, (i) Amreli Municipality (supra) and (ii) Vrajlal Bachubhai Khachariya (supra). The decision rendered in the case of Vrajlal Bachubhai (supra), refers to the Apex Court's decision rendered in the case of State of Maharashtra v. R.S. Bhonde, reported in 2005 (6) SCC 751 that even if there are posts available, in absence of any unfair labour practice, the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker / ad-hoc / temporary worker for number of years. 11. The attention is drawn to this Court by learned advocate Mr. P.H. Pathak to the Chapter-5 (C) under the heading of unfair labour practice, particularly, 25D which prohibits any unfair labour practice by any employer or worker or a daily-wager. Schedule-5 under Section 2R(a) under heading of unfair labour practices at para No.10 provides that 'To employee workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen' is unfair labour practice. 12. It is to be noted that the respondent no.1 had stated in the statement of claim made before the Labour Court that 10% of the permanent Operators have retired and the posts are lying vacant. He is also named the persons, viz. (1) Ghanshyambhai Shah, (2) Rameshchandra Barot, (3) Rameshchandra Shah, (4) Natubhai Trivedi, (5) Jayantibhai Suthar, and (6) Narendrabhai Shah. He also claimed to be the senior most and his grievance is that he had not been made permanent. He is also named the persons, viz. (1) Ghanshyambhai Shah, (2) Rameshchandra Barot, (3) Rameshchandra Shah, (4) Natubhai Trivedi, (5) Jayantibhai Suthar, and (6) Narendrabhai Shah. He also claimed to be the senior most and his grievance is that he had not been made permanent. He also made a reference of the order of this Court passed in Special Civil Application No. 8373 of 1989, where the Court directed while allowing the petition to the Municipality to consider the case of the petitioner for appointment to the post of Operator. According to the Municipality, he has already been appointed on the post of Operator, however, he has not been made permanent and the Labour Court has no authority to make him permanent. The petitioner - Municipality has chosen not to step into witness-box nor has chosen to cross-examine the respondent no.1 nor contested the matter before the Labour Court at any stage. 13. In this backdrop of facts, the two letters which have been produced today, shall need specific clarification and explanation from the Chief Officer concerned, more particularly, when it has come from the State Government and its authorized person. The Municipality shall also clarify as to who have been appointed on the posts which had fallen vacant on retirement of aforesaid six persons named hereinabove. They shall also let the Court know as to whether anyone has been appointed in place of those persons who retired or anyone is working on ad-hoc basis, and if yes, their seniority, vis-a-vis the seniority of the present respondent no.1. Let this be done on urgent basis, so that other and further order can be passed. Let the matter appear on 9th December, 2019.” 5. Pursuant to the directions issued by this Court, an affidavit has been filed by the Chief Officer, Kalol Municipality. It admitted in terms that no proposal for permanent Board Operator had been submitted. According to the Chief Officer, it was on instructions to the learned advocate appearing for and on behalf of the Municipality that he had made a statement before this Court, however, no proposal has been forwarded to the State so far as Board Operator is concerned. It is further the say of the petitioner that six persons who have been named and referred to in the earlier order, have retired and the permanent posts of the operator are lying vacant. It is further the say of the petitioner that six persons who have been named and referred to in the earlier order, have retired and the permanent posts of the operator are lying vacant. The persons who retired form the post were not working on the permanent post and as per the record produced herein, it shows that all workers were working as daily wagers. This, according to the petitioner clearly reflects that respondent board operator who retired was working as a daily wager and not on a permanent post. 6. This Court has extensively heard both the sides and in wake of this affidavit from the Municipality can conclude that no attempt has been made from the year 1989 on the part of the Municipality to make the respondent permanent. It is a different aspect that the post had remained vacant for number of years and on this sanctioned post, no proposal was made even for those who might have become eligible. 7. So far as the present respondent is concerned, this Court notices that he had been vigilant employee who from the year 1986 had approached this Court by way of Special Civil Application No. 2002 of 1986, Special Civil Application No. 3051 of 1988 and Special Civil Application No. 8373 of 1989. This Court had also directed the Municipality to consider his case by allowing the petition for appointment to the post of operator within a specified time period, from the date of receipt of copy of the writ. Nothing has been done on the part of the Municipality. Not only that, but before this Court also, an attempt was made to mislead the Court by stating that there was a proposal already sent to the State Government and no response was given. It was later when the State had produced on record the communication and learned AGP in terms had stated before this Court that no proposal was pending. On a specific query raised by the Court, learned advocate Mr.Keyur Vyas has made an inquiry from the petitioner Municipality and in today's affidavit, the Chief Officer has admitted of not having send any proposal. According to him, it was a miscommunication which led to the statement. 8. On a specific query raised by the Court, learned advocate Mr.Keyur Vyas has made an inquiry from the petitioner Municipality and in today's affidavit, the Chief Officer has admitted of not having send any proposal. According to him, it was a miscommunication which led to the statement. 