JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned Senior Advocate Mr. K.M. Patel with learned advocate Mr. Varun Patel for the petitioner and learned Senior Advocate Mr. Shalin Mehta with learned advocate Ms. Parul P. Vasavada for the respondent. 2. Rule returnable forthwith. Learned advocate Ms. Parul Vasavada waives service of notice of rule on behalf of the respondent. 3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 27.06.2019 passed by the Industrial Court, Rajkot in BIR Appeal (IC) No. 3 of 2019 and order dated 11.02.2019 passed by the Labour Court, Junagadh in BIR Application No. 1/2018. 4. Brief facts of the case are that the petitioner - Junagadh District Cooperative Bank Ltd. is registered under the provisions of Gujarat Cooperative Societies Act, 1961 and is engaged in banking business and having head office at Junagadh and 44 branches at different places in Junagadh, Porbandar and Gir Somnath Districts. 4.1 Grievance of the petitioner is concerned with regard to the impugned orders denying the petitioner to recruit clerks and peons in the bank under the provisions of the Gujarat Industrial Relations Act, 1946 (For short “the Act”) originally known as the Bombay Industrial Relations Act, 1946. 4.2 It is the case of the petitioner that prior to the impugned orders passed in the proceedings, there was previous litigation with regard to settlement dated 16.01.2002 between the parties. Such settlement was for the period from 01.07.2001 to 30.06.2005 and on expiry of the period, the respondent Union issued notice of change in the year 2007 desiring change in wage structure and other conditions of service of employees and filed Reference (IT) No. 1/2007 before the Industrial Court, Rajkot. The dispute pursuant to notice of change of bank was also registered as Reference (IT) No. 3/2007. 4.3 Both the references were proceeded on the interim order stage, wherein Industrial Court by order dated 04.12.2013 partly allowed the injunction application of the respondent Union by directing that the appointment to be made will be on temporary basis and subject to outcome of the Reference. 4.4 The petitioner bank challenged the order of injunction before this Court by preferring Special Civil Application No. 18330/2013 and respondent Union challenged the order by preferring Special Civil Application No. 16120/2013. 4.4 The petitioner bank challenged the order of injunction before this Court by preferring Special Civil Application No. 18330/2013 and respondent Union challenged the order by preferring Special Civil Application No. 16120/2013. As the matter was not settled between the parties, about 228 employees filed writ petition being Special Civil Application No. 2188/2016 challenging the order dated 31.12.2015 by which application for separate appearance was not permitted by the Industrial Court. 4.5 Thereafter all members of employees resigned from the membership of the respondent union and arrived at amicable settlement with the bank on 30.06.2017. Accordingly, both the references were withdrawn as per the award dated 15.06.2017 and the pending litigation was also withdrawn before this Court. 4.6 The petitioner bank thereafter on 10.05.2018 published an advertisement for recruitment for the post of Deputy Manager, Senior Officer, Junior Officer, clerk and peon to fill up 154 vacancies as there was acute shortfall in the required staff due to vacancies arising out of promotions, retirement and also requirement of opening of new branches permitted by National Bank for Agriculture and Rural Development (For short “NABARD”). It is the case of the petitioner that at managerial and officers’ level, the petitioner bank is required to continue incumbents of the posts of Deputy Manager, Senior Manager, Junior Officer who have attained the age of superannuation by extending their term. 4.7 The respondent Union claiming to be representing the employees of the petitioner bank as representative Union under the provisions of the Act filed BIR Application No. 1 of 2018 before the Labour Court, Junagadh alleging that proposed recruitment is in breach of last settlement with the respondent Union on 16.01.2022 and, therefore, action of the petitioner bank of undertaking recruitment process without giving notice of change as required under section 42(1) of the Act amounts to illegal change as per section 46(3) of the Act. 4.8 In reply, it was contended by the petitioner bank that settlement dated 16.01.2002 had expired and terminated long back and was not in force and thereafter, settlement with the employees was entered into on 30.06.2017 which would govern the criteria for recruitment, qualification prescribed therein which were according to the terms of instructions from NABARD and, therefore, there was no illegal change. It was also pointed out that by proposed recruitment, no new posts are created and the recruitment was on the existing vacancies and therefore, the recruitment of “employees” is expressly covered by Item 6(i) of the Schedule III of the Act and would not be covered by Item 1 and 2 of Schedule II of the Act and therefore, no notice of change was required to be given. 