JUDGMENT : A.S. SUPEHIA, J. 1. The present Letters Patent Appeal emanates from the judgment and order dated 05.04.2024 passed in the captioned writ petition filed by the respondent-Junagadh District Co-operative Bank Ltd. wherein and whereby the learned Single Judge has allowed the writ petition by setting aside the judgment and order dated 27.06.2019 passed by the Industrial Court, Rajkot confirming the order dated 11.02.2019 passed by the Labour Court, Junagadh. ACKNOWLEDGED FACTS: 2. The orders dated 27.06.2019 and 11.02.2019 stem out of recruitment/advertisement issued by the respondent-Bank for filling up certain posts. The advertisement appears to have been issued on 10.05.2018. The appellant-Union questioned the same before the Labour Court by filing an application under Section 79(4) of the Gujarat Industrial Relations Act, 1946 (‘the Act’ for short) before the Junagadh Labour Court, Junagadh, which culminated into BIR Application No. 1 of 2018. The issue raised by the appellant-Union was that before issuing the advertisement, no notice of change, as required under Section 42 of the Act has been issued by the employer-Bank. It was alleged that the same is an illegal change and in violation of the terms of the settlement. The Labour Court allowed the application filed by the appellant-Union vide order dated 11.02.2019 and it is held that the action of the respondent-Bank is an illegal change as per the provisions of Section 46 of the Act. The respondent-Bank assailed the said order before the Industrial Tribunal, Rajkot by filing an appeal under Section 84 of the Act, which was rejected vide order dated 27.06.2019. The rejection gave rise to the captioned writ petition, which has been allowed by the learned Single Judge. SUBMISSIONS ON BEHALF OF APPELLANT-UNION: 3. Learned advocate Mr. Buch appearing for the appellant-Union has referred to the definition of ‘change’ as stipulated in sub-section 8 of Section 3 of the Act, which means ‘an alteration in Industrial matter’ and the ‘Industrial matter’ has been defined under sub-section 18 of Section 3 of the Act, which means ‘any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees or the mode, terms and conditions of employment’. While referring to the provisions of Section 42 of the Act, he has submitted that as per the provisions of sub-section (1) r/w Item-2 of Schedule-II , the respondent-Bank was required to issue notice of change before issuing the advertisement for filling up 154 posts at different levels. It is submitted that as per the provisions of Item-2 of Schedule-II to Section 42 of the Act, any permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation or process or departments of the respondent-Bank necessitates notice of change and only after consultation with the appellant-Union, which is an approved Union, the recruitment process could have been undertaken. Learned advocate Mr. Buch has pointed out the advertisement and has submitted that as per the number of posts which are advertised for filling up, more particularly, posts of Junior Officer, the respondent-Bank has bifurcated these posts. It is contended that the number of posts of Junior Officers, Clerks and Peons are sought to be filled in would result in increase of persons to be employed amounting to illegal change hit by section 46 of the Act, hence the same is illegal and impermissible without issuance of notice of change, as per section 42(1) of the Act. 4. Learned advocate Mr. Buch has referred to the settlement arrived at between the Union and the Bank in the year 2005. He has referred to Clause 17 of the said settlement, which pertains to staffing pattern, and it is submitted that as per the said settlement, the pattern of the staff is to be revised by mutual discussion on the guidelines of Reserve Bank of India and National Bank for Agriculture and Rural Development (NABARD) however, the Bank did not discuss about the staffing pattern before issuing the advertisement. It is submitted that thereafter, in another settlement which was arrived at in the year 2017 between the Bank though, with other Union, similar clause is incorporated. 5. It is contended by learned advocate Mr. Buch that the learned Single Judge has not considered the contents of the affidavit-in-reply filed by the respondent-Bank before the Labour Court in its correct perspective. While pointing out the contents of the affidavit, it is submitted by learned advocate Mr. 5. It is contended by learned advocate Mr. Buch that the learned Single Judge has not considered the contents of the affidavit-in-reply filed by the respondent-Bank before the Labour Court in its correct perspective. While pointing out the contents of the affidavit, it is submitted by learned advocate Mr. Buch that in the affidavit, a categorical statement has been made that in the year 1985, 350 employees were working in the Bank, and by employing more persons, the Bank is increasing the number of its employees which will attract Item-2 of Schedule-II of the Act, hence a notice of change has to be issued to the