8. In the opinion of this Court, it is only after the State Government came out with a clear stand that there was an absence of any proposal on the part of the Municipality that it was compelled to reveal the fact. It has sit tight over the Court's order in the year 1989. It is not in dispute that they already extended sanctioned posts and from the year 1989, the posts were lying vacant. There was no issue of expenses exceeding 48% of the limit as required of every Municipality. It was a sear apathy and negligence on the part of the Municipality who has led eventually the respondent to approach the Labour Court in reference (IT) No. 196 of 2014. 9. The Court in such circumstances when noticed that despite the directions of this Court and availability of posts so also with no other fetters of expenses etc., when the petitioner has chosen not to obey the directions though specifically directed to consider to make the respondent permanent, in the opinion of this Court, no interference is desirable. It is an admitted fact that the man has attained the age of superannuation on 31.08.2018. It is all on account of the challenge made to the order. It is the right of even litigant to take legal recourse permissible under the law, if not satisfied with the outcome and, hence, the litigation, per se, cannot be held against the petitioner, but, it is worth mentioning here that the judgment and award in the Reference (IT) No. 196 of 2014 is dated 08.02.2018 and this challenge made by the Municipality is found without any valid or substantive cause and the respondent has attained the age of superannuation during the pendency of this petition. 10. This Court notices that right from the year 1989, there was an ample opportunity with the Municipality to obey and abide by the directions issued by this Court. It is not sufficient for it to absorb the respondent on the post without making him permanent as a board operator. 10. This Court notices that right from the year 1989, there was an ample opportunity with the Municipality to obey and abide by the directions issued by this Court. It is not sufficient for it to absorb the respondent on the post without making him permanent as a board operator. His challenge before this Court in the year 1989 and the request was to make him permanent on the sanctioned post which was available, because of the vacancy which was arising due to superannuation or otherwise. To claim that the Municipality had already continued him on the post of Board Operator without making him permanent and that is a sufficient compliance, would not lie in the mouth of the Municipality. At no point of time, it had challenged it before the appellate forum. Knowing fully well that the challenge on the part of the respondent was for the permanent post and the directions of this Court also were in that regard, it must not have an audacity to approach this Court in a reference made by the respondent after nearly 14 years that it had sufficiently complied with the directions. It is true that it has an executive function, if there existed no permanent post but to create the post and make him permanent. They ordinarily would not direct either creation of post and unless it finds the unfair labour practice in some of the departments of the State. However, in the instant case, there was no question of either creating the post or assuming the role of executive. It was non-filling of the post on account of Municipality. It is not event the stand of the State before this Court that had there been any such request on the part of the Municipality, it could not have been granted. 11. It is to be noted here that there are six sanctioned posts of the Board Operator and not even one was filled in. Today also, all daily wagers are working on these posts. From the time these posts have sanctioned by the State, not even once they are filled in and they continued to be meant by daily wagers for some strange reasons. The total apathy and negligence is visible from the conduct of the Municipality in conducting its affairs. Today also, all daily wagers are working on these posts. From the time these posts have sanctioned by the State, not even once they are filled in and they continued to be meant by daily wagers for some strange reasons. The total apathy and negligence is visible from the conduct of the Municipality in conducting its affairs. This also would amount to unfair practice on the part of the Municipality for not obeying to the directions of this Court. 12. While dismissing this petition and directing the Municipality to give effect to the judgment and award of the Labour Court, the Court notices that the man has already attained the age of superannuation. No purpose is likely to be served now to permit the Municipality to make a formal request to the State for grant of sanction. That will need to be done only for the purpose of getting the necessary finance from the State. Let this entire process be completed within a period of eight (8) weeks from the date of receipt of copy of this order, where he shall be granted all the benefits of the said post. 13. The petitioner shall also pay the cost of Rs.20,000/- (Rupees Twenty Thousand) to the respondent. 14. The Court is requested by the learned advocate for the respondent that the directions which are issued may open a Pandora Box for many other employees to claim in similar fashion. This Court cannot be oblivious to the fact that this petitioner has been vigilant, right from the year 1983 and he four times approached this Court and also taken recourse to the proceedings before the Labour Court repeatedly. These are very peculiar and robust facts which necessitated this Court not to warrant any interference in the judgment and award passed by the Labour Court as any indulgence would tantamount to defeat the rightful claim of the person who always on his vigil.