4.9 Labour Court after considering the documents placed on record and submissions made by both the sides by order dated 03.07.2018 allowed the application Exh.2 filed by respondent no. 2 Union for interim injunction and restrained the petitioner bank from proceeding further with the recruitment process of 154 posts advertised on 10.05.2018. 4.10 Being aggrieved, the petitioner bank preferred Special Civil Application No. 10800 of 2018 before this Court challenging the order dated 03.07.2018 which was not entertained vide order dated 25.07.2018 on the ground that the petitioner can prefer revision application under section 85 of the Act before the Industrial Court. 4.11 Accordingly, the petitioner preferred Revision Application No. 1 of 2018 which was dismissed by order dated 05.01.2019. The petitioner therefore, preferred Special Civil Application No. 1102/2019 challenging the order passed in revision application and this Court by order dated 24.01.2019 granted interim relief in favour of the petitioner bank by staying the order of interim injunction against recruitment and permitted the petitioner bank to make appointments in the clerical post and sub-ordinate staff subject to outcome of the main proceeding between the parties along with other directions. With regard to recruitment on the posts of Managers and Officers, as the respondent Union did not raise any objection, the interim order passed by this Court permitted the recruitment subject to outcome of the proceeding for the post of clerks and peons which was in line with order dated 21.12.2013 passed in Special Civil Application No. 18330/2013 and Special Civil Application No. 18016/2013 between the parties. 4.12 The respondent Union preferred Letters Patent Appeal No. 270/2019 against the order dated 24.01.2019 which was disposed of by order dated 07.02.2019 by clarifying that the observations made in paragraph no. 9 of the said order are prima facie and Labour Court shall not be influenced by the same. 4.12 The respondent Union preferred Letters Patent Appeal No. 270/2019 against the order dated 24.01.2019 which was disposed of by order dated 07.02.2019 by clarifying that the observations made in paragraph no. 9 of the said order are prima facie and Labour Court shall not be influenced by the same. 4.13 Labour Court thereafter by impugned Judgment and Order dated 11.02.2019 partly allowed BIR Application No. 1 of 2018 by holding that the action of the proposed recruitment by the bank pursuant to the advertisement dated 10.05.2018, save and except the posts of Managers and Officers amounts to illegal change and directed the petitioner bank to withdraw the same. 4.14 The petitioner challenged the aforesaid order before the Industrial Tribunal by preferring Appeal No. 3 of 2019. The Industrial Tribunal did not grant the interim relief and by the impugned order dated 27.06.2019 rejected the appeal. 4.15 Being aggrieved, the petitioner has preferred this petition challenging both the orders. 5. During the pendency of this petition, the petitioner bank has preferred Civil Application No. 1 of 2023 by placing on record the current requirement of posts to be filled up due to expansion of working of the petitioner bank. It would therefore, be germane to refer to the averments made in the application as under: “4. It is submitted that the case of the Opponent Union against the proposed recruitment by Bank was based on alleged breach of settlement dated 16.01.2002 which was binding and agreed to be in operation till 30.06.2005 by contending, inter-alia that: (i) It creates/increases the number of persons to be employed in bank by proposed recruitment/creates new posts. (ii) Qualification and wages are in breach of settlement dated 16.01.2002 and same having been done without giving notice of change amounts to illegal change. The applicant submits that there is no sanctioned set up of staff in the applicant bank under any settlement or award and therefore there is no question of increase in strength of number of persons to be employed or creating new posts requiring notice of change. Moreover, the recruitment being subject matter covered by item no. 6 of Schedule-III, no notice of change is required to be given after expiry of the settlement dated 16.02.2002 on 30.06.2005 as far as qualification is concerned. 5. Moreover, the recruitment being subject matter covered by item no. 6 of Schedule-III, no notice of change is required to be given after expiry of the settlement dated 16.02.2002 on 30.06.2005 as far as qualification is concerned. 5. The applicant bank has applied for opening of 5 New branches vide application dated 20.10.2023 made to Reserve Bank of India. Applicant states that in different branches as also at the Head office there is huge shortfall of staff in the category of clerks and peons. It has therefore become necessary to file the present application seeking permission of this Hon’ble Court to make appointment of 165 number of clerks and 80 number of peons subject to outcome of the outcome of this petition. 