appellant-Union. It is urged that as on today, the appellant-Union is the only approved Union and any settlement which has been arrived independently with other members of the Union cannot take away the status of the appellant-Union as approved Union without following the due process of law prescribed under the provisions of Section 23 of the Act. It is submitted that learned Single Judge was impressed with the fact of some compromise between few workers in the year 2017 however, it is contended that the same will not dilute the settlement arrived at between the approved Union i.e. the present appellant - Union. Thus, it is urged that the judgment and order passed by the learned Single Judge quashing and setting aside the order passed by the Labour Court and the Industrial Tribunal is required to be interfered with since the learned Single Judge has failed to appreciate the provisions of Section 42 r/w Item-2 of Schedule-II of the Act. SUBMISSIONS ON BEHALF OF RESPONDENT-BANK: 6. In response to the aforenoted submissions, per contra, learned Senior Advocate Mr. K. M. Patel appearing for the respondent-Bank has submitted that the judgment of the learned Single Judge allowing the writ petition need not be interfered with as the same is passed after appreciating the provisions of the Act and the facts. Learned Senior Advocate Mr. K. M. Patel has submitted that for attracting the provision of Item-2 of Schedule-II to Section 42 of the Act, the Union is required to prove that there was any alternation i.e. permanent or semi permanent increase in the number of persons employed or to be employed by the respondent-Bank. Learned Senior Advocate Mr. K. M. Patel has submitted that for attracting the provision of Item-2 of Schedule-II to Section 42 of the Act, the Union is required to prove that there was any alternation i.e. permanent or semi permanent increase in the number of persons employed or to be employed by the respondent-Bank. He has submitted that the appellant-Union has failed to establish the actual number of employees working when the advertisement was issued or particular number of sanctioned posts were available which were sought to be either increased or decreased by issuing the advertisement dated 10.05.2018. It is submitted that unless the appellant-Union establishes the fact of actual number of posts, Item- 2 of Schedule-II to Section 42 of the Act would not get satisfied. In support of his submissions, he has placed reliance on the judgment of Supreme Court, which is also considered by the learned Single Judge in the case of Ashok K. Jha and Ors. vs. Garden Silk Mills Limited and Anr. (2009) 10 SCC 584 and also the judgment of Bombay High Court in the case of Yamuna Mills Company Limited vs. Majoor Mahajan Mandal, Baroda and Ors. 1957 (1) LLJ 620 . 7. It is contended by learned Senior Advocate Mr. Patel that the Labour Court as well as the Industrial Tribunal have incorrectly considered the aspect of 350 employees working with the respondent-Bank on the basis of the affidavit filed by the officer of the respondent-Bank in reference being BIR (Change) Application No. 1 of 2018. While inviting the attention of this Court to the affidavit filed on behalf of the Bank before the Labour Court on 28.01.2019, it is submitted that the concerned officer has categorically stated that the number of the employees of the Bank was never determined. On the contrary, it is stated that if the year of 1985 is taken as a base year at that time, there were 350 employees working in the Bank and after 1983 to 1984 for the first time, the recruitment is done in the year 2014 by issuing the advertisement. It is submitted that such a statement cannot be misinterpreted and the number of employees is not required to be determined on the basis of such statement, without there being actual evidence of sanctioned posts available on the set up of the Bank. 8. It is submitted by learned Senior Advocate Mr. It is submitted that such a statement cannot be misinterpreted and the number of employees is not required to be determined on the basis of such statement, without there being actual evidence of sanctioned posts available on the set up of the Bank. 8. It is submitted by learned Senior Advocate Mr. Patel that in fact the action of the Bank of issuing the advertisement and undertaking the necessary recruitment process will fall under Item-6(i) of Schedule-III to Section 42 of the Act. It is submitted that as per the provisions of sub-section 4 of Section 42 of the Act, an employee or representative Union is required to make an application if he/she or the Union desires any change in respect of any subject enumerated under Schedule-III, and there is no requirement for the employer to issue notice of change, if the same falls under any of the Items of Schedule-III. Thus, it is submitted that under the head of the recruitment, which falls under Item-6(i) of Schedule-III, the respondent-Bank was not required to issue any notice of change. 