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2024 DIGILAW 1787 (GUJ)

STATE OF GUJARAT v. NEETIN DHANJIBHAI GOHIL

2024-08-30

A.S.SUPEHIA, MAUNA M.BHATT

body2024
JUDGMENT : A.S. SUPEHIA, J. 1. The present appeal filed under Clause 15 of the Letters Patent, 1865 emanates from the order dated 08.06.2022 passed by the learned Single Judge in the captioned writ petition confirming the award dared 30.09.2019 passed by the Labour Court in Reference (IT) No. 88 of 2012, whereby the Labour Court has directed the appellant-State to absorb the respondent-workman by creating the supernumerary post as a special case and by conferring him the regular pay-scale of Rs.4400-7400/-. 2. At the outset, the learned AGP has submitted that the directions issued by the Labour Court are contrary to the settled legal proposition of law that the Labour Court has no power to direct the appellant-State to create supernumerary post and further direct that the respondent-workman to be appointed on the post having regular pay- scale. She has submitted that even if the respondent-workman has been appointed continuously, the same would not confer him the benefit of regularization that too by creating supernumerary post. She has submitted that there was no sanctioned post at the relevant time when the respondent-workman was appointed and continued. Thus, it is urged that the impugned orders passed by the learned Single Judge as well as Labour Court may be quashed and set aside. In support of her submissions, she has placed reliance on the decision of the Apex Court in the case of Government of Tamil Nadu Vs. Tamil Nadu Makkal Nala Paniyalargal, (2023) 6 Scale C.C. 49. 3. Per contra, learned Senior Advocate Mr. Joshi has submitted that the impugned award passed by the Labour Court does not require interference. He has submitted that pursuant to the earlier litigation and the order dated 19.12.2005 passed by the High Court in Special Civil Application No. 4517 of 2001, the respondent-workman was reinstated with continuity of service and once the continuity of service is granted, the appellant-State has to regularize such employee in service. 4. We have heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 5. The short issue, which falls for deliberation of this Court is whether the Labour Court has the power to direct the appellant-State to create supernumerary post and further direct the appellant to absorb/appoint the workman on such post and also to confer him the regular pay-scale. 6. 5. The short issue, which falls for deliberation of this Court is whether the Labour Court has the power to direct the appellant-State to create supernumerary post and further direct the appellant to absorb/appoint the workman on such post and also to confer him the regular pay-scale. 6. It is settled legal proposition that the Labour Court or the High Court has no jurisdiction to direct the appellant-State to create supernumerary post and further direct the State to regularize or appoint the employee in regular pay-scale merely because he/she has been continuously employed as such. The Apex Court in a recent decision, in the case of State of Gujarat Vs. R.J. Pathan, 2022 (5) SCC 394 has held thus: “6. The order passed by the learned Single Judge dismissing the writ petition was in the year 2011. The order passed by the learned Single Judge was challenged by the respondents by way of LPA. In the year 2011, the Division Bench granted the interim relief and directed to maintain status quo and pursuant to the said interim order, the respondents were continued in service with the Government. In the year 2021, when the said LPA was taken up for further hearing, it was submitted on behalf of the respondents that as by now the respondents have worked for seventeen years, the State may be directed to absorb them in the Government and their services may be regularised. By observing that as the respondents have worked for a long time, i.e. for seventeen years, the Division Bench has directed the State to consider the cases of the respondents for absorption/regularisation and if required, by creating supernumerary posts. However, while issuing such a direction, the High Court has not at all considered the fact that the respondents were continued in service pursuant to the interim order passed by the High Court. The Division Bench has also not appreciated the fact and/or considered the fact that the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit - “Project Implementation Unit” which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post-Earthquake Redevelopment Programme.” Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government. Therefore, when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts. 7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, the High Court has not considered that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. Therefore, even considering the decision of this Court in the case of Umadevi (supra), the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted. The High Court has totally missed the aforesaid aspect. 8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme. 8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand. 9. Even otherwise, it is to be noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required. However, the State Government was gracious enough to place the respondents in the Indian Red Cross Society, which the respondents did not accept. 10. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India.” 7. The facts of the present case suggest that the respondent-workman was appointed as a daily wager w.e.f. 01.09.1990 and he was relieved w.e.f. 09.07.1997. His termination was subject matter of challenge before the Labour Court and ultimately, the same landed before this Court. In the writ petition being Special Civil Application No. 4517 of 2001 vide order dated 19.12.2005, the Court directed to reinstate the respondent-employee with continuity of service w.e.f. 01.09.1990. The respondent-workman raised the demand of regularizing him and placing him in regular pay-scale, which culminated into Reference (IT) No. 88 of 2012. By the impugned award, the Labour Court directed the appellant-State to create supernumerary post in the set-up and also appoint him and confer the regular pay- scale of Rs.4400-7400/-. 8. It is settled legal precedent that even if the employee is continuously engaged as a daily wager, the same would not confer him any right of regularization unless his case is supported by any Rules, Policy of Regularization etc. Even if such employee, who is entitled to be regularized or absorbed on a regular post, he is not entitled to such benefit unless there is a sanctioned post. No order of regularization or absorption can be passed by directing the employer to create a supernumerary post. Such an approach will amount to impinging the domain of the employer, and the Courts cannot step into the shoes of the employer and direct for creation of posts. The creation of posts is an exclusive administrative and constitutional right of an employer. 9. Under the circumstances, and in light of the foregoing observations, the impugned award passed by the Labour Court is quashed and set aside. As a sequel, the order passed by the learned Single Judge confirming such award is also hereby quashed and set aside. 10. The creation of posts is an exclusive administrative and constitutional right of an employer. 9. Under the circumstances, and in light of the foregoing observations, the impugned award passed by the Labour Court is quashed and set aside. As a sequel, the order passed by the learned Single Judge confirming such award is also hereby quashed and set aside. 10. During pendency of the present appeal, by the order dated 24.04.2023, in view of the contempt proceedings, which was being faced by the appellant-State, the respondent-workman was appointed on regular pay-scale in compliance of the award of the Labour Court. 11. It is clarified that whatever status which was prevailing before the judgment and award dated 30.09.2019 passed by the Labour Court is not disturbed by us. It will also be open for the respondent-employee to file appropriate proceedings in accordance with law, if he so desires, for claiming the regularization in terms of the Rules, Regulations or policy of the State Government. 12. With these observations, the present appeal is allowed. As a sequel, the connected civil application also stands disposed of.