JUDGMENT : M. K. Thakker, J. 1. Rule returnable forthwith. Learned advocate Mr.Yogen Pandya waives service of rule on behalf of respondent no.1. 2. This petition is filed under Article 14, 19 and 226 and 227 of the Constitution of India challenging the judgment and award dated 12.12.2019 passed by the learned labour court in reference LCA D No.27 of 2005 whereby, the directions were issued to regularize the service of four workers namely Manguben Jivanbhai, Nanduben Mukeshbhai, Rameshbhai Keshabhai and Labhuben Manubhai on completion of 10 years on their original post. 2.1. The respondent-Union raised the dispute before the Assistant Commissioner of labour for 24 daily wager sweepers to regularize the service as well as to give benefit of permanency. On failure of conciliation proceedings, the matter was referred by the learned Assistant Commissioner of labour for adjudication to the learned labour Court and same was registered as reference LCA D No.27 of 2005 to decide the terms of reference. During the pendency of the reference, the application below Exh.46 came to be filed by the Union restricting the claim for only four workers out of 24 workmen. Learned labour Court has allowed the reference by judgment and award dated 12.12.2019 directing to regularize the service of four employees on completion of 10 years service as daily wager sweeper and has denied the difference of salary from the date of reference till the date of award, further the directions were issued to make verification and to pay all benefits in favour of the workman. The above order is subject matter of challenge before this Court. 3. Heard learned advocate Mr.B.T.Rao for the petitioner and learned advocate Mr.Yogen Pandya for the respondent no.1. 3.1. Learned advocate Mr.Rao submits that learned labour Court has committed error by issuing directions to regularize the service of the workman who was having back door entry and no recruitment procedure has been followed at the time of appointment. It is further submitted that after conversion of Gram Panchayat into Nagarpalika the area became larger and therefore, Nagarpalika has no option but to appoint the sweeper on daily wages basis as the Nagarpalika has not been given the authority to engage staff in regular pay scale. It is further submitted that after conversion of Gram Panchayat into Nagarpalika the area became larger and therefore, Nagarpalika has no option but to appoint the sweeper on daily wages basis as the Nagarpalika has not been given the authority to engage staff in regular pay scale. Learned advocate Mr.Rao submits that the Nagarpalika is not able to bear the expense as they do not have independent income and as per the decision rendered by this Court in Amreli Nagarpalika Vs State of Gujarat, the Nagarpalika cannot bear expense more than 45% out of its income towards salary. Learned advocate Mr.Rao submits that four workmen in whose favour the award is passed have been engaged through outsourcing by way of resolution passed in the General Board on 29.05.2015 as the contract for sweeping was given through outsourcing agency. At the time of giving contract, condition was imposed to give first opportunity to present respondent however, that resolution came to be challenged by the respondent-workmen by way of filing the petition being SCA No.13647 of 2020 wherein, the interim relief was granted by this Court vide order dated 13.11.2020 and thereafter, same was disposed of on the statement of the Chief Officer, Barwala Nagarpalika that there would not be any change in service conditions of the respondent-workman. Learned advocate Mr.Rao submits that as daily wagers are accommodated by the agencies and petitioner does not have any independent income to pay salary to the workman impugned award requires to be interfered with. 3.2. Learned advocate Mr.Rao has relied on the decision rendered by the Apex Court in the case of Union of India and Ors. Vs All India Trade Union Congress and Ors reported in 2019 5 SCC 773 and submitted that no mandatory directions can be issued to frame the scheme under writ jurisdiction of Article 226 of the Constitution of India. Learned advocate Mr.Rao submits that long service itself cannot be ground for regularizing the service of the petitioner who are daily wagers. Learned advocate Mr.Rao relied on the decision rendered by the Apex Court in the case of State of Himachal Pradesh and Ors Vs. Learned advocate Mr.Rao submits that long service itself cannot be ground for regularizing the service of the petitioner who are daily wagers. Learned advocate Mr.Rao relied on the decision rendered by the Apex Court in the case of State of Himachal Pradesh and Ors Vs. Ravindrasingh reported in 2008 12 SCC 286 and submitted that name of present respondent-workman were not sponsored by the employment exchange and there was no appointment order or recruitment procedure which was followed and therefore, back door entry cannot be regularized by this Court and cannot claim treatment at par with the regular employees. Summing up the arguments learned advocate Mr.Rao submits that without considering the above law, the learned labour Court has passed the impugned award and therefore, same is required to be set aside and petition is required to be allowed. 3.3. On the other hand, the petition is vehemently opposed by the learned advocate Mr.Yogen Pandya who submits that by not regularizing the service of the respondent though they have worked which is of perennial in nature and they were discriminated by paying less wages than the regular employees who are also doing similar work and therefore, the petitioner has violated the Article 14 of the Constitution of India. Learned advocate Mr.Yogen Pandya submits that as per the evidence of the witness of the petitioner who was examined below Exh.40 there were 64 vacant posts as per the sanction setup out of which 15 were filled up and others remain unfilled. This witness has further admitted that each workman in whose favour the award is passed has completed 240 days in each of the year and they are serving continuously since last 18 years. It is further admitted by the witness above that 15 employees were regularized by the order of the Court and in all service of 46 employees is required for cleaning. Learned advocate Mr.Yogen Pandya submits that after considering the evidence, detail reasons were assigned by the learned labour Court however, the petition is filed only on the ground that as the expense incurred is more than 45% of the limit they cannot regularize the workmen. Learned advocate Mr.Yogen Pandya submits that after considering the evidence, detail reasons were assigned by the learned labour Court however, the petition is filed only on the ground that as the expense incurred is more than 45% of the limit they cannot regularize the workmen. Learned advocate Mr.Yogen Pandya submits that as the post are available in the sanction setup by not regularizing the service and taking the work similar like regular employee, the present petitioner has adopted unfair labour practice which is prohibited under the Industrial Disputes Act. Learned advocate Mr.Yogen Pandya submits that learned labour Court has not committed any error or there is no perversity in the findings recorded by the learned labour Court therefore, the impugned judgment is required to be up held and the petition is required to be dismissed. 