9. Learned Senior Advocate Mr. Patel has submitted that the recruitment was not undertaken by the Bank for so many years and there is a dire need of filling up the posts looking to the workload of the Bank and hence the recruitment process was undertaken by the respondent-Bank. It is submitted that the recruitment is undertaken in light of the guidelines issued by the Reserve Bank of India and NABARD, which is also recorded in the settlement terms, more particularly Clause 17. It is submitted that the first settlement, which was arrived at between the appellant-Union and the respondent - Bank remained in force till 30.06.2005, and hence, the same cannot be relied upon. It is contended that the members of the appellant-Union do not want the Bank to undertake necessary recruitment process, and hence in the earlier round of litigation, when the Bank wanted to fill up the posts by way of recruitment, the present Union raised a dispute, and ultimately, the workers settled with the Bank on 03.06.2017, and the Reference proceedings were withdrawn, and thereafter, a fresh advertisement has been issued for filling up the posts. Thus, it is urged looking to the conduct of the appellant-Union, the judgment and order passed by the learned Single Judge may not be interfered with. Thus, it is urged looking to the conduct of the appellant-Union, the judgment and order passed by the learned Single Judge may not be interfered with. ANALYSIS OF PLEADINGS AND CONCLUSION: 10. The kernel of the issue raised in the reference proceedings and before the learned Single Judge and present Letters Patent Appeal is only confined to provisions of Item-2 of Schedule-II and Item-6(i) of Schedule-III read with Section 42 of the Act. 11. It is the case of the appellant-Union that the action of the respondent-Bank of advertising and filling up of the posts through the advertisement dated 10.05.2018 will fall under Item-2 of Schedule-II to Section 42 of the Act, which will amount to an illegal change as stipulated under section 46 of the Act, whereas the respondent-Bank is asserting that their action would fall under Item- 6(i) to Schedule 3 to Section 42 of the Act, which pertains to recruitment, and hence, no notice of change is required under sub-section 4 of Section 42 of the Act. 12. Chapter VIII of the Act recognizes the caption ‘CHANGES’. Section 42 under Chapter-VIII reads as under: “Chapter VIII 42. Notice of change: (1) Any employer intending to effect any change in respect of a industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the registrar, the Labour Officer and such other person as may be prescribed. He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as may be directed by the Chief Conciliator in any particular case. (2) An employee desiring a change in respect of an industrial matter not specified in Schedule I or III shall give notice in the prescribed form to the employer through the representative of employees, who shall forward a copy of the notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. (3) When no settlement is arrived at in any conciliation proceeding in regard to any industrial dispute which has arisen in consequence of a notice relating to any change given under sub-section (1) or sub-section (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of section 63. If at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, he shall give fresh notice in the manner provided in sub-section (1) or (2) as the case may be. (4) Any employee [or a representative union] [These words were inserted by Bombay 63 of 1953, section 11] desiring a change in respect of (i) any order passed by [the] [This word was substituted for the word 'his', by Bombay 63 of 1953, section 6(b)] employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III, shall make an application to the Labour Court: Provided that no such application shall lie unless the employee [or a representative union] [These words were inserted by Bombay 63 of 1953, section 11] has in the prescribed manner approached [the] [This word was substituted for the word ‘his’ by Bombay 63 of 1953, section 6(b)] employer with a request for the change and no agreement has been arrived in respect of the change within the prescribed period.” 13. It is the case of the appellant-Union that the respondent - Bank was required to issue Notice of change as mandated under the provisions of sub-section (1) of Section 42 of the Act before issuing the advertisement for filling of the posts since the same would amount to illegal change in respect of industrial matter specified in Item-2 to Schedule-II. The provisions of Schedule-II more particularly, Item-2 reads as under: Schedule-II (Section 42) “2. Permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments.” 14. The provisions of Schedule-II more particularly, Item-2 reads as under: Schedule-II (Section 42) “2. Permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments.” 