6. The applicant states that as on 31.03.2002 (in the year in which the settlement relied on by the Opponent Union was arrived at), the Bank had deposits of about Rs. 122 crores which has by now increased to manifold to about Rs. 1103 crore as on 30.09.2023. Similarly, the loans and advances made by the applicant bank as on 31.03.2002 were about Rs. 205 crore whereas as on 30.09.2023 it is about 1207 crores. Apart from H.O. at Junagadh, the Bank has 47 branches in 3 Districts of its area of operation viz. Junagadh, Porbandar and Gir Somnath. Having regard to the financial position of the Applicant Bank it falls in the category of Class ‘B’ bank as per NABARD norms. As per the criteria fixed by NABARD as Class ‘B’ bank, the applicant Bank is required to have 204 clerks and 93 peons. As against that today there are only 52 permanent clerks and only 20 permanent peons. Thus, there is a shortfall of 152 clerks and 73 peons. The Bank will also need further manpower on the posts of clerks and peons of about 10 and 5 respectively on the permission to open 5 new branches, if granted by Reserve Bank of India for which the applicant has given application to Reserve Bank of India on 20.10.2023. The applicant bank expects some clerks and peons to retire in near future. The administration and work of the Applicant Bank is suffering seriously on account of shortage of required manpower in the category of clerks and peons. The Bank therefore needs to make appointment upto 165 clerks and upto 80 peons on urgent basis. 7. The applicant bank expects some clerks and peons to retire in near future. The administration and work of the Applicant Bank is suffering seriously on account of shortage of required manpower in the category of clerks and peons. The Bank therefore needs to make appointment upto 165 clerks and upto 80 peons on urgent basis. 7. An advertisement for recruitment of clerks, peons and other recruitment was giving rise to the present litigation was issued on 10.05.2018 but no recruitment could be made on account of order of the Labour Court and Industrial Court against which the present petition is filed. Much time has passed after the said advertisement was issued on 10.05.2018. The applicant states that the advertisement inviting applications for recruitment issued on 10.05.2018 was for approximately 60 clerks (40 for Gujarati medium Graduate and 20 for all throughout English medium candidates) and approx. 40 peons. As stated earlier the NABARD has issued guidelines in its Circular dated 17.05.2019 (Annexure-C). The assessment of manpower required by the applicant bank for the posts of Clerks and Peons in the present application is made on the basis of those guidelines. The applicant bank, subject to order of this Hon’ble Court permitting the Bank to do so, proposes to issue fresh advertisement and undertake recruitment of 165 clerks and 80 peons. The qualification for the said posts will be as per NABARD guidelines as agreed in the last settlement with the employees dated 30.06.2017 (Page No. 155 of the compilation of main writ petition). The same will be as follows: Post Qualifications Clerk Minimum Graduate in any faculty Peon Minimum std. X and maximum XII As far as wages are concerned, the bank proposes to pay consolidated wages of Rs. 20,000/- per month to clerks and Rs. 15,000/- per month as consolidated wages to peons for the period of first six months from the date of appointment. It may be stated that the consolidated wages proposed to be paid as above, are more than total wages payable at the minimum of basic pay scale of clerk and peons as per Settlement dated 16.01.2002 which is relied on by the Opponent Union and the applicability of which is disputed by Applicant bank at this stage. Further on expiry of 6 months from the date of appointment, clerks and Peons will be paid wages as per settlement dated 03.06.2017.” 6. Further on expiry of 6 months from the date of appointment, clerks and Peons will be paid wages as per settlement dated 03.06.2017.” 6. The petitioner bank has therefore, prayed for permission to undertake recruitment procedure and appointment upto 165 number of clerks and upto 80 number of peons on permanent basis as per qualification agreed in settlement dated 30.06.2017. 7. Learned Senior Advocate Mr. K.M. Patel for the petitioner bank submitted that due to the pending litigation, the petitioner bank is unable to recruit clerks and peons after following due procedure of recruitment as per Circular No. 131/2019 dated 17.05.2019 issued by NABARD containing the recommendations of the Committee for assessment of Human resources in Short Term Cooperative Credit Structure in the post CBS Environment and guidelines for Human Resource Policy wherein recommendation of recruitment procedure is prescribed. It was submitted that the petitioner bank is desirous of recruiting the clerks and the peons to carry out day to day functions of the petitioner bank. It was submitted that there is no fixed number of persons employed by the petitioner bank either fixed by the petitioner bank or the respondent Union in settlement of 2002. It was therefore submitted that both the Labour Court and the Industrial Tribunal have committed an error by invoking the provisions of section 42(1) read with Item No. 1 and 2 of Schedule II read with section 46 of the Act instead of applying Item No. 6 (i) of the Schedule III of the Act. 7.1 Learned Senior Advocate Mr. Patel also referred to and relied