4. Considering the above submissions and decision relied by the learned advocates for the respective parties, it is undisputed fact that all the 4 workmen have completed more than 18 years in service and the evidence which was recorded of the witness namely Gaurangkumar. C. Patel, Chief Officer below Exh.40 it transpires that all the four employees had completed more than 240 days in each year and there was no advertisement issued for filling up the post in any of the newspaper. 46 employees are required for the work of cleaning by the Nagarpalika. 64 posts are available as per the sanction setup and to regularize the service of the four workmen in whose favour the award is passed, the petitioner Nagarpalika has sent proposal in the year 2018. Other 15 employees were regularized as per the order passed by the Court. It is further admitted by this witness that work which was done by the regular employee and the present respondent who are daily wagers are of similar and permanent in nature. The regular employees were paid as per the 6th Pay Commission basis and the present respondents were paid as per daily wages basis. Learned labour Court while assigning reasons on the basis of the evidence has come to the conclusion that the respondents have been paid as on date Rs.8,000/- however, similarly situated persons who are regular employees were paid salary as per the 6th Pay Commission. 4.1. Learned labour Court while assigning reasons on the basis of the evidence has come to the conclusion that the respondents have been paid as on date Rs.8,000/- however, similarly situated persons who are regular employees were paid salary as per the 6th Pay Commission. 4.1. The decisions which are relied by the learned advocate Mr.B.T.Rao in which it is held that no directions can be issued to frame the scheme is undisputed. However, in the instant case there is no such award passed to frame the scheme as the post is available as per their sanctioned setup and as per evidence of the witness of the present petitioner. However, same remained unfilled for years together and instead of filling up the post for the work which is of perennial in nature, engaged employees on daily wages basis and taken work by paying meager amount of Rs.8,000/-. It is undisputed that the similarly situated persons were regularized pursuant to the order passed by the Court, in that background the appointment cannot be said illegal. 5. At this stage the decision rendered by the Apex Court in the case of State of Karnataka and Ors. Vs. M.L.Keshari reported in (2010) 9 SCC 247 is required to be referred wherein, the Apex Court has differentiated between the definition of irregular employment and illegal employment as below: “7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 6. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 6. The Apex Court in the case of Vinod Kumar and others vs. Union of India has held that merely the workman were not appointed after due procedure of recruitment would not be ground for not regularizing the service as they had worked for decades and at that point of time no objections were raised. The relevant paragraphs are reproduced hereinbelow: “5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified merits a reconsideration of their employment status. 6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). 7. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). 7. The judgement in the case Uma Devi (supra) also distinguished between “irregular” and “illegal” appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ (1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [ (1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [ (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 7. So far as the arguments with regard to financial burden on the Municipality as there limit is not more than 45% of total revenue income is concerned, this Court in the case of S.A Jafai Vs State of Gujarat & Ors. reported in 2011 (2) GLR 1223 has observed as under: “18. The State is empowered to determine the conditions of service of Municipal employees under Sec. 47A. Revision of pay as per the recommendations of the 5th Pay Commission was decided by the Resolution dated 2-6-1998. Therein, the only condition imposed was restriction of expenditure of the establishment of employees within 45% of the total income of the Municipality. Thus, it will be evident that the said restriction is limited to the salary to the employees of the Municipalities i.e. those appointed against the posts in accordance with law. From the aforesaid Resolution dated 2-6-1998 if read with Secs. 47 and 47A of the Municipalities Act, 1963, it will be clear that the same do not relate to any workman engaged on daily wage or fixed wage basis for any specific Scheme. It does not relate to any person who has not been engaged against a post as created under the Act or the persons who have been engaged on contract basis.” 8. This Court has also referred the decision rendered by the Apex Court in the case of Amarkant Rai Vs State of Bihar reported (2015) 8 SCC 265 “12. Applying the ratio of Umadevi's case, this Court in Nihal Singh & Ors. v. State of Punjab & Ors., (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under: "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks." 13. In our view, the exception carved out in para 53 of Umadevi is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 03.1.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010.” 9. In view of the above decisions and discussion, this Court is of the view that as there is an availability of sanctioned post and the workmen are working for more than a decade and other similarly situated persons were regularized as per the order of the Court the present respondents are also entitled for regularization of service as directed by the learned labour Court as well as they are entitled for the regular pay scale. 10. In view of the above, this Court does not find any merits in the present petition, hence, this petition is dismissed. 11. Rule is discharged accordingly.