14. Whereas, the Respondent-Bank has contended that by issuing the advertisement, it is undertaking recruitment of employees for filling up the vacant posts and the same will fall under Item-6(i) of Schedule-III, which does not require any Notice of Change. Item-6(i) reads as under: Schedule-III (Section 42) (6) Employment including (i) reinstatement and recruitment 15. It is contended by the appellant-Union that filling up of posts by the respondent-Bank would amount to ‘permanent or semi-permanent increase in the number of persons employed or to be employed’, and is an illegal change under section 46 of the Act. Thus, the entire case of the appellant hinges on the provisions of Item-2 of Schedule-II of the Act. 16. Illegal Change finds place in Section 46 of the Act. Relevant provisions, on which the appellant-Union has placed reliance, are as under: SECTION 46: Illegal change (1) xxx xxx xxx (2) No employer shall make any change in any industrial matter mentioned in Schedule II 107 [(ai) before giving notice of the change as required by the provisions of sub-section (1) of section 42] xxx xxx xxx (3) No employer shall make any such change in. contravention of the terms of a settlement, 110 [effective award, registered agreement or effective order or decision of a Wage Board.] (4) Any change made in contravention of the provisions of subsection (1), (2) or (3) shall be illegal. (5) Failure to carry out the terms of any settlement, award 111 [registered agreement or effective order or decision of a Wage Board], 112 [a Labour Court or the Industrial Court affecting industrial matters] shall be deemed to be an illegal change. 17. The respondent-Bank issued an advertisement dated 10.05.2018 for filling up 154 posts. The same was protested by the appellant-Union, which culminated into BIR Application No. 1 of 2018. The Labour Court and the Industrial Tribunal has confined the dispute only for the posts except the posts of Manager and Officers. 17. The respondent-Bank issued an advertisement dated 10.05.2018 for filling up 154 posts. The same was protested by the appellant-Union, which culminated into BIR Application No. 1 of 2018. The Labour Court and the Industrial Tribunal has confined the dispute only for the posts except the posts of Manager and Officers. The Labour Court by the award dated 11.02.2019 passed in BIR Application No. 1 of 2018 has held that the action of the respondent-Bank for filling up the posts except the cadre of Manager and Officer tantamount to illegal change, as defined under Section 46 of the Act. It is also recorded that the appellant-Union has specifically premised its case on the provisions of Item 2 of Schedule 2, and thus, the action of the respondent-Bank is an illegal change, as specified under the provisions of Section 46(2) (4) & (5) of the Act. 18. The advertisement dated 10.05.2018 is issued for filling up various posts. Since the issue is only confined for the posts of Junior Officers and Clerks and Peons, it would be apposite to refer that by issuing the advertisement, total Junior Officer’s posts which are required to be filled in are 24(approx.) posts of Junior Clerks, 60 posts of Clerks (approx.) and 40 posts of Peon (approx.) Thus, the posts which are to be filled in are approximately. It is not denied by the appellant-Union that the posts have fallen vacant due to promotion or retirement of the employees. 19. So far as the qualifications are concerned, they are as per the guidelines of Reserve Bank of India and NABARD. We may at this stage refer to the settlement of 2005, which refers to the educational qualification in Clause 7 under the head of recruitment. The minimum qualification for sub-staff is prescribed as 8th standard and maximum as 9th standard and for clerical cadre it is prescribed as graduation in any facility. The said settlement was operative for the period from 01.07.2001 to 30.06.2005. Thus, when the dispute was raised by the appellant-Union, the settlement had lived its utility. 20. At this stage, it would be apposite to refer to the earlier disputes between the parties. The said settlement was operative for the period from 01.07.2001 to 30.06.2005. Thus, when the dispute was raised by the appellant-Union, the settlement had lived its utility. 20. At this stage, it would be apposite to refer to the earlier disputes between the parties. After the expiry of the settlement of 2005, the Respondent-Bank issued a Notice of change in the year 2007 desiring change in wage structure, and other conditions of service of employees, which culminated into Reference (IT) No. 1 of 2007 and Reference (IT) No. 3 of 2007. The said proceedings travelled to this Court, and ultimately, the dispute was settled vide settlement dated 03.06.2017 between the Bank and the workers. It is not disputed by the appellant-Union that during the pendency of the said Reference proceedings, out of 118 members of the Union, 106 members resigned from the appellant-Union on 30.11.2015 and withdrew their membership from the Union, and also withdrew the authority to represent them. Thereafter, it appears that out of 231 number of total employees of the Bank, 221 employees formed their Union being the “The Junagadh Jilla Sahakari Bank Ltd. Staff Union.” A new settlement dated 03.06.2017 was arrived at between the Bank and the said new Union. Nothing is pointed out to us as to whether the present Union has raised any dispute challenging the formation or status of the new Union. The new Union has not raised any dispute relating to the recruitment undertaken by the Bank. However, the Bank is unable to satisfy its characteristic, whether it is an approved Union as defined under section 3(2) of the Act, or the new Union formed in 2017 is the approved Union. 