upon section 116 of the Act which provides for agreement etc. when cease to have effect to submit that there is no illegal change as per section 46(3) of the Act as held by both the courts below as no notice of change is required to be issued by the petitioner bank for employment including reinstatement and recruitment as provided in Schedule III of the Act as there is no permanent or semi- permanent increase in the number of persons employed or to be employed in occupation of the petitioner bank. 7.2 In support of his submission, reliance was placed on the decision of Apex Court in case of Ashok K. Jha and Others vs. Garden Silk Mills Limited and Another, (2009) 10 SCC 584 to submit that the Hon’ble Apex Court after considering the provisions of section 3(18) which defines “industrial matter” and section 42(1) pertaining to notice of change as well as Item No. 1 and 2 of Schedule II and item no. 2 of Schedule III has held that mere transfer of workers within the establishment would not attract Item No. 1 and 2 of Schedule II but would be covered by Item No. 2 of Schedule III as there is a specific item in this regard for assignment of work and transfer of workers within the establishment. It was therefore, submitted that similarly in the facts of the present case as the petitioner bank is desirous of recruitment to the post of clerks and peon, item No. 2 of Schedule II which refers to permanent or semi permanent increase in number of persons employed or to be employed would be not applicable as there is no predetermined number of permanent or semi-permanent number of persons employed by the petitioner bank. 7.3 Reliance was placed on the decision in case of Division Bench of Bombay High Court in case of Yamuna Mills Company Ltd. vs. Majoor Mahajan Mandal, Baroda and Others rendered in Special Civil Application Nos. 30 and 31 of 1957 dated 13.03.1957, wherein it is observed by the Bombay High Court that when an employer desires to bring about a change in respect of an industrial matter specified in Schedule III, there is no corresponding obligation on the employer to give notice of change. It was further submitted that the Bombay High Court in the said decision has held that after termination of award, it would be open for both the sides to bring about a change without the notice of change such as matters enumerated in Schedule III to proceed to bring about the change because the impediment placed by section 46(3) is removed. It was therefore, submitted that once award dated 2002 has ceased to exist on its termination between the parties in the year 2005, there was no need to issue notice of change as contemplated in Schedule II as recruitment would fall within realm of Schedule III of the Act. 8. It was therefore, submitted that once award dated 2002 has ceased to exist on its termination between the parties in the year 2005, there was no need to issue notice of change as contemplated in Schedule II as recruitment would fall within realm of Schedule III of the Act. 8. On the other hand, learned Senior Advocate Mr. Shalin Mehta for the respondent submitted that settlement dated 16.01.2002 would continue to operate and the petitioner bank has committed breach of the provisions of section 42(1) of the Act by not issuing the notice of change to the respondent Union which is a registered representative Union, amounting to illegal change as per the provisions of section 46(3) of the Act. It was therefore, submitted that both the Courts below have rightly partly allowed the application filed by respondent Union holding that there is an illegal change by issuing advertisement dated 10.05.2018 by the petitioner bank for recruitment of clerks and peons. 8.1 Learned Senior Advocate Mr. Mehta referred to the averments made in reply to additional affidavit filed on behalf of the petitioner bank to submit that the question in this petition is not whether the petitioner bank is entitled to make any recruitment when necessary but whether the bank is entitled to make recruitment to the newly created posts, requiring new qualifications and prescribing new wages under the guise of making recruitment. It was submitted that such provisions of Schedule II (Item nos. 2, 4 and 9) of the Act, norms of recruitment to public posts for making such recruitment are required to be followed by issuing notice of change to the respondent Union. It was therefore, submitted that the only demand of respondent Union is to make recruitment for the existing post according to the rules and even if the petitioner bank wants to create new categories of posts with better wage scales and requiring higher qualifications providing for better administration, respondent Union has no objections to such rationalisation but it should be done in accordance with the provisions of law i.e. the provisions of the Act by giving notice of change to the Union and in the event of Union’s objections and after referring the matter to Industrial Court, who will be the final arbiter in such circumstances. 8.2 It was submitted that it is not possible to understand why the petitioner bank is feeling shy in pursing such course of issuing notice of change and accepting the decision of Industrial Court. It was therefore, submitted that intention of the petitioner bank is to ignore the respondent Union by ignoring the provisions of Schedule II of the Act for not issuing the notice of change. 