21. Thus, after the settlement of 2005, which had its validity till 30.06.2005, the other settlement was arrived at on 03.06.2017 by the Bank with other Union, and not the present appellant-Union. The appellant-Union have premised their entire dispute on the basis of the 2005 settlement, which was not in existence. As recorded by the Labour Court in Paragraph No. 5 of the award dated 11.02.2019, the case of the appellant-Union is that the settlement of 2002 continues even after its expiry. This contention is made in response to the contentions raised by the Bank that the settlement of 2002 was over and thereafter, new settlement was arrived at in the year 2017 with new Union. This contention is made in response to the contentions raised by the Bank that the settlement of 2002 was over and thereafter, new settlement was arrived at in the year 2017 with new Union. However, the Labour Court has not framed any issue with regard to the applicability/subsistence of the 2002-2005 settlement. The case of the appellant-Union is that the Bank is seeking more persons to be employed, and there is increase in their numbers. The settlements do not refer to the number of employees. Hence, without framing the issue in this regard, the right of the appellant-Union in raising the dispute and terming it as an illegal change by the Bank on the basis of 2005 settlement, could not have been examined. 22. In the settlement of the year 2017, Clause 7 under the head of ‘Recruitment’ refers that the recruitment has to be done as per the guidelines contained in NABARD, Mumbai Circular dated 31.12.2009 recommended by S.K. Mitra Committee. So far as Clause 17 which refers to staffing pattern is concerned, the settlement records that the staffing pattern is to be revised by mutual discussion with the Union and on the guidelines of Reserve Bank of India and NABARD. Unquestionably, the staffing pattern and the qualifications can only be determined as per the subsequent settlement of 2017, and not as per the earlier settlement of 2005. Nothing is pointed out to us that a certain ‘staffing pattern’ was in existence before issuance of the advertisement, and in the said advertisement, the pattern is sought to be drastically altered, and the same is in absolutely conflict with the guidelines of RBI or NABARD. The appellant-Union had contended before the Labour Court that by issuing the advertisement, the Bank had also tinkered with the qualifications meant for the posts of Junior Clerks and Peons and the same was not as per the first settlement. However, the respondent-Bank placed reliance on the second settlement which was arrived on 03.06.2017. As per Clause 7, which is under the head of ‘Recruitment’ the same has to be done as per the guidelines contained in NABARD, Mumbai Circular dated 31.12.2009. The Labour Court did not frame any issues in this regard. However, the respondent-Bank placed reliance on the second settlement which was arrived on 03.06.2017. As per Clause 7, which is under the head of ‘Recruitment’ the same has to be done as per the guidelines contained in NABARD, Mumbai Circular dated 31.12.2009. The Labour Court did not frame any issues in this regard. If it was the case of the appellant-Union that the recruitment is done de hors the qualification prescribed in the earlier settlement of the year 2002, the Labour Court was also required to give a finding on the aspect that as to whether the recruitment, which was to be undertaken, was in line with the Circular dated 31.12.2009 or not. 23. The key grievance of the appellant-Union pertains to the number of the employees to be recruited. It is contended that filling up of the posts of Junior Officers, Clerks and Peons would amount to increase in the number of persons employed as per Item-2 Schedule-II. The Labour Court as well as the Industrial Court has heavily placed reliance on the affidavit filed by the respondent-Bank on 28.01.2019. We have examined the averments made in such affidavit dated 28.01.2019. The relevant averments made in Paragraph 10, 11, 12 and 13 are translated as under: “(10) We hereby state that out of the compromises worked out earlier between the Applicant Association and the Respondent Bank, total number of employees or category-wise number of employees of the bank have not been fixed at any time in any of the compromise or in any other way. (11) As stated above, the number of employees was not fixed at all. Despite this, if 1985 is considered as the base year, there were total 350 employees at that time. Accordingly, there were total 350 employees including 3-Deputy Managers, 4-Senior Officers, 80-Junior Officers, 180-Clerk and 83-Peons. The year 1985 is considered as the base year because after the simultaneous recruitment of the employees in the year 1983-84, simultaneous recruitment of employees was carried out in the year 2014 with permission of the Ld. Court. (12) Statement showing number of cadre-wise post of the employees as on 31/12/18 against the year 1985, is submitted herewith with a separate list and accordingly it is clearly proved that cadre-wise advertisement has been published for recruitment of existing vacant post. Moreover, it is clearly mentioned in our resolution that this recruitment is carried out on vacant posts. Court. (12) Statement showing number of cadre-wise post of the employees as on 31/12/18 against the year 1985, is submitted herewith with a separate list and accordingly it is clearly proved that cadre-wise advertisement has been published for recruitment of existing vacant post. Moreover, it is clearly mentioned in our resolution that this recruitment is carried out on vacant posts. In addition to this, we have submitted Seniority List of year 1985 with a separate list. (13) At present, there are only four Deputy Managers in the Respondent Bank and all these four Deputy Managers have crossed retirement age and presently they are working on extension for administrative ease. At present there are 18 Senior Officers in the Bank and out of them, 16 Senior Officers have become senior officer by way of promotion obtained time to time from Peons and out of them, majority employees are matriculate pass. In the same way, out of total 36 Junior Officers, 22 Junior Officers have become junior officers by way of promotion obtained time to time from the peons and out them, majority are matriculate pass. In the same way, out of 120 Clerks, 35 have been promoted as Clerk from Peons and majority of them are matriculate pass.” 24. In light of the aforesaid averments, the Labour Court has held that filling up of posts as per the advertisement would amount to ‘illegal change’ and it will be in terms of Item-2 to Schedule-II, hence the Bank was required to issue Notice of change under sub-section (1) of Section 42 of the Act. Item-2 of Schedule-II, exposits ‘permanent or semi-permanent increase in number of persons employed or to be employed’. The expression “to be employed” will govern the number of employees, which are sought to be employed through the advertisement. Thus, if there is any increase in number of persons employed or to be employed either on permanent basis or semi-permanent basis, the provision of Item-2 of Schedule-II will get attracted. In order to satisfy the requirements of Item-2 of Schedule-II, the appellant-Union has to prove that there was increase in the number of persons which are sought to be employed through the advertisement either on permanent basis or semi-permanent basis. In order to satisfy the requirements of Item-2 of Schedule-II, the appellant-Union has to prove that there was increase in the number of persons which are sought to be employed through the advertisement either on permanent basis or semi-permanent basis. By placing reliance on the contents of the affidavit-in-reply filed by the Bank, the Labour Court and the Industrial Tribunal has held that the recruitment of employees will amount to illegal change under section 46 of the Act. The statement of the officer of the respondent-Bank in the affidavit clarifies that the Bank has never determined the total number of employees to be employed and the year of 1985 was taken as a base year in which 350 employees were working. Such employees included 180 Clerks and 83 Peons. He has also further stated that some of the persons have retired and also have been promoted and no recruitment has been done after 1985 till 2014 and thus, such recruitment was necessitated. Taking cue from the averments made in the affidavit of the officer of the respondent-Bank, the reference proceedings are allowed by the Labour Court and confirmed by the Industrial Tribunal, which in our opinion is an incorrect approach. 25. The issue No. 1 framed by the Labour Court is as under: “(1) Whether the applicant-Union proves that the advertisement dated 10.05.2018 issued by the Bank for recruiting can be said to be illegal under the provisions of Section 46 of the Act.” While answering the aforesaid issue, the Labour Court has categorically adopted the averments of the affidavit-in-reply of the witness of the Bank and has taken 1985 as a base year for determining the strength of employees as 350 employee. After considering the contents of such affidavit, it is held that the action of the respondent-Bank attracts the provisions of Section 46 of the Act and it was necessary to follow the provisions of sub-section (1) of Section 42 of the Act before issuing the advertisement. It is also held that the recruitment done by the respondent-Bank will not fall within the provisions of Item 6 of Schedule-III. The appellant-Union has premised its case entirely on Item 2 of Schedule 