8.3 It was submitted that most of the appointments made by the petitioner bank since 2001 are made without following due process of law by employing near and dear ones of the higher officers. It was submitted that the respondent Union is only desirous of following the mandatory requirements of the provisions of the Act to fill up the vacancies or for creation of new category of posts carrying higher qualification or prescribing better wages after giving notice of change to respondent Union which is working as representative and approved Union for the last 50 years. 8.4 It was further submitted that after the order passed by the Labour Court on 11.02.2009, the petitioner bank has recruited more than 100 persons as daily wagers, clerks and peons giving them substantial rise, sending them for training and then appointing them directly as clerk or junior officers in violation of orders impugned in this petition. 9. Having considered the submissions made by learned advocates for both the sides, it would be germane to refer to the relevant provisions of the Act: “3(18) “Industrial matter” 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, and includes: (a) all matters pertaining to the relationship between employers and employees, or to the dismissal or non-employment of any person. (b) all matters pertaining to the demarcation of functions of any employee or classes of employees. (c) all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act. (d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole. 42. (d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole. 42. Notice of change: (1) Any employer intending to effect any change in respect of an 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 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) Any employee desiring a change in respect of an industrial matter not specified in Schedule I or III give a 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, they shall give fresh notice in the manner provided in sub-section (1) or (2), as the case may be. 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, they 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] desiring a change in respect of (i) any order passed by the 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 “[except item (5) thereof] shall make an application to the Labour Court [and as respects change desired in any industrial matter specified in item 5 of Schedule III, to the Industrial Court]: Provided that no such application shall lie unless the employee for a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period. 46. Illegal change: (1) No employer shall make any change in any standing order settled under Chapter VII without following the procedure prescribed therefore in this Act. (2) No employer shall make any change in any industrial matter mentioned in Schedule II- [(ai) before giving notice of the change as required by the provisions of sub- section (1) of section 42] (i) within the period provided for in sub-section (1) of section 44 unless an agreement is arrived at. (ii) where no agreement is arrived at before the completion of the conciliation proceedings and during the period of ten days thereafter. (iii) where no settlement is arrived at, before the date on which the award of the arbitrator or the Industrial Court, or as the case may be, decision of the Wage Board, comes into operation. (3) No employer shall make any such change in contravention of the terms of a settlement, [effective award, registered agreement or effective order or decision of a Wage Board]. (4) Any change made in contravention of the provisions of sub-section (1), (2) or (3) shall be illegal. (3) No employer shall make any such change in contravention of the terms of a settlement, [effective award, registered agreement or effective order or decision of a Wage Board]. (4) Any change made in contravention of the provisions of sub-section (1), (2) or (3) shall be illegal. (5) Failure to carry out the terms of any settlement, award “[registered agreement or effective order or decision of a Wage Board], [a Labour Court or the Industrial Court affecting Industrial matters] shall be deemed to be an illegal change.” Schedule II (Section 42) 1. Reduction intended to be of permanent or semi-permanent character in the number post or of persons employed or to be employed in any occupation or process or department or departments or in a shift not due to force majeure. 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. 3. Dismissal of any employee except as provided for in the standing orders applicable under this Act. 4. Rationalisation or other efficiency system of work, [whether by way of experiment or otherwise] 5. All matters pertaining to shift working which are not covered by the Standing Orders applicable under this Act. 6. Withdrawal of recognition to unions of employees. 7. Withdrawal of any customary concession or privilege or change in usage. 