2, which pertains to ‘increase of persons employed or to be employed’. It is also held that the recruitment done by the respondent-Bank will not fall within the provisions of Item 6 of Schedule-III. The appellant-Union has premised its case entirely on Item 2 of Schedule 2, which pertains to ‘increase of persons employed or to be employed’. In order to satisfy the increase of employees as ‘permanent or semi-permanent’ it was incumbent upon the appellant-Union to categorically prove the exact number of Junior Clerks and Peons, who were employed and working in the respondent-Bank at the time of issuance of the advertisement. The Bank had categorically contended before the Courts below and also before us, that the numbers of posts are not fixed. In these circumstances, the burden lies on the appellant-Union to prove that there were certain number of Junior Officers, clerks and peons, which were employed by the Bank and were working on the date of advertisement, and their number is sought to be increased by fresh employment. By way of issuing the advertisement, the Bank has undertaken the requisite process of appointing certain number of Junior Officers, Clerks and Peons. The advertisement refers to numbers as approximate. The quintessential feature of Item-2 of Schedule-II is the “increase in number” of employees. This can only be attracted by proving the exact number of employees working and sought to be employed or employed. Neither the appellant-Union has been able to prove such numbers nor the Labour Court has applied its mind to the said aspect. 26. Thus, the issue No. 1 is only answered by recording that there has been increase in the number of employees as per the advertisement dated 10.05.2018 and hence, the Notice of change was required under the provisions of Section 42(1) of the Act and filling up of the posts would not amount to recruitment, as per provisions of Item 6 of Schedule 3. The entire award is based only on this finding. 27. At this stage, it would be apposite to refer to the observations of the Supreme Court in the case of Ashok K. Jha (supra). The Supreme Court, while examining the provision of Section 42 read with Item Nos. 1 and 2 to Schedule- II of the Act, has held thus: “21. A close look at the Item Nos. 27. At this stage, it would be apposite to refer to the observations of the Supreme Court in the case of Ashok K. Jha (supra). The Supreme Court, while examining the provision of Section 42 read with Item Nos. 1 and 2 to Schedule- II of the Act, has held thus: “21. A close look at the Item Nos. 1 and 2 of Schedule II and Item 2 of Schedule III would show that insofar as assignment of work and transfer of workers within the establishment is concerned, the subject is precisely and specifically covered by Item 2 of Schedule III. The expression, `assignment of work and transfer of workers within the establishment' is plain and admits of no ambiguity. If the orders of transfer are of the description mentioned in item 2 of Schedule III, item 2 of Schedule III must come into full play. Item nos. 1 and 2 of Schedule II operate altogether in a different field. 22. Basically, Items 1 and 2 of Schedule II deal with reduction in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift or permanent or semi permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments. A mere transfer of workers within the establishment would not attract Item Nos. 1 and 2 of Schedule II but would be covered by Item 2 of Schedule III as there is a specific item in this regard. A specific item would exclude the items of general character and, in that view of the matter, in the matters of transfer of workers within the establishment and assignment of work by the employer, the specific Item 2 of Schedule III is attracted. 24. In the absence of any evidence by the workers about any fixed number of workers in the Crimping Department and Twisting Department, there is no foundation laid for consideration of the question of reduction in the Crimping Department and increase in number in the Twisting Department by impugned orders of transfer. 24. In the absence of any evidence by the workers about any fixed number of workers in the Crimping Department and Twisting Department, there is no foundation laid for consideration of the question of reduction in the Crimping Department and increase in number in the Twisting Department by impugned orders of transfer. Obviously, the burden lay on the workers to establish that the number of workers in each of these departments i.e. Crimping Department and Twisting Department has been determined and that due to the action of the employer, there has been decrease or increase in the number of workers in these two departments.” 28. The Supreme Court has held that the burden lies on the workers to establish that the number of workers in each department has been determined and due to the action of the employer, there has been decrease or increase in the number of workers. Though, the issue before the Supreme Court in the said case was transfer of one employee from one department to another, the Supreme Court has asserted that the burden lies on the worker to prove the number of workers working in the department and due to such action of the employer, there has been either decrease or increase in the number of employees. Same analogy can be adopted in the present case. The entire case of the appellant-Union hinges on Item 2 of Schedule II, which pertains to ‘increase in the number of employees’ however, there is no categorical finding about the number of employees existing at the time of issuance of advertisement and filling of such posts would amount to increase in number of employees. In wake of the fact that the appellant-Union has failed to prove the exact increase in number of persons to be employed, neither the provision of Section 46 or of the Item-2 to Schedule-II of the Act will get attracted. Hence, the appellant-Union cannot insist for Notice of change under Section 42(1) of the Act. 29. The second contention raised by the Union was with regard to the bifurcation of the posts of Junior Clerks however, as such there is no bifurcation. The Bank has sought appointment to the posts of Junior Clerks only and the same would not amount to any change as per the definition of Section 3 of the Act. 29. The second contention raised by the Union was with regard to the bifurcation of the posts of Junior Clerks however, as such there is no bifurcation. The Bank has sought appointment to the posts of Junior Clerks only and the same would not amount to any change as per the definition of Section 3 of the Act. Another contention is also raised by the Union that there is an alteration made in the promotion and new standards are to be adopted and the same would be in violation of 2002 settlement. However, the Labour Court has not given findings on other aspects and has only confined to the provision of Item 2 of Schedule-II. It is also pertinent to note that in the settlement of 2002, there is no mention with regard to the particular number of employees working in the Bank. In absence of any assertion on number of posts and finding in this regard, we find that the Labour Court has committed error in holding that the Bank was required to give Notice of change, as per provisions of Section 42(1) of the Act. Before us also, the submissions are primarily confined on the Item-2 to Schedule-II. 30. The provisions of Item-2 of Schedule-II and Item-6 (1) of Schedule-III are interlaced by Section 42 of the Act. Both the Schedules are acknowledged to Section 42 of the Act. The provisions of Section 42, if carefully read, reveal that only sub-section (1) refers to Schedule-II, whereas Schedule-III is mentioned in sub-section (4) of Section 42. Sub-Section (1) refers ‘notice of change’ to be issued by the Employer, whereas sub-section (4) mandates of ‘filing an application by the employee before the Labour Court, in case he desires change relating to industrial matter below Schedule-III’. Thus, Items below Schedule-II fall within the sphere of the employer, whereas the Items enumerated below Schedule-II are for the employees. Hence, no ‘Notice of change’ is essential for Items enumerated under Schedule-III, since it relates to the employee who has to file an application before the Labour court, if he desires change in Items below Schedule-III. In the present case, we do not subscribe to the submission advanced by the respondent-Bank that their action of recruiting the employees will fall under Item-6 (i) of Schedule-III. Item-6 stipulates “employment” which includes “reinstatement and recruitment” as sub-item (i). In the present case, we do not subscribe to the submission advanced by the respondent-Bank that their action of recruiting the employees will fall under Item-6 (i) of Schedule-III. Item-6 stipulates “employment” which includes “reinstatement and recruitment” as sub-item (i). Thus, the expression “reinstatement and recruitment” are the subjects relating to the employee, and if he desires any change in the industrial matter of “reinstatement and recruitment” as envisaged under Section 42(4) of the Act, he has to file an application before the Labour Court. The respondent-Bank cannot interject their action of employment/recruitment in Item 6(i) to Schedule-III read with Section 42 of the Act. Only an employee has the privilege to seek change in the industrial matter relating to the employment including reinstatement and recruitment by filing an application before the Labour Court. We agree with the rest of the findings of the learned Single Judge, except to the extent of holding the action of the Bank as “recruitment” under Item-6(i) below Schedule-III. 31. The learned Single Judge has precisely held that the action of the respondent-Bank of issuing the advertisement will not fall within the purview of Section 46(3) of the Act, and hence no Notice of change is required under the Section 42(1) of the Act. 32. Hence, the present Letters Patent Appeal fails and the same is dismissed. In view of disposal of main appeal, the connected Civil Application also stands disposed of.