8. Introduction of new rules of discipline or alteration of existing rules and their interpretation, except in so far as they are provided for in the standing, orders applicable under this Act. 9. Wages including the period and mode of payment. 10. Hours of work and rest intervals. 11. All matters pertaining to leave and holidays, other than those specified in items 6 and 7 in Schedule 1. SCHEDULE III (Section 42) (1) Adequacy and quality of materials and equipment applied to the workers. (2) Assignment of work and transfer of workers within the establishment. (3) Health, safety and welfare of employees (including water, dining sheds, rest sheds, latrines, urinals, creches, restaurants and such other amenities). (4) Matters relating to trade union organization, membership and levies (5) Construction and interpretation of awards, agreements and settlements. (6) Employment including: (i) reinstatement and recruitment. (ii) unemployment to persons previously employed in the industry concerned (7) Payment of compensation for closure.” 10. (4) Matters relating to trade union organization, membership and levies (5) Construction and interpretation of awards, agreements and settlements. (6) Employment including: (i) reinstatement and recruitment. (ii) unemployment to persons previously employed in the industry concerned (7) Payment of compensation for closure.” 10. Considering the above provisions of the Act and the facts emerging from the record from 2002 onwards and the litigation between the parties, it appears that the petitioner bank has adopted an approach of ignoring the respondent Union by consistently contending that the petitioner bank is not required to issue any notice for change as contemplated under the provisions of section 42(1) read with Schedule II Item (1) and (2) on the ground that the aspect of recruitment would fall under Item No. (6)(i) of Schedule III and therefore, the provisions of section 42(1) of the Act would not be applicable. In such circumstances, it is not in dispute that recruitment would fall under the employment category of Item No. (6) of Schedule III and as held by the Apex Court in case of Ashok K. Jha and Others vs. Garden Silk Mills Limited and Another (supra), no notice of change would be required to be issued for items falling under Schedule III of the Act. However, on perusal of Item No. 2 of Schedule II which provides for permanent or semi- permanent increase in the number of persons employed or to be employed, the same would be applicable in the facts of the case when the petitioner bank wants to increase the number of employees in the post of clerks and peons to which the provisions of the Act would be applicable, however, there is no fixed number of clerks and peons who were working in the year 2002. Admittedly by passage of time and due to the expansion of work of the petitioner bank, the requirement of clerks and peons have increased manifold as stated by the petitioner bank in the averments made in the Civil Application which are reproduced here-in-above and accordingly, the petitioner bank would not be required to follow the provisions of the Act by issuing notice of change to the respondent Union with regard to increase in permanent or semi-permanent number of persons employed or to be employed as required as per Item No. 2 of Schedule II. Therefore, vacancies of clerks and peons are concerned, the recruitment process would be governed by Item No. 6(i) of Schedule III of the Act which would not require any notice of change. It is also pertinent to note that the settlement arrived at by the petitioner bank with the employees on 30.06.2017 is not as per the provisions of the Act, as such settlement was not with the registered Union as per section 3(30) of the Act which provides for “registered union’ means a Union registered under this Act. It is not in dispute that respondent Union is a registered Union as well as representative Union. “Representative of employees” are defined under section 3(32) means a representative of employees entitled to appear or act as such under sub-section (30) and “representative Union” is defined under section 3(33) which means a Union for the time being registered as a Representative Union under the Act. Therefore, the settlement arrived with the employees on 30.06.2017 is not either with registered Union or representative employee or representative Union and therefore, such settlement would be out of purview of section 42 of the Act which provides for notice of change to the representative employees if the petitioner bank intends to effect any change in respect of industrial matter specified in Schedule II of the Act. Industrial matter as defined in section 3(18) means any matter relating to employment, work, wages etc. Therefore, the recruitment which is part of the employment as relied upon by the petitioner to invoke Item No. 6 of Schedule III of the Act would be an industrial matter and therefore, if the petitioner bank wishes to increase the permanent number of persons employed which was prevailing at the relevant time in the year 2002 when the settlement was arrived at between the petitioner, in absence of any fixed number of posts of clerks and peons as agreed between the petitioner and respondent Union, it would not be governed by Item No. 2 of Schedule II of the Act. Moreover, as such settlement has ceased to exist since 2005 and in absence of any other settlement between the parties, both the Courts below have erred in relying upon such settlement. Moreover, as such settlement has ceased to exist since 2005 and in absence of any other settlement between the parties, both the Courts below have erred in relying upon such settlement. As such, there is no settlement after 2005 between the parties and notice of change issued by the respondent Union in the year 2007 has also been withdrawn after the settlement arrived at between the petitioner bank and the employees in the year 2017. Therefore, for all intents and purpose, respondent Union has ceased to become a registered Union representing the employees of the petitioner bank. Therefore, the impugned order insisting for notice of change as contemplated under section 42(1) of the Act and holding that the advertisement dated 10.05.2018 amounts to illegal change as per section 46(3) are therefore, contrary to the facts on record and are accordingly, liable to be quashed and set aside. The petitioner bank is therefore, not required to issue any notice of change as contemplated in Item No. 2 of Schedule II read with section 42(1) of the Act as held by the Apex Court in case of Ashok K. Jha and Others (supra) as under: “17. Section 46(4) provides that no employer shall make any change in any industrial matter mentioned in Schedule II before giving notice of change as required by the provisions of sub-section (1) of Section 42 and any change made in contravention of the provisions of sub-Section (1), (2) of (3) shall be illegal. 18. Item 1 of Schedule II reads: “Reduction intended to be of permanent or semi-permanent character in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift not due to force majeure.” 19. Item 2 of Schedule II refers to: “Permanent or semi- permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments.” 20. Item 2 of Schedule III reads: “Assignment of work and transfer of workers within the establishment.” 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. 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. xxx xxx xxx 25. We are not persuaded by the submission of the learned Counsel for the appellants that there is a basic difference in the nature of machines in the Crimping and Twisting Departments and that workers are not trained to work at Twisting Machines. If that were so, the workers ought to have led evidence in that regard which they never did. 26. The Division Bench of the High Court in this regard considered the matter thus: “...We do appreciate that transfer of the employees from one department to another, in absence of corresponding transfer, would necessarily result into reduction in manpower in one department and corresponding increase in the manpower in the other department. But, we are unable to agree that Item 1 of the Schedule II to the Act is intended to cover the cases like the one before us. But, we are unable to agree that Item 1 of the Schedule II to the Act is intended to cover the cases like the one before us. Had that been the legislative intent the “assignment of work and the transfer of workers within the establishment” would not have been included in Schedule III to the act. If the reasoning of the Industrial court were accepted, the above referred Item 2 in Schedule III to the Act would become nugatory. The cardinal principle of interpretation of statutes requires that the interpretation which would render a part of the legislation nugatory or otiose should be avoided. What is required is harmonization or conciliation amongst the two seemingly contradictory or repugnant provisions in an enactment. As the matter “assignment of work and transfer of workers within the establishment” has been specifically included in Schedule III to the Act, it cannot be artificially brought under Item 1 of Schedule II by reference to the presumable consequences of such transfer or assignment of work.” We agree with the view of the High Court and for the reasons already indicated above, we answer question (1) in the negative.” 11. In view of the above dictum of law, the petitioner bank would not be required to issue any notice of change as recruitment would fall under Item No. 6(i) of Schedule III for which no notice is required under section 42(1) of the Act. 12. The petition is therefore, allowed in the aforesaid terms. The impugned judgment and order dated 27.06.2019 passed by the Industrial Court, Rajkot and order dated 11.02.2019 passed by the Labour Court, Junagadh are quashed and set aside and Accordingly, the petitioner bank is entitled to undertake recruitment for the posts of the clerks and peons without issuing any notice of change. However, the petitioner bank is required to follow the recruitment process as contemplated by NABARD as per circular dated 17.05.2019. The respondent bank is also directed to frame the rules of recruitment on the basis of such recommendation and thereafter undertake the recruitment process after framing such rules and getting approval from the competent authority. Rule is made absolute to the aforesaid extent. No order as to cost. 13. Civil Application also stands disposed of accordingly.